Cressey v. Gierman

By the Court Atwatee, J. The bond upon which it was sought to hold the Defendants liable was conditioned for the faithful discharge of all the duties of Gierman as Justice of the Peace. . The important question presented therefore by [404] tbe demurrer, is to determine whether the complaint alleges the breach of any duty incumbent on Gierman “as Justice of the Peace.” Seo. 9,y>. J46, Comp. Stat., provides that “any magistrate may adjourn an examination or trial pending before himself from time to time as occasion shall require, not exceeding ten days at one time, without the consent of the Defendant or person charged, and at the same or a different place in the county as he shall think proper, and in such case, if the party is charged with a capital offence, 'he shall be. committed in the mean time; otherwise he may be recognized in a sum, and with sureties, to the satisfaction of the magistrate for his appearance for such further examination,, and for want of such recognizance, he shall be committed to prison.” Section 18 of the same chapter provides, “ that if it shall appear that an offence has been committed, and that there is probable cause to believe the prisoner guilty, and if the of-fence be bailable by the magistrate, and the prisoner offer sufficient bail, or the amount of money in lieu thereof, it shall be taken and the prisoner discharged.” These are all the statutory provisions, so far as we find, bearing upon the case. It will be observed that upon the adjournment of a trial or examination, the statute confers no authority upon the magistrate to accept a sum of money as security for the appearance of the prisoner, but to recognize him in a sum, and with sureties to the satisfaction of the magistrate, and for want of such recognizance, he shall be committed to prison. There was no authority therefore conferred upon the justice to receive from the prisoner a deposit of specie as security for his appearance for examination, much less a duty imposed on him so to do. If it was no part of the official duty of the Justice to receive this money, he incurred no official responsibility in refusing to return it. In receiving it, he did so as an individual, and his responsibility therefor is the same as would be that of any other individual in like circumstances. That he might have taken the money in good faith, and supposing he had the right to receive it for the purpose stated, could not of course change his legal liability therefor, nor render his re [405] fusal to return the same any the more a breach of official duty. His liability must be determined from the language and true construction of the statute, and not from his interpretation of the same. It is urged by Eespondent that as section 18 authorizes the Justice to receive money, after it has been determined that there is probable cause to hold the party to answer, much more may it be supposed that it was not the intent to refuse him this privilege on a preliminary examination. What the reasons were which induced the legislature to allow this security in one case, and refuse it in the other, may not be easy to determine, though I can conceive of reasons which might have operated to produce this result. But the legislature had the undoubted right to make the distinction, even without any reason, and the only question is, whether the legislature has made it a part of the official duty of the Justice to re-reive this money under the circumstances stated. And instead of assenting to the view taken by the Eespondent, 1 think under the ordinary rules of construction, directly the reverse is the argument to be deduced from the fact, that in one case the legislature has omitted to give authority to take this kind of security; and in another section of the same chapter, and treating of the same subject matter has expressly granted it. The legal inference is, that the omission in the first instance was not accidental, but ex industria. . Sureties are looked upon with favor in the eye of the law, and contracts not construed strictly against them, nor a liability imposed by statute, not plainly or fairly deducible from the terms thereof. The sureties on the official bond of the Justice, cannot, it is true, set up as a defence that they did not know what duties the law had imposed on the Justiee, but were they reasonably bound to construe the law as claimed by Eespondent 2 Had they not, on the contrary, the strongest reason to suppose they were assuming no responsibility for money received under such circumstances, or rather, that the Justice would never receive money under such circumstances, as the statute had not authorized him to do so 2 And if there be a doubt as to the true construction of the statute in this regard, the sureties are entitled to the benefit of the [406] doubt, rather than that it should be construed against them by inference or implication. I think it was no part of the official duty of the Justice to receive this money under the facts stated, and that none was violated in refusing to return it, and that consequently the sureties are not liable for a breach of the bond. So far as the Defendant Gierman is concerned however, I think the complaint states a good cause of action, though not for a breach of his bond, or the promise stated in the complaint to return the money. The complaint shows that he received a certain quantity of money belonging to Benson. He had no right to receive that money on the pretence, or for the object for which it was taken, though if the Defendant in the action paid it to him voluntarily, as an individual he was not wrongfully in possession of it, and might hold it until the condition on which it was taken was fulfilled, or at least until Benson demanded it. But as soon as Benson appeared at the appointed time for his examination, he was entitled to receive back his money, and the justice had no right to hold it, and this, whether there was a demand for it odr not, though the question of demand does not here arise. And Benson having a right to receive his money back, had of course the right to authorize any other person to receive it. The complaint states that he did authorize and empower the Plaintiff to take and receive the money of the Justice, that the Plaintiff demanded the same of the Justice who refused to deliver the money to him. These facts all stand admitted by the demurrer. The question of a pawn or pledge does not necessarily arise in this case. There is considerable matter in the complaint which is not essential to the cause of action, and which might have well been omitted. The promise of the Justice to pay over the money to Oressey, on the arrangement made between the latter and Benson, can neither increase or diminish his liability, since his obligation to return the money does not rest upon that contract, but upon an entirely different ground. Nor has he anything to do with the question as to whether that contract was a valid one or not. He had . Benson’s money, and was bound to restore it, and the only question which concerned' him in the premises, was whether [407] JBenson bad authorized the Plaintiff to receive the money in his stead. And as the pleading admits all these facts, a cause of action exists against the Defendant Gierman. And sufficient facts appearing in the complaint to warrant a judgment against the Defendant for this money, it should not defeat the right of the Plaintiff that he has asked for relief upon the wrong ground, and claims more than he is entitled to. This view makes it necessary to advert to one point disclosed by the papers, but not urged on the argument. It appears that one of the grounds of demurrer originally taken was that the District .Court had not jurisdiction of the action the amount in controversy being less than one hundred dollars. This ground was afterwards abandoned, for the reason that the right of recovery was founded upon the official bond of a Justice of the Peace, of which a Justice’s Court has not jurisdiction. As the action cannot be maintained on the bond, the objection would stand good if the District Court has not jurisdiction in an ordinary action, where the amount in controversy is less than $100. We had occasion to examine this question in Agin vs. Heyward, executrix, &c., decided at the last December term, and there held that the District Court had jurisdiction in actions where the amount in controversy was less than one hundred dollars, the only disabilityimposed upon the Plaintiff being, that he cannot recover costs where the amount.recovered is less than that sum. The order overruling the demurrer of Berthold and Keis should be reversed, and sustained as to the demurrer of Gier-man, and the case remanded to the District Court of Scott County.