Lizana v. State ex rel. Kelly

Cook, J., delivered the opinion of the court. This is a suit for malicious prosecution against appellant, as justice of the peace, and the sureties on1* his official bond. A‘judgment was rendered by the trial court against Lizana and his sureties for six hundred and fifty dollars. An instruction was given by the trial court, at the request of plaintiff, authorizing the jury to render a verdict against the sureties for exemplary damages. This instruction should not have been given. In the absence of a statute, sureties on official bonds are not liable for exemplary damages. “The measure of damages for which sureties on official bonds are bound, in the absence of any statutory rule, is just compensation for the injury actually sustained, in addition to nominal damages which follow the breach of bonds.” 2 Sutherland on Damages (3 Ed.) sec. 488; 13 Cyc. 116. Without regard to the rule in other jurisdictions, this court has held that official acts, like the acts charged in the present case, are actionable. “What the magistrate does colore officii his sureties are liable for.” State v. McDaniel, 78 Miss. 4, 27 So. 994, 50 L. R. A. 118, 84 Am. St. Rep. 618. As this case may be tried again, we think it proper to say that instruction 2, given for plaintiff, is rather loosely drawn, and the same may be said about instruction 1. Reversed and remanded.