Dunn v. Sutliff

Mf tfie court, Whipí>x,é', J.

The first qúbstich to be determined is, Whether th'e security taken before the justice, followed the case on appeal to the circuit court. This question must depend upon the Construction of the' 68th se'e. of the Justice’s Act of 1841, which is in these Words: “Any justice of the peace may ik all actions, either before or after issuing of process, require,, at Ms discretion,, security of the plaintiff *25 for costs; and tlie person giving’ sitcK security shall sign a memorandum in writing to that effect, which the said justice shall keep as a part of .the record in the case;’and in all cases non-resident plaintiffs shall give such security before process shall issue.” It seems to me quite clear, that the security contemplated by this Section embraces all costs which the defendant may recover, either before the justice or on appeal to the circuit court. The statute does not limit the responsibility of the surety to costs which may be recovered in the justice’s court; and we see no reason for restricting the general language iff which the stat-" ute is couched. The surety, when he contracts the obligation contemplated by the statute, is fully advised that the judgment of the justice is not conclusive of the rights of the parties, and that the cause may be reviewed upon appeal. The" appeal; under our statute, takes up to the appellate court the same cause, and is a re-hearing of the cause upon the merits: it is in the nature of a new trial, and the same reasons which require security for costs in the justice’s court, apply with equal' force to the costs recoverable at the circuit, upon a re-hearing.

The second cause of demurrer is, that the security was discharged by rendition of a judgment in favor of the plaintiff before the justice. If we are right upon the first question, this cause of demurrer is not well taken.

The third case of demurrer asserts, that the reference of the subject matter of dispute between the parties, to arbitrators, under the provisions' of our statute, discharged the security. We are of opinion that the legal effect of such a reference was to discharge the surety from his' contract. The reference of the suit and of the matters in controversy _ between the parties, to arbitrators, operated as á legal discontinuance of the cause. By such a reference, the cause was withdrawn from the circuit court, and the whole controversy was committed to a tribunal selected by the parties. To' extend the liability of the surety to costs that may be awarded by the arbitrators, would be to enlarge the contract of the surety, which was limited to such costs as might be recov-’ ered against his principal, either before the justice or in the circuit court,' in the cause originally commenced before the former. The error of the counsel of the plaintiff consists in supposing that the judgment was rendered in the cause which was pending iá the circuit court, when; in' *26 point of fact, no came was pending after tlie agreement to refer to arbitration.

Our Rev. Statutes did not re-enact tbe provisions' of the act of 1833, which authorized the reference, by rule4 of court, of causes pending in courts of record. If that provision had been retained, and the cause which was pending at the circuit had been referred to referees by a rule of court, then the reasoning of the counsel would have been pertinent. The judgment rendered by the circuit court upon the report of the referees, would have been a judgment in the cause originally commenced before the justice, and the liability of the1 surety Would have been unquestionable. As the matter is presented hi the declaration, it is manifest that the judgment in the circuit court was not rendered in the cause so commenced, but upon the award of the arbitrators,- made and returned to the circuit court under the- provisions of oue statute.

If our views be correct upon this point, it becemes unnecessary to express any opinion upon the other questions raised by the' demurrer.

It must be certified to the circuit court of the county of Wayne, as the opinion of this court, that the demurrer to the plaintiff’s declaration should be sustained, Certified accordingly.