Inhabitants of Greenfield v. Wilson

Metcalf, J. This action, we think, was rightly commenced in the court of common pleas. We understand that the provision in St. 1845, c. 70, § 2, that in actions on constables’ bonds “ the like proceedings shall be had as in a suit by a creditor on administration bonds,” was intended merely to direct the form of proceedings in such actions, and not to give to the supreme judicial court exclusive jurisdiction thereof, Ifite its jurisdiction under the Rev. Sts. c. 70, of actions on administration bonds. In Lowell v. Parker, 10 Met. 309, no question of the jurisdiction of the court was raised. It is also our opinion that an attachment, by a constable, of 386 the property of A. on a process against B. is a breach of the condition of his official bond given for the faithful performance of his duties in the service of civil processes. Archer v. Noble, 3 Greenl. 418. Brunott v. M'Kee, 6 W. & S. 513. State v. Jennings, 4 Ohio State R. 418. Such act is a breach of the condition of a coroner’s and of a sheriff’s official bond. Harris v. Hanson, 2 Fairf. 241. Carmack v. Commonwealth, 5 Binn. 184. People v. Schuyler, 4 Comst. 173. The only other question is, whether the recovery of a judgment by Kenran against Wilson, for the conversion of the rifle, which judgment is unsatisfied, is a bar to this action. And we deem it perfectly clear that it is not. In Carmack v. Commonwealth, above cited, this precise point was adjudged. But we need no precedent. Officers are, by the common law, answerable for legal injuries done by their official acts, or acts under color of office. But they may not have pecuniary ability to pay the damages that may be recovered against them; or they may dishonestly avoid payment. Hence the statute requisition that they shall give bonds, with sureties, for the faithful performance of their official duties; thus giving to a party injured by the officer’s acts a cumulative remedy, that is, a remedy in addition to an action against the officer, founded directly on his misdoings.. Undoubtedly such party can have only one satisfaction ; but a judgment, in an action brought against the officer for his misdoings, is not per se a satisfaction for the party’s injury. It may be wholly worthless; and while it is unsatisfied, it can be no bar to an action on the officer’s official bond. Indeed, the Rev. Sts. c. 14, § 65, provide that no action shall be brought on a sheriff’s bond, until the party bringing it has recovered judgment against the sheriff or his legal representatives, &c.; and that, in a suit on the bond, execution shall issue for the amount of such judgment, or such part thereof as shall be unsatisfied. Exceptions overruled.