Treasurer of City of Boston v. Schapero

Braley, J. The plaintiff, having recovered judgment against the defendant Schapero for the conversion of certain personal property wrongfully attached by him as a constable in the service of civil process, brings this action under the provision of the R. L. c. 25, § 90, and c. 26, § 14, for breach of his official bond. Crocker v. Buttrick, 187 Mass. 461. It is admitted, that the judgment remains wholly unsatisfied. But as execution issued and the plaintiff has sued before the time for its return expired, the defendants, relying on Adams v. Cummiskey, 4 Cush. 420, contend that the action has been prematurely brought. It was said in Dailey v. Coleman, 122 Mass. 64, “The only conclusion that can be said to have been established by that decision is that an unseasonable and insufficient return will not justify the issue of .a scire facias while the execution is in force and not yet returnable.” The creditor might find property of the principal debtor sufficient to satisfy the execution, and in that event the trustee would not be liable in scire facias, which is merely a continuation of the proceedings by trustee process in the court where they originated. Fay v. Sears, 111 Mass. 154,155. But as against [75] bail, scire facias will lie without waiting for the return day of the execution, where there is a return on the notice issued for an arrest under R. L. c. 168, § 19, that the judgment debtor cannot be found. Wehrle v. Gurney, 146 Mass. 331. The condition of the bond was broken, when judgment was obtained against the constable for official misconduct; Fall River v. Riley, 138 Mass. 336; although suit could not be begun until demand was made upon him to pay the amount of the judgment, unless sufficient reason for a failure to do so was shown. Tracy v. Merrill, 103 Mass. 280. Fall River v. Riley, 138 Mass. 336. The officer’s return, however, shows, that payment was duly demanded and refused, and it is pointed out in Chesebro v. Barme, 163 Mass. 79, that under the Pub. Sts. c. 171, § 22, now R. L. c. 177, § 23, requiring writs of execution to be returned within sixty days from their date, that the officer’s return of service upon the execution, and the return of the execution into court, are distinct. The indorsement upon the execution regularly made of the officer’s doings was sufficient to permit its introduction in evidence. Fletcher v. Wrighton, 184 Mass. 547, 549. The plaintiff’s cause of action on the bond having accrued, under the decision in Tracy v. Merrill, 103 Mass. 280, by reason of the default, it is immaterial that the execution had twenty-four days more to run before the return day of the plaintiff’s writ, during which time a levy might have been made upon property of the judgment debtor if any could have been found. But, if this defense fails, it is further urged by the defendant surety company, that it is not concluded by the judgment against the principal, and should be permitted to show that the attachment was justifiable, because the mortgage to the plaintiff was fraudulent and void as to creditors of the mortgagor. The bond, however, is joint as well as several, and, whatever conflict there may be in other jurisdictions as to whether the judgment recovered against the principal is conclusive upon the sureties, it is settled by our decisions that they are bound by the adjudication in an action upon his official bond. Tracy v. Goodwin, 5 Allen, 409. Dennie v. Smith, 129 Mass. 143. Fall River v. Riley, 138 Mass. 336. See 35 Cyc. 1944, 1945, and notes for a collection of cases. The same rule has been adopted and followed as to sureties on bonds given to dissolve an attachment, or a mechanic’s lien, [76] or in summary proceedings for the possession of land where the case is removed to the appellate court, or to the judge of probate by a trustee. Cutter v. Evans, 115 Mass. 27. Tapley v. Goodsell, 122 Mass. 176. Ruggles v. Bernstein, 188 Mass. 232. Curtiss v. Curtiss, 182 Mass. 104, 106. Glover, appellant, 167 Mass. 280, 283. Harmon v. Weston, 215 Mass. 242. It is recognized in Briggs v. McDonald, 166 Mass. 37, which was an action upon a bond of indemnity to protect an officer against loss arising from the attachment of certain personal property, even if by the acts of the obligee an equity had been created in favor of the surety which the court did not feel at liberty to disregard. The plea in abatement and demurrer are overruled, and by the terms of the report the plaintiff is to have judgment for the penal sum of the bond, and execution is to issue for the amount stated. R. L. c. 177, §§ 9, 10. So ordered.