Kilborn v. Cooke

BY THE COURT. The real question in this case is this, does the bond cover the liability of the defendant, Cooke, for his neglect as constable, on the executions in favor of the plaintiff ? We think the condition cf the bond two-fold. [72] 1st. To save Kilborn harmless for all the liabilities growing out *of his having gone security for the constable. 2d. To in- [7Ü demnify him against liability to others. If it were not so, the bond would not operate as a complete indemnity ; and if Kilborn had business for a constable, he would be without the security which the law contemplates for all. Ought this to result from his having gone security in the constable’s bond? We think not; and this is embraced in the first clause of the condition of the indemnity bond, faithfully to discharge the duties of the office of constable. By his neglect of these duties, the plaintiff has been subjected to direct loss. This supersedes the necessity which would exist in an ordinary case of indemnity bonds, of establishing the liability by some judicial proceedings in favor of the party injured. The defendants are placed in this declaration within the letter of their bond. We can see nothing unlawful in so placing them. They show no merits calling for any nice construction to exonerate them. On the contrary, the equity which appears in the casé is all on the other side. The demurrer is overruled.