195 Mass. 411 | Mass. | 1907
Although there are many conditions in the bond, the only one for the breach of whi'ch the beneficiary plaintiff, Clayton, has the right under the statute to put the bond in suit is that Foster, the principal obligor, should “ faithfully perform all the duties of a constable in the service of all civil processes committed to him.” Pub. Sts. c. 27, §§ 113, 115, now R. L. c. 25, §§ 88, 90. This condition is in substantial compliance with the statute, and the bond in this respect is a valid statutory bond notwithstanding it contains other conditions. It is urged by Clayton that while these other conditions
In support of this contention he relies upon cases like Meintire v. Linehan, 178 Mass. 263, and Farr v. Rouillard, 172 Mass. 303, in each of which cases it was held that although the bond did not in all respects conform to the statute, yet it might be regarded as good at common law so far as to serve the same purpose which it would have served if there had been full compliance with the statute. Or, in other words, the bond was held to be sufficient to secure the statutory right which it was intended to secure. But such a bond cannot enlarge a statutory right. That always remains the same. In the present case, as before stated, the right of Clayton to put the bond in suit is confined to a case, of the breach of the condition with regard to the service of civil process, and since he is not the obligee that right does not extend to any other condition in the bond. If he shows such a breach to his injury he may recover; otherwise he cannot.
It is settled that, when a constable attaches the property of A. on a writ against B. alone, there is a breach of this condition; and A. after due proceedings may recover on the bond. Greenfield v. Wilson, 13 Gray, 384, and cases there cited. Tracy v. Goodwin, 5 Allen, 409. People v. Schuyler, 4 Comst. 173. This is upon the ground that the act constituting the breach is misconduct in office. There can be no doubt that in the case of the arrest of A. upon a civil process commanding the arrest of B. only, the same principle would apply; and if in the service of civil process and for the purpose of making service the constable commits an unlawful assault, we see no reason why this assault may not be regarded as a breach of this condition nor why the assaulted party may not have the statutory remedy on the bond.
The declaration contains three counts, the first founded on an assault, the second on assault and false imprisonment, and the third on malicious prosecution. Each of these acts is alleged to have been done by Foster by virtue of his office as constable. Each count contains an averment that Clayton had recovered judgment'against Foster for damages for the act set out therein; that execution issued and demand had been made upon Foster, and that no part of the judgment had been paid. The answer was in substance a general denial.
Upon these pleadings the case went to trial before a jury. The record of the previous suit between Clayton and Foster was introduced. The declaration in that case contained three counts corresponding respectively to the counts in the case before us, but there was no allegation in the record that either of the acts complained of was done colore officii. The judgment therefore was no evidence that either act was so done. Lowell v. Parker, 10 Met. 309, 315. The record as extended showed a general verdict for the plaintiff for $125, and a general judgment for $125.82 damages and the costs of suit. Inasmuch as there were three separate and distinct causes of action respectively set forth in three separate counts, any one of which would sustain the verdict, there is nothing in the record as extended to show upon which count or counts the jury found for the plaintiff or upon which judgment was rendered. The verdict may have been found and the judgment may have been rendered upon all or less than all.
It follows therefore that if one of the causes of action set
Whatever may be said of the first and second counts, it is plain upon the most liberal interpretation that the malicious prosecution upon which the third count was based could not have been a breach of the bond. It was incumbent upon Clayton, the beneficiary plaintiff, to show not only that the. condition of the bond had been broken, but that he had recovered judgment against Foster for damages suffered thereby, and had made a demand for the payment. R. L. c. 25, § 90; c. 149, § 20. Tracy v. Merrill, 103 Mass. 280. Fall River v. Riley, 138 Mass. 336.
The ruling that the verdict in the previous case could not be considered as apportioned was correct. Upon this ruling it followed that the evidence failed to show that Clayton had recovered judgment against Foster either for the assault or false imprisonment, and verdict for the defendants was rightly ordered.
Judgment on the verdict.