City of Cambridge v. Foster
81 N.E. 278
Mass.
1907
Check Treatment
Hammond, J.

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 рut 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 processеs 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 *415are not required by tbe statute, still, inasmuch as they are there, the bond is good as a common law bond as to them all, and that therefore he can recover for a breach of any condition if he has been injuriously affected by such breach. And he further alleges that the assault upon him was a breach of the condition of the bond that the said Foster “shall carefully intend the preservation of the peace, the discovery and preventing all attempts against the same; and shall duly exеcute all warrants.”

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 compliancе 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 сase, 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 сonstable attaches the property of A. on a writ against B. alone, there is a breach of this condition; and A. after due procеedings 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 thаt 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 thе 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.

*416But whаtever the act may be, it must have been done, if not by ‍​‌‌​​​​‌​‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​​‌​​‌‌​‌​​‌‌​​​‌​​‌‍virtue of the office, at least under color of the office, and ex necessitate before the service is completed. Lowell v. Parker, 10 Met. 309. Turner v. Sisson, 137 Mass. 191. Boston v. Moore, 3 Allen, 126. It follows that if during the service of the process the constable commit an assault not colore officii, or if after the service of the writ he commit an assault in punishment of an act of opposition theretofore made to the service of the writ, such an assault is not misconduct in office and the victim of the assault can have no recourse to the bond. In the light of these principles we proceed to the examination of the reсord before us.

The declaration contains three counts, the first founded on an assault, the second on assault and false imprisonment, аnd 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 therеin; 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 Claytоn 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 рlaintiff 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 judgmеnt may have been rendered upon all or less than all.

It follows therefore that if one of the causes of action set *417forth in the deсlaration is not such as would constitute a breach of the bond, it does not appear that the judgment was rendered upon an act which constituted a breach of the bond. It may havé been rendered upon the count describing an act which was not a breach. Upon inspеction of the docket entries, however, it appears that upon inquiry made by the court after the general verdict of $125 was announced, the jury stated that they found for the plaintiff on the first count for $5, on the second count for $20, and on the third for $100; and it is urged by Clayton that, inasmuch as these answers of the jury are not inconsistent with the general verdict recorded and with the judgment, they are competent to fill out and explain bоth the verdict and the judgment. But that position seems untenable. While the docket entries may be regarded as the record of the case until thе record is extended, and while they may be useful upon any inquiry as to whether the court should amend the record as extended, still after the record has been extended they cannot be regarded as a part of it when it is offered in evidence in another case. Noyes v. Newmarch, 1 Allen, 51. Fall River v. Riley, 140 Mass. 488. For aught that appears upon the record as finally extended the verdict may have been ‍​‌‌​​​​‌​‌​‌​‌‌‌‌​‌​​​‌‌​‌​‌​​‌​​‌‌​‌​​‌‌​​​‌​​‌‍based entirely upon the count for malicious prosecution, and so of the judgment.

Whatever may be said of the first and second counts, it is plain upon the most liberal interpretation that the mаlicious 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 cоnsidered 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.