138 Mass. 336 | Mass. | 1885
It was held in Tracy v. Merrill, 103 Mass. 280, that an action could not be maintained upon a constable’s official bond, on proof of a judgment against him in a suit for official misconduct, without evidence of a demand upon him to pay the amount of the judgment. The plaintiff contends that this decision does not apply to the case at bar, as the bond then in suit was that of a constable of Boston, the liability on which was governed by the St. of 1814, c. 165, then in force, which statute, by its terms, applied only to the city of Boston. That statute was held to be still in force in the previous cases of Tracy v. Goodwin, 5 Allen, 409, and Calder v. Haynes, 7 Allen, 387, and in the subsequent ease of Tracy v. Warren, 104 Mass. 376, notwithstanding the more general legislation which had taken place after its enactment.
The case of Tracy v. Merrill is not, in the opinion of the court, placed upon the St. of 1814, but upon the Gen. Sts. c. 18, § 62, and c. 101, § 19, which are substantially reenacted in the Pub. Sts. c. 27, § 115, and c. 143, § 10. The St. of 1814 does indeed provide that, before any action shall be brought upon the official bond of the constable, judgment shall be recovered against him for his misconduct, &c.; but it does not provide for the demand upon him which, in Tracy v. Merrill, was held to be essential.
The Pub. Sts. c. 27, § 115, provide that any person injured by the breach of the condition of a constable’s bond “ may at his own expense institute a suit thereon in the name of the town, arid like proceedings shall be had as in a suit by a creditor on an administration bond.” The Pub. Sts. c. 143, § 10,
That such is their meaning is strongly fortified by the analogy which suits on the official bonds of constables would then bear to those on the official bonds of sheriffs, which can ordinarily only be sued by those who have recovered judgment against the sheriff. Gen. Sts. e. 17, § 57. Pub. Sts. e. 25, § 9. The responsibilities of constables authorized to serve civil process are identical with those of sheriffs. To maintain this action, it was therefore necessary that the plaintiff should recover judgment against the principal, and should demand payment of the same, or show sufficient reason for his failure to do so.
The plaintiff did recover judgment against the principal Riley; he did not make demand upon him; and the question remains whether he has offered evidence of facts and circumstances which would or might properly be held by the jury to excuse him. The execution was placed in the hands of one Graves, but the return made by him does not show that he was an officer qualified to serve civil process. The facts stated in the so-called return were, with some others, testified to by Graves as a witness ; and they tended to show that Riley had left the State, and that it was impossible to demand payment of Riley personally. It is not necessary that any demand shall be made by an officer, or that the execution shall be placed in the hands of one for that purpose. Where judgment is recovered against an executor, and he waives any demand upon him, it need not formally be made in order to lay the foundation of 'air action upon his bond, and thus to charge his sureties. Miles v. Boyden, 3 Pick. 213. Heard v. Lodge, 20 Pick. 53. Where a state of things is proved to exist that shows a demand to be useless and unavailing, as where a party has disabled himself from complying with it, it ordinarily need not be made, as the law does not compel
The case should, therefore, have been submitted to the jury upon the inquiry whether the defendant Riley had rendered a demand upon himself impossible by his withdrawal from the State. Exceptions sustained.