City of Lowell v. Parker

51 Mass. 309 | Mass. | 1845

Shaw, C. J.

The present action is brought in the name of the city of Lowell, on a bond given by Parker, on his appointment as a constable, against him and his sureties, for the use and benefit of a person who alleges himself to be aggrieved by the misfeasance of the constable in his office. Such an action is authorized by St. 1838, c. 181, § 3, which enables the mayor and aldermen of the city of Lowell to require of its constables to give bonds to the city, and directs that the proceedings on the bonds shall conform to those directed to be had on sheriffs’ bonds, which are regulated by Rev. Sts. c. 14, ■§> 64; and this refers again to the provisions, in regard to suits on administration bonds, for the benefit of creditors and others, which are found in Rev. Sts. c. 70. It is objected in the present case, that the sureties are not liable, because the constable undertook to make an attachment on a writ, in which the ad damnum exceeded §70, and which, therefore, he had no authority to serve. But we think the objection cannot be sustained. He was an officer, had authority to attach goods on mesne process, on a suitable writ, professed to have such process, and thereupon took the plaintiff ’s goods; that is, the goods of Bean for whose use and benefit this action is brought, and who, therefore, may be called the plaintiff. He therefore took the goods colore officii, and though he had no sufficient warrant for taking them, yet he is responsible to third persons, because such taking •was a breach of his official duty. Grinnell v. Phillips, 1 Mass. 530. That the property sued for, except the forks, was taken colore offici-i, is manifest from the constable’s return on the writ, and also from a schedule certified by him in his official capacity, stating that he had attached the property on the process, at the suit of Saunders against Bean. Both of them purport to be official acts, done by Parker by color of his office, as constable, and this is sufficient to give a remedy to persons injured by his violation of official duty. The sureties, in this respect, stand to the constable nearly in the same relation in which a sheriff stands to his deputy, for whose conduct he is responsible.

.It was next contended by the defendants, on several grounds, that the judgment recovered by the plaintiff was not competent evidence in this suit.

1. It is objected that the suit was originally commenced against Parker, the officer, and Saunders, the plaintiff and attaching creditor in the original suit, jointly, and subsequently the plaintiff discontinued against Saunders, and took judgment against Parker alone, by default. We see not how this can affect the judgment. After the discontinuance against Saunders, the action stood on the same ground as if it had been commenced against him alone. But if it had been a judgment against Saunders and Parker both, we think it would have been admissible for the purpose for which it was offered. The object of the judgment was to show that Parker had taken the plaintiff’s goods wrongfully; and this is all which it shows. It does not show whether he took them by color of lawful process, or how otherwise. Now in tres pass all are principals, and all are liable severally as well as jointly. Suppose, therefore, it is shown that Parker took the plaintiff’s goods wrongfully; is it less a wrongful act on his part, or does it lessen the responsibility of those who are sureties for his lawful conduct, that he did the unlawful act at the instance of another person, who would also be a trespasser by the doing of the same act ? It would not be less a wrongful act and unlawful taking on the part of Parker; the fact it was offered to prove. On both grounds, therefore, we think it no objection to this judgment that it was in a suit commenced against Parker and Saunders jointly.

2. But it is objected that this judgment was not admissible, because the sureties were not notified, and therefore it was res inter alios. But we think this objection cannot be supported, under the circumstances of this case. When one is responsible, by force of law or by contract, for the faithful performance of the duty of another, a judgment against that other for a failure in the performance of such duty, if not collusive, is prima facie evidence, in a suit against the party so responsible for that other. If it can be made to appear that such judgment was obtained by fraud or collusion, it will be wholly set aside. But otherwise it is prima fade evidence, to stand until impeached or controlled, in whole or in part, by countervailing proofs. In a suit on an administrator’s bond, in the name of the judge of probate, a judgment in favor of a creditor, against the administrator, is competent, and in some cases it is necessary evidence. Heard v. Lodge, 20 Pick. 53. So, where one has become surety for the conduct of another. Train v. Gould, 5 Pick. 380. In the cases cited from Maine, the question was not whether the judgments against principals were competent, but whether they were conclusive. The decisions imply that they were competent. Foxcroft v. Nevens, 4 Greenl. 72. Hayes v. Seaver, 7 Greenl. 237. It is perhaps unnecessary, in the present case, to decide whether, to any extent or for any purpose, the judgment against Parker was conclusive upon the sureties. It purports to prove nothing more than that the defendant Parker unlawfully took certain goods of the plaintiff. Whether he was an officer, or whether he took them by color of office, it does not purport to decide. All that, therefore, is left to evidence aliunde. If it appears by such evidence that any of the property was taken by color of office, as it no doubt does upon the evidence reported, that shows an official misfeasance, which is a breach of the bond, and entitles the plaintiff to judgment as for such breach. But when it comes to the assessment of damages, and it is open to question, whether the trespass for which judgment was recovered in the action of trespass was done by color of office, it will no doubt be competent to the court or jury, who assess the damages, to ascertain what portion of the property was so taken ; for it is that part only which is in question in this suit. And if it turns out, as the evidence at present shows, that a part of the property for which the judgment was rendered was not taken by Parker by color of his office, and does not appear as such, either on his return or on the certified schedule given to the plaintiff, then, as the damages were entire, the question of damage must be opened anew.

In regard to the evidence offered by the defendants, to prove that the goods had been mortgaged by a previous owner, before they were attached, that such mortgage was outstanding and in force, that the mortgagee demanded them, that Parker delivered them, it was in effect to prove a paramount title in another, to which the defendant, on demand made, rightfully yielded. If this was offered as evidence to show a defence to the action, we think it was rightfully rejected. It did not tend to show that the defendant had not wrongfully taken the goods, and taken them by color of office ; and this disturbance of the possession of the plaintiff, without lawful authority, was an injury amounting to a breach of the bond.

But when the question of damages arises, upon a hearing in equity, we are inclined to the opinion that the evidence would be admissible in reduction of damages. Squire v. Hollenbeck, 9 Pick. 551. It would show that he whose goods were taken out of his possession had only a naked possession and right to redeem, an interest much less in amount than an unincumbered and absolute title, and therefore that he has lost less than if he had had such absolute title. Of course such paramount title must be clearly shown, and that Parker did right in submitting to it; and, for that purpose, it must appear that the mortgagee had a good title, and made a legal demand.

The court are of opinion that judgment must be entered for the plaintiffs for the penalty of the bond, and that the case stand for the assessment of damages, on a prayer to be heard in equity, to ascertain the sum, part of the penalty, for which execution shall be awarded in favor of the party for whose use the action is brought.