187 Mass. 461 | Mass. | 1905
This is an action brought by one Hyams in the name of the treasurer of the city of Boston, upon a constable’s official bond given under the provisions of the R. L. c. 25, § 90, and c. 26, § 14. A copy of the bond is made a part of the bill of exceptions, and it is stated that the giving, approval and filing of the bond appeared in evidence. It was admitted that a judgment was obtained by Hyams against the defendant Buttrick, for acts done by him as constable, and that the judgment was not satisfied after a demand was made upon him, but remained unsatisfied at the time of bringing this action.
The action was brought under the St. 1814, c. 165, and the acts in addition or amendment thereto, and the principal contention of the defendants is that an action could not be brought upon the bond without authority obtained from a public officer. The R. L. c. 25, § 90, provides, in regard to bonds given by constables of towns, that “ any person injured by a breach of the conditions thereof may, at his own expense, sue thereon in the name of the town, and the proceedings shall be the same as in an action by a creditor on an administration bond.” Under the R. L. c. 149, § 20, a creditor may sue for his own benefit on the bond of an administrator, if he has recovered judgment for his debt against the administrator, and the administrator, after a demand, has neglected to pay it, or to show sufficient goods or estate of the deceased to be taken on execution for the satisfaction of it. An action of this kind may be brought without obtaining leave from the Probate Court. McKim v. Roosa, 183 Mass. 510. Under the R. L. c. 26, § 14, bonds of constables in the city of Boston are given to the treasurer of the city, and by § 2 of this chapter it is provided that “ Chapter twenty-five and all other laws relative to towns shall apply to cities so far as consistent with the general or special laws relative thereto.” There is much ground for an argument that these general laws may be applied to the present case, as they seem to have been applied in a similar case brought tfpon a constable’s bond by the treasurer of Boston. See Tracy v. Merrill, 103 Mass. 280.
It has been stated, however, in several cases within the last forty years, that the St. 1814, c. 165, is unrepealed and still in force. Calder v. Haynes, 7 Allen, 387. Tracy v. Warren, 104 Mass. 376. Hayes v. Nash, 129 Mass. 62. In this view of the
There is no foundation for the contention that the judge could not order a verdict for the plaintiff, but should have submitted the facts and evidence to the jury. The bill of exceptions shows that every material fact appeared or was admitted.
Exceptions overruled.