217 Mass. 71 | Mass. | 1914
The plaintiff, having recovered judgment against the defendant Schapero for the conversion of certain personal property wrongfully attached by him as a constable in the service of civil process, brings this action under the provision of the R. L. c. 25, § 90, and c. 26, § 14, for breach of his official bond. Crocker v. Buttrick, 187 Mass. 461. It is admitted, that the judgment remains wholly unsatisfied. But as execution issued and the plaintiff has sued before the time for its return expired, the defendants, relying on Adams v. Cummiskey, 4 Cush. 420, contend that the action has been prematurely brought.
It was said in Dailey v. Coleman, 122 Mass. 64, “The only conclusion that can be said to have been established by that decision is that an unseasonable and insufficient return will not justify the issue of .a scire facias while the execution is in force and not yet returnable.” The creditor might find property of the principal debtor sufficient to satisfy the execution, and in that event the trustee would not be liable in scire facias, which is merely a continuation of the proceedings by trustee process in the court where they originated. Fay v. Sears, 111 Mass. 154,155. But as against
But, if this defense fails, it is further urged by the defendant surety company, that it is not concluded by the judgment against the principal, and should be permitted to show that the attachment was justifiable, because the mortgage to the plaintiff was fraudulent and void as to creditors of the mortgagor. The bond, however, is joint as well as several, and, whatever conflict there may be in other jurisdictions as to whether the judgment recovered against the principal is conclusive upon the sureties, it is settled by our decisions that they are bound by the adjudication in an action upon his official bond. Tracy v. Goodwin, 5 Allen, 409. Dennie v. Smith, 129 Mass. 143. Fall River v. Riley, 138 Mass. 336. See 35 Cyc. 1944, 1945, and notes for a collection of cases. The same rule has been adopted and followed as to sureties on bonds given to dissolve an attachment, or a mechanic’s lien,
The plea in abatement and demurrer are overruled, and by the terms of the report the plaintiff is to have judgment for the penal sum of the bond, and execution is to issue for the amount stated. R. L. c. 177, §§ 9, 10.
So ordered.