THE UNITED STATES, TO USE OF TUCKER & SHERMAN, v. LEMON G. HINE

THE UNITED STATES, TO USE OF TUCKER & SHERMAN, v. LEMON G. HINE. At Law. — No. 15,975. I. A levy and seizure by a constable of the property of persons not defendants in the execution, is a breach of the condition of his official bond for which the sureties are liable. II. An unsatisfied judgment against the constable for the conversion of the property wrongfully seized by him, is no bar to an action on his bond against such sureties. STATEMENT OE THE CASE. This action was brought ou a constable’s bond executed by the defendant as surety, with Obadiah Kimmell and William H. Maaek, in the penal sum of $5,000. The bond was duly approved, and filed with the clerk of the court June 80,1871, as required by law. It was conditioned that Kimmell should “ well and faithfully perform the duties of his office as constable for the county of Washington, * * and faithfully pay over all moneys coming into his hands ,to the persons entitled to receive the same,” &c. The substance of the second count is, that Tucker & Sherman, in cause No. 10,973, at law, in this court, January 14, 1874, recovered judgment against said Kimmell and one Charles A. Ejirnmell, for the property and for damages and costs, in an action of replevin, for the wrongful seizure by them, as constables for the county of Washington, of the goods and chattels of said Tucker & Sherman; and the amount of damages and costs is $127.27. A writ of fieri facias was issued and returned nulla bona, January 21, 1874, and said judgment is still in force and entirely unsatisfied, by reason of which wrongful acts and neglect the condition of the bond was broken and action accrued unto plaintiff. To this defendant demurred, and the plaintiff filed a joinder in demurrer^ The demurrer was certified to the general term to be heard in the first instance. The question presented by this record is whether a levy by a constable of an execution upon the property of persons not defendants is a breach of the condition of his official bond for which the sureties are liable; also whether an unsatisfied judgment against the constable for the conversion of the property "wrongfully seized by him is a bar to an action on his bond. A. C. Bradley, for plaintiff. A wrongful seizure by a constable colore officii is a breach of the condition of his bond to “ well and faithfully perform the duties of his office.” (City of Lowell v. Parker, 10 Met., 309; Greenfield v. Wilson, 13 Gray, 884; People v. Schuyler, 4 Comstock, 173; Ohio v. Jennings, 4 Ohio State, 418 ; Carmack v. Commonwealth, 5 Binney, 184; State v. Shaklett, 37 Mo., 280; Commonwealth v. Stockton et al., 5 Monroe, 192.) N. U. Miller, for defendant Hine. “ The statute is to be strictly construed in favor of the sureties, who are not to be held responsible beyond the very terms and scope of their undertaking.” (The People v. Straker et al., 8 John., 890.) A surety is not answerable beyond the scope of his engagement. (Walsh and Beekman v. Bailie, 10 Johnson, 180.) Distinction between acts done colore officii and virtute officii; the act being of such a nature that his office gives him no authority to do it; the sheriff is not protected by the statutes, (Seeley v. Birdsall, 15 John., 268; Alcock v. Andrews, Esp. R., p. 542.) The condition of a sheriff’s bond does not extend beyond non-feasance or misfeasance in respect to acts which he is required to perform officially. (Ex-parte Reed, 4 Hill, pp. 572-574.) Where a sheriff, having an execution against the goods and chattels of one person, levies upon and sells the goods of another, it is not a breach of the condition of his official bond, and does not make his sureties liable to the party whose property is taken. If an officer seize the property of a person not named in the writ, it is not an official act done by virtue of his office, but unofficial and done by color of the office. In such case the officer is guilty of a tort for which he is liable as an individual to the party injured, but it does not entitle the party to prosecute the officer upon his official bond. (State v. Conover, 4 Hutch., 224, 233.) [MAJORITY — Cartter, Ch. J.,] Cartter, Ch. J., delivered the opinion of the court, to the following effect: This case presents the question whether the surety on a constable’s bond is liable where the constable seizes the property of a third person who is a stranger to the execution. All the authorities cited in the brief of plaintiff’s counsel unite in deciding that he is liable. This principle is sustained by' the Com’t of Appeals in New York, in 4 Comstock, 173, overruling a former decision the other way in 4 Hill, 572. The Supreme Courts of Pennsylvania, Ohio, and Massachusetts have held the same way. It appears from the citations that New Jersey stands alone in holding that the sureties are not liable for the act of the officer in such a case. We are disposed to adopt a doctrine that is sustained by such weight of authority. This will not necessarily impose a hardship upon the constable, for he can require indemnity for his protection and for that of his surety in all eases where he desires to act in good faith and proper care under suspicious circumstances. The principle will probably have a salutary influence on the conduct of these officers in preventing vexatious levies, and will cause them to enforce legal process without abusing or perverting its authority, now becoming a subject of almost daily complaint. The counsel for the defendant assumed that the recovery by the plaintiffs in the replevin suit presented a bar to this action. We think otherwise. That was an attempt to exhaust the remedy against the principal before calling upon the surety, but does not estop the plaintiff from resorting to his remedy against the latter when, as in this case, he has failed to obtain satisfaction from the former. The demurrer is overruled, with leave to plead over.