Dennis v. Smith

129 Mass. 143

Opinion

Ames, J.

We find no error in the rulings of the presiding judge. Upon making the attachment, it was the official duty of the constable to retain possession of the property, to await the result of the suit, and, upon the termination of the suit in favor of the original defendant, to return it to him. His failure to do so was a breach of his official duty. It was therefore a violation of the condition of his bond. It is immaterial that, in the suit against the constable, the declaration does not in terms describe him as holding that office.

The conclusiveness of the former judgment, both as to principal and sureties, in a suit against them upon their joint bond, is distinctly settled in Tracy v. Goodwin, 5 Allen, 409. In Boston v. Moore, 3 Allen, 126, cited by the defendants, the alleged misconduct of the officer consisted in not accounting for money paid to him by the debtor in settlement of the claim sued; a neglect which the court held not to be a violation of official duty.

Exceptions overruled.