10 D.C. 27 (D.C.D.C. 1879), 15,975, United States v. Hine

Docket NºAT LAW.— 15,975.
Citation10 D.C. 27
Opinion JudgeCARTTER, Ch. J.
Party NameTHE UNITED STATES, TO USE OF TUCKER & SHERMAN, v. LEMON G. HINE.
AttorneyA. C. Bradley , for plaintiff. N. H. Miller , for defendant Hine.
CourtSupreme Court of District of Columbia

Page 27

10 D.C. 27 (D.C.D.C. 1879)

THE UNITED STATES, TO USE OF TUCKER & SHERMAN,

v.

LEMON G. HINE.

AT LAW.— No. 15,975.

Supreme Court, District of Columbia.

September Term, 1879

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 OF THE CASE.

This action was brought on a constable's bond executed by the defendant as surety, with Obadiah Kimmell and William H. Maack, in the penal sum of $5,000. The bond was duly approved, and filed with the clerk of the court June 30, 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. Kimmell, 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...

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