Tracy v. Preble

• Decision Date: 11 January 1875
• Citation: 117 Mass. 4
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Frederick U. Tracy v. Nathaniel C. A. Preble & others

117 Mass. 4

Frederick U. Tracy v. Nathaniel C. A. Preble & others

Supreme Court of Massachusetts

January 11, 1875

Argued November 12, 1874

Suffolk. Contract in the name of the city treasurer, for the benefit of Francis W. Mitchell, against the principal and sureties on the official bond of Benjamin F. Roberts, a constable of the city of Boston.

Trial in the Superior Court, before Putnam, J., who reported the case to this court, in substance as follows:

It was admitted that the defendant Roberts was a constable of the city of Boston, and that he gave the bond in question, with the defendants Preble and Going as his sureties. It appeared in evidence, uncontradicted, that P. L. Riggs and John S Eldridge brought separate actions against one W. H. Hawley in the Municipal Court for the city of Boston, commanding the officer to attach the property of Hawley; that the writs in these actions were put into the hands of Roberts for service that Roberts, in the service of the same, attached the property of Mitchell as the property of Hawley, and held the same under his attachment for some time, until it was finally released by him; that Mitchell thereupon brought an action against Roberts for the conversion of the property so attached, and recovered judgment against Roberts for the sum of $ 100 damages, and $ 34.07 costs of suit. Execution was duly issued on this judgment, and not having been paid on demand, Roberts was arrested upon that execution, and gave a recognizance in due form under the poor debtor's act, to appear before the magistrate; and having appeared and entered upon his examination, he made default before the examination was concluded. Mitchell thereafter commenced suit upon the recognizance against the surety, which suit is now pending in the Superior Court. The suit at bar was brought after the return of the execution against Roberts, in no part satisfied. There was no other evidence of any demand made upon Roberts to pay the judgment recovered against him in the action of Mitchell v. Roberts, before bringing this suit except so far as appears from the fact that the execution was served upon him, and the proceedings had, before recited, under the poor debtor's act.

The defendants contended that the aforesaid proceedings by Mitchell were a bar to his recovery in the present action but the judge ruled that the plaintiff might recover, ordered a verdict for the plaintiff, and reported the...