The bond upon which the action is brought was given by the defendant Lucas upon his appointment as constable of the town of Oyster Bay, and was executed by him and his co-defendants as his sureties, whereby they jointly and severally undertake to "pay to each and every person who may be entitled thereto, all such sums of money as the said constable may become liable to pay on account of any execution which shall be delivered to him for collection." The bond is the form formerly required to be given by constables; first, by the Revised Laws (2 Rev. Laws, 126, § 1), and afterward by the Revised Statutes (1 Rev. Stat 346, § 21). The Revised Statutes were amended by chapter 788, of the Laws of 1872, but the bond in question does not contain the additional conditions required by that act, and that act is immaterial to the present inquiry. The case shows that Lucas, having in his hands for collection, executions against the property of A., seized and sold thereon the property of B., and this action is brought by B.'s assignee against the constable and his sureties, upon the theory that this wrongful act of Lucas was a breach of the condition of the bond. The general question is whether the wrongful seizure and sale by a constable of the property of one person, on an execution against another, constitutes a breach of his official bond conditioned to pay "all such sums of money as the constable may become liable to pay on account of any execution which shall be delivered to him for collection." It is to be observed that the bond has a specific and limited purpose. It does not cover the whole range of the constable's official duties, nor is it an indemnity against all his possible official delinquencies. There are many official duties which a *Page 588 constable may be called upon to discharge, affecting the rights of litigants, as for example, duties respecting the service of original process, or the execution of attachments, which by no possible construction can be covered by the condition of the bond. The law designates a constable as the official agent for the collection of executions issued out of justices' courts, and it at the same time gives to parties to the execution, who have been injured by his misfeasance or non-feasance in respect thereto, a recourse, by exacting a bond from the constable, with sureties, to which they may resort for indemnity.
The constable to whom an execution is issued may neglect to levy or return it, or having collected it, he may neglect to pay over the money collected thereon, or in other ways may violate the rights of the plaintiff or defendant in the process, and thereby subject himself to liability to the party aggrieved for damages. Such a liability is, within the fair meaning of the bond, a liability on account of the execution delivered to him for collection. (Sloan v. Case, 10 Wend. 371.) Where, however, the constable commits a bare trespass upon the property of a third person, not a party to the execution, although under color of the process, the liability he incurs to the person injured is in no just sense on account of the execution. The act done is neither commanded nor justified by the writ. The fact that the constable acted under color of process is wholly irrelevant to the question of his liability. True it may be that, if the execution had not been issued, the trespass might not have been committed, but the liability results from the trespass, and the right of the owner of the property converted to maintain an action, is wholly independent of the particular mode or occasion of the trespass. The owner's action is not through or on account of the execution. The execution is a mere circumstance attending the conversion. The liability of the constable is not founded upon the execution, but upon the trespass of which it was the occasion and incident. It is scarcely necessary to refer to the fact that two of the defendants are sureties, or to the rule that the liability of sureties is not to be extended beyond the fair and reasonable import of their obligation. To *Page 589 hold that the condition of the bond in this case embraces the transaction in question, would we think do violence to the fair meaning of language, and impose upon sureties a liability which they could not reasonably have contemplated.
We have not overlooked the case of People, ex rel. Kellogg, v. Schuyler (4 Comst. 173), but we think the present case is distinguishable by reason of the special and limited language and purpose of the bond in this case, which by natural construction confines the liability of the obligors to a cause of action against the constable, based upon the execution, and springing from some official act or default as the foundation of the claim against him.
These views lead to a reversal of the judgment.
All concur.
Judgment reversed.