
    Ohio, for the use of Story, v. Jennings et al.
    A seizure of the goods of A, under color of process against B, is official misconduct in the officer making the seizure; and is a breach of the condition-■ of his offioial bond, where that is, that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but it is perpetrated colore officii.
    
    For such breach, an action on the bond lies against the officer and his sureties.
    Error to the district court of Erie county.
    The original action was debt,-upon a constable’s bond, against the - obligors, to wit, the constable and his sureties. The declaration was as follows:
    
      Court of Common Pleas of Erie County, of the Termof May, A. D. 1849.
    “ The State of Ohio, Erie County, ss:
    
    “ The State of Ohio, who prosecutes this action for the use of John Story, complains of Roswell J. Jennings, Alexander H. Barber, and Robert Cassidy, in a plea of debt. Eor that whereas the said Roswell J. Jennings was, to wit, on the 12th day of January, A. n. 1849, legally appointed by the trustees of Portland township, as a constable in and for said township, to fill the vacancy occasioned by the resignation of T. C. Barker, as by the statute in such case is made and provided; and said Jennings, so being appointed as aforesaid, his said office of constable would not expire until the 2d.day of April, a. d. 1849. And afterward, to wit, on the 12th day of January, a. d. 1849, at said Erie county, the defendants, by their-certain writing obligatory, sealed by their seals, and now to the court here shown, acknowledged themselves to be held and firmly bound unto the said State of Ohio in the sum of one thousand dollars, to the payment of which, to the plaintiff, they then and there bound themselves; which said wilting obligatory was, and is, subject to a certain condition thereunder written, whereby, after reciting to the effect following, that whereas the said R. J. Jennings had been duly appointed constable, in and for the township of Portland, in the county of Erie, and State of Ohio, by the trustees of said township of Portland, to fill the vacancy occasioned by the resignation of T. C. Barker, late constable : Now, therefore, if the said should over all that might come into his bands by virtue of his said office, and should diligently and faithfully perform all the duties of said office of constable, then said ob-. ligation was to be void, otherwise to be and remain in full force. And the said state further avers, that John W. Beatty and Philander Gregg (Eollin Hubbard, who was also a trustee, being absent from town), being then and there trustees of the said township of Portland, did then and there approve of the said Alexander H. Bar-her and Eobert Cassidy, as sureties of the said *Eoswell J. Jennings, in the premises, and of the amount of said writing obligatory ; and thereupon the said writing obligatory, with the condition aforesaid thereunder writtten, was' delivered by the defendants to, and received by the State of Ohio, as the official bond of ■the said Eoswell J. Jennings, with the said Alexander H. Barber and Eobert Cassidy, his sureties in the premises, and then and there lodged with the clerk of said Portland township. And the said ■State of Ohio further avers, that afterward, to wit, on the 31st day of January, a. d. 1849 (and before the commencement of the suit hereinafter mentioned), at the said county of Erie, one Gershom •Clark caused to be issued from the office of one Z. W. Barker, then ■and there a justice of the peace within and for the said township of Portland, and county of Erie, a certain writ of replevin, directed to the constable of Portland township, sealed with the seal'of said justice of the peace, by which said writ the State of Ohio commanded said constable that, without delay, he cause to be replevied unto said Gershom Clark certain goods and chattels, which one ■Charles Jefferson wrongfully detained, as was said, and also summon the said Charles Jefferson to be and appear before said justice, at his office in said county of Erie, on the 3d day of February, a. d. 1849, at one o’clock, p. m., to answer to the said Gershom Clark, for the wrongful detention of said goods and chattels — damages $25 — and to have then and there the said writ; and which said writ was delivered to the said Eoswell J. Jennings, the constable as aforesaid of said township, to wit, on the 31st day of January, A. d. 1849, at said Erie county, to be executed according to law. And the said state further saith that the said Jennings, so being constable as aforesaid, and having then and there said writ as aforesaid, and to be executed as aforesaid, did not, nor would execute said writ, according to law, or replevy the said goods and chattels, so detained by the said Charles Jefferson as aforesaid, but on the contrary thereof, to wit, on the 31st day of January. A. d. 1849, at said county of Erie, the said Jennings then and *there being constable as aforesaid, carelessly, unfaithfully, ■wrongfully, and unlawfully took from the said John Story certain goods and chattels, to wit, one two-horse wagon, two harnesses, and two horses, which were then and there the property of the said John Story, and of great value, to wit, of the value of two hundred dollars, said Jennings then and there being constable as aforesaid, and acting, as he claimed, by virtue of the said writ of replevin; and the said John Story having then and there, by reason of the misconduct of the said Jennings, constable as aforesaid, sustained great damage, to wit, the damage of two hundred dollars, did afterward, to wit, on the 9th day of February, a. d. 1849, at said Erie county, commence and prosecute an action of trespass against the said Eoswell J. Jennings, before one John M: Brown, a justice of the peace within and for the said township of Portland, to recover his reasonable damages, sustained.by him by reason of the said Eoswell J. .Jennings’ misconduct, in his said office of constable, in taking from him, wrongfully and unlawfully, his property as aforesaid; and such proceedings were had in said action that the said John Story afterward, to wit, on the 17th day of February, A. d. 1849, by the ■consideration and judgment of the said justice, recovered of the said Eoswell J. Jennings the sum of seventy-five dollars, which was adjudged to the said John Story by the said justice’s court, for his ■damages by him sustained, for the misconduct of the said Boswell J. Jennings as constable, as aforesaid, in taking from him his property as aforesaid, and also f>5.88¿, his costs, etc., as by the record and proceedings of said court, duly authenticated, and now to the ■court here shown, will more fully appear; upon which said last-mentioned judgment an execution has been issued and returned, March 1,1849, no goods and chattels found whereon to levy; and which said judgment also remains wholly unpaid and unsatisfied to the said John Story, to wit, on, etc., at etc.; all of which said premises the said Alexander H. Barber and Eobert Cassidy afterward, and before the commencement of *this suit, had notice, to wit, on the 21st day of May, a. d, 1849, at said Erie county, and were then and there requested by the said John Story to pay the said damages last mentioned, etc., so recovered by the plaintiff, which they, and each of them, refused to do. And so the State of Ohio in fact says, that the said Eoswell J. Jennings did not diligently and faithfully discharge the duties of his said office of constable, during his term of office afoi’esaid, and the said John Story, for whose use this suit is brought, hath been injured, as aforesaid, by the misconduct in office of the said Roswell J. Jennings, whereby an action hath accrued to the State of Ohio, to demand and have of and from the defendants in this suit the said sum of one thousand dollars. Yet the defendants have not, nor hath either of them, paid the same, or any part thereof, to the damage of the said State of Ohio of one hundred dollars; and thereupon the state sues, etc. And the- said State of Ohio, who sues as aforesaid, brings into court here a copy of the said writing obligatory, with a copy of the aforesaid condition thereof thereunder written, which are duly certified by Jacob' Hoornbeck, the clerk of the said township of Portland, to be true copies of the said writing obligatory and condition, lodged with and held by him.”
    To this declaration the defendants demurred generally. The common pleas sustained the demurrer, and gave judgment for the defendants, which, upon error, was affirmed by the district court. To reverse these judgments this writ was prosecuted.
    
      JEL. Goodwin, for plaintiff in error, cited:
    6 Wend. 454; 5 Johns. 173; 6 Ohio, 150; Swan’s Stat. 162, sec. 4; People v. Schuyler, 4 Comst. 173; 4 Mass. 68; 11 Maine, 241; 5 Binney, 184; 4 J. J. Marsh. 299; 5 Monroe, 192; 15 Wend. 623; 8 Cow. 65 ; 14 Ohio, 539; 20 Ohio, 273; 10 Met. 313; 8 Johns. 185. He also cited and commented on Carpenter v. Sloan, 20 Ohio, 330.
    *Lane, Stone & Lane, for defendant in error,
    submitted an argument reviewing the authorities, but making no new citations.
   Thurman, C. J.

The authorities seem to us quite conclusive, that a seizure of the goods of A, under color of pjrocess against B, is official misconduct in the officer making the seizure; and is a breach of the condition of his official bond, where that is that he will faithfully perform the duties of his office. The reason for this is, that the trespass is not the act of a mere individual, but is perpetrated colore officii. If an officer, under color of a fi. fa., seize property of the debtor that is exempt from execution, no one, I imagine, would deny that he had thereby broken the condition of his bond. Why should the law be different if, under color of the same process, he take the goods of a third person ? If the exemption of the goods from the execution in the one case, makes their-seizure official misconduct, why should it not have the like effect, in the other ? True, it may sometimes be more difficult to ascertain the ownership of goods, than to know whether a particular piece of property is exempt from execution; but this ■ is not always the case, and if it were, it would not justify us in restricting to litigants, the indemnity afforded by the official bond, thus leaving the rest, of the community with no other indemnity against official misconduct than the responsibility of the officer might furnish.

This question was vefy fully discussed and considered, in a late-case in the court of appeals of New York — The People v. Schuyler, 4 Comstock, 173; and the authorities reviewed. It was an action of debt, against a sheriff and his sureties, upon his official bond,, conditioned that he would “well and faithfully in all things perform and execute the office of sheriff of said county of Renssalaer,. during his continuance in said office by virtue of his election thereto, without fraud, deceit, or oppression.” The alleged breach was, that under color of a writ of attachment against one Fay, he had seized the goods of one Batehellor, for *whose use the suit was brought. The court held, that the action was maintainable, and sustained their opinion by a citation of numerous authorities, Enlish and American, which it 'is unnecessary to repeat.

I may add, however, that the same doctrine seems to prevail-generally. See Archer v. Noble et al., 3 Greenleaf, 418; Harris v. Hanson, 11 Maine, 241; Skinner v. Phillips, 4 Mass. 75; Lowell v. Parker, 10 Met. 309; Cormack v. The Commonwealth, 5 Binney, 184; Forsythe v. Ellis, 4 J. J. Marshall, 298; Commonwealth v. Stockton et al., 5 Monroe, 129, Derby’s ed. 193.

The judgment of the district court and court of common pleas-must be reversed, and a writ of procedendo awarded.  