The Providence news. (Providence [R.I.]) 1891-1906, 1897-09-18
AMANDAMUS
LOthrOp & LivSey
Sought One.
Their Goods We're At
tached by a Constable.
Latter Would Not Accept the
Bond They Offered.
Constable Testified That No Surety
Had Signed Bond
-. Ca, yy,.g, A
Constable Testified That No Surety
Had Signed Bond
Court Refused 10 Grant Writ An List n
Ing 10 Arguments.

An interesting case was heard by Judge
Rogers in the Appellate Court today
The question in point was whether or
not a writ of mandamus would issue 20
constable TO accept bond TO release an
attachment But the decision was on an
Incidental point
I4othrop IL Livsey's establishment in
this city was attached and Keeper placed
in charge The memb bers Of the firm
claim they offered bond on the day al
ter the placing of the attachment and the
constable, whose name was Lawrence
Hays, refused 10 take IL unless all the
costs OF the attachment up TO che time OF
the taking Of the bond ana the releasing
of the attachment, were paid.
The party whose property was attached
through their attorneys, J. IL. Byrne and
Frank IL. Wilder, applied for writ OF
mandamus to compel Constable Hays 10
take the bond offered TO him. This bond,
it was represented. had been signed by
two mem Ders OF the firm and j. Frank
Sunderland.
Judge Rogers was, whom statement
of tho case was made by Mr.. Byrno, not
disposed To grant the writ. because he
thought the acceptance of surety was a
matter for the officer and that the court
could not take his place as 10 would Ger
tainly do If the matter of sufliciency Of
surety might be reviewed in every in
stance by the court in mandamus proceed
ings
his honor said that the duties Of con-
stables were defined by the statute aud
constables moreover had TO furnish
bonds for a proper performance OF their
duties and il they did wrong their bonds
men might be sued.
NO REMEDY PROVIDED
MIR. Byrne argued that the statute pro-
vided no remedy for his clients. There
was no way his clieuts, who were injured
by having their property taken, could get
relief except by mandamus Their
property was detained and the statutes
provided that the constable should take a
bond with sufficient sureties ana they
wished the constable 60 simply do his
duty.
Attorney Richard Martin, counsel for
Constable Hays opposed the granting OF
the writ and said that Lothrop * Livsey
had begun an action on the case against
Constable Hays Co recover $1,000, alleging
as the cause OF action that Hoys had re
fused To accept n proper bond.
Judge Rogers decided to hear the testi.
mony in the case
Mr.. Lothrop, member Of the firm
whose goods was attached, testified that
his property was attached on Aug. 10th
and that on Tuesday he had talk with
the constable about the accepting OF a
bond and rendered him one
On "Wednesday morning he, Lothrop,
again rendered the constable u bond but
the latter said he must 40 to Pawtucket
before deciding on taking it. When Hays
came back in the afternoon, according co
lIothrop he refused TO take any bond un-
less costs were paid and said no had
orders not 10 do otherwise.
Ar. Iiy5ey, a second member OF the firm
attached, said the bond was offered on
the 18th and declined unless all costs
were paid. On oross-examination Mr..
Livsey denied that Mr.. Sunderland's
name was absent from the bond wnen Il
was rendered the constable. .
AT this point Mr.. Byrnes suggested
shat Mr. Martin agree 20 the submitting
OF the point as 60 the issuing Of n manda.
mus on an agreed statement OF facts
MIR. Martin said he disputed every state
ment made about the case by the other
side.
Judge Rogers again called the attention
of counsel TO the feet that no had prev
iously stated that the issuing OF u man
damus would be for the court 90 take on
itself the decision of whether or not
surety was sufficient In any case. IL the
goods of tho petitioners were kept with
out process OF law there was certainly an
action to recover damages. Ihe officer
refusing 10 take bond did so at his
peril.
THE CONSTABLE'S SIDE.
The taking Of testimony was resumed
and Constable Hays took the witness
stand. He denied ever having refused 70
take bond and deliver up TOO goods at
taohed uni ,ss the costs were paid, and
said the only names on the bond when it
was rendered tn him were those OF the two
partners, Lothroo ~ Livssy, the name of
Sunderland being put on afterwnru.
Constable Hnys said he had good deal
of trouple with the mem bors OF the urin
IN assisting them in their efforts 10 get
bonds The bond that it L. claimed was
tendered she constable was drawn on
Aug. lS
The keeper that Constable Hays put in
the shop testified that only ths names of
the firm of Buthrop Il Livsey were on the
bond when 10 was rendered that Of sun.
derlaud as surety not being put on until
later.
Attorney Byrne briefly argued that his
clients could get their property in mo-
other way tran by the granting Of the
writ. Judge Rogers was OF different
opinion thinking that in an action for
the case tho parties might recover
damages for the detention Of their prop.
erty.
Mr.. Martin then argued Azainst tho
granting OF the writ but Judge Rogers
beforo Mr. Martin bad referred 10 many |
points iu his brief saia N was incumbent |
on the petitioners To show by nrcron
derance OF evidence that n proper bond |
had been rendered Constable Hays His |
honor hold that the preponderance of owl. |
deDce did not sustain the claim thGt n 1
suitable bond had TEN rendered hy the \
petitioners and that the writ must be 1
denied.
PARTITION OF AN ESTATE.
The case Of George TO liss ot a. ,s.