Gerber v. Ackley

Cole, J. We have no doubt that the bond executed by the marshal under the provisions of the charter of the village of Oconomowoc (eh. 327, P. & L. Laws of 1869), is a legal instrument, and was intended to secure the public against loss or damage arising from the official acts of the marshal. The charter requires the marshal to execute a bond conditioned for 236 tbe faithful, discharge of bis duties (sec. 7), and likewise enacts that be “ shall possess such powers, and be subject to such liabilities and duties, as the constables of the several towns in this state ” (sec. 16). This undoubtedly imposes upon him the duties and subjects him to the same measure of liability as a constable ; and the sureties on his official bond are liable for his acts performed in his official character. But such sureties only undertake to indemnify the public against the official acts of the marshal, and not for mere naked trespasses which he may commit while acting without legal process. State v. Mann, 21 Wis., 684. The principal difficulty with the complaint before us is, that it fails to show that Ludington took the property of the plaintiff therein mentioned, officially, as marshal, so as to show a breach of the condition of his official bond. It is alleged that in the action brought against Ludington by the plaintiff for damages for the taking of the property, “ the said Ludington justified the taking of the same property as such marshal of said village under and by virtue of an alleged writ of replevin issued by a justice of the peace of said county, and to said Ludington delivered for execution.” It is further alleged that upon the trial of the action in the circuit court, the court “ did duly determine and adjudge that said Ludington had wrongfully taken the same personal property from the plaintiff,” and gave judgment against him for the amount of damages specified. These allegations do not show, and are not equivalent to an averment stating, that Ludington took the plaintiff’s property while acting officially as marshal, and by virtue of a legal writ of replevin issued by a justice of the peace. And, in order to show a breach of the official bond, these facts should appear- and be clearly stated in the complaint. The judgment against Ludington in the circuit court may have been reversed on the ground that he was not acting in an official capacity when he took the plaintiff’s property, but was a wrongdoer. If the recovery was upon that ground, then clearly the surety on his 237 official bond would not be liable, and this averment does not aid tbe complaint. It may be a question whether in any event the recovery oí a judgment against the marshal would be prima facie evidence of a breach of the bond as against the surety, and whether good pleading does not require that all the facts in regard to the taking should be stated in order to show that the marshal took the property by legal process and by official authority. But, as this question is not before us on this demurrer, we decline to express any opinion upon it. As the case now stands, the complaint does not show a breach of the condition of the bond for which the surety is liable, because it omits to state that Ludington took the plaintiff's property while acting as marshal under and by virtue of legal process. It follows from these views that the circuit court erred in overruling the demurrer to the complaint. By the Court. — The order of the court below is reversed, and the cause remanded for further proceedings.