Wheeler v. McDill

Lyon, J". The only breach of the bond in suit assigned in the complaint is, that the sheriff wrongfully and unlawfully released his levy upon the logs, by means whereof the plaintiff lost his debt. If the sheriff released the levy unlawfully, he must have done so by some act, or some omission of duty, susceptible of averment and proof; as if, for example,, he failed to make return to the writ that he had seized the logs, or unlawfully surrendered possession of them to another. The only facts stated in support of the allegation of the breach assigned is, the surrender of the possession of the logs to Hall and Clifford on receiving their instrument or obligation in' double the amount of the plaintiff’s interest in the logs, “ conditioned in substance to deliver said property to said sheriff upon the order of the justice of the peace therefor.” It is a fair and reasonable construction of the complaint (the construction evidently intended by the pleader), that such surrender of the logs to Hall and Clifford is the only fact upon which the charge of an unlawful release of the levy is predicated. The question is, therefore, Was such surrender, under the circumstances stated in the complaint, a breach of official duty by the sheriff % The lien suit was instituted under chapter 354, Laws of 1862, extended, by chapter 66, Laws of 1866, to Portage county. Section 8 of the act of 1862 gave justices of the peace jurisdiction of such actions to a certain amount, and [359] provided that the procedure in such actions should be as prescribed in that portion of chapter 120, R. S. 1858, entitled “ Of proceedings by attachment and against garnishees,” so far as applicable, unless otherwise provided. This provision undoubtedly incorporated section 103 of ch. 120 as part of the act of 1862. That section reads as follows: “When property of the defendant shall be actually seized on attachment, the defendant, or any other person for him, may obtain possession thereof by giving bond and security, to the satisfaction of the officer executing the warrant, in double the value of the property so attached, conditioned that the same shall be forthcoming when and where the justice shall direct, and shall abide the judgment of the justice.” On compliance with the statute, the defendant in the attachment was entitled to the possession of the property attached. If proper security was tendered, the officer had no discretion in the matter. Tie was bound to accept the security and surrender the property. Such being his imperative duty, it seems scarcely necessary to say that the performance of it cannot be a breach of his official bond, if he performs it honestly and with due diligence to protect the rights of the plaintiff. As a matter of course, if he knowingly or negligently accepts insufficient security, that is a violation of' duty, and a breach of the conditions of his official bond. In the present case the security accepted by the sheriff was substantially that prescribed by the statute. There is no charge or suggestion in the complaint that Clifford (the surety) was not abundantly responsible, pecuniarily, when the sheriff accepted the security, or that the plaintiff failed in any respect in his duty in that behalf. The statement of Clifford’s insolvency is in the present tense, and relates only to the time when the complaint was prepared, which was several years after the sheriff accepted him as a surety. Our conclusion is, that the complaint fails to show any breach of official duty by the [360] sheriff, and hence that it fails to show a cause of action, upon his official bond. In the view we have taken of the case, it is unnecessary to determine the effect of the failure to insert in the bond all of the statutory conditions. It may not be improper to say, however, that, as at present advised, we perceive no good reason why the bond is not a valid security, or why a person aggrieved by a breach of its conditions may not maintain an action upon it in his own name. By the Court.— Order affirmed. Orton, J., dissents.