37 Wis. 43 | Wis. | 1875
The amendment made to the original complaint has not cured the defect pointed out on the former appeal. 82 Wis., 234. It was there stated that the complaint failed 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. The surety is only liable for official acts done or omitted by the marshal; in other words, for those acts done virtute officii. A distinction is taken by the authorities between an act done colore officii and one done vir-tute officii. See note to Coupey v. Henley, 2 Esp., 540; Seeley v. Birdsall, 15 Johns., 267; Morris v. Van Voast, 19 Wend., 283. “ Acts done virtute officii are where they are within the authority of the officer, but in doing them he exercises that authority improperly, or abuses the confidence which the law reposes in him; whilst acts done colore officii are where they are of such a nature that his office gives him no authority to do them.” Pratt, J., in The People v. Schuyler, 4 N. Y., 187. The surety in the case before us undertook that Ludington should “ well and faithfully discharge the duties of the office of marshal of said village according to law,” etc. It is an official act, a failure to perform an official duty, or performing it in an improper manner, which comes within the scope of the surety’s undertaking. The liability of the surety cannot be extended beyond the very terms of the condition of the bond. The act must be an official act. or some default or misconduct as marshal, for which the surety is responsible. State v. Mann, 21 Wis., 684. This was the view expressed on the former appeal, when considering the sufficiency of the complaint. Now what is the allegation in the amended complaint upon which the responsibility of the surety is founded ? It is in substance
Eor these reasons we thought before, as we think now, that the complaint fails to show a breach of the condition of Lud-ington’s official bond for which the surety is liable.
By the Court. — The order overruling the demurrer to the complaint is reversed, and the cause remanded for further proceedings according to law.