32 Cal. 585 | Cal. | 1867
It is alleged in the complaint that the plaintiff was the owner and in possession of certain personal property particularly described ; and that the defendant Bourland, “ still being Sheriff of said county, (Tuolumne,) by virtue of certain, alleged legal process, not against this plaintiff, forcibly, wrongfully, and against the will of the plaintiff, took and converted said property, to the damage of the plaintiff three thousand dollars.” It is further alleged that the other defendants, ten in number, on the 2d day of March, 1866, “became and ever since have been the securities on the official bond of the said defendant Bourland; that said bond was duly filed, executed and recorded in the manner prescribed by law; that by reason of the acts of said Bourland the terms and conditions of the said bond have become broken, and the said defendants, the securities as aforesaid, have become, jointly with the said Bourland, liable to pay to the plaintff the damages sustained by him as aforesaid, together with interest.”
The complaint was demurred to on the ground of uncertainty, misjoinder of causes and want of facts. The demurrer was overruled and the defendants answered. At the trial the plaintiff recovered a verdict, and judgment was duly entered thereon.
The complaint was defective on all the grounds named in the demurrer. The defendants, other than Bourland, were charged ex contractu as “ securities on Bourland’s official bond,” and not otherwise. As to Bourland, he was charged as a trespasser, and not otherwise. It is not alleged that he signed the bond, nor that the other defendants participated in the trespass. The averment that the bond was “ Bourland’s official bond,” and that the other defendants “ have become jointly liable with Bourland to pay the damages sustained by the plaintiff, as aforesaid,” does not bring Bourland into contract relations with the bond, nor the other defendants into relations with the trespass. The grounds of the “joint liability” alleged are not disclosed. The “joint liability” is
Again, though the trespass is well laid against Bourland, the contract liability counted on is not well laid against the other defendants. There is not a fact stated as a ground of the liability alleged. There is no allegation that the defendants signed the bond, nor that they executed it, nor that they made it. That they were “ securities ” on the bond is but a conclusion, and is not issuable. But further, what may be called the facts of the bond, that is, its provisions, are set out, neither in hcec verba nor in words assumed by the pleader to be of equivalent import. We are told merely that the bond was the “ official bond of Bourland,” and that “ its terms and conditions have been broken.”
Further still, it does not follow that the official bond referred to was a Sheriff’s bond; nor have Sheriffs’ bonds any fixed scope a priori. Non constat but Bourland may have held some other executive office than that of Sheriff, and have given an official bond for the performance of its duties. Or, if the bond named must be understood to be a Sheriff’s bond, then non constat that it bound those who signed it to indemnify parties injured by the Sheriff’s malfeasances.
There are other points of view from which the complaint may be criticised and which the counsel of the appellants have not failed to urge; but it is not necessary to remark upon them here, for the insufficiency of the complaint is made out to our conviction on the grounds already considered.
Judgment reversed and cause remanded, with leave to the plaintiff to amend his complaint.
Mr. Justice Rhodes did not express any opinion.
