50 Colo. 273 | Colo. | 1911
delivered the opinion of the court:
This is an action for damages against the sureties on a constable’s bond for a breach of its condition that the constable “shall well and faithfully discharge the duties” of his office. There had been a previous judgment therefor by plaintiff against the constable. The court sustained a general demurrer to the complaint, and dismissed the action. A number of questions, some of substantive law,.
The bond is set out in haec verba in the complaint. No obligee is named therein. The general rule is, that a bond must contain at least two* parties —the obligor and the obligee' — and a bond which does not contain the name of ah obligee, is void. There are some decisions holding that, where a bond, with the name of the obligee left blank, is delivered by the obligor, with authority to the person to* whom it is delivered to insert the name of the obligee, it becomes a valid instrument when so perfected; but there are authorities to the contrary. That, however, is not this case. There appears to be no obligee at all, and no authority was given to any one to insert the name of an obligee. Neither is there any language in the bond by which the obligors promised to pay anything, or to do anything. Indeed, in the obligatory part of the instrument, they do not bind themselves at all, there being no language of a binding character present. If the bond has been correctly copied into the complaint, it would, under some authorities, be deemed void. — 5 Oye., pp*. 731-733; 4 Am. & Eng. Enc. of Law (2nd ed.), p*. 645.
Omitting formal parts, it alleges that the constable (naming him), “acting as constable aforesaid, in the line of his duty as such and under color and by virtue of his said official position, and without any warrant or process of any kind or character against Edward R. Purdy (the plaintiff), but claiming to have in his possession and to be acting as constable under and by virtue of a writ or process issued against one Margaret Purdy by a justice of the peace * * * he (the said constable) forcibly broke and entered the residence of plaintiff • * * * and, while still acting as constable and under the claim and pretense of executing the writ or process herein-before named, * * * assaulted, beat and bruised * * * plaintiff, * * * knocked him down, * * * wrongfully and maliciously arrested and placed him in prison- * * * and falsely detained him * * * for several hours * * * and as a part of the same transaction, willfully, maliciously and without any authority of law, seized his. furniture, * * * removed it from his residence, threw it in the street * * * , and destroyed a part of it; that all of the acts of the constable * * * were done while he was acting as constable in the line of his duty and under the claim of authority as aforesaid, and under
Some authorities make a distinction between acts of a public officer done by virtue of his office, and acts done under color of his office. Such a distinction- doubtless exists, but for our present purpose we predicate nothing upon it. That there is a very wide difference between wrongful acts of an officer done by virtue, or under color, of his office ■on the one hand, and his mere wrongful personal or private acts upon the other, is recognized by all authorities. For all these wrongful acts and conduct, the officer himself is liable. Sureties upon his official bond have been held liable for acts of the former character, but not for the personal or private wrongful acts of their principal. Bearing this in mind, let us analyze this complaint to see what acts of the officer ai’e complained of. True, the complaint states that the acts in question were committed by the constable while acting as such in the line of his duty and under color and by virtue of his office.. The allegation is immediately followed by the further statement that in beating, bruising and imprisoning the plaintiff, and in injuring’ his real and personal property, th,e officer was acting “without any warrant or process of any * * * character” against plaintiff. The extent to which the complaint goes with reference to any writ, is that the constable was claiming to have in his possession, and to be acting as constable by virtue of, some writ or process issued by a justice of the peace against some other person.
Briefly summarized, then, the complaint states a case where a constable, merely claiming to act' in his official capacity under a writ against one person, but without any process or authority of law whatever, proceeds to. maltreat and physically punish another person. It does not appear what relation, if any, the person injured sustains towards the one against whom the writ is supposed to have been issued, or that the acts committed by the officer upon the plaintiff were in connection with, or were done at the time and as a part of a supposed service of the writ. It is a case, therefore, where a plaintiff is injured by the private and personal acts of an officer, and not by acts which he has done either by virtue of his office or under color of his office.
The authorities are uniform that the sureties on an official bond are not liable for such acts of their principal. In Felonicher v. Stingley, 142 Cal. 630, 76 Pac. 504, a complaint in all substantial particulars the same as the one before us was held insufficient to sustain a judgment against the sureties on the official bond of the officer, because it did not state facts showing that he was acting by virtue of, or under color of, his office, but only in a personal or private capacity. In the opinion it is stated that the allegation of the .complaint that the officer was acting
In Jewell v. Mills, 66 Kentucky 62, it was said that the surety of a constable is not liable on his official bond for acts of violence of the constable which are his personal wrongs. People v. Wilmoth, 45 Ill. App. 73, is, in some respects., quite apposite in its facts to the case at bar, though it is a much stronger ease against the sureties than this. Among other things, it was held there that it was not enough to make a general charge in the pleading that the acts of the officer were done by color or by virtue of his office. Facts and circumstances must be stated to show that they were so done, and it was further held
The judgment of the district court, being in accordance with our views, is affirmed.
Affirmed.
Chiee Justice Steele and Mr. Justice Musser concur.