43 Wis. 78 | Wis. | 1877
The question arising on the demurrer is: Can the defendants Bates and Watson be held liable, on the facts stated in the complaint, for the trespass committed by their codefendant, Parker? The extent of their liability must of course depend upon the condition of the undertaking into which they have entered, and which is a literal compliance with the provisions of the charter in. regard to the bonds of constables of
It is a cardinal rule, too well settled to require the citation of authority in its support, that tbe liability of a surety cannot be extended by construction or doubtful implication. In view of this elementary principle, let us inquire what clause of tbe condition tbe constable violated, when be unlawfully seized the property of tbe plaintiff, under warrants of attachment issued against Porter. Was not that act a mere trespass, doubtless perpetrated colore officii, for which tbe constable alone was liable?
The sureties certainly did not undertake to indemnify and secure the public against such unlawful acts. If so, what words impose that responsibility? The sureties agreed to answer for the default of the constable in not paying over moneys which might come to his hands virtute offiicii; also for his neglect or failure to properly execute any summons or other process, by which a party to such process was injured or sustained a loss. It is true, the language of .the condition is not very aptly chosen to include a liability for omitting to serve a summons or other process, except afi-fa.j but probably it was intended to cover such a breach of duty on the part of the constable. But this is the extent of the obligation which the sureties have assumed, merely to become answerable for any neglect or failure'.of the constable to legally do some act, which the due execution of his office authorized and required him to perform. It is nonfeasance or misfeasance in respect to an official act, not malfeasance as respects a third party, that constitutes a breach of the condition. The bond is substantially the same as that required to be given by constables under the general statute (sec. 96, ch. 15, R. S.), and by constables in New York, when the cases of the People v. Holmes et al., 2 Wend., 281; Dutton v. Kelsey, id., 615; Fellows v. Gilman, 4 id., 414; People v. Holmes, 5 id., 192; Lawton v.
It is obvious, that the reasons of public policy relied upon by the learned counsel for the plaintiff, for holding the sureties liable, cannot affect our construction of the condition. By the words of the contract, the sureties are not responsible for the trespass committed by Parker.
It follows from these views, that the judgment of the circuit court must be reversed, and the cause remanded for further proceedings according to law.
By the Court. — It is so ordered.
