Wheeler v. McDill
Wisconsin Supreme Court
APPEAL from the Circuit Court for Portage County. Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The action was upon a sheriff’s bond, and was brought against the sureties therein and the administratrix of the estate of the sheriff, who died after the alleged cause of action arose. The bond is set out in the complaint. The sureties are not named in the body of it.
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APPEAL from the Circuit Court for Portage County. Defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The action was upon a sheriff’s bond, and was brought against the sureties therein and the administratrix of the estate of the sheriff, who died after the alleged cause of action arose. The bond is set out in the complaint. The sureties are not named in the body of it. It contains substantially the statutory condition for the faithful performance of the duties of his office by the sheriff, but the remaining conditions…
1Opinion of the Court
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…
2Cited by1 opinion
- Charles Kohn & Co. v. HinshawOregon Supreme Court · 1889