Gerber v. Ackley
Wisconsin Supreme Court
APPEAL from tbe Circuit Court for Waulcesha County. After tbe decision of this case upon a former appeal (32 Wis., 233), tbe plaintiff amended his complaint, the substance of which is there given, so as to allege that said Ludington, in his official capacity as marshal, etc., claiming to have a writ of replevin duly issued by a justice of the peace of said county, seized and took the property, etc., as such marshal, claiming to act under and by virtue of such writ of…
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APPEAL from tbe Circuit Court for Waulcesha County. After tbe decision of this case upon a former appeal (32 Wis., 233), tbe plaintiff amended his complaint, the substance of which is there given, so as to allege that said Ludington, in his official capacity as marshal, etc., claiming to have a writ of replevin duly issued by a justice of the peace of said county, seized and took the property, etc., as such marshal, claiming to act under and by virtue of such writ of replevin. The defendant demurred to the amended complaint, as not stating a cause of action, and appealed from an order…
1Opinion of the CourtCole, J.
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…
2Cases cited5 opinions
- People Ex Rel. Kellogg v. SchuylerNew York Court of Appeals · 1850
- Morris v. Van VoastNew York Supreme Court · 1838
- Griffith v. SmithWisconsin Supreme Court · 1868
- Seeley v. BirdsallNew York Supreme Court · 1818
- State ex rel. Blinebury v. MannWisconsin Supreme Court · 1867
3Cited by25 opinions
- State v. McFetridgeWisconsin Supreme Court · 1893
- Renfroe v. ColquittSupreme Court of Georgia · 1885
- Lee v. CharmleyNorth Dakota Supreme Court · 1910
- Dysart v. LurtySupreme Court of Oklahoma · 1895
- Eubanks v. BrownWashington Supreme Court · 2014
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