Mulholland v. Estate of Gerry

51 N.W. 960, 81 Wis. 647, 1892 Wisc. LEXIS 80

Opinion

"WiNsnow, J.

It was the duty of Friedrichs to pay over to his successor in office the moneys which the complaint shows he received. Failure to do so was a breach of his official bond. Schnur v. Hickcox, 45 Wis. 200. If it was' the duty of Friedrichs to pay the moneys to the plaintiff, it was because plaintiff bad a right to demand and receive the same. If plaintiff bad a right to demand and receive them, it was because he had a paramount possessory right in them; not an absolute beneficial title, but a title in trust to keep them until their disposition was otherwise legally provided for. He is really the trustee of an express trust. Such being the case, it is plain that in his trust capacity he has been injured by the neglect of Friedrichs to pay over the trust moneys held by him ' as clerk, and is authorized by sec. 985, R. S., ¹ to maintain an action upon the bond in suit. When a person is deprived of a legal right he is necessarily injured. The order overruling the demurrer was right.

By the Court.— Order affirmed.

1 Sec. 985, R. S., provides that “ any person injured by the act, neglect, or default of any officer, except the state officers, his deputies or other persons, which constitutes a breach of the condition of the official bond of such officer1, may maintain an action in.his own name against such officer and his sureties upon such bond,” etc.— Rep. 1 :