SHOMO v. BURGESS

Thomas M. Hyde and C.A. Zaring, both of Basin, for plaintiff in error. This action is similar to the case of Lynch v. Burgess No. 1527. It was brought for damages against the sheriff and his surety for an illegal search made of the premises and upon affidavits of the plaintiff. The search warrant was involved because issued upon an illegal affidavit; the search was very unreasonable. United States v. Batun, 292 Fed. 497; United States v. Bateman, 278 Fed. 231. Any search made under a pretended warrant, not in conformity with the constitution is unreasonable. State v. George, 231 P. 683. State v. Court, 225 P. 1000. The constitutional provision extends to the person, his baggage and personal belongings. State v. Court, 225 P. 1000-1002; State v. Court, (Mont.) 225 P. 862. This case is almost identical upon the facts with that of Buckley v. Beaulieu, 104 Me. 56, 22 L.R.A. (N.S.) 819. In the case last cited, the search was made in a disorderly manner. Jackson v. Harries, (Utah) 236 P. 234. A surety on a sheriff's bond is liable for a wrongful act of the sheriff done under color of his office. Campbell v. People, 154 Ill. page 601, 39 N.E. 579. Thos. McKinney, Ray E. Lee, and Samuel M. Lee, for defendants in error. Counsel for defendants in error submitted this case upon the same points and authorities as were presented in the case of Lynch v. Burgess, sheriff, No. 1527.