WILLIAMSON & McARTHUR vs. WOOLF et al.

WILLIAMSON & McARTHUR vs. WOOLF et al. [ACTION ON OFFICIAL BOND OF JUSTICE OF THE PEACE.] 1. Authority of intendani of Camden as¡justiee of the peace. — The 4th-'see-tion of the act “ to incorporate the town of Camden in Wilcox county,” (Session Acts, 1841, p. 54,) taken in connection with the act “ to incor-liorate the town of Eufcaw in Greene county,” to which it refers, although it may not make tlie intendant of tlie town, ex officio, a justice of tlie peace, constitutes at hast a valid foundation for a bonafia'e claim of office by liim; and. if he pi oceeds to perform tlie duties of a justice of the peace, on the faith of his election as intendant, ho is at least a justice do facto. 3., Estoppel by bond. — The sureties on a bond, which recites that the principal obligor “has been duly elected intendant of the town of C., and is thereby made ex ojfioio a justice-of the peace,” are estopped, when sued on the bond for the default of their principal, from alleging that he was not a justice of the peace; it appearing that he was at least a .¿.justice defacto, and received much business as a justice on the faith and credit of the bond. 3. Validity and consideration■of bond of-.officer defacto. — -A bond, executed by tlie intendant of an incorporated town, with others as his sureties, which recites that, hy virtue of his election as intendant, lie'“is thereby made ex ojfioio a justice of the peace,” and is conditioned for the faith-v fid discharge of his duties as such justice, will he upheld as a common-law obligation, (although thero is no daw requiring tlie intendant to .give bond,) when it appears that he-was-at least a justice defacto, and that the bond is supported by a sufficient consideration; and if it was given for the purpose of procuring, for .the intendant patronage i and business as a justice of the peace, .and he did receive patronage and business as a justice on tho faith and credit of it,, it is.supported by a sufficient consideration. 4. Demurrer tc complaint assigning good and bad .breaches. — Jxi an action on a penal bond, if the complaint contains a single count, assigning several breaches, the insufficiency of one of the assignments is not a ..ground of demurrer to tho entire complaint. .AppEAL'-from the Circuit Court of Wilcox. "Tried before the Hod. Nat. Cook:. 'This action was founded - on a penal bond, executed by John D. Catlin, jr., (since deceased,) D. S. J. Woolf, and J. A. Blakeney, dated tlie 7th June, 1854, payable-to the State of Alabama, and conditioned as follows: “'Whereas the above-bound John D. Catlin, jr.;. has been duly elected inteu-dant of the town of Camden in said county, and is thereby made, ex officio, justice of tlie peace; now, therefore, should the said Catlin well and truly do aiid perform all the duties which are, or may be, required of him by law as such in-tendant, or, ex officio, justice of the peace, then this-obligation to be void;” &c. The amended complaint was in the'following words : “Plaintiffs claim of defendants the sum of $005 78, for the breach of the condition of a bond,” &c., .describing it, and setting out the condition. “ Plaintiffs, say, that the said bond was delivered to the probate judge of Wilcox county, and was by him approved; that the said bond was given by the said. Catlin for the object and purpose of securing to him thereby patronage and business as a justice of the- peace; that the said Catlim did, on the faith and credit of. said bond, receive mucbupa-tronage and business asa justice of the peace, and was-'thereby benefited, by reason of the large amount of costs- and fees which he obtained from said official patronage and'business, so secured to him-, by reason of said bondthat, according to the recitals of said bond, said Catlin was an acting justice of the peace ex- officio, as aforesaid, for Wilcox county, by virtue of. his- office as intendant of the town of Camden, from the date of .said bond, (June 7th, 1854,) until October 13th, 1855 that, during, said period, divers claims, the property of plaintiffs, were placed ins the hands of said Catlin, as justice of the peabe ex-officio as aforesaid, for suit and collection;, and that the condition of said bond has been broken by said-Catlin-, in-this : that the said Catlin, as such justice of the peace ex officio as. aforesaid, during the said time he was an acting justice of the-peace ex officio as aforesaid, to-wit, between the 7th June, 1854, and the 13th October, 1855, had and received officially and ministerially, for and on account of the plaintiffs, divers sums of money on the claims above mentioned, amounting,in the whole to the sum of $665 78; and that he, the. said Catlin, did not pay the said sum of money, ox- any part thereof, to the said plaintiffs, or to any person or persons authorized to receive the same, but wholly failed, íxegiected, and refused so to do, to the damage of the plaintiffs as above stated.” (The opinion of the court renders it unnecessary to set out the second assignment of a breach.) “Plaintiffs further say, that all the said sums of money collected by said Catlin, as above set out, were demanded of him before the commencement of this suit, to-wit, on or about the 11th July, 1854, the 23d Octobei, 1854, and the 29th December, 1855; and-that saicl several sums of money, so collected by said Gatlin, became'and were clue and owing from said Gatlin as justice of the ¡peace ex officio as aforesaid, before the commencement of this suit, and before the date of said demands,-and are still in arrears and unpaid, contrary to the form and effect of said writing obligatory, and of the said condition thereof; by reason of which said breach of said writing obligatory, the same became forfeited; whereby an action hath accrued to the said plaintiffs, to have and demand of the said defendants the said sum above claimed, with the interest thereon.” The defendants demurred to the complaint — “ 1st, because said Gatlin was not, by -virtue of his office as inten-dant of the town of Camden, a justice of the peace, ex ■ officio, for the county of Wilcox, and therefore said bond is contrary to law and void: 2d, because the intendant of The town of Camden'was not, at'the time said Gatlin exe•cuted said bond with defendarits, required to give bond, and ítheréfore said bond is without consideration and void'; 3d, because the condition of said bond is iusensible, uncertain, and therefore void; 4th, because the complaint does •not allege that said Catlin was a justice of the peace in and dor Wilcox county; 5th, because the first count in said ■Gomplaint is argumentative, states legal conclusions, and • does not aver a demand; 6th, because the second count is iusensible, uncertain, and void for repugnancy; and, •7th, because said second count does not aver a demand.” -The court sustained the demurrer, and its judgment is now -assigned as error. ' The 4thsection of the 'adt, “to incorporate the town of Camden, in the county of Wilcox,” is in these words : “Be it further enacted, that the ‘powers, privileges, rights arid immunities, conferred by an act, entitled ‘ An act to incorporate the town of Ejrtalw, in Greene county,’ approved January 2d, 1841, are hereby transferred to, and vested in, the intendant and council <of the town of Camden, in the county of Wilcox.” — See -Session Acts 1841, page 54. J. HENDERSON, for appellants. 1. The charter of the town of Camden, taken in connection with the charter of the town oí Eutaw, to which it refers, makes the intend-ant, ex officio, a justice of the peace; and section 710 of the Code requires justices of the peace to give bond, according to the provisions of section 118. The bond here sued on is thus shown to be a good statutory bond; and its validity, as a statutory bond, is not affected by the superadded condition for'the faithful discharge of the principal obligor’s duties as intendant, which will be rejected as surplusage.— 10 Mis. 664 ;;5 Barr, 250; 1 Brock. 195; ib. 177 ; Whit-sett o. Womack, 8 Ala. 466, and cases there cited.” The doctrine invoked by the. appellees’ counsel, as to a clause of reference in a statute, has no application, since all the powers conferred on the --intendant are special; and if it were held applicable at all, it would take away all powers from him. 2. If the obligation is-not good as a statutory bond, it is certainly good at commas law-. The Státe has power, independent of all statutory provisions, to take a bond from one of its officers, conditioned for the faithful discharge of his public duties; and the courts will lend tbeir assistance to indemnify parties who • have been injured by the officer acting under such bond — 5 Peters, 115 ; .3 Wheaton, 172 ; 1 Bailey, 211; 7 Conn. 543 ; 6 Binney,' 292 ; Grilpin, 554; 1 G-reenl. 248 ; .5 Pick. 384; 15 Ho w. (fL S.) 304; 3 Cush. (Miss.) 625. The allegations of the complaint show a sufficient consideration for the bond.- — 1 Saunders’PI. & Ev. 195 ; Chitty on Contracts, 30 ; Hester v. Keith, 1 Ala. 316 ; Ga/yle v. Martin, 3 Ala. 593Whitsett v. Womack, 8 Ala. 466 ; 5 Pick. 384. 4. Gatlin having enjoyed the benefits arising from the bond, the defendants are estopped from alleging its invalidity. — Sprawl v. Lawrence, 33 Ala. 688 ; 8 Ala. 466 ; 7 Ohio, 354; 2 Har.'(Pfenn.-St.) 83; 16 Mass. 102; IBich. (S. C.) 2S1. J. Thompson, with wbom was Alex. White, contra. 1.The civil jurisdiction of a justice of the peace is an extraordinary power, and must be conferred by statute, since it did not exist at common law. — FMs v. White, 25 Ala. •540 Marshall v. Betner, 17 Ala. 836... A clause-oi reference in a statute embraces only the.- general powers and provisions of the statute referred to, and'not its special and particular clauses.' — Ex parte Greene <& Graham, 29 Ala. 62; Stevenson v. O'Sara, 27 Ala. 362 ; Mattheivs, Finley & Go. v. Sands & uo., 29 Ala. 131; Dwarris on Statutes, 705. From-''these propositions it necessarily follows, that the charter of the town of Camden does not make the intend-ant, ex officio, a justice of the peace.. Any other construction of the charter would make each member of the common council, equally with the intendant, a justice of the ■ peace and would authorize them to act in that;capacity, not hri'Wilcox, but in 'Dreene county. Moreover, the 8th section of the subsequent act to amend the charter of Camden, (Session Acts CL-857-8;- p. 225,) which expressly confers on the intendant the powers of a justice of the peace, is a legislative construction.of the original charter, showing that it did not conferithat power. 2. The complaint does'not aver," that Catlin was a justice of the peace for Wilcox county; and if he was in fact a justice, by virtue of his election as intendant, there is no statute which required or authorized him to give bond. The provisions of the Code do- not apply to the case, because his term of office, mode of «election, i&c., are entirely different from those of justices -of. the peace under the Code, and are governed by a special statute which was passed before the adoption of the Code. 3. All the specified Jgrounds of demurrer are insisted on. [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. We do not deem it necessary to determine, whether by the act.“-to incorporate the town of Camden in Wilcox county,”' (Acts -1841, p. 54,) the intend-ant of the town is made, ex officio, a justice of the peace. On that point, the law.may bemon ceded, .to be as the appellants contend; and yet it would be of no avail to them in this suit. It is not always easy to determine what is necessary to constitute an officer de facto. The general definition is, that he is one who exercise.s-the duties of an office, under color of an appointment or election to that office,; thoughLord Ellen-borough, in'the leading case on the subject, says, that an officer de facto “ is one who has the-reputation of being the -officer he assumes to be, and yet is not a good officer in -.point of law/’ — The King v. The Corporation of Bedford Level, 6 East, 366. It is very clear, that the 4th section ^of the act to incorporate the-town of Camden, when taken in connection-with-the act'-to which it refers, constitutes at least a valid foundation -for a honafide claim by the intendánt of the town, to be ex -officio justice of the peace; and nf, on the faith of his election as intendan't, he proceeds to perform the duties of justice-of the peace, he would not he considered a naked'usurper without claim or right. If not a mere usurper, he would be at least an -officer de facto. People v. Cook, 14 Barb. 316 ; Jones v. Bebee, 9 Mass. 231. Lt follows, -that if -the .principal obligor in the bond was elected intendant of the town of Camden, and, on the authority-of that election, assumed to act, and did act as a Justice of the peace,he became at least a justice cle facto, if not de jure„ This -being so, a bond executed by him, and conditioned for his faithful discharge of the duties of . justice, will be upheld as a valid obligation ; and those who -have voluntarily bound themselves as his sureties, cannot Absolve themselves from -liability by alleging that he was mojustice-Sprowl v. Lawrence, 33 Ala. 688, and authorities cited-. The doctrine ©f estoppel has sometimes been assailed, as tending to defeat justice by excluding truth. But certainly no rule of the common law is better supported by reason and sound policy, than that which declares, that when a man solemnly admits a fact, and the admission is acted upon, he shall not be heard to gainsay it, with a view of escaping from liability. The bond in this case expressly declares, that Catlin “has been duly elected intendant of the town of Camden in -said comity, and is thereby made ex officio justice of the peace;” and the complaint avers, that Catlin performed the duties of the office of justice, and that on the faith and credit of this bond he received “much patronage and business as a justice of the peace.” By signing his bond, the defendants acknowledged him to be a justice of the peace, recommended him as such to the public, and agreed to be liable if he did not well and truly perform the duties of the office, They at least, whatever might be the case with others, will not be heard to say that, although they signed his bond, and thereby induced others to place claims in his hands, still he was not in fact a justice of the peace. On that point their “mouths are shut.” Even if it be true, that there was no law requiring the intendant of the town of Camden to give bond, that would not aflect the validity of the instrument, as a common-law obligation. — Sprowl v. Lawrence, 33 Ala. 692; Alston v. Alston, 34 Ala. 24-5, and authorities cited; Stephens v. Crawford, 1 Kelly, 582. The complaint shows a sufficient consideration for the bond. — 34 Ala. 24. The complaint contained but a single count, assigning several breaches. In such a case, the insufficiency of one of the breaches assigned is not a ground of demurrer to the entire complaint. Hence, we need not inquire, whether the second breach was good. — Governor v. Wiley, 14 Ala. 172; Wilson v. Cantrell, 19 Ala. 642. The court erred in sustaining the demurrer. The judgment is, therefore, reversed, .and cause -remanded.