Williamson v. Woolf , 37 Ala. 298 ( 1861 )

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-.

[2.] 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.”

[8.] 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.

[4.] 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.