Scott v. Ryan , 115 Ala. 587 ( 1896 )

HEAD, J.

We feel constrained to hold that the complaint in this cause does not contain a substantial cause of action, and will not support a judgment. It is an action against the sheriff and his sureties for a breach of his official bond, and the breaches assigned, are alleged improper performance of judicial acts, by the sheriff, viz., erroneously determining the value of the property, in fixing the penalty of a forthcoming bond which it became his duty to take, and in misjudging the solvency and sufficiency of the sureties accepted by him. That these are acts, judicial in their nature, and that the officer is not liable to a civil action for the manner of his performance of them, even though he acts corruptly, is without the pale of controversy. Unlike, in the cases of the approval of official bonds, and the approval of the bonds of executors, administrators and guardians by judges of probate, wherein liability for taking insufficient security is fixed by statute, there is no statute imposing such liability upon sheriffs, in respect of the bonds they are authorized to take in judicial proceedings. They are civilly liable only for the manner of their performance of their ministerial duties.—Lester v. The Governor, 12 Ala. 624; McGrew v. The Governor, 19 Ala. 89; Matthews v. Sands, 29 Ala. 136; Ex parte Harris, 52 Ala. 87; Busteed v. Parsons, 54 Ala. 393 ; Irion v. Lewis, 56 Ala. 190; Woodruff v. Stewart, 63 Ala. 206.

That the statute which requires bond of a sheriff, and describes the effect thereof (Code of 1886, § 273), does not impose upon that officer and his sureties civil liability for the manner of his judicial acts, is not only apparent upon the face of the provisions themselves, but the principle was so adjudged in the case of Irion v. Lewis, 56 Ala. 190, supra. See also McGrew v. The Governor, 19 Ala. 89, supra. The purpose of the third sub-division of section 273 of the Code was to enlarge' the liability of the officer and his sureties by extending it to acts which were before regarded by law as private, individual torts of the officer, though done under color of his office — the existing official liability, at the time of the enactment of that provision, being only for official delinquencies. It was not intended to impose liability for judicial errors.

Affirmed.