26 Ala. 527 | Ala. | 1855
—The statute requires, that the bond of the county'judge shall be executed, payable to the Governor and his successors in office, and “ conditioned for the faithful performance of the duties assigned him”; and further provides, that it, “ shall be filed in the office of the Secretary of State, subject to be sued on by any person or persons, for any injury, waste, or damage sustained in any estate, in consequence of any neglect or omission of taking good and sufficient security from guardians, executors, or administrators.”
The present action is on the judge’s bond, for failing to require the guardian of the plaintiff to renew his bond, or to give further security, — that which he had previously given having become insufficient by reason of insolvency and removal, &c,
Another section (§ 14) of the same statute which gives the action, as above stated, provides, that the guardian may be ordered to give further security, on proof that his sureties have become insufficient.
It is insisted by the counsel for the appellee, that the ordering of further security is a judicial, not a ministerial act; and they invoice the common-law rule, the correctness of which we acknowledge to the fullest extent, “ that a judge is exempt from a civil suit, or indictment, for any act done, or omitted to bo done by him, sitting as a judge.”—Yates v. Lansing, 5 Johns. 282-91, and authorities there cited, — affirmed in 9 Johns. 395. The wisdom and sound policy of this rule, is apparent to every one who has correct views of the administration of justice ; for, if a judge is liable to answer in a civil suit for his judicial acts, for every judgment he renders, at the instance of every party, who, blinded, it may be, by self-interest and partiality for his cause, but excited by the mortification of defeat, may see proper to'sue him, he might be overwhelmed in litigation ; the citizens would soon lose all respect for the law and reverence for those who administer it; indeed, the independence of the judiciary, the great conservative department in every well-regulated government, would be destroyed, and no man would hold the office of judge, at' the peril of being thus arraigned for every judgment he pronounces.— See Groenvelt v. Burwell, 12 Mod. 386; 1 Salk. 396; 1 Ld. Ray. 454.
Such was (and still is) the salutary common-law rule, except so far as the same has been changed by our statutes.
The statute before us, notwithstanding -the general terms used in the condition of the bond, “ for the faithful performance of the duties assigned him”, specifies and points out the instances in which the bond may be put in suit. It is “ subject to be sued on by any person, or persons, for any injury, waste, or damage sustained by any estate, in consequence of any neglect or omission of taking good and sufficient security from guardians ”, &c. This latter clause in the section is supposed by the counsel for the appellant to be mere redundancy ; but we think it hás an important office to perform. It prescribes the cases in which the bond may be put in suit; apd by thus
Our conclusion is, that the demurrer was properly sustained to the complaint. The judgment must consequently be affirmed.