Johnson v. Hall
5 Ga. 384
| Ga. | 1848

*389 By the Court.

Warner, J.

delivering the opinion.

The Court below did not err, in our judgment, in overruling the defendant’s demurrer to the declaration, or in refusing to nonsuit the plaintiff, on the ground that the plaintiff’s demand, was barred by the Statute of Limitations, nor for admitting the testimony of Banks. The delaration is drawn, it is true, in quite an informal manner, but we think it is substantially an action of' assumpsit on the notes, and not an action on the case for fraud. The allegation, as to the manner in which the notes were paid to the magistrate, and the destruction of the same, we consider to be intended as an excuse for not making profert of the notes in the declaration. The principal question which we shall consider,, and which must control this case is, whether a Justice of the Peace, in this State, is a collecting officer; the Court below being of the opinion that .he is not a collecting officer, and that a payment to him, by the plaintiff in error, at the first term of the Court, while the notes were in his possession, was no paymant.

By the laws of this State, a Justice of the Peace is required to perform both ministerial and judicial duties. It has been insisted, on the argument, that the reception of the money by the magistrate, and the giving up the notes to the defendant, was a judicial act, and not a ministerial act. If it was a judicial act, then it is equally fatal to the plaintiff’s right to recover in the Court below, for, being the judgment of a Courtof competent jurisdiction, it is conclusive upon the rights of the parties, unless reversed or set aside, which is not pretended to have been done. But we do not think the reception of the money by the Justice, was a judicial act, and that, by the Act of 1820, a Justice of the Peace in this State is recognized as a collecting officer; and therefore, we feel bound so to recognize him, at least when the note is placed in his hands for suit, until judgment shall be rendered thereon. The Act of 1820 is entitled “An Act more effectually to compel Justices of the Peace and constables, to pay over monies received or collected by them in their official capacities.” It is declared by the Act, that “ Justices of the Peace shall be so far considered officers of the Superior Courts as to be subject to be ruled, under similar regulations as are customarily pursued in relation to any other officer of said Court, when they shall refuse or *390neglect to pay over any moneis which they may have received or collected in their official opacity.” Prince’s Dig. 510. The Act of 1822, places Justices of the Peace on the same footing with sheriffs and Attorneys at Law, so far as to require them to pay twenty per cent, on any money they may have in their hands, on written- dqmand for the same, when not promptly paid to the party entitled thereto. Dawson’s Compilation, 403. When the payment was made by the defendant, in the Court helow, to the Justice, he had possession of the notes and delivered them up to him before judgment had been rendered thereon, who had, in our judgment, the legal authority to receive it, and would have been liable to a rule therefor, on failure to pay it over as money “ received or collected in this official capacity.” Whether the Justice acted in good faith, in receiving the Monroe Rail Road money, or not, we express no opinion; that was a question of fact with which the Court has nothing to do.

Let the judgment of the Court below be reversed, and a new trial had.