19 Ala. 89 | Ala. | 1851
A justice of the peace is a judicial officer as-to civil matters falling within his jurisdiction as prescribed by the several statutes, (Clay’s Dig. 358, 361, et -seq;) and we think that the statute requiring him to give bond for the faithful performance of the duties of his office, and for paying over all moneys which shall come to his hands, to the person-or persons entitled to the same, has reference to his ministerial and not to his judicial duties. We do not think the statute was designed to give an action against the justice for an act done judicially, and within the scope of his jurisdiction. It is unnecessary now to decide whether his securities could be charged, if in sueh cases he acts corruptly, or from impure motives.—Gregory v. Brown, 4 Bibb, 28.—See also, Lester v. The Governor, 12 Ala. 626, and cases there cited. If the justice in the case before us> collected the money by virtue of his office, as he well may do-under the statute, requiring the constable to pay the same over
We are of opinion that the constable, who, it is alleged, paid the money to Glover, the justice, is not a competent witness to prove that fact; for if the plaintiffs succeed in recovering from the justice, or from the sureties on his bond, they cannot again recover from the constable; so that conceding the latter collected this money, as he states, on execution, he is liable to the plaintiff, unless he paid it over either to the plaintiff or the justice, and to hold that he can prove he paid it to the justice, is to enable him by his own testimony to exonerate himself from liability by transferring or fixing it upon another. We are aware there is some conflict in the decisions upon this point; but this witness was interested most clearly in the plaintiffs’ recovery, and all the reasons which may bé urged for the exclusion of a witness, on account of interest, and which rest upon principle and sound policy, apply to him, and Ave therefore think he was improperly allowed to testify for the plaintiffs without a release.— 1 Greenl. Ev. §§ 393-396, and cases cited in notes; also, Moore and Jones v. Henderson, 18 Ala. 232, and cases there cited.
■ Let the judgment he reversed, and the cause be remanded.