37 Ala. 298 | Ala. | 1861
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 appel
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-.
The court erred in sustaining the demurrer. The judgment is, therefore, reversed, .and cause -remanded.