author: Read, J.

text:
    The Schooner Aurora Borealis vs. Thomas Dobbie.
    The act of 1840, providing1 for the collection of claims against Steamboats, and other water craft, by name, had no extra-territorial operation, and only applied to cases arising within the State of Ohio, or to boats navigating the waters within or bordering upon the Stale, when the cause of action arose.
    The explanatory act of 1848, extending the operation of the act of 1840 to all cases arising without the State, and to past as well as future cases, is, except as to cases arising after the act went into operation, unconstitutional and void.

      This is a Writ or Error, directed to the Court of Common Pleas of Lucas County.
    The original action was commenced before a Justice of the Peace, to recover for work and labor done upon the schooner Aurora Borealis, at Oswego,' in the State of New York, and judgment rendered for the defendant. The case was appealed to the Court of Common Pleas, tried by the Court without the intervention of a jury, and judgment rendered for the plaintiff below.
    The question presented by the record is, whether, for work and labor, &c., performed out of the State, an action will lie against the craft.
    The original action was commenced in 1845. Judgment was rendered in the Common Pleas in 1846, and the writ of error was sued out in July, 1848.

      Fitch &f McBain, for Plaintiff in Error.

      E. Ft. Potter, for Defendant.
   Read, J.

In the case of Goodsil v. The Brig St. Louis, 16 Ohio Rep. 178, this Court decided that the act regulating the collection of claims against steamboats, and other water craft, could have no extra-territorial operation, from the terms of the act itself; and that a demand for supplies furnished, and work and labor performed upon a boat, without the limits of the State, could not be collected by suit against such boat, under said act.

This decides the whole case, and reverses the judgment of the Common Pleas, unless the act explanatory of the act of * 1840, prevents it.

The last named act was passed, and went into operation, February ' 24th, 1848. It applies the operation of the first named act, to all cases, whether they arise within or without the territory of the State of Ohio; or whether the boats, or' water craft, be navigating waters within or bordering upon the State of Ohio, at the time the cause of action arose.

This cause of action arose, the suit was commenced, the judgment sought to be reversed was rendered, long prior to the passage of this last named act.

It would have been presumed that this act was intended to apply only to cases which should arise after its passage, had not the act in express terms declared: “ This act shall be held to apply as well to cases already pending, as to such as may hereafter be commenced.”

Were we disposed, we might say this case was not pending at the date of the passage of this act, but had been finally disposed of, although the writ of error has since been sued out. We do not suppose the Legislature meant to authorize all judgments to be reversed, which had been rendered previous to. the passage of the act, upon writs of error, to be sued out subsequently to the passage of said act. Such cases would not be pending, and the Legislature certainly did not intend to have all cases dug up, by writs of error, which had been finally disposed of, within the period that writs of error could issue. This, we presume, would' be a complete answer to the application of the explanatory act, in the present case.

But a graver question than all this is involved. The preamble of the explanatory act, declares that the previous acts have been so construed as to limit the beneficial operations of the same, and in part defeat the object which said acts were designed to accomplish; and therefore proceeds to declare what cases shall be embraced within said acts, and that said act shall be so construed as to embrace all such cases, whether actions be already pending in such cases, or may hereafter be commenced.

It is the right of the Legislature to enact laws, and the province of the Court to construe them. The Legislature has no power to enact a law, declaring what construction or decision the Court shall make upon acts under which rights and liabilities have already been acquired or incurred. The Court have put d construction upon the first acts alluded to, and that construction is binding upon all existing cases. The explanatory act °Perates prospectively, and has, from the time of its pas-the force and effect of a law. But as far as it assumes to encroach upon the province of the Court, and assumes to give construction to existing acts, to govern the decisions of the Court, as to cases pending, it is judicial; and as the constitution confers judicial power upon the Courts, and withholds it from the Legislature, to that extent such act will be inoperative. As a law, such an act will be enforced; as a construction of previous acts, under which cases are already pending in the Courts, it will be held void.

These are fundamental principles, about which there can be no question. 7 John. Rep. 477; 3 Wash. C. C. Rep. 313.

The judgment of the Court of Common Pleas is therefore reversed, and the cause remanded for further hearing.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    Henry Reed vs. Freeman Evans and another.
    The consideration of a promise to pay the debt of a third person need not be in writing.
    A memorandum at the foot of a promissory note in these words : 11 i hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838,” made in consideration that the payee will delay the payment until two years after the maturity of the note, is an original agreement, and demand notice are not necessary to charge the signer of the memorandum.
    This is a Writ or Error directed to the Court of Common Pleas of Lucas County.
    The original action was founded upon the followingguaranty:
    “ $ 175. For value received I promise to pay to John Forman & A. G. Evans, or order, one hundred and seventy-five dollars with interest from date, to be paid as follows, to wit: one third in one year, one third in two years, and the remaining third in three years. Witness my hand and seal this 28th day of January, A.D. 1836.
    Henry Reed, Jr. [seal.]

      I hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838.
    Henry Reed.”
    The declaration contains four counts.
    The first averred a general indebtedness from Henry Reed, Jr. to the plaintiffs, and in consideration that the plaintiffs would give time fo said Henry Reed, Jr. for the payment there of until three years from the 4th day of June, 1838, he, the defendant, by his promise in writing, bound himself to pay the same at such time — that time was given accordingly, and excused demand and notice at the expiration of the guaranty because of the insolvency of the principal.
    The second was like the first, except that the indebtedness was described according to the fact, as by the note.
    The third was like the second, except that demand and notice was averred' instead of the excuse.
    The fourth was the common count.
    Plea, the general issue.
    The case was submitted to the Court, without the intervention of a jury, and judgment rendered for the plaintiffs.
    A bill of exceptions was thereupon tendered and allowed, as follows:
    Be it remembered that on the trial of this cause in the Court of Common Pleas of Lucas county, at the November Term thereof, the said plaintiffs, to maintain the issue on their part, offered in evidence a note of hand under seal, made to the plaintiffs by Henry Reed, Jr., for the sum of one hundred and seventy-five dollars, and payable one third in one year, one third in two yearg, and one third in three years from the date thereof, to wit: the 28th day of January, 1836, attached to which said note was the following memorandum, viz: “ I hereby obligate myself that the above note shall be paid in three years from this 4th day of June, 1838. Henry Reed.” The plaintiffs also offered evidence to prove that the plaintiffs did not claim payment of Henry Reed, Jr. at any time within the three years next succeeding from the fourth day of June, 1838, on the writing on which the plaintiffs have declared, in this case, signed by said Henry Reed, Jr., and that the plaintiffs forebore to prosecute said Henry Reed, Jr. for the period of‘three years from the time that Henry Reed, the defendant in this case, signed the memorandum, on account of which this suit is brought; that the defendant offered to pay the amount of said note given by said Henry Reed, Jr. to the plaintiff, in Ohio State Bonds, some time in the winter of 1842-3, and that the attorney of plaintiffs called on the defendant in 1842 for the payment of the same, who at no time denied his liability to pay the same, but proposed paying in property, or excused himself on account of not having the means. But the evidence of the plaintiffs did not show that the said plaintiffs refrained from prosecuting the collection of said note of the said Henry Reed, Jr. for the other space of three years, nor for any other time on acount or consideration of the said undertaking or memorandum of the said Henry Reed. Neither did the said plaintiffs show that the said defendant ever promised to pay the said note.
    The plaintiffs, further to excuse themselves from proving a demand of the payment of said note, from the maker thereof, Henry Reed, Jr., and notice of such demand given to the defendant, offered the said Henry Reed, Jr. as a witness, to prove his own insolvency at the time of the expiry of the three years, from the fourth day .of June, 1838 — who testified, that at no time up to the said fourth day of June, and for a long time thereafter, had he been prosecuted to insolvency, or sued for any debt of his own, and that he was in the habit of paying his debts, though he supposes that if called upon at once, to pay all his debts, he could not have done it — still he was in hopes, at that time, of paying all that he owed as principal, and enjoyed credit to some considerable extent — that he has since taken the benefit of the bankrupt law, and has been discharged under its provisions —that at the said 4th day of June, 1841, he had, and for a long time after had, an amount of money sufficient to pay said note, which he kept appropriated to that specific purpose, until from the neglect of the plaintiffs to demand or prosecute, he was led to believe that the said plaintiffs had abandoned all demand against him, which means had since been posed of in another manner. Whereupon the plaintiffs rested their cause, and prayed the Court for judgment against the said defendant. Whereupon the said defendant objected to the sufficiency of such testimony; which objection was overruled by the Court, 'and judgment rendered against the defendant; to which opinion of the Court the defendant excepted, and prayed that his bill of exceptions in that behalf might be allowed, which is accordingly done, and upon his motion the same is ordered to be made a part of the record in this case.
    The error assigned is, that judgment was given for the plaintiffs, when by the laws of the land it should have been given for the defendant.

      Young &f Waite, for Plaintiff in Error.

      Fitch &f McBain, for Defendant.
   Birchard, C. J.

This case was submitted to the Court below upon the proofs offered by the plaintiff. Exception was taken to the sufficiency of the testimony offered in support of the action. The Court found it sufficient, and no motion for a new trial was presented. By treating the exception as a demurrer to the evidence, and in no other way, can the questions argued upon the assignment of error be considered. Viewed in this light, the proof offered below should be considered as establishing every fact which may reasonably be inferred from the evidence, without drawing therefrom forced or violent inferences. Trying the evidence by this rule, did it establish the cause set forth in the declaration ?

The consideration of the promise declared upon is alleged to have been forbearance to sue Henry Reed, Jr. for three years from the fourth of June, 1838.

The evidence to support this averment consisted of the written promise, of proof that no claim of payment from Henry Reed, Jr. was made within the three years ; that plaintiff below forbore to prosecute for three years, and that after the expiration of that time, the defendant below offered to pay the claim in Ohio State Bonds. That again, in 1842, he proposed paying the same in property, 'or excused himself when called on, by alleging inability for want of means, but at no time denied his liability to pay the same.

Now it may be said that this all does not prove directly that the consideration alleged actually existed, yet one could scarce doubt from these facts that a good consideration did exist; and the presumption is that it is the one set forth in the declaration. It is unreasonable to presume that the written engagement was entered into without cause. The Judges of the Court of Common Pleas had the facts so before them that they were justified in drawing all reasonable and fair inferences that could be well based upon this evidence. They might well presume, from the circumstances, that the delay granted to the maker would not have occurred without cause. That the promises to pay in State Bonds or other property, as well as the excuses for non payment, would not have been made without a binding promise. The circumstances, viewed in a favorable light, certainly looked towards the support of a consideration for the written guaranty; and to no other than the identical one set forth in the declaration. We are not prepared, therefore, to say that the Court erred in this respect.

But it is further urged that no evidence was admissible to prove any consideration, none being expressed in the written guaranty.

This objection presents a vexed question, arising out of the act for the prevention of frauds and perjuries. It is believed that in this State it has been hitherto uniformly held, that a promise, in writing, to pay the debt of another, if founded upon a good consideration, would sustain an action, and that such a consideration might be proved by parol, and need not be set forth or incorporated in the writing itself. Upon this question different Courts have held different opinions. It was to me a matter of some surprise to find that the law of this State, upon this point, was considered unsettled. This casé was into Bank, in order that a reported case, in accordance with what was supposed to have been the uniform current of decision in this State, might be placed within the reach of every one, and not because the point was regarded doubtful.

Our statute is similar, so far as it bears upon this question, to the English Statute of 29th Charles 2d, c. 3, § 4. In 1804, in the case of Wain v. Walters, that statute, for the first-time; received a construction, requiring a recital, in writing, of the consideration on which a promise to pay the debt of another is founded. The doctrine seems to have taken the profession in England by surprise. It has been repeatedly questioned in England, but has hitherto been sustained there. 14 Ves. p. 189; 15 Ves. p. 286.

In 1808, the principle held in Wain v. Walters was adopted in New York, and these decisions have been perhaps the means of giving a more extended currency to the doctrine of that case in some of our sister States, and possibly may have contributed to its stability in the country of its origin. But in 1809 in the case of Hunt v. Adams, 5 Mass. Rep. 360, the doctrine of Wain v. Walters was departed from, by the Supreme Court of Massachusetts, and, as we think, very good reasons were given for the departure by the learned Chief Justice Parsons. He held the English case to be one of first impression, but admitted that if the word agreement, as used in the statute, is to be taken not in a popular, but in a strictly legal sense, it might be unreasonable to question that decision. He held, however, that the word agreement, as originally incorporated into the statute, was used in the popular sense, as intending the undertaking of the party charged, and not necessarily including the consideration •for it. This view of the statute was re-affirmed by the same Court in 1821, in a learned and able opinion by Parker, C. J. in Packard v. Richardson et al., 17 Mass. Rep. 137, in which he reviewed at length all the cases then decided upon this subject. His concluding remarks are worth copying.’ “We are not (says ^ge) overruling a settled principle, or introducing a new in.refusing to yield to this doctrine; but are merely vindicating what we believe to be the true and established construction, from the doubts brought upon it by the Courts of King’s Bench.”

Well might he call it the vindication of an established construction, for from the reign of Charles II, to the year 1804, it had always been understood, both in England and the United States, that it was not necessary that the consideration should appear on the face of the writing. So said Lord Eldon, and so said Lord Ellenborough. The question was, what did the statute mean, or rather what did the men who framed the act, and Parliament mean in King Charles’ time, when they enacted the law ? Those best able to answer were its cotemporaries — the Legislators and Judges who lived at the time of the enactment, and within the first century afterwards. Their construction, in the language of the Massashusetts Court, “ became established law,” for whatever was the meaning of the statute when first enacted, should be its meaning through all future time. It is ‘the very essence of a law, that it be uniform and unchangable.

Again, it is said there should have been a demand and notice of non-payment. To this, we reply, that the engagement was an original undertaking to pay the amount of the note in three years. It was not an engagement that the pnaker should pay the note when due, and if not, that the guarantor would pay it, but that in consideration that the payee would delay the payment until two. years after the maturity of the note, the guarantor would pay it. No demand, under this contract, was required of the maker, at the maturity of the note; it was not contemplated by the parties. On the contrary, the consideration of the promise not only excused the making of such demand, but made one improper. The promise was made because the payee had agreed to delay payment when the note fell due, and not then demand it.

Judgment affirmed,'


text:
    The State of Ohio ex rel. Elmer Hartshorn vs. Samuel Walker. The State ex rel. Josiah B. Roberts vs. Nicholas Zanglien.
    On the formation of a new county, the County Commissioners of any of the counties from which the new county is formed, who reside within its limits, cease to be Commissioners of the old county, unless they remove within it.
    . These are Informations in the nature of Quo Warranto, reserved in the County of Allen.
    The two cases are substantially alike. The relators set forth that the defendants, on the 6th of March, 1848 ; “ did usurp, in trade into, and unlawfully exercise, and from thence up to the 7th day of March, 1848, continued, without any legal right, to hold and exercise the office of Commissioner of Allen county, contrary to the laws of the State.” Also, that by the act erecting the new county of Auglaize, the defendants became residents of said county, by being included within the territorial limits thereof, and that on the sixth day of March, A. D. 1848, the Associate Judges, of the Court of Common Pleas, of Allen county, convened, &c., and declared said offices vacant, and appointed the relators to fill said vacancies, who were duly qualified, &c., and became thence entitled to exercise and discharge all and singular the duties and privileges of said offices, &c.
    The defendants have plead not guilty to the charge of usurpation and intrusion into the said offices, and have, also, filed special pleas, setting forth their claim of title to said offices, which, by agreement of counsel, are to be,treated as notices of special matter filed with the plea of the general issue, and by said'agreement the judgment of this Court is to be entered upon the merits as they shall be found upon the agreed statement of which is in these words, viz:
    It is agreed by the parties to these suits, that the said Samuel Walker was elected County Commissioner of said county of Allen, at the annual October election, A. D. 1846, for the term of three years, and was duly sworn and legally qualified, and acted as such Commissioner from and after his said election, until and after the commencement of these suits, and that at the time of his said election he resided in the township of Moulton, then in the county of Allen, but now in the new county of Auglaize; and that up to the time of the commencement of these suits he had not changed his said residence.
    It is also agreed between the parties to these suits, that the said Nicholas Zanglein was duly elected County Commissioner of said Allen county for the term of three years, at the annual October election, A. D. 1847, and was duly sworn and legally qualified, and acted as such county commissioner until and after the commencement of these suits — that at the time of his said election he resided in the township of Pusheta, then in the county of Allen, but now in the new county of Auglaize, and that up to the time of the commencement of these suits he had not changed his said residence. It is also further agreed, that on the 6th day of March, A, D. 1848, the Associate Judges of the Court of Common Pleas of said county of Allen declared the offices of the said Samuel Walker and Nicholas Zanglein to be vacant, and that the said relators, Elmer Hartshorn and Josiah B. Roberts, were appointed by the said Associate Judges to fill said declared vacancies as set forth in their respective relations; and that the .said relators were also sworn, and filed their certificates of appointment and oath of office with the Auditor of said Allen county, as set forth in their said relations respectively.
    It is further agreed that the special pleas in these cases shall be considered and held as notices of special matter attached to the general issue.— and further, that the several matters therein set forth, is a true statement of the facts of the case.

      Wm. Lawrence, for the Relators.
    On the part of the, relator it is claimed that he is entitled to a judgment of ouster against the defendant, and to sustain that claim it is maintained: 1st. That by the constitution and law of the State a county commissioner can only act as such or hold his office, while an actual resident of the county.
    2d. That the office is not required by the constitution, is dependent upon legislative will for its continuance, and that a statute may create a disability to hold it.
    If the affirmative of these propositions is maintained, then the defendant has no right to hold the office of commissioner, but judgment of ouster must be pronounced against him. The authorities by which they are sustained, certainly appear to be conclusive, and I will examine each separately in the order they are stated. 1st. It is maintained that a county commissioner must be an actual resident of the county in which he holds his office, and that non-residence is a disqualification for which he may be ousted. The constitution of the State, art. 1, sec. 27, provides, that “ no person shall be appointed to any office within any county who shall not have been a citizen and inhabitant therein one year next before his appointment.” This clause applies to all county officers, as is evident from the connection in which it is used, and the object in view in framing it. But the act of March 5,1831, establishing boards of county commissioners, (Swan’s statute, -205, sec. 1,) also provides, “ That there shall be established in each organized county in this State a board of commissioners, &c.,” and sec. 6 declares “ That before any commissioner shall enter upon the duties of his office, he shall take an oath or affirmation * * faithfully and impartially to discharge the duties of a commissioner of the county in which he resides.” These and other similar provisions very clearly show that the right to hold the office is dependent on residence, and that any attempt to hold the office by a non-resident, is in violation of law, and without legal authority. Now as non-residence is a disqualification, it attaches as soon as the non-residence commences. It is the fact of non-resi- , .... that creates the disqualification, and it takes effect like a resignation or the expiration of the term of office, as soon as it occurs, and operates immediately to abrogate all right to exercise the duties of the office. If it does not operate instantaneous, it does not for a day, a month, a year. But it is insisted that the statute of 1831 secures to anon-resident commissioner,, or one who has become a non-resident, a right to the office for six months after his non-residence. Such is not the statute. It declares in the same section which authorizes the Associate Judges to fill all vacancies except those occurring from expiration of term, “ that the absence of any commissioner from the county for six months in succession shall be deemed a resignation of the office.” (Sec. 4, stat. 205.) The constitution and the same law had declared non-residence an instantaneous disqualification from holding the office. This provision then must be understood to embrace a class of cases not already provided for. It declares “ absence for six months,” a virtual resignation. It declares the effect of absence and not non-residence.

    It was foreseen that even residents might be absent six months and yet not be in a legal sense non-residents. To meet cases of temporary absence, then, of residents, this clause was added to the 4th sec. of the statute. These disqualifications are founded in reason and expediency. The non-resident commissioner, careless of the burthens he imposed upon others, might levy taxes he had no share in paying, and conduct the affairs of a county in which he had no interest, and to sanction the right of a non-resident to office is to impair the salutary operation of the law. It is, therefore, very apparent that non-residence renders a commissioner incompetent to hold the office, and the disqualification commences instantaneously with the non-residence. 2nd. The second proposition asserts that the office of county commissioner, is a mere statutory office, not required by the constitution, and in all respects dependent on legislative will. If this be so, then the Legislature could, by law, create a legal disability depriving defendant of his right to act as commissioner. As to offices, the term of which is fixed by the constitution,1 it is not pretended that the Legislature plenary power over them, but as to offices not required by the constitution, there is no limit to the exercise of legislative power. This has become a settled principle in our jurisprudence, and hence it is said, “ in the absence of constitutional restriction the creation, continuance, duties and emoluments of an office are matters of political expediency, and to be judged of solely by the Legislature;” 7 Bacon’s Abg. 281, Tit. Offices; 4. Dev. N. C. Rep. 23 ; 3 Kent, 457. Even as to an associate judge, holding an office, the term is fixed by the constitution; the Court has said, “ no one would contend that a voluntary removal was not a forfeiture and resignation of his office. Can it make any difference when this removal is effected by the exercise of a constitutional- right of the General Assembly and by an act of omission in the. officer ? It seems to us it cannot; ” 11 Ohio Rep. 513. This power has been frequently exercised in Ohio. The Legislature abolished the Board of Public Works, and of Canal Commissioners, and the officers ceased to act. The office of State Printer was abolished, and in these and other cases, the officers ceased to hold their offices, although their regular terms, as fixed by prior law, had not expired. The Legislature had power to erect the new county of Auglaize, by the constitution; article 7, sec. 3. And by the act creating that county, the residence of defendant was changed from Allen to Auglaize county. By a legislative act he was made a nonresident of Allen county. The legislature having power to do this, and having legally exercised that power, the effect clearly follows. It matters not hoio the disability of non-residence attached to .defendant, the effect is declared by the constitution and law, as I have shown. Whether the disability be created by the act of God, by the act of the party ¿ or by operation of law, the effect is the same. The Legislature, by a solemn act, declared defendant a non-resident of Allen county — practically declared him no longer a commissioner. It might have abolished the office or declared that all commissioners over sixty of age should cease to hold the office, for such is the pow-0f the General Assembly over an office of its own creation. The right to abolish the tenure by which legislative offices are held, is incident to the right to create them. The defendant, then, by operation of law, was legislated out of his office ; has been subjected to a disability which deprives him of all right to discharge his official duties; in short, his official existence was terminated by statute.

      Rose Bliss, for Defendants, submitted the case without argument.
   Birchard, C. J.

Upon the preceding statement of facts, our first inquiry is, whether the facts show a right in the defendants to retain the offices to which they were respectively elected. The 4th section of the sixth article of the constitution, declares that the appointment of all civil officers, not otherwise directed by the constitution, shall be made in such manner as may be directed by law. There is no provision in the constitution for the election of a county commissioner. The office is a creature of the statutes. Its duties are there defined, and to them we must look for the main guide in determining the rights of these litigants.

By the first section of the act establishing boards of county commissioners, passed March 5, 1831, (Swan’s St. 205,) it is enacted, “that there shall be established, in each organized county of this State, a board of commissioners, to be elected by the qualified electors of the county, at the annual election in October.” By the sixth section, each commissioner, before entering upon the duties of his office, is required to take an oath or affirmation faithfully and impartially to discharge the duties of a commissioner of the county in which he resides.

These provisions of the statute sseem to indicate that the office of commissioner of a county, can only be held by a resident of the county. And when we take into consideration the general duties of the board of commissioners, the fact that they are the representatives of the county in its corporate capacity, that they are the corporate body in all suits and contracts, relating to interests and funds of the county, &c., we cannot doubt that non-residence within the county is a disqualification, which necessarily vacates the office.

It is, however, argued in behalf of the defendants, that under the provisions of the fourth section of the act, (Swan’s St. p. 205,) they were entitled to hold their offices for the period of six months after the passage of the act erecting the county of Auglaize. This section authorizes the associate judges to fill any vacancy in the office of county commissioner, occurring from any cause other than the expiration of the term for which he was elected; and the last two lines of the section read thus: “And the absence of any commissioner from the county for six months in succession, shall be deemed a resignation of the office.” Has this clause any such bearing on this case, as is contended for? We think not. It was intended to meet and provide- for a case, in all its essential features, entirely different — a case of neglect of duty, by continued absence from the county, without a change of residence. It is not necessary to extend the provisions of this act to anything else. The case designed to be provided for, is manifest; and it would be overstepping the legitimate bounds of judicial interpretation, to make the clause embrace more.

There remains, still, the question, what effect had the act creating the county of Auglaize, upon the residence of defendants ? By the agreed statement, they became residents of the territory constituting the new county. The power of the General Assembly to thus change the limits of a county, is undoubted. It follows, that persons residing within the limits of territory detached from the old, and attached to the new county, cease to be residents of the former, and become residents of the latter ; and unless there is some provision of the act erecting Auglaize county, modifying the apparent effect of these general principles, it would also follow that the defendants were both legislated out of office, on the 25th of February, 1848.

But there are provisions of the act which exclude the con-c]ugjon that the General Assembly intended to effect a result summary. Vol. 46, p .130, L. L. <§> 10, of the act, provided for official action of these relators, as commissioners of Allen county, immediately upon the passage thereof. It made it their duty to re-organize certain townships or parts of townships effected by the act, conclusively showing that for a time, their respective offices were to survive the erection of the new county. Within this period, we are of opinion these defendants might have secured their titles to the offices of commissioner, by removing within the newly prescribed limits of Allen county. An intention so to remove was not sufficient. The intention should have been evidenced and accompanied by an actual removal.

What was the precise limit to this period of election is not given in any direct language, yet it may be satisfactorily ascertained by a careful consideration of the act itself, and of the general duties of the board of county commissioners. The 6th section of the act continued the duties and jurisdiction of the sheriffs, coroners, constables, and collectors of taxes of Allen county, on the territory detached therefrom, until the first Monday of March, 1848. All writs in that part of the territory were to be styled of the county of Allen, until the first of March, (f 7, p. 129,) and after that of the county of Auglaize.

To this period, the county of Allen in its corporate capacity was interested in the taxes collected and the costs, &c., made in her name, and there was much propriety in continuing the control of the corporate officers elected for the original territory, till that time. After that, there was very little propriety in subjecting the interests of Allen county to the control of those who then became exclusively identified with the new county of Auglaize.

A necessity existed for filling the board of commissioners on the first Monday of March, that being the time appointed by law for holding an annual session. The relators, by the agreed facts appearing to have been duly appointed and qualified, are entitled to the offices claimed by them respectively.

Judgment accordingly.


author: Avery, J.

text:
    The State of Ohio, on the relation of Moses B. Newman vs. Thomas K. Jacobs.
    County commisioners de facto, can fill a vacancy in the office of county Treasurer.
    The two commissioners whose places of residence, by the erection of Auglaize county, fell within the limits of that county, and who continuing to discharge their official duties, appointed the defendant a Treasurer, were commissioners de facto, of Allen county, after the passage of the act erecting the county of Auglaize, and at the time when they made the appointment.
    The title to an office will not be tried in a proceeding of Quo Warranto, when at the time of trial the term of office is expired and no judgment of ouster can be pronounced.
    This is an Information in the nature of a Quo Warranto from Allen County.
    The information, which was filed May 29th, 1848, alleges that on the 24th of the same month the defendant did usurp and from thence till the 29th of the same month of May continued, without legal right, to hold and exercise the office of Treasurer of said Allen county, contrary to the laws of the State.
    The .information further alleges, that by the Act of February 14, 1848, erecting the new County of Auglaize, Nicholas Zang-' lein and Samuel Walker, before that time Commisioners of Allen county, lost their residence in^that county, by being included within the limits of Auglaize county — that on the 6th of March, 1848, John Jameson, John P. Fay and Charles H. Ad-gate, Associate Judges of Allen county, convened in special session, at the Court House, in Lima, in said county, and declared the offices of said Zanglein and Walker to be vacant, and appointed Elmer Hartshorn and Josiah B. Roberts to fill said vacancies — that on the same 6th of March, Hartshorn and Roberts took the oath of office — that on the 24th of May, 1848, said Hartshorn and Roberts met at the office of the Auditor of the county, to fill, and did, then and there fill the vacaney occasioned by the death of Alexander Beaty, late Treas-county, by appointing the relator to the office for residue of the term — that on the same 24th day of May, the relator gave bond and took the oath of office, and the bond, with the oath indorsed, was deposited with the Auditor. Yet the defendant, thé information avers, prevents the relator from exercising the duties of his office.
    The defendant filed his plea, June 30,1848, claiming thereby,
    1. That he is not guilty of the usurpation, &c.

      2. That on the 28th of February, 1848, the Commissioners of Allen county convened at the Auditor’s office and appointed him Treasurer, the office having become vacant by the death of Alexander Beaty, late Treasurer, whose term of office would not have expired till the first Monday of June, 1848 — that on the 29th of the said month of February he took the oath of office, executed his bond and deposited it, with the oath indorsed, with the Auditor — that on the said 29th of February, he entered upon the discharge of his official duties* and from thence till the filing of the information, he has rightfully continued in the discharge of his duties.
    3. Stating the same vacancy and appointment, but containing a more minute account of the bond, securities, &c.
    The agreed statement of facts is as follows:
    It is agreed by the parties hereto that on the 25th day of February, 1848, Alexander Beaty, who was then treasurer of said county, and whose term of office would have expired on the first Monday of June, 1848, deceased, whereby a vacancy occurred in said office for the said unexpired term — that on the 28th day of said month Jacob B. Haller and Nicholas Zanglein, two of the old commissioners of said county, still acting as such, convened in special session at the office of the auditor of said county, and then and there appointed the said Thomas K. Jacobs treasurer of said county, to fill said vacancy; and that on the 29th day of said month the said Jacobs gave bond to the acceptance of the commissioners of said county as required by law, took the oaths of office, which said oaths were indorsed upon said bond, and said bond so executed and indorsed, was then deposited with said auditor, and the said Jacobs, on said day, entered upon the discharge of the duties of said office, and continued in the discharge thereof until the expiration of said term.
    It is further agreed that said Haller, on the said 28th and 29th days of said month, was a legal commissioner of said county ; and that said Zanglein was also a legal commissioner of said county, unless he was' disqualified by the following state of facts, viz:
    On the second Tuesday of October, 1847, said Zanglein was duly and legally elected commissioner of said comity, for the term of three years; that he was legally qualified as such commissioner ; and .that he entered upon the discharge of the duties of sgid office, and continued in the discharge thereof until after the said 28th and 29th days of said month. On the 14th day of February, 1848, the Legislature of Ohio passed a law erecting the county of Auglaize; which act took effect for the purposes of the organization of said Auglaize county on the 1st day of March, 1848. On the said 14th, 28th and 29th days of said ■ month, said Zanglein resided within the limits of said county of Auglaize, but within the old boundaries of said county of Allen. Immediately after the passage of said act, the said Zanglein elected to remove into the said county of Allen, and discharge the duties of his said office for the said term; of which said election said Zanglein immediately gave notice, and made arrangements to remove as soon as practicable. And- that on the said 28th and 29th days of February, 1848, said Zanglein had rented a house in said county of Allen, to which he then intended to remove in a few days — of all which facts said Zanglein, on the 6th day of March, 1848, gave notice to the Associate Judges of said county of Allen. On the said 6th day of March, the said Associate Judges of said county met at the Clerk’s office in said county, and declared the offices of said Zanglein, and one Samuel Walker, as commissioners of said county of Allen, (who, also, by ‘the said division of said county of Allen, then resided in the said county of Auglaize,) 'vacant, and proceeded to appoint Josiah B. Roberts and Elmer Harts-horn to fill said supposed vacancies. And on the same day, ■said Roberts and.Hartshorn took the oaths prescribed by law to • be administered to county commissioners.
    It is further agreed that the said Haller refused to recognize the said Roberts and Hartshorn as his proper colleagues in the board of commissioners of said county of Allen; but, on the contrary, recognized said Zanglein and Walker as his proper colleagues, who continued to act as such commissioners until they resigned their said offices a short time prior to the October election, 1848, when their places were supplied without controversy. And that said Zanglein was not present at the June session, 1848; that he, after the commencement of the proceedings in the nature of quo warranto against him, abandoned his intention of removing into said Allen county; and that he and said Walker never actually removed their residence into said county.
    It is further agreed that said Roberts and Hartshorn, (except in making the appointment of Moses B. Newman, hereinafter mentioned,) never acted as commissioners of Allen county — but on the contrary thereof, said Haller, Walker and Zanglein acted as such commissioners of said county, and transacted all of the business of said offices until the resignation of the two latter, as before stated. And it is agreed that said Roberts and Hartshorn met on the first Monday of June, 1848, and demanded their seats as commissioners of said county, which were refused to them by said Haller and Walker, who were then acting, and continued to act as aforesaid, as the board of commissioners of said county; and, in compliance with the decision of said Haller and Walker, the auditor of said county declined recording any separate proceeding of said Roberts and Harts-horn ; but continued to record for said board of Haller and Walker.
    And it is further agreed that on the 24th day of May, 1848, the said Roberts and Hartshorn appointed the said Moses B. Newman to fill a supposed vacancy in the office of treasurer of said county, occasioned by the death of said Beaty, as before stated — that said Newman gave bond as required by law, to the acceptance of said Roberts and Hartshorn, and took the
      statutory oath, which was indorsed on said bond, which said bond, so executed and indorsed, was deposited with the 5 r tor of said county.

      B. Stanton, for the Relator.
    Upon the agreed statement of facts three questions arise. 1st. Were Zanglien and Walker Commissioners de facto of Allen county, after the creation of Auglaize county, whose acts are valid, and cannot be inquired into collaterally ? 2d. Is this a collateral proceeding, in which the validity of their acts cannot be inquired into ? 3d. Was the office vacant on the first Monday in June, so that a valid appointment could be made by any authority ? And,
    1st. Were they Commissioners defactol

    An officer de facto, is one who has some colorable, though defective title, to the office which he claims.
    An election to an office does not give a man a colorable title to it forever afterwards. Suppose their term had expired, or they had remained beyond the original limits of Allen county, could it still have been claimed that they had a colorable title to their offices? Commissioners must reside in their counties. And ' where they cease to. do so, whether by their own act-or by operation of law, they cease to have any color of title to their office. In Angel & Ames, on Corporations, p. 160, it is said an officer defacto is one who “ has the reputation of being an officer.” An illustration given is where an under stewart receives rent after the death of his principal. But it is said, if the death of the principal was known to the tenants, his acts would not be valid. The doctrine of officers de facto is a sort of fiction invented for the protection of strangers who are ignorant of the defect in the official title.
    The reason of the law does not exist in this case, and therefore the law ought to cease.
    The case of the State v. Ailing, 12 Ohio Rep. 16 ; is not like this case. There the judges were elected and commissioned for the constitutional term of seven years, and it might well be doubted whether any change of the boundaries of the county could deprive them of their office until the expiration of the term for which they were elected.- Here the term of office is fixed by law, and may be changed at the pleasure of the Legislature.
    2d. Is this a collateral proceeding, in which the title of these commissioners cannot be inquired into ? If it were an action of trespass against a supervisor for opening a highway, established by these men claiming to be commissioners, it would look to me much more like a collateral proceeding. But this is a duo Warranto to inquire into the defendant’s title to the office which he claims. It is in the nature of a contested election. And in such a proceeding, what can be more directly in issue than the qualifications of the electors. How can it be said that a man is legally eleoted, or appointed to an office, when it is admitted that those who voted for him were not legally qualified electors. There is no such thing as voters de facto, who are not voters de jure. The election or appointment of an officer, is a very different -thing from a judgment of a Court affecting the rights of parties, who have acknowledged the jurisdiction, by litigating their cause before it! Of course such judgments cannot be impeached collaterally, by impeaching the title of the judge to his office. But where the title to an office is directly put in issue, it seems to me that the rightful authority of the appointing power to' make the appointment, cannot be a collateral matter. And so are the authorities. “ It has been held that an information may be granted to impeach the title to an office, though the objection arise from a defect in the title of the officer’s electors,” AngelAmes on Corporations, 481. The King v. the Corporation of Punyu, 8, Mad. Rep. 216. And a judgment of ouster against the elector is evidence against the officer; King v. Hebden, 2 Strange, 1109. In' the case of the King v. Tile, 2 Strange, 1091, the defendant was elected church warden of the corporation of Christ Church, at a meeting at which one Goldmeyer presided as Mayor. The first question was whether Goldmeyer was Mayor de facto, and it was held that he was not.'
    2d. If he was, whether the presiding of a Mayor was sufficient. And the Court strongly inclined to the opinion that it was not.
    In the case of Harris v. Jays, Croke’s Eliz. 699, the Queen’s Auditor and Surveyor for the County of Nottingham, appointed a Steward of a Manor, pro hoc vice, who held the Court Seet and granted by copy, land which had anciently been copy and had escheated to the Crown for felony, to the defendant and his heirs. It was held, 1. That a copyhold may be granted by the Lord of the Manor, and by the Steward, if he be the Steward. 2. That the appointment of the Steward by the , Auditor and Surveyor is not good. 3. Admitting that he is not Steward de jure, yet he sitting in the Court and granting the copy, and admitting him, and the fine being paid to the Queen, whether it- be good or not. Per Curiam; the grant is void for it is not a thing of necessity.
    The case of The King v. Hebden, 2 Strange, 1109, was an information, in the nature of a Quo Warranto, against the defendant, as Bailiff of Scarborough. He made title under the Bailiffship of Batty & Armstrong. Upon issue joined, whether Batty & Armstrong were bailiffs, a judgment of ouster against them was read in evidence. And upon a motion for a new trial, it was held that the evidence was properly admitted, and a new trial was refused.
    The case of The King v. Mein, 3 Term Rep. 596, was an information against the defendant as Portreeve of the Borough of Fourey, in Cornwall. The defendant claimed under an election by the tenants of the Prince of Wales, upon the Court rolls of the Borough, and Manor. It was replied, that 22 of the persons who had voted for the defendant, had not been duly admitted tenants of the Borough and Manor, upon the Court roll of the Manor. To this it was replied, that, this was a collateral proceeding, in which the right of the tenants to vote could not be inquired into, until it was settled by an information against them. But it was held by the Court, Lord Ken-yon’ Chief Justice, that the question might be tried in this pro- and an information was granted.
    The case of The King v. Grimes, 5 Burrows, 2599, was a Q,uo Warranto against the defendant, as one of the Chief Burgesses of the Borough of Yarmouth. The two principal questions in this case, were: 1. Whether the defendant was legally elected ? 2. Whether John Leigh was Mayor, at the time of the election? On the second question a judgment of ouster, against Leigh, was produced and held competent evidence, though not conclusive, as it might have been procured by collusion. Further evidence was given by the Crown, which was held sufficient, and judgment of ouster was given against the defendant.
    In the case of Johnson v. Wilson Sf Gould, 2 New Hampshire Rep. 202, the plaintiff was elected Town Collector, and accepted the office, but was not sworn in. When the tax list was prepared, it was tendered to him for collection, but he refused to receive it, without an indemnity, which the selectmen refused to give. They treated this as a refusal to serve,, declared the office vacant, and on the next day appointed the defendant Wilson, Collector. He distrained the plaintiff’s property for taxes and sold it, and this action of trespass was brought to recover damages for this distress and sale. And it was held by the Court that the selectmen had no power to appoint the defendant Treasurer— that he could not justify asan officer de facto, and judgment was given for the plaintiff.
    The case of exporte Wilcox et al., 7 Cowen, 402, was a motion to vacate the election of Directors of the Utica Insurance Company. The principal ground of objection was, that the inspectors of the election had not been appointed in the manner required by the charter. In answer to this it was said, that, at all events, they acted under color of authority, and therefore were inspectors do facto, and that was enough. It was said in reply, that the exception in favor of officers de facto only operates in favor of innocent strangers, and can have no application in a proceeding instituted to test the validity of the election, And of this opinion was the Court, and the election was aside on this ground.
    These cases most abundailtly sustain the 'principle quoted from Angel & Ames, and, if that is admitted to be good law, it is conclusive. But if the Court are against me on these points; then
    3. Was the office of Treasurer vacant on the first Monday in June, when the defendant’s last appointment was made, so that a valid appointment could be made ? Roberts and Harts-horn were Commissioners dejure, as well as de facto, from the 6th of March, 1848, until the annual, election. They appointed the relator Treasurer, on the 24th of May, for the term of two years, from the first Monday in June, 1848. He' had been qualified, and given bond according to law. County Commissioners can only appoint a Treasurer to “ fill a vacancy.” But there was no vacancy to fill on the first Monday in June, and therefore the appointment was void, and the relator is entitled to judgment.

      Rose &f Bliss, for the defendant, submited the case without argument.
   Avery, J.

Was the appointment of Jacobs, the defendant, to the office of treasurer, valid ?

Two commissioners, under the law, constitute a quorum for the transaction of business; and they have authority, by statute, to fill a vacancy in the office of treasurer. Haller was, without dispute, a commissioner; Zanglein claimed to be a legal commissioner, and on-the 29th of February, 1848, probably was so. But conceding that he was not, then can a commissioner de facto, merely, make a valid appointment of treasurer ? And if he can, was Zanglein such a commissioner? Judges de facto, of the Court of Common Pleas, though they be not judges de jure, can make a valid appointment of a clerk of the Court. State v. Alling, 12 Ohio Rep. 16. That decision was made, we believe, in accordance with the authorities; and ^'ne doctrine will apply to a commissioner of the county, as well a judge of the Court. A denial of it, in either case, would be productive of great mischief in the community, creating derangement in business, and involving innocent men, who have dealt with officers upon the faith of a public appointment, in difficulty and losses. We say, then, that a commissioner de facto can make a valid appointment of treasurer; and if Zanglein, on the 28th day of February, was a commissioner de facto, the defendant, at the institution of these proceedings, legally held the office of treasurer, and could not be ousted.

Was Zanglein a commissioner de facto ?

It will be seen from the statement of facts, that Zanglein and Walker, who were legally the commissioners of Allen county, when the new county of Auglaize was erected, claimed still to be the commissioners of Allen county, and continued to act as such commissioners, until after the appointment of the defendant ; and. that the, two persons named as commissioners by the associate judges, were never recognized by the other commissioner, or the auditor of Allen county, and never acted as commissioners, except in making the appointment of the relator.

They, with Haller, the other commissioner, had the control of the books and papers; and the auditor acting under the law, as clerk of the commissioners, recorded all their proceedings and orders, as the acts of the lawful commissioners. This would seem to be a strong case of an officer de facto. Such an officer is described by Lord Ellenborough in the case of the King v. The Corporation of Bedford Level as “ one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law.” In the case before referred to, in 12 Ohio Rep., the Court say that the Court held that Choate and Somers, who appointed the clerk “were not Judges of Huron county,” and those Judges were held to have lost their offices before the expiration of the term for which they were elected, because by a change of the county line their place .of residence, was not within the new limits established, for the county, yet the circumstances connected with their claim to retain the office, made their acts valid, until the decisión against them. And in the case before us, Zanglein, commisioner, would find in the act which it is claimed put an end to his office immediately, good reasons for doubting or denying that such was the effect of the law. The tenth section of the “act to erect the county of Auglaize, (Ohio Laws, Vol. 46 page 130,) direct? “ that the county commissioners of each of the counties effected by the passage of the act, shall here proceed, immediately upon the passage thereof, to attach townships and parts of townships, &c., and to organize said parts of townships, &c., that they may deem expedient.”

By other sections, suits within the limits of Auglaize, if pending before the first of March, shall not be tried in Auglaize, but after the first day of March “suits and other legal process &c., shall be styled of Auglaize county,” and collectors for the counties respectively shall collect taxes till the first Monday of March. The Court have no difficulty in deciding that Zanglein was an officer de facto, and that his acts cannot be impeached collaterally.

The question is raised in the argument on the part of the relator, whether the defendant is entitled to hold for the term commencing on the first day of June, 1848. That case is pot before us under the information, and cannot therefore be decided.

But further, there is an objection to the proceeding in this case, even as to the appointment of February the 28th, because the term of office has at this time expired. In England it seems not to be considered necessary, that the person should continue to hold the office at the time of applying for the information. In New York, however, and Massachusetts, the information has been refused, when the time must expire before the inquiry would have any effect, leaving the- parties to their common remedies. Angel & Ames on Corporations, 436-7.

Such it is understood has been the course of decisions, in this State, and this Court, as far as known, never entertains the suit where the term of office has expired, and no judgment of ouster can be pronounced.

Judgment against the Relator.


text:
    Seth Jennings vs. Matthias Johnson and another.
    If property be replevied from a Sheriff holding, it under execution, and the issue be found for defendant, if the value of the property be greater than the amount of the execution, the rule of damages is the amount ol the execution, with interest, and the costs thereon; but if the value of tne property be less than the amount of the execution, then the rule of damages is the full value of the property.
    This is a Writ or Error directed to the Court of Common Pleas of Erie county.
    The action below was replevin, prosecuted by the defendants in error for an undivided half of the schooner Platina. The defendant below was sheriff of Erie county and had levied upon the schooner as the property of Ebenezer Warner, by virtue of an execution against him. The jury found a verdict for the defendant, and judgment was rendered upon the verdict.
    The error complained of is in the charge of the Court to the jury, which was, that if they found for the defendant, and if the value of the interest of Warner in the schooner exceeded the amount due on the execution, the rule of damages would be the amount so due, but if his interest in the schooner was less than the sum due upon the execution, then the rule of damages would be the value of the property. The plaintiff in error contended that the rule of damages in either case should be the full value of the interest of Warner in the property.

      G. Reber, for Plaintiff in Error.

      S. S. Beecher, for Defendants.
   Read, J.

The only question in this case is, as to the amount of damages which the sheriff should recover in case property levied upon by him to satisfy an execution, be replevied, and the issue be found in his favor.

The-Statute regulating writs of replevin provides, that in case the jury find for the defendant, they shall also further find whether the defendant had the right of property in the and chattels, or the right of possession only, at the commencement of the suit; and if they shall find either in his favor, they shall assess such damages as they shall think right and proper in favor of the defendant.

The interest of the sheriff on levy upon property is to theamount of his execution — by virtue of the execution he is entitled to the possession of the pfoperty for the purpose of sale and satisfaction. Hence if the property levied upon be replevied, and be of greater value than the amount of the execution, the rule of damages would be the amount of the execution, interest and costs made upon said suit — if the value of the property be less than the amount of the execution, then the full value of the property. The charge of the Court of Common Please was to this effect — and we deem it the correct rule under the Statute. Whether the jury might have gone further and assessed damages compensatory to the sheriff for the trouble and expense of defending the suit, is not a point made.

It is argued that the sheriff holds property on execution as trustee for both parties — to satisfy the judgment and return the balance to the debtor — that the bond in replevin takes the place of the property, and hence that the sheriff should recover the full value of the interest levied upon, in order that he might pay over the balance, if any, to the judgment debtor.

The bond takes the place of the property, to the extent of the interest of the defendant in replevin; but the judgment debtor is no party to the replevin suit — and we leave him to prosecute such remedies as he may have against any person who wrongfully obtains possession of his property.

But if the party replevying from the sheriff, was the fraudulent assignee of the judgment debtor to defraud creditors, no one would pretend that the sheriff should recover the full value of the property, in order to return the balance, if any, after satisfying the execution, to the fraudulent debtor. But if the person replevying has no color of right whatever to the ProPerty replevied, his wrongful and vicious act will not prethe judgment debtor from pursuing his property; and whether such person replevying, could, reduce the damages which would be recovered against him by showing the amount which had been recovered from him by the sheriff, to be applied to the satisfaction of the execution against the debtor, it is not now necessary to determine. But it is a familiar principle, that if a person entangle himself by a wrongful act, the law refuses to aid him. As for example, when a person mingles his goods with another, so to confuse the right as to render it impossible to distinguish the ownership, he loses the whole. The levy upon joint or partnership interests,' to satisfy the debt of part-owner, or partner, will not vary the principle.

In any light we can view it, we are satisfied with the rule We have laid down; and besides this, it has been the general, if not the universal rule of damages under our Statute, as declared and acted upon by the Supreme Court, and we see no good reason to change it, ■

Judgment affirmed.


author: Avert, J.

text:
    Walter Smiley vs. Walter Dewey.
    In actions where the claim is founded on book account, a party, in case the original books be lost by accident, may be examined on oath to prove their loss, and touching the validity of the account, though the contents of the books must be proved by other testimony.
    If the items of defendant's account offered in evidence by way of set off in a cause, are, at the time, actually in judgment, such judgment will bar the right to give the set off in evidence, whether the suit on the items was brought and the judgment recovered after such cause was pending, or before.
    The pendency of a suit in a Court of Record, can only be proved by record evidence.
    This is a Writ or Error, directed to the Court of Common Pleas of Scioto County.
    The facts are stated in the opinion of the Court.

      Le Grand Byington, for Plaintiff in Error.

      O. F. Moore, for Defendant.
   Avert, J.

The action in the Court below was assumpsit, and the declaration contained the common counts.

The plea was the general issue, with notice of set off.

Upon the trial before the jury, a bill of exceptions was taken by the defendant, from which it appears that the plaintiff was sworn as a witness, and testified to the loss, by accident, of one of his books of account. He then produced a witness, who swore that he had compared the plaintiff’s bill of particulars with the entries in the said lost book and found them to correspond ; when the plaintiff was permitted to testify to the correctness of the charges on said lost book, as valid charges against the defendant.

In this did the Court commit any error ?

The words of the Statute, on this subject, are as follows: “ That in all actions wherein any claim or defence is founded on book accounts, of not more than eighteen months standing, in which is drawn in question the validity or amount of any such book accounts, the Court or justice may, upon the trial of such action, examine the party under oath or affirmation, touching the validity of such account or accounts, which shall be admitted as evidence on the trial, the credibility thereof being left to the jury or justice to determine; ” Swan’s Statutes, 326.

In the present action, the plaintiff’s claim is founded on book accounts; and there is no denial that these accounts are of less than eighteen months’ standing. The party then, by virtue of the statute, may be examined under oath, touching the validity of the accounts, which accounts, the statute further provides, shall be admitted as evidence on the trial, the credibility thereof being left to the jury.

The statute does not, in terms, declare that a party may be examined touching the validity of his book accounts, only when the original book is produced on the trial; and we are not called uPon to exclude his testimony in such case, unless it be required by what seems to be the true object and intention of the statute. I am not aware that the question now raised has been before the Court upon any former occasion. It certainly did not arise in the case referred to, of Cram v. Spear, 3 Ohio Rep., where the Court say, “ But the books in which the original entries were made, must be produced; otherwise, the oath of the party will be rejected.” That was undoubtedly correct, as a general proposition, and sufficiently exact for the case then before the Court; but there was no question in that case concerning a lost book, nor was the attention of the Court directed to that subject. If, then, there be nothing in the words of the statute, or the previous decisions of the Court, what reason is there for excluding the oath of the party ? No doubt, it is to be desired that the original book of entries should be produced, for if fairly and properly kept, it would contribute to establish in a more satisfactory manner the justice of the claim; and on the other hand, it would help to defeat the claim, if there appeared to be marks of irregularity or fraud upon the face of the account. Inconvenience of a similar character may also be experienced by both parties, when notes, bonds, or other writings are lost; but as in such cases, it has long been held that secondary evidence of their contents shall be admitted, so we think it should be in this case. The loss of the book may here well enough be proved, as in the case of the lost bond, by the oath of the party; and the contents, as in that case, be established by other evidence.

In the admission of this testimony, therefore, by the Common Pleas, there was no error.

After the plaintiff had rested, the defendant introduced evidence in defence, under his general issue and notice.

Next, the plaintiff offered in evidence the transcript of a judgment rendered by Robert Laughlin, a Justice in Kentucky, with evidence tending to show that the suit in Kentucky was for the same cause of action as the defendant’s set-off here. The transcript is as follows:

Walter Dewey Dr. to Walter Smiley, for the use of Boat in the Summer and Fall of 1845 ; To seventy-five days, at 50 cents per day,............ $37 50
To hemp Cable, lost off Boat................... 2 00
To 100 pounds Oakum, at 2 cents,.............. 2 00
$41 50
June Term, 1846.
Walter Smiley
v.
Walter Dewey.
Upon a Warrant for $41 50, due by Account. '
June 6th, 1846. Parties heard, and judgment that the plaintiff recover against the defendant, seven dollars and eighty cents debt.
Cost of the Plaintiff,...................$3 75 .
Cost of the Defendant,.................. 1 25
I do certify, that the above is a true copy from my docket. Given under my hand, as one of the Commonwealth Justices of the Peace for Greenup county, Kentucky, this 12th day of June, 1846. Robert Laughlin, J. P.”

This transcript shows a sufficient judgment before justice Laughlin, and the authentication is admitted to be in conformity with the act of Congress. Faith and credit must therefore be given to the transcript of these proceedings, in this State, as well as in Kentucky. The transcript, therefore, in connection with the accompanying testimony, that the matters in controversy were the same in both suits, was properly received in evidence.

The defendant then offered to prove by parol testimony, that an appeal, had been taken from the judgment in Kentucky, and that the same cause was still pending in the Circuit Court of Greenup county, in that State. This the Gourt of Common Pleas refused to allow, and correctly. For the facts must appear upon the journal or records of the Kentucky Court, and, therefore, cannot be found by parol.

The Court of Common Pleas was asked to charge the jury, tj . •£ ¡-pe evidence satisfied them, that the suit before the jus- ’ 7 in Kentucky, was commenced after the issue was joined in the case then on trial, the justice’s judgment could not defeat the defendant’s set off.

This the Court refused to charge, and in this the Court was doubtless right. For if it was shown that the items of defendant’s account before the time when he offered them in evidence, by way of set off, were actually in judgment, though in Kentucky, the judgment only could afterwards be used as a set off in any case, and not the original claim, which had been merged in the judgment, and could not be a second time litigated.

The Court was asked by the defendant, further to charge the jury, that if, at the commencement of the suit, there was a balance due from the plaintiff to the defendant, on account of the subject matters in the parties’ bills of particulars contained, the defendant was entitled to a verdict for the amount of such balance and interest. This charge the Court refused to give, and properly, if there was not error in their refusal to charge according to the first request of the defendant, because that furnished one instance, where the balance may have been in the defendant’s favor at the commencement of the suit, while it was not so at the time of trial.

The defendant asked the Court to charge the jury, that if the evidence satisfied them, that the character of the plaintiff for truth and veracity had been successfully impeached, they were not bound to place any reliance whatever upon his evidence in the case. This the Court refused, but charged the jury that they were the sole judges of the credibility of the witnesses. The Court, in this, could not have misled the jury, nor did they omit, to give all needed instruction.

The defendant asked for this charge, that if the jury were satisfied the judgment of Laughlin had been appealed from and was pending in the Circuit Court of Greenup, then it was not a bar to the defendants offsets, irrespective of the time when said suit was commenced. The Court so charged the jury, but with the qualification, that such appeal must have been shown by an authenticated copy of the records of said Circuit There is no error in the charge, qualified as it was, but as there was no evidence before the jury to prove the existence of such appeal, there would have been no error in refusing the charge altogether.

The Court further charged the jury, that if the subject matter of the claim set up by the defendant, before them, was the same as that set up by the defendant in the trial before Laughlin, then the judgment before Laughlin would bar the defendant from offsetting the said claim, even if he had found a larger amount due him on the claim, than that for which he got judgment. This part of the charge was objected to by the defendant.

But in no one of the various efforts, in which the defendant’s counsel labored throughout, to find or produce an error, has he been able, in the opinion of the Court, to present a sufficient cause for reversal. ■ Judgment affirmed.


text:
    John Woodson vs. The State, for the use of William H. Borland.
    A declaration upon an Administrator’s bond, in a suit brought at the instance of a creditor, must aver a demand,, or an excuse for the omission; an averment that the claim was allowed by the Administrator, on presentation for that purpose, is not sufficient
    This is a Writ op Error to the Court of Common Pleas of Hamilton County.
    The action below was debt upon an Administrator’s bond. The facts disclosed by the record are these. Letters of admintistration were granted in April, 1841, to A. R. Chase, upon the estate of John Woodward, a mulatto'.

      On the day of 1841, the adminstrator filed an inventory in Court, exhibiting the following assets :
    R. Bond’s note $61, account $68................$129
    R. Phillips’ account...... ..................... 14
    One set of harness, less collar, &c................. 14
    $157
    Ineffectual efforts were made by. the Administrator to collect the claims against Phillips and Bond. Suit was brought against Phillips, and failed, and suit was brought against Bond, which resulted in a judgment for $100, on which an execution was issued and returned “no goods,” with a suggestion of lands, &c.
    The Administrator under these circumstances made no settlement with the Court, and left the jurisdiction.
    On the 20th of November, 1843, the suit was brought in the name of “ the State” against the Administrator and his sureties, on the administration bond. The writ was returned, “not found,” as to the Administrator and one of his sureties, and the declation was filed against Woodson, the other surety alone.
    The declaration makes profert of the bond declared on, and avers that it was made subject to the following conditions: 1. That the Administrator would make and return a true inventory, on oath, of personalty, and also, if required, an inventory of real estate. 21 That he would administer according to law, and make account of his administration in 18 months, and pay all the rest and residue of personalty remaining upon his administration account, the same being first examined, to the proper persons, as directed by the Court. 3. That he would surrender the letters of administration, if a will be found and proved. The breaches averred are: 1. Not making and returning inventory, though $1000 of goods, &c. came to his possession. 2. That he did not truly administer the goods which came to his possession. 3. That he made no return of his administration. 4. That he has not paid the debts proved against the estate from the moneys received by him.

      The declaration further avers that William H. Borland, for whose use the suit is brought, presented his claim against estate, for medical attendance in the last sickness, which allowed, and that said claim has not been paid. The declara^ tion further avers that Woodward died possessed of personal property to the value of $1000, and of real estate of the value of $5000, for authority to sell which the administrator has not applied, but has neglected and refused so to do.
    The plea is the general issue.
    Upon the trial, the plaintiff offered the inventory in evidence, and claimed judgment for the amount of the notes and accounts, with which the Administrator there charged himself, without any proof that any part of the same were collected, unless such collection could be inferred from the omission of the Administrator to settle with the Court.'
    The defendant then introduced the account of the Administrator, and two transcripts from Justices’ dockets, one showing that the Administrator was defeated in his suit to recover the claim against Phillips, and another showing that judgment was recovered on the claim against Bond, for $100, on which execution was issued, and returned “ no goods,” whereupon there was a suggestion of lands. This was all the evidence offered by the plaintiff.
    The defendant also called, as witnesses in his behalf, Reuben Bond and Richard Phillips, who were sworn, and he proposed to prove by them that the notes and accounts inventoried were worthless and could not be collected. This evidence was objected to on the ground that the witnesses were mulatto persons. No evidence of the fact was adduced, and none that Borland, for whose use the suit was brought, was a white person; but the Court determined the condition of all three by inspection, and rejected the witnesses.
    Judgment was rendered for the plaintiff, the case having been tried without the intervention of a jury.
    It is objected by the plaintiff in error, .
    1. That the evidence did not warrant the finding of the Court.

      2. That the declaration is bad, in not containing an aver-demand of payment of the Administrator.
    3. That the Court erred in excluding the testimony of Bond and Phillips.

      Chase fy Ball, for Plaintiff in Error,
    submitted the following argument upon the second and third propositions :
    I. The■ declaration is bad on error.

    1. It is not alleged that any demand, such as is required by the statute, was made of the administrator before suit, nor is any excuse made for the omission of such demand.
    The section of the statute authorizing suit for the use of the creditor is as follows: (Swan, 373 § 182.) “ after a creditor is entitled by law to the payment of his debt from the executors or administrators, and the amount of the claim has either been admitted to be just or allowed by them, or has been ascertained by judgment, or award against them, or by an order of distribution, the bond given by them for the discharge of their trust, may be put in suit by such creditor, if the executors or administrators shall neglect upon demand made by such creditor to pay such claim.”
    This is explicit. There can be no right of action upon the administrator’s bond unless he shall neglect, upon demand made, to pay such claim. There can be no pretence for saying that the original presentation of the claim to the administrator is the demand intended. The creditor must first be entitled by law to payment. That is, the eighteen months must have expired, the amount of the claim must have been ascertained by presentation and allowance, or by award, or by judicial action; and then if the administrator shall neglect, on demand made, &c., the bond may be put in suit.
    This is in the nature of the demand required in many cases to be made of the principal, before the surety can be charged by action. It is the necessary condition of the right to sue.
    This demand being an essential element of the plaintiff’s title to recover, must be averred in the declaration, and the omission of such averment is not cured by the finding of the Court,
    There are many cases, indeed, in which a defective tion will be aided by a verdict. These are cases where the facts omitted to be stated are implied in or necessarily inferrible from the facts stated and found. But the existence of facts not averred, and not necessarily implied in the averments of the declaration, is never presumed. “After verdict,” says Buller, J., in Speirs v. Parker, 1 T. R. 146, “nothing is to be presumed, but what is expressly stated in the declaration, or what is necessarily implied from the facts which are stated.” “ It is an invariable rule,” said Lord Kenyon, Bishop v. Haywood, 4 T. R. 471, “ that every plaintiff must, on his own stating of the case, show sufficient to entitle him to recover judgment against the defendant.” See also Gouldon Pleadings, 503 ; Williams v. Hingham, 4 Pick. 344.
    The fact of demand is essential to the right of action. It is not averred, and is not inferrible from any averment. The declaration is therefore fatally defective.
    2. The declaration seems to us to be fatally defective also in another particular. The action is upon a statutory bond. It is founded upon an alleged omission to perform a statutory duty. Should not the declaration then conclude contra formam statuti 1

    II. The Court erred in excluding the evidence of Bond and Phillips.

    1. These witnesses were sworn to give evidence in the case ; was not the objection to their testifying then too late ? It may be said that the statute provides that blacks and mulattos shall not be permitted to be sworn or give evidence. But will a construction be permitted which will allow a witness to be sworn and then preclude him from testifying? Shall not be sworn or give evidence, should be construed as prohibiting these persons from being sworn or giving evidence on affirmation.
    2. The Court had no right, when the witnesses were objected to as mulattos, to determine their color by inspection. If the witnessess were nearer white than mulatto, they were competent; if mulatto, or negro, not. The slightest shade would qualify or disqualify. This is a reason why the Court should decline a task so difficult, not to say so degrading, unless absolutely forced upon them. But it is not forced upon them. The question of mulatto or white is not a question of complexion, but of blood, to be determined not by inspection, but proof. The distinction between mulatto and white is the. distinction of race, not of color. There is every reason why the party making the objection of incompetency should be left to prove it. And such is the decision of this Court in the case of Williams v. School District No. 6, Wright’s Rep. 579, where it is said “In this case Mr. Yanmatre andMr. N. Wright insist that we resort' to the color or complexion to determine who are white persons, and do not inquire of the blood. It is obvious to us that a resort to color would be unsatisfactory. We think the term white, as used in the law, describes blood, and not complexion.” This authority we think conclusive. If the term white described “ blood, and not complexion,” certainly the same may be affirmed of the terms black and mulatto.
    3. The Court erred in excluding the testimony of the witnesses because the case was not one in which the testimony of blacks and mulattos is made incompetent by statute. The parties to the suit were the State.of Ohio, plaintiff, against John Woodson, defendant. The disabling statute applies only to “ any cause or matter of controversy where either party to the same is a white person, or any prosecution which shall be instituted on behalf of State against any white person.” This suit was literally, “ a prosecution instituted in behalf of the State against a” mulatto person. The declaration throughout describes the State as plaintiff, calling on the defendant to “render unto the said State the sum,” &c., “ which to the said State they owe, and from her unjustly detain, ” suing by her attorney ; averring facts whereby “an action hath accrued to the said State of Ohio,” &c. It may be said that the suit is for the use of Borland, and it is claimed that he is white. Grant for the sake of the argument, that he is: still the State is the legal party, having alone right of action; and when the State is the party plaintiff, and the defendant is a mulatto, black or mulatto testimony is competent. It may be said, also, that the term “prosecution,” in the act, relates only to criminal prosecutions. We cannot think so. The Legislature cannot have been so mean as to intend that the State might sue blacks and mulattos in any form, without allowing them to defend themselves by the testimony of persons of their own color. The term “ prosecution ” is broad enough to embrace all actions. The Court will not narrow it by construction so as to work injustice. But suppose the term “ prosecution ” to embrace only criminal proceedings, the question recurs: is this a suit where one of the parties is a white person ? The Statute is a disabling act, and must be construed strictly. This has been repeatedly held by this Court. The class of witnesses disabled by it can be excluded only in the two cases specified: in suits where one of the parties is a white person, and in prosecutions by the State against a white person. This is not a prosecution against a white person. Is it a suit in which a white person is a party ? In other words, is “ the State ” intended by “ a white person,” as used in the Statute ? We think not: otherwise there wouíd have been no special clause relating to suits by the State. But it may be said that Borland is a white person, and the suit is for his use. There is, it seems to us, nothing in this. Borland cannot object to evidence to which the party in whom is the legal interest, and therefore the only right of action, cannot object.
    4. Should the Court be of opinion that we are mistaken in the positions already assumed, we then respectfully ask its attention to the question — Is the act disabling blacks and mulattos as witnesses, compatible with the provisions of our Constitution ? •
    If this act be constitutional, an act disabling all foreigners, all females, all persons of any class, would be constitutional. We do not deny the power of the Legislature to establish rules £of tpe exclusi0n of testimony for crime, or infamous character, incapacity to understand the nature, and obligation of an oath, or for interest. But we do deny its power to exclude from the witness box any entire class of persons, comprehending large numbers, neither criminal, nor infamous, nor incapable, nor interested. We do. deny the power to exclude on the ground of race or color.
    We ask the attention of the Court to the first section of the Bill of Rights, which constitutes the eighth article, “ All men have certain natural, inherent, and inalienable rights, * * * * * amongst which are the enjoying and defending life, and liberty, acquiring possession of and protecting property, and pursuing and obtaining happiness and safety.” How can these rights be enjoyed, or exercised, if the Legislature may at pleasure’jdeprive any man or every man of the testimony necessary to defend his life, or liberty, or property — testimony unimpeached of crime, incapacity, or interest ?
    The seventh section of the same article of the Constitution provides, “ That all Courts shall be open, and every person for an injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law, and right and justice administered without denial or delay.” How can this provision of the Constitution be reconciled with the provision of the Statute? What remedy-can aman have, if the witnesses to establish his case, be excluded ? What is the process to compel the attendance of such witnesses worth, if they cannot be examined when produced?
    It is the duty of the Court to administer “ right and justice.” The Constitution and their oath bind them to do this. But one of the Judges present, speaking for the Court in Bank, in the case of Jordan v. Smith, 14 O. R. 204, said: “In all my experience, both at the bar, and as a member of this Court, I cannot recollect a single case, in which this law has been found subservient to the ends of justice. On the contrary, its uniform effect has been to prevent justice, both public and private.”

      We ask, can a law which thus directly nullifies a vital con- jn bahk. stitutional provision, be itself constitutional ? It would be diffi- Dec'Term' cult, we think, to give a reason which would satisfy a plain,-:— honest man that it can be.

      J. W. Piatt, for Defendant in Error,
    submitted the case without argument.
   Birchard, C. J.

The first error assigned goes to the sufficiency of the declaration. The right to prosecute a suit upon the bond of an administrator is given by the 182d section of the act to provide for the settlement of the estates of deceased persons, (Swan’s Stat. p., 373,) which provides that after a claim has been allowed by the administrator, if he shall neglect upon demand by the creditor to pay the same, the creditor being by law entitled to the payment, the bond given for the discharge of the trust may be put in suit by the creditor. By this statute several things are required to entitle a party to maintain a suit in the name of the State for his use. Among others, neglect to pay upon demand made. The declaration does not allege that any demand was ever made of Chase, the administrator, nor does it aver any excuse for the omission.

This is a fatal objection to the declaration. . It is not a case of good title defectively set out, which might be cured by a verdict, but a case of defective title, that is bad even after verdict and on error. The demand by the creditor of payment from the administrator, and neglect of payment, is an essential element of the right of action against the obligors in the bond. It is in the nature of a condition precedent, made so by the statute, and therefore indispensable. Several other questions have been presented and ingeniously argued, but as the ruling on the above point is decisive of the case, it is unnecessary to notice them more particularly. The proper time to decide them .will be when a case arises which will make a decision of those points decisive of the controversy.

Judgment reversed.


author: Read, 3.

text:
    Mary Nolan vs. Samuel Urmston.
    A Bill of Review may be filed within five years from the day on which the decree sought to be reversed; was rendered3 the time tobe counted from the day of the rendition of the decree; and not from the first day of the Term.
    This is a Bill of Review, reserved in Hamilton County.
    The plea avers that the bill of review was not filed, nor was process in the cause sued out, or served, within five years after the rendering of the decree sought to be reversed.
    Replication, that the bill of review was filed within five years next after rendering the decree, &c.
    The facts are, that the decree in the. original case was rendered at the April Term, 1841, of the Supreme Court of Hamilton county. The Supreme Court commenced its session, in that year, on the second day of April.
    The bill of review was' filed on the 23d day of April, 1846; subpoena was issued February 22d, 1847, and served April 22d, in the same year.
    The decree was rendered and recorded, in the original case, at a late period in the Term, and after the 23d of April.

      Edward Senna, for Complainant in Review.

      Chase &f Ball, for Defendant.
   Read, 3.

The statute provides that a bill of review may be filed, “ at any time within five years next after rendering such decree.”

It is contended in support of the plea, that all judgments and decrees are of the first day of the Term. For some purposes, the statute gives them effect from the first day of the Term, although rendered at a subsequent day. But they would not have this effect, unless the statute, in express words, gave them such effect; or unless, for the purpose of justice, the fiction that the Term was but one day, was applied. But this is never permitted to prevail, when its application would cut off a distinct right.

The statute gives every party a right to file a bill of review, within five ■ years next after rendering such decree. A decree is not in fact rendered, until the day it is pronounced and entered ; from that day, within five years next after, a bill of review may be filed. Time is counted from the day on which the decree is pronounced or rendered, and the act to be done, is the filing of the bill. This is all; it is not necessary that service, of process should be had, or even that it should be issued, to bring the party in time. True, after the bill has been filed, and jurisdiction thus acquired, it should be prosecuted with due diligence. But in this case, the bill was filed in time, and process issued and returned to the next Term of the Supreme Court. This is diligent prosecution. Plea Overruled.