author:
Owen, J.
      McIlvaine, C. J.,

text:
    The State ex rel. Manix v. Auditor of Darke County.

      Revised Statutes, sections 877 and 929 et seq. — ■Statutory construction — County commissioners — Power to rescind order directing county auditor to issue warrant on treasurer — Mandamus proper remedy to compel auditor to issue warrant.

    1. The provisions of section 877 Revised Statutes, requiring county commissioners to publish notice of their intention to purchase any lands or erect any building, do not apply to proceedings under section 929 et seg., for the purchase of lands for a children’s home.
    2. Where the commissioners of a county have, in conformity with the requirement of section 929 Bevised Statutes, formally accepted a proposition for the sale and conveyance of lands for the erection thereon of a children’s home, accepted a duly executed deed therefor, delivered the same to the recorder for record, taken possession of the land, allowed the purchase price and ordered the county auditor to draw his warrant on the county treasurer for the amount of it, they have no power, in the absence of fraud, imposition, or failure of consideration, to rescind such order and direct the auditor to withhold his warrant for the sum so allowed.
    3. The adoption by the commissioners, in such ease, of a resolution in form rescinding their former action, and directing the auditor to withhold his warrant, furnishes no excuse to such auditor for his refusal to draw his warrant on the treasury in obedience to the original order.
    4. A writ of mandamus is a proper remedy in such case to compel the auditor of the county to draw his warrant, in favor of the grantor of the land, for the amount of the purchase price, as allowed by the commissioners.
    5. The right to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty and not upon his doubts; and where his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be.
    Mandamus.
    This is a proceeding in mandamus to compel the auditor of Darke county to issue his warrant upon the treasury of that county in favor of the relator for the sum of $13,898.90, to pay for a site purchased from him by the commissioners of that county for a children’s home.
    The commissioners having taken the necessary steps therefor, a proposition to establish a children’s home, and to raise, by taxation, the sum of $25,000 for the purchase of a site and the erection thereon of suitable buildings, was adopted by the electors of Darke county, at the April election, 1882. *
    The tax was levied, and the entire amount was collected before the commencement of this proceeding.
    On November 8, 1883, a proposition of the relator to sell about 120 acres of his .farm at $115 per acre was accepted by the commissioners, and the further consideration of the proposition was postponed to November 28,1883, when the commissioners resolved to purchase 120T/7r acres of his farm, at $115 per acre, and that the same should be used as a site for the home. It was further “ ordered that on presentation of a deed for said lands by said George W. Manix, the auditor of said county issue an order on the county treasurer for said purchase-money of $13,898.90.”
    A deed duly executed was thereupon delivered by Manix to the commissioners, who accepted it in open session, and caused it to be left for record on the same day with the recorder of the county, who soon thereafter recorded it. Upon the delivery and acceptance of the deed, a further order was made reciting these facts, and directing the auditor to draw his warrant on the treasury for the agreed purchase price of the farm. By arrangement between the commissioners and the relator, the latter was to remain upon and care for the land so purchased until the commissioners should require actual possession of it, when it was to be wholly surrendered to the latter.
    No notice such as is required by section 877, Revised Statutes, was given by the commissioners of their intention to make the purchase.
    On December 3, 1883, and after the transactions above' recited, one member of the board of commissioners retired, upon the expiration of his term of office, and his successor was qualified and entered upon the duties of his office.
    On December 15, 1883, the board of commissioners, as then constituted, adopted a resolution in form rescinding, and for the purpose of rescinding, the resolutions of November 28th, purchasing the farm, locating the site, and ordering the auditor to draw his warrant.
    On November 28, 1883, after the commissioners had ordered the auditor to issue his warrant, as above stated, legal proceedings were commenced to enjoin the issuing thereof, which were pending until the May term of the district court of Darke county, 1884, when they were finally dismissed. ' After such dismissal, the relator demanded of the defendant that he issue his warrant according to the order of the commissioners, which was refused.
    In August, and again on September 4, 1884, the relator notified the defendant that on September 9,1884, he would apply for an alternative writ herein, and on the 10th of that month such writ was allowed and issued.
    On September 9, 1884, the commissioners purchased another tract of land as a site for a children’s home, for which they paid the money in December, 1884.
    The issues joined were tried upon the pleadings and evidence, and the facts admitted or found by the court, so far as they are considered in the opinion, are stated above.
    The defendant maintained :
    1. That the failure to give the notice required by section 877 Revised Statutes was fatal to the validity of the proceedings of the commissioners.
    2. That the commissioners had full power to pass the rescinding resolutions of December 15, 1883, and abandon the contract.
    3. That the relator is not entitled to this extraordinary writ of mandamus, but has an adequate remedy at law.

      H. J. Booth, George B. Obey, M. T. Allen, and Anderson $ Chenoweth, for relator.

      J. B. Knox and Meeker Bowman, for defendant.
   Owen, J.

I. The commissioners proceeded under section 929 Revised Statutes. This and the following sections to 950,inclusive, provide a complete scheme for the organization, management, and support of children’s homes. The requirement of section 929 that, before the submission of the question of the purchase of a site and the erection of buildings to the electors of the county, notice of such election shall be published four weeks in two or more newspapers of the county, was complied with.

Section 877 Revised Statutes provides that: “ Before the county commissioners purchase any lands, or erect any building or bridge, the expense of which exceeds one thousand dollars, they shall publish and circulate hand-bills, and publish in one or more newspapers of the county, notice of their intention to make such purchase, erect such building or bridge, and the location of the same, for at least four -consecutive weeks prior to the time that such purchase, building, or location is made; and they shall hear all petitions for, and remonstrances against, such proposed .purchase, location, or improvement (68 Ohio L. 103, § 19; 63 Ohio E. 32, § 2).”

The defendant maintains that the failure to'comply with the requirements of this section is fatal to the validity of the action of the commissioners, and a complete answer to the petition of the relator. It is conceded that the prpvisions embodied in this section by the revision of 1880, were originally limited to the purchase of lands for, and the erection thereon of, court-houses, jails, and county infirmaries, and the building of bridges. The act of which these provisions were a part related to this subject alone. The only change effected by the revision is that the words, “ as provided by this act,” which originally occurred between the words “ bridge ” and “ the expenses,” are omitted. It is contended that the codifying commissioners intended, by the omission of these words from the new section 877, to enlarge its operation. No such requirement of notice as is now found in this section was to be found in any of the provisions relating to children’s homes prior to the revision of 1880.

In Allen v. Russell, 39 Ohio St. 337, it is said : “ Where all the general statutes of a state, or all on a particular .subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed.” In Comm'rs v. Board of Public Works, Ibid. 632, it is said: “Particular and positive provisions of a prior act are not affected by a subsequent statute treating a subject in general terms, and not expressly contradicting the provisions of the prior act, unless such intention is clear.”

As the chapter in which section 877 is found was a compilation and consolidation of numerous acts, the retention of the words “ as required by this act” would have been an absurdity. Their omission is accounted for upon other grounds than that of an intention to extend the application of the requirements of this section to subjects not originally within its operation. There is no warrant for the conclusion that, by the mere omission of these words, it was intended to apply section 877 to the provisions relating to children’s homes, which have been brought into the revision, also, without substantial change from their original form.

II. Was the auditor excused from issuing his warrant by the resolution of December 15th, in form rescinding the former order directing him to issue his warrant for the agreed purchase price of the farm? That the power of the commissioners to make and execute the contract for the purchase of the land of the relator was ample, is unquestioned. No considerations of public policy, fraud, or abuse of discretion are shown to have intervened to impair or qualify this power.

Before the attempted rescission of their former action by the commissioners, the proposition of the relator to sell his land had been accepted. The deed was duly executed and delivered, accepted by the commissioners, and by them delivered to the recorder to be recorded. Substantially and practically, possession had been delivered to and accepted by the commissioners. They had ordered the auditor to draw his warrant upon the treasurer for the'amount of the purchase-money. When this order was made, the power of the commissioners over the public funds was exhausted. In fact, every thing which either party to the contract could do toward its execution was accomplished. The right of the relator to his purchase-money was then complete. It was a right growing out of a contract which the other contracting party had abundant authority to make. It was unaffected by any considerations of fraud, imposition, or failure of consideration. It was not in the power of the commissioners, by any act of theirs, to divest him of the right which had so vested in the relator, or to impair any of the contract rights or obligations which flowed from the transaction. This is practically conceded ; but it is maintained that the order directing the auditor to withhold his warrant impairs no contract right of the relator, but simply affects his remedy. This position is untenable. The order of the commissioners directing the auditor to draw his warrant on the treasurer in favor of the relator was the only means by which they could fully perform and execute the contract on their part. By this act their power over the subject of the contract was expended and the rights of the relator fixed. To recall or rescind their action in this behalf would be a substantial and serious interference with a most important contract right of the relator.

A statute of Indiana authorized the county commissioners to purchase a “tract of land” for an asylum for the poor. The board provided one tract, and then undertook to purchase another. It was held that, “wdien the board have .acted and provided a farm for the occupancy of the poor of the county, their legislative power on that subject is exhausted.” Hanna v. Comm’rs of Putnam Co., 29 Ind. 170. See, in support of the same general principle, Nelson v. Milford, 7 Pick. 18; Hall v. Holden, 116 Mass. 172; New Orleans v. Church of St. Louis, 11 La. An. 244 ; Appeal of Comm’rs, 57 Pa. St. 452 ; Western Sav. Fund Soc. v. Philadelphia, 31 Pa. St. 175; Indianapolis v. Indianapolis Gas Co., 66 Ind. 396; State v. Board of Education, 35 Ohio St. 368; State v. Hastings, 15 Wis. 75.

The case of Ex parte Black, 1 Ohio St. 30, is relied upon by the defendant as authority establishing the power of the commissioners to rescind their action ordering the auditor to issue his warrant in favor of the relator. The distinction between that case and the case at bar will be found, upon a thoughtful examination, to be marked. The commissioners of Hamilton county had, in pursuance of a special act authorizing it, entered into a contract with Milton H. and Alfred M. Cook, partners, for the erection of public buildings for the use of the county. After the Cooks bad made substantial progress with the work, two of the commissioners, acting for the board, and without the assent of the third, ordered all work suspended. Black, the relator, who was the third commissioner, applied to this court for a writ of mandamus to compel the board of commissioners to proceed with the work.

The Cooks were not complaining. The writ was refused. Thurman, J., said: “Let the validity of the contract be assumed for present purposes, what claim does it give the relator to the writ he seeks? If any individual right has been violated by its breach, it is the right of the Cooks, and they ask for no mandamus. Were they to do so, it would possibly be a sufficient answer to say that they have no right under the contract to auy specific thing; that their whole compensation is to be in money; and that an action at law would afford them a plain and adequate mode of redress. But it is unnecessary to say what we would do were they the relators. It is sufficient that Black has no right to prosecute for them. . . . But it is said that this is to sanction a repudiation of the contract by the commissioners. It is not so. It is only to say that mandamus is not the proper remedy.” Why mandamus was not the proper remedy in that case, will be considered in another part of this opinion. The case is strong authority for the proposition that, in the present case, the contract rights of the relator must be faithfully and fully respected. That the rights of the Cooks under the contract could be impaired by the action of the commissioners is expressly repudiated. In that case the contract was but part executed. In the case at bar each party had done all that was in his power to perform it.

If we concede the right and power of the commissioners to change or modify their established plan for the erection of a home, still, as the contract with Manix was within their authority, and was fully performed, the title to the land, which is admitted to be good, became vested in the county, and they were clothed with abundant capacity to convey it to any person and appropriate its proceeds to the purposes of a home. Taylor v. Binford, 37 Ohio St. 262. But no facts have been made to appear upon this hearing, which justified the commissioners in the attempt to revoke or rescind the acts which they had done in performance of their contract.

In The State v. Com’rs of Henry County, 31 Ohio St. 211, the defendants, under the authority of a special act, levied and collected part of the taxes necessary for the building of a bridge. They then abandoned the purpose of building the bridge, and declined to make further levies. It was held that they will not be compelled by mandamus, at the suit of tax-payers, to build the bridge or make further levies for that purpose. The soundness of this case and of Ex parte Black, supra, are unquestioned. But let it be supposed that, in either case, a contractor had performed his contract, and the commissioners had allowed him his stipulated compensation, and directed the auditor to draw his warrant ’ therefor, would it be claimed that the power to suspend or abandon the prosecution of the work involved the right to rescind or revoke their allowance to the contractor and direction to the auditor? Surely, a proposition so at war with the inviolability of contract obligations will not be seriously contended for. If we are right in this conclusion, it follows that the commissioners could not impair the plaintiff’s rights by the purchase of other lauds for the purposes of a home.

III. Is mandamus the proper remedy?

In Ex parte Black, supra, it is very clear that mandamus Would not lie in favor of the Cooks. Their claim was one for money, and the amount was unascertained. If their claim had been ascertained by a judgment of court or allowance of the commissioners, it would have become the plain duty of the auditor to issue his warrant for the amount; and upon his refusal, mandamus would have been the appropriate remedy to compel him. Section 1021 Revised Statutes. The Comm’rs of Putnam County v. Auditor of Allen Co., 1 Ohio St. 322, is relied upon to sustain the position of defendant. In that case it was held that: “ Mandamus will not lie to compel the auditor of a county to draw an order on the county treasurer where the auditor has not the right to fix the amount to be drawn for, unless such amount has been ascertained and liquidated.” Caldwell, J., says: “ If the amount were fixed in the mode contemplated in the statute, or if it were liquidated by judgment, mandamus would be the proper remedy to compel the auditor to perform the ministerial act. of drawing the order; but until the amount is thus liquidated, we think the auditor can not be compelled to act; the time for his action has not arrived.”

It seems very clear that if an action at law would lie against the county for the agreed purchase price of the land, the only effect of such a proceeding would be to fix or determine the amount to which the relator is entitled. This has already been accomplished. After such a judgment it would still remain for the auditor to draw his warrant for the amount of it. Upon his refusal mandamus would clearly lie to compel his action. Such a proceeding would seem vain and idle. If the relator should invoke the remedy of specific performance, the commissioners could answer that they had already fully performed the contract on their part; and such answer would be abundantly sustained by the facts.

The defendant urges that another remedy for the relator is to apply for an order against the board of commissioners to vacate the entry of December 15th. If this entry was authorized, it is not easy to see how a court could order its vacation. If, on the other hand, it was unauthorized, it furnishes no excuse to the auditor for his refusal to obey the command of the first order.

It is not enough that the auditor may honestly entertain doubts concerning the propriety of the original order or the effect of the order of rescission. The light to a writ of mandamus to enforce the performance of an official act by a public officer depends upon his legal duty and not upon his doubts. Ryan v. Hoffman, 26 Ohio St. 109. If his duty is clear, its performance will not be excused by his doubts concerning it, however strong or honest they may be. It is not doubted that it is competent for an auditor to defend against an application for mandamus to compel him to issue his warrant on the treasurer upon an allowance and order of the commissioners, by showing that the order was wholly unauthorized, and that the commissioners had no authority to make it. State v. Yeatman, 22 Ohio St. 546. It is enough to say that in the present case no fact is shown which impeaches the original order of the commissioners or excuses the auditor from obeying its command. His duty to draw his warrant in favor of the relator is clear.

That mandamus is the proper remedy to compel the performance of that duty is abundantly established by authority. Commissioners of Putnam Co. v. Auditor of Allen Co., supra; Ryan v. Hoffman, supra; Smith v. Comm’rs, 9 Ohio, 26 ; State v. Burgoyne, 7 Ohio St. 153; Comm’rs v. Hunt, 33 Ohio St. 169 ; State v. Board of Education, 35 Ohio St. 368; State v. Wilson, 17 Wis. 687, 694; State v. Auditor of Delaware County, 39 Ind. 272.

“ The drawing of a warrant for the payment of a demand or claim, which had been duly audited and allowed by the proper authority, is regarded as a duty of a purely ministerial nature, and hence properly falling within the scope of mandamus. And wherever the demand has been definitely ascertained as prescribed by law, and the duty is plainly incumbent by law upon a particular officer of drawing his warrant upon the treasury for the amount due, a refusal to perform this duty will warrant the interposition of the courts by mandamus.” High Ex. Rem., § 104.

IY. Other defenses were relied upon by the defendant, but as they rested upon averments of fact which the proofs failed to establish, they are not considered in this opinion.

Peremptory writ awarded.

McIlvaine, C. J.,

dissenting. For my present purpose, in dissenting from the judgment of the court, I will concede the facts to be as claimed by the relator, which is conceding more, I think, than the testimony shows. The case may, therefore, be stated thus: The board of commissioners of

Darke county purchased of the relator a farm for the use of the county, as it was authorized to do. The relator executed and delivered to the commissioners in due form a deed of conveyance therefor. The board of commissioners accepted the deed, and thereupon directed the auditor of the county to draw a warrant in favor of the relator on the treasurer of the county for the amount of the purchase-money.

Before the warrant was drawn by the auditor, the board of commissioners assumed to revoke the authority of the auditor to draw it. After the authority to draw a warrant was revoked, and the revocation was entered on the journal of the commissioners, the auditor, on demand, refused to draw the warrant in favor of the relator, and thereupon this proceeding was commenced to compel the auditor, by mandamus, to draw the warrant.

It is conceded that the auditor, without authority from the commissioners, had no power to draw the warrant. It therefore follows, that a controlling question in this case is as to the power of the commissioners to revoke the authority of the auditor to draw the warrant. That it has been revoked, if the board of commissioners had the power of revocation, is not disputed.

. It is true that between the date that the order to draw was given to the auditor and the date that it was revoked, the term of office of one of the commissioners had expired and his successor had been qualified, but it appears to me so palpably plain that the power of the board was not thereby controlled, that the fact has received all the attention it deserves, iu the mere statement of it.

As to the power of the commissioners to revoke the order granting authority to the auditor to draw a warrant on the treasurer, although it is not given in express terms by the statute, is nevertheless necessarily implied from the nature of the powers granted — the power to purchase. Let us suppose that after the order on the auditor to draw, as iu this case, the board of commissioners had discovered that the relator’s title was worthless, or that the premises were subject to liens, who could doubt the power or propriety of the purchaser to stop the payment of the purchase-money ? If the purchaser were a natural person, surely no one would doubt the power. Every reason for its implied existence is present when the purchaser is a public agent, using public funds in making the purchase. In such case the existence of the power is essential to prevent public loss.

I admit that the exercise of such power may be abused, but this admission does not imply that the power does not exist. But I do deny that the auditor is the judge to determine whether the power is properly or improperly used in any given ease.

If the power of revocation in this case has been improperly used by the board of commissioners, the courts are open to redress, in the due and ordinary course of law, ariy wrong which the relator has suffered. But to my mind, a plain duty under the law does not rest upon the auditor to draw his warrant upon the treasurer for the payment of the purchase-money which may or may not be due the relator. And unless the duty of the auditor to do so be plain, this proceeding should be dismissed.

I -wish also to express my unqualified dissent to the proposition that the right of the relator to demand and receive the purchase price of this sale is res adjudieata — that the order of the commissioners upon the auditor to draw a warrant on the treasurer therefor in favor of relator has the force and effect of a judgment at law, which can not be collaterally impeached or modified by the commisioners after the term at which it was made. I deny that the order of the board of commissioners has any such force and effect. Instead of acting judicially in the matter, it was simply acting as a contracting party, not in making, but in executing the contract. And the order of revocation was not a rescission of the contract, but a refusal to execute it. If the right of the auditor to pass upon grounds of revocation did not exist, the ground upon which the revocation was made is immaterial in this action.

Johnson, J., concurred in the dissenting opinion.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    The State v. Shaw.

      Revised Statutes, section. 550 — Change of venue — Duty of clerk, whether judicial or ministerial — Discretion—Mandamus to compel action by clerk — Right to set up as defense denial of interest of judge.

    1. /Where, under section 550 of the Revised Statutes, the required affidavit for a change of venue is filed with the clerk of the court of common pleas, the duties of the clerk in regard to such change of venue are ministerial, and not judicial.
    2. When a party complies with the requirements of section 550, for a change of venue, and the affidavit shows the fact of the interest of the judge of the court in the event of the cause, proceeding, motion, or matter pending before the court, the clerk of the court has no discretion in the case, but he must make the required order and certificate for such a change.
    3. When a proper affidavit has been filed under section 550, should the clerk refuse to act as required by that section, he may be compelled So to act by proceedings in mandamus.

      4. When proceedings in mandamus have been brought against a clerk of the court to compel him to do what section 550 requires of such clerk for a change of venue, and which he has refused to do, he can not set up as a defense of his refusal, and have tried in such case, a denial of the fact of affiant’s statement, that the judge of the court was interested in the event of the cause, proceeding, motion, or matter pending before the court; the statute as to him is imperative, and the falsity of such statement would not justify his refusal; and the truth or falsity of the fact may be tried by the parties when the change is made.
    Mandamus.
    .This is an action by the state of Ohio on the relation of Thomas Q. Ashburn against A. B. Shaw, clerk of the court of common pleas of Olermont county. In the petition the plaintiff avers that a cause is pending in that court wherein one Stephen Pike is plaintiff and the Cincinnati and Eastern Railway Company and the relator and others are defendants ; that in that cause a receiver has been appointed, and a sale of the property of the railway company and a marshaling of liens and assets is asked for and resisted, and many issues are contested; that the company is a corporation organized under the laws of Ohio, subsequent to April 9, 1852; that the company is insolvent and its property insufficient to pay its debts, and the statutory liability of its stockholders will, in all probability, be enforced; that Hon. D. W. C. Louden, one of the common pleas judges of the first subdivision, wherein the county of Clermont is situated, has made all the orders, interlocutory and final, in the cause, and all the proceedings in the .cause up to that time had been before him; that on April 8, 1885, pursuant to the statute in such case made and provided, there was filed with the defendant in that cause, an affidavit which is as follows :
    “ Personally appeared before me, a notary public within and for the county and state aforesaid, C. B. Matthews, who, being duly sworn, says in this cause he is counsel for T. Q. Ashburn and R. M. Shoemaker, trustees, parties defendant herein. Affiant further says that D. W. C. Lou-den, judge of the common pleas court within and for the first subdivision of the fifth judicial district of Ohio, is interested in this cause and disqualified to sit herein by reason of being the owner of shares of the capital stock of the defendant, the Cincinnati and Eastern Railway Company. Affiant further says there is no” other judge of the court of common pleas in said subdivision who is not so disqualified, and further affiant saith not.
    C. B. Matthews.”
    Which affidavit was duly attested April 6, 1885; that the allegations of the affidavit are true, and D. W. C. Lou-den is disqualified to sit as judge in the cause, and the matters and things set up in the affidavit first came to the knowledge of the relator, or his counsel, on April 4, 1885; that, after filing the affidavit, the relator requested the defendant to transmit the cause to an adjoining-county as required by law, but the defendant refused, and still refuses, so to do, or to do any thing required by law to carry out the request or transmit the cause; and plaintiff prays that a writ of mandamus may issue commanding the defendant to perform the duties imposed upon him by law in the premises.
    In his answer the defendant admits the most of the averments of the petition'.and that he has wholly refused, and still refuses, to transmit the cause to an adjoining county, but he “ denies that I). W. C. Louden is a stockholder in the Cincinnati and Eastern Railway Company or is interested in any manner or form in the event of the cause or disqualified to sit therein ;” and he denies that there is no other judge in the subdivision not so disqualified, and he denies that the matters and things in the affidavit first came to the knowledge of the relator on April 4, 1885. And for an additional answer, the defendant avers that in the cause pending in the court of common pleas “there have been filed the affidavits of "William Mansfield and M. Jamieson, who, upon oath, say of their own knowledge, that Hon. I). W. C. Louden is not a stockholder in said railway company nor interested in the event of said cause, nor disqualified to sit therein;” and “that Hon. A. T. Cowen, one of the judges of said court, is not interested in the event of said cause.”
    To the defense the plaintiff demurs. The affidavits were filed in this case, and an affidavit of D. W. C. Lou-den is filed in which he says a certificate of stock in said railway company was sent to him, and that he “ did not return it to the company.”
    C. JB. Matthews, Bellamy Storer, and B. A. Harrison, for relator.
    We submit that sections 550, 551, and 552 of the Revised Statutes, prior to their amendment February 7, 1885 (82 Ohio L. 24), control this application. See Revised Statutes, section 79.
    If.the act of 1885 does apply, no mere alteration of phraseology or omission of words should be construed as working any change in meaning. Ash v. Ash, 9 Ohio St. 387; Van Camp v. Board of Education, 9 Ohio St. 418; Conger v. Barker, 11 Ohio St. 13; State v. Comm’rs, 36 Ohio St. 330.
    Provisions by statute for a change of venue are to be liberally contraed. Hilliard v. Beattie, 58 N. H. 112.
    The ownership of stock in a corporation which is a party disqualifies a judge from sitting. Gregory v. C. C. & C. R. Co., 4 Ohio St. 675. And we call attention to the following leading cases, in which all the authorities, and the reasons for holding such a disqualification, are considered. Dimes v. The Canal Props., 3 Ho. Lords’ Gas. 759; Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 2; Newcome v. Light, 58 Tex. 141; Peninsular Ry. Co. v. Howard, 28 Mich. 25.
    No case will be found which allows any discretion to be exercised by a ministerial officer in complying with a demand to remove a cause. Wherever any discretion has been held to exist it has been in cases where the statute either made it discretionary with the court, or by plain implication left the question to be heard and decided by a court on the weight of the evidence. Cook v. Baxter, 27 Ark. 480; Coit v. Elliott, Judge, 28 Ark. 294; Snow, Ex parte, 28 Ark. 471; Cook v. Loftin, 31 Ark. 567; People v. Flagley, 22 Cal. 35; Livermore v. Brundage, 64 Cal. 299; Clark v. The People, 2 Scam. 117; McGoon v. Little, 2 Gilman (Ill.) 42; Commercial Ins. Co. v. Mehlman, 48 Ill. 316; Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106; Seehawer v. Milwaukee, 39 Wis. 409; Carpenter v. Shepardson, 43 Wis. 406; Bachmann v. Milwaukee, 47 Wis. 437; Smith v. State, 1 Kan. 371, 390, 391; Godbe v. McCormick, 1 Montana, 105 ; New Mexico v. Kelly, 2 N. M. 300; Allerton v. Eldridge, 56 Iowa, 712; Bannigan v. Railway Co., 58 Iowa., 671; Corpenny v. City of Sedalia, 57 Mo. 88; Hughes v. The People, 5 Col. 450.
    The leading case of Witter v. Taylor, 7 Ind. 110, has been followed in that state by a long line of authorities.
      Shaw v. Hamilton, 10 Ind. 182; Shattuck v. Myers, 13 Ind. 48; Mershon v. The State, 44 Ind. 598; Fisk v. Turnpike Co., 54 Ind. 479; Muggins v. The State, 66 Ind. 350; Krutz v. Howard, 70 Ind. 174; Shoemaker v. Smith, 74 Ind. 76.

      Ramsey, Maxwell § Matthews and Hoadly, Johnson $• Colston, for defendant, filed no brief.
   Follett, J.

The relator is a party of record in the case of Stephen Fike against the Cincinnati and Eastern Railway Company, and Thomas Q. Ashburn and others. The defendant, A. B. Shaw, is the clerk of the court where that suit was pending, and where relator filed the affidavit of C. B. Matthews, his counsel in that suit, for a change of venue.

The statute governing relator’s rights and the defendant’s duties as such clerk, is section 550 of the Revised Statutes, and is as follows : “ In every instance where a judge of the court of common pleas is interested in the event of a cause, proceeding, motion, or matter pending before the court in any county of his district, ... by reason of interest, on affidavit of either party to such cause, proceeding, motion, or matter pending, or his counsel, showing the fact of such interest, the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause, motion, proceeding, or matter pending, in which such judge of the court of common pleas . . . is interested, . . . shall be transmitted . . . if in the court of common pleas, then to the clerk of the court of common pleas of an adjoining county of another subdivision, where practicable, of the same district: where not, then to an adjoining county of another district,” etc. When the affidavit is not one “showing the fact of such interest,” “.in the event of a cause, proceeding, motion, or matter pending before the court,” the clerk is not required to act. The State v. Winget, 37 Ohio St. 153.

It is not claimed that the affidavit here is defective in form or statement, if the allegations were true; but the defendant denies the truth of some of the allegations of the affidavit, and thus seeks to justify his refusal to do what is required of him to change the venue.

“ The interest which requires the removal of a cause, is a pecuniary interest of the judge in the event or result of the trial.” The State v. Winget, supra, 153.

That such an interest should disqualify a judge to act in such a case, is fully established. Washington Ins. Co. v. Price, 1 Hopk. Ch. 2; Livermore v. Brundage, 64 Cal. 299 ; Gregory v. C. C. & C. R. R. Co., 4 Ohio St. 675.

And when the affidavit of a party or of his counsel shows “ the fact of such interest,” has the clerk of the court any judicial or quasi judicial duties in the matter? He has such duties only as are given by statute. Generally he records the doings of the court or judge; but here the judge must not act, and the statute requires that “the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause . . . shall be transmitted to the clerk of the court of common pleas of an adjoining county,” etc. There is nothing here for the clerk to try; and there is no reason why he should hear testimony in the matter, or receive counter affidavits. The clerk, on receiving the affidavit of the party or of the counsel of the party — no other one can make the necessary affidavit under the statute — must enter the order to transfer the papers and the cause.

In Witter v. Taylor, 7 Ind. 110, the court say: “ If the affidavit for a change of venue, in a civil cause, is in substantial conformity to the statute, the duty of the court to grant it is imperative. Counter affidavits are not admissible; nor can the personal knowledge of the judge in relation to the facts sworn to, be allowed to affect the application.” In that state the statute was: “ The court, in term, or the judge, in vacation, may change the venue of any civil action, upon the application of either party, made upon affidavit, showing one or more of the following causes, viz.,” etc. There the application under the statute must be supported by the affidavit of the party in person. And in Shattuck v. Myers, 13 Ind. 46, the court say upon a proper application: “ The court has no discretion,” but that, “ the affidavit of his attorney will not compel the change,” but that “ it is within the sound, legal discretion of the court to grant or refuse a change of venue upon application and affidavit by a person not a party to the record.” If it is imperative upon the court, a fortiori, it will be imperative upon the clerk.

In Shoemaker v. Smith, 74 Ind. 71, the court held that a rule of court can not impair this right. The statute must govern. See also, Herbert v. Beathard, 26 Kan. 746.

In Allerton v. Eldridge, 56 Iowa, 709, Adams, C. J., said: “We may say further that, if we could see no reason whatever in the nature of things for a change in this case, we should hesitate, in view of the imperative language of the statute, to hold that a change should not be granted where the statute providing for a change had been fully complied with.” See also, Corpenny v. Sedalia, 57 Mo. 88; Taylor v. Gardiner, 11 R. I. 182.

In Knickerbocker Ins. Co. v. Tolman, 80 Ill. 106, the court say: “ The fact that the party seeking the change may have no merits, does not change the rule. The right to a change, upon complying with the statute, is secured to him by an express provision of the statute, and the courts have no power to repeal, modify, or mitigate any requirement of the statute.” Mr. Justice Walker said : “ Inasmuch as the granting of a change of venue in civil cases is not discretionary, the court below erred in not allowing the motion. This is the requirement of the statute, and such has been the uniform construction given to it.” There “ the application must be made by a party to the record, and the petition must be verified by his affidavit.” See Crowell v. Maughs, 2 Gilm. (Ill.) 422.

But the defendant claims that the judge was not a stockholder of that company, and that the affidavit is false. That question the parties to that cause may try after the transfer is made. The defendant can not rightly set up in this case, to defeat the transfer of that case, a new fact that defeats the transfer, and that he had no right at first to consider. If this could be done by the clerk of the court, he would possess a dangerous power to obstruct the causes in that court, and he might burden this court. We have regarded only so much of the pleadings in this case as the parties could rightly set up; and the majority of the court think the defendant has shown no reason why he has not done what section 550 requires him as clerk to do in the case, and the demurrer is sustained.

The defendant claims that the peremptory writ of mandamus should not issue in this ease, and refers to The State v. Commissioners, 26 Kan. 419, where it is held: “The writ of mandamus is not wholly a writ of right, but .lies to a considerable extent within the sound judicial discretion of the court where the application is made, and no court should allow a writ of mandamus to compel a technical compliance with the letter of the law where such compliance will violate the spirit of the law.” We agree with that, and also ask a careful reading of another statute, section 6741 of the Revised Statutes, which provides: “ Mandamus is a writ issued in the name of the state, to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.” This defendant is a person on whom the law specially enjoins as a duty, resulting from his office, the performance of an act which he refuses to perform. Mandamus is the appropriate remedy to compel clerks of court to perform their official duties, and there is no other adequate and specific means of relief. See High Ex. Rem., §§ 17, 24, 80-82, and cases cited.

Mandamus does not control discretion, but compels official action.

The defendant has refused to perform a specific official act, and a

Peremptory writ will issue in accordance with the prayer of the petition.

McIlvaine, C. J., and Owen, J., dissent from the fourth proposition of the syllabus.


author: Okey, J.

text:
    Cline v. The State.

      Instruction to jury — Assumption in, of existence of disputed fact, erroneous— Criminal law — Intoxication as defense — Evidence of, how far admissible — Malice—Necessity of showing in prosecution for maliciously shooting.

    1. Where a fact, material to the issue, concerning the existence, of which there is conflict in the evidence, is assumed by the court, in the charge to the jury, to be fully established, the province of the jury is invaded, and prejudicial error is shown.
    2. Intoxication is no defense to a prosecution for crime; but in some cases evidence of intoxication is admissible to show that no crime has been committed, or to show the degree or grade of a crime; and in a prosecution for maliciously shooting with intent to wound, evidence that the defendant was so much intoxicated that he could not form or have such intent, is admissible.
    3. In a prosecution for maliciously shooting with intent to wound or kill, it is error to charge that the defendant should be found guilty of such felony, if he might have been properly convicted of manslaughter had death resulted from the shooting.
    Error to the Court of Common Pleas of Athens county.

      JE1. Tompkins, for plaintiff in error.

      J. Lawrence, attorney-general, and JD. L. Sleeper, prosecuting attorney, for the state.
   Okey, J.

Cline was tried in the court of common pleas of Athens county, at the February term, 1885, for maliciously shooting Kinkead, the indictment charging in the first count an intent to kill, and in the second count an intent to wound. The verdict was guilty upon the second count, and not guilty upon the first, and • the prisoner was sentenced to the penitentiary. This is a petition in error to reverse the judgment.

The Revised Statutes define the crime and prescribe the punishment, and also provide that upon such an indictment there may be a conviction for an assault. Sections 6820, 6823, 7316. And see Barber v. The State, 39 Ohio St. 660 ; Mitchell v. The State, 42 Ohio St. 383.

1. On the trial it was material, and indeed essential to a conviction for felony, to show that the prisoner was actuated by malice in shooting Kinkead. Previous threats of the prisoner that he would kill Kinkead afforded not only competent, but potent evidence for such purpose. Evidence of such threats was offered; but, on the other hand, testimony was given tliat no such threats had been made. It was therefore for the jury to determine whether such threats had been made. The court, however, assumed the province of the jury by saying that “ the jury should also consider the threats made by the defendant.” This was as well pi’ejudicial as erroneous.

2. Evidence was offered showing that the prisoner was intoxicated at the time of the shooting. The court charged that “ if the jury should find that the defendant was intoxicated to such an extent as to deprive him of his reason, so as to render him incapable of reasoning or of exercising his reasoning faculties, the jury will find the defendant not guilty of intent to kill, as charged in the first count of the indictment. If the jury should find that the defendant was intoxicated to such an extent as to deprive him of his reason, and render him incapable of forming an intent, the jury may proceed further, and consider whether or not the defendant is guilty as charged in the second count.”

In order to find the prisoner guilty of the felony charged in the second count, it was necessary to prove that the prisoner shot Kinkead with the specific intent of wounding him (Barber v. The State, supra); and no reason can be given why evidence of intoxication might not be considered with reference to the felony charged ■ in the second count, if it could be considered with reference to the felony charged in the first count. In making such distinction the court erred. The real question, therefore, is, whether in such a case it is competent to show that the defendant was, at the time of the shooting, intoxicated to such an extent that he could not form or have a purpose or intent to kill or wound.

Where a person having the desire to do to another an unlawful injury, drinks intoxicating liquors to nerve himself to the commission of the crime, intoxication is held, and properly, to aggravate the offense; hut at present the rule that intoxication aggravates crime is confined to cases of that class. The rule is well settled that intoxication is not a justification or an excuse for crime. To hold otherwise would be dangerous to, and subversive of, public welfare. But in many cases evidence of intoxication is admissible with a view to the question whether a crime has been committed, or where a crime, consisting of degrees, has beeu committed, such evidence may be important in determining the degree. Thus an intoxicated person may have a counterfeit bank-bill in his possession for a lawful 'purpose, and intending to pay a genuine bill to' another person, may, by reason of such intoxication, hand him the jcounterfeit bill. As intent, in such case, is of the essence of the offense, it is possible that in proving intoxication you go far to prove that no crime was committed. Pigman v. The State, 14 Ohio, 555. So, where the offense charged embraces deliberation, premeditation, some specific intent, or the like, evidence of intoxication may be important, and it has frequently been admitted, Ib.; Nichols v. The State, 8 Ohio St. 435; Davis v. The State, 25 Ohio St. 369 ; Lytle v. The State, 31 Ohio St. 196. The leading case of Pigman v. The State has been repeatedly cited with approval (People v. Robinson, 2 Park. 235; The People v. Harris, 29 Cal. 678; Roberts v. The People, 19 Mich. 401; The State v. Welch, 21 Minn. 22; Hopt v. The People, 104 U. S. 631; The State v. Johnson, 40 Conn. 136), and no doubt the law upon the subject is correctly stated in that case, and that the rule as there expressed - is humane and just; but there is always danger that undue weight will. be attached to the fact of drunkenness, where it is shown in a criminal case, and courts and juries should see that it is only used for the purpose above stated, and not as a cloak or justification for crime. See also U. S. v. Drew, 5 Mason, 28; s. c.,1 Lead. Crim. Cas. (2 ed.), 131, note; Reg. v. Davis, 14 Cox C. C. 563; s. c., 28 Moak Eng. Rep. 657, note; Lawson on Insanity, 533-768, where all the cases are collected relating to the admissibility and effect, in criminal cases, of proof of intoxication. In saying, as the court virtually said, that proof of intoxication could not be considered with respect to the felony charged in the second count of the indictment, there was prejudicial error.

3. The court further charged: “ If the jury find from the evidence that the defendant was intoxicated, as herein-before set forth, and they should also find that the defendant shot Kinkead in such manner that if death had ensued it would have been manslaughter, they should find the defendant guilty.” The jury would understand from such a charge, and no doubt the judge desired to be understood as saying, that if death had resulted and the crime would have been manslaughter, the defendant might, death not resulting, be found guilty of the felony charged in one of these counts. But to convict of manslaughter it is not necessary to show either malice or an intent to kill or wound. It is sufficient to show an unlawful killing. To convict of the felony charged in this indictment, it is necessary to show malice and an intent to kill or wound. The charge was manifestly erroneous and plainly prejudicial.

Judgment reversed.


author: Owen, J.

text:
    Fravert v. Finfrock.

      Township road — Proceedings to establish — Record should show notice of presentation of petition — Sufficiency of notice.

    1. It is essential to the validity of proceedings by township trustees to establish á township road, that the record shall show either that the required notice of the presentation of the petition was duly given, or that the trustees were satisfied that it was. Ferris v. Bramble, 5 Ohio St. 109, approved and followed.
    2. Where the record fails to show more on the subject of notice than: “Petition presented to the township trustees on the 26th day of April, 1877, after having notice up in three public places in the township for thirty days,” it is error for the trustees to proceed to order the establishment of the road, for the reason that there is no sufficient showing in the record, either that the proper notice was given or that the trustees were satisfied that it had been given.
    Error to tbe District Court of Shelby county.

      W. J. Gilmore and J. S. Conklin, for plaintiff in error.

      G. A Marshall, for defendant in error.
   Owen, J.

The original proceeding in the court of common pleas was a petition in error to reverse an order of the trustees of Cynthian township, Shelby county, for the laying out, establishing, and opening of a certain township road across the plaintiffs’ lands.

The provisions under which the proceedings were had provides(Sec. XXX, S. & C. 1296) for petitioning the township trustees for a road, “after giving thirty days’ previous notice thereof, by advertisement posted up at three public places within said township, setting forth in said advertisement the time when such petition is to be presented, the place of beginning, intermediate points, if any, and place of termination of said road.” Sec. XXXI provides: “ That on such petition being presented to the trustees, and they being satisfied that proper notice has been given as aforesaid, they shall” proceed to act nipón the petition.

The record from which it is claimed that error appears recites: “ Petition presented to the township trustees on the 26th day of April, 1877, after having notices up in three public places in the township for thirty days, and the trustees act as follows: Do grant the prayer of said petition, and appoint the following viewers: etc. . . „ (Report of viewers.) . . . Ve, the undersigned, viewers, assess no damages on account that there was no description given in any of the claims handed to us.” (Signed by the viewers.)

The road was ordered to be established.

The foregoing presents so much of the record of the proceedings as it is claimed tends to show notice of the presentation of the petition, etc., or appearance of the plaintiffs in error in the road proceedings. It is clear, that no apfpearance is shown by these recitals. The court of common pleas affirmed the order of the trustees, and the district court affirmed the judgment of the common pleas court. To reverse these orders and judgments the present proceeding is prosecuted.

The plaintiffs in error maintain that error to their prejudice appears upon the face of the record of the proceedings of the trustees, (1) in appointing viewers without the notice of presenting the petition required by the statute; and (2) in establishing the road without compensation for the land appropriated.

This court has held that: “ It is essential to the validity of the proceedings of the township trustees in ordering a view and the establishment of a township road, that the record should show either that the notice of the application required by the statute was duly given, or that the trustees, before ordering the view, were satisfied that such notice had been given, the notice being a step which is essential and precedent to the exercise of the power.” Ferris v. Bramble, 5 Ohio St. 109.

It is not to be supposed that, by the above declaration of the law, this court intended to announce a new principle, or one at war with the well established rule which requires courts or quasi judicial tribunals of limited and special jurisdiction to follow strictly the requirements of the law under which they are proceeding in all matters which are essential to their power to act, and that where private property is to be taken or affected by virtue of special statutory provisions, the latter are to be strictly observed and followed. Nor are we to construe it as a qualification of the well settled rule that such tribunals are not clothed with power to determine for themselves the questions upon which their jurisdiction depends. The proceedings in the case cited were had in 1850, under a road act passed March 11, 1831, which in terms provided: That on such petition being presented to the trustees, and they being satisfied that proper notice has been given as aforesaid,” etc., shall proceed. Swan’s Stats. (1841), 804; 29 Ohio L. 365.

The court simply followed the language of the statute governing the'proceedings under review and evidently intended to go no further than to declare that the requirements of the statute should be strictly complied with.

The record of the proceedings of the trustees now under review recites: Petition presented to the township trustees on the 26th day of April, 1877, after having notices up in three public- places in the township for thirty days, and the trustees act as follows: ” etc.- Does this recital show either that the notice which the statute required was given, or that the trustees were satisfied that it had been ?

There is nothing in this record to indicate the form or substance of the notices. There is nothing to support the assumption that the trustees were satisfied that the notices were sufficient, unless we presume that they would not have proceeded to-establish the road unless or until they were so satisfied.'

The application of such a rule would be to ignore all distinctions between courts of special and limited and those of general jurisdiction. If such a presumption is to obtain, it would dispense with the necessity of any recital concerning the notice. The notice is required to advise all who may be concerned in the subject of it: (1) that a petition for a road is to be presented to the trustees; (2) of the time of its presentation; (3) of the place of beginning of the road; (4) its intermediate points, if any; and (5) the place of its termination. None of these requirements appear to have been observed.

The reasoning of the eminent counsel for • plaintiffs in error is: How can this record be sustained without doing -violence to authority and all sound principle ? To be sure it says: ‘ After having notices up in three public places in the township for thirty days.’ Notices of what? Why say in three public places, or in the township, or for thirty days ? Is any one or all of these facts more' important or more clearly required by the statute than a description of the line of the road or of the time of presenting the petition? If it is good without all, why would it not be without any of these statutory requisites, each one being as important and as explicitly required as any of the others.

There is no attempt to cure the defect by even a finding or an expression of opinion by the trustees that the law in regard to notice had been complied with. Surely, the court will not be asked to act on a mere conjecture that the trustees would not have proceeded to act had they not found that the law in this respect had been fulfilled. As well might the court be asked to so conjecture had there not been a syllable on the subject in the record.”

This view seems unanswerable. The only ground for the assumption that the notice was what the law required is to be found in the presumption that the law was observed. This ground is untenable. “ The law in regard to all special proceedings in derogation of private rights requires the jurisdiction and regularity to he manifest on the face of the record, and no substantial omission can be supplied by presumption.” Campbell, C. J., in The People v. Brighton, 20 Mich. 71.

The giving of the notice in the form and manner substantially as required by the statute was prerequisite and essential to the exercise of the power conferred upon the trustees, and they erred to the prejudice of the plaintiffs in ordering the establishment of the road in question without such notice or a showing in the record that they were satisfied it had been given. We are supported in this conclusion by the following authorities: Edmiston v. Edmiston, 2 Ohio, 253; Ludlow v. Johnson, 3 Ohio, 562; Anderson v. Com’rs, 12 Ohio St. 644; Beebe v. Scheidt, 13 Ohio St. 415; Milton v. Wacker, 40 Mich. 229; Shue v. Highway Com’rs, 41 Mich. 638; Cool. Con. Lim. *528.

In Frevert v. Finfrock, 31 Ohio St. 621, this court, upon the facts of that case,' held, in reviewing a proceeding to enjoin the opening of a road through the plaintiffs’ lands, without the payment or tender of compensation or damages for lands taken, that injunction would not lie, but that, ordinarily, the remedy in such case was by error or appeal. There is nothing in the syllabus, the statement of facts,'or opinion in that case which is in conflict with the conclusion announced in the present case.

Judgments and order below reversed, and proceedings of the trustees dismissed.


author: Johnson, J.

text:
    Ballard v. State.

      Arrest without warrant — Power of marshal of municipal corporation to make. — Revised Statutes, sections 1849, 7129.

      1. In determining the power of the marshal of a municipal corporation to ' arrest without warrant, section 1849 of the Itevised Statutes, which makes it the duty of that officer to arrest any person “ in the act of committing any offense,” etc., and section 7129 of same statutes, which makes it the duty of certain officers named, including such marshal, “to-arrest and detain any person found violating any law,” etc., should be construed together to determine the extent of such power.
    2. Under a proper construction of these sections, a marshal of a municipal corporation is authorized, without warrant, to arrest a person found on the public streets of the corporation carrying concealed weapons contrary to law, although he has no previous personal knowledge of the fact, if he acts dona fide, and upon such information as induces an honest belief that the person arrested is in the act of violating the law.
    ‘ Motion for lebve to file petition in error to the Court óf Common Pleas of G-reene county.
    A great number of errors are assigned, all of which have been passed upon by the court, but only one js reserved for report.
    The indictment was for murder in the first degree, in killing one John T. Yan Boren, marshal of the village of Wilmington, Clinton county, and on change of venue the accused was convicted and sentenced for manslaughter in Greene county.
    Van Doren, as marshal, was in the act of arresting Ballard for carrying concealed weapons, when he was shot by the latter.
    The marshal had no warrant. There was resistance by Ballard and a struggle, during which, by the discharge of Ballard’s pistol, Van Doren was killed. Whether the arrest without warrant was authorized, and under what circumstances one thus arrested may defend himself, were questions directly involved by the evidence.
    Upon these questions the court charged as follows :
    “In reference to the lawfulness or unlawfulness of the alleged arrest or attempt to arrest, I say to the jury that, by the laws of Ohio, the marshal of a village is bound to arrest any person in the act of committing any offense against the laws of the state, and forthwith bring such person before the mayor, or other competent authority, for examination or trial.
    “According to the literal reading of the statute, the lawfulness of the arrest depends upon one thing alone, namely, the fact that the person arrested is at the time of the arrest in the act of violating a law of the state; and it is claimed by the state that the belief, or the knowledge, or the suspicion of the officer making the arrest, as to the guilt or innocence of the party arrested, does not affect the question and is immaterial.
    “ The state admits that deceased had no warrant for the arrest of defendant, and no claim is made that defendant Was-committing or had committed a felony.
    “It is claimed by the state that, at the time of the alleged arrest, deceased was marshal of the village of Wilmington, in Clinton county, Ohio; that the defendant was going about the streets of said village with a pistol concealed upon or about his person; that he was carrying such pistol unlawfully, that is to say, he was engaged in no lawful business, calling, or employment, and the circumstances in which he was placed were not such as would justify a pru-dent man in carrying a pistol for the defense of his person, property or family, and that deceased, learning of this, attempted to disarm him first, and, failing in that, put him under arrest for carrying such weapon concealed upon or about his person, and having so put him under arrest, was proceeding to take him before the proper officer for such legal proceedings as might be warranted by law, when the homicide occurred.
    “If the jury are satisfied that these facts are proven, then the arrest was lawful, and the defendant ought quietly to have submitted to it.
    “ The point is made by defense that unless the officer has absolute knowledge that an offense is being committed against the laws of the state, he has no right to arrest without a warrant for a misdemeanor. This claim is not tenable. If the person arrested is, as a matter of fact, in the act of committing such offense, at the time of the arrest, and the officer has information or kno'wledge which induces him to reasonably believe, and at the time of the arrest he does believe that such offense is being committed, and the arrest is made on that account, this is sufficient.
    “ The charge in the Weymouth ease has been read as to this point, and referred to in your hearing, in which the judge told the jury, very correctly, that the officer must have personal knowledge of the offense and the offender.
    “This, as I say, was good law for that case, because in that-case the claim was not made as it is here, that, as a matter of fact, the defendant, at the time of the arrest, was committing any offense, nor was there any evidence, as I understand the case, to support such claim.
    “ The state there claimed that the accused had been violating an ordinance of the village of Cedarville, but the officer was not present during the commission of the unlawful act, and it was fully completed before the alleged arrest was made.
    “If the officer.has no. knowledge or information as to the commission of the- offense, I say to the jury •the arrest would be unlawful, even though the party arrested were at the very time of the arrest in the act of committing the offense for which he was arrested.
    “ The state claims that if an officer, at a venture, without any information, knowledge, or suspicion on the subject, arrests a man without a warrant for unlawfully carrying a pistol concealed on his 'person, and it turns out as a matter of fact that the party arrested is, at the time of the arrest, committing the offense for which he is arrested, the officer is protected, and the arrest is lawful. This claim, I say to the jury, can not be allowed. In such case, to make the arrest lawful, the officer should believe that the party arrested is guilty of the offense'for which the arrest is made, and the belief should be based upon such facts or such information, or both, as might reasonably induce such belief.”
    Counsel for defendant excepted to this charge on the ground that it did not correctly state the law of arrest without warrant, nor the right of the person arrested to defend himself in such a case.

      C. H. Blackburn and Smith § Savage, for the motion.

      James Lawrence, attorney-general, contra.

   Johnson, J.

By section 7129 Revised Statutes : “A sheriff, deputy sheriff, constable, marshal or deputy marshal, watchman or police officer, shall arrest and detain any ■person, found violating any law of this state, or any legal ordinance of a city or village until a legal warrant can be obtained.”

By section 1847, the marshal of municipal corporations is the chief ministerial officer of the corporation.

By section 1848, he is to execute all writs and process, etc.

By section 1849, he is to arrest all disorderly persons in the corporation; suppress all riots, disturbances and breaches of the peace; pursue and arrest any person fleeing from justice in any part of the state; arrest any person in the act of committing any offense against the laws of the state or ordinances of the corporation, and forthwith bring such person before the mayor or other competent authority for examination or trial. ■

These two sections (1849 and 7129) provide what a marshal of a municipal corporation may do as a conservator of the peace without a warrant.

Section 1849 is the same as section 142 of the municipal code of 1869 (66 Ohio L. 178), where the authority extends to the arrest of any person “in the act of committing an offense.”

Section 7129 is copied from 66 Ohio L. 291, section 21 of the code of criminal procedure, where the words are, “ any person round violating,” etc.

Section 1849 is the primary source of a marshal’s authority, and if there was any substantial difference in the words “ in the act of committing any offense ” and “ found violating any law,” as found in section 7129, the former would be adopted if necessary to protect the officer.

But we think there is no substantial difference. Under either, the citizen is protected from arrest without warrant to the same degree as under the other. Both greatly enlarge the power to arrest without warrant in cases of misdemeanors from what it was at common law, where a constable had original and inherent power to arrest for breach of the peace, or for felony actually committed, etc., or in the act of committing treason or felony, etc. 4 Black. Com. 292*; Hale P. C. 587; 1 Bishop, §§ 167, 168.

Section 1849 is, in legal effect, the common-law rule as to arrests by sheriffs and constables without warrant, made applicable to- other crimes than treason, felony, or breach of fhe peace.

[With respect to the charge given, there was evidence tending to show that the deceased was marshal of the village of Wilmington and known to Ballard to be such at the time of the attempted arrest and shooting; that Ballard was on the streets of the town, carrying concealed weapons contrary to law; that he discharged the pistol killing the marsbal while he was engaged in resisting the arrest. In making the arrest for carrying such weapons, the marshal acted on information and belief, and not from actual personal knowledge of the facts. This information, which proved to he true, was based upon such statements of fact, and from such sources as would warrant a prudent man in acting. Under these circumstances, we think the officer was in the performance of official duty. This does not authorize such an arrest without warrant on a mere venture, without knowledge or reliable information, though in fact, as afterward discovered, concealed weapons were found.

The accused was “ in the act of committing an offense,” within the purview of section 1849, and “ was found violating a law of the state,” within the terms of section 7129. The accused was committing a concealed crime, not one open to view, and hence the greater necessity of acting on knowledge or information. Good faith, an honest belief, based upon reliable information, which proves to be true, is all the law requires. "We need not inquire what is the law, if the information is false and the party is innocent, as that question is not before us. Even in such a case, where the official character of the officer, as well as the reason for the arrest, is known to the party arrested, it would be no defense to a charge of manslaughter if he purposely took the life of the officer to prevent his arrest. In such a case it would rather be his duty to yield obedience to the efforts of the officer, trusting to the law for his redress, when there is no apparent danger to life or of great bodily harm.

Upon a careful consideration of the charge of the court upon this point we think there is no error.

Motion overruled.

Okey, J., dissented.


author: McIlvaine, C. J. Johnson, J.,

text:
    House, Assignee, v. Vinton National Bank.

      Sills and notes — Notice of demand and non-paym.ent — Upon whom, to he ^ made where indorser assigns for benefit of creditors.

    1. Where an indorser of a promissory note assigns all his property for the benefit of his creditors before the maturity of the note, notice of the demand of payment and non-payment at maturity should be given to the indorser.
    2. Notice of demand and non-payment given to the assignee in insolvency is not sufficient to fix the liability of the indorser.
    ,3. Unless the liability of the indorser be fixed by demand and notice of non-payment, the indorsed note can not be proved as a claim against the estate in insolvency.
    Error to the Court of Common Pleas of Gallia county. Reserved by the District Court of Gallia county.
    On March 26, 1881, Reuben Aleshire became accommodation indorser for James A. Simmons & Co. to the Yinton County National Bank on a note of $1,500, payable to his own order four months after date at the banking house of the indorsee. The indorsement was in. blank. Before the maturity of the note, Reuben Aleshire assigned to George House all his property for the benefit of his creditors, under the laws of the state of Ohio. At the maturity of the note the bank duly presented the note for payment, but it was not paid for want of funds. Notice of the demand and non-payment was not given to Reuben Aleshire, the indorser, but was served, within a reasonable time, upon George House, as assignee of the indorser. The note, verified as a claim against the estate of Ale-shire, was afterward presented by the plaintiff to the assignee for allowance, but was rejected and disallowed by the assignee
    The original action was afterward brought on the note by the Yinton County Natioual Bank, as indorsee, against James A. Simmons & Co., as makers, Reuben Aleshire, as indorser, and George House, as- assignee of Reuben Aleshire.
    A demurrer by Reuben Aleshire, on the ground that the petition did not state facts sufficient to constitute a cause of action against him, was sustained by the court of common pleas, but no final judgment was rendered in his favor, nor was judgment rendered against the makers of the note. Final judgment was, however, rendered in .favor of the bank and against George House, as assignee of Ale-shire, on the ground that notice to him of demand of payment on the makers and non-payment by them, was sufficient to charge the assets in his hands with the payment of* the note in the hands of the indorsee.
    To reverse this judgment a petition in error was prosecuted in the district court by George House, as assignee, which was reserved by that court for decision here, and is the case now under consideration.

      L). B. Hebard and C. O. Aleshire, for plaintiff in error.
    The statutes recognize the lawfulness of voluntary assignments by debtors in failing circumstances; and contemplate that dividends shall be paid only upon lawful claims against the assignor. Revised Statutes, sections 6338, 6355, 6356.
    Reuben Aleshire was merely an accommodation indorser, and knowm to the defendant in error to be such when it discounted the note. As such indorser his liability to pay it was conditional or contingent, depending upon notice to him of demand and non-payment, or due diligence in that behalf. 2 Smith’s Lead. Cas. 70, 73; Smith v. McLean, 7 Am. Dec. 693; Edw. B. & N. 639 ; Smith’s Mer. Law, 332.
    Insolvency is not a waiver, nor does it excuse the necessity, of demand and non-payment. 2 Dan. Neg. Inst., § 1171; Edw. B. & N. 455 ; 3 Kent’s Com. 111.
    The simple act of the indorser surrendering his property to a trustee to pay his debts does not qualify the legal significance of the fact of his insolvency, -neither does it change the condition of the contract of his simple indorsement into an unconditional and absolute contract to pay the indorsed paper, nor does it perform the condition of the indorsement. The surrender, in trust, respecting the rights of others against the assignor, is but a deposit of the property, and the trustee, respecting those rights, is the depositary or. custodian merely.
    The assignee is not the agent of the assignor within the sense of the rule which, in certain cases, regards notice to a general agent as sufficient. He is trustee with limited powers and duties, which are defined and regulated by statute. He has no power, active or passive, to be the instrument of increasing into lawful indebtedness or lawful liability any supposed claim against the assignor.
    There is no similarity to the case of notice to an administrator. Notice of non-payment can not in fact be given to the dead indorser, but can be given to the living assignor indorser. In case of the indorsers death, diligence in attempting to do what can not in fact be done, is accepted, in law, as doing it to the extent of fixing liability. Due diligence, in such case, is notice. In ease of death, due notice to him who succeeds to and represents the right to proceed is, in ordinary language, diligence to fix liability. Hence, if the indorser assignor were dead when timely notice was given by the holder to the assignee alone, there would then be some show of similarity, since all right in action, as well those conditional as absolute, being, in law, if not in fact, surrendered to the assignee in trust to pay debts. But Aleshire, when notice was given to his assignee was, and is, alive, and to make the reason of the similitude authority, notice must have been given, or acts of diligence used, to him, the living indorser, to charge or fix liability. There is a continued liability of the living assignor for the balance after the application of the trust assets; but in case of death of the indorser there is no further liability to pay the balance after the application of his estate.
    There is no analogy to cases in bankruptcy. Notice to the .assignee in such cases is dependent, for its validity, upon the bankrupt statute. Our assignment statute contains no such provision.. In bankruptcy the debtor creates no trust, makes no deed transferring his effects, and there is no trust relation between the assignee and bankrupt. The law seizes his property, and upon adjudication to be a bankrupt, and assignee appointed, the title to the estate vests in the assignee, and he goes discharged from debts and liabilities.

      Nash Jones and H. C. Jones, for defendant in error.
    There is an absence, in the text-books, of any good, clean-cut statement of the law with respect to notice of demand and non-payment in'the case of an assignment for the benefit of creditors by the indorser of a' negotiable promissory note before its maturity. But the highest authorities, in treating upon the subject, say nothing to the contrary of the proposition that notice to the assignee is sufficient. 2 Dan. Neg. Inst., § 1002; 1 Par. B. & N. 500.
    .The substance of their examination of the subject seems to be : Service upon the assignee is certainly proper, and it can not do any harm to notify the assignor.
    So far as the assets were concerned, House was the general agent of Aleshire; subject to the supervision and orders of the probate court, he had full control of and represented the assets. Under the form of a deed of assignment for the benefit of his creditors, Aleshire made House his general representative as to his indebtedness; and while an agent to receive and discharge debts may not have the power to accept or indorse bills so as to bind the principal, yet it is well settled that notice of their dishonor given to a general agent is valid as fto the principal. 2 Dan. Neg. Inst., § 998; Byles on Bills, 293 ; 1 Par. B. & N. 499 ; Fassin v. Hubbard, 55 N. Y. 465.
    But the recent case of Callahan v. Bank of Kentucky, 6 Ken. Law Rep. 188, in which these questions áre for the first time fully and ably reviewed and decided, seems to obviate the necessity of further discussion.
   McIlvaine, C. J.

The question in this case is whether notice of the dishonor of a promissory note, at its maturity, given by the indorsee to the assignee in insolvency of the indorser, when no such notice is given to the indorser, is sufficient to charge the indorser, or the assigned estate, with the payment of the claim in the hands of the indorsee.

By the assignment a trust is created in the assignee. Beneficiaries of the trust are, first, those having liens upon the ti’ust estate; second, the creditors of the assignor; third, the assignor himself. The mode of administering the trust is regulated by statute.

It is not contended in this case that the claim of the bank, as indorsee, is in any sense a lien on the trust property, or should be preferred to the claims of general creditors.

In the administration of an assignment, the assignee or trustee is required to file accounts in the probate court, and section 6356 of Revised Statutes provides : “ Whenever, on settlement, the same shall show a balance remaining in the hands of said assignee or trustee, subject to distribution among the general creditors, a dividend shall be declared by the probate judge, payable out of such balance, equally among all the creditors entitled, in proportion to the amount of their respective claims against the assignor, including those disallowed, as to which the claimant has begun proceedings to establish, the same as hereinbefore required, and claims held under advisement; of the making of which dividend and of the time and place of payment thereof, notice shall be given by advertisement once, in a newspaper published and of general circulation in the county in which such trust is being administered, and in such other way as the court may order; of the payment of which dividends and those remaining uncalled for and unpaid at that time, report shall be made within sixty days after the day fixed for the payment of the same ; the court shall then cause a new notice to be given to the owners of the unpaid dividends, in such way as the court may direct; and if the same are not demanded within twelve months thereafter, the same shall be divided pro rata among the other creditors, until they are paid in full, and the remainder, if any, to the assignor or his legal representatives. The dividends reserved for claims disallowed, or held under advisement, when the proceedings to enforce their allowance have been commenced, as to claims disallowed, shall be held until said proceedings have terminated, when they shall be paid, if the allowance of the claim has been ordered, on the same; otherwise they shall be distributed pro rata among other creditors not paid in full, or refunded to the assignor, as the case may require.”

It appears to me too plain for discussion, that the fund subject to the payment of general creditors of the assignor,can be used for no other purpose, and that any balance not so used must be refunded to the assignor. It therefore follows that, inasmuch as the bank has no lien on the property assigned which constitutes it a preferred claimant, if it be not a creditor of the assignor, it would be palpably unjust to the general creditors as well as to the assignor himself, to appropriate a portion of this fund to the payment of the note in suit.

It is certainly unnecessary to say any thing more to show that the trust property is not liable for the payment of this note, unless the liability of Aleshire, the indorser and assignor, has been-fixed by the notice of dishonor given his assignee. To so hold would be equivalent to holding that Aleshire is liable for the debt of another for which he is not responsible, either in law or by contract.

The liability of Aleshire by his contract was conditional. His contract was that he would pay the note, if the maker, on demand, at maturity, should fail to pay it, provided the holder of the note should duly notify him of such demand and non-payment. There is no pretense that such notice was given to Aleshire, or that by the exercise of reasonable diligence, it could not have been given. The claim is, that the giving of such notice to Ales'hire’s assignee was a reasonable compliance with the conditions o.f the contract of indorsement, or,'if not such compliance with conditions as would render Aleshire personally liable, it would, at least, bind the property in the hands of the assignee.

The last proposition has been sufficiently considered. It may, however, be well to add that the power of the assignee was confined to the care of the assets placed in his hands, and the payment of debts already existing, conditionally or unconditionally, against the property or the assignor, but did not include the right to create new and additional debts, either against the assignor or the property which had been placed in his hands, other than expenses of the administration.

I admit that the contract of indorsement must be fairly and reasonably interpreted. A literal compliance with its terms will be excused where it would be unreasonable to exact it. For instance, if the indorser be dead at the time notice of dishonor should be served, notice to his personal representative is sufficient. Notice to the general agent of the indorser is sufficient. If, under the circumstances, notice be impossible or impracticable, it is excused altogether. In such cases the liability of the indorser becomes fixed.

But we can see no ground upon which the personal liability of'the indorser should be fixed by notice to his assignee in insolvency. The statute makes no such provision. Such notice is not expressly or impliedly authorized by the deed of assignment, If the assignee can be considered the agent of the assignor for any purpose, his power is limited, not general. By the administration of the assignment the assignor is not discharged from any of his unpaid debts. The service of notice on the indorser is not rendered impracticable by the assignment, nor is the service of notice thereby waived.

If, therefore, the personal liability of the indorser, who is also assignor in insolvency, be desired by the holder of the indorsed paper, the notice of its dishonor by the makers should be given to. the indorser, and not to his assignee in insolvency. If the liability of the indorser be thus fixed, it appears to me, as a necessary result, that the claim may be proved against the assignee, whether he has or has not received notice of the dishonor. The claim being thus, fixed as a debt against the assignor, the holder becomes a beneficiary under the express terms of the assignment.

If the doctrine last stated needed any authority to sustain it, it is abundantly supported by the reasoning in the recent case of Ex parte Baker and In re Bellman, 4 Ch. D. 795.

If it be true, and it certainly is, that the claim, if notice of dishonor be given to the indorser, can be proved against the assignee, although he has not been notified of its dishonor, it follows that notice to the assignee must be regarded as given solely for the purpose of fixing the liability of the indorser by his contract of indorsement. Such notice, however, as we have seen, is not a literal performance of the condition in the contract. Is it a reasonable performance of such condition ? The reason that underlies the necessity for the notice is, that the indorser, when liability is thus fixed, may protect himself against loss by compelling the makers, for whom he is thus placed in the relation of surety, to discharge the indebtedness. Notice to the assignee does not place the indorser in this condition. We have already stated that the assignee can'not be considered as the general agent of the assignor. In the discharge of his duty he acts as representative of the beneficiaries. He is under no obligation to give notice of the dishonor to his assignor. Hence, if notice to the assignee were held to be sufficient to charge the indorser, he would be deprived of the means of indemnity and protection which notice of the dishonor is intended to afford.

It is no answer to this proposition to say that the assignee has power to protect the trust estate by compelling the makers to discharge the debt. The same power and duty would devolve on the assignee if the notice of dishonor were served on the indorser. But the true solution of the question lies in the fact that the liability fixed by demand and notice of non-payment is a personal liability. Such a liability is based on the contract of indorsement, and can attach only to the indorser, and not to his assignee. If the assigned property be charged with the debt, it can only be by first charging the assignor with personal liability, whereby th.e property, in course- of the administration of the trust, becomes liable for the payment of.the debt. Demand and notice of dishonor is not a means of creating a lien on the property of the indorser, whether assigned or not assigned.

It is clear, therefore, that the indorser must be charged, and notice must be served upon him, or his agent, or his personal representative, or be excused altogether. In this case neither alternative has been complied with.

But little, aid in the solution of this question has been derived from books. The writers of text-books have generally recommended the giving of notice of dishonor to both the assignor and assignee. We think such double notice to be unnecessary. It has never been- said by court or text-writer that notice to the indorser is not sufficient. But that such notice is sufficient to bind the assignee in bankruptcy or insolvency in the administration of his trust, has frequently been said and adjudged. That notice to the assignee is sufficient has been adjudged,’as far as we are informed, only in a single reported case, Callahan v. Bank of Kentucky, by the court of appeals of Kentucky, 6 Ken. Law Rep. 188. While we entertain the highest respect for that court, we are not satisfied with the conclusion or logic of that case. We think that case should not be followed, especially in a state where an assignment does not absolve a debtor from his personal liability on his debts, or any portion thereof, which remains unprovided for or unpaid by the assignee.

My attention has been • called to Ex parte Tremont National Bank, 2 Lowell’s Dec. 409, in which it was held by the district court • of the United States for the district of Massachusetts, under the bankrupt- act, that a bankrupt, after adjudication in bankruptcy and before the appointment of an assignee, may waive demand and notice as to a note indorsed by him and maturing during that interval, and that such waiver binds the assignee afterward appointed. That case is relied on as militating against the doctrine above announced. If any thing contained in the opinion in that case can be so construed, it is by mere implication. Certainly the case itself did not require such holding, as the decision arrived at is perfectly consistent with the conclusion announced in this case.

And again, the difference between the bankrupt law, which absolves the bankrupt from all future liability on debts provable against his estate,, and our insolvent laws, might, possibly,.require different conclusions in respect to the effect to be given to notice served on the assignee. As to this, however, I express no opinion.

Judgment reversed.

Johnson, J.,

dissenting. This action below was a special statutory proceeding under section 6352 of the Revised Statutes, which provides a method of proving rejected claims against an insolvent’s estate. "While the maker of the note and Aleshire, as indorser, were parties, they were only nominally so. No relief was sought or taken against either. The judgment was not for money, even against the assignee, but was that the assignee allow said claim on the settlement of his trust.” The case does not involve the personal liability of Aleshire.

The sole question, therefore, is: When the accommodation indorser of a note which is outstanding in the hands of a bona fide holder, makes an assignment under the insolvent laws of this state and his assignee, chosen by himself, has been qualified and is in the discharge of his duties as such, before the maturity of the note, is notice of dishonor given to the assignee sufficient to charge the note as a legal claim against the estate in his hands, and to entitle the holder to a judgment allowing such claim against such estate ?

It is a mistake to say that in all cases it must be a valid claim against the assignor. The statute, section 6354? says: “ Every person presenting and filing a claim against the estate of the debtor” shall verify the same, etc. It does not say a claim against the debtor.

In Lindemann v. Ingham, 36 Ohio St. 1, it was held that a mortgagor in possession of personal property may, by a general assignment, vest the same in his assignee as against the mortgagee who was entitled to the possession, and that the latter must proceed against the funds in the hands of the assignee.

This case establishes the authority of an assignee over property of the assignor covered by mortgages or other liens, although the assignor may not be the debtor, nor the lienholder a creditor of the assignor. The assumption, therefore, that to enable a party to prove a claim against the estate in the hands of the assignee he must be a creditor of the assignor, is erroneous. The mortgage or other lien may be to secure the debt of some prior owner of the property which by the assignment passes to the assignee subject to such incumbrance. In such a case it is the duty of the assignee to sell the property without regard to the wishes of the mortgagee or lienholders, and the latter is a creditor of the estate, but not of the assignor. Their interest is transferred to the fund arising from the sale, and they have a claim against the estate, though not as creditor of the assignor.

Returning now to the question of notice. . This is a vexed question, in the solution of which the text-books furnish us little aid. The undertaking of an indorser is collateral and conditional. If he is not duly notified of the non-payment of the note, and there is no valid excuse for such want of notice, he is discharged. The object of this notice is to put him on the alert, to enable him to look to the prior pai’ties on the note to save himself from such liability. This is the assignee’s duty, and therefore he should be notified. The question here is, in case the indorser has assigned all his property that is subject to execution, to his chosen assignee, whether the notice to such assignee is sufficient to charge the estate in his hands.

In Parsons on Notes and Bills; 499, 500, it is said: “ If a person entitled to notice be bankrupt, notice should be given to him if his assignee is not yet appointed.” This is a strong implication that if he has been appointed notice to him would be sufficient. He leaves the question in doubt, however, by saying the safest course is to give notice to both, but he adds that: If the insolvent has absconded, notice should be given to the assignees, and if they are not appointed, a delay until an appointment is made would-not discharge any one, and although notice may be given to any one holding or representing the estate, we should think it better to notify the assignees when appointed.”

Story on Bills, sections 305 and 389, says: “If the party entitled to notice has become bankrupt and assignees have been chosen or appointed, notice to the assignees is proper, and will be sufficient.”

Chitty on Bills, 228, says: “ If the party entitled to notice be a bankrupt, notice should be given to him before the choice of assignees, and after such choice, to them.”

Byles on Bills, *289, leaves the matter in doubt by saying : “ If the assignees are appointed, perhaps notice should be given to them.”

Daniels’ Negotiable Instruments, section 1002, says it is best to give notice to both, but if no assignee is appointed, notice to the bankrupt is sufficient, and perhaps it might be sufficient if one had been appointed.

In Ex parte Tremont National Bank, 2 Low. Dec. 409, the question arose as to the power of a bankrupt after adjudication and before the appointment of the assignee to waive demand and notice on commercial papér. It was there held, upon the authority of Lord Elden, 19 Yesey, 261, that until an assignee was appointed, the bankrupt is the trustee of his estate, and Judge Lowell quotes from Robson on Bankruptcy, 178, that notice should be given to the-trustee or assignee.

This precise question arose and was determined by the court of appeals of Kentucky, in Callahan v. The Bank of Kentucky, 6 Ken. Law Rep. 188. All the authorities are there reviewed, and it was held that notice to the assignee was sufficient. It was said in that ease, as it can be here, that where the insolvent chooses his own assignee, the latter is charged with the duty of acting as his trustee or agent to settle up the estate, and being thus clothed with full power to act as his general representative, notice given to him is notice given to his general agent, and is valid as to the principal. This case is an exhaustive examination of the point here involved, and should have great weight, especially as no case can be found to the contrary. In view of the importance of an uniform rule of commercial law, and of the high character of the court of appeals of Kentucky, this case is entitled to respect. To this proposition all the authorities agree. Dan. Neg. Ins., sec. 2998; 1 Par. N. & B. 499; Fassin v. Hubbard, 55 N. Y. 465; Wilkins v. Commercial Bank, 6 How. (Miss.) 217; Bank of Auburn v. Putnam, 3 Keyes, 343.

The majority opinion concedes that if House was the general agent of Aleshire, then notice to him was sufficient^ but it is said he was only a special agent. A general agent is one authorized to take charge of a particular line of business. A man may have several general agents, as, for instance, if he is a manufacturer, he may have a general agent for selling, another for buying, and another for running his mills, and still another to manage his financial affairs, while a “special agent is one authorized to do a particular insulated act.” Wharton on Agency, sections 117, 118. In Fassin v. Hubbard, 55 N. Y. 465, one Burke was appointed the agent of a firm in liquidation to wind up its affairs. This agent was notified of the dishonor of commercial paper of which they were indorsers. The court held notice to him as such agent was sufficient to charge them, and add: “ He was the general agent for liquidating the affairs of the firm, and the notice related to those affairs.”

In Bank of Auburn v. Putnam, supra, it was held, notice to a general agent was notice to the indorser, whose agent he was.

An examination of our statute relating to insolvent debtors demonstrates that the assignee is the trustee or general agent of the assignor, fully authorized to represent him in every matter pertaining to the settlement of the estate, and by all the authorities, as well as upon principle, notice to such trustee or agent is notice to the principal. In the case at bar it was the duty of House, as assignee, to take any steps that were necessary to secure the payment of this note by the makers, and thus protect his assignor’s estate from liability. It is doubtful if the assignor could do this in his own name, but if he could, whatever he realized in money or securities from the makers could only be paid on this claim through his assignee.

The opinion seems to concede, that in case of a bankrupt, notice to his assignee is sufficient, but it is said, this rule should not apply to the assignee of an insolvent, because he is not discharged from the debts, while he is discharged if a bankrupt. No reason exists for a different rule in the two cases.

If any such reason can be found, it is strongest in favor of notice to the assignee of the insolvent, as the assignee is his chosen agent or trustee to wind up his business, while the assignee in bankruptcy is not so chosen, and he is the agent of the law.

The conclusion reached is, the judgment of the court of common pleas that notice to the assignee is sufficient to charge the estate in his hands, should be affirmed.

Owen, J., concurred in the dissenting opinion.