text:
    The State of Ohio v. Kelly and others.
    1. A county treasurer who receives out of the county treasury any allowance or compensation other than that specially provided hy law, is liable, under the statute, to an action upon his bond, together with his sureties, for double the amount so received.
    2. Having received such allowance while acting as treasurer, or having received it in his capacity as treasurer, he can not defend against the action, when brought, hy claiming that in so receiving he was acting merely as a private individual, and not as an official.
    3. Such action is properly brought in the name of the State of Ohio, the obligee in the treasurer's bond.
    4. Such action is not subject to the limitation of one year, as provided in section 16 of the code, but to the same limitation as that which governs official bonds.
    This is an action on a treasurer’s bond. Jeremiah M. Kelly was treasurer of Logan county, and the other defendants are his sureties. The first cause of action in the petition is as follows:
    “ The plaintiff, by Duncan Dow, prosecuting attorney in and for Logan county, Ohio, for a first cause of action against said defendant, says: 1. That on the 1st day of September, a,d. 1869, the said Jeremiah M. Kelly, Wm. Rulan, 0. Hayes, C. Folsom, Joseph Chambers, Abner Riddle, B. E. Brown, William Lawrence, Jonathan Plnm, Henry Nelly, Amos Miller, and J. N. Allen, at the county of Logan aforesaid, by their certain writing obligatory, of that date, acknowledged themselves to be held and firmly bound unto-the State of Ohio in the penal sum of two hundred thousand dollars ($200,000), and which said writing obligatory was and is subject to a condition thereunder written, and which condition is in the words and figures following, to-wit: The condition of the above obligation is such that, whereas, the said Jeremiah M. Nelly was, at the October election, a. d. 1869, duly elected to the office of county treasurer, in and for the county of Logan, and State of Ohio, for the term of two years, commencing the first Monday of September, a. d. 1869, and until his successor shall be elected and qualified: Now, if the said Jeremiah M. Nelly shall pay over all moneys according to law which shall come into his hands for state, county, township, and other purposes, and shall do and perform faithfully the duties of his said offices, as. said county treasurer, according to law, then this obligation shall be void; otherwise, the same shall be and remain in full force and virtue in law.
    2. That the said Jeremiah M. Nelly did thereupon take upon himself the duties of the said office of county treasurer of said county of Logan, and was such treasurer at the times of committing the wrongs hereinafter stated.
    3. That on the 6th day of September, a. d. 1870, said Jeremiah M. Nelly, as such treasurer, did present to the county commissioners of said county the following account for services as such county treasurer, to wit: Logan county, dr., to J. M. Nelly. For safe-keeping, disbursing, redeeming,, and canceling Logan county bonds, from September 6,. 1869, to September'5, 1870, and for redeeming and canceling coupons during same time, and for sorting and arranging the same in proper order for settlement, $359.48, being-seven-tenths of one per cent, on the net collections for 1869 on special duplicate. September 6, 1870. Signed, J. M. Nelly, treasurer. 4. That on the 8th day of September,. a. d. 1870, said Jeremiah M. Kelly, as such treasurer, as aforesaid, unlawfully received out of tire county funds in the treasury of said county, as compensation for services, as stated in his said account, the said sum of $359.48, on account of all which the plaintiff, by Duncan Dow, prosecuting attorney, says that the said Jeremiah M. Kelly, together with said other defendants, have become and now are indebted .unto the State of Ohio, for the use of said county of Logan, upon the official bond of said Jeremiah M. Kelly, a certified copy of which is hereto "attached and made a part hereof, marked Exhibit ‘A,’’ in the sum of $718.96.”
    The second cause of action is entirely similar, stating that, on September 5,1871, Kelly presented a like order for $445.23, which was paid. Judgment is asked on .the treasurer’s bond, against him and his sureties, for double the amount so received by the treasurer. A copy of the bond is attached to the petition.
    A demurrer is filed as follows : “ The defendants severally demur to the first cause of action set out in the petition, because the court has no jurisdiction of the subject of the action, and the plaintiff has no legal capacity to sue, and there is a defect of parties plaintiff and a misjoinder of parties defendants, and the facts stated do not constitute a cause of action; and the defendants severally demur to the second cause of action, for all and each of the reasons aforesaid.”
    This demurrer was sustained by the court of common pleas, and judgment rendered for defendants, which ruling was affirmed by the district court, and petition in error filed in the supreme court.

      W. H. West, for the state:
    The liability charged in this case is expressly declared by statute (S. & S. 918, 919), which provides : “ That any county treasurer who shall receive out of any funds in the treasury of the county any other or further allowance or compensation, either as fees, clerk hire, or otherwise, than is specially provided by law, shall be liable in an am tion upon his bond for the use of said county in double-the amount so received by said treasurer.”
    Every liability of a treasurer upon his official bond, is a liability against his sureties jointly with him. They are liable for every breach of his bond which renders him liable thereon.
    If, therefore, the retaining or receiving the money alleged to have been retained or received' by the treasurer, was contrary to or forbidden by this statute, it was an act of official unfaithfulness for which the -sureties of the treasurer are liable with him on his bond,
    - The petition alleges that the treasurer did receive out of the treasury as compensation an allowance for certain services which is not specially provided for by law. He must have received it either as fees, or clerk hire, or otherwise, for these words cover every possible case, or else he ■did not receive it as treasurer at all.
    Did he receive it as treasurer, or in some other capacity?
    The petition distinctly alleges, in the fourth paragraph, that he received it as treasurer; that the defendant presented his account, and rendered it as treasurer. This is of itself conclusive on demurrer. A copjy of his account is also annexed, showing that the money was received by •him as treasurer for services in that capacity rendered.
    What were the services for which he was compensated ? They were clearly official. The account — a copjy of which is given — distinctly states that it was, in part at least, for redeeming and canceling county bonds and coupons.
    He could only redeem and cancel county bonds and coupons lawfully by paying but the public funds in his possession as treasurer.
    He either paid out these funds lawfully, or he did it unlawfully. He could only pay them out lawfully if authorized by law. If he was so authorized by law, it was an official disbursement of the public funds which he was recpuired to make, and for which he received compensation under the general fee-bill. Hence this extra compensation was for an official service, for which he had already been paid, and which it was his duty to perform without any extra compensation. Therefore, his receiving it was an act of official unfaithfulness.
    The statute of limitations is objected against the first cause of action, on the ground that the demand is in the nature of a penalty. When the statute creates a penalty, and gives an action for it, it is limited to one year. But when a statute, instead of giving a direct action, declares a liability upon an official bond, as for official delinquency, it •obviously intends that the liability shall be subject to the ■same laws and limitations, which govern other liabilities on •official bonds. It certainly can not intend that there shall be different liabilities subject to different limitations upon the same official obligations. Ten years limitation of actions on official bonds means any and all actions, not some.

      J. B. McLaughlin, Duncan Dow, and J. Duncan McLaughlin, filed a brief also for the state.
    Wm. Lawrence & Joseph H. Lawrence, for defendants in error:
    The statute under which this action is brought is penal, ítnd is to be strictly construed.' It can not be extended to any case unless clearly within its very words. Bond v. Sweanigan, 1 Ohio, 403; Hall v. State, 20 Ohio, 7; 1 Ohio St. 31; Conkling v. Barker, 12 Ohio St. 424; Langdon v. Summers, 12 Ohio St. 80; Edmiston v. Edmiston, 1 Ohio, 251.
    The petition in the court below does not sue Kelly as at ■common law for any liability. It does make the que'stion whether he and his sureties are liable on his official bond ■for the penalty fixed by statute. S. & S. 919, § (4) 11.
    The action can not be maintained unless the record shows:
    1. That Kelly has done something which clearly brings hiim within the statute.
    2. Nor unless the statutory remedy has been strictly pur■sued.

      I. Kelly has not incurred the penalty, because he has not violated this statute.
    The whole statute must be read together to ascertain its meaning.
    Now, reading sections 1, 2, and 3 of this statute together - — construing all strictly — they mean only that any county treasurer who shall:
    (1) “ Receive ” any unauthorized allowance, -
    (2) “ On settlement with the county auditor,”
    (3) “ As his fees for the collection, safe-keeping, and disbursement of moneys arising from the assessment of-taxes,”
    (4) “ On the grand duplicate,” shall be liable for the penalty provided by the statute.
    These four things are necessary to fix a liability to the penalty.
    The court has no power to say the liability has accrued, unless the extra fees are received as above, “ on settlement.” The penalty does not attach unlejs the three remaining -facts exist, that Kelly did :
    1. “ Receive ” illegal allowances,
    • 2. “As fees for the collection, etc., of money arising from taxes,”
    ■ 3. “ On the grand duplicate.”
    This statute does not affix a penalty against a treasurer who receives unauthorized pay for unofficial duties.
    If the treasurer acts as clerk in aiding the county auditor, it is not an official duty. This is in fact what he did-Now the record does not accuse him of receiving unauthorized fees or allowances for either the “ collection,” “ safe keeping,” or “ disbursement of money :”
    Nor of “ moneys arising from taxes.”
    And still more, not of “ taxes on the grand duplicate.” Turnpike taxes are not put on the “ grand duplicate.” Act March 31, 1868, § 6, 65 Ohio L. 41. S. & S. 674.
    The only complaint is that Kelly “ received compensation for safe keeping, disbursing, redeeming, and canceling Logan county (turnpike) bonds.”
    H. The compensation paid Kelly was not to him astreastirer, nor for any official act. The statute of April 13,. 1865, only applies to illegal charges for official acts as to* taxes on the grand duplicate.
    The keeping of county turnpike bonds was not an official act, and no averment, and no admission, can make it so. The question is not what the service was called, but what was it in fact and legal effect.
    III. The “ turnpike statutes ” authorize the county commissioners to make this allowance. Statute of March 29, 1867 (S. & S. § 8, 672); 64 Ohio L. 80.
    IV. This action can not be sustained because an action under the statute, for a penalty, lies on proper facts against the treasurer alone — not against his sureties.
    1. It is not a breach of any words in the treasurer’s official bond to take illegal fees.
    2. The statute makes the treasurer alone — not his sureties — liable to the penalty by suit on bond. S. & S. 919,. §2.
    3. By all the authorities the sureties have a right to-stand on the strict letter of the bond. State v. Medary, 17 Ohio, 554; State v. Cutting, 2 Ohio St. 272; Raymond v. Whitney, 5 Ohio St. 210; Hall v. Williamson, 9 Ohio St. 17 ; State v. Covey, 16 Ohio St. 17.
    It has been urged that it was the treasurer’s official duty to pay the turnpike bonds and coupons. But this is not so. He is only bound to pay “ any order drawn on him as treasurer by the auditor of his county.” Act March 12, 1831, 29 Ohio L. 291; 2 S. & C. Stat. 1585, § 6. The turnpike bonds and coupons are not orders. The payment of coupons was not the services for which Kelly received compensation.
    V. If any action could be maintained against Kelly, it must be in the name of the county commissioners.
    This is sufficiently shown by Civil Code § 27; Statute of March 30, 1868, 65 Ohio L. 35; S. & S. 89. Shanklin v. Comm’rs of Madison Co., 21 Ohio St. 89; State for use, etc. v. Piatt, 15 Ohio, 75, 23; Comm’rs v. Mighels, 7 Ohio St.
      114; Grimwood v. Comm’rs, 23 Ohio St. 600; Carder v. Comm’rs, 16 Ohio St. 369.
    The money paid Kelley was under a contract with the county commissioners. They were authorized by the “ turnpike law ” (Statute March 29, 1867, 64 Ohio L. 80; S. & S. 672, § 6; Statute April 30, 1869, 66 Ohio L. 62, § 7), to make contracts, and, therefore, the suit must be in their name. The funds paid were turnpike funds. The state has no interest whatever in the money or the contract, or. the result of the suit. No statute authorizes the state to •sue. Supervisors of Galway v. Stevenson, 4 Hill, 136; Overseers of Pittsford, v. Overseers Platsburg, 18 Johns. 407, 418; Todd v. McCail, Overseers Bridsal, 1 Cowen, 260; Fourth School Dsstrict v. Wood, 13 Mass. 197; Trusler v. May, 8 Wend. 516 and notes.

      John A. Price, also for defendant in error, filed a brief making the same points as his associate counsel.
   Wright, J.

It will be seen that the petition alleges that Kelly, county treasurer, received out of the county treasury, for services as county treasurer, $804.71 for safe keeping, disbursing, redeeming, and canceling Logan county bonds, for redeeming and canceling coupons, and for sorting and arranging the same.

The action is brought under the act of April 13,1865 (S. & S. 919, § 2 (4), which provides “ that any county auditor or county commissioner who shall make, order, or pay, or any treasurer who shall receive out of any funds in the treasury of their county any other or further allowance ■or compensation to any such county treasurer, either as fees or for clerk hire, or otherwise, than is specially provided by law, shall be liable in an action on his bond, to be brought by the prosecuting attorney of such county, for the use of such county, in double the amount so paid or ordered to be paid by said auditor or commissioner, or received by said treasurer.”

In support of the demurrer, it is claimed that when Kelly received this money, he was not acting as treasurer; that his bond only covers delinquencies in official acts; and as this was not official, there has been no breach of the bond..

Counsel claim that this statute is penal, and must be strictly construed, which may be admitted. It is also said that the whole statute must be read together, in order to> ascertain its meaning, which is also true. So reading the statute, counsel seem to claim that county treasurers can be guilty of official delinquency only in something connected with the “ grand duplicate.” "We fail to discover the force of this argument, and it seems to us that it overlooks an important word in the law. It was already provided, in the preceding section, what fees the county treasurer should have, which should be a certain percentage upon the taxes-on the grand duplicate. Then the section we are considering says if he receives any further money out of the treasury for fees, clerk hire, or otherwise, then the action shall lie. We conceive that these words “ or otherwise ” mean something. They comprehend every case of getting money out of the treasury other than that which the preceding section had provided should be the legitimate one.

And we are not impressed with the proposition that a-man who has been elected county treasurer, who has given bond as county treasurer, and. has acted as county treasurer,, when he takes money from the county treasury for a purpose not authorized, can successfully defend by saying that he did so, not as a public officer, but as a private citizen,, and therefore his sureties are not liable. All money he receives from the treasury he receives as treasurer; otherwise-he could not get it at all. If, when so received, he applies it-to a lawful purpose, this is all legal and an act of the treasurer. If he applies it to an unlawful purpose, or keeps it himself, without right, it does not make the act by which he received it from the treasury in the first place any-the less an official one. The statute says: “Any treasurer who-shall receive out of any funds in the treasury,” etc. It would be opening too wide a door to indiscretion to hold that the-taking of public funds without authority of law could not-be reached, because the moment the unlawful acts began, that moment the officer lost all official character, and with it all capacity to make himself or his sureties responsible.

"We do not find that these payments were authorized by any law, as it is claimed they were; but, on the contrary, that they were expressly prohibited by the section quoted.

It is further claimed that this action should have been in the name of the county commissioners.

The bond, it will be seen, was taken to the State of Ohio. It is provided by section 25 of the code “ that every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section 27.” And it is provided by section 27 that “ an executor or administrator, guardian, trustee of an express trust, a person with whom •or in whose name a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue in such name as is authorized by law, and official bonds may be sued upon in the same way.”

The law always was, as we understand it; that suit might be brought in the name of the obligee of the bond, for the use or benefit of him whom the bond was to protect, and who had a claim under it. Here the suit is brought in the name of the state, and the statute authorizing the action provides that it shall be for the use of the county; it has •therefore been properly brought, and could not have been In the name of the commissioners, as is directly decided in Hunter v. Commissioners of Mercer County, 10 Ohio St. 515.

It is said that the first cause of action is barred by the .statute of limitations.

The money in the first order was obtained by the treasurer,-Kelly, on September 8, 1870, and the action brought May 31, 1872. It is said to be an action upon a statute for a penalty or forfeiture, which must be brought in one year. Code, § 16.

The cases cited by counsel for defendant in error are cases •where there was an action for a' penalty, given against the individual officer,'which, was barred in a certain time, and it was held, if such action could not be maintained against the officer, who was principal in the bond, of course it could not be maintained against his sureties. For instance, an action against an auditor for misfeasance in office was barred in a year, and consequently an action on his bond could not be maintained after the expiration of the year for that same misfeasance. State v. Commissioners of Knox County, 2 Ohio St. 147.

But it will be observed that the statute which gives this action does not give a penalty or forfeiture against the treasurer. If it did, if it said that he should be compelled to pay double, provided the action were brought in one year, it might be that the same limitation would apply to the bond, and no suit could be brought upon it after the year had expired. But this is the statute: Any treasurer doing the prohibited thing “ shall be liable in an action upon his bond.” An action, therefore, could not be upheld against him individually for double the amount, otherwise than through his bond. If it could not be so upheld, of course the one year limitation does not apply.

It being therefore an action upon the bond, strictly speaking, the limitation of ten years, applicable to bonds, is the proper one.

For these reasons the demurrer was not well taken, and the judgment should he reversed.


source: Caselaw Access Project

author: Day, J.

license: Public Domain

text:
    Elliott et al. v. Shaw.
    1. The provision of section 313 of the code, as amended March 2, 1871, which excludes a party from testifying in a civil action, where the adverse party claims as “grantee” of a deceased person, does not apply to the assignee of a chose in action.
    2. In an action on a promissory note, against one purporting to be the maker, by an assignee of the note from its original holder and owner, who died after the assignment, the defendant is a competent witness, to
      prove any fact material to the issue in the ease, whether it transpired before or after the death of the assignor.
    Error to the District Court of Ashland county.

      William, Osborn and John McSweeny, for plaintiffs in error.

      Geddes, Dickey & Jenner, and McGomb and Curtis, for defendants in error.
   Day, J.

The original action was brought in the Court, of Common Pleas of Ashland county, by William Shaw against Hugh Elliott and Moses Elliott, on two promissory-notes. The notes purport to .be signed by each of theElliotts as makers, and on their face are made payable to William Shaw or bearer. The Elliotts denied the execution of the notes. On this issue the case was tried.

On the trial, it appeared that the notes were not in fact made to William Shaw. They came to him by assignment from his brother, Robert Shaw, who, shortly before-his death, transferred them to him as a gift.

After evidence had been given tending to prove the execution of the notes, each of the Elliotts offered himself as a witness, to prove that neither of them signed the notes. To the admission of this evidence the other party objected, on the ground that the plaintiff in the suit claimed the notes in question by assignment from his deceased brother, and that under the provisions of section 313 of the code, the defendants were incompetent, as witnesses, to testify as to facts which transpired before his death. The court sustained the objection, and the Elliotts excepted. Judgment was rendered on the notes in favor of Shaw; and, on error, the district court affirmed the-judgment- The object of the present proceeding is to reverse these judgments.

In all civil cases, section 310 of the code of civil procedure removes the common-law disqualification of parties-as witnesses; but this general provision is limited by section 313 of the code. When the case was tried, this seetion, so far as material to be now considered, was as. follows:

“ No party to a civil action shall be allowed to testify, by-virtue of section 310, in any action where the adverse^ party is the guardian - or trustee of a child or children of a deceased person, or of an idiot, or of a lunatic, or imbecile, or of a deaf and dumb person, or is the executor or administrator of a deceased person, or is a party claiming- or defending as heir, grantee, or devisee of a deceased person,” etc. 68 Ohio L. 127.

It is claimed that the plaintiff below derived his ownership of the notes in suit from his. brother, who' afterward, died; and that he was, therefore, “ claiming” in the action, as “grantee” of a deceased person. This, then, is the-question to be determined: Was he a grantee of the notes,, within the meaning of this section.

A grantee is one to whom a grant is made; and the word grant, is a generic term, applicable to all transfers of real property and incorporeal rights, though, in its largest: sense, it comprehends every thing that is granted or passed, from one to another, and is applied to every-species of property. Bouvier’s Die. The term, however, is so seldom, if ever, applied to the transfer of a chose in action, that: nothing short of a manifest purpose to apply it, would carry that meaning with the use of the word.

In strictness of usage, as well as in ordinary parlance,, the word assignee or indorsee, is applied to one who receives the transfer of a chose in action ; so that the use of the word grantee, in that connection, would be regarded as unusual and improper. Such a use of the word in legal documents or statutes would be extraordinary.

There is nothing contained in the section under cousidertion, to indicate that the word was used therein as having-any unusual application. On the contrary, it appears to be used in its ordinary sense, and full effect is given to the-word by applying it only to the transfer of real property., or such incorporeal rights as properly lie in grant.

Section 313, when the code was adopted, only excluded & party from testifying when the adverse party was an executor or administrator. The section has, however, since then undergone numerous amendments. But instead of ■providing, in general terms, that where one party to a ■•transaction or matter in issue, is unable, for any cause, to testily, the other shall also remain silent, the common-law -disqualification of a party from testifying, removed by section 310, has been restored by section 313 only by successive enactments, cautiously confined, in each instance, to a ■particularly specified circumstance.

At one time, guardians and trustees, in certain specified ■cases, were included, with executors and administrators, as parties having the right to exclude the other party from testifying. At another time, a party claiming or defending as heir or devisee, was included with the privileged •classes; and afterward, a grantee of a deceased person was accorded the same privilege as that of an heir or devisee.

Undoubtedly it would have been consistent with the ■theory upon which these exceptions to the provisions of ■.section 310 were enacted, to have included assignees of personal property and choses in action. Had that been the legislative intent, it is quite apparent, from the particularity ■observed in specifying the cases to be excepted, that assignees would have been mentioned, by adding the words, grantee and assignee, to the class designated by the words, heir and devisee. But, instead of doing that, the word, grantee, was alone inserted between the words, heir and •devisee, as if it was the intent that its meaning should be known by its association. The words, heir and devisee, properly apply exclusively to real property. The word in 'question, then, is so associated in the clause to which it belongs, that the maxim, noscitur a soeiis, clearly applies, :and excludes a construction of the word, grantee, as used In this section, which would extend it beyond its strict and usual meaning as applied to real property.

It follows that the court below erred in not permitting the defendants below to testify as to the execution of the note.

Judgment reversed.


author: Wright, J.

text:
    Billigheimer v. The State of Ohio.
    1. In the Police Court of Cincinnati, the defendant having filed a plea setting forth matter of defense merely, it was not error in the judge, without passing upon this plea, to direct a plea of not guilty to he filed, the accused standing mute, and to proceed with the trial, when the evidence heard under the plea of not guilty could have had no other or ■ different result, if based under the plea which defendant did file.
    :2. A negative averment to the matter of a proviso in a statute, is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it.
    .3. In a trial before the Police Court of Cincinnati for a violation of the statute forbidding common labor on the first day of the week (S. & S. 289), unless the record shows that defendant demanded a jury, he will bo deemed to have waived it.
    4. This statute excludes from its operation those “ who conscientiously do observe the seventh day of the week as the Sabbath.” But whether the defendant is entitled to the benefit of this proviso must be determined from all the evidence in the case, and a finding of a fact therein will not be disturbed, unless clearly against the weight of testimony.
    Error to the Court of Common Pleas of Hamilton ■county.
    An information was filed in the Police Court of Cincinnati against David Billigheimer, charging him with unlawfully performing common labor on the first day of the week, commonly called Sunday, by carrying on his usual business. This day was the 31st of May. To this, defendant filed a plea, setting forth that he was an Israelite ; that on Eriday, 29th May, 1874, at 6 p. m., he closed up his said billiard-room and kept it closed, and no game or games of billiards, or any other business whatever, was done therein until on Saturday evening, May 30, at 7% p. M., this being the Jewish Sabbath, commonly called the seventh day of the week ; that he conscientiously then, and does now, and hereafter intends so to do and to observe the said seventh-day of the week as the Sabbath ; that when he opened his billiard hall on Sunday, 31st May, he was arrested.
    The record then states that this plea was overruled, and thereupon defendant refused to plead, and the court ordered a pica of not guilty to be entered. Evidence was heard, and defendant convicted and fined. A motion for new trial was made and overruled. A bill of exceptions, containing the testimony, was taken. The court of common pleas affirmed the judgment of the police court, and writ of error allowed.

      Thomas Powell for plaintiff in eri'or.
   Wright, J.

I. One of the reasons set foi’th in the motion for new trial is that the court eri’ed in not passing upon or disposing of the plea in abatement, as it is called, before requiring defendant to plead over. The recox-d, however, makes this statement: “ And the coui’t, upon the consideration thereof, do, overrule said plea, and thereupon the-defendant refused to plead to the chai’ge, and the court ordered a plea of not guilty to be entei'ed.” Subsequently the bill of exceptions states that there was no issue joined in this plea in abatement, and that the judge refused to-hear testimony thereon, and ordered a plea of not guilty to be filed, and proceeded -with the trial.

This is not, as seems to be supposed, a plea in abatement ; it is rather a special plea in bar. It sets up in effect, that defendant was an Israelite, and conscientiously obsexwed the seventh day, which would make a good defense-if proven; and it is said in Hirn v. The State, 1 Ohio St. 16, not to be good practice to plead specially to an indictment, a matter which is competent and proper, by way of defense, under the plea of not guilty.

Upon the trial evidence was heard going to establish the averments of the plea which defendant had filed, and if no result could have followed from hearing the testimony under the plea of not guilty different from that which would have followed if heard under the plea defendant did file, we do not see as there could have been any error “ affecting materially his substantial rights.” Criminal Code, § 192; 66 Ohio L. 316.

We can not see that there was any error in the action of the court upon this plea, such as would justify a reversal.

II. It is claimed that the information is insufficient, and that it should have contained'the matter set forth in the ■statute under the proviso. This statute, S. & S. 289, makes the act of common labor on Sunday an offense, but adds: “ Provided, nothing herein contained iu relation to common labor on said first day of the week, commonly called Sunday, shall be construed to extend to those who conscientiously observe the seventh day of the week as the Sabbath.”

We do not think it necessary that the information should have averred anything with reference to this proviso. It ■might be set up as a matter of defense.

In Hirn v. State, 1 Ohio St. 16, it is held that/1 a negative averment to the matter of an exception or proviso in •a statute is not requisite in an indictment, unless the matter of such exception or proviso enter into and become a ■part of the description of the offense, or a qualification of the language defining or creating it.” In this case it was held that the negative averment was necessary. It was an indictment for selling liquor, and the statute was : 11 Provided, that nothing contained in this section shall be so con.■strued as to make it unlawful to sell any spirituous liquors for medicinal and pharmaceutical purposes.” The matter of the proviso points directly to the character of the offense, is in the same sentence with it, and made a matei’ial ■qualification in the statutory description of it, and it was thereupon held that the indictment should have contained the negative averment, that the sale of the liquor was not for medicinal or pharmaceutical purposes, without which it was defective.

But the provision in the statute before us is not part of the description of the offense; it is something in the nature of a personal privilege.

The rule as given in Hirn v. The State, is that when a criminal statute contains an exception in the enacting-clause, that exception must be negatived in the indictment but when the statute contains provisions and exceptions-iu distinct clauses, it is not necessary to allege that the defendant does not come within the exceptions, nor to negative the provisos.

In the act of May 1, 1854, 2 S. C. 1134, to provide against the evils resulting from the sale of intoxicating liquors, in the 8th section, it is provided that the provisions of the 1st and 4th sections shall not extend to certain wine, beer, ale, or cider. In an indictment for violating the 1st section, it is held not necessary that there should be an averment that the liquor sold was not wine, beer, ale, or cider. The proviso forming no part of the description of the offense, its; benefits must be taken advantage of by the accused in making his defense. Becker v. The State, 8 Ohio St. 391. In Stanglein v. The State, 17 Ohio St. 461, the indictment was for bigamy. The statute on the subject first, defines the-offense, saying that'if a married person, having a husband or wife living, shall marry again, they shall be guilty, etc. Then there is another clause of the section, just as in the-law we are considering, saying, that nothing in this section shall be construed to extend to a person where husband or wife has been absent five years and unheard of. The language of this proviso, is entirely similar to that of the one-before us. Its relation to the context is entirely similar,, and the two cases upon this point are quite analogous. In Stanglein’s case it was held not necessary in the indictment for bigamy to aver that the former husband or wife had not been heard from, etc. That fact, if it existed, being matter of defense to be proved by the accused. The court in this-case observe, that if provisos and exceptions are contained in distinct clauses, it is not necessary to state in the indictment, that the defendant does not come within the exceptions, or to negative the provisos it contains. These are-matters of defense which the prosecutor need not anticipate, as they should more properly come from the prisoner.

The information in this respect, therefore, was not defective.

III. It is further claimed that defendant was entitled to trial by jury, and that he did not waive this right.

The record does not show that defendant demanded a jury, had he done so he would have been entitled to it, but he appears to have taken no action on the subject, and for all we know, he may have proceeded to trial by the court with entire willingness.

In the case of Dailey v. The State, 4 Ohio St. 57, under the probate act of 1853, the record showed that the accused “did not demand a jury.” This was held a sufficient waiver of the right.

Under that law, Swan, ed. 1854, p. 752, “ upon a plea other than a plea of guilty, if the defendant do not demand a trial by jury, the probate judge shall proceed to try the issue.” The case cited, differs from the one at bar only in this: there the record showed that no jury was demanded; here the record shows nothing whatever on the subject. We think, however, that the reasoning of that ease goes to show, that defendant remaining silent upon the subject can not complain for the first time, after conviction, that he has been deprived of a substantial right. But counsel say that defendant can not waive his constitutional right to trial by jury. We think this proposition is answered by Dailey’s case last cited; as to these minor offenses.

In Dailey’s case it was claimed that the law empowering the judge to try without jury was unconstitutional, but it was held not so, and that the defendant might waive the right if he saw fit.

There has been much discussion in this state as to what the accused might and what he might not waive.

In Parks’ case, 4 Ohio St. 234, which was a case of murder in the first degree, it was objected in error that the record did not show that the grand jurors, by whom the indictment was found, had the requisite qualifications of electors. The court held that after a verdict for the state on a plea of not guilty, the accused can not go back and make a question in regard to the qualifications of the grand jurors not apparent on the record. Thus holding that if there were any such objections, they had been waived.

In Dillingham, v. State, 5 Ohio St. 280, it is held that the constitutional right of trial by jury is not infringed when the option is given to the accused to have the issue tried by the court or the jury, and he submits the case to the •court. This was an information before the police court for obtaining money for false pretenses.

In Smith v. State, 8 Ohio, 295, it is said that objections to an indictment which might have been fatal, if taken by plea in abatement, are waived by pleading over, and in that case it was held that an indictment designating the accused by initial letters, as a baptismal name, is good after verdict. And it was there .further held that, excepting matters of jurisdiction, a party may waive provisions of law intended for his benefit, and that it was no ground for arrest of judgment that the accused went to trial without a copy of the indictment, no exception being taken until after the verdict. The effect of that ease is, that if the record is silent on the subject, and no objection made for want of copy of the indictment, the right will be considered as waived. As in the case before us, if the record is simply silent as to a demand for a jury, it must be considered as "waived.

In Shoemaker v. State, 12 Ohio, 43-52, if the jurors do not possess the requisite qualifications, it is a cause of challenge which may be waived, and such waiver is consent to their qualifications, and that the cause be tried by them.

It is every day’s practice that if evidence is not objected to upon the trial, error as to its admission is waived. Clark v. State, 12 Ohio, 483.

In. Fouts v. State, 8 Ohio St. 98, the right of the accused to have a copy of the indictment was held to be waived by interposing no objection on account thereof before trial. In this case, Bartley, C. J., says, p. 103: “ It has been said in broad and unqualified language that, in a criminal •cause, a defendant can waive nothing. But the inaccuracy of this assertion is shown in every day’s practice in our criminal courts. There are some things, it is very true, in criminal cases, which can not be waived. None of the proceedings essential to the jurisdiction and the foundation of the judgment of the court can be waived. But there are other matters in the proceedings in a criminal prose•cution which a defendant may waive.”

The right to a struck jury may be waived. Whitehead v. State, 10 Ohio St. 449.

In Williams & Haynes v. State, 12 Ohio St. 622, (per curiam), defendants were indicted for altering bank notes. They entered a plea of not guilty, waived a jury, and consented to be tried by the court. They were found guilty and sentenced to the penitentiary. The attorney-general appeared in court and submitted to a reversal of the judgment, upon the ground that upon a trial of the higher grade of crimes, it is not in the power of the accused to waive a trial by jury, and the court were of opinion that such is the law. See also Goodin v. State, 16 Ohio St. 344; Cantwell v. State, 18 Ohio St. 477.

We think, therefore, that as to minor offenses there can ■be no doubt but that defendant can waive a jury and submit to a trial by the court. The police judge has the power to hear the cause if a jury has been waived. 66 Ohio L. 176, § 167. The only question, therefore, is, did the defendant waive his right. As has been said, the record in•dicates nothing on the subject. Jt merely shows that, when the court ordered the plea of not guilty filed, the ■cause proceeded and evidence was heard. It does not show that defendant demanded a jury, nor that he excepted to proceeding without one. This failure to avail himself of his rights must be held to be a giviug of consent.

In Stewart v. The State, 15 Ohio St. 159, the court says : “ The fact that one of the jurors impaneled for the trial of the defendant in the court below had been a member of •the grand jury which had found the indictment in the case, was clearly a good cause of challenge. But this right of challenge may be waived by defendant, and if he had full knowledge of the fact, his failure to make the objection at the proper time would constitute such waiver and justify the overruling of a subsequent motion to set aside the verdict on account of this fact.”

We think a defendant may waive his rights impliedly as well as expressly, and if he remains silent, when by speaking he could have obtained what he desired, it is too late to complain after his cause has proceeded to final adjudication.

IV. It is said the verdict is against the law and evidence.

The law is that those not amenable to this punishment are those “ who conscientiously do observe the seventh day of the week as the Sabbath.” S. & S. 289.

It is well understood, and such is the fact, that this proviso applies to the Hebrew race.

Billigheimer swears that lie conscientiously observed the seventh day as the Sabbath, and swears it with positive repetition. On cross-examination, however, he states that sometimes he closed up his billiard-room on Saturday and sometimes Sunday, but always one day or the other, and when he was closed up on Saturday it was because he was conscientiously observing that day at the time. Upon such days his man attended to the business, in order that his conscientious observance might not be interfered with, and always after such a Saturday the saloon was closed on the succeeding Sunday. He further states that on Saturday, the day before he was arrested, he closed his saloon because-he was conscientiously observing that day as his Sabbath, and wanted, moreover, to make a test case to determine his-rights in the premises, his object being to see if he could not keep open on Sunday, having duly observed the day before. Counsel had advised him that he must cease business, either upon the first or seventh day, and that if he observed the seventh, he might open, his saloon on the first. He is absolutely certain that he conscientiously observed the-day before his arrest, for he says, in so many words, I conscientiously observed last Saturday as my Sabbath.”

The police court, with the witness before it, was perhaps better able to determine this nice question of conscience, than a court of error can possibly be. It is a delicate matter to pass upon, and that tiibunal may have thought that defendant’s custom of keeping open his saloon indifferently, as between the two days, was not that “ conscientious ” observance to which the statute refers, and that defendant may have mistaken the import of the phrase, as applied to-his own case. At all events, we can not see that the police-court so clearly erred as to justify a reversal. The judgment of the court of common pleas, therefore, will be affirmed.

Judgment accordingly.


text:
    Jackson v. Reid.
    1. By the act of 1850 (2 S. & 0. 1145), the homestead having been sold un- ■ der a claim which precludes the allowance of exemption, leaving a surplus, the debtor may insist upon his allowance out of such surplus, as against creditors whose claims do not preclude the allowance of a homestead.
    2. If the debtor has voluntarily abandoned his homestead before claiming-it as exempt, his right is gone; but the court having found there has-been no such abandonment, tbat finding can not be reviewed upon error, the bill of exceptions not showing the evidence upon which the-court based its action.
    Error to tbe District Court of Perry county.
    The questions arise upon a motion to distribute the proceeds of a sale of real estate. The following bill of exceptions, omitting the caption, having been taken to the action of the court:
    “ Be it remembered, that on the hearing of the motion of John P. Reid, filed in this case for award of proceeds of sale of real estate, alleged by him to be his homestead in New Lexington, Ohio, it appeared to the court that the ■ order of sale aforesaid was issued on June 9,1871, and sale made July 22, 1871, and confirmed at the October term, a. u. 1871, and that after paying costs, liens, etc., precluding homestead there remained of the proceeds of said sale, for -distribution, the sum of $290.85, which sum was claimed by said John P. Reid, on his said motion, and by said Lyman J. Jackson, a defendant, in objecting to said motion, ■and it further appeared to the court that in the spring of 1871 the said John P. Reid, and his family, had gone, for temporary purpose only, into a house in said county, that had been abandoned as unfit to reside in until repaired by them, which house was owned by Lavina Reid aforesaid, a • defendant and wife of said John P. Reid, which house adjoined a farm owned by said Lavina Reid, at which place rsaid John P. Reid was conducting business, and he, with other members of. his family, was also engaged in farming .and cultivating said real estate, owned by his wife aforesaid ; that, in this change of family or locality, part of the furniture of the family was left and retained in said alleged homestead, under the care of said John P. Reid and family, but that the boarding of the family was exclusively on the premises owned by the said Lavina Reid, while said family was there; that John P. Reid sometimes spent Saturdays and Sundays at said alleged homestead ; that he always declared his intentions to hold said property as his homestead, if the law would allow him, and the court finds that there is an intention.of remaining to reside exclusively .and permanently on said alleged homestead at some indefinite time in the future, and the court find that said .judgment of said Lyman J. Jackson was a lien on said alleged homestead before and at the time of the amendment to the homestead act of a. d. 1869.
    “And, thereupon, said Lyman J. Jackson asked the court to order said sum for distribution to be awarded to him, and objected to the awarding thereof to said John P. Reid.
    “And the court, being of the opinion that, under -the amendment of the act, said John P. Reid was en-

      entitled to be awarded said money as owner of said homestead (and which the court aforesaid finds to be his homestead), and that the fact that said Lyman J. Jackson’s lien was-older than the homestead act, and in existence at the tirhe of its passage, in no respect precluded said John P. Reid from the right to the award of said money as in lieu of said homestead, orders said money to be awarded to said John P. Reid; to which several findings and opinion and order-of coart the said Lyman J. Jackson objects, and at the time • objected and excepted, and prays that his exceptions may be made of record, which is accordingly. Witness Silas-H. Wright, judge of said court.
    “ [seal.) Silas H. Wright, J. of G.”

      Lyman J. Jackson, for plaintiff in error.
    P. D. Veach, for defendant in error.
   Wright, J.

The record shows the following state of" facts:

John P. Reid bought the property in question, subject to-a mortgage, which is admitted to preclude any claim for-homestead. Jackson, plaintiff in error, holds a judgment, the Sykes judgment, recovered in May, 1867. A sale was ■ made upon the mortgage. After paying it, $290 remains,,, which Jackson claims under the Sykes judgment, and which Reid claims by virtue of his homestead rights. The-court of common pleas sustained Reid’s claim, and gave him the money. This action was affirmed by the district court.

The court below held that Reid’s right to the money was - determined by the amended homestead law of 1869 (66 Ohio ■ L. 48), although Jackson’s judgment was prior thereto. But we can not see that this law has any effect upon the claims of the parties. The first section, declares “ that the ■ family homestead of each head of a family shall be exempt ■ from sale on execution in any judgment or decree rendered in any cause of action accruing after the taking effect of this-act.”

The Sykes judgment, under which Jackson claims, was rendered in 1867, before the passage of the amendment, .and therefore under it Reid could not exercise the right of ■exemption, and could not claim the surplus under the fourth ¡section, as is held by the supreme court in Kelly v. Duffy, 31 Ohio St. 437.

This law, therefore, has nothing further to do with the issues raised, save that by its repealing clause it continues in force former laws as to debts and liabilities contracted prior to the passage of the amended law.

The rights of the parties, therefore, are to be determined by the law of 1850 (2 S. & C. 1145). This law does not have an express claim, like that of the amendment of 1869, with reference to awarding the surplus upon a sale of the .homestead to the debtor; but the supreme court have already held, in the case just cited, that out of such surplus, .after payment of the preferred liens, an allowance may be made, in lieu of homestead, in analogy to the provisions of the homestead act in favor of debtors who are not owners •of homesteads ; and the debtor’s right to the exemption attaches to the surplus proceeds, as against creditors, when •claims do not preclude the allowance of a homestead. When the homestead is sold upon a preferred claim, or •claim against which the exemption can not prevail as to the proceeds, after paying the preferred claim, the debtor’s rights are just such as if so much of the homestead still remained. When land is sold upon execution, and turned into money, the judgment creditor is paid out of the proceeds, according as his right related to the land; but if the creditor had no claim or lien upon the land, he would have no right to be paid out of the funds in the hands of the .sheriff. And so, if the ordinary creditor could not enforce his judgment against the homestead itself, he can not .against its proceeds. When the land is converted into .money, rights are the same as they were before the conversion.

In the case before us, therefore, when Reid’s homestead •was sold it did not destroy his rights of exemption, though the sale was under a claim which precluded such exemption, and Jackson was in no more favorable position than he was before the sale. Comer v. Dodson, 22 Ohio St. 616— 622. If, therefore, Reid’s right to a homestead existed when he made his claim, he is entitled to the surplus in dispute, although not under the law of 1869.

But it is claimed by plaintiff in error that Reid abandoned his homestead, and lost all right to his exemption thereby.

It may well be conceded that a man can not have two homesteads. If he gives up his homestead and moves elsewhere, making the latter residence his home, his right to the former is gone. "What the homestead is, is a question of fact. If the party has been and is living upon it at the time exemption is claimed, his right can not be disputed. And a mere temporary absence will not destroy his right any more than it will change his domicile. And there may be an enforced absence, under which the homestead right .may still exist, as in the case of Kelly v. Duffy, where the dwelling-house was burnt down, and the debtor and his family removed from the premises without intending to rebuild. This was held no abandonment of the right to a homestead.

According to the bill of exceptions, it appeal’s that the order of sale was issued in June, and sale made in July, 1871; “ that in the spring of 1871 the said John P. Reid and his family had gone, for temporary purpose only, into a house in said county,” other than the one claimed to be a homestead. This house adjoined a farm owned by Reid’s wife, which Reid cultivated. Here the family boarded-Reid sometimes spent Saturdays and Sundays at the alleged homestead, and always declared his intention to hold said property as his homestead, if the law would allow him, and the court finds that there is an intention of remaining (returning ?) to reside exclusively and permanently in said alleged homestead at some indefinite time in the future.”

This bill of exceptions does not show any of the evidence upon which the court proceeded. It merely says : “ It appeared to the court” thus and so. Erom what it so appeared we have no means of knowing, and we are unable to say what the weight of testimony one way or the other was. In this state of case, therefore, we can not hold that the court erred in its finding that the premises had not been abandoned, so as to destroy the homestead right. This they must have found in sustaining the debtor’s claim, and we can not see any ground to interfere, in the absence of a report of the evidence.

But, upon the face of the finding itself, we do not see that we can interfere. It states that the debtor left his: home “ for a temporary purpose only,” and counsel for plaintiff in error concede “ that a mere temporary removal is not an abandonment.”

It is further said that the debtor intended to remain (return ?) to the homestead, to reside exclusively and permanently, at some indefinite time in the future. There might, perhaps be a case of a debtor’s home being sold, where some friend had undertaken to become purchaser, with the understanding that the debtor might continue to occupy the. premises, intending to redeem them. In such case, should he temporarily remove, with the intention to return, this:could not be considered an abandonment.

The “ indefinite time in the future” is a phrase perhaps-not quite felicitous in its meaning, unless it may be said of any unexecuted purpose that it is indefinite in its particulars as to time. But however this may be, enough is shown by the record to so far justify the action of the court as-that we can not say, as a proposition of law, that they have1: erred.

Judgment affirmed..


text:
    Sargent v. Railroad Company.
    1. An action may be sustained on a destroyed promissory note, and where a copy of the note is given with, or made part of the petition, the destruction of the note need not be averred in the petition.
    2. In an action on a promissory note, where the petition is in the form prescribed in section 122 of the code, whether the plaintiff be an original party to the note or not, the extrinsic facts, which show his right or titfe to the note, need not be expressly averred. The allegation of title is implied, by force of the statute, in the statement that there is due to him a specific amount on the note which he claims.
    3. An answer to such petition, which merely states that when the action was brought the note was not in existence, can not be regarded as a denial of the allegations of the petition, nor as containing any defense to the action.
    Error to the District Court of Tuscarawas county.
    The plaintiff', Levi Sargent, on January 3, 1870, brought an action in the Court, of Common Pleas of Tuscarawas county, against the defendant, the Steubenville and Indiana Railroad Company, on a promissory note.
    The petition is as follows :
    “ The plaintiff says this, his action, is founded on a. promissory note, of which the following is a copy, with the indorsements thereon :
    “ $296.47. Steubenvile, 0., January 19, 1855.
    “Fifty days after date, the Steubenville and Indiana. Railroad Company promise to pay to Jesse Sweiter, or order, two hundred and ninety-six dollars and forty-seven, cents, for value received. In witness whereof, the president of said company hereunto affixes his signature. “ $296.47. James Means, President of 8. I. R. R. Co.

    “For value received we guarantee the payment of the within note. Levi Sargent,
    “ January 15, 1855. Isaac Carr.
    “ There are no credits on said note. There is due, from the defendant to the plaintiff, on said note, the sum of two hundred and ninety-six dollars and forty-seven cents, which he claims, with interest from the 12th day of March, 1855, and for which he prays judgment against the defendant.”
    To this petition the defendant filed the following answer:
    “ That there was ho such promissory note in existence, as that mentioned in the plaintiff’s petition, at the time of the commencement of this action.”
    1 The plaintiff demurred to the answer, and the court sustained the demurrer and rendered judgment in favor of the plaintiff for the amount due on the note.
    The district court, on error, reversed this judgment, on the ground that the petition does not contain facts sufficient to constitute a cause of action; and this petition in •error is prosecuted to reverse the judgment of the district court.

      James Murray and A. L. Neely, for plaintiff in error.

      J. Dunbar, for defendant in error.
   Day, J.

Two questions are raised by the record: 1. Does the petition contain facts sufficient to constitute a cause of action; and, if so, 2. Does the answer contain facs sufficient to constitute a defense.

1. Section 85 of the code declares that the petition must contain a statement of the facts constituting the cause of action. Tested by this section, or by the common-law rules of pleading, the petition is clearly defective, in not containing statements to show a title in the plaintiff to the note on which the suit was brought. It does not, therefore, expressly show a right of action in the plaintiff. But this delect, it is claimed, may be supplied, by implication, from the averments contained in the petition, under the provisions of section 122 of the code, which is as follows:

“ Sec. 122. In an action, counter claim, or set-off, founded upon an account, promissory note, bill of exchange, or ■other instrument for the unconditional payment of money only, it shall be sufficient for a party to give a copy of the account or instrument, with all credits and the indorsements thereon, and to state that there is due to him, on •.such account or instrument, from the adverse party, a specified sum, which he claims with interest. When others than the makers of a promissory note, or the acceptor of a bill of exchange, are parties in the action, it shall be necessary to state also the kind of liability of the several parties, and the facts, as they may be, which fix their liability.”

The first part of this section is in the nature of a partial ■exception to the general provisions of section 85, and was manifestly intended, so far as relates to instruments for the unconditional payment of money only, to be a modification •of that section. It expressly provides what, in actions on such instruments, “ shall be sufficient” to constitute a cause ■of actiou. It must, therefore, have been contemplated that the required statement contained, expressly and by necessary implication therefrom, all the facts essential to a good cause of action. Though it be a brief mode of pleading, it will in all cases disclose the true ground of the action, and sufficiently inform the defendant of the nature of •the claim to enable him to interpose any defense he may have thereto, and thereby bring the case to trial upon its real merits.

That the construction we have given to this section corresponds to the legislative intent, is made more apparent by the last part of the section y for had it not been the intent that the prescribed statement should include, by implication, all tbe facts necessary to a right of action, there was no need of the last part of the section; but, as if this was intended by the first part of the section, the last part was added, requiring, in the specified cases, a further statement of the facts which fix the liability claimed. But this requirement, being confined to certain cases, carried •the clear implication that it was not intended to apply to those not specified. JExpressio unius est exclusio alternes.

This clause, however, refers only to those parties who are to be subjected to “ liability,” and therefore relates only to parties adverse to the party setting up the claim. It can in no case include the plaintiff, except upon a counterclaim or set-off. The clause, then, can have no effect in the present case, other than to strengthen the position of the plaintiff, as being relieved from the necessity of stating his title to the note in suit, further than in accordance with the general provisions of the first part of the section. This he has done. Whether his title is legal, or merely equitable, under the provisions of the code, he may sue, as he has done in this case, in his own name, and, upon the proper issue, be required to establish his title by proof.

The construction we have given to the section accords with that given by the New York Court of Appeals to a similar provision in the code of that state. In Prindle v. Caruthers, 15 N. Y. 425, speaking of a like section in the code of New York, it is said :

“ The section is express and imperative ; it shall be sufficient to give a copy of the instrument, and to state that there is due thereon to the plaintiff from the adverse party a specified sum, which he claims.”
“ A complaint thus worded implies that the plaintiff owns the instrument in some legal mauner of deriving title ; that the event has happened on which the payment depends, and the amount is expressly stated.”

But this case is much shaken in that state by the later case of Conkling v. Gandall, I Keyes, 228. The principle settled by a majority of the court in this case, would require a party pleading under section 122 of our code, to show expressly his title to the instrument relied upon.

It is to be observed, however, that the analogous section of the New York code contains no clause like the last one in ours. This clause is in the nature of exceptions to the general provisions of the first part of the section ; and, as we have seen, impliedly excludes the idea of further exceptions than those enumerated. We are, then, forced to the construction, so far as relates to the present question, given to the section in the earlier case in that state, and are not left at liberty to accept that of the later case.

The construction we have given the section, it is believed, is in accordance with that which it has received by the courts of the state generally. Ohio Life Ins. Co. v. Groodin, 1 Handy, 21; Myers v. Miller, 2 W. L. M. 420.

The subject is carefully considered and commented upon in Swan’s Pleadings and Precedents. Speaking of the section in question, the author says (p. 184) :

“ It will be observed, that this provision of the code requires the party to allege that there is a specified sum due ¿o him on the account or instrument, from the adverse party, which he claims. This allegation, by an assignee of an ae•count, note, bill, or other money instrument, can not be true, in fact, unless the party alleging it own the claim or instrument. It is, in eflect, as well as by force of the provisions of the code, an allegation of title in the party setting up the instrument or account, and is substituted for a ■direct allegation of the assignment; just as, under this same provision of the code, the copy of the note is substituted for an allegation of the making of the instrument, etc.”

And again, on page 186 :

“ Where, then, the party setting up an account or money instrument under this provision of the code, was or was not a party to the original account or instrument, the extrinsic facts showing right or title need not be expressly .averred. The allegation of title is implied in the statement that there is due to him a specific amount on the account ■or instrument, which he claims.”

We are, then, constrained to hold that, although the petition does not expressly show title to the note in suit, since the petition conforms to the statute, the implications are such, it must be regarded as good against an attack by general demurrer.

2. Concerning the sufficiency of the' answer, it is to bo observed that, unlike the petition, it can receive no aid from any exceptional provision of the code. It is controlled by the general provisions of section 92, which declares that the answer shall contain a general or specific denial of each material allegation in the petition controverted by the defendant, and a statement,of any new matter constituting a defense.

The answer is neither a general nor specific denial of the-allegations of the petition. It does not directly controvert any material fact either expressly or constructively contained in it. Nor is it clear that it was intended to do so-indirectly.

It does not set up any new matter constituting a defense-to the merits of the action. It neither denies the execution of the note by the defendant, nor does it assert that-the note never had an existence. It merely avers that when the suit was brought it was not in existence.

Without controverting the allegations of the petition, or setting up any matter of defense to the indebtedness evidenced by the note, the answer seems to be based on the-theory, that, admitting the validity of the note, no action can be maintained on it if the note had been destroyed before the action was brought; or that, if it could be maintained, it can not be done without an averment in the petition that the note had been lost or destroyed.

It was never supposed that the holder of a negotiable-note was remediless merely because of its loss or destruction. In England, and some of the states of this country, it has been held that he could not recover in an action at law, but must seek his remedy in a court of equity, whore he could be required to indemnify the party liable thereon from being again subjected to payment of the note.

But where the note was not negotiable this, rule seldom prevailed. When, however, the note, though negotiable,, had been destroyed, and therefore could “ never rise in judgment against the defendant,” the right of the party who was the holder of the note to maintain an action at law against the party liable thereon, is now generally conceded in both countries. 2 Daniel on Neg. Inst., § 1482; Chitty on Bills, 305 (*268).

In Thayer v. King, 15 Ohio, 242, it was settled in this state that an action at law, without indemnity, may be maintained on a destroyed note. The answer asserts the non-existence of the note in the present case; that fact .alone, then, constitutes no defense to the action.

But the petition contains no averment that the note was lost or destroyed, and this, it is claimed, is a fatal defect.

The loss or destruction of the note on which the action is based constitutes no part of the cause of action. The only reason why the loss or destruction of the instrument which is the foundation of a suit need be averred in any case, is, to furnish an excuse for not making profert of the instrument, or for not attaching a copy to the pleading under the requirement of section 117 of the code.

In Thayer v. King, which was an action of assumpsit on lost notes, it does not appear that the declaration contained a count on lost notes.

In Viles v. Moulton, 11 Vt. 470, the same poiut was made, and the chief justice, in delivering the opinion of the court, said :

“ This was an action on a note. The note was not produced in evidence, but the plaintiff endeavored to prove its loss and contents. The first objection that was raised on the part of the defendant was that there wa's no count in the declaration upon a lost nóte. We think that there is no necessity for such a count in any case. . , . It is not usual, and not required in the courts of the United States, to declare specially on a lost note as lost.”

Where a count on a lost note has been deemed essential, it was required as a foundation for secondary evidence. But in Renner v. Bank of Columbia, 9 Wheat. 581, it was said that the English practice on this subject had not been adopted in this country; and it was held that, to admit secondary evidence of a lost note, it was not necessary that there should be a special count .in the declaration upon a lost note.

But the question now in hand is not one of evidence ; it relates solely to the sufficiency of the pleadings. Moreover, a copy of the note is given in the petition ; so there is no foundation for the objection to the petition as a pleading. The question made can properly arise only as one of evidence on an issue requiring proof of tbe execution or contents of tbe note.

What is said by tbe judge delivering the opinion in Larimore v. Wells, 29 Ohio St. 13, well applies to this case, and is decisive of it against the sufficiency of tbe answer. It was held by the court, in that case, that “ an answer in a suit on a promissory note, which merely states as a defense that the note was ‘ not outstanding against the defendant,’ and that ‘there is nothing due’ on the note, •ought not to be allowed; and if not objected to by the plaintiff, the court might, of its own motion, order it stricken from the files.”

It follows that, in the chances of loose pleading taken on each side of the case, the plaintiff, aided by section 122 •of the code, must be declared to be the successful party.

Judgment of the district court reversed, and that of the ■common pleas affirmed.

Johnson, C. J., and Ashburn, J., did not sit in the case.


author: Ashburn, J.

text:
    Farrell v. The State of Ohio.
    1. Where one does an act apparently in violation of a criminal statute, hut, in fact, under circumstances that tend to show a want of guilty intention, the excusing circumstances may he given in evidence on the trial, to show his good faith in the transaction, where that is a material element, or that he was ignorant of the facts that would make his acts criminal.
    2. A person indicted for selling intoxicating liquors, in violation of the provisions of section 1 of the act to provide against the evils resulting 'from the sale of intoxicating liquors in the State of Ohio, may, on the trial, show that 'at the time he bought the article alleged in the indictment to he intoxicating liquor, it was represented to him to be free from alcoholic properties — that he bought it with the understanding and believing that it was not intoxicating liquor, and sold it with such understanding and' belief.
    Error to the Court of Common Pleas of Lorain county.

      The indictment contains four counts.
    The first and second counts each charge a sale of intoxicating liquors to be drank in and .upon the premises where ■sold.
    The third and fourth counts each charge a sale of intoxicating liquor to a person in the habit of getting intoxicated.
    The jury, on the trial, returned a verdict of guilty on the second and third counts.
    The second count alleged the unlawful sale was made on the 16th day of October, a. n. 1873, to one Glen Gallup:
    The third count alleged the unlawful sale was made on the 16th day of May, 1874, to one Glen Gallup, a person in the habit of getting intoxicated, and charging that defendant then and there well knew that Glen Gallup was a person in the habit of getting intoxicated.
    On the trial, the state offered testimony showing that, in the month of October, 1873, defendant kept a saloon, a place of public resort, and sold a certain bitters to Gallup, which bitters the defendant said had the same effect upon him as whisky; that Gallup got bitters there twice in that month, and drank it upon the premises; that one Tilden bought and paid for it the first time, and the next day Gallup bought and paid for it himself.
    The testimony further showed that on or about the 18th ■of May, 1874, defendant sold ale to Gallup, and that he knew, at the time, Gallup was a person in the habit of getting intoxicated.
    On his conviction, defendant made a motion for a new ■trial, assigning numerous reasons therefor, only one of which it is necessary to notice. It is claimed the court ■erred, on the trial, in refusing to allow certain testimony, proposed to be offered by defendant, to be given to the jury. The testimony rejected, and question of law made thereon, will sufficiently appear in the opinion.
    On the overruling of the motion for a new trial, defendant took a bill of exceptions, embodying all the testimony given on the trial, as well as so much of the excluded testimony as is necessary to explain the exception and the ruling thereon.
    : On the second count, the defendant was sentenced to pay a fine of thirty dollars, and costs of prosecution; and, upon the third count, to pay a fine of thirty dollars, costs of prosecution, and be imprisoned in the jail of Lorain county for twenty days.
    A writ of error is now prosecuted to obtain a reversal of' the judgment of the court of common pleas.
    A. L. Johnson, and C. W. Johnson, for plaintiff.

      Isaiah Pillars, attorney-general, for defendant.
   Ashburn, J.

The question in this case arises upon the-rejection of certain testimony which defendant below proposed to offer on the trial, and which related exclusively to the offense charged in the second count.

The conviction of the defendant on the third count was clearly sustained by the proofs in the case. As we understand the record and arguments of counsel, no question for review is made as to the proceedings that resulted in a conviction and sentence upon the third count in the indictment.

The section of the statute charged to have been violated by defendant, in the second count, declares: “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell, in any quantity, intoxicating liquors, to be-drank in, upon, or about the building or premises where-sold, or to sell such intoxicating liquors, to be drank in any adjoining room, building, or premises, or other place of public resort connected with said building.” S. & 0. 1131.

It is not unlawful to sell intoxicating liquors in this state.. The sale becomes unlawful, only where sold with a purpose-prohibited, or to prohibited classes of persons named in the statute. It is further provided that the giving away intoxicating liquoi’s, or other shift or device to evade the provisions of the statute, shall be deemed and held to be unlawful selling. No shift or device is alleged or sought to-be proved against defendant. Tbe article sold is charged and claimed to be intoxicating liquor.

The evidence tends to show the article sold and alleged to be intoxicating liquor was called, in the trade, bitters, and was sold to defendant by that name. ■ The accused interposed two defenses — -first, that the bitters sold was free from alcoholic properties ; and, second, that if the bitters did, in fact, contain alcohol, and was intoxicating by reason thereof, he- was wholly ignorant of such fact; that he bought the bitters upon information and in the belief that the bitters was free from alcoholic properties, and sold it free from all intention of violating the statute.

If sustained by proof, either of these claimed defenses-would constitute a valid, defense to the charge set out in the second count. As to the second claimed -defense, such ignorance of fact as would relieve the alleged transaction of all criminal purpose on the part of the accused, is a defense. Testimony tending to prove the accused was ignorant of that fact or condition which constitutes the criminal element of the criminal charge is competent testimony.

. In such ease, the maxim of the criminal law, ignorantia fiaeti exeusat applies to his case. The excusing principle of this maxim applies with great force where the business is-recognized as lawful, and a transaction, in its prosecution, only becomes criminal when it is carried on with a purpose to violate the law. To give this maxim practical effect in a proper case, is but an assertion of natural justice, for the reason that to render an act criminal the intention with which it is done must be so — the will must concur with the act. To make a transaction criminal, there must be both will and act entering into the transaction. 1 Paine C. C. 16, 21; 1 Conn. 502-505 ; 1 Bishop on Crim. Law, § 301. ■

Ignorance or mistake in fact, guarded by an honest purpose, will afford, at common law, a sufficient excuse for a. supposed criminal act. Bishop says, in his work on criminal law (§ 287) : “ The doctrine which requires the existence of evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal.”

Sir William Blackstone, 4 Com. by Ken. 25, says: “Ignorance or mistake is another defect of the will, when a man intending to do a lawful act does that which is unlawful. Por, where the will and the deed act separately, there is not that conjunction between them which is necessary to form a criminal act. But it must be an ignorance or mistake of fact, and not an error in point of law. As if a man intending to kill a thief or housebreaker in his own house, under circumstances which would justify that act, by mistake kills one of his own family, this is no criminal act.” See also The United States v. Pearce, 2 McLean, 14.

On the trial, defendant, without objection, offered testimony tending to show the bitters was free from alcoholic properties ; that its intoxicating quality, if any it had, was due to the presence of gentian or other property, and not to alcoholic stimulants; that tests had been applied to the bitters, by persons competent to determine the fact, to show that the presence of alcohol in the bitters was so small that it could not be detected except by distillation. The accused then offered to prove, as shown by the recox’d, “ that at the time he purchased the bittei’s he was informed they contained no intoxicating propei’ties whatever; that they had been inspected by a United-States govei’nment inspector, and pronounced such a compound as needed no government revenue stamp thei’eon; that he sold them in good faith, believing them to be free from all alcoholic stimulants, which offer the court refused, and to which refusal defendant excepted.”

We are unable to see why the proposed testimony was not competent. The accused’s intention at the time of the sale was involved in the issue. It was competent to show that, from the circumstances of the case, he was free from culpable purpose, and one of the circumstances tending to show freedom from guilty intention in the sale was the fact, if fact it proved to be, that he had bought the bitters under the information and belief that it was an article free from alcoholic properties; that he sold it, honestly believing, from information obtained at the time of the purchase, that it was not an intoxicating liquor. We think the testimony would have tended to show good faith and want of guilty intention on the part of the accused.

When put upon his trial the law presumed him innocent, and that presumption was as clear and strong in his favor on the day he bought the bitters as when the jury was sworn.

The rejected testimony might be of slight weight, yet, as it was competent, it was error to exclude it from the jury.

To warrant a conviction upon a criminal charge, the state must show the guilt of the accused, upon the specific charge, beyond a reasonable doubt. The proofs in criminal cases are sometimes so evenly poised between proof of actual guilt and an honest uncertainty in the minds of the jurors, that a slight amount of testimony might serve to justify an acquittal of the accused.

The judgment of the court of common pleas on the second count in the indictment is reversed, and remanded for further proceedings ; the judgment of that court on the third count is affirmed, and remanded for execution of sentence.

Scott, J., dissented.


text:
    Bloom v. The City of Xenia.
    Bloom was convicted and fined for violating an ordinance of the city of Xenia, passed in the following manner: The proper committee reported to the town council two ordinances, one for elections, the other the one under consideration. There being eight members of council, and six present, the rule as to reading on successive days was dispensed with, by an unanimous vote. The first ordinance was then passed, and, without any other or second dispensing with the rule, the second, or heer ordinance, passed, one of the six votes present being against it: Held, Section 98 of the municipal code was not complied with; the rule was not dispensed with, as to the beer ordinance, which was, therefore, improperly passed.
    Error to the Court of Common Pleas of Greene county.

      Little & Shearer, and J. Winans, for plaintiff in error.

      E. H. Hunger and J. A. Cook, for defendant in error.
   Wright, J.

Wendell Bloom was prosecuted, under an ordinance of the town of Xenia, which prohibited ale, beer, and porter-houses and shops, etc. The defense made by Bloom, which we shall consider here, was, that the ordinance in question was not properly passed, and was therefore a nullity.

At a meeting of the town council of Xenia, held September 27, 1869, there were six members present, eight being the full number. The ordinance committee reported two ordinances, one relating to elections, and the other, being the one in question, to prohibit ale, beer, and porterhouses and shops, etc. The rules were suspended, by vote of all six councilmen present, the yeas and nays being duly entered on the journal. Thereupon the first ordinance was passed, and without any other or further .suspension of the rules, the second ordinance was passed, one member voting against it. Eor a violation of this ordinance, Bloom was fined $25 by the mayor, and this writ of error is prosecuted to reverse the judgment.

Section 98 of the municipal code, 66 Ohio L. 166, is as follows:

“All by-laws, resolutions, and ordinances of a general or permanonx nature, shall be fully and distinctly read on three different days, unless three-fourths of all the members elected shall dispense with the rule ; and the vote on such suspension shall be taken by yeas and nays and entered on the journal.”

Bloom now claims that the ordinance was introduced and passed on the same day, not having been read on three different days, and that the rules were not properly suspended, inasmuch as under one suspension both ordinances were adopted.

'Whether provisions like that of section 98 are mandatory or directory is a question, with regard to which a contrariety of opinion exists. In New York they are held to be directory merely. Doughty v. Hope, 8 Den. 252. In the matter of Mount Morris Square, 2 Hill, 20; Striker v. Kelly, 7 Hill, 9, although in this ease Brunson dissents; Elmendorf v. Mayor, 25 Wend. 696; Massachusetts is to the contrary; Morrison v. City of Lawrence, 98 Mass. 219.

New Jersey seems to hold to strictness in the passage of ordinances. Stale v. City of Hudson, 5 Dutch. 478.

Such also is the holding in Indiana. City of Delphi v. Evans, 36 Ind. 90.

Again, Pennsylvania holds that a provision in a statute, that existing borough ordinances shall remain in force, provided that they shall be recorded within four months, thereafter, is merely directory; and a non-compliance therewith does not affect the validity of such ordinances. Trustees of the Erie Academy v. City of Erie, 31 Pa. St. 515; Whalin v. Macomb, 76 Ill. 49.

In this state it is held that certain provisions of the constitution are directory to the legislature, and not mandatory, as in Miller & Gibson v. State, 3 Ohio St. 475.

Article 11, section 10, that “ no bill shall contain more than one subject, which shall be clearly expressed in its title,” is held to be directory in Pim v. Nicholson, 6 Ohio St. 177.

The clause of section 16, article 2, which provides that “ the section or sections so amended shall be repealed,” is directory to the general assembly. Lehman v. McBride, 15 Ohio St. 573.

Section 16, article 2, which provides that “ no bill shall contain more than one subject,” is directory merely. The State ex rel. Attorney-General v. Covington, 29 Ohio St. 103.

Similar constitutional provisions are held directory in California, Maryland, and Mississippi, but they are recognized and enforced as mandatory in Alabama, Georgia, Indiana, Iowa, Kentucky, Louisiana, Michigan, Minnesota, Missouri, New Jersey, New York, Texas, Wisconsin, and Nevada. Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; Weaver v. Lapsley, 48 Ala. 224; Cooley Cons. Lim. 74 Giddings v. San Antonio, 47 Texas, 548; Ind. Cen. R. R. v. Potts, 7 Ind. 681; Walker v. Caldwell, 4 La. Ann. 297; State v. Miller, 45 Mo. 495; People v. McConnell, 35 N. Y. 449 ; Cannon v. Hemphill, 7 Tex. 184; City of San Antonio v. Gould, 7 Tex. 49; Supervisors v. Heenan, 2 Minn. 330; People v. Lawrence, 36 Hart. 177; State v. Rogers, 10 Nev. 250.

The rule, therefore, being established in this state as to-legislative action, shall the same latitude be allowed to municipal councils as to the general assembly?

The efforts of courts are to sustain acts of the legislature; they will not be declared unconstitutional unless-clearly so. The legislative is a co-ordinate branch of the-court with the judicial, and the proceedings of the one will not be lightly interfered with by the other. As is said in Miller § Gibson v. State, p. 482: “ Nor is it to be forgotten that every reasonable intendment is to be made in favor of the proceedings of tho legislature. It is not to be presumed that the assembly, or either house of it, has violated the constitution.”

This further remark may be made with regard to the general assembly. By the terms of the organic law, “ the legislative power of the state ” is declared to be “ vested in the general assembly.” This grant of power is general in its terms, not special; it embraces all such legislative power as the people of the state could, under the federal constitution, confer — the whole “ legislative power of the state.” The limitations upon the exercise of this power thus broadly conferred, are special, and are to be found in other parts of the same instrument. When, therefore, the power of the legislature to enact a given law is disputed, the proper question is, whether such exercise of legislative power is clearly prohibited by the constitution. The grant of power being general, the question is as to the existence of a limitation arising from special prohibition. Lehman v. McBride, 15 Ohio St. 592.

In marked contrast to this view of the general assembly, is that which the law takes of the municipal corporation. Its power is strictly limited. It has that which is expressly granted or clearly implied, and no other; and doubtful claims to power are resolved against it. Minturn v. Larue, 23 How. 435.

The restrictions upon the municipality and the powers-of the legislature are thus illustrated in Thompson v. Lee County, 3 Wall. 330: “A county or other municipal corporation has no inherent right of legislation, and cannot subscribe for stock in a public improvement, unless authorized to do so by the legislature. Snch a. corporation acts wholly under a delegated authority,, and can exercise no power which is not in express terms, or by fair implication, conferred upon it. But the-legislature of a state, unless restrained by the organic-law, has the right to authorize a municipal corporation to take stock in a railroad or other work of internal improvement.”

Similar views are held in Clark, Dodge & Co. v. City of Davenport, 14 Iowa, 495; Nichol v. Mayor, 9 Humph. 252,

While, therefore, the policy of our law is to concede-power to the legislature, and to recognize that which has-been done as rightly done, with regard to municipal corporations they must make their power apparent, and show regularity in their acts. Speaking of the enactment of an ordinance, it is said in Blanchard v. Bissell, 11 Ohio St. 101: Its vitality depends, as we think, upon the fact that it was-regularly passed by the council.”

Later cases in New York seem disposed to hold municipalities to a stricter course of regularity in proceedings.

In the Matter of Petition of Addison Smith, 52 N. Y. 526, the statute required that no vote should be taken upon an assessment ordinance or resolution until it had been published three days. A resolution, passed without such prior publication, was held illegal, and an assessment founded •upon it void.

A similar statute, prohibiting the passage of resolutions until after publication, was held mandatory, and the assessnrent without such publication invalid. In the Petition of Douglas, 45 N. Y. 42. So also In the Matter of Phillips, 60 N. Y. 16; In the Matter of Little, 60 N. Y. 843; In the Matter of Anderson, 60 N. Y. 457; The State v. Hoboken, 38 N. J. Law, 110. See also State v. Smith, 22 Minn. 218.

The courts of this state hold municipal corporations to ¡a strict accountability in the exercise of power.

In Welker v. Potter, 18 Ohio St. 85, it is held to be a condition precedent to the exercise of authority to pass an assessment ordinance that the council should have declared by resolution the necessity of the improvement, and published the resolution. And there are various cases in our reports holding certain preliminary proceedings jurisdictional, without which proceedings are invalid. Sessions v. Crinkilton, 20 Ohio St. 360; Stephens v. Daniels, 27 Ohio St. 527; Corey v. Gaynor, 22 Ohio St. 584; Cincinnati v. Pickett, 26 Ohio St. 49.

"We think, therefore, that it may be said that the policy •of our jurisprudence is to require of municipal corporations .a strict observance of their powers, and that in the exercise of these powers they should observe the forms the law has •directed. All tribunals of special and limited jurisdiction must show the authority under which they act, and act in "the manner pointed out.

The provisions of this section 98 have been before the supreme court upon two occasions. Upington v. Oviatt, 24 Ohio St. 232; and Smith v. Lynch, 29 Ohio St. 261. But in neither case did the question require decision, and it was deemed unnecessary to pass upon it.

We hold, therefore, that the statute in this matter is imperative in its injunctions. Certainly nothing can be more .so than the language employed — “ all by-laws, etc., shall Re read,” etc. — unless three-fourths dispense with the rules.

But it is claimed that the rules were dispensed with. The fact was that there was a proper vote to dispense, and then the election ordinance was put upon its passage, following which came the ordinance under consideration. This was irregular. Does one vote to dispense with the rules suspend them indefinitely ? Can they be thus suspended for an entire session of the council, and measures •of every character passed at once ? This, we think, would be entirely too liberal.

The statute says that “ all ” by-laws, etc. The word “ all” may mean “ every.” Stone v. Elliot, 11 Ohio St. 258. And is to be so construed in this connection. We may therefore read the law thus : Every by-law, resolution, or ordinance must be read on three different days, unless the rule is dispensed with. The rule must therefore be dispensed with ns to the particular ordinance.

Doubtless the purpose of the statute was to prevent laasty legislation ; a purpose entirely defeated, if, upon the suspension of rules to pass one ordinance, any number can be successively rushed through.

The case itself shows the propriety of insisting upon an •observance of the statute. There were eight councilmen .all told, and it required six to suspend the rules. They all voted for such suspension, but when it came to the vote on the beer ordinance, one member voted against its passage. Had there been a separate suspension vote as to the beer ordinance, this member could have defeated its passage, at least for that evening ; but by the course which is adopted he is compelled to aid by his vote to suspend the passage of an enactment he desires to defeat.

Without therefore considering the other causes assigned, we hold that the rules were not properly suspended, and the judgment is reversed.

Judgment accordingly.