text:
    *The State of Ohio, for use of Monroe Township, v. Geo. Williams, Benjamin Long, and Samuel Pope.
    The treasurer of a township school fund is not a disinterested witness when offered by a township, in a suit against his predecessor in office, to prove-that he received less money than he receipted for to his predecessor on their settlement.
    He can not be admitted to testify on the ground of necessity, to prevent a. failure of justice.
    The township trustees have no authority to release a treasurer from his liability for any portion of the school fund belonging to the township..
    This was an application for the allowance of a writ of error,, to the Supreme Court of Logan county.
    The action was debt upon the bond of George Williams, a township treasurer, conditioned for the faithful discharge of his duties, .and the payment, according to law, of all schools or other public; moneys, which should come into his hands for school purposos,, etc.
    The breach assigned was that he did not pay over to one Moots,, the duly qualified successor of said Williams, all moneys that Game-to his hands, to wit: the sum of $500.
    The plea was non est factum, with a notice, in substance, that, after the qualification of Moots, the successor in office, and on April 14, 1842, he, and the said Williams, had a settlement, and that there was found to be in his hands $340.51, which was then paid over. Also, that there was a settlement on the same day, as-to other funds, embracing all that came to his hands for school purposes, and there was found in his hands $454.85, and notes-upon individuals to the amount of $126.12, for uncurrent money loaned in 1840, by order of the school directors, which, by agreement, was to be paid over when demanded, but that demand had not been made.
    The cause was tried by a jury, before Judges Wood and Birchard, on the circuit, in 1844, and a verdict rendered for the plaintiff. The sum due, in equity, was assessed at $135.05. Judgment-was rendered accordingly.
    *During the trial, a bill of exceptions was taken, showing the following facts:
    That Philip Moots, the successor in office, was offered as a witness by plaintiff, to prove that ho received and receipted for $97 of orders from the school directors which had been previously credited to said Williams, on a prior settlement with the county auditor.
    The witness was objected to as interested, and the objection sustained. The plaintiff then produced a release, to the said Moots, from the trustees of the township, releasing him as treasurer, for the consideration of $100, from all liability on account of any school funds received by him from Williams, late treasurer, except, certain specified funds, and particularly for $583, pi-ovided he should pay $485.97. The execution of the release was proved by one of the trustees, who testified that Conrad and John Moots-had verbally agreed to pay the amount in controversy, if the plaintiff Jailed in the action to recover it of the defendants. To-this release the defendants objected that the said trustees had no-power to release the said Philip Moots from his liability, and to-take the verbal promise of John and Conrad Moots in lieu thereof, which objection was sustained, and the witness excluded from testifying. /
    Stanton & Lawrence apply for a writ, on the ground that the court erred: 1. In ruling out the testimony of Philip Moots;
    2. In determining that the trustees of the township had no power to release him, and restore his competency.
    Wm. Lawrence, for plaintiff:
    Two questions are presented on the record in this case:
    Is the township treasurer a competent witness against his predecessor, to state the amount of money paid over on settlement?
    If the treasurer is not competent on the ground of interest, can the township trustee execute a release of his liability so as to make him competent?
    *1. The township treasurer is a competent witness against his predecessor. If he is not, it is because he is interested in the ■event of the suit. To disqualify him, his interest must be a legal interest in the event of the suit. 3 Term, 33. He has no such interest. . When the treasurer now in office was elected, he became chargeable on the books of the township with all funds 'which he actually received from his predecessor, and no more. If ho gave a receipt or other evidence of the amount received, it is evidence against him, unless he explain it away by proof. His liability to the township can not therefore be affected by the event ■of this suit. If the township recover, the treasurer in office must •charge himself with the amount recovered when paid to him. If the township fail, his liability is not affected, being fixed by the .amount actually received. The township is amply secured against fraud, so far as relates to the amount received by a township treasurer, by section 14 of the act of March 7, 1838. Swan’s :Stat. 830. The interest which disqualifies must be so direct .and immediate, in the event of the suit, that the legal consequences of the judgment will be to better the situation of the witness, by either securing an advantage or repelling a loss. '7 Term, 60. I have shown that no such advantage would be .gained or loss repelled. A transcript of the judgment would be no evidence from which he might derive advantage or repel loss, because it can only be given in evidence for or against the immediate parties to the suit, 3 Term 33; and he is not a party to .the suit.
    It has been repeatedly decided that, in corporations of a public-¡nature, including counties, towns, school districts, etc., the members of' such corporations, though parties to the suit, are competent witnesses.' In the case of Stewart v. Saybrook Township, the township trustees were permitted to testify, which is a case analogous to this. Wright, 374; 5 Ohio, 284; 6 Cow. 367. The reason why officers of public corporations appear to have been decided competent witnesses is, that they have no individual interest. It seems clear that there is not, on the part of Moots, such a present, certain, ^direct, vested interest as to disqualify him, 8 Wheeler’s Dig. 491; 2 Stark. Ev. 745; but, on the contrary, there is only the bare possibility of an uncertain and contingent interest, depending on a settlement under section 14 of the law referred to, or on the event of a suit which ¡might possibly be brought by the township, if he failed to account lor all that his receipt specified he received from Williams, which, according to the authorities, does not disqualify.
    2. Was it competent for the township trustees to execute a release ? Had they power to execute it? Their powers depend ■upon their duties as defined by law. They have, ex necessitate ■rei, power to do every act “ necessary and proper ” to the discharge of their duties. By section 15 of the act to provide for” the incorporation of townships, passed March 5, 1831, Swan’s Stat. 952, it is enacted, “ that the trustees shall settle the accounts of the township treasurer, etc., and examine and settle all demands and accounts against the township; and for every demand .against the township, allowed by the trustees, the creditors shall ■be entitled to receive from said trustees an order on the township treasurer for the full amount thereof.” By this section, the trustees are invested with the power of a general superintendence ■over the whole of the township funds, including school funds, to ■settle demands against the township, etc. By section 19 of the same act, whenever the township treasurer’s bond for township funds shall become forfeited, the township clerk, “ by order of the trustees, ” is required to put it in suit. By ■section 12 of the act of March 7, 1838, “for the support and better regulation of common schools, etc., the township treasurer is required to give bond as treasurer of the school funds, which, when forfeited, is to be prosecuted by the township clerk. Swan’s Stat. 829. By section 13 of the act first cited, it is provided that to the township clerk; “for attending such suits as-may be instituted- in favor of the township, and for any other township business they may require of him. to perform, the-trustees shall allow said clerk a reasonable compensation.” This provision relates to all suits brought on *bonds of treasurers, whether as treasurer of township funds or of school funds. From these provisions, it is apparent that the trustees have the solo management and control of the township funds and township school funds; and that all suits “ in favor of the township ” are to be managed and controlled by them, through the township clerk, and that they settle and allow all proper demands against the township, including necessarily the expense of jxrosecuting suits, attorney’s fees, etc.
    Those powers necessarily carry with them the authority to execute a release. If such authority does not belong to the trustees,, it does not exist, and thus they are clothed with power to sue, but not with the powers necessary to carry on the suit. Such a construction would nullify the objects of the statutes, which courts will always construe in such manner that they shall avail for the-purposes of their enactment, rather than they should fail to carry out the intention of the legislature.
    B. Stanton, upon the same side:
    .Moots was liable to the township for the money that came into-his hands, and no more. The decision in this case could not affect that liability. It is not like a ease where a witness has received money and is admitted to have been once liable, and seeks to discharge himself by testifying that he has paid it to another. The¡ question in controversy must be decided against the plaintiff before the interest of the witness can be established. The record can not be used for or against the witness, because the parties will not be the samo. If the fact be established in favor of the claim set up by Moots, he can not use it, because it may have been found upon his testimony. But if interested, he should be admitted from necessity, to prevent a failure of justice. 1 G-reenl. Ev. 483; 2' Stark. Ev. 753. The case is clearly within the rules laid down by those authors; for settlements between a treasurer and his predecessor arc not required to be in the presence of witnesses. Swan’s-Stat. 830, sec. 14. From the nature of the transaction *it is ordinarily impossible to ascertain the amount of money paid by ■a treasurer to his successor, except by the testimony of one of the parties.
    Again, the trustees have power to restore competency by a release. It is a necessary incident to the power to sue. Th'e power •to sue is discretionary, and carries the power to refuse to sue. The trustees may sacrifice the interests of the township to as great ■an extent by refusal to sue, or by an ill-advised settlement of a pending suit, as by the release of a witness from liability. The law confers power to release. Swan’s Stat. 949, 952.
    If, on settlement with the trustees, Moots shall be able to satisfy •them that he never received this $97, will they not be authorized to allow him a credit for the improper charge ? And will not the allo'wance be binding on the township? Undoubtedly. This shows ■the court were incorrect.
    No argument was presented on the other side-
    A non allocatur was indorsed upon the record, signed by all the judges.
   Birchard, J.

In the settlement that took place between the •defendant, Williams, and his successor in office, the appropriate papers were executed between the two, to evidence the discharge of the former, and the liability of the latter, for the then existing -school fund of the township.

This settlement was required by law. “ At the expiration of the treasurer’s term of office he shall deliver over to his successor in office all the books, etc., belonging to his office, with all moneys and property of every description in his hands belonging to said township, or any district therein, and take the receipt of his successor therefor, and deposit the same with the township ■clerk, within ten days thereafter.” Swan’s Stat. 830. The first •error assigned, makes this question: Was Moots, the successor, a •competent witness to prove that the receipt executed by him, pursuant to this provision of *the statute, was incorrect; that it embraced a sum too large by $97 ?

It may well be admitted that these settlements can be made in the absence of third parties, and that no one but the parties will be able to testify concerning it, for the statute contemplates that better evidence of the particulars of the settlement shall be furnished than the uncertain memory of any witness, and that this «evidence shall be deposited with the superintendent of common schools of the township. The written receipt is the evidence. It is to be deposited with the clerk to show, in all future settlements-with the county auditor, or his successors, the sum with which the-treasurer should be charged.

Much inconvenience, and many abuses, may be expected to occur, if the officers of townships, regardless of the evidence prescribed by law for the safety of the school fund, were generally in the practice of interfering in disputes between two treasurers, and commencing suits in the name of the state, in order to enable one-to avoid the liabilities incurred by his official voucher, and by means of his own testimony, to cast the burden upon the other, whom that voucher was designed to protect. Under such a course of practice it is not difficult to see that the means of securing the school fund, and a correct, safe system of accountability on thia part of the officers intrusted with it, would be inefficient, and uncertain.

On the other hand, if they will be governed by the legal evidence pi'ovided by law, instead of attempting to amend it by the-oaths of the parties, whose duty is to furnish that evidence, their task is plain, as it is safe for the public. This view of the issue makes it substantially, and in fact, a controversy between Williams and the witness Moots. The one was interested in maintaining the payment of the ninety-seven dollars in cash; the other in controverting the payment. It is something strange, if Moots’ interest was not equal to Williams’. He had given a receipt, prima facie, discharging Williams, and was liable to an action for the money if he had received it, and if ho had not received it, liable for a careless, or faithless performance of duty in discharging the-same, without receiving it. A *man of sound common sense, viewing the question upon its merits, untrammeled by any supposed technical rule, would not hesitate to declare it unfair and inequitable to permit Moots to testify to the truth ol his own statement, and to deny to Williams the advantage of his oath to the truth of his counter statement. When a rule of law works an absurd result in a particular case, it is, in general, worth one’s while to cautiously examine, and see that it is not misapplied. It seems-to us that no rule can be correctly applied to this case, which will-result in the conclusion that Moots was disinterested, and a competent witness.

Counsel have argued as if the true test of interest were, whether or not the verdict might be used in a suit in any way for or against the witness. If it could be so used, it is obvious he would bo incompetent, yet it by no means follows that if it could not be so used, he would be.disinterested. “ The law,” says Gilbert, “ looks upon a witness as interested, when there is a certain benefit, or disadvantage, attending the consequence of the cause one way.” Thus, a person who has deposited with the sheriff a sum of money in lieu of bail, which, by rule of court, is to abide the event of suit, is not competent for defendant. 1 Phil. Ev. 63 ; Cowen and Hill’s Notes, 114, and cases there cited.

The auditor of Logan is superintendent of the common school® for that county. Swan’s Stat. 835, sec. 29. The clerk of Monroe is superintendent for the township. Swan’s Stat. 832, sec. 21. Both are presumed to have knowledge of the state of this school fund. In the annual settlements with these officers, by the township treasurer, they should rely upon the evidence provided by law, and the legal presumption is, that they would do their duty. If that evidence charge Moots, as treasurer, with this sum of ninety-seven dollars, they ought to make him account for it, and leave him to resort to his personal action against Williams, provided he gave the discharge without consideration. He is the one who is .interested in correcting the error, or mistake, and the way to correct it is by a suit in his own name, in which he can not bo a witness for himself, but by bill *may compel Williams to answer under oath, and use that answer himself in support of his claim. The bringing of the suit by the township is a device that makes no change in the.nature of the controversy. Is it true that a recovery would be no direct advantage to Moots ? If he bo sued after the money shall be collected of Williams, will he not be able to trace that money into the possession of the township ? Can the township maintain an action for money had and received by Moots, when his proof will show that the identical money was in its possession, and that he did not receive it?

But it is contended that if interested, he should have been allowed to testify to prevent a failure of justice, and Greonleaf and Starkie are cited in support of this position. They fail to do it. We have already seen that the law contemplates written evidence; that no necessity exists, in cases of this description, for a resort to parol proof. The receipt in question should have specified the amount received in money, and the orders, and other projjerty, should also have been specified. If money was receipted for when only a canceled order was handed over, it was an act, not of necessity, but of carelessness, or folly, and one which furnishes not the least ground for a departure from general principles.

The next inquiry is, had the town trustees any right to release the demand? It is claimed that they had the right, as an incident to the authority to sue; and the act of 1831, Swan’s Stat. 952, 953, is cited to show the authority. Section 1 confers upon the township the capacity of suing and being sued. Section 15 authorizes the trustees to settle the accounts of township treasurers. Section 19 makes it the duty of the treasurer to execute a bond to the trustees, and their successors in office, “conditioned for the faithful receiving, and paying over, all moneys which may come into his hands, for the use of the township,” to be deposited with the clerk, and, when forfeited, by him sued, on the order of the trustees. This law has no reference to the school funds. It relates to a different subject, and can not be made to conflict with the provisions of the act of March 7, 1838, Swan’s Stat. 824, the ' *first eleven sections of which provide for the creation of the fund, and its uses. Section 12 constitutes the treasurer of the township treasurer of the school funds of the township, and re■quires him, “ on his election, to give bond with sufficient security, payable to the State of Ohio, to be approved of by the trustees, for the faithful disbursement of all such funds as shall, from time to time, come into his hands, and on the forfeiture of said bond, it chalí be the duty of the township clerk to prosecute and collect \he same for the use of the township.” Section 14 proves for the mode of disbursement, and the fifteenth for annual settlements with the county superintendent, and with the successor in office. 'Thus it will be seen that the two statutes do not conflict. Each (Operates on an appropriate subject. The township fund for civil purposes, and the township fund for the support of schools. Each fund is secured by a separate bond, and, in many respects, controlled and managed by a distinct class of officers. The trustees of the township have no right to control the school fund, no right •to interfere, or meddle, with the treasurer’s bond given to secure it, except to approve of the sureties. The right to sue it, is vested in the township clerk, and with this right the trustees can not interfere. A discharge by them of the bond, or of any demand which it was intended to secure, is a perfect nullity, because the power has not been granted to them expressly, and can not be taken by implication, as incidental to any expressly granted power. Application refused.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    *Jonathan Warner v. Daniel Webster and John Blizzard.
    On an appeal from the confirmation of a master’s report, if parties file pleadings anew, and take testimony on the merits, the whole case will be considered as open.
    Jf a purchaser, under a void attachment, obtain, through a decree in chancery, a release from the holders of the legal title, such release will not prevent them from afterward acquiring the' equitable title, and maintaining, against the attaching creditor, a bill for reconveyance.
    This was a bill in chancery, reserved from the county of Ashtabula.
    The material facts appearing in the pleadings and proof, as also the questions of practice raised by the parties on the hearing, are -Stated in the opinion of the court.
    Wade & Ranney, for complainant.
    Giddings & Chaffee, for defendant Webster.
   Read, J.

This is the case of a bill filed to declare respondent, Webster, a trustee of land described in the bill, in favor of complainant; to compel a conveyance of the legal title of said land to tcomplainant, the cestui que trust, and for an account of rents and profits.

As a ¡iroliminary question of practice, it is contended that the merits of this case, on the appeal, are not before the court for examination.

A decree was rendered at the November term of the court of common pleas, 1836, in favor of the complainant, and a reference had to a master, to state an account, and the cause continued. At .the next term of the court of common pleas, the report of the .muste'r coming in, was confirmed, and an appeal then taken.

It is insisted that the appeal does not bring up the original merits, but only the master’s report, and proceedings thereon.

It is unnecessary to examine this question, as the parties have-disposed of it themselves. After the appeal, respondent obtained *leave to file a supplemental answer, to which complainant put in a replication, and testimony was taken in reference to the-merits of the whole case.

After the pleadings are changed on an appeal, as to the merits-of the whole controversy and .testimony taken, the court must necessarily dispose of the case as made, and, the whole matters in controversy being involved, must look into the entire case. The only mode to prevent this would be to regard the subsequent pleadings as informal, and strike them from the record, which is-not claimed, and thus re-establish the old issues decided below, and contend that they had been decided, and not appealed from. This is the only way this question could come up. But, even if there had been no change of pleadings, which fully disposes of this question, it would seem to fall within the ease of Kelley and others v. Stanbery and others, 13 Ohio, 408, decided at the-present term, and would still be before the court upon its full merits.

The facts material to the decision of this case, as appear from.the bill, answers, exhibits, and testimony, are as follows :

On April 1, 1809, Jonathan Warner, the complainant, sold the-land in controversy to John Blizzard, but executed the deed in the presence of but one witness, which transferred the equity in the land only. Blizzard removed to the State of New Jersey, in. the year 1811, where he has resided ever since.

An attachment was sued out against Blizzard, as a nonresident debtor, for the use of defendant, Webster, and others. In 1823, a judgment, under the attachment, was rendered against Blizzard,-in the court of common pleas, the proceedings in attachment having been certified to that court, as lands only were attached. Under this judgment the land in controversj' was sold. Daniel Webster became the purchaser, and a sheriff’s deed was-executed to said Webster.

The notice of the pendency of the suit in attachment, required by the statute, was not given; hence the .judgment and proceedings on the sale were void, and Webster acquired no title by his-, purchase at the sale had under the judgment in the attach merit suit-

^Webster filed a bill against Warner and wife, to compel a conveyance of the legal title of the land bought by him at said sheriff’s sale. At the April term of the court of common pleas, 1829, Warner, not objecting that the proceedings under the attachment were void, the court decreed a release of title by Warner to Webster. This decree was not appealed from, and stands unreversed. Blizzard was not a party to this proceeding. The legal title, in this manner, passed to Webster. In 1836, Warner purchased from Blizzard his equitable interest in this land, for full and valuable consideration. Webster has been in the possession of the land ever since he purchased it at sheriff’s sale.

Thus it appears that Blizzard took an equity only by his purchase from Warner. Webster acquired no title whatever by his-purchase under the proceedings in attachment, the judgment being totally void, as the court rendering it had no jurisdiction, of the person, and none over the land, for want of notice of thependency of the suit, as required by the statute. Hence the judgment was void, and the sheriff’s deed a nullity. But the legal title passed from Warner to Webster by virtue of the decree in the chancery proceeding, compelling a release from Warner to Webster, which stands unreversed. The legal title thus being in Webster, he holds the land, as trustee, for the person having the equity. Blizzard acquired the equity from Warner by the deed, defectively executed in 1809, and Warner reacquired the equity from Blizzard, by purchase, in 1836. Hence, Webster, the trustee, is bound to convey the legal title to Warner, the cestui que trust, and account for the rents and profits, deducting the amount paid for taxes, and the amount of all valuable and lasting improvements.

But it is contended, as a matter of defense set up in the supplemental answer, that Blizzard, by G-iddings, his attorney, prior to the time Warner purchased the equity, entered into a contract with Webster, by which it was agreed that Blizzard should pay to Webster a certain sum of money, to be ascertained by certain-persons named as arbitrators, and also the value of such improvements as Webster had put upon the land, *to be ascertained in like manner, and also the taxes; upon which amounts, boing so ascertained and paid, deducting therefrom the amount of the rents and profits, Webster was to execute a quitclaim deed to Blizzard for the land, and that the effect of this contract was to invest Webster with the equitable title in the land.

Such is not the legal effect of this contract. It transfers no •equity in the land, but only declares that Webster shall transfer the legal title to Blizzard, on the performance of certain conditions. It is nothing more than an agreement to settle differences in a specified mode, and to perform certain acts. This agreement remains unexecuted, and the remedy, if any, is upon the contract itself. This agreement, then, in no way affects this case, and may be laid out of view. Besides, there is not sufficient proof shown that Blizzard authorized it to be made.

Webster, therefore, is decreed to convey, by deed of special warranty, to Warner, and the report of the master, made herein, conforming to the principles heretofore indicated, is confirmed, and the cause is remanded to the county, to take an account of rents and profits accruing since former report.

Decree for complainant.


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    William P. Simpson and others v. Ira McCaffrey.
    It will not justify searching a man’s house that one has been arrested there, having in his possession counterfeit paper.
    Existence on the premises of guilty implements, or evidences of crime, will warrant a search, but if not found there, the justification fails.
    Circumstances of reasonable suspicion may be proved in mitigation.
    Error to the common pleas of Belmont county.
    The case, appearing from the record, is this:
    ^McCaffrey brought an action of trespass against Simpson and the other plaintiffs in error, before a justice of tho peace, “for illegally entering and searching plaintiff’s house, tearing up porch, ransacking house, and breaking open desk, without legal authority.”
    The case was tried to a jury upon the plea of not guilty.
    On the trial the following bill of exceptions was taken:
    “Be it .remembered that, upon the trial of this cause, the said •defendants, to maintain the issue by them pleaded, and tt> justify the supposed trespass, and mitigate the damages, having offered testimony tending to prove to the jury that they were engaged, at .the time of the supposed trespass, in search of counterfeit bank bills, believed to have been concealed by one Jesse M. Holliday in the-house, and on the premises of the said plaintiff, and that Caleb E„ Boothe, a constable, was present with a state warrant for the arrest of the said Holliday, and had arrested said Holliday for having in his-possession counterfeit bank bills, and that he, after the arrest of the said Holliday, and without a search warrant, aided in the-search of the house, and the same was reputed a public house. That the plaintiff had offered evidence tending to prove that defendant, Simpson, said before, and whilst engaged in the search-aforesaid, that the object in making search was to find the money of which he was robbed in October last, as well as counterfeit money supposed to have been in the possession of said Holliday. The defendant then offered to prove, in justification of said-supposed trespass, and in mitigation of damages, that the house-of tbe plaintiff, in which the search was made, was a house of ill-fame, aud notorious as a harbor of felons, counterfeiters, gamblers, and dissipation, and thus afforded a reasonable ground for the defendants to suspiect that the said Jesse M. Holliday, being then there, had there concealed said counterfeit paper; whereupon said plaintiff objected to the admission of said testimony, which objection was sustained by the justice, and said testimony rejected ; to which opinion and decision of the justice of the peace, the defendants excepted, and prayed that their bill of exceptions, in this behalf, might be ^allowed, which was accordingly done, and on their motion, the same was ordered, and made a part of the record in the ease.”
    The justice was asked to charge the jury upon the law of the case, which he refused to do.
    A verdict, and judgment for $15 and costs, was rendered in favor of McCaffrey, which was afterward affirmed on certiorari by the court of common pleas.
    To reverse the judgment this writ of error is brought.
    Numerous errors were assigned upon the transcript, which were in substance:
    1. That evidence was improperly excluded.
    2. That the justice refused to givo the law in charge to the-jury.

      3. That the transcript did not show that the jury who tried the •case were “good and lawful men, citizens of the township.”
    Joseph A. Ramage, for defendant in error:
    The questions reserved for decision in this cause arise solely on the bill of exceptions taken and made part of the record, on tho trial before the justice. It seems to be a settled principle that “ the bill of exceptions should set out the particular matter relied •upon, or a court of error will not notice it.” Hare v. Harrington, Wright, 290. Does the'bill of exceptions, in this caso, set out the particular-matter relied upon? The counsel for tho plaintiffs in ■certiorari claim that tho object of the testimony offered by the defendants below, and ruled out by the justice, was: “1. To show that the search was not wanton, but reasonable and bona fide; done, not with the intention of injuring the plaintiff, but for the advancement of public justice. 2. To show that the character of the plaintiff, and his bouse, was not injured by the search under those circumstances.” To these two points all the authorities are •cited, and the arguments of counsel made. It is very clear (without admitting the force of the authorities to the extent claimed, or their application to ^actions of trespass to property), that the particular matter first relied upon, and which it is claimed the ■testimony ruled out would have established, is not disclosed in the bill of exceptions taken in this cause, but e converso. The bill of •exceptions shows that both the defendants aad plaintiff below, ■offered testimony to prove the purpose, manner, and circumstances of the alleged trespass. From the facts thus set out in the bill of exceptions, it is manifest that the character of said search, the purposes, and circumstances under which it was made, were given in evidence to the jury, “ and thus the conduct of the defendants was” not “presented unmitigated, unjustified and unexplained to the jury.”
    The testimony, ruled out by the justice, upon which the bill of exceptions was taken, and on which the principal questions arise, is set out as follows : “ The defendants then offerod to prove, in justification of said supposed trespass, and in mitigation of damages, that tho house in which the search was made, was a house of ill-fame, and notorious as a harbor of felons, countei’feiters, gamblex’S, and dissipation, and thus afforded a reasonable ground lor the defendants to suspect that the said Jesse M. Holliday, being then there, had there concealed said counterfeit paper.” Did tho ■court of common pleas err in refusing to reverse the judgment of the justico in rejecting said testimony?
    It seems to me, in any light the question can be considered, that the court of common pleas could not have arrived at any other opinion. It does not appear that any witness was then being examined, or that any question was asked a witness, which was objected to, and ruled out by the justice. The bill of exceptions shows a mass of testimony proposed by the defendants below, for two separate and distinct objects: First, in justification of ■supposed trespass ; and, second, in mitigation of damages. Now it is clear, if this mass of testimony was all legal, and competent in mitigation of damages, and illegal and improper, in justification ■of the trespass, the testimony was properly rejected, for it was offered for both purposes. That the testimony offered was not admissible, in justification *of the trespass in this case, need not be argued. The action, in this case, was brought to recover damages “for entering and searching plaintiff’s house, tearing up porch, and breaking open desk, without legal authority.” Is the house, the protected castle of the citizen, to be searched, torn to pieces, the personal property therein broken and destroyed, and the act to be justified by proof that the house was notorious as a place of dissipation, drunkenness, or any other crime? Surely such a principle would not be admitted by any respectable jurist in the civilized world.
    But was this mass of rejected testimony legal and competent, in mitigation of damages, on the trial below? It may have been competent in mitigation, to prove that the house of the plaintiff was a house notorious as a harbor for counterfeiters — the trespass complained of having been committed immediately after the arrest of Holliday, on a state warrant, for having in his possession counterfeit bank bills, and thereby afford reasonable ground for the defendants to suppose that said Holliday had there concealed ■the said counterfeit paper.
    But would the fact, that the house was a house of ill-fame, of dissipation, afford reasonable ground for the trespass, and make •such testimony material in mitigation of damages? As well might the delendants below have offered to prove, in mitigation, that the house was a haunted house, and notorious as a harbor for witches, wizards, and ghosts. The principle of law is well settled, in the case oí Reab v. McAlister, 8 Wend. 109. “ Where a general objection is made to the decision of a court on the trial of a cause, and, on review thereof, the decision, if objectionable at all, is so-only in part, the party is not allowed to avail himself of the objection, for the want of precision in stating it at the trial.” The same doctrine is recognized in 4 Wend. 483; and, in Beebee v. Bull, 12 Wend. 504, the court held that “an exception to the whole of the testimony of a witness, when part thereof is unexceptionable, is unavailable from th e generality of the exceptions.” • In this case-the mass of testimony, ruled out by the justice, was wholly improper for one object for which it was offered; and little, if any, of said ^testimony was admissible for any purpose in the, defense of the case. But it is claimed by the plaintiffs, in certi< orari, that this mass of testimony, ruled out by the justice, was-proper and competent to show “ that the character of the plaintiff below, and his house, was not injured by the search.” ■ The character of the plaintiff below and his house was not in issue, and no evidence was offered to sustain it. This was an action of trespass to property. The cases cited by counsel for plaintiffs, in certiorari in trespass, are chiefly cases of trespass to the person. The rule of law, I apprehend, in the two classes of cases will be found very different. It is easily perceived that, in actions of trespass or tort to the person, “the reputation, circumstances, degree, etc., of the person injured, as well as the person who did the injury, may be, and generally are, considered by the jury in giving damages.” And the case of Tillotson v. Cheetham, 3 Johns. 55, referred to by the counsel for plaintiffs, was an action for a libel, and the words used by C. J. Kent, were quoted from Lord Camden, in 2 Willes, and expressly refer to cases of criminal conversation, battery, imprisonment, slander, etc. And, in the case of Bracegirdle v. Oxford, cited in 3 Starkie’s Ev. 1452, “ the declaration was for breaking and entering the plaintiff’s house, and without any probable cause, and under a false and unfounded charge and assertion that the plaintiff had stolen property in her house,” etc.
    The court informed the jury that, if there was a charge of stolen goods in the house, the damages ought not to be merely nominal; and, on motion for a new trial, Lord Ellenborough held the breaking and entering the plaintiff’s house, and under the false charge, constituted the trespass; and the false charge was not left for a distinct, substantive ground of damages. In the-case mentioned there is no allegation in the declaration of any injury dono to the house or property, but that the plaintiff was interrupted, in the quiet enjoyment of' her house, and her character injured. But in actions of trespass quare clausum fregit, and in actions of trespass to personal property, where the gist of the action is the injury done to the property, and no consequential damage laid in aggravation, I apprehend the character *of the plaintiff is not in issue, and can not be given, either in aggravation or mitigation of damages. In the case of Davenport v. Russell, 5 Day, 145, it is decided that in trespass for breaking and entering the plaintiff’s house, with intent to ravish the plaintiff’s wife, it was held the defendant can not give evidence that the plaintiff’s wife was, at the time of the trespass, of lewd and abandoned character.
    Two other causes of error are assigned, which do not arise on the bill of exceptions. One is, that “the record does not show that the jury were good and lawful men, citizens of the township.” The act allowing juries before justices defines their qualifications, and points out the manner in which the panel shall be made out by the justice, from which panel the parties,, or their attorneys, strike out, alternately, six names each, and a venire issues for the remaining six. The record in this case shows that this was done. The'law makes it the duty of the justice to write the panel, and the justice is presumed, in law, to do his duty. The same may be said in actions of forcible entry and detainer, and upon the trial of the right of property levied upon by a sheriff. The statute in both cases requires certain qualifications for jurors, and the sheriff or justice, who is required bylaw to summon the jury, is presumed to summon qualified men ; and the qualifications required by the statute need not be set out in the proceedings of the case. This court has decided, 3 Ohio, 227, that the same attention to regularity and form is not required of justices, which has been considered necessary in the proceedings of courts of record.
    The remaining question is, “ that the justice did not, though requested, charge the jury respecting the law of the caso.” It is a well-settled principle of law, that the court of common pleas, much less a justice of the peace; is not bound to charge the jury, generally, respecting the law of the case. 6 Wend. 268; 5 Cow. 243. In the case under consideration, the record does not show that the justice was asked to charge the jury on any particular point of law. Not only on this point, but throughout the entire argument for plaintiffs in certiorari, *the counsel seek to draw the attention of the court from the questions arising on the bill of exceptions and the record, and unblushingly expect, and seem to demand, a decision upon the mere assumption of facts, not appearing on the record ; and, like true zealots in a cause, they are lavish in praise of their clients, and condemn, without stint, the plaintiff below, the justice, and all others concerned, excepting these “faithful citizens,” the plaintiffs in certiorari. I am well aware that these assumptions of counsel, on the one hand, and their insinuations on the other, have nothing to do with the questions properly arising in this case.
    , It seems to me, therefore, from all the consideration I have been able to give the questions arising on the bill of exceptions and on the record, and none other should be considered, that the court of common pleas did not err in sustaining the decision of the justice, on the trial below.
    John O. Tidball and William Kennon, Jr., for plaintiffs in error:
    The object of the testimony offered was to justify the supposed trespass, or to mitigate damages. In this effort, it was the object of the defendants:
    1. To show that th'e search was not wanton, but reasonable and bona fide; done not with the intention of injuring the plaintiff, but for the advancement of public justice.
    2. That the character of the plaintiff and his house was not injured by the search, under the circumstances.
    The first question arising is: Was it proper to introduce evidence for that purpose? 2. Did the evidence proposed to be introduced, and which was excluded, tend to prove these facts, and thereby mitigate damages ?
    1. Was it proper to admit evidence to prove that the defendants were bona fide searching for counterfeit paper — that it was no pretense, but real, and the character of the plaintiff or his house did not suffer by the search ?
    *In actions of trespass or tort, anything showing malice, or the want of it, may be offered to aggravate or mitigate damages, and “the reputation, circumstances, degree, quality, trade, and profession of the person injured, as well as of the person who did the injury, must be, and generally are, considered by the jury in giving damages.” This principle is not only recognized, but strongly urged by O. J. Kent, in the case of Tillotson v. Cheetham, 3 Johns. 55. So also Spencer, J., in the same case, uses this language: “It is, in my conception, evidently unjust that a fact should be suppressed and withholden from the jury, which would and ought to lessen the damages.” .
    The same principle is incorporated with the elementary rules of evidence in cases of trespass, 3 Stark. Ev. 1452, where the case of Bracegirdle v. Oxford, 2 M. & S. 77, is cited to show that though in the action of trespass an injury to character can not be a substantive charge, yet it may be introduced to aggravate damages.
    This case is very analogous to the ease at bar; yet in that case the falseness of the charge of having stolen goods in her house, was not only allowed to be given in evidence by the plaintiff, to show the injury done to her character, but was required to be considered as an aggravation of the damages, because it injured the character of the plaintiff. If the rule be that the plaintiff may offer such evidence to aggravate damages — to be just it should be mutual, and allow the defendant to offer contrary evidence to mitigate damages.
    The same rule is observed in the case of Merest v. Harvey, 5 Taunt. 442. It thus seems to the counsel for the plaintiffs in error to be the rule in any decisions which we find touching this point, that the plaintiff may give evidence of his high standing and good character to' aggravate damages; and, as above observed, “the rule tobo just must be mutual,” and should be extended to allow the defendant to show an absence of those aggravating circumstances, in order to mitigate damages.
    The authorities seem to go even further, and to justify the defendants, in a trespass or tort, in case they acted in the ^search in good faith, without malice, and bad reasonable grounds to suspect the plaintiff or his house.
    It-is further a rule that the circumstances which would render a search reasonable are for the jury to judge. Lord Tenterden, in Beckwith v. Philby, 6 B. & C. 635, says: “A private person, without warrant, may arrest, first, if there be a felony dono; second, if the party arresting has probable cause which is traversable ; third, the arrest must be by the party suspecting.” In the case of Chin v. Morris, 1 R. & M. 224, this principle is laid down: “In trespass and false imprisonment ipon a charge of felony, held, that evidence showing that the defendant had reasonable grounds of suspicion, was admissible in reduction of damages.”
    In the case of Davis v. Russell et al., 5 Bing. 354, an action of trespass and false imprisonment, the defendant gave in evidence, under the general issue, circumstances to show that he had probable cause for apprehending and imprisoning the plaintiff, which was allowed; tho judge laying it down as a position sound in law, that the jury must find tho facts supposed to constitute the probable cause, and whether the circumstances would justify or mitigate the damages, or, in other words, “whether the jury, under the same circumstances, would have done as tho defendant did.”
    In the case of Sedwick v. Catchpole, Cald. 291, cited in 2 Stark. Ev. 321, an action of trespass and imprisonment, the jury gave a verdict of £20, but tho court granted a new trial.
    Lord Mansfield observed, “ the first question is, whether a felony has boon committed or not? And then the fundamental distinction is that if a felony has actually boon committed, a private person as well as a peace officer may arrest; if not, tho question turns upon this: Was the arrest bona fi(Le? Was this act done fairly and in pursuit of an offender, or by design, or málico, and ill-will ?” And Buller, J., in the same case; observes: “ To a certain extent, even a private person is justified or not, in arresting, according to the particular circumstances of suspicion, on which he must exercise his discretion.”
    *It is thought those authorities are sufficient clearly to settle the principle, that reasonable grounds of suspicion justify or mitigate, in the case of injury done to the person by assault and false imprisonment; and ii in case of injury to the person and liberty of the plaintiff, much more would it justify or mitigate in tho case of trespass upon property.
    These authorities further show that the question of probable cause ought to have been admitted as a fact to be traversed by the jury. The justice then erred in ruling it out, and the court of common pleas in sustaining his decision.
    Tho remaining question presented on tho bill of exceptions is, would the facts proposed to be proven, and which were excluded, tend to afford reasonable ground to suspect that there were counterfeit bank bills concealed in the house of the plaintiff at the time of the search?

      What were the facts proposed to be proven? Not that a counterfeiter was there, for that had already been proven, as appears from the record. The quostion is not whether counterfeit paper was there, but di4 the defendants believe there was? For, if not, the trespass was wanton, unjustifiable, and aggravated.
    The object of introducing the testimony excluded by the justice, is shown in the bill of exceptions to be to manifest the reasonableness of the search, and thereby to justify or mitigate damages. Has the character of the plaintiff and his house nothing to do with this?
    Does the house, and the keeper of a house of a bad character, receive as great an injury from a search for counterfeit paper as one of good character? The actual damages might be the same in both cases, but the smart money assessed in' tort surely would not, in justice, be the same.
    We ask the court again to look to the circumstances. The felon was there a guest when arrested; an officer was in company who had arrested the culprit; some counterfeit paper had been found, not oil the person of the prisoner, but on the premises of the plaintiff. Under these circumstances, the defendants were in a house which can be proven to be a house *“ notorious as a harbor of counterfeiters, gamblers, felons, and dissipation.” But the court below say you must not prove the whole facts. You may prove that Holliday was arrested; that ho had counterfeit paper; that an officer was with you and aided in the search, but' you shall not show the wide contrast between that place and the peaceful, orderly, and unsuspicious house of respectability. Was this not error most manifest? Would this court or a jury, as reasonably suspect a house, whose owner and keeper rendered it a place notorious for order and propriety, for being a place of the concealment of counterfeit paper, as the house where not only the felon was a welcome guest, but which had alrehdy been notorious for its vices, and especially the very vice the defendants had been called upon by an officer to aid in ferreting out ? Does not the bringing of this suit under the circumstances itself, throw a shade of suspicion over the character of the plaintiff? Would an honest landlord, who had no connection with the felon, have objected to having his house searched under such circumstances? Yet a character notorious as thus suspicious must not be exposed, either to show a reasonable suspicion or a want of malice in the defendants.
    A plaintiff with such a character and such a house, under these circumstances, finds a justice who is unwilling that these facts should be shown, or that a jury should consider them either as a justification or mitigation of damages. Is it not that error which does injustice to the defendants and protects vice, and hinders the administration of public justice?
    If the low character of the house did not itself excite suspicion, did it not at least strengthen that suspicion, and render the search more reasonable ? By what rule of law, then, should those facts have been kept from the jury, and the case left to go unmitigated and unexplained to the jury?
    It is urged that the bill of exceptions alleges .too much; for if is said that, to prove the house to be a “house of ill-fame,” would not tend to afford any evidence that counterfeit paper, under the circumstances, could be concealed there.
    *If, however, this term should, in the estimation of any, be ambiguous, or even a double entendre, the sense in which it is used in the bill of exceptions can not be easily mistaken, for the bill of exceptions points out the sense in- which it is there used, viz: as “ a harbor of gamblers, counterfeiters, felons, and dissipation.”
    The attempt, then, to misconstrue the bill of exceptions in order to mulct the defendants in unmitigated damages, while it would screen from exposure a place suspicious for its vice, is but a vain effort to prop a sinking cause, to sustain which, we think, thei court of common pleas erred.
    If we are right in the interpretation of the term “ill-fame,” at which the counsel for the plaintiff b'elow boggled, we must still think that its introduction into the bill of exceptions did not so vitiate the exceptions as to justify the court in sustaining the decisions of the justice of the peace.
    It seems to us a position too plain to admit of argument, that “a harbor of counterfeiters, felons, gamblers, and dissipation,” is a place affording more reasonable grounds of suspicion that counterfeit paper was there concealed, than if the house had been of a contrary character.
    For two reasons, then, the court erred in rejecting this testimony : 1. It afforded evidence that the defendants below acted in good faith, and with a design to promote public justice, and not with malice or wantonness in the case in which the trespass is alleged to have been committed. 2. It would have shown that the injury to the plaintiff’s character, or the character of his house, was not such as to justify or require exemplary damages, but, on the contrary, if a recovery at all was had, it should have been merely nominal.
    However small, then, the verdict of the jury may have been, if it went beyond nominal damages, or even if it gave damages which would tend to encourage a citizen to harbor, encourage, or protect counterfeiters and felons, it was an infraction of principles too important to be overlooked in the administration of justice The judgment ought, therefore, to be reversed. None doubt but that, by the rejection of this evidence, a recovery *was had, which, on the.one hand, rebuked the faithful citizen for ferreting out and exposing concealed vice, and, on the other hand, encouraged and protected a scoundrel in tolerating the pest of society under his control.
    There are, also, upon this record other causes of error, as we think, which do not appear upon the bill of exceptions. One of those errors is the impaneling of the jury. The record does not show that they were good and lawful men, citizens of the township, as required by the statute. It is a question worthy the attention of the court, whether this should not, in jury trials before a justice of the peace, as well as belore courts of record; appear upon the record. We are not aware that this question has been decided by the authority of this court. In reviewing the record in this case, wo hope the court will give their attention to this question, and let it be so settled as to determine upon a uniform practice in cases before justices.
    The other question which arises out of the errors assigned, and which we hope will not be overlooked by this court, is on that part of the record which shows that the justice did not, though requested, charge the jury respecting the law of the case.
    This part of the record is certainly very deiective, lor although it shows the fact that the justice was asked to give the law to the jury, and that he refused to do so, it does not show the points on which ho was requested to charge the jury. Whether of little'or groat importance can not there be learned ; and wherein counsel before the jury differed on the law, the jury were left in entirely in uncertainty as to the law, or made judges of the law, and thus an opportunity is donied to the party aggrieved to take his exceptions.
    The court will readily perceive that great and manifest injury might bo done by tolerating a practice so loose. Indeed, from the record, the court may plainly perceive that injustice has been done in this case; for though the justice states that he was requested to charge the jury, and refused, he carefully overlooks the points asked to be given to the jury. The fact is, a bill of exceptions setting forth.the law asked to bo given *in charge to the jury, was offered to the justice, which he refused to sign, thereby shutting out the opportunity of assigning causes to the errors of this part of his doings. We will not here state the points of law on which the justice was then requested to charge the jury, though distinctly within our recollection, for they do not appear of record, nor would the justice admit them of record. Such a course of superciliousness, as well as injustice, we think, can not bo tolerated without seriously endangering the safety of all that is dear to the citizen. It is error — manifest and injurious error.
    Por these reasons we think the court of common pleas erred in not reversing the judgment of the justice of the peace, and permit us to have our case presented fairly and legally to the jury.
   Read, J.

The evidence ruled out by the justice of the peace, aiS shown by the bill of exceptions, in no sense constituted a justification of the trespass complained of. But it was competent in mitigation of damages.

The principle of permitting damages, in certain cases, to go beyond naked compensation, is for example, and the punishment of the guilty party for the wicked, corrupt, and malignant motive and design, which prompted him to the wrongful act. A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the law tolerates no such abuse of power, nor excuses such act; yet, in morals, and the eye of the law, there is a vast difference between the criminality of a person acting mistakenly from a worthy motive, and one committing the same act from a wanton and malignant spirit, and with a corrupt and wiclsed design.

Hence, where a jury are called upon to give smart money, or damages beyond compensation, to punish the party guilty of the wrongful act, any evidence which would show this difference, or rather all tho facts and circumstances which tend to explain or disclose the motives and design of the paity committing the wrongful act, are evidence which should go to tho *jury for their due consideration. The evidence ruled out by the court was of this character.

Tho judgment must be reversed and the cause remanded for further hearing. Judgment reversed.