author: Wood, C. J.

text:
    Welcome Martin and others v. The Clinton Bank of Columbus.
    In an action of assumpsit, where the verdict in favor of the plaintiff substantially negatives the special pleas, the court will not reverse the judgment based upon such verdict, though it does not, in terms, find that the allegations in the special pleas are untrue.
    This is a writ of error to the Supreme Court of Delaware county.
    The declaration contains two special counts on a bill of exchange, made by the plaintiffs in error to the defendants, bearing
    *date on October 25, 1836, drawn upon R. J. Wharton, of the city of New York, and payable to the order of J. Delafield, Jr., cashier of the Phoenix Bank, for $1,300, sixty days after the date thereof. The common counts are for money lent and advanced, and for money had and received to the use of the defendant in error, and on an account stated. To this declaration the plaintiffs in error plfead, first, non assumpsit; secondly, a special plea in bar, that the said Welcome Martin, on October 24, 1836, being in want of money, made application to the defendant in error for a loan of $1,300, upon a note proposed to be executed by Martin and the other plaintiffs in error, which, application afterward, on the same day, was taken into consideration and allowed by the defendant in error; and an agreement made with said Martin, to loan him the said sum of $1,300 for sixty days, on tho note of the said plaintiffs in error; and therefore the said Welcome Martin delivered to the said defendant in error .a note executed by the plaintiffs in error in blank, except as to the amount and time it was to run, to be filled up by the defenuant in error as a promissory note; and the defendant in error received and discounted it as such, and paid to the said Welcome Martin thereon the sum of $1,286.35, being the amount of said note, less the lawful interest thereon ; and that afterward the defendant in error, unlawfully and fraudulently, and without the knowledge or consent of the said plaintiffs in error, or either of them, filled up the said blank note as a bill of exchange, which is the same declared on, and none other, etc. And the plaintiffs in error aver that the filling up of the <said blank note as a bill of exchange, in the manner aforesaid, was and is in violation of the laws of the land, and that the said bill in the hands of the defendant in error is fraudulent, and void in law.
    In the third plea, the plaintiffs in error aver they made application for the loan as stated in the second, which the defendant in error refused Upon lawful interest; but then and there unlawfully, ^corruptly, and usuriously agreed with said Welcome Martin, that the defendant in error would loan the said sum upon a bill of exchange drawn by the plaintiffs in error, payable at the city of New York, upon the condition that the defendant in error should receive a greater interest thereon than at the rate of six per cent, per annum on the amount to be loaned, to wit, six per cent, per annum, and one per cent, in addition thereto, under the name of difference of exchange between Columbus and the city of New York; and that the said Welcome Martin should pay the said bill of exchange and the interest at the rate of six per cent., and also one per cent in addition thereto thereon, as aforesaid, at the banking-house of the defendant in error, in the city of Columbus; and that, in pursuance of the said unlawful, corrupt, and usurious agreement of the plaintiffs in -error, did deliver to the defendant in error the bill of exchange in the declaration mentioned to be discounted, which was, etc., received and discounted at the rate of six per cent, per annum, and with the agreement that the plaintiffs in error should pay to the defendant in error, at her banking-house in the city of Columbus, the amount of the said bill of exchange at its maturity, and one per cent, thereon in addition thereto, as- aforesaid, etc. And the plaintiffs in error aver that the said bill of exchange is therefore void in the hands of the defendant in error, etc.
    The defendant in error, by her replication, took issue on the facts set up in the special pleas.

      The causo was submitted to a jury in the Supreme Court for the county of Delaware, at the June term, 1844, and a verdict rendered that the plaintiffs in error did assume and promise, and they assess the damages of the defendant in error, by reason of the premises, at $1,903.41, and on this finding of the jury, judgment was rendered by the court.
    The errors assigned are, that the issues taken to the matters set up in the special pleas, were not passed on by the jury, but loft undisposed of.
    *T. W. Powell, for plaintiffs in error:
    The finding of the jury is, that the defendants did undertake and promise, etc., and does not take notice of the special pleas. That this is error is clearly shown by the following authorities: Hanley et al v. Levin, 5 Ohio, 227; Powell v. Harter, 5 Ohio, 259; Hewson v. Saffin et al., 7. Ohio, 234, pt. 2; Clark et al. v. Irwin, 9 Ohio, 131.
    If it bo said that the court might have applied the finding of the jury to the other issues, and entered up verdict upon all the issues, and amended it accordingly, we answer it can only be done in those cases where the verdict is an answer, to some extent, to the other issues; not where it remains doubtful what the jury intended. But this can only be done by the court below. The court, in Clark et al. v. Irwin, 9 Ohio, 132, say, that “there is a peculiar fitness in that power being exercised only by the court who tried the cause. No other tribunal can know the facts which will authorize the amendment.”
    But, in this case, were it before the court below, that court could not, from the verdict, make it answer the issue on the third plea. For, although the verdict may be a substantial finding on the first special or second plea, yet it can not be so on the last plea. The jury finding that the defendants did undertake and promise, in manner and form, etc., does not answer the last plea, by finding whether there was or was not a corrupt and usurious agreement that the bill (which was made payable at New York) should, notwithstanding, bo paid at the bank at Columbus, with six per cent, interest, and also the one per cent, additional, by way of difference of exchange. Now this usurious agreement might be true, notwithstanding the verdict, that the defendant did undertake and promise, etc. This usurious agreement to make a bill of exchange instead.of a promissory note, and thereby cover up usury under the cover or denomination of difference of exchange, is a subject matter which we had a right to make the subject of a special *ploa, and the issue having been joined thereon, tho jury must respond to it; and it is not answered by tho finding on the general issue.
    It is now too late to raise the objection, that the plea amounts to the general issue, if in truth it were so. Usury is a good special plea; though that matter might be given in evidence under the general issue, yet the bank having taken issue upon the plea, which issue tho jury were sworn to try, and which may bo true, notwithstanding the finding of the jury, there can bo no question that there is error, in not finding on this special plea.
    Perry and Dennison, for defendant in error :
    The two special pleas are, in substance, pleas of the general issue ; and, therefore, tho finding of the jury is substantially correct.
    The general issue does not mean simply, “ that the defendant did not actually promise, as stated in the declaration ; but that he is, at the time of pleading, not indebted to tho plaintiff, or not in law liable to tho demand made in the declaration.” Gould’s PI. 331; 1 Chitty’s Pl. 556, 557; Gould’s PI. 345 ; 19 Johns. 300 ; 8 Cranch, 30 ; 13 Wend. 78 ; 5 Cow. 466 ; 2 Hall, 195 ; 1 Chitty’s Pl. 511, 512; 2 Starkie’s Ev. 77-79; 1 Selw. N. P. 122; 2 Phillips’ Ev. 130; 11 Ohio, 489; 12 Ohio, 112. The verdict is, of course, as broad as the issue. It not only asserts that the defendant did “actually promise,” which is really the only fact in issue here; but it also finds that, at the time of the pleading, the defendants were “ indebted and liable in law to the demand made in the declaration.” It means this, in substance, and it includes a finding on tho merits of the special pleas. Taken liberally or strictly, it amounts to the same thing.
    The declaration charges that defendants did assume and ^promise, and that the manner and form of the promise was by bill of exchange. The defendants, in their first special plea, admit that they did assume and promise, but aver that the manner and form was not by bill, but by a promissory note. The issuo is made on tho “ manner and form.” It is true, as before shown, that the same issue precisely would have been presented, by a plea of non assumpsit. But the only question presented is, as to the manner and form of tho promise. The jury find that defendants did assume and" promise, 11 in manner and, form, as the plaintiff hath

      complained, against them.” That is to say, that they did promise by bill of exchange, as asserted by plaintiffs. Language could not form a more explicit negative to the plea, than is given in the verdict.
    The same in regard to the other special plea. As before shown, the plea is wholly insufficient, and the issue immaterial. But granting, for argument, that the plea, if true, is sufficient, it puts in issue the assumpsit, and the verdict finds that defendants “ did assume,” etc., which is a full response to the issue.
    The rule laid down in 2 Burrows, 698, is, “ that when the intention of the jury is manifest and beyond doubt, the court will set right matters of form, and the mere act of the clerk.” That action was trespass vi et armis. Pleas : 1. Not guilty ; 2. Son assault demesne; on which issues were joined. The verdict was, “ Guilty of the trespass within written.” The objection was, that it did not notice the issue formed on the plea of son assault demesne. Lord Mansfield said: “ I think that the present is such a clear case, that the court may here give judgment upon the substantial finding, though the clerk may have been irregular and faulty in point of form. It is very clear what the jury meant.” Mr. Justice Wilmot quoted and affirmed the rule laid down in Hob. 54: “ That if a verdict can be, concluded, out of the finding of the point in issue, the court should work and mold it into form, according to the real justice of the case.” Judgment was unanimously affirmed.
    *Hadges v. Raymond, 9 Mass. 316. This action was “trespass quare clausum fregit.” Pleas: 1. Not guilty, as to the force and arms; 2. As to the rest of the trespass, justification; on which issues were joined. The jury returned a general verdict for defendants of “ not guilty.” The court refers to the case in Burrows, and adopts the language; and, .applying it to the case before them, said: “The jury could not have found thus, if defendants had failed in proving their justification.”
    Porter v. Rummery, 10 Mass. 63, was a real action, to which defendant pleaded two pleas: 1. As to part of the land, not guilty. 2. As to the residue, non tenure, disclaiming all right and title, and denying that he was in possession. The jury returned a verdict of not guilty, and'judgment was entered. On error, this was held sufficient. The court fully considered the objection, and said: “Thisverdict seems capable of a construction in which it may be understood as comprehending both issues, and sufficiently to warrant the judgment entered upon if for the tenant.” “The court'are competent to collect the meaning of the jury from the terms of their verdict; and one verdict maybe a sufficient finding upon several issues. The general rule is, that, although the verdict may not conclude formally or punctually, in the words of the issue; yet, if the point in issue can be concluded cut of the finding, the court sh^ll work the verdict into form, and make it serve according to the justice of the case.”
    Law v. Merrils, 6 Wend. 268, was an action of assumpsit, to which defendant pleaded two pleas, on which issues were joined : 1. Non assumpsit; 2. Payment. The jury found a general verdict, like the one in this case, on the issue of non assumpsit; but did not notice the pica of payment. On error, the authorities wore reviewed, and the verdict was held sufficient. The court say: “It would have been impossible to obtain a verdict in favor of the plaintiff, on the general issue, if the defendant had established, his plea of payment.” “On the last plea, the dciendant held the affirmative, and payment can be given in evidence, under the general issue, as well as under the special *ploa. Whatever would have entitled the defendant to a verdict under the latter, must have entitled him to a verdict under the former. This, therefore, though not in form, is, in substance, a verdict for the plaintiff on both issues; and the defective finding of the jury afforded no sufficient ground for reversing the judgment,” etc.
    The same point is decided the same way, in a case similar. Hannah v. Mills and Hooker, 21 Wend. 90.
    The reason of the'so two latter cases is exactly applicable to the case at bar. The same defense that was pleaded specially, might have been proved under the general issue; and, in the present case, could, properly, bo pleaded no other way.
    Garland v. Bugg, 1 Hen. & Mun. 374. This was an action of detinue, for detaining a slave. Pleas: 1. Non detinet; 2. A special agreement by which ho was entitled to the slave. There was a general replication, denying the truth of both pleas, and issues joined. The jury found a general verdict for the plaintiff,without noticing the issue made on the special plea. Judgment affirmed. See also.Thompson v. Musson, 1 Dall. 458.
    This case is within the rule of the above cases, and the reasons for affirming the judgment much stronger than in any one of the cases cited. All the reasons which influenced the decisions referred to, apply here, with the additional reasons that the special pleas are bad as amounting to tho general issue; that the issue joined on one of them is wholly immaterial, and the issues are both immaterial, as to the common counts of the declaration.
    The cases heretofore decided, in this state, were under a different state of pleadings.
    Powell v. Harter, 5 Ohio, was assumpsit. Pleas: 1. Won assumpsit ; 2. Statute of limitations. The jury did not find as to the statute of limitations. Headly v. Roby, 6 Ohio, 521, was debt on judgment. The only pica was a plea of piayment, with notice of set-off. The verdict did not pass on the plea at all. This caso turned protty much on the merits *of “prairie pleading.” Hewson v. Saffin and Smith, 7 Ohio, 232, pt. 2, was replevin. Plea: 1. Won detinet; 2. That, at tho timo, etc., the goods were the property of the- defendants; 3. That they were tho property of James Saffin, one of the defendants; 4. That they were tho property of Smith, the other defendant; 5. That they were the property of Samuel _D. Elagg. The verdict was, “We, tho jury, find for tho defendants, and assess the damages,” etc. Tho court said, that this verdict found 11 all the issues” for defendants. It finds the property to be in both of the defendants ; in each, and in a stranger. Such a state of things can not exist in law or ethics. Clark et al. v. Irwin, 9 Ohio, 131, was assault and battery. One defendant pleaded not guilty. The other two pleaded, separately, son assault demesne. Tho jury returned a general verdict of guilty, as to all the defendants. Two of tho defendants did not deny the act charged, but justified. The jury paid no attention, apparently, to their case, but returned a verdict applicable only to the one who had pleaded not guilty. All these cases are clearly distinguishable from tho case at bar. In none of these could the verdict be said to comprehend all tho issues. Nor did the findings cover the whole merits of the case. Hanley et al. v. Levin, 5 Ohio, 227, was assault and battery against three persons. They all pleaded : 1. Not guilty, and each pleaded separately, special picas. One son assault demesne. The other two, that they did it to preserve tho peace and prevent a fight only. The verdict was a .general verdict of guilty against them all. This is also eloarly distinguishable from the present case. The court held that they had no power to amend the verdict, and that “per so amended,” it was no answer to any other plea than the general ono. But they went on to say, “ Had it been not guilty, by negativing the assault, it would have been a sufficient answer to justification, for no fact would have been left to justify.” Although the verdict was held bad, the principle of the decision is in our favor. It establishes two propositions, which are conclusive of the case at bar.
    *1. That a verdict need not, in all cases, specifically refer to, and answer in terms all the issues tried.
    2. That the cases where it need not do so, are where the finding of ono issue necessarily finds all the rest, and is a complete answer to all the rest,1 so that no further fact is left to be tried.
    Apply these propositions to the verdict in this case. It is “per se unamended, a sufficient answer” to the pleas, for no fact has been left to try. And the rule applicable to such cases is uniform and undoubted.
    The only difference discoverable, in the decisions on this subject, is as to the state of pleadings to which the principle shall apply. They all unite in asserting the principle, in the most emphatic and clear terms, and the difference of opinion in regard to the circumstances calling for its application may originate, as suggested by the court, in Hanley et al. v. Levin, in their different modes of practice. But although our court has considered its practice to require more strictness in applying the principle, they have never expressed a doubt as to the correctness of the principle itself. Thus, in 3 Ohio, 384; 5 Ohio Cond., 142, our court said: “It sometimes happens that the finding of one issue concludes the whole, although some are unanswered.” And in Sutliff v. Gilbert, 8 Ohio, 405, the court regard it as sufficient, “ when the jury return a general verdict settling the rights of the partiesand they remark, “ It is rarely the case, in our practice, that the jury return a formal and technical verdict.” So in 5 Ohio, 227, before cited, if the verdict “perse unamended, is a sufficient answer,” etc., it will bo good.
    In England, Massachusetts, Now York, Pennsylvania, and Virginia, formal errors in the verdict are amended by the court, or tried as if amended by the court, on the trial of a writ of error. But as the decisions now stand in Ohio, the court in bank will not amend a verdict found to be informal on the rooord. But this informality, to vitiate the judgment, must amount to a substantial defect in the ^record. It must fail to show on which side judgment should be given. Eor if it be “per se unamonded, a sufficient answer to the issueif it be “ a general verdict, settling the rights of tho parties;” if it “ happen that tho finding of one issue concludes the whole, although some are unanswered,” yet the judgment must stand.
    Ferrel v. Humphrey, 12 Ohio, 112, is decided on the same principle which wo claim to have applied in this case. It was an action of replevin. Pleas: 1. Non detinet; 2. Property in defendant. Parties went to trial without any replication to the second plea. Verdict for plaintiff, and judgment. The court had decided, in 5 Ohio, 276, and 6 Ohio, 524, that when a plea constituting a bar to the action, and requiring a replication, is loft unanswered, it is error to dispose of tho case while the plea remains on record, without a replication. But still, the verdict and judgment in 12 Ohio, 112, was hold good on error. The reason was, because an issue on tho plea, even if the plea were good, “ could afford the defendant no advantage that he had not under the general issue." No reason is perceived why the same rule would not have applied in the case at bar. If it had been tried without any replication to tho special pleas, our judgment would be good. Can the filing of a replication to such pleas, change the principle? Doubtless the same reason would hold true after replication; and it is for that very reason that no.replication is necessary. With or without a replication, the defendant would, have “ no advantage that he had not under the general issue."

   Wood, C. J.

The law is clear that tho verdict must respond to all the issues made up between the parties. There are several adjudications in our own court to this effect; and on questions of this kind, no higher authority is admitted. 5 Ohio, 227, 259; 7 Ohio, 234; 9 Ohio, 131.

But cases may occur, says Lane, Judge, in 5 Ohio, Hanley v. Levin, where a verdict upon the general issue alone, *will be a substantial response to the issues taken on the special pleas, and as they are in substance negatived by such finding, the form of the verdict, after judgment,'can be of no importance to the validity of the record.

Is not this the precise ease at bar ¶ The first special plea avers the fraudulent change of a promissory note discounted in blank, to a bill of exchange, payable in New York. Such alteration by the payee, renders the instrument void. There is no promise to pay it; 'but the finding of the jury on the general issue alone, for the plaintiff below, negatives this special issue. Without finding the evidence insufficient to support it, and that it was unsustained by the proof, they could not have found the assumption and promise of the plaintiffs in error.

The second special plea is in the like condition. The issue there is upon a corrupt agreement to discount the bill of exchange at a higher rate of interest than six per cent.; that the bill was discounted on such agreement, and more than six per cent, reserved and agreed to be paid at the maturity of the bill, under the shift, name, and device of exchange. If such, again, was the effect of the proof, under this issue, the bill of exchange'was void. The Clinton Bank can discount at six per cent, per annum, interest only; and when interest is covered up under the shift of calling it exchange, if it be, nevertheless, interest, it by no means aids the bank by the extension of its power.

The issue, in substance, therefore, is upon the fact whether the bill of exchange was not absolutely void by the excess of power exercised by the bank in its discount. If the fact was proved, the consequence followed, that the bill was as blank paper. There was no legal assumption and promise, but the jury have found both, and thereby negatived the facts in substance, set up in this plea, on which issue was joined. The judgment is affirmed.


source: Caselaw Access Project

author: Hitchcock, J.

license: Public Domain

text:
    *Joseph Jordan v. Nancy Smith, impleaded with John Parsons.
    A black or mulatto person, under the statute of Ohio, is not a competent witness in a case depending between a white and black person, or where u white man is indicted at the suit of the state.
    A black, as well as a white person, may make affidavit to the truth of a plea in an action of debt, covenant, or assumpsit, upon a written instrument, such affidavit not being evidence in the cause.
    This case was submitted to the court on an agreed statement of facts.
    The action is debt, upon the following note or simplo bill:
    “Smithfield, March 22,1838. Twelve months after date, for value received, we, or either of us, promise to pay Joseph Jordan, or order, the sum of $115. Witness our hands and seals.
    “ Nancy M Smith, [l. s.]
    John Parsons. [l. s.]
    “ Witness: Mary E. Shoemaker, as to N. Smith ”
    The declaration is in due form, and sets forth' that the process in the case was returned served as to Nancy Smith, and not found as to John Parsons.
    The agreed state of facts is as follows:
    “ The suit is brought on a bond for $115, dated March 22, 1838, payable one year after date. Process served on Nancy Smith only, and not found as to Parsons. The plea of non est factum, was filed by defendant, with an affidavit that she did not execute the bond. The deposition of Mary Shoemaker, the subscribing witness, was taken ; the counsel for the defendant objected to reading the same, for the reasons following, to wit, the plaintiff is a white
    *person, and the defendant, Nancy Smith, and the witness, are both black persons; and, therefore, the testimony of the said black witness should not bo received.”
    The plaintiff then offered to prove the handwriting of the subscribing witness, by a person who merely saw her subscribe her name to the deposition. To this testimony objection was made by the counsel for the defendant: 1. Because the said witness would not swear that he was acquainted with the handwriting of the said subscribing witness; and, 2. Because a black person was not a competent witness to a bond payable to a white person.
    J. Collins, for plaintiff.
    Scott & Bingham,-lor defendant.
   Hitchcock, J.

The agreed case shows that the plaintiff is a white man, the defendant a black woman. The action being on a sealed bill, and the defendant wishing to put in issue the execution of the instrument, swore to the truth of her plea of non est factum. The plaintiff then offered in evidence the deposition of the subscribing witness, who was also a black woman. To this deposition objection is made, on the ground that the deponent was not a competent witness, on account of her color.

It. is urged by tho counsel for the plaintiff that ho is entitled to judgment because the plea is verified by tho affidavit of a black person, who is not, on that account, a competent witness. If the affidavit of tho party was testimony in the case, the position would be correct. ■ But it is not testimony. It is merely a verification, of the plea, throwing the same burden upon the plaintiff, of proving his case, that was imposed on him by the rules of common law, and which rules are changed for the sake of convenience, by our statute, dispensing with proof in certain cases.

*But it is supposed that tho phraseology of section 9 of the act of April 1,1S07, to amend the act entitled “ an act to regulate black and mulatto persons,” is broad enough to exclude a black person from swearing oven to the truth of a plea at law, or of an answer in chancery. Although this court have ever given this section of law its full effect, according to its letter and spirit, still we are not disposed to extend it by construction. It is a law, if there bo any one in our statute book, which requires strict construction.

This section of tho statute is as follows: “No black or mulatto person or persons shall hereafter bo permitted to bo sworn or give evidence in any court of record, or elsewhere in this state, in any cause depending, or matter of controversy, where either party is a white person, or in any prosecution which shall be instituted in behalf of this state, against any white person.”

Now, it would seem to me there could be no doubt as to the intention of this section. The object is to prescribe an additional rule as to the competency of witnesses. And, in prescribing that rule, no attention is paid to the moral character of the witness. No matter how pure tho character, yet, if the color'is not right, tho man can not testify. The truth shall not bo received from a black man, to settle a controversy where a white man is a party. Let a man be Christian or infidel; let him be Turk, Jew, or Mahometan ; let him be of good character or bad; even let him be sunk to the lowest depths of degradation ; he may bo a witness .in our courts if he is not black. If a negro or mulatto, he must be excluded from giving evidence where a white man is a party. To my mind, the evident meaning of this section is _to preclude black and mulatto persons from giving evidence in a cause depending where a white man is a party. True, the statute says such persons shall not “ be permitted to be sworn.” But this must be taken in connection with what follows, in order to show for what reason they shall not be sworn. And the words immediately following are, or give evidence.” ■ They shall not be %worn to give evidence, nor give evidence without being sworn. Evidently showing that the subject operating upon the mind of the legislature was that of testifying in courts of justice and elsewhere.'

Suppose that we wore to give this section the construction insisted upon by the plaintiff, what would’ be the consequence? U would more completely put the black man in the power of the white. The white man may now plunder the negro of his property ; he may abuse his person ; he may take his life: Ho maj do this in open daylight, in the presence of multitudes who witness the transaction, and he must go acquitted, unless perchance there happens to be some white* man present. But, so construe this statute as that a black man can not, when sued upon a written instrument, swear to the truth of his plea, and you call in the courts of justice to aid and assist in carrying out a system of oppression. A white man would have nothing to do but to forge the note and commence his suit. The law says he shall not be bound to prove it, unless the plea is sworn to. But the plea can not be sworn to, because the defendant is a black man, and no other but the defendant himself can swear to the plea. The consequence is, the forger, through the instrumentality of a court of justice, reaps the fruits of his villainy, not in punishment, but in a judgment which enables him to deprive his neighbor of his property.

But, even if the letter and the spirit of the section would apply to a question like this, a majority of the court would not bo disposed to enforce it in a case like the present, for .the following reasons : This is a law of 1807. The act dispensing with proof in certain cases, is of more modern origin. And this act provides that, in a case like the present, a plaintiff shall not bo compelled to prove Ijhe execution of the instrument upon which the suit is based, unless the truth of the plea is verified by affidavit. A defendant may thus verify his plea, if he can do so consistently with truth. And his privilege is not confined to defendants of any particular color. It extends to all defendants. And a white man suing a black one, can not deprive him of it. If it was necessary, we should bold that, this Uoeing a subsequent legislative provision, must control the former. But it seems to me clearly that it is not necessary.

In the opinion of a majority of the court, the defendant had a. right to swear to the truth of her plea, and the plaintiff must prove the execution of the note.

The next question in the case is, whether the deposition of Mary Shoemaker can be read in evidence. The plaintiff is a white man, the defendant a black woman. The defendant objects to this deposition because the deponent also is black. The law says that, as between such parties, no black or mulatto person or persons shall be permitted to be sworn or give evidence.” But it is said that this statute confers upon a white man a personal privilege. He may, at his election, permit or refuse the evidence of a black witness, and that his black opponent has no right to object to a witness of his own color. Such is not the law. By positive statutes the black man is an incompetent witness; and I have yet to hear that one party to a suit has any bettor right than the other to object to a witness on the ground of incompetency.

Can the other evidence offered in the case be received ? It is proposed, in the event that the deponent is not a competent witness, to prove her handwriting as a subscribing witness to the note; and this, not by a witness who is acquainted with the handwriting, but by one who saw her subscribe the deposition. This would be a very convenient way of making proof. We have the deposition of the subscribing witness before us, but will not receive it iu evidence, because she is black. But we take the testimony of a witness who will not swear that he is acquainted wilh the handwriting, not having seen the deponent write except when she signed the deposition, and permit him to swear to his belief that her signature to the note as a witness is genuine. This would be going groat lengths. As to the rule in such 'cases there is no difficulty. If there are subscribing witnesses to an instrument, those witnesses must be called, if within the jurisdiction of the court. If not, then you may prove their handwriting, or the handwriting of the maker of the instrument, by those who are acquainted with it. *But before the witness can testify, he must satisfy the court that he is acquainted with the handwriting of the party or witness whose signature he is called upon to prove.

In the opinion of the court, there is no evidence to sustain the plaintiff’s action. Still, we have no rational doubt that he has good cause of action, and ought to recover this money. The only difficulty is to prove it; and the only reason he can not prove it is, that his witness is rendered incompetent by tbo operation of the law of 1807, and in this case that law produces precisely the same results as it does in every other case upon which it is brought to bear. In all my experience, both at the bar and as a member of this court, I can not recollect a single ease in which this law has been found subservient to the ends of justice. On the contrary, its uniform effect has been to prevent justice, both public and private.

There being no evidence to support the declaration, the plaintiff must bo nonsuited.

[To so much of the opinion of the court as decides that a blacker mulatto person can, by affidavit to the truth of a plea, in an action upon a promissory note, compel the plaintiff to prove its execution, Read, J., dissented.]


author: Read, J.

text:
    George Sullenberger v. Jeremiah Gest and John Mills.
    "When a demurrer to the plea or replication has been overruled and withdrawn, and an issue of fact joined, such demurrer constitutes no part of the record, and will not be’considered on error.
    If an immaterial issue be joined, and a repleader not awarded, it is error.
    If matter is plead or replied in due form, but which, if found true by the jury, constitutes neither a bar nor answer, there should be judgment non obstante veredicto in favor of the party whose plea is confessed, and not avoided by the fact found by the verdict.
    A replication to the pica of the statute of limitations, that the defendant, after the cause of action accrued, and during the time limited by the statute, removed from the state to parts unkno.wn, and that the action was commenced within the time first limited by the statute, after his return to the state, and his place of residence became known to the plaintiff, avoids its effect as to the time which had run prior to such removal, and during such absence, and gives the full time to commence suit after such return, and the place of residence becomes known to the plaintiff.
    This is a writ of error directed to the court of common pleas of Miami county.
    *The record shows that the plaintiffs below declarod against the defendant for goods sold and delivered, etc. The defendant plead the general issue and statute of limitations — that the cause of action had not accrued within six years prior to tho commencement of tho suit. To the plea of tho statute of limitations, the plaintiff replied that, during the time limited by the statute, the defendant removed his person without the State of Ohio to parts unknown to the plaintiff; and..that the suit was commenced within six years next after his return to the state and his place of residence became known. To this replication tho defendant interposed a demurrer, which was subsequently overruled and withdrawn, and leave given to amend. The defendant then filed a rejoinder traversing the replication, and concluding to the country.
    The cause was tried by a jury, who found a verdict for tho plaintiff, upon which the court rendered judgment.
    To reverse this judgment this writ of error was sued out, and tho cause of error assigned was, that the court of common pleas erred in overruling the demurrer, and in rendering a judgment for the plaintiff.
    Charles Morris, Jr., for plaintiff.
    W. J. McKinney, for defendants.
   Read, J.

The demurrer having been overruled and withdrawn, and rejoinder filed by defendant, it is not before the court for consideration. But, if the pleading will not support the judgment, the facts stated in the replication not being sufficient, if true, to avoid the plea of statute of limitations, judgment must bo reversed.

It is contended there is error, because tho issue tendered by tho replication and accepted by the rejoinder is immaterial, and that tho court should have awarded a repleader. If a repleader be denied when it should be granted it is error, because the verdict leaves the court in doubt for which party to *give judgment. But issue taken upon a plea or replication, good in form, though not in fact, makes no case for a repleader. When plea or replication is good in substance, and some immaterial part of it is traversed, leaving the main fact unfound by the verdict of tho jury, a repleader must be awarded. A repleader looks to the form and manner of pleading, and not td the substance of the plea.

If the plea or replication is good irf form, but sets up matter that neither constitutes bar nor answer, and issue be taken upon it, and it be found true by verdict, it still loaves the cause of action or bar unanswered and confessed, because the fact plead and found is itself no bar; and, in such case, judgment, non obstatite veredicto, should be in favor of the party whose cause of action or bar is confessed, and not avoided by the fact'set up, though true. This is upon the ground that the facts plead in themselves constitute no bar or answer. Hence judgment non obstante is upon -the merits where repleading the matter, in any form whatever, could not make it good. A repleader is awarded when the matter is good, but defectively and informally stated to have it molded into proper form and manner.

If there be error, then, in this case, it looks to the merits; and the sole question is, whether the matter sot up in the replication, to avoid the plea, is sufficient in law. This involves a construction-of section 7 of the “act for the limitation of actions,” excepting certain cases from its operation.

The statute excepts three classes of cases : 1. When any person shall have left the state and remained out of the same; or, 2. Shall reside out of the same when the cause of action shall have accrued against him, or shall have removed to any place unknown to the person in whose favor such cause of action may exist during such time as is limited by this act. In such cases the action may be commenced within such time as is limited by the act, after his or her return to the state; or if within the state, and if his or her residence is unknown, then within such time after his or her place of residence shall become known.

The replication sots up a removal to parts unknown without *thc state, and suit brought within six years after a return to the state.

It is a maxim of interpretation that, when the words of a statute are unambiguous, there is no room for construction.

The statute says : “If a person remove to parts unknown during such time as is limited by this act, then alter his return to the state, or if within the state, after his place of'residence shall become known, the action may be commenced against him within the time limited by this act.”

If a person, then, go,to parts unknown, during the existence of a cause of action against him, he loses the benefit of the timo which may have run in his favor prior to his departure, and gives the entire time, first limited, to the person having a claim against him, within which to commence his suit, after his place of residence shall have become known. There, of course, must be a removal and change of residence, not a mere temporary absence.

If a person remove to parts unknown, it matters not whether he goes beyond the limits of the state, or remains concealed or unknown within it, the statute does not commence running in his favo.r, until his place of residence becomes known. A mere return, in case of removal without the state, is not sufficient, unless the claimant has a knowledge of his residence after such return.

Under this view of the statute the replication is good, and judgment upon the verdict was rightly rendered for the plaintiff.

Judgment affirmed.


author: Birchard, J.

text:
    Jacob Turney v. Walter Yeoman and others.
    An auditor’s deed for forfeited land, sold under the act of March 14, 1831, is priina facie evidence of title, and may he given in evidence, without any preliminary proof.
    The statute throws upon the person seeking to avoid the deed, hurdon of showing that the proceedings, prior to its execution, were illegal.
    This is a bill in chancery, reserved in the county of Fayette.
    The bill avers title to. 333 acres, the undivided third part of survey No. 988, pátented to Hector McNeil and Joseph and ^Robert Watkins, by virtue of a sale and deed from the auditor of Fayette courfty, under the act of 1831, and the acts ( supplementary thereto ; that Yeoman and others claim said land; that Yeoman claims under a conveyance from Lyne Starling, and prays that their titles may bo discovered and litigated, and prays partition and general relief.
    Yeoman has answered, setting up his title under Starling; that partition has been made between the several proprietors; that he has occupied his share in severalty, and made thereon lasting and valuable improvements, and denying the legality of the forfeiture and sale for the non-payment of taxes.
    To this a replication was filed.

      Testimony was taken, and on the trial of the cause the complainant offered in evidence the auditor’s deed, executed in due form, and reciting the forfeiture to the state for the non-payment of taxes which had accrued thereon, the advertising and exposing to sale, the sale and purchase by the highest bidder, at the courthouse, on July 8, 1833, being the time and place advertised; the payment of the purchase money, and the production, at the date of the deed, January 26, 1837, of the auditor’s certificate of sale, etc.
    To the introduction of this deed objection was made, and the action was reserved for decision in this court.
    Thurman and Sheror, for the complainant:
    The decision of this question depends on the construction of the act of 1831, above cited. Section 6 of that act provides, “ That the county auditor shall, on the purchaser or purchasers, his or their heirs, assignee or assignees, paying to him the sum of one dollar and twenty-five cents, execute and deliver to such purchaser or purchasers, his or their heirs, assignee or assignees, a deed therefor (id est, the land sold) in due form, which deed shall be prima facie evidence of tifie, in the purchaser or purchasers,” etc.
    Section 7 provides, “ That any person or persons claiming any land, in-lot, out-lot, or part of a lot, by virtue of any sales made by the provisions of this act, as tenants in common *with any other person or persons, may apply for partition of the same, in the same manner as now is or may be provided for the partition of real estate ; and on presenting the county auditor’s deed, the court, before whom application for partition, as aforesaid, is made, shall set off to such person or persons the land claimed in said deed as his or their share, in the same manner as prescribed by law for the partition of estates in lands, tenements, or hereditaments of joint tenants, tenants in common, and coparceners.”
    These two sections would seem to be almost as plain as language can be. The former declares that the deed “ shall be prima• facie evidence of title;" and the latter enacts, that, on presentation of the deed, the court shall order partition. Nothing else is required to be presented. The statement of what the petitioner-shall produce, excludes the idea that he shall be bound to produce; anything else. And the language is direct, unambiguous, and express, that, upon his presenting the deed, the court shall order/ partition. It follows that he is not required to adduce the preliminary proof demanded by the defendant.
    But it will be said, on behalf of the defendant, that, in Car-lisle’s Lessee v. Longworth, 5 Ohio, 368, this court decided that such preliminary proof was necessary.
    We reply, that that case is not in point; that the sale to Car-lisle was made under the act of 1825, for the sale of delinquent lands; that no decision has been made by this court that a deed made under the act of 1831, aforesaid, requires to be supported by preliminary proofs; that the question in the present case is, therefore, an open one; that the two acts are widely different; and that the decision for which we contend, will not conflict with that in Carlisle v. Longworth.
    The act of 1825 provides for the making of a list of delinquent lands, advertising the same, recording the advertisement, selling the lands, giving a certificate to the purchaser, recording the sale, and executing a deed; and then provides that “ the deed made by the county auditor, as hereinbefore specified, *shall be received in all courts as prima facie evidence of a good and valid title in the purchaser.” See sec. 9 of act of 1825.
    Now, it was upon the construction that the court gave to these words, “ as hereinbefore specified,” that the decision, in Carlisle v. Longworth, was made. They were construed to relate not only to the execution of the deed, but also to the steps precedent thereto. And that decision rests on that construction of these words. See the opinion of the court, and particularly on page 374.
    But in the act of 1831, under consideration, there are no such words, or any equivalent thereto. The language is, “which deed shall beprima facie evidence of title ?” It is not said, “ which deed, made as hereinbefore specified, shall be,” etc. There are no such words as those, or their equivalent, in the section.
    The whole foundation, then, on which the decision, in Carlisle v. Longworth, is based, is wanting in the present case.
    And not only is it wanting', but there is (what is equally conclusive with the want of it) 1he positive, unequivocal provision of section 7, that) on presentation of the deed, the court shall order partition.
    And here it is worthy of remark, that the legislature might well make a distinction between delinquent and forfeited sales, and require more proof of the tax purchaser in the former than in the latter case. In the case .of mere delinquencies, the arrears of taxes are for two years only. The transactions preceding the sale are recent, and the records are at hand and easily produced by the purchaser. But with forfeited sales the case is quite different. The arrears are for a greater period; and, in the first sales made under the act of 1831, they were for a long series of years, and had accrued under various systems of taxation. The neglect of the owners of the lands to discharge them, had become most gross and inexcusable, and the efforts of the state to realize her dues had therefore been unavailing, owing to the universal want of confidence in tax titles. Under *tbese circumstances, it was apparent that there would be few purchasers at tax sales, and that the sales that might take place would not pay the taxes due the state, unless made under such provisions of law as should give the buyer some reason to hope that he had obtained something by his purchase. Hence the act of 1831, which, makes the deed of the auditor prima facie evidence of title, leaving to whoever may contest its validity the right to impeach it. This is as it should be. The owner of land has no reason to complain, if, after neglecting to pay his tax for years, suffering his land to become forfeited, imposing on the state the trouble and expense incident to the listing, delinquency, forfeiture, and sale of the land; the deed, derived under the authority of the state, from a sworn and disinterested officer, should be regarded as prima facie evidence of title, and such as to require whoever contests it to point out the defects in the title, if any exist — the records of the county being open to him for that purpose.
    John L. Green, for the defendant, Yeoman:
    The court will keep in view that this is a suit in chancery; not a proceeding for partition under the statute. The consequences are, we think, most material. In this case the title, and all the steps preliminary thereto, are put in issue. Not merely the due form and execution of complainant’s deed. These questions are raised and must be settled by the final decree which shall be rendered. A proceeding in partition settles nothing but an equal division of the land among those claiming in common. It is not a litigated suit, in which the rights of parties are finally adjudicated. The order of partition merely assigns a portion of the land to satisfy the claim of the petitioner, if he has any that he can maintain in a case proper to try the right. Indeed, had the complainant in this case resorted to the statutory proceeding for partition, the only persons 'to be made parties would have been those holding the Mother two-thirds of the survey, as tenants in common with him. The order of partition, then, made in such a case, would have been no bar to either of the other tenants in common, who might subsequently have become the owner of the third claimed bjr the petitioner. In such a state of case, the view of complainant’s counsel may be correct. But they recite so much of section 6 of the act of 1831, as relates to the making of the deed by the county auditor, and so much of section 7 of the same act as declares that, on the petitioner for partition presenting the auditor’s deed, the court shall order partition, etc.; and they argue that, from these provisions, it is apparent that it was the intention of the legislature to make the presentation of the deed, in all cases, sufficient to throw the burden of proving irregularities in the previous proceedings, on the party seeking to impeach it. Here, then, is the error into which they have fallen: In treating this as if it were a statutory proceeding, or in supposing that the same measure of proof as would be sufficient in such a case, will be sufficient in this.
    We invite the attention of the court particularly to the case made; and the averments of the bill. Complainant claims title to the land in controversy, by virtue of an auditor’s deed, and undertakes to show how, by what authority, that deed is made. He avers that the said 333 acres, the undivided one-third of the said Hector McNeil, became and was duly forfeited to the State of Ohio, for the non-payment of taxes, agreeably to the laws thereof and this is denied by the answer and the proof called for. What is the extent of this averment ? Does it amount to nothing more than (what we admit would have been sufficient) that he claims title under and by virtue of a deed, duly executed from the auditor? Surely it does. It is a distinct affirmative averment,''in effect, that the land had been regularly listed by a proper and sufficient description for taxation ; that it became regularly delinquent for the non-payment of the taxes regularly assessed; that it was regularly advertised and offered for sale, and-was returned not sold for the *want of bidders; that it thus became regularly forfeited to the state; that it was regularly reported by the auditor of state to the county auditor, and by the latter regularly advertised and sold, agreeably to the laws of the state. If he has, then, thought proper to so frame his title as to assume the affirmative of all these propositions, and issue is taken upon them all, must he not, according to all the rules of pleading and evidence, take the burden of proving them? Had he simply averred the auditor’s deed as the evidence of his title, and the defendant had set up the illegality of all or any of the preliminary proceedings to defeat it, there might be some plausibility in the argument of counsel, that the proof should dome from the party setting up these matters, to impeach the deed; provided what they claim to be the true construction of the law, as to the effect of the deed as evidence, be correct.
    But, we think, independently of the rule of evidence applicable to the case as made, on which we rely as decisive, the counsel for the complainant are wrong in the construction of the law, as they contend for it. There is nothing to take this case out of the rules of construction, as laid down and established by the court, in the ease of Carlisle’s Lessee v. Longworth, to which they have referred the court. There is no substantial difference in the language of the two statutes (that of February 1,1825, and of March 1, 1831).
    An attempt is made to distinguish the case referred to from this, on several grounds. It is said that was the ease of a sale of. delinquent lands — this of forfeited lands. There is nothing in this. Both may work a loss of a party’s land. In the one case a sale is made, and consequently the land does not become forfeited to the state; in the other case, it does become forfeited, because there was no sale. The land in this case, it is said, became forfeited for a delinquency, for the years 1823, 1824, 1825. We all know how many errors intervened in ascertaining or attempting to ascertain what lands remained forfeited. How many sales, made under the act of March, 1831, have been held void, because the proprietors had long before released *the forfeiture by paying up the taxes in arrear. If a rigid rule is to be applied to the ono class of cases more than the other, there is certainly no good reason why those under the forfeited sales should be preferred to bear the burden. There is in truth no difference in principle, and certainly none as to the consequences to the proprietor.
    But, again, it is said that the phraseology of the act of 1825, under which the case of Carlisle’s Lessee v. Longworth was decided, is essentially different from that of the act of March, 1831; and hence the reasoning of the court in that case will not apply to this. A comparison of those provisions in the two acts bearing upon this question will, we think, show clearly that there is substantially no discrepancy. Much stress is laid by the counsel, as governing the court in their opinion in that case, on the words in the act of 1825, “ the deed made by the county auditor, as herein-before specified.” It is true that these precise words are not copied literally into the act of March, 1831; but, we think, the words in section 6 of that act, “ which deed,” are equivalent. It is also true that Judge Hitchcock does quote those words, but they do not govern the case ; that is, the case is not made to rest solely upon those words. The opinion is based as well upon the general rules of law and evidence. It is said, “the court will not sustain a sale, unless the proceedings have been regular; nor can they decide in favor of a title, unless that title is sustained by competent evidence. The mere circumstance that it is derived from a tax sale, secures it no peculiar favor. It must, notwithstanding this, be subject to the. general rules of law and evidence.”
    A county auditor’s deed is of no higher dignity, and entitled to no more favor, than a sheriff’s deed, made on a sale under execution. The language of the act regulating judgments and executions, is certainly as strong as that of the act of March, 1831. Section 16 of the judgment and execution law (Swan’s Laws, 475) provides, “which deed (the sheriff’s deed) shall be prima facie evidence of the legality of such sale, and of the proceedings thereon, until the contrary *is proved, etc.” Yet this court have held,time and again, that a sheriff’s deed must be accompaned by proof, showing that the sheriff* had authority to sell; and, for this purpose, the party relying upon such deed, must show a judgment, levy, and sale, made in pursuance of the’law.
    Can any good reason be assigned why a party, claiming under a tax deed, should not be required to adduce the proof necessary to show that the auditor had power to make it, as well as in the case of judicial sales? The latter is a class more highly favored than the former. There is certainly no good reason, unless it can be found in the imperative mandate of the legislature. Whatever may be addressed to the court, on the necessity of “ collecting the revenue,” and “ the universal want of confidence in tax sales,” they will not, we presume, be disposed, for these reasons, to favor a party, unless so commanded by law, who is seeking, in the language of Judge Pease, “to get acres for cents," in a higher degree than he who claims in virtue of any of those numerous classes of judicial sales, and who has paid what the law considers a fair equivalent for what he seeks.
    R. Douglass submitted an argument for the complainant, in reply.*
   Birchard, J.

The objection to the introduction of this deed presents a new and interesting question. One that merited all the attention it has received from counsel, and all that we have been able to devote to it. It requires, at our hands, a construction of portions of the act of March 14, 1831 (Swan, 927), and of the act of January 21, 1833. 31 Stat. 20.

Section 1 of the act of 1831 provides for the sale of lands which had become forfeited to the state, for the non-payment of taxes prior to January 1, 1831, and all lands that might thereafter become forfeited; declaring that they “ shall be sold and disposed of by the State .of Ohio, agreeably to the provisions of this act.”

^Section 2 requires the auditor of state to enter all lands forfeited prior to 1831 in a book.

Section 3 requires him to transmit to each county auditor, at the time he transmitted the county duplicate for 1831, a list, under his hand and seal, of the forfeited lands lying in such county, setting forth the names of the persons to whom such lands stood charged with taxes, specifying the amount for each year, with the year 1831, and for what years.

Section 4 provides that the county auditor, on receiving such list, the tax, etc., remaining unpaid on October 15, 1834, shall forthwith advertise a sale to be holden on the second Monday of December thereafter, at the court-house, etc., and, at the day of sale, the tax still remaining unpaid, the land shall be sold in separate tracts, in consecutive order, to the highest bidder.

Section 6, so far as applicable to the question, reads thus: “ That the county auditor in each county, on a sale being made by him, of a tract of land to any person or persons, under this act, shall give to such purchaser or purchasers, a certificate of such sale.” . . . “On producing or returning to the county auditor the certificate of sale, when the said tract sold is an entire original tract, or when the said tract so sold is holden in common with any other person or persons.” . . . “ The county auditor shall, on the purchaser or purchasers, his or their heirs, assignee or assignees, paying to him the sum of $1.25, execute and deliver to such purchaser or purchasers, his or their heirs, assignee or assignees, a deed therelor, in due form; which deed shall be prima facie evidence of title in the purchaser,” etc.

Then follows the proviso, that persons under disability may redeem ; and the further proviso, that the sale shall be void, and purchase money be refunded from the state treasury, when the taxes shall be regularly paid previous to the sale.

Section 7 declares, “ that any person or persons claiming any land, etc., by virtue of any sale made by the provisions of this act, as tenant in common with any other person or ^persons, may apply for partition of the same, in the same manner as is now, or hereafter may be provided, for the partition of real estate; and, on presenting the county auditor’s‘deed, the court before whom application for partition, as aforesaid, is made, shall set off to such person or persons, the land claimed in said deed, as his or their share,” etc. The act of January 24, 1833, changed the day of sale from the second Monday in December to the second Monday in July, and is no further applicable to .the question before us. Having shown how the written law reads, we are prepared to consider the objection that is made to the introduction of the deed, which is, that it is no evidence of title by itself, without preliminary proof showing the regularity of the proceedings recited in the deed, and required by the statute. The objection would seem to be only a contest between the parties, to shift from one to the other the burden of proof. To try whether the plaintiff shall take the onuftkof showing the regularity of the sale, and all the preliminary steps preparatory thereto, or whether the person seeking to avoid the deed, shall be required to produce the proof manifesting its defects.

No one can doubt for a moment the power of the legislature to cast the burden upon either party. They could say that the one should bear it and the other be relieved from it. If they saw proper to cast it upon the respondent, it is not our province to relieve him or to gainsay the propriety of the act. The respondent’s counsel think they have not done so; and whether or not he is mistaken, is the inquiry we have to make.

Suppose we take up the act, allow it to speak for itself, and consider its force, divested of all extraneous influences. It speaks thus: “ Which deed shall be prima eacie evidence of title in the purchaser.” Would any one capable of feeling the force of the English language, hesitate as to the meaning of this sentence ? Above all, would he come to a conclusion that the deed is no evidence at all? Some things are so clear, that an attempt to make them more clear, tends only to obscurity. This, I take it, is one of them. There is no obscurity about it. *The language of the seventh section is equally certain : “ And, on presenting the county auditor's deed, the court shall set off,” etc. This language is precise, express, direct, and such as admits of no doubt. It makes the deed, while unimpoached, evidence — evidence, in and of itself, without any other proof. But it is supposed that, however else the meaning of these words of the statute may be, when tested by their ordinary acceptation; yet, in a judicial sense, they as clearly mean something more than is said. This deserves consideration. When particular words and phrases have in law acquired a fixed legal signification, and are thus incorporated into a statute, the legal presumption is, that the legislature meant'to use them in this legal sense. The rule is undoubted. But these words are not of that class. Nothing like them is to be found in any previous statute. Indeed, in looking into the former legislation upon the subject of taxes and tax titles, one would almost be led to believe that, for many years, a continual struggle bad been kept up between different branches of government. The courts, on one hand, trying to avoid them, upon the notion that they took acres for cents, and were not to be favored; and the legislature, on the other, striving to make them good, and thus prevent the public treasury from becoming bankrupt, by the use of language direct clear and mandatory, as their capacity would enable them to command. Any such conclusion would bo doubtless erroneous.. Certainly it would, so far as this court is concerned. There is no member of it that does not feel and has not felt the necessity of sustaining tax titles, whenever they were susceptible of support, as well for the interest of the state, as for the protection of landholders. As well to enable the former to compel each individual to bear his just proportion of the expenses of government, as to prevent the property of the other from being sacrificed, by sale of many acres to pay a small tax, for want of competition, and on the supposition that the title would be worthless.

The eaáe of Carlisle’s Lessee v. Longworth, 5 Ohio, 368, has been cited to sustain this objection.

*It is true, in that case, an auditor’s deed was held not to be evidence of a good and valid title, until it was first shown by the purchaser that the lands had been duly advertised and sold for taxes; and that the person in whose name the lands were sold, had the title. But the deed which was involved in that investiga,tion was made under a different statute — the act of 1825. A critical examination will show that act to have been drawn with less care than this, and consequently its meaning was more obscure. The words of sections 6, 7, and 8, of the act of 1825, declare that the deeds of the land purchased under it should convey to the purchaser a good title in law and equity. Section 9 also declared, “ the deed made by the county auditor, as hereinbefore specified, shall be received in all courts as prima facie evidence of a good and valid title.” It was upon the peculiar wording of the act that the majority of the court held the preliminary proof necessary. The deed was evidence under that statute, when made pursuant to its provisions. To enable the court to say that the provisions of the statute had been pursued, it became necessary that they should know what had been done. Such was the reasoning of the court. Indeed, a remark in the opinion shows that, to the language used in the act of 1831, a different construction would have been given. “ The legislature (says the judge in delivering the opinion) do not say that a deed, made by the county auditor, shall be received as prima facie evidence of a good and valid title, but the deed, as hereinbefore specified. In other words, the deed made by the auditor, in pursuance of the act.” Now, in the act of 1831, the legislature has said, in substance, a deed, etc., for which deed, connected as it is with the remainder of the sentence, is in effect the same thing as a deed; so far from being an authority against this construction, if the argument be carefully considered, the case in 5 Ohio will be found to support it.

Cause certified to the circuit and continued for further proceedings.


text:
    *Joseph Williams v. The State of Ohio.
    The law presumes that an infant under the age of fourteen years is incapable of committing or attempting to commit the .crime of rape; but this presumption may be rebutted by proof that such person has arrived at the age of puberty.
    This is a writ of error to the court of common pleas of Franklin county.
    The record shows that the plaintiff, in the court below, had been prosecuted in that court for a rape. The indictment contains two counts, one for commission of a rape, the other for an assault, with intent to eommit a rape. The cause was tried by a jury, and the plaintiff found guilty of an attempt to commit a rape, and not guilty as to the other count.
    The bill of exceptions, disclosing the errors complained of, is as follows:
    “ Be it remembered that, on the trial of this cause, the defendant produced evidence tending to show that he was under the age of fourteen years at the time of the commission of the offense charged, and the state adduced testimony tending to show that the defendant had arrived at puberty at the time of the commission of said offense; and thereupon the defendant, by his counsel, asked the court to instruct the jury :
    1. That if the jury found that tho defendant was under the age of fourteen at the timo of the commission of the offense charged, he could not be found guilty under the said second count of the indictment, though, in fact, he had arrived at physical puberty.
    2. That if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of the said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the indictment.
    The court refused so to charge the jury, but charged that the fact of the defendant being under fourteen years of age was ^presumptive evidence that the defendant had not arrived at physical puberty, which presumption must be repelled by the state. And if the jury found that the defendant had, in fact, arrived at physical puberty, the circumstance of his being under fourteen years of age, would not, of itself, in law, authorize the jury to acquit the' defendant upon the second count; and thereupon the defendant excepted, on account of the court refusing to charge the jury as prayed, and on account of the charge in the premises, and which exceptions the court seal.
    On which the following errors were assigned:
    1. The court erred in refusing to instruct the jury as prayed, to wit, that if they found that tho defendant was under the age of fourteen years at the time of the commission of the offense charged, he could not be found guilty under the second count of the indictment, though in fact he had arrived at physical puberty.
    2. The court erred in refusing to instruct the jury as prayed, to wit, that if, from lack of age, the defendant could not be found guilty of the crime of rape, as charged in the first count of said indictment, he could not be found guilty of an attempt to commit a rape, as charged in the second count of the same indictment.
    3. The court erred in instructing the jury that the fact of the defendant being under the age of fourteen years, would not, of itself, in law, authorize the jury to acquit the defendant upon the second count of the said indictment.
    4. That said verdict was rendered against the defendant when, by the laws of the land, he ought to have been acquitted.
    Piekpont & SrARROW, for the plaintiff:
    Insisted that, by the common law, as settled for a long period, and by an unbroken seines of decisions, a boy under the age of fourteen could neither be convicted of the offense of committing *a rape, nor of an assault with an attempt to commit a rape, no matter what might be his physical capacity, and quoted the following modern English decisions, as in point, and showing that the strictness of the rule had not been departed from: 14 Eng. Com. Law, 367; 38 Eng. Com. Law, 63; 8 Carr. & Payne, 736.
    They also reforred to the following authorities: Archb. Crim. Pl. 9, 10, 452, 454; Roscoe’s Crim. Ev. 797-799, 802; 4 Black. Com. 212, 215, 210, 23, 436; 1 Russell on Crimes, 527, 534, 526; Steph. Crim. Law, 153; Broom’s Legal Maxims, 149; 1 Coke Lit. 123; 2 Kent’s Com. 78; Chase’s Stat. 1724, sec. 5; Swan’s Stat. 230, secs. 5, 6; 2 N. Y. Rev. Stat. 735; Roget’s Physiology, 339, and Mueller’s Physiology, 827.
    Lewis Heyl, for the state :
    Contended that the reason on which the rule was founded in England, ceased in this country; and that, with the cessation of the reason, the rule of evidence should cease; that, composed as community was here, of citizens of almost every nation and their descendants, and especially of the descendants of the natives of the tropical climate of Africa, it was a fact that an infant under fourteen years, was often capable of committing the offense of rape; and hence the safety of community requires that here the presumption of law should give way to proof — that, if the proof shows that he has arrived at the age of puberty, he may be found guilty.
    In support of this position, the cases of Pennsylvania v. Sullivan, Add. 143; Commonwealth v. Thomas, 1 Va. Cas. 307; State
      v. Le Blanc, 15 C. 359; Commonwealth v. Green, 2 Pick. 381, were cited.
    The following additional authorities were also cited, in the course of the argument.
    1 Hale’s P. C. 630, 628; 1 Russell on Crimes, 557, 560; *3 Chit. Crim. Law, 810, 812; 1 Buck’s Med. Jur. 519; Roscoe’s Crim. Ev. 799; Chit. Med. Jur. 383; Mueller’s El. of Phys. 827 ; Roget’s Phys. 339, 812; Swan’s Stat. 230, sec. 5, and 232, sec. 14, 17; 7 Ohio, 243, pt. 2; and Chase’s Stat. 1724, secs. 5, 6.
   Read, J.

Our statute fixes no age within which a person is incapable of committing or attempting to commit the crime of rape, the common law presuming that an infant, under the age of fourteen years, is unable to commit the crime of rape, and therefore he can not be guilty of-it, or of an assult with intent to commit a rape; and, if he be under that age, no evidence is admissible to show that, in point of fact, he could commit the crime. This has been the established law of England for many hundred years, nor has it been departed from in the United States, except in a single instance in the State of Massachusetts, where it was held that a boy under the age of fourteen years could be convicted of an attempt to commit this offense. This' doctrine proceeds upon the ground of impotency, rather than want of discretion; because all persons, infants and even females, may be convicted of aiding and assisting in this offense, as well as in other fcrimes, if there be proof-that the infant had a mischievous discretion. The question is, shall this presumption of the common law prevail in Ohio, to exempt the person under fourteen years from punishment for the actual commission of a rape or an attempt to commit a rape? And if not, to what extent will it bo recognized? And will proof of positive capacity to commit the offense, authorize the/conviction of a person under the age of fourteen years of the crime of rape, or an attempt to commit it ?

We admit that we have much hesitation in departing from long established principles of law, which have had the sanction of the wisest judges and the test of years. But the principles of the common law respecting evidence of the capacity to commit crime, are founded in the very reason of things, the ^nature of man and social life, and are adopted from their innate truth and good sense. Those principles of law which are of binding force only from the authority of truth, may be justly styled the perfection of reason ; and the obligation of the rules of the common law having this foundation, it is a maxim that, when the reason out of which the rule given ceases, the rule itself ceases. '

Rape is defined to be the having unlawful and carnal knowledge of a woman, by force and against her will. To constitute this , carnal knowledge, there must be both penetration and emission; both these are necessary elements in the crime of rape. Hence, before an infant has arrived at the age of puberty, or before, by the physical laws of human nature, he can emit seed, he is incapable of committing the crime of rape. If, then, it be a fact that, prior to the age of fourteen, an infant is incapable of emission, the rule of law which fixes that as the age within which an infant can not be convicted of rape, or an attempt to commit it, is founded in' reason, and is of binding authority ; because it proceeds upon the fact that the infant has not committed the crime and could not commit it. If it were an invariable law of human nature that an infant under the age of fourteen years could not emit seed, it would be a reasonable rule that evidence should not be permitted to contradict it; because it would be worse than idle to introduce evidence to contradict that which is necossariiy true.

But if,0in a vast majority of cases, infants under the age of fourteen years, are incapable of emitting seed, then it is a reasonable and necessary presumption of law that any named infant under that age is incapable of committing the crime, and the presumption is strong or weak just in proportion to the rareness or frequency of the exceptions. Now, in the moist and cold climate of England and most of the countries of northern Europe, it is so seldom that an infant under the age of fourteen is capable of emission, that it is assumed as a fact that, prior to that age, he is never óapable ; and hence, under that age,no one can be convicted of rape. This rule there *may have reason. But, in tropical climates, where the male usually arrives at puberty before the age of fourteen, the rule, instead of being founded in reason, would contradict both reason and fact. It is an admitted law of physiology, that climate, habit, and condition of life have much influence in hastening or retarding the age of puberty. Different races of men differ as to the age of puberty.

In our climate, the age of puberty is frequently earlier than in that of England or the more northern states of this Union. We have among us almost every variety of the races of men. To adopt the rule, then, which exists in England and more northern countries, where the climate, condition, and habits of the people are different, and the population mostly of one race, would not only be a departure from reason and good sense ; but would be in violation of the statute itself, by withdrawing persons who had actually violated it, from punishment. In England they do not propose to permit guilty persons to escape, but assume the physical impossibility of an infant under fourteen years being capable of being guilty. In our state, we know that many infants under fourteen are capable of being guilty; but that a majority are not capable, under that age. Hence we are compelled to suit the rules of law to the fact, as the rule itself has no authority but in fact. The reason of the rule, excluding proof that an infant under the age of fourteen years is capable of committing the crime of rapé ceasing, the rule itself ceases. Modified, then, to our oyn circumstances and condition, tho law is this: An infant under the age of fourteen years is presumed to be incapable of committing the crime of rape, or an attempt to commit it; but that presumption may be rebutted by proof that he has arrived at the age of puberty, and is capable of emission and consummating the crime.

The. charge of the court below was therefore correct; and we refuse to reverse the judgment.