text:
    The Lessee of John R. Maxsom v. Joseph Sawyer.
    The court of Common Pleas that appointed a guardian may empower him *<» sell the minor’s land situate in another county.
    To give the court of Common Pleas jurisdiction over a minor, so as to authorize the appointment of a guardian for him, such minor must, at the time of appointment, have an actual or constructive residence within the county.
    'Where a guardian’s sale has been examined and confirmed by the court, and the journal entry shows that a hond has been directed, and securities approved, it will he presumed that the bond was executed.
    A guardian derives his power to act from the appointment and bond. Letters of guardianship need not in fact issue.
    The question as to jurisdiction of the court making the appointment of guardian is open to inquiry. But when the record alleges the fact conferring jurisdiction. Quere.

    This is an action of Ejectment from Lake county.
    The cause was submitted to a jury on the last circuit in the county 106] of Lake, and a verdict found for the plaintiff, subject *to the< opinion of the court on the law of the case, arising on an agreed statement of facts, as follows :
    In the year 1828, John Maxsom died, seized in fee of the premises-in question, at Mentor, in the county of Geauga, now in tho county of Lake, in which place he had a legal settlement, and leaving Polly Maxsom, his widow, and the lessor of the plaintiff, his only heirs at law. At the time of his father’s death, the lessor of the plaintiff was two or three years of age.
    On the third of March, 1829, Polly Maxsom, the widow of the said, John, and mother of the plaintiff’s lessor, intermarried with Peter Seely, with whom she resided, at Mentor, aforesaid, until the following winter, when she left him, taking with her the lessor of the plaintiff.. Peter Seeley was living in the spring of 1843.
    On the 19th of April, 1820, Polly Seeley, the mother of the plaintiff’s lessor, entered into a written agreement with John Patterson, of Springfield, in the commonwealth of Pennsylvania, under their hands and seals, by which she covenanted, on her part, to let her son, the-plaintiff’s lessor, live with Patterson, from the date of said agreement until he was fourteen years of age, and not to take him away, nor suffer any other person to do so, if in her power to prevent it, until he attained that age ; and Patterson covenanted, on his part, to provide for the lessor of the plaintiff, in sickness and in health, and to pay all. expenses, etc.
    Immediately after the date of said agreement the plaintiff’s lessor went to reside with Patterson, and remained there until he arrived at the age of fourteen years, which was in the year 1840. The'plaintiff’s lessor was in Ohio but once during the time he resided with said Patterson, and but for a single day. In 1831, Polly Seeley intermarried' with Hiram Niles, in the county of Ashtabula, with whom she resided in said county until after the April term of the court of Common Pleas of said county, 1835, at which term of said court Hiram Niles was appointed guardian to the said pla.intiff’s lessor, until he should arrive at the age of fourteen years. A bond was ordered in the sum of §1400, and two sureties were accepted by the *court. At the [197 November term of said court, following, Hiram Niles, as guardian of the lessor of the plaintiff, filed his petition in said court, setting forth, that said lessor was seized in fee of the land in controversy, and, for the reasons therein mentioned, prayed said court to be empowered to sell said land. At the June term of said court, 1836, the petition was granted, and orders soon after issued for the appraisal and sale of the premises. The appraisal was made; the sale followed, the defendant being the purchaser; a report of the proceedings was returned to the court of Common Pleas of Ashtabula county ; the same were examined and confirmed, and a deed duly executed to the purchaser.
    If, upon the above state of facts, the court should be of opinion that the law of the ease is with the plaintiff, then judgment is to be rendered for him ; but if the law of the case be with the defendant, then the verdict is to be set aside, and judgment rendered for the defendant.
    R. Hitchcock and E. T. Wilder, for plaintiff, made the following points:
    First: The proof offered by defendant to show that Niles was guardian of the minor is insufficient, it not being shown that the bond required by law was given, or that letters of guardianship issued. Swan’s Stat. 430.
    Second: Niles was not, in fact, guardian, because Maxsom, at the time of the appointment, was not a minor within the county of Ashtabula, and the court had no jurisdiction to make the appointment. Swan’s Stat. 430, sec. 1. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; Griffith v. Frazier, 8 Oranch, 9 ; Holyoke v. Haskins and wife, 5 Pick. 19 ; Borden v. Fitch, 15 Johns. 121,123 ; Latham v. Edgarton, 9 Cowen, 227 ; Smith v. Rice, 11 Mass. 507 ; Trustees of Bloomfield v. Trustees of Chagrin, 5 Ohio, 315; Putnam v. Johnson and others, 10 Mass. 501; Lessee of Perry v. Brainard, 11 Ohio, 442.
    *Third : The minor lived out of the state ; the lands sold were [198 situate in Geauga county. Of course the court of Common Pleas in Ashtabula county had no jurisdiction to order the sale, and the sale is void. Swan’s Stat. 431 ; Ludlow’s heirs v. McBride, 3 Ohio, 240; Avery v. Pugh, 9 Ohio, 67; Holyoke v. Haskins and wife, 5 Pick. 19 ; Griffith v. Frazier, 8 Cranch, 9.
    Stephen Matthews, for defendant.

      The questions in this ease are—
    First: Can a guardian of a minor, in Ashtabula county, by order of the court there, sell the land of the minor in an adjoining county?
    Common Pleas may appoint a guardian, and authorize him to sell any or all of the real' estate of his ward, no matter where it lies in the state. Swan’s Stat, 430.
    Guardians to minors, who live out of the state, must apply, to sell land, in the county where the land is situate. Swan’s Stat. 431.
    I deem that the Legislature intended to provide, by section 9, for cases where the parents of minors died, residing in another state, where the legal residence of the minor is, and where he there got a guardian appointed out of this state, who, to sell land owned by the ward, in this state, must apply where the land lies, or in one county where it lies.
    Second : "Was not <T. R. Maxsom a resident of Ashtabula county, April 14, 1835, he being born in Mentor, where his father died, and followed the residence of his mother to Ashtabula county — she having resided there from 1829 to 1835, six years, and Maxsom then being nine years old— though be lived with Patterson from April, 1830, by consent of his mother, in Springfield, Pennsylvania, about nine miles from the Ohio line.
    On a question about the distribution of property, according to the law of England, or of Guernsey, the court decide, “ that after the 109] death of the father, children remaining under the *care of the mother, follow the domicil she may acquire, and her domicil is that of her children, until they are of age to acquire a domicil of their own.” 8 Merivale, 67, 79.
    And Lord Alvanly says : A minor can not, by his own acts, acquire a residence. 5 Vesey, 787.
    In the above case, Sir S. Romilly and Swanston have collected the authorities on the subject, and show the universality of the rule.
    So in 3 Ohio, 101; 5 Ohio, 316 ; 17 Johns. 91; 20 Johns. 285, the principle is similar.
    A citizen may have his home in one town, and his legal settlement in another. 10 Mass. 501, 502.
    The agreement between the mother of John, and Patterson, shows that she let Patterson have the boy till he was 14 years old, in consideration of certain valuable services which he was to render; and she expressly agreed, during that time, not to take him away, or suffer any other person, if she could prevent it.

      It is the same as though she had hired him out for a shorter period, or sent him to a school out of the state. The power of taking him away, or compelling him to return, after the expiration of the contract, she retained ; which, is inconsistent with a legal residence — that the individual possessing it can not be deprived of.
    In 20 Johns. 283, 285 — The pauper had a written contract from the father, “ giving him his time and services ; the right to go where he pleased; and relinquishing all paternal control.” But the court said he had a derivative settlement identified with the father’s; that the contract was absurd ; that the law determines the relation between the father and his infant children, which is not in their power to change.
    By the civil law, minors are under the guardian the same as under a parent. 5 Pick. 25, note one.
    But suppose, and the presumption results from the proceedings in this case, that the court in 'Ashtabula were informed that the mother, who resided in Ashtabula, had let her son to labor for Patterson, in Pennsylvania, for the time mentioned *in the contract, no objec- [200 tion to jurisdiction could arise, for the infant’s settlement is identified with the mother’s, the father being dead.
    Third: Can the order of the court of Common Pleas, to sell the land, be questioned, collaterally ; and is not that order, and the proceedings under it, final and conclusive ?
    The court of Common Pleas has jurisdiction of all probate and testamentary matters, the appointment of guardians, etc. Constitution of Ohio, art. 3, sec. 5.
    On good cause shown, they may authorize a guardian to sell all or any part of ward’s property, real or personal. Swan’s Stat. 430.
    Here, general jurisdiction of the subject matter is given; and an order of sale presumes the minutia of the proceedings correct, so far as respects an innocent purchaser. And if any one is injured, his redress is upon the guardian and his sureties — which the law makes ample — and not upon the purchaser in good faith.
    The decisions of Ohio are collected, in Swan’s Stat. 368, note (a).

    The proceedings of a court of Probate, in the sale of lands, are strictly in rem, and not in personam. If it has jurisdiction of the subject matter, its acts are binding against all the world. 9 Ohio, 18,117.
    So far as the interests of purchasers are concerned, the order for the sale of decedent’s estate, is of equal validity with a judgment. If the court have jurisdiction of the subject matter, the purchaser need not look behind the order of sale. 5 Ohio, 494.

      An order of sale is final and conclusive upon all parties concerned, until set aside, reversed, or annulled. It can not be questioned collaterally. It will protect a purchaser, although erroneously and unadvisedly made. 3 Ohio, 553.
    Same as purchasers at a sheriff’s sale. 9 Ohio, 19.
    Finally: Do the facts in the ease allow the question of jurisdiction to come up ? And if so, have not the Common Pleas of Ashtabula 201] county jurisdiction of the subject matter — of probate ^affairs? And if so, their order protects the defendant — a bona fide purchaser under it; and the ward has ample redress against his guardian, who has now land in Monroe, to respond the amount of the land, and four times the amount in Indiana. And, furthermore, the bail, to double the amount of the land, are secured by a mortgage to $1,500, in Monroe, Ashtabula county.
    Peter Hitchcock, on the same side.
    Wherever the court authorize a guardian to sell the real estate of his ward, and it is accordingly sold, the sale will be valid, notwithstanding there may be informality or irregularity in the proceedings. Upon this principle it was held that the purchaser’s title will not be defeated by an irregularity in the appraisement, or by the fact that notice of sale was not given as the law directs. 9 Ohio, 19. And it is for the public interest that it should be so. So long as real property is subjected to sale by executors, administrators, and guardians, public policy requires that, so far as it can be done, sales made by them should be sustained, otherwise purchasers will be few, and competition, in a great measure, destroyed.
    Besides, this liberality in sustaining such sales has a tendency to prevent a multiplicity of litigation. Governed by considerations like these, this court have hitherto applied the same rules to sales of this description as to sales on execution; and have attached the same solemnity to an order of sale as to a judgment at law. As upon sale on execution, it is only necessary for the purchaser to look to the “judgment, the levy, and the deed,” as was held by the Supreme Court of the United States, (4 Wheat. 506 ;) so, in sales by administrators and guardians, it is only necessary to look to the order of sale and to the deed.
    If, however, the court have no jurisdiction over the subject matter, its order of sale will be void, and, of course, the purchaser under such order would acquire no title.

      *In the case of Thompson v. Tolmie, 2 Pet. 157, proceedings [202 of this character are considered as judicial proceedings, and the rule is recognized, that they can not be impeached, collaterally, any more than a judgment at law.
    In the case before the court, however, there is no irregularity in the proceedings. The record shows that every step required by the statute Was taken. It shows, even, that the statute was more than complied with; for, after sale, return was made to the court, as in case of sheriff’s sale, and the sale was confirmed, and a deed ordered, which was not necessary. 9 Ohio, 19.
    Three objections are made by the plaintiff’s counsel to the title of the defendant under these procéedings, all of which will be considered, although not in the order presented.
    The first objection is, that the proof offered by the defendant, to show that Niles was guardian of the minor, is insufficient, it not being shown that the bond required by law was given, or that letters of guardianship ever issued.
    The evidence offered, of the authority of Niles to act as guardian, is a copy from the records of the Court of Common Pleas of Ashtabula county, showing his appointment, and, also, a copy of further proceedings in said court, showing that he was, by the court, recog-nized as guardian. What further proof could be required from a purchaser under a guardian’s sale I can not conceive.
    We are, however, not without authority upon this point. This court say, in the case of Pillsbury’s Lessee v. Dugan’s Administrator, 9 Ohio, 117, “ the power of an attorney in fact should be shown by proof; but where a court of general jurisdiction is required to exercise its power upon a state of facts to be proved before it, the requisite proof is presumed to have been made, and the* existence of the 'fact can not, afterwards, be collaterally questioned.” If it will be presumed that the power of an attorney in fact was proved, much more will it be presumed that the legal qualifications of a guardian are proven in a case like the present, especially where the sale is indorsed in the same court where the guardian was appointed.
    *The next objection is, that the court of Common Pleas had [203 no jurisdiction to order the sale of land situate in G-eauga county.
    That the courts of Common Pleas in this state are courts of general jurisdiction in probate and testamentary matters, and in the appointment of guardians, I suppose, will not be controverted, inasmuch as the constitution expressly confers it upon them. Their jurisdiction, however, is limited to the county, unless otherwise provided by law. It must be exercised in the county. 9 Ohio, 67.
    It will be necessary, then, to inquire whether a court of Common Pleas of one county can authorize a guardian to sell the land of his ward situate in another county; because, if the court do not possess this power, there is an end to this case. The court have no jurisdiction over the subject matter, and their action is void. Such was the opinion of this court in the ease of Ludlow’s heirs v. McBride, 3 Ohio, 240, and, so far as my knowledge extends, the doctrine settled in that case has been adhered to.
    What then is the law upon this subject? By the first section of the act for the appointment of guardians, (Swan’s Stat. 430,) the court of Common Pleas, appointing a guardian, are empowered, on good cause shown, to authorize such guardian to sell all, or any part, of the property, real or personal, of his ward ; and the third section requires that the guardian shall be governed, in making such sales, by the same regulations as are required of administrators. The law in force at the time of the passage of this act, regulating the duties of administrators, etc., and here referred to, is the act of January 25th, 1816, Chase, 929.
    In the case of Avery v. Pugh, 9 Ohio, 67, this court gave a construction to that statute, and held, that, under its provisions, the court granting letters had the same power to direct the sale of real property of the decedent, lying in any other part of the state, as in the county where the letters were granted.
    Besides, unless the court of Common Pleas, appointing a guardian, 204] may confer this power, it follows, that the lands of a *ward, residing in this state, can not be sold by an order of court, unless situate in the county where the appointment is made. For it will be seen that the power is not conferred on any other court,
    From all these considerations, it seems to me that the court will come to the conclusion that the court of Common Pleas, appointing a guardian, have jurisdiction to order the sale of the real estate of the ward of such guardian, wherever it may be situated within the state.
    One other objection to the title of the defendant is, that the court of Common Pleas of Ashtabula county had not power to appoint Niles guardian to the lessor of the plaintiff; that his appointment is, therefore, void, and that the proceedings of the court ordering the sale of the property is also void, and that the sale and deed are void. The reason upon which this proposition is based, is, that at the time of the appointment of the guardian, Maxsom, the ward, was not within the county of Ashtabula.
    To this objection I reply, in the first place, that it is one which the plaintiff can not raise in this case, because it is an attempt to impeach,collaterally, the proceedings of a judicial tribunal having competent and general jurisdiction of the. subject matter upon which it acted ; and. in the second place, if the objection could be raised, the facts show that Maxsom was, in contemplation of law, so far within the county of Ashtabula that the court of Common Pleas might with propriety appoint for him a guardian. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; St. Clair v. Morris, 9 Ohio, 15.
    I maintain this to be the rule of law as applicable to cases of this description. If the record of' the proceedings, which result in the sale of property, show that the court had jurisdiction over the subject matter, that it exercised that jurisdiction, and either rendered a judgment, or made an order of sale, as the ease may be, you can not collaterally impeach that record. No matter how erroneous, no matter how irregular, it shall stand good until reversed. Every thing which it was necessary to have proved, in order to bring the court to the *final conclusion at which it arrived, shall be presumed to [205 have been proven. Nor can you be permitted to prove facts, aliunde the record, to show the court had not jurisdiction. This would, in fact, be to contradict the record. The court may have erred as to its jurisdiction in the particular ease, but if it had general jurisdiction of the subject matter, this error can not, and ought not, to affect a purchaser. Pillsbury and Sargeant v. Dugan’s Administrator, 9 Ohio, 117; Thompson v. Tolmie, 2 Peter, 157 ; McPherson v. Cunliffe and others, 11 Serg. and Rawle, 422.
    Should I be thought, by the court, to be wrong, in my notions upon this point in the case, then the question remains to be considered, whether the court of Common Pleas committed an error in the appointment of Niles as guardian.
    The provision of the statute is, “ that the court of Common Pleas shall have power, whenever they consider it necessary, to appoint a guardian or guardians to all minors within the county.” Counsel for the plaintiff seem to supppose, that, in order to justify the court of Common Pleas in making the appointment, the minor must have a locality in the county — must be within its territorial limits at the moment of the appointment. This, as it seems to me, is too narrow a construction. In whatever county a minor may have his home, the court of Common Pleas of that county may appoint for him a guardian. The domicil, or house of the father, is the home of all his legitimate children during their infancy ; and if he change his domicil, the change operates upon his children. They, as well as he, acquire a new home. And should he bind out one of those children for a limited time, still the child would have its home with its father. In other words, in contemplation of law, the home of the father would be the home of the child. In ease of the death of the father, the children would be domiciled where he died, provided, that, in his lifetime, that was the place of his domicil. And so, too, if he left a wife, the mother of his children, the place of his death, under like circumstances, would be her domicil. But if, after his death, she _ should 206] change her place of residence, and take her children *with her, her home would be theirs. They might not obtain a legal settlement in the place of this new home ; for, where the father was last legally settled, they would be legally settled, and during their infancy, could not acquire, in any other place, a legal settlement; but, still, their home would be with their mother. As she resided within the county at the time the appointment was made, it must be considered valid.
   Wood, Judge.

The question arising upon the state of facts in this case, is, who has the legal title to the land in question, as between these parties ? If the title is not in the defendant, by the conveyance of the guardian, under the proceeding and the authority of the court of Common- Pleas of Ashtabula county, the plaintiff is entitled to judgment; for the defendant relies alone on this conveyance.

The plaintiff’s counsel contend that the proof, to show Niles was guardian, is insufficient, because it does not appear the bond required .by law was given, or that letters of guardianship were ever issued.

The statute provides as follows : “ Which said guardian or guardians shall, before entering on the discharge of the duties of his or their appointment, in every case, give bond to the state of Ohio in such sum, and with such security, as shall be approved of by the court, conditioned,” etc.; which bond shall be filed with the clerk, etc. Swan’s Stat. 430, see. 1. The journal entry shows that a bond was ordered in the sum of $1,400; that the sureties were named and approved ; and that all the subsequent proceedings- of the guardian in the final disposition and sale of the land to the defendant were ratified and confirmed by the court. The law does not require the bond to be carried into the record. Can it be supposed that the court, where it ratified the sale, did not know whether the bond was executed or not ? Can it be supposed that the court would have empowered the guardian to sell, and invest himself with the ward’s money, until the bond was filed ? To draw such conclusion, would be to say the court of Common Pleas did not know, or did not discharge its duty. Such an inference *would be unwarranted and unjust, and does not exist in eontem- [201 plation of law, until clearly shown.

If A authorize B to do an act, B’s authority must be proved ; but when a court of general jurisdiction is required to exercise its powers upon a given state of facts within that jurisdiction, to be proven before it, from the action of the court, the requisite proof is presumed to have been given, and the existence of the facts can not afterwards be collaterally questioned. Pillsbury and Sargeant v. Dugan’s Administrator, 9 Ohio, 117. The letters of guardianship., if the statute required them to be issued, might be viewed in the same light. The statute, however, imposes no such requisition. The guardian derives his authority from his appointment, which is of record, and the appointment and the bond qualify him to enter on the discharge of his duties.

It is also said that Files was not, in fact, guardian, because the plaintiff’s lessor was not, at the time of the appointment, a minor, within the county of Ashtabula; and that the court of Common Pleas had, therefore, no jurisdiction to make the appointment. This is, perhaps, the most difficult question, and the most important in the case ; and if the fact be as supposed, the proceedings of the court of Common Pleas, and of the guardian under them are a nullity, and the defend'ant, consequently, has no title to the land in question. Every court, that its proceedings may be of any validity, must have jurisdiction over the subject matter ; and to have jurisdiction over the subject matter, in this case, the court of Common Pleas must, also, have acquired jurisdiction over the person of the minor for whom the guardian was appointed, at the time when the appointment was made, by his being within the county of Ashtabula. And if the plaintiff’s lessor was not so within the county, the court had no jurisdiction ; and the fact may be shown, and the proceedings impeached, in this collateral way. Ludlow’s heirs v. McBride, 3 Ohio, 240 ; Holyoke v. Haskins and wife, 5 Pick. 19; Borden v. Fitch, 15 Johns. 121, 123 ; Smith v. Rice, 11 Mass. 507 ; Perry v. Brainard, 11 Ohio, 442 ; Hall and others v. Williams and *others, 6 Pick. 232 ; Latham v. [208 Edgarton, 9 Cowen, 227 ; Snyder v. Snyder, 6 Binney, 483.

The statute enacts that the court of Common Pleas shall have power, whenever they consider it necessary, to appoint a guardian, or guardians, to all minors, within their county, etc. Swan’s Stat. 430, sec. 1. It is, therefore, essential, at the time of the appointment, that the minor should be within the county, to confer jurisdiction. If the record found the fact, it could not be disproved in a collateral proceeding ; but, as it does not, it is open to inquiry.

Was the minor, then,within the county at the time of the appointment.

We suppose it to be law, that the legal settlement of the husband draws to it the legal settlement of the wife. Peter Seeley had his place of legal settlement in Mentor, in Geauga county, in 1830, when his wife, the mother, taking with her the plaintiff’s lessor, left him, and went to the county of Ashtabula. She could acquire no legal settlement there, neither by her marriage with her adulterer, nor by her actual residence; because Peter Seeley, her lawful husband is still living in Mentor, and his place of legal settlement is consequently hers. She did, however, actually reside in Ashtabula county, for several years, and when this appointment of guardian was made. Did not her actual residence there, draw to it the constructive residence of the plaintiff’s lessor ? We are of the opinion that it did. It is true, she had, by her covenant, bound him to Patterson, where his actual residence was. That covenant, however, was of no validity. It was the co venant of a feme covert, not sanctioned by the husband, and in which he had not joined. The father is the natural guardian of his minor children. On his death, the mother is, by nature, guardian of those of tender years, and entitled to their custody and control. If she marry, unless the children reside at home, the stepfather, as distinct from the mother, has no authority over them. It seems, then, to us, to follow that, as her covenant with Patterson was of no obligation, the mother of the plaintiff’s lessor, he being of tender years, had 209] the right, at any ^moment, to call him to her. Her actual, was his constructive residence; and he was, therefore, when the guardian was appointed, constructively, with his mother, in the county of Ashtabula. It will hardly be contended that an actual residence is necessary to give the court jurisdiction of the appointment. Such appointment would scarcely be questioned, when the actual residence of the minor was in the county, but at the moment of the appointment, he was over the county line, for a temporary purpose, merely. He would be considered as, constructively, within the county, and the appointment would be valid.

It is said, by the plaintiff’s counsel, lastly, that the court of Common Pleas of Ashtabula county had no jurisdiction over the subject matter, so as to order the lands of the minor to be sold, which were situated in the county of Geauga.

We entertain a different opinion. If this power do not exist, it is very certain that a minor’s lands, out of the county in which he resides, could, under no circumstances, be put to sale. The guardian must be appointed in the county where he resides ; and the statute provides that the court, appointing the guardian, may empower him to sell the land, etc, If he have no power to sell land in another county, the Common Pleas had no jurisdiction over the subject matter, and all the proceedings are void. We should, however, hesitate to adopt that conclusion.

The statute does not, in ter-ms, certainly, confine the sale to lands lying in the county ; but provides that the guardian; in making sales, shall be governed by the same regulations as are required of administrators, in the sale of real property ; and, in the case of the lessee of Avery v. Pugh, 9 Ohio, 67, it was decided by this court, that the Common Pleas of any county might direct an administrator to sell the real estate of the decedent, in any other county.

We have, therefore, come to the conclusion, that the proceedings of the guardian, can, and ought to be sustained, and that judgment should be given for the defendant.

Judgment for defendant.


source: Caselaw Access Project

author: Read, Judge.

license: Public Domain

text:
    *James Graham, late Sheriff, etc. v. Ralph W. Newton.
    The judgment against a sheriff, amerced for neglect to execute final process, should include the amount of the original judgment, interest thereon, costs, and ten per centum upon tho whole sum thus made up.
    A judgment in amercement draws interest as other judgments, until paid.
    This was a Writ of Error, reserved to give a construction to the statutes, in ascertaining the amount in which a sheriff should be amerced for neglect or refusal “ to execute any writ of execution to him directed, and which hath come to his hands.” Swan’s Stat. 483, sec. 31.
   Read, Judge.

At the- June term of the court of Common Pleas, 1841, Ralph W. Newton obtained judgment against Daniel Taft, for the sum of $158.32, and costs, $9.19. Execution was duly issued, placed in the hands of the sheriff, which he neglected or refused to execute, and neglected or refused to return according to law. For these causes a motion was made to amerce the sheriff. The proceedings being regular, and due notice having been given to the sheriff, the court, at the February term, 1843, pronounced the following judgment: That James Graham, late sheriff of this county, be and he is hereby amerced in the sum of one hundred and eighty four dollars, the amount of the judgment, damages and costs, and interest to this time, and the further sum of $16.75, penalty of ten per centum on the amount of said judgment, damages' and costs, and that execution issue therefor.

Numerous errors have been assigned, but as none are found to be true, we shall only consider that taken to the amount of the judgment in amercement. In Wadsworth v. Parsons, 6 Ohio, 449, it has been decided that pleadings are unnecessary on motions for amercement.

But in this, as in all other cases, the facts which warrant the judgment of the court must be set out in the motion, and appear upon the record. All this sufficiently appears upon this record.

*The determination of this case, then, depeflds upon the construction to be given to that portion of the 31st section of the act relating to judgments and executions which declares that the sheriff, for refusing or neglecting to perform the duties specified in said section, shall “ be amerced in the amount of said debt, damages and costs, with ten per centum thereupon, to and for the use of said plaintiff.”

This section refers to executions upon final judgments. Final judgments are debts. What is the damage in not paying a judgment debt? The interest. The statute declares that the amount of the amercement shall be the debt, damages and costs, with ten per centum thereon. The amount, then, in whiqh the sheriff is to be amerced, is ascertained by adding to the amount of the judgment debt the interest which has accrued thereon, then add the costs, and then add ten per centum of the whole amount so made up, of the judgment debt, interest and costs, which makes up the true amount of the judgment to be rendered, or the amercement; which, when so reduced to judgment, will draw interest as other judgments, until collected. But, it is said, the statute should be strictly construed, and that no interest should be given upon the judgment debt.

To give the statute such a construction would enable the sheriff to make a speculation, if he should manage to keep the money long enough to permit the interest to exceed the penalty. On this eonstruction we could not give force and effect to all the words in the statute, which are debt, damages and costs, with ten per centum. To meet the word damages we must allow the interest upon the judgment, which is known in the law upon judgment debt, as damages.

E. Backus, for plaintiff in error.

Brush and Gilbert, for defendant in error,

But delinquent officers come before the court with a poor grace to ask the court to construe this act, against its words, in their favor. Men who assume public office must learn that they will be held to a strict and prompt performance of duty ; and have no right to complain of penalties consequent upon official delinquency, which should have been avoided by performing all that their position requires. The very object of this act was to insure promptness and fidelity on the part of ^sheriffs, or other officers, charged with the execution of final [212 process, and will be construed by the court to effect that object.

The only error in this case, is, that the judgment in amercement is too small, and being an error in favor of the plaintiff can not be taken advantage of by him.

The court below, instead,of adding the interest to the judgment and costs, and giving the penalty upon the whole, merely gave the penalty upon the judgment and costs, and interest upon the judgment.

Judgment affirmed.


author: Lane, C. J.

text:
    The Lessee of Boyd and Others v. Joseph Talbert.
    If a testator bequeath to his wife all his estate, real, leasehold and personal, and all moneys and proceeds which may arise from the same, and direct his ^executors to lease certain premises, and after paying ground rent and taxes, pay the proceeds to bis wife, the title to the premises is held by, the executors.
    Whe^e a lease.is forfeited for nonpayment of rent, the exact rent due, by the terms of the lease, must be demanded before sunset of theday when due, on the land, at the most notorious place.
    This is a motion for a new trial in an action of Ejectment, from the county of Hamilton.
    The plaintiff counts on three demises, from the widow, the heirs, and the executors of John Boyd, and seeks to recover leasehold tenements in Cincinnati.
    In December, 1831, Joseph and Samuel Talbert leased to Boyd, the 213] premises, subject to a then subsisting lease of Price, *upon tbe annual rent of $500, payable quarterly, from tbe 22d of J anuary. Tbe clause of forfeiture was as follows : “ If tbe rents herein reserved should remain due or unpaid, or any part thereof, for the space of 30 days after they shall respectively become due, or payable, it shall be lawful for the parties of the first part, or either of them, etc., to reenter, and take possession of said premises, and to become possessed of' the same estate therein, as if this lease had not been made.”
    Another writing of the same date was made between the parties, by which the Price lease was retained by the Talberts, and Boyd was exempted from the liability for $200 of the rent. The rent of the 22d of October, 1832, was unpaid. On the 21st of November, the Talberts entered, and the tenant attorned. The plaintiffs ought to recover in this case, if no forfeiture was incurred, and if the estate of Boyd passed to either of the lessees at his death.- The verdict was returned for plaintiff, and the defendant asks a new trial, because it is against evidence, and for misdirection.
    Under the direction of the court, a verdict was rendered upon the circuit for the plaintiff; and the defendant now moves for a new trial, on the ground of misdirection to the jury.
    The questions arising, were elaborately argued by V. Worthington and Thomas J. Strait, in support of the motion, and by William M. Corry and W. R. Morris, contra.
   Lane, C. J.

We will first examine the plaintiff’s title. Boyd died in October, 1832. The question, whether a lease be realty or personalty, need not be here determined ; but I take the opportunity to express my apprehension, that the ease reported last year (Loring v. Melendy and others, 11 Ohio, 355) does not conclude this point, and I shall be ready to consider it, when it becomes necessary. But in this case, the leasehold descended to the heir, by the operation of the statute of distributions, (Swan’s Stat. 289,) unless affected by will. It was, however, thus disposed of. The will of Boyd gave his wife, 214] “ all his estate, real, leasehold and personal, and all ^moneys and proceeds which may arise from the same,” and all moneys remaining, after the payment of his debts, for the support of herself and family, with the power of making advancements. He directs what remains of his property, after his wife’s death, to be divided among his children, by his executors. He further directs his executors to lease the premises, and, after paying the ground rents and taxes, to pay the proceeds to Ms wife. Now, the first clause, standing alone, would invest the wife with the title. But the power to lease, in the clause last cited, coupled with the burden of paying taxes and ground rents, implies a larger interest than a mere naked power ; and, by virtue ol that principle of interpretation by which the clauses which composo a complicated sentence are applied to the objects to which they properly belong, it explains the intention of the testator to be, not the limitation of an estate to the wife, but an interest in the proceeds.” The title of the land, then, is found in the executors of Boyd, and is not affected by the dismissal of the bill in chancery, in which the widow attempted to maintain her interest in the lease.

Next, as to the forfeiture. Our fathers were more conversant with thife curious learning than we are. The exaction of this right meets with little countenance from the law, and he who asserts it must strictly comply with every condition to the letter. “ It is a settled rule of the common law, that where a right of re-entry is claimed, on the ground of nonpayment of rent, there must be proof of a demand of the precise sum due, at a convenient time before sunset, on the day when the rent is due, upon the land, in the most notorious place on it, even though there be no person on the land to pay.” 17 Peters, 267; Saund. 287, note; 14 Eng. Com. Law, 483.

The defendant complains of the misdirection of the court, in instructing the jury that the demand must be made at sunset, not later, on the thirtieth day after the rent day, or at the last day in which the rent might be paid, to avert the forfeiture. That the demand must be made on this day, is distinctly settled, in many eases. Saund. 287, note. The time of day (at sunset) *is more favorable than that [215 given in the books. They unite in saying, not at sunset, not while light enough remains to see to read or to count money, but “ before sunset,” and it comports neither with our wishes nor our duties, to aid forfeitures, by straining words beyond their obvious meaning.

Another cause for new trial is, that the verdict, on this point, is contrary to evidence. Two witnesses speak of the demand on the 21st of November. One says it was about sunset; the other, that it was between sundown and dark. The jury might justly give credit to both, without finding the time of demand before or at sunset.

Another point of misdirection in the motion, is, in the instructions in relation to the sum which might lawfully be demanded. The lease between the parties was for ninety-nine years, renewable forever, at the rent of $500, to be increased to $600 in 1840. A part of the premises were then on a temporary lease to Price, for ten years. The parties made another writing of the same date, providing that the Talberts should retain the Price lease, and Boyd be absolved from the payment of rent to that extent, during its continuance. Counsel insist that the condition is an entire thing, and if divided or apportioned, is destroyed, and the right of re-entry is lost.

If the court instructed the jury that the rent reserved was $125, and that this sum must have become due and demanded, before a forfeiture was incurred; or, that if a part had been paid, or the right to a part been lost by other arrangements, no right of re-entry would have remained, we believe two errors would have been committed : First:

The lease and the agreement about the Price lot bear date on the same day, and relate to one matter. In the absence of other proof, tlfey may be taken as parts of one transaction, and, taken together, tbey show the rent reserved to be, not $125, but $75, so that the demand should have been of that sum only. Second: The condition of the lease gives the right of re-entry and forfeiture, as well on the nonpayment of any part of the rent, as on a failure to pay the whole. The jury ought then to determine if the two instruments were parts of one 216] whole, and they should *have been instructed, if required, that the right sum to demand was the real amount due.

Now we have not, on the papers, the means of determining the exact instruction given, and the cause is reman ded to the county, that we may ascertain the terms of the charge with more certainty.

Cause remanded.


author: Birchard, Judge.

text:
    Jonathan Kelley v. Archibald Hunter.
    A writ of error lies only to a final judgment of tho court below.
    A purchaser under a tax sale can not recover possession by proceeding under the statute for forcible entry and detainer against one having a deed in fee for the land.
    This is a writ of Error from Carroll county.
    Kelley instituted proceedings under the act for forcible entry and detainer, to obtain possession of premises sold, in Hunter’s name, for taxes. Upon the trial he recovered upon the strength of the auditor’s deed.
    The proceedings were afterwards reversed, with costs, on certiorari, by the court of Common pleas, that court ordering “ that this cause be continued for trial and final judgment.” Thereupon this writ of error was brought.
    During the present term in bank, a motion was filed by the defendant, in error, to strike the cause from the docket, on the ground that no final judgment had been rendered in the Common Pleas ■
    Atherton and Chapman, for plaintiff in error, insisted—
    First: That the remedy by forcible detainer is not limited by the statute to the three classes of cases supposed in the said assignment of errors.
    ^Second: That the record shows a case clearly within the let- [217 ter and spirit of the act to regulate the action of forcible entry and detainer, and the judgment of the justices was, therefore, correct.
    Previous to January. 1823, our statute, on this subject, did not contain any reference to the three classes of cases enumerated in the 19th section of the present act, but provided a remedy “ as well against those who make unlawful and forcible entry into lands and tenements, and with force and strong hand detain the same, as against those who, having a lawful and peaceable entry into lands and tenements, unlawfully and with force hold the same.” This continued to form the description of the wrong which the statute was enacted to remedy, through all the changes of the law, from 1795 until 1823, when an amendatory act was passed, extending the remedy under the statute to the three classes of cases above mentioned, and which are embraced in the 19th section of the act now in force. The manner in which this section came to be incorporated in the forcible entry and detainer act should serve, in some measure, to show that it was adopted rather by way of extending, than of limiting the remedy under that act. In accordance with this conclusion is the decision in Yager v. Wilber, 8 Ohio, 398, which must settle this point, while it remains unreversed.
    The English statutes, on this subject, are penal, and the decisions under them are necessarily more strict and rigid than if the construction had been sought for under a civil proceeding, where the policy of the law is to extend a remedy, rather than limit it. Under those statutes, it has been decided, “ If a man holds the possession by force, though his entry was peaceable, the justices may remove him, if he "had no right to enter.” Yelv. 99 ; Dalt. 301; Cro, Jac. 151; Sid. 97, 414.
    Eorcible detainer is where a man who enters peaceably afterwards detains his possession by force. Hawk. P. C. 139.

      So, if a lessee at will detains by force, after the will is determined. 4 Com. Dig. 208. Or a mortgagor, after a mortgage is forfeited. Ibid.; Dalt. 126.
    *It appears, by the complainant, that the plaintiff claimed the premises under a conveyance from the county auditor, on a sale for taxes. These sales are analogous to sheriff’s sales on execution, on which it has been held that the defendant to the judgment, after such a sale, becomes quasi tenant at will to the purchaser. 1 Johns, Cases, 153 ; 4 Cowen, 576 ; 3 Mass. 128.
    The complainant shows a detainer by force, unlawfully and with a strong hand. This complaint the jury found to be true, and the defendant guilty, upon a hearing of the parties. The case is clearly, then, within the letter and spirit of the law, both in fact, and as made upon the record. The judgment of the justices, of restitution, was well founded upon that verdict, and should, by reversal of the judgment in the Common Pleas, be affirmed, and restitution awarded.
    But the defendant moves to dismiss this cause, and strike it from the docket, “because the record shows that the judgment in the court of Common Pleas (sought to be reversed here,) was not final, and that said cause is still pending in the court of Common Pleas.”
    As to this ground, we remark, first, that this objection is now, here in bank, first started. It did not appear, nor was it made, on the circuit. Second : The judgment of reversal, in the Common Pleas, was final and definitive, by which the merits of the cause were settled and determined. True, it may not be technically a final judgment, or the proceedings capable of being enrolled, because the court, for some cause not stated in the record, retained it; but there is a judgment of reversal, and for costs, on a record presenting all the merits of the case. This is not a case of mere interlocutory judgment, in which the merits are not touched. Clason v. Shotwell, 12 Johns. 31 ; Brooks v. Burt, 17 Johns. 484.
    The defendant cites, in support of this motion, Reed v. De Wolf, Wright, 418, which was a caso of trespass on real property, in which the reversal by the Common Pleas settled no merits, but was merely preparatory to an adjudication on the merits. The reversal by the 219] Common Pleas, in the ease *cited, was merely interlocutory, and, according to the eases above cited, from Johnson, not final or definitive, or one by which the merits of the cause could be settled or determined.
    As to the first and second grounds set forth in the motion to dismiss, they are, we conceive, obviated, by placing on file here the certificate of the journal entry sending the cause to bank ; and we respectfully commend the counsel, who made the motion, to the tender mercies of the court, for having moved in this manner, when he knew that the cause was so reserved, and that the objection was caused by mistake of the clerk, and without any fault of plaintiff or his counsel.
    E. R. Eckley, for defendant.
    The reporter was furnished with no argument for the defendant in error.
   Birchard, Judge.

This is a writ of error to the court of Common Pleas of Carroll county. Several errors are assigned, which it is not necessary to notice, inasmuch as the transcript shows that the proceeding is still pending in the court below. The case was in the court of Common Pleas by certiorari to two justices of the peace, whose judgment, in a proceeding under the statute, providing for actions of forcible detainer, were reversed, and the cause set down for hearing. The defendant moves to strike the ease from the docket, on the ground that there is no final judgment. Under the authority of Herf & Co. v. Shulze and others, 10 Ohio, 267; and Reed v. De Wolf, Wright, 418, this motion must prevail. Our statute has received a construction in these two cases which has been uniformly followed; and, were we in doubt as to the correctness of those decisions, we should hesitate to disturb them, and unsettle the law on a mere matter of practice.

But were this case before us on a writ of error to a final judgment, the question sought to be made would be open to examination, and we apprehend there would be no difficulty in sustaining the position taken by the court below.

*The magistrates’ proceedings were under the “act to regulate [220 the action for forcible entry and detainer,” and we do not believe that this statute makes adequate' provisions to enable purchasers at tax sales to oust the occupant claiming title adverse to, and senior to, the tax title.

Cause stricken from the docket.


author: Wood, Judge.

text:
    The Bank of Gallipolis, for the use of Henry Valette v. William Domigan, Sheriff of Franklin County.
    The provisions of the act of March, 1842, to regulate judicial proceedings where hanks and hankers are parties, requiring the sheriff to receive hank notes in satisfaction of execution in favor of a bank, etc., are constitutional. A sheriff’s return, which shows, on its face, a compliance with the provisions of that act, is conclusive, on motion to amerce.
    The plaintiff in execution can not go behind it, but must resort to his remedy for a false return.
    This is a writ of Error to the court of Common Pleas of Franklin county, to reverse a judgment in favor of the defendant, on a motion to amerce him.
    The facts set forth in the bill of exceptions are, substantially, as follows:
    On the 19th of January, 1841, Justin Morrison, Joel Buttles, and Demás Adams, gave their note to the Gallipolis Bank, for $4000, at four months, not negotiable. Five days aferwards, just as that bank was going down, the note was assigned by the bank to Valette. Yalette put the note in the hands of G. Swan for collection. Swan, before he sued the note, notified the makers of the assignment to Yalette, and the makers then told him they were ready to pay it in Gallipolis money. Swan called on them to produce such money, but they did not do it. Swan then brought suit, June 26, 1841, in the Common Pleas, alleging, in the declaration, that the suit was for the use of 221] *Yalette. The general issue, and notice of setoff, were put in, and a judgment passed for the plaintiff, at the February term, 1842. The defendants appealed to the Supreme Court, and, at the December term of that court, a judgment was rendered for the plaintiffs, for $3,942.25 damages, and $197.11 penalty ; about $700 being allowed in offset, that sum being shown to be in the hands of the makers, in Gallipolis bills, when they had notice of the assignment to Yalette. A mandate went down to the Common Pleas, and a fi. fa. et lev. fa. issued, bearing date, March 17, 1843. On the 9th of May, the sheriff returned this execution, indorsed as follows :
    “ March 27,1843, received this writ, and executed the same, by receiving of the defendants the sum of $4,250, in the bank notes of the President, directors, and Company of the Bank of Gallipolis; the said Henry Valette, for whose use the plaintiffs sued, not being an assignee, bona fide, of the promissory note or liability upon which this judgment was rendered, in the settlement of any claim or claims of his against said bank, I have made the further sum of $73.59, being the amount of all the costs.”
    At the May term, 1843, the return term of the execution, a motion was made to amerce the sheriff for not executing this writ of execution. On the hearing of this motion, certain other facts were proved, in substance as follows :
    That no notice had been given to Valette, at any time, that the assignment to him by the bank was to be called in question.
    That the sheriff had admitted, to G-. Swan, that no evidence had been given to him, to show that said assignment was fraudulent.
    That the defendants had indemnified the sheriff for making such a return, and receiving Gallipolis money, by a judgment confessed for $5,000 at that term.
    That said Morrison had one or more conversations with one or more of the Bank Commissioners, about their instituting proceedings, with the intent, on the part of Morrison, to pay the debt in Gallipolis bills, if said assignment should prove fraudulent. These conversations were had pending the suit *on the note ; Morrison’s counsel inform- [222 ing him that, in order to make his defence, it might be necessary for the bank commissioners to act.
    That the Gallipolis bills were good for nothing, and formed no part of the currency at the time the sheriff received them.
    That G. Swan understood Valette had received said note on the settlement of his accounts with the bank.
    That the sheriff informed the witness that the defendants, or one of them, told him, the sheriff, that the Gallipolis money taken by the sheriff was, in whole or in part, the identical money that said defendants h^d got out of said bank originally, and gave that as a reason why the sheriff ought to receive the same on the execution.
    •The sheriff, on his part, showed, in substance,—
    That the counsel for the defendants, Morrison, et al., told him, the sheriff, they had suspicions, and that said defendants claimed the assignment was fraudulent, and in violation of the bank commissioner law, and gave him the grounds of such statements, (but which grounds were not shown to the court.)
    That the sheriff, about a month before the execution of said writ, told G. Swan, Valette’s attorney, that he was going to take Gallipolis bills on said execution; to which said Swan replied, that he, the sheriff, had best look to see himself well indemnified, or words to that effect, and said nothing further.
    That the Gallipolis Bank failed about the time of the date of said assignment.
    No evidence was given that Coombs was the cashier, or had authority to make the assignment, or that the assignment was in his handwriting.
    On this state of the case, the motion to amerce was overruled.
    P. B. Wilcox, for plaintiff in error.
    The provision of the statute on which this motion is founded is for “ refusing and neglecting” to execute the writ. Swan’s Stat. 483.
    *The statutes under which the sheriff is sought to be justified, are the act of January 28, 1824, “to regulate judicial proceedings where banks and bankers are parties,” Swan’s Stat. 147 ; and an act to amend that act, passed March 5, 1842, Ohio Stat. vol. 40, p. 33, last clause section four.
    The first act provides, “ that in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, or under them, in any way, for their benefit, the sheriff, upon any execution in his hands in favor of such bank or banker, their or his assignee, as aforesaid, shall receive the note or notes of such bank or banker, from tho defendant, in discharge of the judgment.”
    This part of the statute came before this court in 1824, 1 Ohio, 376, and it was held not to apply to cases where the bank had, bona fide, parted with all its interest to an assignee.
    Then came the amendatory act, of March 5, 1842, Ohio Laws, vol. 40, p. 33. This act requires the sheriff, in all cases of assignment, whether bona fide or not, to take the bills of the bank, except “ any assignee or assignees, who have heretofore become such, bona fide, in the settlement of his or her claim or claims against such bank or banker.”
    This act was passed in March, 1842, and after the judgment in this case had been rendered in the Common P¿eas ; and it might be made a pretty serious question, how far the act of 1842 could affect judgments already rendered, on debts before that time assigned, bona fide, and for a valuable consideration. It looks very much like a contract, such as the Constitution will not allow to be impaired. This question, however, does not seem, necessarily, to arise in this case, for the evidence seems to make out, at least, a prima facie case under the exeeption in the act of 1842, and there being no proof of fraud, the law will not presume it.
    From the 9th section of the act of 1824, this proposition seems to be fairly deducible — that, in all cases whatsoever, whoever may be 'the parties to the record, the sheriff has power to take Gallipolis bills, or the bills of any other broken bank. *The question is, whether [224 a bank, in any way, has an interest in the suit, no matter in whose name it is brought; otherwise, the act might be evaded, by bringing the suit in the name of an individual. The object of the statute was to compel a bank to take its own notes. Whatever shape, then, the suit might assume on the record, and whoever might be the parties to it, yet if, in fact, the suit was for the benefit of a bank, then the sheriff has the power to take the bills of the bank. The sheriff, then, in all cases whatsoever, has the power to take such bills. Suppose, on the two hundred executions in the sheriff’s hands, at May term, 1843, he had received, on them all, Gallipolis bills, and had made the same return as in this case ; he certainly had the power to do so ; and it was his duty to do so, if. all the executions were for the benefit of the Gallipolis bank- The idea is this : the sheriff has absolute power over all executions that come to his hands, and he may, if he will, take Gallipolis bills on them all. The law gives him this power, but holds him liable for the abuse of it.
    The question then is, has the sheriff, in this particular case, so abused this power as to be liable on amercement. We think he has, and for these reasons :
    First: The record shows the suit was brought for the use of Henry Valette. In such case, the officer is justified in paying the money to the assignee. It is, prima facie, a valid assignment. Scott v. Westlake, 2 Ohio, 24.
    Second; The sheriff never notified Valette, at all, that the assignment was to be called in question, If he had done so, Valette might, at once, have removed all doubt. Is not this fatal ? Why did the sheriff keep this a secret from Valette and his counsel? Valette, doubtless, would have at once indemnified the sheriff, had he known that the assignment to him was doubted. Does not this show that the sheriff was merely an instrument in the defendant’s hands ? especially when taken in connection with the other conduct of the defendants, showing a determination to avoid this debt. It is true, the sheriff told Valette’s attorney that he was going to take Gallipolis bills, but gave no reasons for it; nor did he ^pretend that the assignment [225 was fraudulent. The reply which Valette’s attorney gave to the sheriff, “ That he must look well to his indemnity,” shows that he thought it was an affair got up to delay and shuffle off the debt, especially as they did not produce Gallipolis. money at first, when he notified them of the claim in his hands; and then did not pretend to have but $700 on hand, and which was allowed in setoff, when final judgment was taken. What else could he think, but that it was a matter trumped up for delay, or to avoid the debt altogether ?
    Third : Because the sheriff admitted to G. Swan that no evidence had been given to him, to show the asignment fraudulent.
    Why, then, did the sheriff take Gallipolis money ? The command of the writ is, that he make good and lawful money, and have it before the court, as he shall answer at his peril. The statute then comes in, in this particular case, and allows him to take Gallipolis bills, where there has been a fraudulent assignment. Now, what is there left for the sheriff to say, after he has once confessed that, in this case, he had no evidence of any fraud in the assignment ? It is true, the counsel for the defendants told the sheriff they had suspicions, and the defendants claimed the assignment to be fraudulent, but yet gave no evidence, at all, to the sheriff, nor did they condescend even to notify Valette, or his counsel, of those suspicions as to the assignment. Now. will it do, under such circumstances, to let a sheriff take worthless bank bills in discharge of a just debt? Is it not trifling with the process of the law ? Sound policy requires a sheriff to be held to a a strict observance of his duty. At all events, he must not act with bad faith, nor show ease and favor to those against whom he has process. In Wadsworth v. Parsons, 6 Ohio, 449, this court amerced the sheriff for not selling goods,' when the law allowed him to take bond for their re delivery. This case went on the ground, that the sheriff acted at his peril. There is this difference in the two cases — the act of 1824 requires .the sheriff to take bank notes where the suit is for the benefit of a bank ; and if a sheriff acts in good faith, on reason-220] able grounds, giving due notice *to the opposite party, and especially if he refuses to indemnify the sheriff, the court would not be apt to amerce. But in this case, the conduct of the parties, all along from the beginning, shows they intended to get rid of the debt if they could. They gave a note to the Gallipolis Bank, not negotiable, just as the bank was going down, as if they intended the note should not be assigned, or, if assigned, that they might pay it in Gallipolis bills. They told Mr. Swan they were ready to pay the note in Gallipolis bills, but did not produce them, though requested to do so. They suffered themselves to he sued, and, by appeal,'took the longest delay possible. They talked with the bank commissioners, to get them to act, hoping, in that way, to pay the debt in Gallipolis bills. On the trial, in the Supreme Court, they did not pretend to have but $700 of Gallipolis bills, and they were allowed in setoff. When execution came out, they gave no notice to Valette, or his attorney, that they claimed the assignment to he fraudulent ;Tnor did they produce any evidence to the sheriff of any fraud. From the commencement of the suit, to the end thereof, they did not give any intimation that they intended to call tho assignment in question ; and, finally, when it came to the last, and the money had to be raised, they induced the sheriff to take a judgment against them for $5,000, and then take Gallipolis bills in satisfaction of the judgment, Now, there is not, perhaps, evidence enough to show an actual fraudulent comhination between the sheriff and these defendants, hut we think there is enough to show that the sheriff has been tampered with, and led and induced to act against his plain duty, without any good reason, and without any good excuse; and that, therefore, he must abide the consequences.
    Another fact ought to be borne in mind. It is, that, on the hearing of this motion in the court below, they did not offer any evidence, at all, to show the assignment fraudulent. No proof was given to th'e sheriff that it was fraudulent, and the sheriff gave none when he was called to account for his doings.
    The court below, in overruling this motion, were understood to rely chiefly on some case, not reported, that went up to the Supreme Court in this county, where the sheriff levied on Elands, where there [227 were goods, and he knew it. The court refused to amerce, it was said, because the writ was, in fact, executed. What the facts of the case were I do not know, but there seems to be a very clear difference in the cases. Here the Gallipolis bills were of no value at all. The sheriff might just as well have returned, that he had levied on an oak rail, or a bundle of straw.
    If this doctrine be correct, the sheriff may levy any execution on any trifling thing, of the least possible value, and so save himself from an amercement. Such a practice, too, would suit debtors who want delay without running any risks.
    This court, therefore, are desired to reverse the opinion of tho court below, and then make the order which tho court below should have done; for, if it be sent back to..the Common Pleas, the action against the sheriff will be barred, before another order of the Common Pleas can be got before this court. The action against the sheriff has to be brought in one year.
    Swayne and Bates, and J. W. Andrews, for defendant.
    We make the following points .
    First: The sheriff has executed the writ. The return, if true, is sufficient, and conclusive; and, if not, the court can not amerce him for a false return.
    Second : Whether the return be true or not, the sheriff was bound to take Q-allipolis money, so far as respects the bank, and the court can not amerce the sheriff for a violation of the equitable rights of Valette; and he has no other rights in the case.
    Third : If the court can amerce in a case of this kind, they ought not to amerce under the circumstances of this ease.
    These points will be considered in the order in which they have been stated.
    1. The sheriff has executed the writ. The return, if true, is sufficient, and conclusive; and, if not true, the court will not amerce him for a false return.
    It will have been observed that the sheriff was compelled to decide the question, whether the assignment to Valette was valid or not, 228] The statutes threw upon him this duty. He *could not escape it. If he decided in favor of Morrison, he was liable to proceedings against him by Valette. If in favor of Valette, then he was liable to Morrison. Being thus compelled to decide this question, he was placed, by the law, between two fires. The return negatives the words of the statute. If true, it was the duty of the sheriff to make it, and it is sufficient and conclusive. In that event, the sheriff could not, properly, make any other return. The case is not, at all, then, like a levy “ upon an oak rail; ” or, upon an abstraction, which has nothing to do with the case.
    The sheriff’s return is to be taken as true, until the contrary is shown. It forms a part of the record. Watson v. Watson, 6 Conn. 334, and the cases there cited.
    In Duncan v. Drakely, 10 Ohio, 47, the court say, “ in proceedings under the statute authorizing the amercement of an officer, great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and highly penal. There is no trial by jury, and but little, if any, discretion is left to the court.”
    In Bushnell v. Eaton, Wright, 720, Judge Wood observes, “ No amercement is provided for the oppressive acts of the sheriff, other than those enumerated ; for all others, the party injured is left to his remedy by action. Amercement is a penal proceeding, varying from the course of the common law, and only to be pursued when authorized by law. The order amercing the sheriff is reversed.”
    In Wadsworth v. Parsons, 6 Ohio, 449, referred to upon the other side, the sheriff was amerced for'not selling goods upon which he had levied. The facts all appeared in his return. The court held that they did not afford him a sufficient excuse. The ease was within the very letter of the statute, and, even in that case, it will be observed, that a very cogent dissenting opinion, was delivered by one of the judges.
    The return being sufficient, if the court amerce it must be for a false return.
    *2. Whether the return be true or not, the sheriff was bound [229 to take Gallipolis money, so far as respects the bank, and the court can not amerce for a violation of the'equitable rights of Valette ; and he has no other rights in this case.
    The bank is the legal plaintiff, and is the only party plaintiff to the record. If Valette were not named upon the record, nor known in the case, there could not be a doubt of the receivability of the paper of the bank, in payment of the judgment. The sheriff would unquestionably be bound by the statute to receive it.
    If, then, the sheriff be amerced, it must be for violating, not the rights of the bank, but those of Valette.
    Admitting that an assignment was made to Valette, which was not proved, and that it was made bona fide, as is claimed upon the other side, what are Valette’s rights?
    “ The note is not negotiable. The consequence is, that an assignment does not transfer the legal title, but only an equitable interest in it. This is obvious, from the fact that the assignee, if he sue at law, is compelled to make use of the name of the assignor. Notwithstanding the assignment, the legal interest remains in the assignor ; and ho alone, who has a legal interest in the subject matter, can maintain a suit. The action, although it is brought for the benefit of the assignee, must still be brought-in the name of the assignor. And as he alone, who has the legal interest in the subject matter, can maintain a suit, the action, although it is brought for the benefit of the assignee, must still be brought in the name of the assignor. It is not even necessary to notice the name of the assignee on the record, as that it is for his use.” Townsend v. Carpenter, 11 Ohio, 21.
    The case of Scott v. Westlake, 2 Ohio, 24, cited on the other side, only decides that the statement on the record, that the suit is brought for the benefit of another person, “ has been considered a sufficient authority, from the nominal plaintiff, to justify the officer in paying the proceeds of the judgment to the person designated, where no objection is made. It has been treated as an acknowledgement, by the 230] plaintiff, that he *was a trustee, suing for the use of another; and it appears unnecessary to inquire in what way the trust was created, as long as the trustee is disposed to acknowledge it, and the interest of third persons is not affected by it.”
    It may be safely laid down, as a proposition without exception, that there can be no recovery in such a case, without an inherent right of action in the plaintiff on the record; much less can there be an amercement where this fact does not exist.
    It is not pretended, here, that the plaintiffs, as separated entirely from Valette, have, or, by possibility, could have, any right of action against the sheriff; but it is claimed that they have it by reflection from, or relation to, Valette, and it is claimed, also, that this Iron statute shall be enforced against the sheriff, not for violating any rights of the plaintiff, nor the legal rights of any body, but for disregarding the possible equitable rights of Henry Valette. Such a proposition has, at least, the merit of novelty. We admit that there are certain rights in such cases, on the part of the cestuis que trust, which a court of law will recognize ; but this does not at all conflict with the view upon which we insist.
    Third : If the court can amerce in a ease of this kind, they ought not to amerce under the circumstances of this case.
    In considering this point, it is necessary to advert, briefly,, to the testimony, as well as to the general aspect of the case.
    The counsel then proceeded to comment upon the evidence set forth in the bill of exceptions. But as it was not regarded by the court as material, in the determination of the case, that portion of the argument is omitted.
    G. Swan, for plaintiff, in reply.
    It is most undoubtedly true, that a sheriff, in this and every other ease, has the power to take whatever he pleases in discharge of an ex-edition — old almanacs, or Gallipolis . paper, for example — and can make return of the facts ; we, however, can not concede to the other side, as counsel suppose we must, that no amercement in such case will be ordered, but the *injured plaintiff must seek redress by action. [231 It is a fact of notoriety, and proved on the case, that, at the time the sheriff received the notes of the (Gallipolis Bank, they were, and now are, of no value; The exigency of the execution was to make the money ; the return is, that he has made nothing, or, that which has no value. It is the same as if he had returned that he had taken so many pieces of blank paper in discharge of the execution. Counsel on the other side do not deny that this return would, as between individuals, have been as no return, and would have subjected the officer to the same consequences as if none had been made.
    If a sheriff returns “ money made,” when he has made none, it is a mere false return,for which an action can be sustained ; but an amercement, it has been held, will not lie. This was carrying the principle as far as it ought to be extended, for the protection of officers from the just penalty of neglect. But when the officer, upon the face of his proceedings, discloses that the return is true, perfectly so, but that he has wholly disobeyed the command of the process, and neglected to make the amount, then, according to every decision, the injured party has his choice of remedies. This is precisely the case before the court, if the parties are Valette v. Morrison et al., in the judgment and execution.
    It is true, the nominal plaintiff was the Gallipolis Bank, but the record shows who was the cestui que trust. The action was prosecuted for the use of Henry Valette, who was the apparent assignee upon the back of the note. It is insisted, by counsel on the other side, that there is no evidence that the note was assigned to Valette. So far as it respects the right of Valette, whether the assignment appeared or not, was wholly immaterial, upon settled authority. In the case of Scott v. Westlake, 2 Ohio, 24, the court says ; “ That the want of an assignment, or an order, on the back of the note, does not disprove the right, It might have been created by a separate instrument, or a parol agreement, the validity of which could only be questioned by the payee,” etc. Courts of law take notice of assignments of choses in action, and will not only *protect the rights of the assignee [232 against persons having actual notice, but, also, when the party has a knowledge of such circumstances as ought to put him upon inquiry, Anderson v. Van Alen, 12 Johns. 343; Johnson v. Bloodgood, 1 Johns, Cases, 51.

      It was not the business of the sheriff whether this money would belong to Yalette, or some other person: he was only bound to make it, and leave that question to the determination of the court. Rogers v. Burk, 10 Johns. 400. The record, in fact, forbade him from determining that the money was for the benefit of the nominal plaintiff. The facts show that he well knew this to be the case.
    It is fraudulent to pay to the nominal plaintiff, and must be equally so to receive for his benefit, by the sheriff, after notice. Andrews v. Beech, 1 Johns. Cases, 411 ; 19 Johns. 95; Raymond v. Squiers, 11 Johns. 47. So, when the assignor enters satisfaction, it will beset aside. Wardel v. Eden, 1 Johns. 531.
    So the assignment is held as an authority to sue. Wright, 737 ; Ibid. 501.
    A mere delivery of a chose in action is a good assignment. 15 Mass. 481 ; Pancost v. Ruffen, 1 Ohio, 384. Authorities could be multiplied upon this point. A sufficient number has been cited to show that the want of proof of the assignment could not protect the sheriff. In fact, he has nothing further to do than look to the record. The assignor’s interest had passed, and courts of law afford assignees of choses every protection. They will not permit the assignor to interfere with the suit. 1 Wheat. 233 ; 5 Wheat. 277. It may be said by the opposite counsel, that the sheriff was compelled to decide between the parties ; but what parties ? He certainly could not go out of the record to decide, without violating his duty. He had a writ of execution, whose commands were unambiguous, and upon its face it disclosed for whose use the action was brought, and who was entitled to the money. His duty was perfectly plain. If he was allured from its performance, it was his own voluntary act, upon the management 233] of *those deeply interested, in tampering with him for gambling and fraudulent purposes ; interested in defeating the rights of the party to the record, and discharging a debt with worthless trash. If the sheriff had pursued his ordinary course, there would have been no> possibility of injury to him. We deny that the duty of deciding upon-the validity Of the assignment rested with the sheriff. The prima facie owner of the judgment was Yalette, an’d that was enough to protect him in collecting the amount, and presenting the return to the court. If the validity of the assignment was to be contested by the nominal plaintiff, or any one claiming an interest, it was on motion to receive the money, or by bill in chancery, in case there were different conflicting claimants.

      Again : It is suggested that the assignee has no'right to use the name of the bank for the purpose of amercement. The authorities are the other way. When an escape has been suffered, the assignee of a chose in action may maintain a suit against the sheriff, in the name of the assignor, which the sheriff can not defeat by taking a release from the nominal plaintiff. Master v. Hawkes, 15 Johns. 405.
    It does not follow, however, if the sheriff is “ between two fires,” that he shall be protected if he 'seeks the wrong side. If he decides the question of right, obviously wrong, he deserves punishment; or, if he decides not only wrong, but from favoritism, or by skulking behind his enemy, he can derive no advantage in law, or against a just claimant, who has committed no fault.
    As before remarked, the sheriff’s return may contain the truth, all the truth, and nothing but the truth, and still he may be guilty of gross and criminal neglect. He might return, upon a ca. sa., that he had killed the defendant, and that might be literally true ; he might return, upon a fi. fa., that he had levied upon a ballad, and sold it for beech leaves, and this might, also, be a true history of his official acts ; or, he might return, upon an execution, that he had received and accepted the notes of- any bank, however worthless, and this might not, in fact, be false, still, in all such cases, it would be altogether ^absurd to decide, judicially, that he had been guilty of no neg- [234 lect or violation of official duty. The opposing counsel do not, however, appear to have much confidence in this part of their case, nor evince much desire to press it upon the consideration of the court. We copy the sheriff’s return :
    “ March 27, 1843. Received this writ, and executed the same, by receiving of the defendants the sum of $4,250, in the bank notes of the President, Directors and Company of the Bank of Gallipolis ; the said Henry Valette, for whose use the plaintiffs sued, not being an assignee, bona fide, of the promissory note, or liability upon which this judgment was rendered, in the settlement of any claim or claims of his against said bank. I have made the further sum of $73.59, being the amount of all the costs. (Signed) Wm. Domigan, Sheriff, May 9, A. D., 1843.”
    The sheriff asks to be justified for this return, upon the grounds that he has disclosed, in his return, without showing in what manner he was led to such conclusion, not that he had made the mon ey, but that he had not.
    This part of the ease presents the question, whether, upon the record alone, for no extraneous facts are shown, the sheriff was justified in making such return ; in other words, whether the return discloses any “ neglect or refusal to execute the writ.” It is very true, that the sheriff can arbitrarily make just such a return as this to every execu tion in his hand, no matter who the parties in interest may be. As between persons in no manner connected with a fraudulent or insolvent bank, what would be the effect of such return ? The defendants say it would be conclusive upon a motion to amerce. If that is true, the statute for amercement is worse than a mockery ; it is an insult to the injured party, and an instrument of oppression in the hands of the officer. I was not present at the decision of the ease of Bostwick and Taylor v. Graham, Sheriff of Franklin county, and know not the ground of reasons for the decision. I know, however, that it was a case decided contrary to the opinion of the bar, and, if I am not greatly mis235] taken, the counsel who now urge it as law, agreed with ^myself that it was rather sticking in the bark, than penetrating deeper. It was generally remarked, after that decision, that it was out of the question to reach a sheriff, by amercement, while the Supreme Bench retained its then incumbents. At all events, this court have never been concluded by any verbal reports of their decisions on the circuit, and wc ask. a decision of this case upon its own merits.
    The second proposition of the defendants has already been answered, and the authorities referred to. They may be summed up, by saying, that an assignee of a chose in action may use the name of the assignor for every purpose of enforcing his right. 15 Johns. 405.
    With regard to the third point of defendant’s counsel, which resists the amercement under the circumstances, we have little to add. We may, however, be permitted to remark, that a more clear case of premeditated and deliberate intent to give currency to fraudulent bank notes, at par, and then, by contrivance and trick, discharge the debt in the hands of an innocent assignee, by worthless trash, which did not cost the debtor over one per centum, can not be found in the history of the past ten years, so full of fraud and dishonesty.
   Wood, Judge.

We entertain the opinion, that the great portion of the evidence which was given on the trial of this motion in the court of Common Pleas should be laid out of view. It appears to us immaterial, whether, in the language of counsel, the proof shows that the defendants have tampered with the sheriff, or, whether he has trifled with the process of the court, so far as the present ease is concerned.

The important inquiry is, what is the return of the sheriff on the fi.fa.? And does it show the due execution and faithful discharge of his official obligations, cast upon him by the reception of the execution ? If the return of the officer shows this, upon its face, the plaintiff could not go behind it, on a motion to amerce; but is left to his remedy by action for a false return. The reason is, this summary mode of redress is not given, by statute, for a false return.

*The statute is penal, must be construed strictly, and the sheriff [236 shown to be within both the letter and spirit. Bushnell v. Eaton, Wright.

Taking the facts, then, to be true, as set forth in the return, is the sheriff justifiable in receiving the amount of damages due the plaintiff in the paper of.the bank? Several statutes are cited by counsel, as bearing on this question. The ninth section of the act of 1824, “ to regulate proceedings where. banks and bankers are parties,” among other things, provides, that, in all suits or actions prosecuted by a bank or banker, or persons claiming as their assignees, etc., and for their benefit, the sheriff, upon any execution in his hands, in favor of such bank or banker, their or his assignees, etc., shall receive the note or notes of such bank or banker from the defendant, in discharge of the judgment, and that, if such notes are refused to be received from the sheriff, he shall not be liable to any proceedings whatever, at the suit, or 'upon the complaint, of such bank or banker, or his or their assignee. Swan’s Stat. 147.

The act of 1842, O. L. vol. 40, p. 33, declares the meaning and intention of the act of 1824, sec. 9, was, and is, that payment may be made by the debtor of such bank, etc., in the notes or obligations thereof, issued as currency, etc., as against the assignees, whether such bank retains an interest therein or not, but provides the act shall not extend to any assignee who, heretofore, shall have become such, bona fide, in the settlement of his claims against such bank or banker. These enactments have been thought severe and unjust, by some, but we must suppose them to be such as were believed to be called for by the circumstances of the times. At all events, their constitutionality can not be seriously questioned, for they affect only the remedy, which is always subject to the legislative will, and in refusing to permit proceedings to be instituted against the sheriff they do not impair the validity of the contract.

Is the return of the sheriff, then, in compliance with this law ? In substance, it recites, that he has made the amount of the costs, $73.59, and the said Valette, not being an assignee, bona fide, of the prom-237] issory note on which the judgment was *rendered, in the settlement of any claim or claims of his against said bank, he had received the balance of the judgment, $4250, in the notes of the bank.

Here was the case, where the sheriff was bound to act. He must do so at his peril. Neither mistakes of law or of fact excuse him. If he refused the notes, and made his levy, he was liable to the defendants, if Yalette were not such bona fide assignee; if he received them, he was liable to Yalette, if he sustains the character and relation to the bank he assumed. The sheriff, then, was bound, for himself, to decide the question. He has done so, and set it out in his return ; and the remedy against the sheriff, if any exist, must be, in our view of the case, by an action for a false return.

Judgment affirmed.


text:
    Thomas Lane v. Matthias W. Baker, Gideon Sphar, and John Ginn.
    Youth, of Negro, Indian, and white blood, but of “ more than one half white blood,” are entitled to the benefit of the common school fund.
    The cases of Polly Gray v. the State, 4 Ohio, 353 ; Williamson v. the school Directors, etc., Wright, 518; Jeffries v. Ankeny and others, 11 Ohio, 312, are affirmed.
    This was an Action on the case, from Greene county, against the defendants, as school directors.
    The plaintiff declared as follows:
    “ Thomas Lane complains of Matthias W. Baker, Gideon Sphar, and John Ginn, in a plea of trespass on the ease, for, that, whereas, heretofore, to wit, on the 25th day of January, 1841, at the county of Greene, aforesaid, a common school was, and had been, for along space 238] of time, to wit, for the *space of two months before that time, and for a long space of time, to wit, for the space of two months after-wards, taught in school district number one, in the township of Silver-creek, and county aforesaid, the teacher of which school was paid and compensated out of the common school fund of the State of Ohio, and funds appropriated for that purpose out of said fund, during all which time the said Matthias W. Baker, Gideon Sphar, and John Ginn were directors of said school, and school directors of said district, duly appointed, and acted as such; and that, during all the time aforesaid, and on the day and year aforesaid, the said Thomas Lane was a resident in said district, and a householder therein, and so resided during all' the time aforesaid ; and was the father of divers, to wit, three, white children, over the age of five years, and under the age of eighteen years, who resided with him in said district, to wit, John Eldridge Lane, and two others, who were, of right, entitled to the privileges of said school; and the said Thomas Lane, of right, should have been permitted and allowed to send to, and have said children taught and instructed in, said school, during all the time aforesaid, and the said Thomas Lane, in fact, saith that he did offer to send and place his said children at said school, to be taught and instructed, and did send said children to said school, and requested permission to have them taught and instructed, and permitted to remain in the same, of all of which the said directors had notice ; yet the said Matthias W. Baker, Gideon Sphar, and John Ginn, so being directors, as aforesaid, and well knowing the premises, and contriving and wrongfully intending to injure the said Thomas Lane, and to deprive him of his just rights and privileges in the premises, and to prevent him from educating, and having his children instructed and taught in such branches of education as are usually taught in such common schools, did, to wit, on the 25th day of January, 1841, aforesaid, and on divers other days, and times, before and since said day, and before the commencement of this suit, turn the said children of the said Thomas Lane out of said school, and cause said children to be kept out, excluded, and prevented from entering *said school, and being taught therein, and forbid, and [239 prevented the said Thomas Lane from sending his said children to said school, to wit, at the district aforesaid, in the county aforesaid, for and during the whole space of time aforesaid ; wherefore, the said Thoftas Lane saith that he is injured, and hath sustained damage, to the amount of two hundred dollars, and, therefore, he sues,” etc.
    The defendants plead not guilty.
    Upon the circuit, the jury returned the following special verdict;
    “ We, the jury, find, that Thomas Lane, and his family, were residents of school district, No. 1, in Silvercreek township, Greene county, and that one of his children, between the ages of four years and twenty years, was excluded from the enjoyment of the common school fund for said district, and was not permitted to attend the school in said district, by the defendants, who were the directors of said school district.

      “ We find said youth, so rejected, to be of negro, Indian and white blood, but of more than one-half white blood ; and, if the law be with the plaintiff, assess his damages at six cents.”
    The plaintiff moved for judgment upon the verdict, which motion was reserved for consideration in bank.
    A. Harlan, for plaintiff.
    The question presented in 'this case, is, whether the plaintiff is entitled to judgment, the jury having found that the plaintiff’s child; excluded from the school by the defendants, was of mixed blood, white, black, and Indian, but of more white blood than any and all others. The word white, as used in the common school law now in force, is found to be the same which has been used in all the former laws on the subject, and received a construction, and was fully defined, in the case of Gray v. The State, 4 Ohio, 253. The subject again came before the Supreme Court, on the circuit, in the case of Williams v. School Directors, Wright, 578, and the word “ white ” received the same construction as in the former ease.
    *Sinee these decisions were made, the Legislature passed the present school law, using the same word “ white,” in the same sense in which it was used in laws which existed at the time the above decisions were made, and from this we must infer that the legislature approved of the construction of the court; and I see no reason to change, until the Legislature change the language of the law.
    William Ellsberry, contra.
    The defendant make the following questions for the decision of the court:
    First: Can such an action be sustained against the school directors, for the exercise of an official act, in its nature judicial, and devolving upon them as an official duty, by the statute itself, which makes the discrimination.
    Second : Can a person of mixed blood, as in the present case, who is one shade nearer white than black, be legally construed to be white, within the meaning of the Legislature, where the term white youth is used as the qualification for admission.
    Third: Are the rights of the individual increased by the mixture of Indian blood, or, do the Indians, under the common school laws, stand upon the same footing with the negroes.
    I am aware that this subject has been several times before this court, incidentally and indirectly, and, perhaps, directly; but the question is not at rest as to either of the points now made. The subjeet being one of great importance to the peace and harmony of the community, and, in a large portion of the state, of great excitement, and intimately connected with the prosperity of the whole system of common schools in the state, I am induced, not only as the advocate of my client, but in accordance with my own views of the subject, to offer a few remarks, and, if possible, to contribute something to the settlement of the question involved. The term white, as applied to persons, has, from the foundation of our government, in all legislative enactments, been used in a strictly ^technical sense, and applied as ex- £241 pressive of the pure white race. Justice Kent, in his commentary on American law, (vol, 2, page 72,) takes this view of the term, as used in the acts of Congress for the naturalization of foreigners. The term white is used in a like sense in the constitution of Ohio and in the statute, on the subject of common schools, the statute providing for the education of white youth, which is, virtually, an exclusion of all others.
    The plaintiff in error rests his ease on the authority of the case of Gray v. The State of Ohio, 4 Ohio, 353, and the case of Williams v. School Directors, Wright, 578. The first case is not analogous; that question arose under the act prohibiting blacks and mulattoes from testifying in causes where a white person was a party ; and being an abridgement of liberty, was construed strictly. The ease in Wright’s Reports arose under the common school law, but it was a circuit decision, and was predicated on the authority of the case in the 4th vol. Ohio Reports, Polly Gray v. The State; but the cases are not analogous, and the case in Wright, 578, is, therefore, no authority in the present case.
    The school districts are bodies politic and corporate. Their affairs are managed by directors, who are, necessarily, vested with powers, judicial as well as ministerial. The statute provides for the admission, iritp their schools, of all white youth within the district between the age of four and twenty-one years. Now there are youth who are necessarily disqualified, either from not being white, or of the appropriate age. There must be some tribunal to determine. This tribunal is the school directors; and the act of determination is a judicial act, and of as high validity, and as binding on the parties whose rights are effected, as the decisions of this court; for, though acting in a subordinate capacity, or as an inferior court, their acts, whilst confined within their jurisdiction, are valid and binding ; and they are no more amenable for the exercise of their judgment than the courts of record.

      Indians are not citizens, neither can be. 20 Johns. 693. They have 242] no political rights. They are, also, *excluded by reason of color, as much as the negroes, from all participation in the common schools, though living within the districts, respectively. The courts of justice decide the laws as they find them, and leave to the Legislature the policy of enacting, if within the pale of the constitution.
   Lane, C. J.

This case depends upon the same principles with that of Jeffries v. Ankeny et al., 11 Ohio, 372.

It is an action on the case against school directors, for refusing to admit the plaintiff’s child into the district school. The jury found, by special verdict, that the youth, whose admission to school was forbidden, “ was of negro, Indian and white blood, but of more than half white blood.” The question is reserved, to determine if the plaintiff may take judgment on these facts.

A majority of the court find no cause to change the opinion they expressed in the case cited, in which they followed former decisions. Polly Gray v. The State, 4 Ohio, 353 ; Williamson v. The School Directors, Wright, 578 ; Jeffries v. Ankeny, 11 Ohio, 372 ; Thacker v. Hawk and others, Ibid. 376.

Judgment for plaintiff on the verdict.