author: Judge Hitohcook

text:
    John James v. Richmond and Bostwick.
    Book accounts, continuously and fairly kept, are to be considered an entirety until closed, and may be proven by the party, within eighteen months after such closing, under the statute of Ohio.
    This cause came before the court in Muskingum county, and the judges not fully concurring in opinion, was reserved for decision at the court in bank.
    It is a wri t of error to the court of common pleas. The action ■in the court below was assumpsit for work and labor, goods, wares, and merchandise.
    *Upon the trial of the cause the book of accounts of the plaintiff was produced, and all the items charged therein, with the exception of two, were proven by disinterested witnesses. The account appeared to be continuous, consisting of a variety of charges, some of which were of older and some of more recent date than eighteen months previous to the commencement of the suit. The two items above referred to -had been charged more than eighteen months before the commencement of the suit. To prove them, Richmond, one of the plaintiffs in the court of common pleas, was called as a witness. He was objected to as incompetent under the statute, but the court overruled the objection, and he was examined. To this decision of the court, the defendant, by his counsel, excepted, and his bill of exceptions was sealed. A judgment having been rendered against the defendant, this writ .of error is prosecuted to reverse that judgment, and the principal error assigned, and only one relied upon, is that the court erred in admitting the testimony of Richmond.
    James, for plaintiff in error.
    Goddard, for defendants.
   Judge Hitohcook

delivered the opinion of the court:

The only question involved in this case is whether, where there is a running account, a part of the items of which have been charged within eighteen months previous to the commencement -of a suit, and a part at an earlier period, the party making the account is a competent witness to prove the validity of those items-which are of more than eighteen months’ standing. Its solution depends upon the construction of section 2 of “ an act dispensing with proof in certain cases.” 29 Ohio L. 122. This section enacts; “ That in all cases where any claim or defense is founded on book' accounts of not more than eighteen months’ standing, in which is-called in. question the validity or amount of any such book accounts, the court or justice may, upon the trial of such action, examine-the party, under oath or affirmation, ^touching the validity of such account or accounts, which shall be admitted as evidence-on the trial, the credibility thereof being left to the jury to determine.” Under this statute the practice has been different in different parts of the state, and that uniformity might be produced was one object in view in reserving this case. The inquiry arises,, what is intended by the term “ hook accounts ” as used in this law ? A book account is an entire thing, as much so as articles of agreement, or a bond for the performance of covenants. True, it is made up of different items, charged from time to time as articles are delivered or labor performed. But when charged, it is the-whole, all the items charged which constitute the account. The-account itself is not closed until the dealings between the parties have ceased, or until it is done by some other act by them performed. Such must have been, we believe, the understanding of the legislature, and if so, then a “book account” can not be said to be of eighteen months’ standing, until it shall have been closed for this period of time.

A case arising under this statute is somewhat analogous to a case under a statute of limitations. And under those statutes we have-uniformly held, that to ascertain whether an account was barred, reference should be had to the items last charged.

Had the legislature intended that the testimony of the parties should have been confined to those items alone which were charged within eighteen months, they would so have expressed it. They would have referred to the items, not to the “ account.”

It would not be sufficient to bring a case within the statute, that one item had been charged within eighteen months, after the lapse of a great length of time between it and the next preceding charge. The transactions must be apparently fair and the account must have been continuous. In such case the facts may well be supposed to be within the recollection of the party, and his testimony may with safety be received. In the case of Marshal and others v. Bend, Johns. 67, this construction was given to a similar statute, and we concur in the opinion of the court expressed in that case.

*We do not undertake to determine whether books of accounts of more than eighteen months’ standing may or may not be given in evidence. ■ Or if given in evidence, by what description of testimony they shall be supported. Such accounts are admitted in some of our sister states, and to a certain extent have been admitted in our courts. There is not, however, as we believe, .any settled practice upon the subject. Nor is the case now presented such a one as to render it necessary or even proper to settle such practice. We are now called upon to give a construction to the section of the statute before referred to. And in our view of this statute the court of common pleas decided correctly in permitting Richmond to testify. The judgment of that court must •therefore be affirmed.


source: Caselaw Access Project

author: Hitchcock, J.,

license: Public Domain

text:
    Brazee and Carrol, Administrators de bonis non of Jacob Kittridge, v. Blake and Guy, Executors of Robert Guy.
    'Where, pending an action on a bond against four defendants, one of them dies, and the suit proceeds to judgment against the survivors, in a scire facias, to make the representatives of the decedent parties, upon the plea of non est factum,, it is sufficient to set forth the substance of the bon’d, and it is unnecessary to produce the record of the judgment, or evidence of a breach of the condition, or of the damages sustained.

      .Non est factum, in such a case, is a material issue.
    Notice with the general issue must be special, in the character of a plea.
    This cause came before the court in the county of Gallia, and in ■ consequence of some difference in opinion of the judges, was adjourned for decision to the court in bank.
    It is an action, by scire facias, to make the defendants parties to a judgment rendered by the Supreme Court in Gallia county, at the April term, 1828, in favor of the plaintiffs, against Benjamin Whitney, James Jones, and John Noland. The ease set forth in the scire facias is as follows: On May 7, 1823, Moody and Co. .commenced a suit in the court of common pleas of Gallia county, against Whitney, Jones, and Noland, together with the decedent, Robert Guy, he then being in full life, upon a bond with-conditions. Upon trial in the court of common pleas, judgment was rendered against the plaintiffs, and the cause appealed to the Supreme Court. During the progress of the suit, Moody, one of the plaintiffs, died. His death was suggested *upon the-record as is provided by statute, and the cause continued to beprosecutod by Kittridge, his survivor. Subsequently, and before-the final determination of the cause, Kittridge died, and Nathaniel S. Cushing, his executor, was made plaintiff. Next, Robert Guy, one of the defendants, died. His death was suggested, and the-suit proceeded against Whitney, Jones, and Noland, the surviving defendants. Afterward, Cushing, the executor of Kittridge, died-, and Brazee and Carrol, administrators de bonis non of Kittridge,. were made plaintiffs. Previous to the death of Guy, the defendants in this original action had pleaded non est factum to the declaration. To this plea a notice was attached of special matter to be given in evidence, conceived in the most general terms. At the April term, 1828, the cause was submitted to a jury, who returned a verdict in favor of the plaintiffs, assessing the damages-by reason of the breach of the condition of the bond, at five hundred and sixty-ono dollars and ninety-one cents. Upon this verdict, judgment was rendered. The scire facias then alleges that this judgment “ remains in full force and effect, in no way vacated,, reversed, or annulled.” To this judgment it is sought, by thescire facias, to make the defendants, in their capacity of administrators, parties.
    To the scire facias the defendants, Blake and Guy, pleaded that the writing obligatory, declared upon in the original suit, was not the act and deed of the said Robert Guy, their testator; and to this, plea attached a notice similar in its terms, if not in words, to the notice attached to the plea in the original suit.
    Upon this plea issue was joined, and the cause submitted to a. j^y.
    Upon the trial of the cause the bond, which was the foundation of the original action, was offered in evidence and objected to on. account of alleged variance between it and the bond set forth .in the scire facias. This objection was overruled by the court and* the bond read to the jury.

      The defendants then offered evidence under their notice, which was objected to and the objection sustained.
    A verdict having been rendered for the plaintiffs, the defendants moved for a new trial and assigned the six following reasons:
    *1. “ The court erred in suffering the bond to be read in evidence.” ■
    2. “ Certain articles of agreement, referred to in the condition of the bond, were not given in evidence; nor was any evidence offered to prove the terms of that agreement.”
    3. “No evidence was offered to prove a breach of any of the conditions of the bond,” etc.
    4. “No evidence was offered of the existence of any such record as that set forth in the scire facias.”
    5. “No evidence was offered of any damage sustained,” etc.
    6. “The court erred in rejecting the testimony offered under-the notice.”
    The defendants also moved in arrest of judgment, and in support of the motion assigned the five following reasons :
    1. “ The record shows such a suit or proceeding as is not authorized by the statute.”
    2. “ The scire facias does not show that there ever was a judgment to which the defendants in this suit ought to be made parties, or if there ever was such a judgment, where the record is to be found, or that it has not been paid or discharged.”
    3. “ The issue made up is an immaterial issue, or rather no issue at all, and the finding of the jury is a* nullity upon which no judgment can be rendered.”
    4. “ The verdict finds nothing but the negative of non est factum ;■ it finds no breach of any condition, covenant, or contract, it finds no damages,” etc.
    5. “ There are many other reasons apparent upon the record.”'
    Allen and Murphy, of counsel for the defendants, submitted no arguments in favor of these motions.
    Brazee, for plaintiffs,
    insisted that there was no variance between the bond declared upon and the bond given in evidence.
    *That the evidence referred to in the second, third, and fourth reasons assigned for a new trial was unnecessary under the issue joined. The only matter by this issue controverted wau whether the deceased Guy executed the bond. The jury could mot go out of this issue to inquire as to other matters. What is mot denied by the plea is admitted, and a jury can not find against the admissions of the parties in .their pleadings. He cited 2 Starkie’s Ev. 22, 30. As to the fifth reason, he insisted that the damages had been ascertained in the original action, and could not now be inquired into, the object being to make the defendants parties to a judgment already rendered, not to recover a new judgment.
    The court properly rejected the evidence offered by the defendants, because it was not competent to go behind the original judgment, and because the notice is not sufficiently specific.
    In resisting the notice in arrest of judgment, he referred to 22 Ohio L. 64, section 69, under which this proceeding was held. Ho also insisted that it was sufficiently apparent from the record that the original judgment-was unsatisfied, etc.
   Hitchcock, J.,

delivered the opinion of the court:

Numerous reasons have been assigned in this case, both in support of the motion for a new trial and of the motion in arrest of judgment, and some of them perhaps without much reflection. We will endeavor, however, to dispose of them in the order in which they are presented.

As to the first, the counsel for the .defendants having furnished mo argument, and having pointed out no particular variance, we are at a loss to conjecture wherein it is supposed to consist. It is true the bond declared on is not in the precise words with the one given in evidence, nor is it necessary that it should be. A variance to be fatal must be material. It-must be such as in some measure to change the sense. That is not the case here. Further, it is not necessary for the pleader to set forth an instrument verbatim. He may set it forth according to its legal effect, and it will be ^sufficient. Such appears to have been the •object in the case before the court, and that object has been in our •opinion effected. There is then no variance, legally speaking, between the bond declared upon and the one given in evidence, .and the court would have erred in excluding the latter from the jury.

The second, third,' and fourth reasons for a new trial are founded upon the supposition, not that the verdict is against evidence, but that there was not a sufficiency of evidence to sustain that verdict. Nothing more is necessary to dispose of this part ■of the case than to ascertain the issue joined between the parties. And it would seem that this is a question which had not been very fully considered by the counsel by whom the motion was made. It is an invariable rule that facts admitted by the pleadings need not, nay that they shall not be proved. -A jury will not be permitted to controvert such facts by their verdict. Again, it is a rule that facts alleged in pleading, and not denied, are admitted, .and it would be worse than useless to prove facts which were admitted. If, in the present ease, the defendants would have called in question the articles of agreement, they should have done it by an appropriate plea. Not haviug done so, they have admitted their existence as set forth in the scire facias. If they would have relied upon the performance of the conditions of the bond, they should have required oyer, and pleaded that performance. This would have put the plaintiff upon proof to show that these conditions had not been performed, or, rather, the defendants would have taken upon themselves the burden of proving performance. Not having pleaded in this manner, no proof was necessary on ■either side upon this subject. If they would have denied the existence of the record, it should have.been done by the plea of nul tiel record. Such a plea would have compelled the production of' the record, but without such plea such production was unnecessary. The defendants, however, did not think proper to rely upon any of these pleas. They tendered the plea of non est factum, upon which issue was joined. The only question, then, for the jury was to determine whether the bond was or was not the deed of the decedent, Robert G-uy. To sustain their action, nothing more was necessary for the plaintiffs, under *this issue, than to introduce the bond itself. This was done, and the jury very properly returned a verdict for the plaintiffs.

Was it necessary for the plaintiffs to introduce evidence of the amount of damages sustained? This iSjthe next question raised. In many cases it may be proper, nay, necessary, to show the amount of damages sustained in consequence of the breach of condition of a bond, in a suit upon that bond. Especially where, as according to our practice, the jury find the amount equitably due. But this is not an ordinary case. It is a proceeding under section 69 of the practice act of February 10, 1824. 22 Ohio L. 64. This section, among other things, enacts, that “ if there be two or more plaintiffs or defendants, and one or more of them shall die, if the cause of action shall survive to the surviving plaintiff or plaintiffs, against the surviving defendant or defendants, the writ or action shall not thereby be abated, but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants; and after final judgment, the plaintiff may proceed, by scire facias, to make the representatives of the deceased defendant or defendants parties to said judgment and any judgment obtained,” etc. The original action, which is the foundation of the one before the court, was instituted in 1823, Robert Guy being then in full life. In that action he, together with others, was a defendant, and pleaded. During the pendency of the suit he died, but the cause of action survived and was prosecuted to final judgment against his co-defendants. That judgment was rendered in 1828, after a trial by jury and assessment of damages. To this judgment, so rendered, the defendants must be made parties, or they must be discharged in this action. No assessment of damages are necessary, because those damages have been already liquidated in the original action. Of course, the evidence referred to, had it been- offered, would have been irrelevant. It was unnecessary.

The sixth and last reason assigned for a new trial is, that the-court erred in rejecting the testimony offered by the defendants' under their notice.

This testimony would have' been proper in the defense of' *the original action. It was of matter which transpired-previous to the commencement of the suit. If we can form any opinion from the pleadings, these mattors must have been .passed upon and settled in the trial of that suit. True at the time of the-trial Robert Guy was not a party. He had previously deceased. He was a party, however, at the time of the plea pleaded, and at that time was equally interested with his co-defendants. Under these circumstances, it would seem to be doubtful how far it would be proper to go again into the examination of these matters in the-present case, especially when we take into consideration the before recited provision of the statute. But, let this be as it may,, the defendants have another difficulty to contend with.

Section 42 of the practice act, 29 Ohio L. 67, provides: “ That it shall be lawful for the defendant in any action to plead the general issue, and give in evidence aDy special matter, which, if pleaded, would be a bar to such action, giving notice with the same plea of the matter or matters, so intended to be given in evidence.” This is no new provision in our statutes. It was introduced at a very early period, and has been continued until the-present time, without any material change. The object of all special pleading is, to arrive at the matter of fact or of law, litigated between the parties, divested of extrinsic circumstances. Special pleading, in its nature, tends to the advancement of justice. Although this is its legitimate effect, yet in consequence of the technicalities, by which it is surrounded, it is'sometimes perverted by a more artful to entrap a less skillful pleader. The intention of the legislature, by this provision of the statute, was-undoubtedly to supersede the necessity of this technicality. It could not have been designed to deprive either party of the same substantial notice that would have been given by a special plea. Understanding this to be the intention, the court, for many years, has held that a notice of special matter, to be given in evidence,, must contain all the substantial precision of a special plea, although divested of its technicality. In other words, that the matter of the notice must be such, that if embodied in a special plea,, that plea would be good upon general demurrer. And this we-understand to be the course of decision in other states where a similar *statute is in force. To decide otherwise, would enable a defendant to pervert a statute intended for the advancement of justice to the worst of purposes. It would enable him to-conceal his defense until the moment of trial, when it might, and probably would, be beyond the power of the plaintiff to meet it.

The notice, in the case before the court, clearly does not come within this rulo. It is general in its terms, and in no shape-specific. More peculiarly is it so in that part under which it was-claimed to introduce the evidence. That evidence, therefore, was • properly rejected.

From all these considerations we are satisfied that the defendants can take nothing by their motion for a new trial, but the-same must be overruled.

.Shall the judgment be arrested? The first reason assigned why it should be, is “ that the record shows such a suit or proceeding as is not authorized by ¡statute.” Tais scire facias was issued under-.-section 69 of the practice act of February 18, 1824 (22 Ohio L. 64), before referred to and cited. The proceedings are in strict conformity with the provisions of that section of the law, both within the letter and spirit.

As to the second reason' in arrest, we have only to say that the scire facias does show that there “ was such a judgment” as is contemplated by the before-recited section 69 of the practice act, and if so it shows one to which the defendants “ought to be made parties.”

It does show that the record of that judgment is in the Supreme ■ Court of the county of Gallia, the court from which the scire fa- ■ cias issued; and it shows that this “judgment remained in full force and effect, in no way vacated, reversed, or annulled.”. Although there is no express allegation that the judgment is “ unpaid,” there is an equivalent allegation. And were it otherwise the exception, if it be of any validity, should have been taken at .an earlier stage of the proceedings. It would be no cause for arresting the judgment.

The next reason assigned for arresting the judgment is, that “ the issue made up is an immaterial issue, or rather no issue at all, and the finding of the jury is a nullity, upon which no judgment can be rendered.”

*If this be so, if there was no issue or an immaterial issue, or if the finding of the jury be a nullity there has been a mistrial, and the court would direct a new trial, order a repleader, or take such other steps as might be necessary to do right and justice between the parties. But let us examine. The scire facias .sets forth a bond, charging that the same was executed by Robert • Guy, the decedent. The defendants, by their plea, deny that Rob- . ert Guy executed this bond. Here is a fact alleged by one party .and denied by the other. And this I have always supposed constituted an issue. Is this a material issue? As to the proper answer to this question there can be no doubt. Suppose the jury had found that the bond was not the deed of Guy, would not the ■defendants have been discharged? And if the finding of the issue in their favor would have been thus material to them, is it not ■ equally material when found against them? If the issue be material, then the finding of the jury is not a nullity. And I apprehend the court will have no difficulty in rendering such a judgement as is contemplated by the statute.

The fourth reason assigned is, “that the verdict finds nothing' but the negative of non est factum,” etc.

This was all that it was necessary to find. The jury having found this, have found all submitted to them by the issue. It would have been improper for them to have inquired as to the-“breach of any condition, covenant, or contract.” No such thing-was in controversy before them. Nor was it necessary that any “ damages ” should be assessed. These damages had been assessed in the original suit. Having found the “negative of non est factumf the law declares the consequence. And that consequence-is, the defendants shall be made parties in the judgment in that original suit.”

What those “other reasons, apparent upon the record” are, according to the fifth assignment, we are not informed. Upon examination of the record' we discover none; and as counsel have not pointed them out, it is, perhaps, but reasonable to conclude-that they do not, in fact, exist.

The exceptions in arrest are not well taken, and judgment will-, be entered on the verdict.


author: Judge Wright

text:
    *Henry Newman v. Robert McGregor.
    Work performed upon a special contract, not exactly according to its terms, and accepted, or assented to, compensation may be recovered in the common courts. So where payment was to be made in specific articles as is not.
    Writ of error to the court of common pleas of Richland county,, adjourned for decision from that county. The plaintiff below declared in the common counts in assumpsit for work and labor, for goods sold, and for money lent, paid, and had and received. Issue was taken upon non assumpsit, and a notice of set-off. On trial the bill of exceptions shows that the “ plaintiff adduced in evidence a book account, containing an item for the clearing of land, and proved by several witnesses that he had nearly cleared the ground, proved that they were at the rolling of the logs, that the defendant then said that the reason why the rolling was had at so-early a stage of the work, was that the plaintiff was going to re■move from his house, -and that plaintiff’s wife could not then cook for the hands; defendant had no family.' Defendant then proved that the plaintiff had contracted with the defendant to clear for him some land, not less than three acres, at the rate of three dollars •per acre, to be paid for in wheat at fifty cents per bushel, and that the defendant himself finished the clearing of the land. Plaintiff proved that defendant told the witness that plaintiff had sent him his account, and that it was unjust, but that he owed the plaintiff •something. Defendant set off his book account against plaintiff’s •demands.
    “ At the hearing, the defendant requested the court to direct the jury that if they found that there was a special contract for the ■clearing of this land at a given price, and that the land was not •cleared accordingly, that defendant could not recover on that item, .and that if they found that there was a contract for the clearing of this land, and that it was to be paid for in wheat, that whether the contract of plaintiff was performed or not, that plaintiff could ■not recover under the state of the pleadings.
    “ The court thereupon directed the jury that if from the evidence the jury believed there was a special contract, yet if the same had been waived by the parties, or had been completed substantially, would justify them in allowing the plaintiff the actual value of his labor, though the contract *was special in case it was to be paid in wheat, yet if the plaintiff had proved that this bill was sent to defendant and that demand was made, that a recovery might be had in this form of action, even on a contract for the payment of wheat, and that upon the whole they submitted to the jury the subject matter of this said item for clearing.
    “ To which opinion <?f the court, so given in charge to the jury, the defendant excepts, and prays the court to seal this, his bill of ■exceptions.
    “D. Higgins, Pres’t. [l. s.]
    Wm. Patterson, [l. s.]
    Isaac Osburn.” [l. s.]
    There was a verdict and judgment for the plaintiff for the value •of the work done in clearing, to reverse which this writ is brought. Two errors are assigned:
    “ 1. That the court erred in directing the jury that they submitted the subject matter of the said item for clearing to their ■ consideration.

      “ 2. That the court erred in directing the jury that if there was a special contract for the payment of this item in wheat, and the plaintiff mado a demand of the same previously to bringing the ■suit, that the plaintiff could recover the same in this form of pleading.”
    Cormnbukt, for plaintiff in error, cited 2 Stark. 251.
    No argument was submitted for the defendant in error.
   Judge Wright

delivered the opinion of the court:

Neither the evidence offered, nor the charge of the court, nor the matter excepted to, are very clearly set forth in the bill of exceptions. It is difficult to discover the real matter in controversy. We think, however, the bill of exceptions shows there was a contract for clearing not less than three acres of land, at three dollars an acre, to be paid in wheat at fifty cents a bushel; and that the log rolling was brought on before the work was done, by defendant’s permission, because the plaintiff’s wife was about to remove .and could not cook for the hands, if not had then ; and that the defendant below afterward finished the clearing himself, *and refused to pay the plaintiff’s bill when presented because it was unjust, admitting at the same time that he owed something; and that •on the trial he set off his own book account against the claim for clearing. The bill does not show what else was proven, or that nothing else was proven. The court charged the jury that if there was a special contract which had been waived by the parties, or had been substantially completed, the plaintiff might recover, on the common count, the actual value of his labor; and if the labor was to be paid in wheat, the plaintiff might recover if before suit he had. sent in hisTdll and demanded the wheat ; and the court submitted the whole item for clearing to the jury upon that charge. The verdict upon the item was probably insufficient to pay the clerk for the record appended to the writ of error. The case is emphatically a small business, yet being before us we must decide it.

1. Did the court err in saying to the jury they submitted the whole item to them upon the charge? Counsel say there is so much confusion in the authorities on both the questions raised that he forbears to cite any but 2 Stark. 251, which he cites,' “because it is a late decision and a strong case in favor of” his position. In Therogood v. Clark, 2 Stark. 251, it was held that Avhere the drawer of a bill, payable to his own order, settled with the acceptor after the bill became due and gave him a receipt in full, and took up the bill and afterward indorsed it, the indorser could not maintain his action against the acceptors. There is probably some mistake in the reference. If this case is a strong one in favor of the position of the plaintiff in error, we do not perceive-its bearing, nor can we discover the error complained of.

2. Did the court err in charging the jury that if there was a special contract which had been waived by the parties, or had been substantially performed, the plaintiff might recover the actual value of his labor on the common counts ? Where there is a subsisting special contract, the party suing for a breach must declare upon it; but where work has been done under a special contract, though not in accordance with its terms, which has been accepted by the other party, or has benefited him, a recovery may be had on the common ^counts for what the labor is really worth; and the defendant may, in such case, show the contract,, if he chooses, to limit the damage to be recovered. So a recovery may be had on the common counts where a special contract existed, but has been waived, or put an end to, or performed, or where the plaintiff has been prevented, by the defendant, from doing the work. 1 Chit. Pl. 333; 7 Cranch, 303; Bull. N. P. 139; 7 Johns. 132; 10 Johns. 37; 7 Term, 181; 1 New R. 351, 357; 12 Johns. 274; 5 Johns. 87; 2 Mass. 415; Pow. on C. 417; Doug. 651; 5 Mass. 39, 391; 1 Mass. 355; 11 Wheat. 250, 251; 1 Cowen, 46; 1 Ohio, 355, 363; 15 Johns. 476; 4 Ohio, 357. The charge of the court was substantially correct, and is sustained by authority. If the party for whose benefit work has been done, under a special contract, waive its exact performance, or discharge the other party from completing it, does that confer upon him the legal right to avail himself of the labor without making compensation for it? We think such an assumption contrary to equity and good conscience. What benefit can result from a count on the special contract except an increased chance of avoiding payment by reliance upon technical defect? The recovery in either form of action would bar a subsequent recovery for the same cause of action in any form.

The objection urged that the stipulation to pay for the labor in wheat would prevent a recovery on the common counts, is not well founded. Wo do not see what material difference that makes in the question. If one does work for or sells goods to another, and agrees to receive his pay at a stipulated time in wheat, shoes,, or any other article, or in labor, and the articles are not delivered, or the work done according to the stipulation, the neglect or omission changes the contract into one for money, and the party to whom the payment was to be made is no longer bound to receive the goods or labor, but may demand money, and recover it on the common count in assumpsit for goods sold. It is the usual course of shop-keepers, who deal on credit, to receive trade in pay for goods, deliverable at a future day. In case the trade is not delivered, and suit is brought for the goods, it is the universal practice to count for goods sold, not upon the ^special contract to receive trade and the refusal. This practice is convenient, and, we think, conformable to strict law and justice. Wé do not feel disposed to alter it.

The judgment of the court of common pleas affirmed with costs.


author: Wright, J.,

text:
    Stephen Horsey v. A. Heath, Jr., and E. Littler’s Administrators.
    Where one of two partners is deceased, and the other insolvent, a surety for . the firm, having paid the debt, may proceed in equity against the estate of the deceased partner, without prosecuitng a suit against the survivor.
    In chancery, adjourned from Pickaway county. The bill sets forth that in 1818, Littler and Heath entered into partnership in the purchase and disposition of a drove of cattle, and, to prosecute the business, borrowed, upon their joint note, two thousand two hundred dollars, of the Bank of the United States, at Chillicothe. The complainant and several others indorsed said note upon the credit of both the drawers. The note was renewed and continued at the bank, from time to time, till September, 1819. Heath transacted the business, procured the indorsements, etc. The three first notes had the names of both Littler and Heath affixed to them — the others, that of Heath alone; but the complainant indorsed, relying upon the responsibility of both, and under tke assurance from Heath that all were to sign the paper. Suit was brought on the last note against Heath, by the complainant and the other indorsers, under the statute of Ohio, and judgment recovered in 1820. Heath and the other indorsers became wholly insolvent, and complainant has been compelled to satisfy the judgment; he prays that the estate of Littler may be charged with the amount.
    Heath having absconded, the bill, as to him, is taken pro confesso. The administrator of Littler, in his answer, disclaiming all knowledge of the transaction, denies the complainant’s right to proceed against him. in this court, requires proof of the allegations in the bill, and submits whether, in any event, he shall be compelled to pay to complainant more *than a pro rata dividend of the unadm'inistered assets, without reference to those .administered before notice of the complainant’s claim.
    There is a general replication, and proof taken and filed in the •case.
    Dana and Doane, for complainants,
    cite 1 Caine’s Cases in Er. 40, 56; 2 Johns. Ch. 339, 369, 508; 4 Johns. Ch. 123; 2 Har. & Gill, 305; 2 Ves. jr. 101, 571; 3 Ves. jr. 277, 399, 560; 5 Am. Dig. 103; 1 Mer. 539, 572, 72; 2 Vern. 277, 292; 1 P. Wms. 682; 4 Des. 148; 2 Big. Dig. 418, art. 66-68, 70; 1 Salk. 126; 1 Wend. 457; Wat. on Part. 196, 376, 385; 1 Esp. N. P. 118, 141; 1 Chit. on Pl. 37; 1 Ohio, 127; 1 Murph. 410; 1 Lit. 305; 5 Burr. 2613; 2 Blk. 696; Gow on P. 258, 259; 1 Conn. 356; 1 Hay. 221; 2 Bay, 533; 2 Pet. 199; 15 Ves. 227; 2 Barn. & Ald. 210.
    Olds and Hunter, contra,
    1 McC. 16, 82, 388; 2 Johns. 300; 4 Johns. 224; 10 East, 481; 1 Camp. 281; 4 Esp. 89; 4 Wash. C. C. 98, 271; 2 Day, 272; 15 East, 7; 3 Pick. 179; 2 McC. 379; 3 P. Wms. 408; 3 Esp. 248.
   Wright, J.,

delivered the opinion of the court:

If/is not necessary to recapitulate the evidence in this case. It satisfies us that Heath and Littler were jointly concerned in the drove of cattle purchased, and that, the money was borrowed at •the bank on their joint responsibility, and for their joint use and 'benefit, and also that the superior credit and responsibility of Littler was the security most relied upon by the indorsers in lending their names to the paper. That Iieath was the active partner, made the purchases, procured the indorsements, some upon blanks, with the assurance that all the names were to be to the notes, and that Littler himself, after he found his name was left off the note, complained that Heath was acting the rascal in leaving his name off with intent to cheat him out of his share of the proceeds of the cattle. That the renewals of the note in bank were in order to conform to the course of business in the bank, *but was in fact, and so understood by all the parties,- only a continuance of the original loan to the partnership. That the complainant, as security for Heath and Littler, has been compelled to pay money, .and that Heath, the survivor, has absconded to parts without the state, and is wholly insolvent.

Upon this state of the case, no good objection to the complainant’s coming upon the estate of Littler is perceived. It is urged that he is bound to pursue the surviving partner, and prosecute at law, to insolvency. We know of no rule in equity winch requires •of a' security the pursuit of claim upon the partnership against •the survivor to judgment, when that survivor is insolvent, has absconded from the country, and it is evident such pursuit would be fruitless. The complainant became bound for Littler as well as Heath, and has been compelled, in consequence, to pay money. Both were equally liable to him, and at law, as well as on the plainest principles of justice, he has a right to proceed against both until made whole, and to recover from either or both. Where ■one of several who are jointly liable dies, leaving a solvent survivor, for good reason the law requires the pursuit of the survivor before you resort to the estate of the deceased; but the insolvency of the survivor, in our opinion, would exonerate the security from such pursuit, for the simple reason that the sole object and end of such pursuit, the obtaining satisfaction, is put beyond attainment by the insolvency; and neither law nor equity requires a vain thing. This would hold even if the survivor were within the jurisdiction of the court, and could be reached and coerced by legal process; and by much stronger and more equitable reasons shall the security be held discharged from the pursuit of an insolvent partner into another jurisdiction, when there.is a solvent estate of the deceased partner within the jurisdiction that can be reached. Justice would seem to require of those representing the estate of .the deceased partner in such cases, to apply the effects of the deceased, which may have been increased by the very money which' the security has been compelled to advance, to make the security whole, and themselves encounter the trouble and expense of pursuit after the copartner liable to contribution. Those having the-benefit should first meet the responsibility, and take the chance of recovery from *those participating with thorn, and not throw both upon one having no benefit, and who merely lent his-name to oblige the deceased, as well as the survivor. We think, that a security, in such a case, may charge an intestate estate in. this court.

But it is said the partnership between Littler and Heath was-limited, and was dissolved, and that the complainant knowing the dissolution, became security for'Heath alone. The partnership-was, indeed, limited in its subjects, the dealing in cattle and the-procuring the means of attaining stock, but as to those subjects it had all the incidents of a general partnership. If dissolved, that fact must have been known to the respondents, and they are-bound to prove it. There is not only no evidence of that fact, but there is, on the contrary, the declaration of Littler in effect, that, it was not dissolved, and that his name had been left off the note-by his own partner with intent to defraud him ! The fact of dissolution, and the proof of notice of it to the complainant, are very different things. If the dissolution were known, then resort might be had to circumstances to establish a knowledge of it in the complainant ; but it is not admissible for Littler’s representatives, against the declarations of their intestate, wholly to omit proof of' the principal facts, and deduce it from the act of the copartner in-having a separate note, and of the complainant in indorsing it, when the intestate proclaims the act of his partner to have been done in fraud of his own rights, and the proof and circumstances-show, either that the complainant did not notice the change, or,, having noticed it,.was lulled to quiet by the assurance of Heath that all were to sign. If, as claimed, this was a limited partnership, and was dissolved, would that put an end to the joint validity of the partner for their partnership debts. The fact of notice would not affect the question. No new debt was created at bank. The old one remained outstanding, although, to conform to the custom of business in the bank, when continued and further time was given, the evidence of the debt was, from time to time, changed. This was perfectly understood by all the parties. No-•one ever, in fact, paid the debt but the complainant. Though partnerships may be terminated, either by limitation of time or. *the completion of the business which was its subject, yet .as to partnership responsibilities they continue until all are discharged. The proposition of the respondent would be a great convenience to debtors, as it would put it in their own power, without the consent of creditors, to discharge their obligations by a mere dissolution of partnership. But this partnership, on the evidence, continued more than a year. The loan was obtained in April, 1818, and the last note for it was discounted in July, 1819, but a short time over a year; and if the question were one to be affected by dissolution, or expiration of time, proof would be required of the allegations relied on. The assumption is not well founded in the case, that the complainant consented to a change of the paper, ■knowing the partnership at an end, and thus gave credit to Heath :alone, and discharged Littler. There is no evidence that such was the case, but there is evidence to the contrary. When the identity ■ of the debt is ascertained, it is now settled that a new change of the evidence of it will not affect the liability of the real parties, in .a court of chancery.

Upon the whole, this case, stripped of technicalities and words, is a very simple one. Horsey became security for Heath and Littler, and had to pay the money for them; Heath being insolvent, has run away; Littler is dead, but has left a solvent estate; and Horsey now asks to have his claim admitted as a valid one upon the estate of Littler. It appears to us a clear ease for relief against Littler. But, inasmuch as we are not fully advised of all the facts necessary to a final decree, we refer the case to a master, with directions to take and state:

1. The account paid by the complainant, on account of the loan of the bank, with interest up to the first day of the next term.

2. The time when the administrator of Littler had notice of the complainant’s claims.

3. The value of the assets, real and personal, of the intestate, which have or may come into the hands of the administrator.

*1. The claims upon these assets, showing in distinct items those by law preferred to creditors.

5. The amount of disbursements made by the administrator, ■•and the time each was made.


author: Judge Hitchcock

text:
    State of Ohio, ex rel. Uriah Loomis, v. Lemuel Moffitt.
    January, 1831, there was an election for an associate judge for the county of Ashtahuia. The journal of the house certified the election of Samuel Moffitt — that of the senate the election of Lemuel Moffitt. The two houses did not correct and reconcile this discrepancy. The speakers did not sign the certificate of election to the governor, required hy law, and' no commission issued. The court of common pleas of Ashtahuia county admitted Lemuel Moffitt to take the oath of office and sit as an associate-judge : Held, that this was illegal, and that Lemuel Moffitt could not, upon such state of case, he inducted into office.
    This ease was reserved in the county of Ashtabula. It is as follows : At the September term, 1831, of the Supreme Court for Ashtabula county, Uriah Loomis filed a complaint, accompanied by affidavit, in said court, setting forth that one Lemuel Moffitt, of said county, from the 23d day of May the next preceding, and until the then present time, assumed to hold and exercise the office of associate judge of the court of common pleas for said county,, and had in fact exercised the powers and duties of said office, without having been elected and commissioned as is provided by the constitution and laws of the State of Ohio, and praying for a writ of quo warranto, to issue to the said Moffitt, requiring him,, to appear and show by what authority or warrant be had exercised, and continues to exercise, the duties of said office.
    Uj)on this complaint, a rule was entered upon-Moffittto appear and show cause by the first day of the then next term of the-court.
    In pursuance of, and in obedience to, this rule, the defendant, at the August term, 1832, appeared, and for cause showed, that, on January 22, 1831, he was, by joint ballot of the senate and house of representatives of the State of Ohio, elected an associate judge-of the court of common pleas for the county of Ashtabula, and that on the 23d day of May, of the same year, he was sworn into-office.
    ^Evidence was introduced and is on file as follows, to witr
    1. An extract from the journal of the house of representad ves for the session of 1830-31, from which it appears that on the 22d day of January, of the latter year, Samuel Moffitt was elected, an associate judge for the county of Ashtabula.

      2. An extract from the journal of the senate of the same day showing that Lemuel Moffitt was elected to the same office.
    3. Depositions from several of the members and officers of the general assembly, to prove that Lemuel not Samuel Moffitt, was the individual voted for and elected.
    4. An extract from the minute book of the eoryrt of common pleas for Ashtabula county, from which it appears that on May 23, 1823, Lemuel Moffitt appeared in open court and took an oath of office as an associate judge for Ashtabula county, the form of which oath is entered on the minute book or journal, and conforms to the oath prescribed by statute for associate judges.
    Pease and Webb, for the relator:
    The question presented in this ease is simply, what is the proper and legal evidence which will justify a person in exercising the office of associate judge. We insist that nothing less than a commission under the great seal, with a certificate that the necessary oaths have been taken, is adequate. 29 Ohio L. 407, 409. No-other evidence can with propriety be admitted. The testimony on file in this case is irrelevant. Although associate judges are-elected by joint ballot of the senate and house of representatives, yet the evidence that a man has been elected is contained in a certificate, signed by the speakers of the two houses, and in a commission, issued in pursuance of such certificate, signed by the governor, countersigned by the secretary of state, with the great seal of the state affixed. Eesort can not be had to the parol evidence of the members of the legislature, to prove the fact of election.
    *Giddings and Wade, for the defendant:
    The constitution of Ohio, article 3, section 8, vests the appointment of judicial officers in the two houses of the general assembly. Neither the judicial nor executive branches of the government have any participation in it, except when a vacancy happens during the recess of the legislature, in which event the governor can make a pro term, appointment. These officers are to be elected by joint ballot. The appointment is complete when an individual is declared, by the speaker of the senate, in the convention of the two houses, to have been elected.
    From that instant the privilege of holding the office becomes a
      vested right, in the individual elected, because the appointment is perfect and completely consummated, by a public act. No further act remains to be done by the appointing power. Marbury v. Madison, 1 Cranch, 137. No mistake of a clerk, no npgloct of the speakers to sign a joint certificate, no denial of the governor to sign a commission, could deprive the person elected of his vested right to exercise the office.
    It is a mistaken notion that a commission is necessary to justify an associate judge in discharging the duties of that office. A commission is neither required by the constitution nor the law, except in cases of appointments made by the governor to fill vacancies.
    The evidence in this case is clear, that the defendant, Lemuel Moffitt, was elected an associate judge for Ashtabula county, that ho was declared by the speaker of the senate to be so elected, and that he has taken the necessary oath of' office. He has therefore a constitutional and legal right to exercise that office.
    But admitting it were otherwise, still the proceedings in this case are not such as to justify the interference of the court. The application is for a writ of guo warranto. It is not made by the prosecuting attorney, but by a private individual. On this account the rule should be discharged.
   Judge Hitchcock

delivered the opinion of the court:

*This case is one of no ordinary importance, inasmuch as its decision calls for an exposition of the constitution itself, and also for an examination into the constitutionality of some of the laws purporting to be made under that constitution. Section 8, of article 3, of the constitution provides that, “The judges of the Supreme Court, the president, and the associate judges of the court of common pleas shall be appointed by joint ballot of both houses of the general assembly, and shall hold their offices for the term of seven years, if so long they behave well.” Although this power of appointment is vested in both houses of the general assembly, still the constitution has not prescribed the particular manner in which it shall be exercised, except that it shall be by “joint ballot.” This is left to be regulated by the legislative authority, and is regulated by the joint rules of the two houses. They meet in convention, with their speakers and clerks, the speaker of the senate presiding. The ballots are collected and counted, each clerk keeping a separate check-book; and when any individual is found to have a majority of all the votes given, that individual ia ■declared by the speaker of the senate to be duly elected to the ■office to be filled. An individual thus elected has a right to the office, and can not be deprived of that right, except in the mode pointed out in the constitution. He can not be deprived of it by the mistake of the clerks, for such mistake would be corrected by the bodies by whom they are appointed. He can not be deprived of it by the neglect of the speakers; they are the organs of the ■different houses, and should they neglect any duty its perform.ance would be enforced by that branch of the legislature over which they preside. Besides all this, “An act to provide for commissioning certain officers ” (29 Ohio L. 409) contains this proviso, “ That the election of all officers elected or appointed by the legislature shall bo certified by the speakers of both houses.” .Should the two speakers refuse to sign such certificate (a circumstance by no means probable), power is vested in this court to compel them to do it. By section 3 of the practice act, 29 Ohio L. 56, the Supreme Court is authorized to issue a mandamus in •proper cases. And in case of such refusal, this would be undoubtedly a competent and proper remedy.

*The act before referred to (29 Ohio L. 409) enacts, “ That each judge of the Supreme Court, president, and associate judges ■of' the court of common pleas, sheriff, coroner, auditor, state treas.urer, militia officer, and justice of the peace, and every officer whose office is created by law, and not otherwise provided for, shall be entitled to receive from the governor a commission to fill such office upon producing to the secretary of state a legal certificate of his being duly elected or appointed.” This “ legal certificate,” in case of an officer elected or appointed by the general assembly, is a certificate signed by the speakers of both houses. Upon the production of such certificate, the governor will issue a •commission. Should he refuse, he is within the reach of the same writ of mandamus. The governor of Ohio is no less answerable to the operation of law than the most humble citizen. And it is to •be hoped that no citizen will ever fill that important office who entertains a different sentiment.

Here, then, ample provision is made whereby the rights of any officer, whose appointment is by the constitution vested in the general assembly, maybe secured. Ho is elected by joint ballot •of the two houses, met in convention. His election is declared by ,the presiding .officer. If any mistake occurs, it can be corrected! at once. Journals are kept of all the proceedings from day to day, and these journals are read in each' house every morning. Here is another opportunity to correct any mistake which may have-crept in, through accident or design, in the proceedings of the next preceding day. Or should a mistake be discovered at any time during the session, it might still be corrected. If the individual be declared by the speaker of the senate to be elected, h® is entitled to a certificate. If this be withheld, upon application to the general assembly he might compel its signature; or if h® should fail here, authority is vested in this court to grant redress in the manner before referred to.

Upon the production of this certificate the governor will issue a. commission; without it he does not possess the power.

In the case before the court the evidence is such as t¡o induce-a belief that the defendant, .Lemuel Moffitt, was elected, at th® time by him stated, an associate judge. At least *the evidence is such as would have been, in all probability, sufficient to-establish this fact, had it been exhibited]» the proper tribunal at the proper time and place. If when the journals of the house of representatives were read, on January 23, .1831, this evidence had been exhibited, there can be no doubt that that house would have-ordered the-correction of their journal, so that it would have appeared that the defendant Lemuel Moffitt, instead of Samuel Moffitt, had been, on the day preceding, elected an associate judge. If a mistake had been introduced, this was the appropriate time-for its correction.

But whether this be the appropriate evidence to prove, before a judicial tribunal, the fact of an election, by the two houses of the general assembly, is a more serious question. In section 9 and article 1 of the constitution, it is required that each house shall keep a journal of its proceedings, and publish them.” This journal, when taken in connection with the laws and resolutions, would seem to be the appropriate evidence of legislative action. It is not the action of a single member of the legislature of which I speak, but of the whole body of the “ general assembly.” The former might with propriety be proven by parol testimony, but the latter is evidenced by evidence of a higher nature. The testimony of an individual member could not be received to contradict a statute, and if not, why receive it to contradict an entry upon the journal? Besides, the principle that an election might be-proven by parol, would be fraught with danger. Where is .the man, who has been for years a member of the legislature, possessed of a memory so tenacious, that he can undertake to state the-names of the individuals for whom he has given votes for the office of associate judge, or for other offices? I presume he cannot be found.

But suppose this evidence is competent, even before a judicial1 tribunal, is it sufficient to justify the defendant? Giving it the greatest latitude contended for by his counsel, it amounts to no-more than this, that he was elected an associate judge and that he •took the oath of office. It is not pretended that a certificate of this election was ever signed by the two speakers, or that he ever-received a commission. In fact the ground assumed is, that a commission is ^unnecessary. It may be well to refer to the several statutes which are connected with this subject.

The “act declaring offices vacant in certain cases, and to-provide for filing the same,” passed January 25, 1813, 29 Ohio L. 407, contains this provision, in section 1, “Every commission-that may be hereafter issued by the governor, to any judge of the-Supreme Court, president or associate judge of either of the courts of common pleas, shall be transmitted by the secretary of state to-the clerk of the court of common pleas of the county wherein such judge may reside; and it is hereby made the duty of the clerk to receive and transmit the same to the person entitled thereto;, whereupon such person, having received such commission, shall take the oath required by the constitution and laws of this state, and transmit a certificate thereof to the same clerk, signed by the-officer administering such oath or affirmation, within twenty days-after he shall have received such commission.

In section 2 of the same act it is provided that if a certificate-as aforesaid is not transmitted to the clerk within the said twenty days, the person entitled to the commission shall be deemed to have-' refused to accept the office, and the same be considered as vacant. This law prescribes the mode in which a person elected to am office shall signify his acceptance. And it will be apparent, at first blush, that some provision of this kind is necessary; otherwise there might be no individual, for a time at least, to fill am important station.

Next in order comes the statute “to provide for commissioning; .certain officers,” passed February 26, 1816. 20 Ohio L. 409. This .statute has already been referred to, and it is unnecessary here to ■say more than that it contemplates that all the officers therein ■named shall be commissioned.

I will next refer to section 5 of the “act to organize the judicial courts,” enacted March 18, 1831. 29 Ohio L. 57. The provision in this section is explicit, “that the judges of the Supreme Court and presidents and associate judges of the court of ■common pleas, before they proceed to execute the duties of their ^respective offices, shall each take an oath or affirmation to administer justice without respect to persons, and to do equal right to the poor and to the rich, and faithfully and impartially to discharge and perform all the duties incumbent on him as a judge, according to the best of his abilities and understanding, ¡.agreeably to the constitution and laws of this state, and have the ■some indorsed on his commission.”

Now taking all these statutes together I draw from them these .inferences: that every man before he presumes to exercise the office of a judge must have a commission, must signify his acceptance of the appointment, and must take an oath of office, and have •the same “ indorsed on, his commission.” By taking the oath he signifies his acceptance, but he is expressly prohibited from dis- ■ charging the duty until the “ indorsement ” is made. This may be considered as a mere trifle, as useless formality. But shall a man who assumes the character of a judge treat any part of the law as insignificant and trivial? It would rather become him to ■ be scrupulously exact in his compliance with every scintilla of ■law. Let others, if they will, complain of the unnecessary provision • of any statute or of any other principle of law, but such language ■ does not become a judge. Let me not be misunderstood ; it is not the commission issued in pursuance of these statutes which confers the right upon the officer. The right is derived from the election .■or appointment, of which the commission is only evidence. But it is evidence without which the officer can not proceed to act officially.

It would seem, upon an examination of these statutes, that •there must be an end of the question before the court, so far as it respects the right of the defendant to exercise the duties of the -office which he has assumed, there being no evidence that he •was ever commissioned, or even that it was ever certified by the speakers of the two houses that he had been elected. This court believe a commission to be the only evidence of the right, unless it be shown that these several statutes are a violation of the constitution.

This, although not expressly alleged, seems to be insinuated by the counsel for the defendant. But with what particular part of that instrument they interfere is not suggested. Upon examination of the constitution it will be *found that there is no express provision that any officer shall be commissioned, except in case where a vacancy happens, during the recess of the legislature, in any office the power to fill which is by the constitution vested in the general assembly. In such case, the governor is authorized, by section 8 of article 2, to fill such vacancy by granting a commission, the commission to expire at the end of the next session of the legislature. But that it was intended that. commissions should be issued is sufficiently apparent from other parts of the constitution. Section 15 of the same article is as follows: “All grants and 'commissions shall be in the name and by authority of the State of Ohio, sealed with the seal, signed by the governor, and countersigned by the secretary of state.” In article 5, reference is had to commissioned officers. Had these clauses been omitted, still the court can not doubt but these laws would have been constitutional. A law authorizing any other body than the general assembly to appoint a judge for the term, of seven years, or for any period of time beyond the close of the next session of the legislature, would infringe the constitution. Because this power is by that instrument expressly delegated to • that body. The constitution, however, has not prescribed the form of the oath of office; the legislature, therefore,' might prescribe it, not being prohibited. Neither does the constitution describe the evidence which shall exist that an individual has been appointed to an office. The legislature have done it by providing that evidence shall exist in a commission executed according to the form of the constitution. We see no usurpation of power in all this, but a course of legislation which tends to the-convenience and well being of the community. The constitution provides, article 8, section 1, that sheriffs and coroners shall be-elected by the citizens of the several counties, and goes no further. Are the laws, therefore, which require that these officers shall be-commissioned,Ahat they shall give bonds and take oaths of office, -unconstitutional ? It can not be successfully contended.

To sustain the right of the defendant in his case, his counsel rely on the case of Marbury v. Madison, 1 Cranch, 137. It will be found, however, that that case is not analogous to *the present. Mr. Marhury had been appointed justice of the peace for the District of Columbia, by the President of the United States, by .and with the advice and consent of the senate. A commission witnessing that appointment had been signed by the President, countersigned by the secretary of state, and sealed with the great ■seal of the United States; and was deposited in the office of the ¡secretary of state. The case before the court was an application for a mandamus to compel Mr. Madison to deliver over this commission. ' The court held that the appointment was complete, that •¡the applicant had a vested right in the office, and was entitled to the commission; but they discharged the rule because they had ■not jurisdiction of the case.

Had this case been an application, on the part of Mr. Moffitt, for .a mandamus to the speakers of the two houses, to compel them to sign the certificate of his election, or the governor to compel him to sign a commission, it would have been somewhat analogous to •the case in Cranch, but now it is not. Mr. Moffitt has assumed to act without a commission and in contravention of the law. Under these circumstances, it is clearly the opinion of the court that he has acted without authority, and that he has not, so far as appears from any evidence now before us, any right to exercise the office • of associate judge for Ashtabula county.

To decide otherwise would involve the community in great difficulty. Almost every officer in this state is elected by the legislature, or by the people, and the laws have made ample provision ' for the evidence with which the individual elected shall be furnished of his election. If these laws-were to be disregarded, and the fact of the election should be left to be proven by the frail memory of the electors, it is not possible to conceive of the confusion which would follow. Still this is substantially the prih- ■ ciple which we are urged to adopt, and which we must adopt, in • order to justify the course pursued by the defendant. We can not • do it.

It is objected, for the defendant, that the case is not properly ■before the court. Writs of quo warranto have been issued by this court; or rather rules to show cause why such writs should not issue have been granted. Still no course of practice has been, until last year, settled by the court. It is ^matter of regret that the legislature have not acted upon the subject, prescribing the course of proceeding and settling the law.

In the case before the court, the application for the writ is made by a private individual. In the case of the Bank of Mount Pleasant, decided at the last term, 5 Ohio, 249, it was ruled that an application for a writ of quo warranto against a corporation should •be made by the prosecuting attorney of the proper county, unless •otherwise ordered by the court. The same reason operates where the writ is to issue against an individual as against a corporation. According to the authority of that case, the proceedings in the •case before the court are irregular, and the application must be ■dismissed at the costs of the applicant.


text:
    Lessee of Andrew Carlisle v. Nicholas Longworth.
    A deed from the county auditor, for lands sold for taxes, can not be received in evidence, without transcripts of the various records of the proceedings upon which the sale was founded.
    Reserved in the county of Ross, upon a motion for a new trial. The action is ejectment for recovery of a part of in-lot number •nineteen in the town of Chillicothe.
    On the trial to the jury, the only evidence, on the part of the plaintiff, was a deed executed by John McLean, auditor of Ross county, conveying to the plaintiff the premises in controversy. The deed was dated February 22, 1831, and is predicated, as appears from its face, upon a sale of the land for taxes, which sale was made on December 29, 1828. To the reception-of this deed without some other evidence to show the sale of the land, the counsel for the defendant objected. But upon this question, the court being divided in opinion, the deed went to the jury. No further evidence being offered by either party, the jury were instructed that the deed was prima facia evidence of *title in the plaintiff, and being uncontradicted, they were bound to return-a verdict for the plaintiff.
    This was accordingly done, and the defendant moved for a new trial: 1. Because the court erred in admitting the deed as evidence. 2. Because the court erred in instructing the jury that the-plaintiff was entitled to recover upon the exhibition of the deed-, alone, without further evidence of the sale of the lands, etc.
    Brush, in favor of the motion:
    Urged that tax sales were not to be viewed by the court with a more favorable eye than was required by the statute. In other words, that the several statutes authorizing the sale of lands for taxes, should be-construed strictly, and that the officers acting under those statutes should be held to strict compliance with both; their letter and spirit.
    He further insisted that under the act of February 1, 1825, 23 Ohio L. 89, “to amend the act entitled ‘an act defining the-duties of county auditor,’ ” although it was declared that the auditor’s deed should be prima facia evidence of title, still if could not be such evidence unless made in pursuance of that act. That it had been thus made it was incumbent upon the party claiming title under such deed to show. To hold otherwise would be reversing the rules of evidence. Instead of holding one party to prove the affirmative of a fact, it would be calling upon an opposite party to prove a negative.
    It never could have been the intention of the legislature to give-greater effect to a deed made by a county auditor than to one made by a sheriff. A party claiming under a sheriff’s deed must show a judgment, execution, levy, and sale. So, a party claiming under an auditor’s deed, must show a tax delinquency for nonpayment, and sale. These are all matters of record, and can be as easily imoven as the existence of a judgment. At least they are matters of record if the county auditor does his duty, for by the statute he is bound to record them.
    The decision of the court upon the circuit establishes the principle that a deed made by a person styling himself ^county auditor, and who actually is such, is prima facie evidence of title, whether or not there has been a tax sale — a principle unsound and dangerous.

      Douglass, in opposition to the motion:
    Insisted that, under the law of 1825, the auditor’s deed was“prima facie evidence of title,” and uncontradieted must be conclusive. That the language made use of by the legislature, in section 9 of this act, was clear and explicit, and ought not to be construed away to favor those who had not contributed to the public burdens. He insisted that it was manifest that the legislature had intended to secure to the purchaser at tax sales a title; and that they had been more explicit in consequence of the doubts-which had heretofore prevailed with respect to these titles and the many decisions of the courts against them;
    He then went into a critical examination of the several laws upon the subject of the sales of lands for taxes, pointing out the defects of the more ancient, and the remedies applied by the more modern statutes. He compared the statutes relating to auditors and sheriffs’ deeds, and insisted that the former had the preference, because they were evidence of title, while the latter were-only evidence of the legality of sale.

    As to the danger to be apprehended from admitting the auditor’s deed, unaccompanied by other evidence, it was imaginary. The only question in fact was, whether this evidence should be introduced by a plaintiff or defendant.
   Judge Hitchcock

delivered the opinion of the court:

The only question for the consideration of the court in this caso is, whether under the “ act to amend the act entitled an act defining the duties of county auditor,” the deed of the auditor, purporting to be executed in his official capacity, is, of itself, prima facie evidence of title. And its decision must depend upon a sound construction of that act. In giving this construction, I trust we shall not be influenced by any private feeling upon the subject of the sale of lands for *taxes — a feeling which, it would seem to be insinuated by the counsel for the plaintiff, has heretofore operated too much in our courts. In fact, we have no-feeling of antipathy to such sales. It is right and proper that every man who has property to be protected by the government should contribute toward the support of the government, and if he will not do it without, it is right and proper that his property should be disposed of for this purpose. Further, it is for the interest of all concerned that tax sales should be sustained whenever they can be. The greater the certainty of this description of title, the greater the value which will be attached to the land at the sale, and the less the quantity sold to pay the tax. ' But still wo ■can not sustain a sale unless the proceedings have been regular; nor can we decide in favor of a title, unless that title is sustained by competent evidence. The mere circumstance that it is derived from a tax sale, secures to it no peculiar favor. It must, notwithstanding this, be subject to the general rules of law and evidence.

This statute is found in 23 Ohio L. 89, and it will bo necessary to exami ne several of the sections preceding that which authorizes the county auditor-to make deeds.

Section 2 requires of the auditor to take from, the collector each ■year a duplicate list of all such taxes as the collector has been unable to collect, describing in such list, as the same are described ■in the duplicate, the several taxes “ returned delinquent.” The collector is required to sign this list and testify under oath to its correctness.

In section 3 it is made the duty of the county auditor, immediately after the first Monday in June annually, to make out a list of all lands and town lots returned by the collector as delinquent, describing therein the lands according to the entries in the duplicate, charging thereon the tax and interest of the preceding year, together with twenty-five per cent, penalty and the tax of the current year. He is further required to certify and sign the -same, and have the same published, in some newspaper circulating in the county, six several times between the said first Monday of June and the first day of September thereafter, attaching to said list a notice that unless the taxes, interest, and penalty shall *be paid before the last Monday of December next thereafter, the lands, or so much thereof as may be necessary to make such payment, will be sold on that day at the court-house in .the county.

These two sections show how the fact of the delinquency is to be ascertained, and the steps which must be taken preliminary to a sale.

Section 4 enacts “ that the county auditor shall record, in a book to be by him provided, the advertisement aforesaid, and shall certify at the foot of such record theo name of the newspaper wherein the same was published, within a reasonable time after such advertisement shall have been published.”

By section 5 it is made the duty of «the county collector, by him•self or deputy, on the last Monday of December, to attend at the court-house and offer for sale the lands which are mentioned in the advertisement, and which are still delinquent; and it is further made the duty of the county auditor, by himself or deputy, ■“to attend during the whole time, until the whole of the lands .and town lots contained in the said advertisement shall have been sold.or offered for sale as aforesaid, and to make a record in a substantial bo ok of all sales made by such collector or his deputy, as of the day when the sale commences, describing the several tracts,” etc., “ and who was the purchaser thereof.”

Section 6 requires the, county auditor to give a certificate of purchase to the purchaser. And when a part only of a tract or town lot has been sold, specifies the manner in which the county surveyor shall survey it off, and upon the production of the certificate and plan of survey of the county surveyor, by the purchaser, it authorizes the county auditor to “ execute and deliver to the purchaser or purchasers a deed for the land or part of town lot so purchased and surveyed as aforesaid, which deed shall convey to ■the purchaser or purchasers a good title in law and equity to the land or part of town lot so sold.”

Sections 7 and 8 relate to cases where the whole tract or lot is sold, and where lands sold belong to joint tenants or tenants in common.

Taking all these sections of the statute in connection with ^section 9 together, it is clear that the legislature have been ■particularly careful to secure the rights of the proprietors of land, •as well as those who shall purchase at tax sale. A particular course must be taken by the collector and county auditor that the lands may be returned as delinquent. When delinquent, notice must be given in the public papers by advertisement, and further ■time is given for the payment of the taxes. This advertisement is to be recorded in the county auditor’s office, which will perpetuate the fact of its having been duly published, and also the name of the newspaper in which the publication is made, that any per•son interested may resort to that paper to ascertain whether everything has been fair and legal.

In addition to this, the fact of sale is not left to be proven by •parol, but is also made a matter of record. When the requisitions of the statute are complied with, and a deed made by the county auditor, that deed “, shall convey to the purchaser or purchasers a good title in law and equity to the land or part of towu lot sold.”

Had the statute stopped here, it will not be contendedbut that before a person claiming this good title could avail himself of it, he must show that the statute, in all its essential requisites, had been conformed to or complied with. It is only when the deed is made-in pursuance of the statute that it conveys this “good title.” If not in pursuance of the statute, although executed by a county auditor, it would convey nothing.

Had the statute stopped here, and were it to- be construed according to its letter, it might, and in some instances would, have-operated to do manifest injustice. The deed of the auditor conveys a “good title in law and equity.” By this I understand a perfect and indefeasible title.” Now it has so happened, and does so-happen", that the same lands are sometimes listed to different persons. In other words, they are twin taxes; mistakes of this kind are not as frequent as formerly, but they still occasionally occur.. Suppose such a mistake, and suppose further, that the rightful, ■owner pays the tax. It is not to be supposed that the person in-whose name it may be listed will pay the tax. If he does not, the land is returned delinquent and sold. No one can doubt *the-injustice of depriving the rightful owner of the land upon which he has paid the tax; but such must have been the effect had this statute been closed with the sections referred to, because the purchaser, having the auditor’s deed, has a “good title.”

Other hypothetical cases might be mentioned where the same iniquitous consequences would be produced. Does any one believe that such could have been the intention of the legislature?

It was to prevent consequences of this kind, as I apprehend, that section. 9 was introduced in these words: “ The deed made by the county auditor, as hereinbefore specified, shall be received in all courts as prima facie evidence of a good and valid title in the purchaser,” etc. This is clearly a qualification of the general phraseology of section 6. If the deed conveyed a “ good title,” it would convey a title which could not be controverted, but inasmuch as it-is only “prima facie evidence” of a good tille, it may be controverted, and he that hath better right may prevail against it.

It is urged, however, that this deed, being 11 prima facie evidence,” needs no other evidence to sustain it, but becomes conclusive unless contradicted. The legislature do not say that a deed made by ■the county auditor “shall be received as prima facie evidence of a .good and valid title,” but “ the deed,” “ as hereinbefore specified.” In other words, the deed made by the auditor in pursuance of this :act. This is the manifest intention. Unless made in pursuance of the act, it is made without authority and void; but if in pursuance of the act, it is “ prima facie evidence ” of title.

Before the deed made by the county auditor can be received as •evidence, it must be shown that he had authority to make it. 'This is done by showing that the lands had been advertised and sold for th.e taxes. All this is required to be made matter of record in: the auditor’s .office, and there can be no difficulty in procuring the evidence. In connection with this preliminary evidence, the deed will be received, and the legislature has declared its effect.

Reference has been made to the judgment and execution law in ai’gument. That law provides that the sheriff’s deed shall be ■“prima facie evidence of the legality of sale.” The *law •under consideration declares the auditor’s deed shall be “prima fade evidence ” of title. It is supposed that inasmuch as there •is this difference of expression, therefore, in the latter case no additional testimony is necessary. But we must look to the different effect of these deeds. The sheriff’s deed purports to convey nothing more than the interest of the judgment debtor in the premises sold. The auditor’s deed purports to convey title, whether that title be in the person in whose name the land is listed or in that of any other person. An individual claiming under a sheriff’s •deed, in addition to the exhibition of the deed accompanied by the necessary preliminary evidence, must prove title in the judgment • debtor previous to the sale, unless the action be against the judgment debtor himself; but no such additional proof is required of Rim who claims under a sale for taxes. But in either case it is necessary to prove that the officer making the deed had authority ■to perform that act. Or rather it must bo shown that the sheriff had authority to sell, and that the auditor had authority to make ■the deed, by showing that a sale had been made.

Upon the whole, a majority of the court are of opinion that ■there was error in the admission of the deed in evidence, and also’ in the instruction to the jury that the deed of itself was sufficient evidence of title in the plaintiff to make him recover. Therefore anew trial must be granted, the costs to abide the event of the suit..

Judge Collet dissented.