SECTION 17.—EVIDENCE OF OFFICIAL CHARACTER

JOHNSON v. STEDMAN.

(Supreme Court of Ohio, 1827. 3 Ohio, 94.)

This cause came up on a motion for a new trial, adjourned here from the county of Meigs. It was an action of trespass for taking and converting goods. The defendant pleaded that he was a constable, and that an execution was put into his hands to be levied, by virtue of which he took the goods in question as the property of the defendant in execution, the now plaintiff. Upon this plea issue was joined. At the trial the defendant, to establish the fact that he was a constable, offered parol evidence, and no other, that he acted and officiated as constable of the township at the time the levy was made. The plaintiff objected to the admission of this evidence, but the court received it, and a verdict passed for the defendant. A motion was made for a new trial, upon the ground that improper testimony was admitted; maintaining that the actual appointment in writing, and other requisites, should be produced in evidence.

HITCHCOCK, J.19 The question now presented to the court was considered at the last term, in the case of Barret v. Reed, 2 Ohio, 409, but, inasmuch as there was some difference of opinion, and that case was decided upon a different point, was left undetermined.

But one serious objection is made to the admissibility of the evidence received on the trial of the issue in this case. It is this: That if such testimony is received, the rule "that the best evidence which the nature of the thing admits, and is capable of, must always be given," will be violated.

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Constables in Ohio are township officers, although in some few instances they may serve process in any part of the county. They are elected by the people at their annual township elections, and any person elected and refusing to serve is subject to a penalty. Within ten days after the election, the individual elected is to take an oath of office, which oath may be administered by the township clerk, or any other person having general authority to administer oaths. In addition to this, before entering on the duties of his office, he must give a bond with one or more sureties, to be approved of by the trustees of the township, for a sum not exceeding two thousand dollars, payable to the state of Ohio, conditioned for the faithful discharge of those duties. The election, the giving of bonds, the approval of the sureties, the administration of the oath of office, ought to be noted by the township clerk in his book of record. This would undoubtedly

19 A portion of the opinion is omitted.

be done should the clerk, and every other officer concerned, do their duty. The constable, however, receives no certificate or other written document to prove his official character and qualifications. The best evidence "the nature of the thing admits of" to prove this official character would undoubtedly be the township records, provided these records had been properly kept. Experience, however, teaches us that in many parts of the country these records are so loosely kept that we are, from necessity, compelled to resort to evidence of a secondary nature.

Under these circumstances, does either policy, justice, or law dictate that, in cases like the present, we should strictly adhere to the rule that the best evidence which the nature of the thing admits of and is capable of shall be given? So far as it respects third persons, there is no doubt on the subject. Where such persons are interested, it is believed to be the practice of all courts to permit them to prove that an individual who claims to be a public officer is such de facto, without requiring them to prove that he is such de jure. The great danger which will result from adopting the same rule of evidence, where the officer himself is a party, is not readily conceived. There is a difference, it is true, between the two cases. Every man who undertakes to exercise the duties of an office ought to know whether he is legally qualified, while this knowledge cannot be supposed to extend to others. This difference of circumstances, however, is not so great as to require a difference in the rule of evidence.

In deciding this question, it may not be improper to turn our attention for a moment to the nature of those suits in which constables or other ministerial officers are parties. In some cases the principal question is whether the party is, or is not, an officer de jure. But such cases are not of frequent occurrence. Were it otherwise, it might be expedient to adopt a different rule of evidence. It is believed, however, that in ninety-nine cases in a hundred this is a question of secondary importance. The object more generally is to determine the right of property, the legality of process, the validity of an arrest, or something of a similar nature. In most of these cases, to require of the party, claiming to be a public officer, proof that he had complied with every requisite of the law to qualify him to act, would be attended with unreasonable inconvenience to him, without any commensurate advantage to his opponent.

In the case before the court, the real question in dispute was not whether Stedman was a constable, but whether the house which was the subject-matter of litigation was the property of Johnson, the plaintiff, or the property of Hollingsworth. Under these circumstances, the evidence was properly received. It was sufficient for the purposes of this case to prove that Stedman was a constable de facto.

The principle here decided is supported by high and unquestionable authority. In the case of Potter v. Luther, 3 Johns. 431, the Supreme Court of the state of New York say: "It is a general rule to

admit proof by reputation that a person acts as a general public officer or deputy." In Berryman v. Wise, 4 Term, 336, the Court of King's Bench, in England, decided that in the case of all peace officers, justices of the peace, constables, etc., it was sufficient to prove that they acted in these characters, without producing their appointment. This, to be sure, was the expression of Justice Buller; but, from an examination of the case, I am satisfied it was the opinion of the whole court. So in Esp. Dig. 783, it is laid down that cases similar to the one under consideration are exceptions to the general rule "that the best evidence, etc., must always be given."

Upon the whole, we are of opinion that the motion for a new trial must be overruled and judgment entered on the verdict.

ELDRED v. SEXTON.

(Supreme Court of Ohio, 1831. 5 Ohio, 215.)

Action of trespass against the treasurer of a school district for taking and converting a yoke of oxen, which were seized for nonpayment of a tax.

PER CURIAM. The question raised in the case seems to have been settled by this court, in the case of Johnson v. Stedman, 3 Ohio, 94. In that case it was decided that a person, who has justified an act upon the ground that he was a constable, might establish his official character by general reputation and proof that he acted as such. We are not disposed to change the principle established in that case. In fact, we are satisfied that it is more consistent with the ends of justice than to establish a contrary rule of evidence. We do not say that such evidence is conclusive; but that it is prima facie, and, unless contradicted, must be conclusive.20

McCOY v. CURTICE.

(Supreme Court of Judicature of New York, 1832. 9 Wend. 17, 24 Am. Dec. 113.)

Error from the Orange common pleas.

McCoy sued Curtice in an action of trover for a watch. The defendant pleaded the general issue. The plaintiff proved the taking of the watch and its value. The defendant justified as collector of a school district, viz., school district No. 15, situate partly in the town of Warwick and partly in the town of Goshen, in the county of Orange. He produced a warrant, signed by S. Jayne and J. Fox, as trustees of

20 See Case v. Hall, 21 Ill. 632 (1859), defendant desiring to justify as officer must allege that he has been duly elected and has qualified; Rounds v. Mansfield, 38 Me. 586 (1854), must prove that he has qualified.

the school district, commanding certain moneys to be levied as a tax, and amongst others of McCoy, and proved by parol that Jayne and Fox were reputed to be, and acted as, trustees of the district, and also proved by parol that he, the defendant, had acted as collector, and that as such collector he had levied upon the watch of the plaintiff. The plaintiff objected to the parol evidence when offered, but the objection was overruled. He also objected to the warrant being received in evidence, until the erection of the district was shown by the production of the records of the towns of Warwick and Goshen, and insisted that, even were they produced, the warrant was illegal in having been issued by only two instead of three trustees. These objections were also overruled. The jury, under the charge of the court, found a verdict for the defendant, and the plaintiff sued out a writ of error.

SUTHERLAND, J. It is a general rule in relation to all public officers that they may establish their official character by proving that they are generally reputed to be, and have acted as, such officers, without producing their commission or other evidence of their appointThis is well established, as to all peace officers, sheriffs, constables, justices of the peace, etc. 4 T. R. 366; Potter v. Luther, 3 Johns. 431; Cowen's Tr. 572, note "m"; Young v. Commonwealth, 6 Bin. (Pa.) 88; Fowler v. Bebee, 9 Mass. 231, 6 Am. Dec. 62; People v. Collins, Johns. 549; McInstry v. Tanner, 9 Johns. 135; Reed v. Gillet, 12 Johns. 296; Wilcox v. Smith, 5 Wend. 231, 21 Am. Dec. 213; 16 Viner, 113, 14.

In Rex v. Jones, 2 Campb. 131, a letter was permitted to be read purporting to be from the lords commissioners of the treasury, without any evidence except what appeared on the face of the letter that they were commissioners. That, too, was a criminal case, and it was distinctly objected on the part of the defendant that the authority of the commissioners should be shown by producing the commission by which they were appointed. The trustees and collector of a school district are regular officers, annually chosen, with powers and duties well defined and regulated by statute; and it is not perceived why their official characters may not be shown in the same manner as that of a justice of the peace or a constable. They are officers of almost equal notoriety, and the duties of a collector are very much of the same nature, as those of a constable. Laws 1819, p. 198, §§ 20 to 25.

I am inclined to think, therefore, the parol evidence upon these points was admissible. Whether it was sufficient or not is a question which does not arise on this bill of exceptions. The objections are specifically to the nature of the evidence, and not to its defect or sufficiency.

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21

Judgment affirmed.

21 For rest of opinion, see ante, p. 89.

PATTERSON v. MILLER.

(Court of Appeals of Kentucky, 1859. 2 Metc. 493.)

Chief Justice SIMPSON delivered the opinion of the court.22 This action was brought by William F. Patterson against James P. Miller and William H. Haynes, to recover damages for an alleged illegal seizure and sale by them of his personal property. The plaintiff stated in his petition that the defendant Miller pretending to be the sheriff of Russell county, when in reality he was not the constitutional sheriff of that county, unlawfully and without authority took into his possession and sold a sorrel mare, the property of the plaintiff, and that the defendant Haynes purchased said mare at the aforesaid illegal sale and converted her to his own use.

The defendant Miller averred in his answer that he was the sheriff of Russell county, duly elected and qualified according to law, and as such seized the property in the petition mentioned, and made sale thereof, under and by virtue of two executions which issued from the office of the presiding judge of the Russell county court, and were placed in his hands for collection; and the defendant Haynes, in his answer, admitted that he had purchased the property so sold, and insisted that he had a right to make the purchase, as the property was sold under execution by a person who was acting as sheriff of the county.

The defendant Miller read as evidence upon the trial the certificate of his election as the sheriff of Russell county, and the records of the county court, by which it appeared that he had qualified and executed an official bond as sheriff, according to law. The plaintiff then offered to prove that Miller was not a resident of Russell county at the time he was elected, but was then, and still was, a resident of Adair county. This testimony was rejected by the court on the ground that the certificate of the examining board was conclusive evidence, not only of Miller's election as sheriff, but also of his eligibility to the office. The court, however, decided that evidence might be offered to show that he had removed from the county since his election, although evidence that he was not a resident of the county at the time of his election was inadmissible. The correctness of this decision of the court below is the only question presented for our consideration.

By the sixth article of the Constitution it is provided that no person shall be eligible to the office of sheriff who has not resided one year next preceding the election in the county for which he is a candidate. * * * Whether the acts of a sheriff, who has forfeited his office by a removal from the county, would be valid, and could be relied on for his own protection, until his office should, by a direct proceeding against him, be declared vacant, it is not necessary now to de

22 Only a portion of the opinion is printed.