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.

O ELDRED v. SEXTON.

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

Justifa for Reega frok form for non pays of tax offax event rep" of bungen

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.

au

officer

proof that heachd as such is at least PER CURIAM. The question raised in the case seems to have been pf.ev. that he was 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.

Paroles. admiss

to prove that Fruder & collector of a SD

justif" of lan fn op staxa porrs

McCoy sued Curtice in an action of trover for a watch. The de- are really such fendant 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 appointment. This 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.

* *

* 21

Judgment affirmed.

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

right he must

When an && Quesor defends in lus own
PATTERSON v. MILLER. Show a valid litte

(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.

act for seegure esale. Justifras

Miller and William H. Haynes, to recover damages for an alleged il- Sheriff under aux

legal seizure and sale by them of his personal property. The plaintiff stated in his petition that the defendant Miller pretending to be the

Er ofbeingshery sheriff of Russell county, when in reality he was not the constitutional effelen

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

offered

record stung
he had qualified
bond.
+ Swm

Rf offered Lofrons such seized the property in the petition mentioned, and made sale notaresident thereof, under and by virtue of two executions which issued from the fatlume of office of the presiding judge of the Russell county court, and were

of

soundly=

under Constit

Ev rejected

Huld shs have bee

placed in his hands for collection; and the defendant Haynes, in his
answer, admitted that he had purchased the property so sold, and in-
sisted 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 admitted
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 exe-
cuted 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 of-
fice. 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.

If consth weligh he isutlawfully sheuff

termine. Such acts would, however, according to well-settled principles, be legal and valid, so far as third parties were concerned.

But where a person is constitutionally ineligible to an office, he will not be the lawful incumbent thereof, although he may be elected, obtain a certificate of his election from the examining board, take the oath of office, and execute the bond prescribed by law. Are the acts of the officer in such a case legal to any extent; and, if so, to what extent are they legal?

His act colore offici As he holds his office by color of right, and acts as sheriff, all his Husact

are valed

as far

ass are concion

Buthere it is ilus omnin defence he sets uplusetfre

acts as such are regarded as lawful, so far as third parties are concerned. Public policy requires that they should be so regarded, and that his official authority should not be questioned collaterally. He acts as the sheriff of the county, and it is to the interest of its citizens that his acts should be declared to be valid, so long as he continues thus to act. It has been accordingly held that a person unconstitutionally commissioned a justice of the peace was an officer de facto, and his acts valid as to third persons. Justices of Jefferson County v. Clark, 1 T. B. Mon. 86; Wilson v. King, 3 Litt. 459, 14 Am. Dec. 84. He remains an officer de facto, until his office shall be declared to be vacant or forfeited, by a direct proceeding against him, instituted and carried on for that purpose. Stokes v. Kirkpatrick, 1 Metc. 143.

Can he, however, in an action against himself, for acting as sheriff, and seizing and selling the property of the plaintiff without lawful authority, defeat the right of recovery, by showing that he acted as an officer de facto, or by relying on his certificate of election and qualification in the county court, as conclusive evidence that he was the lawful sheriff of the county?

The principle is well established that, although the acts of an officer de facto are valid as to third persons, nevertheless they are invalid so far as he is himself concerned; and his mere color of title to the office will not avail him as a protection in actions against him for trespasses on person or property. Rodman v. Harcourt, 4 B. Mon. 229.

It only, therefore, remains for us to inquire whether the certificate of election and the fact that he qualified and gave bond in the county court, as prescribed by law, furnish conclusive evidence that he was the lawful incumbent of the office of sheriff of Russell county.

The examining board is constituted by law for the mere purpose of comparing the polls, and giving a certificate of his election to the candidate having the largest number of votes, according to the returns. which have been made by the officers who conducted the election at the different places of voting in the county. It is not the duty of this board to examine into or decide upon the qualifications of the candidates for the office to which they are elected. Consequently the certificate which it issues to a candidate that he is elected to an office is not even prima facie evidence that he was eligible to the office, although conclusive evidence that he was elected thereto, unless his election be contested before the proper board.

The duty which the law devolves upon the county court, in regard to the sheriff, only extends to the administration of the appropriate oath of office, and the taking of a bond with sufficient sureties to be approved of by it. The performance of this duty is incumbent on the county court whenever a person claiming to be entitled to the office of sheriff presents a certificate of his election from the proper board. The court has no power to inquire into his eligibility, or to refuse to permit him to qualify and execute a bond according to law, on the ground that he is ineligible to the office. Consequently, the fact that he has qualified and given an official bond in the county court as sheriff cannot be relied upon to prove his eligibility to the office.

* * *

We decide, therefore, in this case, that as Miller acted under color" of title to the office of sheriff the sale made by him under the executions in his hands is sufficient to protect the purchaser. But if he were constitutionally ineligible to the office of sheriff when elected, the law will not so far encourage a violation of the Constitution as to permit him to protect himself under a mere color of authority, exercised in opposition to an express mandate of the Constitution, when,' too, he must have known that his title to the office was not legal, and, therefore, that all his acts as sheriff were without authority and against law.

The court below, therefore, erred in rejecting the evidence, which was offered to be introduced on the trial, to prove that Miller was not a resident of Russell county when he was elected to the office of sheriff. Wherefore the judgment is reversed, and cause remanded for a new trial and further proceedings not inconsistent with the principles of this opinion.

The judgment for the appellant's costs in this court must be against Miller alone.23

SECTION 18.—DE FACTO OFFICE AND AUTHORITY

cluse cant refuse to record road survey of de facto commit.

PEOPLE ex. rel. BUSH v. COLLINS.

(Supreme Court of New York, 1811. 7 Johns. 549.)

An alternative mandamus was directed to a town clerk, commanding him to record the survey of a road, pursuant to the act (Laws 24th Sess. c. 186), or show cause; and the clerk returned that he did not record the survey because the commissioners had not taken the oath of office, and filed a certificate of the oath with the clerk, according to the act.