Storer, in support of the demurrer.

V. Worthington and N. Wright, contra.

By the COURT.

The bill, in this case, represents, that under a proceeding altogether illegal and void, but nevertheless under legal color, the defendants are about to sell a part of the real estate of the complainant, and prays the interference of the court, in the exercise of its chancery powers, to restrain them by injunction. The demurrer, and the argument in support of it, admit the truth of the allegations, and deny that this court can aid the party. If this be a tenable position, it results, that public officers, having authority to operate upon the property of their fellow citizens, must be permitted to proceed, however illegal, unjust or oppressive their conduct may be. It follows, too, that the property of a citizen may be exposed to sale, under circumstances that render it impossible for the parties to know whether a title can pass or not. Thus involving great hazard to all concerned, and perplexing the titles to real estate, for no beneficial purpose to any person whatever. If such be the rule of the law, we must so administer it. But nothing short of a series of repeated adjudications, would be sufficient to demonstrate that the law is so settled.

The authorities which have been referred to, do not lead to the conclusion insisted upon by the defendants. They all proceed upon the principle, that in very many cases, this court may interpose to prevent mischief, and to protect individuals in the enjoyment of their rights. Where aid has been decreed, it has always arisen from the circumstances of the particular case. And the confusion and seeming contradictions in the cases, are occasioned by the dicta of the judges, and not by any confliction in the principle decided.

In regard to real estate, it is well established, that chancery may interpose by injunction, to prevent what is considered as destruction. But destruction in the sense used, does not mean annihilation. It means no more than that injury which greatly impairs its intrinsic value. In a city, the sale of part of a lot for assessments, may often be very destructive to the interest of the proprietor, though no title passed by such sale. A cloud would be cast upon the title, which litigation only could remove, and until removed, the property might be valueless to the owner, subject too, during the period of litigation, to additional assessments and embarrassments.

When an assessment of a tax is made, and its legality disputed, the uncertainty attendant upon the final result, puts the estate upon which it operates in imminent jeopardy. If no title pass by a sale, the party has remedy at law. He can defend his possession: but if the title do pass, he is remediless altogether. A mode, therefore, of deciding the question before any right is affected, is safest for all parties. It was upon this ground, the court entertained jurisdiction in the case of The Bank of the United States v. Shultz, from which, in principle, this case is not distinguishable.

The defendants concede that if a sale were made, this bill might be sustained under our statute. To sustain it now, is clearly within its letter. A claim is set up, not to enter in and enjoy under title, but to create a title under which an

other may so enter. Setting up a claim to dispose of the title, is "setting up a claim thereto," which are the terms employed in the statute. The case is clearly within the mischief to be remedied, as it is within the words of the law. The power to interpose, might be safely grounded upon the statute alone. But we think it stands upon the general principles that govern the court, with respect to injuries to which no other adequate remedy can be extended.

Consequences that might ensue, in respect to the collection of revenue, furnish no reason why the court should not interpose. The application for an injunction, is addressed to the sound discretion of the judge who a llows it, and there is no reason to apprehend that it will be allowed upon trivial grounds. The case of The Bank United States, v. Osborn and others, 9 Wheat. 738, is a case directly in point, of enjoining the collection of a tax. That case was most earnestly litigated, and yet the counsel who resisted the injunction, did not attempt to maintain, that the jurisdiction could not be sustained, on the ground that it interfered with the collection of the revenue.

We overrule the demurrer, and send back the cause, at the suggestion of the defendants, for further proceedings.

HEIRS OF SULLIVANT v. THE COM. OF FRANKLIN CO.

A deed to County Commissioners for a lot on which to erect a jail, though defective as a convey ance, is good as a licence to enter and possess for the purposes specified.

This cause was adjourned here for decision, from the Supreme Court of the county of Franklin, on a motion for a new trial.

In the month of April, 1808, Lucas Sullivant and wife conveyed in lot, No. 25, in the town of Franklinton, to the commissioners of the county, for the time being, by name, and to their successors in office. The writing intended for a deed contained, besides the operative terms of conveyance, this proviso: "Provided, however, and this conveyance is made on this express condition and no other, that the jail or prison house, when built shall be built on said lot, No. 25." The jail was erected upon the lot, and continued there and was used as a jail when this suit was brought. But in 1826, the Legislature removed the seat of justice from Franklinton to Columbus, and, in the summer of 1827, a new jail was erected there. The deed from Sullivant and wife, though signed and sealed and acknowledged before a justice of the peace, was not attested by any subscribing witnesses. The heirs of Sullivant brought the ejectment, and on the trial, the cause being submitted to the court, a pro forma judgment was entered for the defendants, and the motion made by the plaintiff, for a new trial, upon a case agreed.

Leonard, for plaintiff. Ewing, contra.

Byt the COURT.

It is unnecessary to decide upon the various points of learning discussed by the counsel, in this case. A license to enter and occupy lands may be given in writing, without any of the formalities of a deed of conveyance. A possession

taken under a license from the party is a good defence in an action of ejectment. The writing purporting to be a deed, in this case, authorized by an inevitable. implication, the commissioners, for the time being, to enter and erect the jail. It also authorizes the commissioners and their successors to hold and use the lot in question, while occupied as a jail. It has been so used and occupied. No attempt has been made to use it for any other purpose, up to the commencement of this suit. No right of entry, for a departure from the license has accrued to the heirs of Sullivant. The motion for a new trial must be overruled.

JOHNSON v. STEDMAN.

Proof of general reputation, and acting as constable, is competent evidence.

This cause came up on a motion for a new trial, adjourned here from the coun ty 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.

Nye, for plaintiff. H. Stanbery, contra.

Opinion of the Court by Judge HITCHCOCK.

The question now presented to the court, was considered at the last term in the case of Barret v. Reed, (2 Ohio Rep. 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.

This rule is founded in wisdom, and consistent with obvious reason, and ought not to be departed from upon light or trivial grounds. Its true meaning is, that no such evidence shall be introduced, as, in the nature of things, supposes greater or better evidence in the power of the party producing it. If there be such greater or better evidence, and the party fails or refuses to produce it, a presumption arises that if produced it would operate against him. Such being the presumption the lesser evidence shall be excluded.

This rule however is general, and not without exceptions. Not only copies of public records and proceedings, but under peculiar circumstances, copies of private instruments of writing are given in evidence. It is a common practice to receive parol evidence of the contents of a deed, or other instruments of wri

ting, where the deed or instrument itself is lost, or is in the possession of the opposite party, if notice has first been given to produce it. These instances are but few, among the many which might be named, to show that the general rule is not so unbending that courts will not dispense with a strict adherence to its letter, in order to arrive at substantial justice.

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 individ. ual 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 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, 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 Stedham 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 Stedham was a constable, de facto.

The principle here decided is supported by high authority. In the case of Potter v. Luther, (3 John. 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, &c. 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. Digest, 783, it is laid down that cases similar to the one under consideration, are exceptions to the general rule" that the best evidence, &c. must always he given."

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

TRUSTEES OF JEFFERSON TP. v. TRUSTEES OF LETART TP.

A minor obtains a settlement, in the township where his father was legally settled, and can by no act of his own whilst a minor, obtain a legal settlement elsewhere.

This was an action of debt under the statute, in which a verdict was given for the plaintiffs, and a motion made for a new trial, on the following state of facts.

In September, 1823, the parents of the pauper resided and had a legal residence in Lebanon township, in Meigs county. At this time the father died, and the mother, with her children went to reside with her father in Lebanon township, where she remained until July, 1824, when she married again and removed with her children, except the pauper, and with her husband into Virginia.

In April, 1824, the pauper being about 17 years of age, left his mother, and went into Letart township where he remained working for his support until October, 1825, when he left that township. In December, 1826, he came into Jefferson township, Adams county, where he was taken sick, and became a township charge. Upon his recovery in March, 1827, he was sent by the trustees of Jefferson township, to Letart township, and a demand made for the expenses incurred in taking charge of him, and his removal. The jury gave a verdict for the plaintiffs, and the motion was made for new trial, the decision of which was adjourned by the Supreme Court sitting in Meigs county