Staight v. The State. STAIGHT V. THE STATE. Where an application for a marriage license is made to a deputy clerk of the probate court who is holding, without a new appointment, during a second term of the judge appointing him, and such deputy administers an oath to the applicant and examines him as to the right of the parties to such license, a prosecution for perjury cannot be maintained against such applicant, based on such testimony, for the reason that the oath is not administered by lawful authority. ERROR to the Court of Common Pleas of Logan county. Staight was indicted in the court of common pleas of Logan county for perjury. It was proved that he made application for a marriage license, in Logan county, on December 2, 1882, and testified as to the ages of the parties to the contemplated marriage, and residence of the female, and the alleged perjury was in the testimony so given. The oath was administered by L. E. Pettit, to whom the application was made. In 1878, R. E. Pettit was elected and duly qualified as probate judge of Logan county. He was re-elected in 1881, and on February 6, 1882, entered on his second term, after being duly qualified, and he continues to be such judge. Evidence was given on the trial tending to show, that on December 8, 1879, R. E. Pettit duly appointed as deputy clerk of the probate court, L. E. Pettit, who, being duly qualified, entered on the duties of the appointment, and he has acted as such deputy continuously ever since that time, under the original appointment, and that he was not re-appointed when R. E. Pettit entered upon his second term of office, nor since. Staight asked the court to charge the jury, that if they should find the facts to be as above stated, he could not be convicted, but the court refused so to charge, and he excepted. The jury having returned a verdict of guilty, he was sentenced to the penitentiary, and the sole question on this petition in error is whether the court erred in refusing so to charge. Staight v. The State. The Revised Statutes provide as follows: 66 "§ 533. Each judge shall have the care and custody of all files, papers, books, and records belonging to the probate office, and is authorized and empowered to perform the duties of clerk of his own court; and each probate judge may appoint a deputy clerk or clerks, each of whom shall, before entering upon the duties of his appointment, take an oath of office, and when so qualified, such deputy may perform any and all the duties appertaining to the office of clerk of the court; and each deputy clerk is authorized to administer oaths in all cases in which it is necessary, in the discharge of his duties as such deputy clerk." And see $$ 2, 10, 4949. "§6897. Whoever, either verbally or in writing, on oath lawfully administered, willfully and corruptly states a falsehood, as to any material matter, in a proceeding before any court, tribunal or officer created by law, or in any matter in relation to which an oath is authorized by law, is guilty of perjury, and shall be imprisoned in the penitentiary not more than ten nor less than three years." "§ 7221. In an indictment for perjury, or for subornation of perjury, it shall be sufficient to set forth the substance of the offense charged, and before what court or authority the oath was taken, averring such court or authority to have full power to administer the oath, together with the proper averments to falsify the matters wherein the perjury is assigned, without setting forth any part of any record or proceeding, or the commission or authority of the court, or other authority, before which the perjury was committed." William Lawrence, Joseph H. Lawrence, and J. A. Huston, for plaintiff in error: In addition to cases cited in the opinion, counsel cited on the question presented the following, Const. art. 15, § 7; 3 Inst. 165; 1 Hawk. P. C. 481; 2 Hawk. P. C. 86; Mahan v. Berry, 5 Mo. 21; State v. McCollister, 11 Ohio, 46; State v. Corey, 4 West. L. Mo. 563; s. c., 16 Ohio St. 17, 35; Wharton's Cr. Ev. § 1315; 3 Lawrence's Compt. Dec. 60; 1 Op. Atty. Gen. 670; 7 Id. 597; Chapman v. Inhabitants, 56 Maine, VOL. XXXIX.-32 Staight v. The State. 390; State v. Kennon, 7 Ohio St. 558; People v. White, 24 Wend. 539. D. A. Hollingsworth, Attorney-General, for the state. OKEY, J. Proof by the state that L. E. Pettit was, at the time he administered the oath in question, acting as deputy clerk of the probate court, and had acted in that capacity about three years, with the assent of the probate judge and the acquiescence of the public, was prima facie sufficient to show that the oath was lawfully administered. R. v. Roberts, 38 L. T. (N. S.) 690; 8. c., 14 Cox C. C. 101; Keator v. People, 32 Mich. 487. The general rule is that as to third persons and the public, the acts of one thus performing service are in all respects as valid as acts done by an officer de jure. Strang, ex parte, 21 Ohio St. 610; cf. Bernier v. Becker, 37 Ohio St. 72; Munford v. Rice, 6 Munf. 81. But in prosecutions like this the rule is different. Notwithstanding the prima facie proof offered by the state, the accused had the right to show that L. E. Pettit was not an officer de jure, and so defeat the prosecution. This was held in the leading case of R. v. Verelst, 3 Campb. 432 (1813), where the person administering the oath had been an officer de facto for twenty years, and that case has been repeatedly followed in England and this country. R. v. Roberts, supra; R. v. Newton, 1 C. & K. 469; State v. Hayward, 1 Nott & M. 546; Muir v. State, 8 Blackf. 154; State v. Hascall, 6 N. H. 352; Biggerstaff v. Com., 11 Bush, 169; Lambert v. The People, 76 N. Y. 220; 3 Russ. Cr. 89; Ros. Cr. Ev. 815; 2 Bishop's Cr. L. § 1020. In Stephens v. State, 1 Swan, 157, as in Oaks v. Rogers, 48 Cal. 197, administering the oath in open court, by one not an officer, was regarded as the act of the court which directed it to be administered, and hence that case is not in conflict with the rule as stated. In Warwick v. State, 25 Ohio St. 21, it was held that a deputy clerk of the probate court need not be an elector; but there the deputy had been regularly appointed and qualified, hence was a deputy clerk de jure, and therefore qualified to Miles v. Reiniger. administer an oath like that in question here; for the act was ministerial, and a deputy may perform any duty with respect to granting and issuing the license even in his own name (Walke v. Circleville, Chapin v. Allison, 15 Ohio, 288, 566), though regularly such acts should be done in the name of the principal. Here evidence was offered to show that L. E. Pettit was not a deputy clerk de jure, but the court said the evidence was immaterial, and therein erred. Judgment reversed. MILES V. REINIGER. 1. Whether an equitable interest in an instrument for the payment of money passes by delivery-whether such instrument be negotiable or not, or be indorsed or not-depends solely on the intention of the parties. But a secret intention inconsistent with the positive acts of the party, is of no avail. 2. R., the owner of a county order, on presenting it to the treasury for payment, was requested by M., the treasurer, to take it to his bank, which he did, and delivered it to the bank without indorsement, and took credit for the amount thereof as a deposit in his account, subject to his check in two or three days thereafter. On the next day the bank presented the order to the treasurer for redemption, and the same was satisfied by giving credit to the bank upon its checks then held by the treasurer. On the second day thereafter, and before R. had checked on any portion of the order deposit, the bank failed. Held: Without showing bad faith on the part of M., an action against him by R. for the wrongful conversion of the order, cannot be maintained. ERROR to District Court of Scioto county. The original action was brought by Reiniger against Miles to recover the value of a certain order of which the following is a copy: "OFFICE OF THE AUDITOR SCIOTO Co., "To the Treasurer of Scioto County : 66 'Pay to F. Reiniger or Order, Seven Hundred and Twenty Miles v. Reiniger. seven Dollars and two cents out of the County Current Fund, for fee account from June 5th to Nov. 8th, 1877. $727.02. "W. H. H. CADOT, County Auditor." The plaintiff, Reiniger, claimed, in his petition, that defendant, Miles, on November 15, 1877, wrongfully converted this order, the property of the plaintiff, to his own use. The defendant, by his answer, denied the ownership of the plaintiff at the time of the alleged conversion, and denied the wrongful conversion. The following facts in the case are undisputed: That Reiniger received the order from the auditor of the county on November 13, 1877; that on same day he presented the same, at the county treasury, to Miles, who was county treasurer, for payment; that Miles requested him to take the order to the banking house of W. Kinney & Co., where both parties kept accounts, to which request he assented; on same day the plaintiff delivered the order without indorsement, to Kinney & Co., who gave him credit as a deposit for cash, for the amount thereof, in his account upon the books of the bank; on the next day, Kinney & Co. presented the order to Miles, as treasurer, for redemption, and received payment therefor by credit for the amount upon checks held by the treasurer upon the bank, which had been received by the treasurer in payment of taxes, and that two or three days after the order had been redeemed by the treasurer, and before the plaintiff had drawn upon Kinney & Co. for any part of the money so placed to his credit upon the books of the bank, Kinney & Co. failed. Whereupon the plaintiff demanded of defendant a surrender to him of the order aforesaid, which was refused; and, thereupon, the original action was commenced. On the trial, three witnesses were examined in respect to the circumstances of the deposit of the order by the plaintiff with Kinney & Co. The plaintiff testified as follows: "This is the order in question. I got it from the auditor. I presented it to the defendant in the treasurer's office in the |