case from those in which one man has been arrested upon a writ against another of a different name. (See Cole v. Hindson, 6 T. R. 234; Finch v. Cocken, 5 Tyrwh. 774, 785; S. C. 3 Dowl. 678, 686; Griswold v. Sedgwick, 1 Wend. 126, 132; Langmaid v. Puffer, 7 Gray, 378.)

Judgment on the verdict for the defendant.

EXCEPTIONS, SECTION 4. QUASI JUDICIAL ACTS. STEWART ET AL. v. SOUTHARD,

(17 Ohio, 402. - 1848.)

THE original action was case. In the declaration Southard avers that he was resident, etc., of school district No. 1, in the township of Paint, in which a common school was taught; that he had sons and daughters of the proper age which he was desirous to have taught at said school; that the defendants (now plaintiffs in error), at the time, etc., were school directors of said district, and contriving, etc., to deprive him of the benefit of having his said children educated, etc., at said district school, wrongfully admitted certain colored children into said school, whereby he was deprived of the benefit and advantages of having his children taught at the same, and has been put to great trouble and expense in procuring them to be taught and educated.

To this declaration the defendant demurred.

His attorney adds to the demurrer this: "all objection to form and substance waived. The only question to be raised to be the constitutionality of the school law." The court of common pleas overruled the demurrer. The defendant plead the general issue. The cause was submitted to the court and judgment rendered for the plaintiff for twenty-five dollars. Two errors are assigned

1st. That the declaration is insufficient.

2d. That judgment was given for plaintiff when it should have been given for defendants.

Robert Robinson and J. II. Thompson for plaintiffs in error.

J. L. Green, Thurman & Sherer for defendant in error.

BIRCHARD, Ch. J. This is in the nature of an action for misbehavior of a public officer in the discharge of his duty. The acts complained of are not charged to have been done either wilfully or maliciously. The most that can be made of the averments of the declaration when tried upon a demurrer is, that the plaintiffs in error, while acting in their corporate capacities as directors of a school district, misjudged the law and acted erroneously. "There is no instance of an action of this sort maintained, for an act arising merely from an error of judgment." (Harman v. Tappender, 1 East's Rep. 555.) In Ramsey v. Riley, 13 Ohio Rep. 157, this court held that an officer acting within the scope of his duty is only responsible for an injury resulting from a corrupt motive. These principles are clearly applicable and must be conclusive of the merits of this declaration, unless we should depart from them. We are not induced to do so unless required by the authority of our own decisions.

The case of Lane v. Baker, 12 Ohio Rep. 238, is presented as a decision directly in point, as opposed to the rule above stated. The only thing decided in that case was, that youth of more than half white blood are entitled to the benefit of the common school fund. No question seems to have been raised touching the sufficiency of the declaration, and had there been, we think that after verdict (the state in which the question was presented) that declaration would have been held sufficient. This declaration, under our statute, is to be tried on demurrer. The difference between testing the sufficiency of a declaration on demurrer, or after verdict, is too distinct to need remark. On demurrer, the intendment is against the pleader. After verdict it is in support of the pleading. So that in the latter case a good title defectively set forth is cured. In Lane v. Baker, the declaration avers a clear right in Lane to send his children to the school, avers it was supported by the common school fund, that he sent his children, who were white, to the school, and that the directors, well knowing the premises and contriving and wrongfully intending to injure him, and to deprive him of his just rights,

turned said children out of said school. I concurred in that decision, and have always thought it went far enough and should not be extended. It is true the special verdict, in that case, does not find a corrupt motive or malice, but as said above, the object of taking it in that form was to present the simple question whether a child more white than black was entitled to share in the common school fund, and in point of fact no other question was discussed and decided in that case. But, by this remark, we do not mean to question or cause doubts of the correctness of the decision in Lane v. Baker, for there is a distinction between turning a scholar out of school who has a just right to be there, and thus inflicting a positive injury, by depriving him of a privilege which ought to be regarded inestimable, and admitting erroneously into the school such scholars as may possibly render this privilege less desirable. The one is a positive denial of a right, the other is an act which possibly may annoy one in the exercise of a right. The one is an injury which is tangible and can be measured, the other is a different character. A distinction akin to this was taken in Jeffries v. Ankeny et al., 11 Ohio Rep. 374, in which, although the doctrine of general immunity of trustees of townships, when acting without a corrupt motive, is fully recognized, as a general rule, yet they were there held liable. for erroneously refusing a lawful vote without proof of malice, upon the ground that the law afforded no other adequate remedy that necessity demanded it. It would hardly follow, from the fact that Jeffries was allowed to maintain his action for the erroneous refusal of the trustees to receive his vote, that he would be entitled to maintain an action against a board of trustees who should erroneously receive the vote of an alien, whereby his vote was neutralized. Much less, if in consequence of the alien's voting he should stay away from the polls and refuse to vote, would he be allowed to sue and aver that thereby he was deprived of the elective franchise.

Still, this last supposed case of Jeffries would not be more novel than this action brought by Southard. That would be a case of first impression, and so is this. That, in principle, would be unlike anything before known, and so is this, for in principle they are alike. If an action could be maintained

against the trustees of townships by any voter who would refuse voting merely because they had erroneously received the votes of aliens, or if one could be maintained against school directors by any person who withdraws his children in consequence of an error committed through conscientious and mistaken notions of duty, or through ignorance, it is easy to foresee that it would be difficult to procure men to accept such offices. The danger of being annoyed or perhaps ruined by vexatious prosecutions would be too great to justify a prudent man in hazarding the risk. Were we to take a stride beyond the cases of Jeffries v. Ankney, and of Lane v. Baker, strong enough to sustain such action, we should place it in the power of captious persons to break up probably three-fourths of the schools in the State. If suit may be maintained for an error in admitting colored children (and we think it was probably wrong), it must be on a principle that will enable every member of the school district to maintain an action for the same, or for any other mistake in the discharge of their duties. No necessity demands the establishing of such a principle.1

Judgment reversed and demurrer sustained.

WASSON V. MITCHELL.

(18 Ia. 153. - -1864.)

DEMURRER to petition. The defendants constituted the board of supervisors of Polk county in 1861. The petition alleges that, as such board, the defendants, at their regular meeting in January, 1861, "carelessly and negligently required, accepted and approved the official bond of one H. H. Helton

1 Election officers perform ministerial and not judicial functions, unless the latter are conferred by a statute. In New York their functions are purely ministerial. (People ex rel. Stapleton v. Bell et al., 119 N. Y. 175, following Dwight, C. in Goetchus v. Matthewson, 61 N. Y. 420, whose opinion contains an exhaustive and valuable discussion of the subject.)

The liability of club officers for the expulsion of members is considered in People ex rel. Deverell v. Musical M. P. U., 118 N. Y. 101.

as constable for the township of Des Moines, in Polk county, given for the year 1861, said bond not being such as was reasonable and necessary for the faithful discharge by the said Helton of his official duties, nor such as was required by law, for that the said bond did not have any sureties thereon, the names of 'A. N. Marsh' and 'C. C. Van' having been forged thereto, they never having signed the said bond or authorized their names to be placed thereon." "That the said A. N. Marsh was notoriously insolvent at the time, and known to be so by the defendants." The petitioner then alleges his injury in this: that Helton collected money for him on execution, converted the same to his own use and died insolvent; that Marsh has absconded, and that in an action by the plaintiff against said C. C. Van on said bond, the latter was adjudged not liable thereon, because his name had been forged thereto. The defendants demurred to the petition because they were not personally liable for acts done in their official capacity; that no cause of action was stated against them, etc. Demurrer sustained, and the plaintiff appeals.

J. F. Seeley for the appellant.

John Mitchell for appellees.

DILLON, J. The allegations of the petition are not as precise and clear as they ought to be, when questioned by demurrer. Upon a fair construction, the petition may be taken to allege, in substance, that the names of both sureties on the official bond of Helton, as constable, were forged, and that the defendants approved of it, carelessly and negligently, that is, the defendants would have known of the forgery, had it not been for their neglect or want of care. And it is also alleged, that one of the persons whose names appeared on the bond as surety was notoriously insolvent, and known to be so by the defendants, when they approved the bond. Upon the assumption that this is the true construction of the petition, we place our decision.

The statute is imperative in requiring that the official bond