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cumbent on the defendants to show that the plaintiff had either expressly or impliedly made Hood and Miss Jurey his agents. On the contrary, no claim of express authority is made, and it is conceded that Hood never had possession of the note or the mortgage after they were transferred to the plaintiff, and the defendants say that they had asked for them “dozens of times'' at Hood's office and they were never produced.
But it is shown that interest was paid semi-annually and was receipted for by “F. P. Hood, 8 Ag't,” that it was regularly paid over to plaintiff by Hood, and was credited by plaintiff on the note on the several dates up to August 31, 1903; but it is not shown that plaintiff ever saw any of Hood's receipts for interest, or that he ever knew that Hood had signed receipts therefor as "Ag't." The significant fact does appear, however, that from the time of the payment of the three hundred and fifty dollars to Hood, the receipts given by Hood to the defendants are for the exact amount of interest on the principal remaining unpaid, while the credits indorsed on the note by plaintiff are for the full amount of interest on the principal of the note without deduction, indicating that Hood was concealing from the plaintiff the payment of the three hundred and fifty dollars, and that he made up the interest to the full amount out of his own pocket. Now, it is claimed that these circumstances constituted Hood the agent of the plaintiff for the purpose of receiving payment of both principal and interest.
It is hardly necessary to discuss the proposition that the ratification of one unauthorized act is not a ratification of another and entirely distinct act; or that the acceptance of the results of a series of unauthorized acts of the same kind is the creation of an implied agency to do an entirely different thing. To state the proposition in a concrete form, the plaintiff having recognized the course of dealing as to payment of interest through Hood may be presumed to have authorized him to collect interest; but no implied agency to collect the principal, or any part of it, could arise therefrom. These are accepted principles in the law of agency: Baldwin v. Burrows, 47 N. Y. 199; 1 Am. & Eng. Ency. of Law, 2d ed., 9 1002. There was no recognition of the act of Hood in collecting a part of the principal, because the plaintiff did not know that the money had been paid to Hood, nor that the latter was deceiving the defendants by assuming to act for him. The cases are numerous and directly to the point that an authority to receive interest does
not imply an authority to reecive payment on the principal: Whitlock v. Waltham, 1 Salk. 157; Williams v. Walker, 2 Sand. Ch. 325; Smith v. Kidd, 68 N. Y. 130, 23 Am. Rep. 157; Cox. v. Cutter, 28 N. J. Eq. 13; Ilgenfritz v. Mutual Benefit Life Ins. Co., 81 Fed. 27; Palmer v. Wistanley, 23 U. C. C. P. 586; Walsh v. Peterson, 59 Neb. 645, 81 N. W. 853; Gilbert v. Garber, 62 Neb. 464, 87 N. W. 179; Stolzman v. Wyman, 8 N. D. 108, 77 N. W. 285; Corey v. Hunter, 10 N. D. 5, 84 N. W. 570. In a case in which it appeared that the scrivener, not having possession of the security, had received not only the interest but part of the principal also and paid it to the obligee, it was held that such circumstances did not imply that the scrivener had any authority to receive a part of the principal which he received and did not account for: Wostenholm v. Davies, Freem. Ch. 289.
When the defendants made payments to Hood without requiring the production of the securities, it was no more than if they had intrusted such payment to a messenger boy. That which reached the plaintiff was good payment. That which did not reach the plaintiff was at their own risk.
The judgment of the circuit court is reversed, and that of the court of common pleas is affirmed.
Shauck, C. J., Price, Crew and Summers, JJ., concur.
Payment.—The Maker of a Promissory Note can satisfy it only by payment to the owner at the time, or to such ownef's authorized agent. If the recipient of the money is not actually authorized, the payment is ineffectual, unless induced by unambiguous direction from the owner or justified by actual possession of the note. This rule applies generally to all negotiable paper, independently of the existence of any mortgage or other security: Marling v. Nommensen, 127 Wis. 363, 115 Am. St. Rep. 1017.
Where a Principal has Placed His Agent in such a position with reference to a note and mortgage that a person of ordinary prudence, conversant with business usages, is justified in presuming him authorized to collect the amount due, payment to him discharges the obligation: Harrison Nat. Bank v. Austin, 65 Neb. 632, 101 Am. St. Rep. 639.
Payment of a Note Secured by a Mortgage, made to the agent of the original mortgagee after he had assigned the indebtedness, is nevertheless good, if the assignee permitted such agent to represent himself as having authority to do what he did, and he had for many years acted as the agent of such assignee in receiving payment of principal and interest on loans made by him: Bautz v. Adams, 131 Wis. 152, 120 Am. St. Rep. 1030.
HAMMOND v. STATE.
[78 Ohio St. 15, 84 N. E. 416.] CONSTITUTIONAL LAW_Statute Making Reputation Evi. dence.-A provision in a statute respecting trusts and unlawful combinations providing that in prosecutions thereunder the character of the trust or combination alleged may be established by proof of de. fendant's general reputation as such is unconstitutional and void. (p. 685.)
EVIDENCE, Limitation upon-Power of the Legislature Respecting.-The legislature may not arbitrarily create a conclusive presumption of guilt against an accused as to any element of crime charged by giving an artificial and evidentiary force to certain facts which otherwise would be wholly irrelevant and inconclusive. (p. 685.)
EVIDENCE-Conspirators.—The acts and declarations of a conspirator in the absence of the alleged co-conspirator can be received in evidence against the latter only after the fact of the con. spiracy has been established. (pp. 687, 688.)
Richie & Richie and Ridenour & Halfhill, for the plaintiff in error.
B. F. Welty, prosecuting attorney, for the defendant in error.
18 CREW, J. At the April term, 1906, of the court of common pleas of Allen county, the plaintiff in error, Harry G. Hammond, was indicted for engaging, with others, in a conspiracy against trade, contrary to the provisions of sections 4127-1 to 4427-12, Revised Statutes, inclusive. He was tried upon said indictment, was found guilty, and adjudged by the court to pay a fine of five hundred dollars and the costs of prosecution, and to stand committed until said fine and costs were paid. This judgment was affirmed by the circuit court. On the trial of said indictment in the court of common pleas the state, to maintain the issue on its part, was permitted by the court, over the objection of counsel for the accused, to propound to divers witnesses the following question: “You may state whether or not you have the means of knowing the general reputation of the Canton Bridge Company, as to whether or not the Canton Bridge Company, together with other bridge companies and persons doing business in Allen county, Ohio, have been organized in a trust for the purpose of dealing in highway bridges and bridge materials and preventing competition in the sale of highway bridges and bridge material from the first day of January, 1904, to the twenty-fifth day of May, 1906." To this interrogatory the several witnesses each answered, in substance, that there was reputed to be such combination or trust. The foregoing question was put by counsel and permitted by the court, under 19 favor, and because of, the provisions of section 4427-6, Revised Statutes, which reads as follows: “In prosecutions under this act, it shall be sufficient to prove that a trust or combination, as defined herein, exists, and that the defendant belonged to it, or acted for or in connection with it, without proving all the members belonging to it, or proving or producing any article of agreement, or any written instrument on which it may have been based; or that it was evidenced by any written instrument at all. The character of the trust or combination alleged may be established by proof of its general reputation as such.” While many of the provisions of the so-called Valentine anti-trust law have heretofore been reviewed and passed upon by this court, there is presented to us in this case for the first time the question of whether or not the last paragraph of the above section 4427-6, whereby it is provided that “The character of the trust or combination alleged may be established by proof of its general reputation as such, is a valid and constitutional provision. After careful consideration of this question, we are of opinion that it must be answered in the negative. It may be conceded that, within proper constitutional limits, the legislature has the general power to prescribe rules of evidence and methods of proofto determine what may or may not be competent evidence in a particular case--and, with certain qualifications, has perhaps the power to enact and prescribe that in criminal prosecutions certain facts, when duly established, shall be held to be presumptive or prima facie evidence of guilt. But this power is not without its limitations, one of which is, that the legislature may not. arbitrarily 20 create a conclusive presumption of guilt against the accused, as to any element of the crime charged, by giving artificial and evidential force and effect to certain facts which otherwise would be wholly irrelevant and inconclusive. It has well been said that presumptions of law-at the best, uncertain instruments in the investigation and discovery of truth-are especially dangerous in the administration of criminal justice when used to control or impair the natural fundamental presumption of innocence, their effect being to give to evidence a technical probative force beyond that which it would naturally and ordinarily possess in producing conviction in the minds of the jury. It is said in State v. Beswick, 13 R. I. 211, 43 Am. Rep. 26: "Indeed, to hold that a legislature can create artificial presumptions of guilt from facts which are not only consistent with innocence, but which are not even a constituent part of the crime when committed, is to hold that it has the power to take away from a judicial trial, or at least substantially reduce in it, the very element which makes it judicial. To hold so is to hold that the leg. islature has power to bind and circumscribe the judgments of courts and juries in matters of fact, and in an important measure to predetermine their decisions and verdicts for them.” The provision of the statute under consideration in the present case, does not, it will be observed, provide merely that a presumption or inference shall arise, or may be drawn, from proof of the general reputation of the unlawful or criminal character of the alleged trust or combination. But it enacts in express terms that its unlawful and criminal character may be established by proof of its general reputation. 21 Thus, the statute in terms makes proof of the general reputation of the trust or combination, not only competent evidence against the accused, but sufficient and conclusive evidence of the unlawful and criminal character of the combination to which he may belong. This in effect is to deprive the accused of the protection of the cardinal presumption that every person is to be presumed innocent until he is legally proven guilty, a presumption which attends the accused throughout his trial, and has referenec and relation to every fact that must be established in order to prove his guilt beyond a reasonable doubt. If the General Assembly, in order to make conviction easier under this act, can rightfully provide that one of the essential and constituent elements of the crime charged, viz., the unlawful character of the trust or combination, may be shown and •made certain, by proof of common rumor, or general reputation, and the guilt of the accused be thus established, it is difficult to see why it may not, with equal right, provide that murder, arson or any other crime, may be thus established by proof that the person accused thereof is generally reputed to be the person who committed the same; a proposition at once so obnoxious and repugnant to the plainest principles of reason and justice, that none would yield assent to it. It is a matter of common and universal knowledge that bad reputation may, and oftentimes does, originate in malice, from mistake, or irresponsible rumor, and once suggested or set going, the rapidity with which such a reputation gathers vigor and volume is proverbial. Hence,