So it is also in such case if he receive the principal and deliver up the bond; for, being intrusted with the security itself, it shall be presumed that he is intrusted with a power over it, and with a power to receive the principal and interest; and the rather because the giving up of the bond upon payment of the money is a discharge thereof; otherwise if the obligee take away the bond, for then he hath no power to receive the money."

Modern cases have gone further than this, and have held that even the possession of negotiable securities, unindorsed, is not conclusive evidence of authority to receive payment: Mechem on Agency, sec. 373; Doubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502. The burden, therefore, rests on the party making payment to show that the one receiving payment was authorized. This is particularly so if, in the meantime, as in this case, the note has passed into the hands of a bona fide indorsee before maturity. The contract of the maker is to pay to the payee or his order. By the terms of his contract he is bound to take notice of the fact that his obligation is liable to turn up in the hands of another party at maturity. The mere designation of the place at which payment shall be made does not of itself alter the obligation of the maker as to the person to whom, or through whom, payment shall be made. He still is bound to see for himself that payment is made to the legal holder, whether he be the original payee or an indorsee, or to his authorized agent. He cannot safely pay to any person at the designated place who, in the absence of the securities properly indorsed, cannot show authority to receive payment for the party entitled to the money: Doubleday v. Kress, 50 N. Y. 410, 10 Am. Rep. 502; Williams v. Walker, 2 Sand. Ch. 325; Cowing v. Cloud, 16 Colo. App. 326, 65 Pac. 417; Richards v. Waller, 49 Neb. 639, 68 N. W. 1053; Gilbert v. Garber, 62 Neb. 464, 87 N. W. 179; Hollinshead v. Stuart & Co., 8 N. D. 35, 77 N. W. 89, 42 L. R. A. 659; Stolzman v. Wyman, 8 N. D. 108, 77 N. W. 285; Corey v. Hunter, 10 N. D. 5, 84 N. W. 570; Adams v. Hackensack Improvement Commission, 44 N. J. L. 638, 43 Am. Rep. 406.

The law of the case being so well defined, and the plaintiff having denied that he ever authorized or directed IIood, the original payee, or his clerk, Miss Jurey, to receive payment of the principal, or any part of the same, and he having also denied that he knew of the payment of three hundred and fifty dollars on the principal, it was plainly in

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., 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 owner'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 Evidence. 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 defendant'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 conspiracy 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 4427-1 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

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 legis