
    Warren H. Smith v. Commissioners of Portage County.
    Instructions given by a prosecuting attorney to constable having a warrant from a justice of the peace, to arrest a person accused of crime, do not bind the county to pay for the constable’s services and expenses.
    A constable, in serving a warrant to arrest a person accused of crime, out of the State, violates both public and private right, and such service is no consideration upon which a promise to pay can be implied.
    A constable entitled to fee, for pursuing a fugitive from justice, under a justice’s warrant, must procure a transcript of the justice’s proceedings with a bill of fees, and present to the county auditor, and if the auditoi refuse, in a proper case, to give an order for the fees due, he may be compelled by mandamus, but his refusal to audit the account will not raise an implied promise by the county to pay.
    It is.no part of the legal duty of a prosecuting attorney to attend to prosecutions in behalf of the state before justices of the peace: his duties are confined to the Courts of Common Pleas and the Supreme Court.
    Error to the Common Pleas of Portage. Smith brought assumpsit against the commissioners in the court below, and declared in the common counts for work and labor, money paid, etc. The case was tried to a jury upon non assumpsit, and a verdict and judgment ^rendered for the defendants. A bill of exceptions presents the following state of case upon the reeord. A warrant duly issued by a magistrate of the county to arrest one William Latta, for having in possession plates for printing false and forged bank notes, was placed! in the hands of Smith, who was a constable, for execution, and Bierce, the prosecuting attorney of the county, instructed him to pursue Latta into the State of Indiana, his place of residence, or wherever he might be found, and arrest him. In pursuance of which, Smith pursued Latta into Indiana, and arrested him, but was obliged to leave him and return for the requisition- of the Governor of Ohio. This was afterwards procured and' Latta brought to the county, Smith presented his bill for these services and his expenses, to the county auditor and to the commissioners, who refused to audit or pay his account. No transcript of the proceedings containing a bill of the costs had been furnished either by the magistrate or other person.
    Upon this state of fact the counsel for plaintiff prayed the court to instruct the jury, that the plaintiff was entitled to recover for these services, as performed under the directions of the prosecuting attorney -t 
      or at all events, that he might recover for his services -under the warrant within the State of Ohio, which the court refused. The court then, at the instance of the counsel for the defendants, instructed the jury, that the warrant conferred upon the plaintiff no authority to go into the State of Indiana, and that the prosecuting attorney had no authority to hind the county by his instructions. This charge and refusal was accepted to by the plaintiff and for alleged error therein, he now seeks to reverse the judgment.
    Bierce, for the plaintiff,
    urged, as a general rule, that an attorney has power to bind his principal so far as may be necessary to effect the object of his employment, especially if the principal assents to and receives the benefit of his acts. In this case the service was performed for the county, under the direction of the county attorney. The arrest was made in consequence, and the prisoner secured, so as to be afterwards obtained under the governor’s requisition as a fugitive from justice, and delivered over to the county authorities. The governor ratified the service of Smith in arresting Latta, by requiring his delivery, and the county authorities by receiving and holding him for trial. The county having thus legalized Smith’s acts, and received the benefit of his services, can not now disavow those services and refuse payment. At all events, the plaintiff must recover for service within the state. The warrant directed him to pursue Latta *“ into any other county within the state,” and he was bound to obey, whether instructed by the county attorney or not. The omission to procure a transcript of the proceedings can make no difference, as that was noil required by the defendants’ counsel.
    Sloane and Otis, for the defendants,
    contended, that the act creating the office of prosecuting attorney, simply makes it his duty to conduct suits for the state, but does not confer upon him any power to make contracts to bind the county ; and such power is not necessary to the discharge of his official duties. 1 Dana, 447; 31 O. L. 13; 1 Ch. St. 359, 453, 561, 723-4 ; 29 O. L. 413.
    A county is a mere quasi corporation, and can only contract by its commissioners. 29 O. L. 268 ; 2 Ohio, 352; 3 Ind. 501. The commissioners can not be made liable upon the common counts in assumpsit. 5 Ohio, 27 ; 8 Am C. L. 526-7 ; 2 Stark. Ev. 53. These services were not performed under the act authorizing the pursuit of fugitives from justice ; but if they were, the act confers power upon the auditor to pay only upon the presentation of a transcript of the proceedings. A bill of fees is no such transcript.
   By the Court,

Wood, Judge.

,It is contended that the defendants are liable in this suit, inasmuch as an attorney, as a general rule, has authority to bind his principal so far as necessary to fullfil his employment, and as the services of the plaintiff were performed under the direction of the defendants’ attorney, for their benefit, and in the due performance of his duty, they constitute a legal consideration upon which the law raises a promise to pay. To this it may well be answered, that whatever moral obligation rests upon the prosecuting attorney, to prosecute offenses before justices of the peace, the law makes it no part of his duty to do so. The act, 31 O. L. 13, provides that it shall be his duty “ to prosecute for and on behalf of the state, all «omplaints, suits, or controversies in which the state shall be a party, within the county for which he shall have been elected, both in the ■Supreme Court and in the Court of Common Pleas.” It thus appears that (the duty of the county attorney is confined to the Supreme Court and the Court of Common Pleas, and his appearance in an inferior court is a mere voluntary act, for which the county is not liable unless by express contract.

But it is said, the county is liable for the constable’s costs while traveling vñth. his warrant in the state. Without admitting this position in the case at bar, in which the warrant was confessedly issued *against a citizen of another state, with no intention or purpose of its execution in Ohio, no legal or moral obligation required the constable to attempt its execution in Indiana, and an arrest made upon it there was a violation of both public and private right. Services rendered under such circumstances, are both voluntary and without authority of law, and present no legal foundation for an implied promise to pay for them. There is, however, a still more satisfactory objection to the defendants’ liability in this ease. The statute provides, that when a constable is entitled to fees, it shall be the duty of the justice to make out and deliver to him, a transcript of the proceedings containing a bill of the constable’s costs, which the constable shall present to the county auditor, who shall examine the same, correct the errors, if any, in the charges, and draw on the treasurer for the amount allowed in favor of the constable. 29 O. L. 198-9. When the constable presents his transcript to the auditor, if he refuses to perform the duties enjoined upon him by law, he may be compelled by mandamus. Such remedy is plain and adequate ; but the auditor’s refusal to perform his duty, does not, in our opinion, subject the commissioners to liabilty.

We think, therefore, there is no error in the proceedings and judgment of the court of Common Pleas, and affirm the judgment with •costs.  