
    In Bank.
    Dec. Term, 1846.
    The State of Ohio, on the relation of David R. Kemper, vs. Lyman Beecher.
    To an information filed in the nature of a Quo Warranto, where the averment is a continued usurpation of office, the answer must set out expressly the continuance of every qualification necessary to the enjoyment of the office.
    It is not sufiipient to state the qualifications necessary to the appointment; and rely on the presumption of their continuance.
    This is an information in the nature of a Quo Warranto, reserved in Hamilton County.
    The case comes before the Court upon demurrer to the answer, and the information and answer show the following facts:
    On the 11th of February, 1829, the Legislature of Ohio chartered an institution by the name of the Lane Seminary. Its object, as expressed in the act of incorporation, was the establishment of a Theological Institution, to educate pious young men for the Gospel Ministry. By the charter, the institution was to be located in the' county of Hamilton. The board of trustees was at no time to consist of a less number than twenty-three, nor more than twenty-five, with power, from time to time, to fill vacancies in their own body, &c. It is also provided, that the trustees shall appoint all professors, tutors, teachers, officers and clerks, &c. And an executive committee, to consist of a president, three vice presidents, a treasurer, recording secretary, corresponding secretary, and six other members, is provided for, to be elected by ballot, by the trustees. •
    The third section of the charter is in these words: “ That £ the. officers and members of the executive committee shall £ reside in the city of Cincinnati, or its vicinity, a majority of £ whom, together with all the professors, tutors, teachers and £ instructors in the said institution, shall be members of the ‘ Presbyterian church, in good standing, under the care of the £ General Assembly of that church in the United States.”
    
      This corporation organized under its charter and' is located in the vicinity of Cincinnati. The relator joined with others in the conveyance of a tract of sixty acres of land,/on which the seminary is established, near the city, to the institution, for the purpose, as expressed in the deed, “ of promoting the benevolent objects of the institution.”
    The information charges that Lyman Beecher, who is not a member of the Presbyterian Church, in good standing, under the care of the General Assembly of that Church, in the United Slates of Am'erica, on the first day of May, 1845, usurped, and still doth usurp and intrude into the office of Professor of Theology in the Lañé Seminary, without any legal appointment or qualification, and without due warrant of law, has and does exercise the-office of Professor of Theology in said Seminary.
    To this information the defendant answered:
    First: That at a meeting of the Executive Committe of the Lane Seminary in January, 1832, he was appointed President, &c., and Professor of Theology, with the understanding 'and proviso that, before he could formally accept said 'appointment, he must become a member of a Presbyterian Church under the care of the General Assembly of the Presbyterian Church in the United Stales, as required by the charter.
    Second: That this appointment was accepted, approved, and confirmed, at- the annual meeting of the Board of Trustees, on the 29th of October, 1832.
    Third: That at the time of his appointment, he resided in Boston, but removed to Cincinnati in October of that year, and became a member of the Presbytery of Cincinnati, under the care of the General Assembly of the Presbyterian Church in the United States, and has since resided, and now resides, in the vicinity of Cincinnati, and in the neighborhood of the Lane Seminary.
    Fourth: That on the 1st of December, 1832, being a member of the Presbyterian Church, in good standing, under the General Assembly of that Church in the United States, he accepted and took upon himself the office of Professor of Theology, &c., and has ever since held and exercised the same, as he claims a legal right to do.
    To this answer of the defendant, the State demurred generally, and the defendant joined in demurrer.
   Wood, C. J.

The question raised in this case, is upon the sufficiency of the defendant’s answer. All the facts which are well pleaded in it, are admitted by the demurrer. Does it, then, coyer all the material averments in the information ? If not, that averment which is not sufficiently answered, being admitted, as a legal consequenc e, judgment of ouster follows.

A legal appointment to the professorship of theology in the institution, due qualifications, and a legal entry on the duties of the office, are, in our opinion, well pleaded. There was, then, no usurpation. But the averment is, that the defendant does now, without legal warrant or qualification, exercise the said office, &c., and the defendant answers this charge by the averment to which I have before alluded, of a legal appointment, qualification, and entry upon the duties of the office, and then states what he claims as a legal conclusion, that he has ever since held and exercised the same, as he has a legal right to do!

It appears to us, this is not enough. The third section of the charter provides, that all the professors shall be members of the Presbyterian Church, in good standing, under the care of the General Assembly of that Church, in the United States. While professors, they must he members, &fC., with the qualifications required by the charter. Whenever they cease to possess the qualifications, the office is forfeited, and they may be ousted. And if once qualified, in a case and upon a charge like this, the defendant cannot rely upon the presumption of the continuance of such qualification, and demand of the State proof of the negative. But the authorities require of him to set out all the facts necessary to constitute a good title specifically to hold on to the office. He must aver, that he is now a member, fyc., in good standing, fyc., or he shows no right to continue .to exercise the office, though his qualification and warrant may have been sufficient in the beginning.

Charles Fox, and Wrights 8f Miner, for the Relator.

Henry Starr, for the Defendant.

The demurrer to the answer is sustained, and the défendant may have leave to amend his answer.  