
    John Woodson vs. The State, for the use of William H. Borland.
    A declaration upon an Administrator’s bond, in a suit brought at the instance of a creditor, must aver a demand,, or an excuse for the omission; an averment that the claim was allowed by the Administrator, on presentation for that purpose, is not sufficient
    This is a Writ op Error to the Court of Common Pleas of Hamilton County.
    The action below was debt upon an Administrator’s bond. The facts disclosed by the record are these. Letters of admintistration were granted in April, 1841, to A. R. Chase, upon the estate of John Woodward, a mulatto'.
    
      On the day of 1841, the adminstrator filed an inventory in Court, exhibiting the following assets :
    R. Bond’s note $61, account $68................$129
    R. Phillips’ account...... ..................... 14
    One set of harness, less collar, &c................. 14
    $157
    Ineffectual efforts were made by. the Administrator to collect the claims against Phillips and Bond. Suit was brought against Phillips, and failed, and suit was brought against Bond, which resulted in a judgment for $100, on which an execution was issued and returned “no goods,” with a suggestion of lands, &c.
    The Administrator under these circumstances made no settlement with the Court, and left the jurisdiction.
    On the 20th of November, 1843, the suit was brought in the name of “ the State” against the Administrator and his sureties, on the administration bond. The writ was returned, “not found,” as to the Administrator and one of his sureties, and the declation was filed against Woodson, the other surety alone.
    The declaration makes profert of the bond declared on, and avers that it was made subject to the following conditions: 1. That the Administrator would make and return a true inventory, on oath, of personalty, and also, if required, an inventory of real estate. 21 That he would administer according to law, and make account of his administration in 18 months, and pay all the rest and residue of personalty remaining upon his administration account, the same being first examined, to the proper persons, as directed by the Court. 3. That he would surrender the letters of administration, if a will be found and proved. The breaches averred are: 1. Not making and returning inventory, though $1000 of goods, &c. came to his possession. 2. That he did not truly administer the goods which came to his possession. 3. That he made no return of his administration. 4. That he has not paid the debts proved against the estate from the moneys received by him.
    
      The declaration further avers that William H. Borland, for whose use the suit is brought, presented his claim against estate, for medical attendance in the last sickness, which allowed, and that said claim has not been paid. The declara^ tion further avers that Woodward died possessed of personal property to the value of $1000, and of real estate of the value of $5000, for authority to sell which the administrator has not applied, but has neglected and refused so to do.
    The plea is the general issue.
    Upon the trial, the plaintiff offered the inventory in evidence, and claimed judgment for the amount of the notes and accounts, with which the Administrator there charged himself, without any proof that any part of the same were collected, unless such collection could be inferred from the omission of the Administrator to settle with the Court.'
    The defendant then introduced the account of the Administrator, and two transcripts from Justices’ dockets, one showing that the Administrator was defeated in his suit to recover the claim against Phillips, and another showing that judgment was recovered on the claim against Bond, for $100, on which execution was issued, and returned “ no goods,” whereupon there was a suggestion of lands. This was all the evidence offered by the plaintiff.
    The defendant also called, as witnesses in his behalf, Reuben Bond and Richard Phillips, who were sworn, and he proposed to prove by them that the notes and accounts inventoried were worthless and could not be collected. This evidence was objected to on the ground that the witnesses were mulatto persons. No evidence of the fact was adduced, and none that Borland, for whose use the suit was brought, was a white person; but the Court determined the condition of all three by inspection, and rejected the witnesses.
    Judgment was rendered for the plaintiff, the case having been tried without the intervention of a jury.
    It is objected by the plaintiff in error, .
    1. That the evidence did not warrant the finding of the Court.
    
      2. That the declaration is bad, in not containing an aver-demand of payment of the Administrator.
    3. That the Court erred in excluding the testimony of Bond and Phillips.
    
      Chase fy Ball, for Plaintiff in Error,
    submitted the following argument upon the second and third propositions :
    I. The■ declaration is bad on error.
    
    1. It is not alleged that any demand, such as is required by the statute, was made of the administrator before suit, nor is any excuse made for the omission of such demand.
    The section of the statute authorizing suit for the use of the creditor is as follows: (Swan, 373 § 182.) “ after a creditor is entitled by law to the payment of his debt from the executors or administrators, and the amount of the claim has either been admitted to be just or allowed by them, or has been ascertained by judgment, or award against them, or by an order of distribution, the bond given by them for the discharge of their trust, may be put in suit by such creditor, if the executors or administrators shall neglect upon demand made by such creditor to pay such claim.”
    This is explicit. There can be no right of action upon the administrator’s bond unless he shall neglect, upon demand made, to pay such claim. There can be no pretence for saying that the original presentation of the claim to the administrator is the demand intended. The creditor must first be entitled by law to payment. That is, the eighteen months must have expired, the amount of the claim must have been ascertained by presentation and allowance, or by award, or by judicial action; and then if the administrator shall neglect, on demand made, &c., the bond may be put in suit.
    This is in the nature of the demand required in many cases to be made of the principal, before the surety can be charged by action. It is the necessary condition of the right to sue.
    This demand being an essential element of the plaintiff’s title to recover, must be averred in the declaration, and the omission of such averment is not cured by the finding of the Court,
    There are many cases, indeed, in which a defective tion will be aided by a verdict. These are cases where the facts omitted to be stated are implied in or necessarily inferrible from the facts stated and found. But the existence of facts not averred, and not necessarily implied in the averments of the declaration, is never presumed. “After verdict,” says Buller, J., in Speirs v. Parker, 1 T. R. 146, “nothing is to be presumed, but what is expressly stated in the declaration, or what is necessarily implied from the facts which are stated.” “ It is an invariable rule,” said Lord Kenyon, Bishop v. Haywood, 4 T. R. 471, “ that every plaintiff must, on his own stating of the case, show sufficient to entitle him to recover judgment against the defendant.” See also Gouldon Pleadings, 503 ; Williams v. Hingham, 4 Pick. 344.
    The fact of demand is essential to the right of action. It is not averred, and is not inferrible from any averment. The declaration is therefore fatally defective.
    2. The declaration seems to us to be fatally defective also in another particular. The action is upon a statutory bond. It is founded upon an alleged omission to perform a statutory duty. Should not the declaration then conclude contra formam statuti 1
    
    II. The Court erred in excluding the evidence of Bond and Phillips.
    
    1. These witnesses were sworn to give evidence in the case ; was not the objection to their testifying then too late ? It may be said that the statute provides that blacks and mulattos shall not be permitted to be sworn or give evidence. But will a construction be permitted which will allow a witness to be sworn and then preclude him from testifying? Shall not be sworn or give evidence, should be construed as prohibiting these persons from being sworn or giving evidence on affirmation.
    2. The Court had no right, when the witnesses were objected to as mulattos, to determine their color by inspection. If the witnessess were nearer white than mulatto, they were competent; if mulatto, or negro, not. The slightest shade would qualify or disqualify. This is a reason why the Court should decline a task so difficult, not to say so degrading, unless absolutely forced upon them. But it is not forced upon them. The question of mulatto or white is not a question of complexion, but of blood, to be determined not by inspection, but proof. The distinction between mulatto and white is the. distinction of race, not of color. There is every reason why the party making the objection of incompetency should be left to prove it. And such is the decision of this Court in the case of Williams v. School District No. 6, Wright’s Rep. 579, where it is said “In this case Mr. Yanmatre andMr. N. Wright insist that we resort' to the color or complexion to determine who are white persons, and do not inquire of the blood. It is obvious to us that a resort to color would be unsatisfactory. We think the term white, as used in the law, describes blood, and not complexion.” This authority we think conclusive. If the term white described “ blood, and not complexion,” certainly the same may be affirmed of the terms black and mulatto.
    3. The Court erred in excluding the testimony of the witnesses because the case was not one in which the testimony of blacks and mulattos is made incompetent by statute. The parties to the suit were the State.of Ohio, plaintiff, against John Woodson, defendant. The disabling statute applies only to “ any cause or matter of controversy where either party to the same is a white person, or any prosecution which shall be instituted on behalf of State against any white person.” This suit was literally, “ a prosecution instituted in behalf of the State against a” mulatto person. The declaration throughout describes the State as plaintiff, calling on the defendant to “render unto the said State the sum,” &c., “ which to the said State they owe, and from her unjustly detain, ” suing by her attorney ; averring facts whereby “an action hath accrued to the said State of Ohio,” &c. It may be said that the suit is for the use of Borland, and it is claimed that he is white. Grant for the sake of the argument, that he is: still the State is the legal party, having alone right of action; and when the State is the party plaintiff, and the defendant is a mulatto, black or mulatto testimony is competent. It may be said, also, that the term “prosecution,” in the act, relates only to criminal prosecutions. We cannot think so. The Legislature cannot have been so mean as to intend that the State might sue blacks and mulattos in any form, without allowing them to defend themselves by the testimony of persons of their own color. The term “ prosecution ” is broad enough to embrace all actions. The Court will not narrow it by construction so as to work injustice. But suppose the term “ prosecution ” to embrace only criminal proceedings, the question recurs: is this a suit where one of the parties is a white person ? The Statute is a disabling act, and must be construed strictly. This has been repeatedly held by this Court. The class of witnesses disabled by it can be excluded only in the two cases specified: in suits where one of the parties is a white person, and in prosecutions by the State against a white person. This is not a prosecution against a white person. Is it a suit in which a white person is a party ? In other words, is “ the State ” intended by “ a white person,” as used in the Statute ? We think not: otherwise there wouíd have been no special clause relating to suits by the State. But it may be said that Borland is a white person, and the suit is for his use. There is, it seems to us, nothing in this. Borland cannot object to evidence to which the party in whom is the legal interest, and therefore the only right of action, cannot object.
    4. Should the Court be of opinion that we are mistaken in the positions already assumed, we then respectfully ask its attention to the question — Is the act disabling blacks and mulattos as witnesses, compatible with the provisions of our Constitution ? •
    If this act be constitutional, an act disabling all foreigners, all females, all persons of any class, would be constitutional. We do not deny the power of the Legislature to establish rules £of tpe exclusi0n of testimony for crime, or infamous character, incapacity to understand the nature, and obligation of an oath, or for interest. But we do deny its power to exclude from the witness box any entire class of persons, comprehending large numbers, neither criminal, nor infamous, nor incapable, nor interested. We do. deny the power to exclude on the ground of race or color.
    We ask the attention of the Court to the first section of the Bill of Rights, which constitutes the eighth article, “ All men have certain natural, inherent, and inalienable rights, * * * * * amongst which are the enjoying and defending life, and liberty, acquiring possession of and protecting property, and pursuing and obtaining happiness and safety.” How can these rights be enjoyed, or exercised, if the Legislature may at pleasure’jdeprive any man or every man of the testimony necessary to defend his life, or liberty, or property — testimony unimpeached of crime, incapacity, or interest ?
    The seventh section of the same article of the Constitution provides, “ That all Courts shall be open, and every person for an injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law, and right and justice administered without denial or delay.” How can this provision of the Constitution be reconciled with the provision of the Statute? What remedy-can aman have, if the witnesses to establish his case, be excluded ? What is the process to compel the attendance of such witnesses worth, if they cannot be examined when produced?
    It is the duty of the Court to administer “ right and justice.” The Constitution and their oath bind them to do this. But one of the Judges present, speaking for the Court in Bank, in the case of Jordan v. Smith, 14 O. R. 204, said: “In all my experience, both at the bar, and as a member of this Court, I cannot recollect a single case, in which this law has been found subservient to the ends of justice. On the contrary, its uniform effect has been to prevent justice, both public and private.”
    
      We ask, can a law which thus directly nullifies a vital con- jn bahk. stitutional provision, be itself constitutional ? It would be diffi- Dec'Term' cult, we think, to give a reason which would satisfy a plain,-:— honest man that it can be.
    
      J. W. Piatt, for Defendant in Error,
    submitted the case without argument.
   Birchard, C. J.

The first error assigned goes to the sufficiency of the declaration. The right to prosecute a suit upon the bond of an administrator is given by the 182d section of the act to provide for the settlement of the estates of deceased persons, (Swan’s Stat. p., 373,) which provides that after a claim has been allowed by the administrator, if he shall neglect upon demand by the creditor to pay the same, the creditor being by law entitled to the payment, the bond given for the discharge of the trust may be put in suit by the creditor. By this statute several things are required to entitle a party to maintain a suit in the name of the State for his use. Among others, neglect to pay upon demand made. The declaration does not allege that any demand was ever made of Chase, the administrator, nor does it aver any excuse for the omission.

This is a fatal objection to the declaration. . It is not a case of good title defectively set out, which might be cured by a verdict, but a case of defective title, that is bad even after verdict and on error. The demand by the creditor of payment from the administrator, and neglect of payment, is an essential element of the right of action against the obligors in the bond. It is in the nature of a condition precedent, made so by the statute, and therefore indispensable. Several other questions have been presented and ingeniously argued, but as the ruling on the above point is decisive of the case, it is unnecessary to notice them more particularly. The proper time to decide them .will be when a case arises which will make a decision of those points decisive of the controversy.

Judgment reversed.  