
    The State of Ohio, on relation of David R. Kemper, v. Lyman Beecher; The Same v. Calvin E. Stowe; The Same v. D. H. Allen.
    Proceedings ean not ho had under tho statute regulating writs of quo warranto to oust an officer, where the cause of ouster originated and existed more than three years prior to the time of filing the information.
    
      These three cases were reserved in Hamilton county, and arise under the act regulating writs of quo warranto.
    
    The three cases depend upon the same pleadings, and were submitted to the court upon such of the issues as set up the statute of limitations as a bar to the information.
    From the information it appears that the Lane Seminary was incorporated by an act of the legislature, passed February 11, 1832. Section 3 of this charter, among other things, requires that all the professors, tutors, teachers, and instructors in 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.
    The information states that the defendant, Lyman Beecher, who is not a member of the Presbyterian Church, specified in the charter of the Lane Seminary, did, on May .11, 1835, usurp and intrude, and from that time until the commencement of this suit, hath usurped and intruded into, and now unlawfully holds and exercises the office of professor of theology, in said seminary, without any legal appointment or qualification, or due warrant of law.
    This information was before this court at its last term, and was then, as was also the act incorporating the Lane *Seminary, considered and construed. The information has not since been in any way altered.
    Since the last term of the court, the defendants have filed a new set of pleas; but those only are,.considered by the court which interpose the statute of limitations as a bar of further proceedings. These are the third, fourth, fifth and sixth.
    3d Plea. This sets forth the appointment of Dr. Beecher as professor of theology, with the express understanding that he should after become a member of the Presbyterian Church, according there to the charter; that ho did afterward unite with the church, and was on December 26, 1832, inaugurated into office, entered upon its duties, and has since held the office and performed upon its duties, and still does, by virtue of said ajjpointmont, and, so he in fact saith, this suit was not commenced within three years next after the cause of ouster in the information mentioned. This plea concludes with a verification, and to this is added a special traverse of any intrusion into, or unlawful holding of said office, before or since May 1, 1845.
    
      Replication. The replication denies all the facts stated in the pica, alleges that the defendant is not now, and was not at the commencement of the suit, a member of the Presbyterian Church, as required by the charter, and says the suit was commenced within three years next after the cause of ouster mentioned in the information. Issue is joined to the country.
    4th Plea. This plea sets forth the same facts as the last, relating to the appointment of Dr. Beecher, his inauguration, and his entering upon the duties of professor, etc., and adds, “ and so the defendant in fact saith that this proceeding was not commenced, nor was said information filed, within throe years next after the cause of ouster in said information mentioned, arose and accrued.” This plea also concludes with a verification, followed by a special traverse, as in the third plea.
    Replication. The state, protesting that the facts stated in the *plea are an insufficient bar, denies them; alleges that the defendant is not now, and was not at the commencement of the suit, a member of the Presbyterian Church, as required by the charter of the seminary, and says, that the information was filed within three years after the cause of ouster therein mentioned, accrued. Issue joined.
    5th Plea. The defendant protesting that he is a member of the Presbyterian Church, etc., that he did not on May 1,1845, or before or since, intrude into the office of professor—that he does not hold and exercise, and has not at any time held and exercised said office, without legal appointment, or qualification, or legal warrant— nevertheless says this proceeding was not commenced within three years next after the right of the defendant to hold said office accrued. This, like the last plea, concludes with a verification, and a special traverse, of the intrusion, or unlawful holding and exercising said office, before or since May 1, 1845..
    Replication. Protesting that the matters set up in the plea are insufficient as a bar; says the defendant never had any right to hold said office.
    6th Plea. Defendant protesting that he is a member of the Presbyterian Church, etc.—that he did not, on May 1,1845, usurp and intrude, and has not before or since intruded into, and usurped said office—that ho does not hold and exercise, and has not at any time held and exercised said office without legal appointment, or qualification, and duo warrant of law, nevertheless says this proceeding was not commenced, etc., within three years next after the cause of ouster, mentioned in the information, arose and accrued. This also concludes with a verification and a special traverse.
    Replication. That the proceeding was commenced within three years next after the causo of ouster mentioned in the information accrued. Issue.
    Wrights & Miner and Fox & Lincoln, for the relator.
    *S. P. Chase, Henry Starr, and C. L. Teleord, for defend-
   Birchard, C. J.

The testimony presented in these cases shows that these three defendants are entitled to hold their several professorships, unless the convulsion, which in 1838 separated the Presbyterian Church into two great divisions, has disqualified them. Which of those two bodies now constitutes the true general assembly of the Presbyterian Church in the United States, within the meaning of the act incorporating the Lane Seminary, is a question that we can not be required to determine in these proceedings. Eaeh'division claims to be the true genoi-al assembly, and, for purposes of distinction, one is called the Old School General Assembly, the other the New School General Assembly. It is one of those unfortunate schisms of a respectable body that is to be lamented, but probably not to be healed, or likely in any manner to be benefited by the intermeddling of rude hands. Wo do not, therefore, in the least regret to find these cases so presented that we can not, with propriety, be called upon to investigate the merits or demerits of either the exscinding or exscinded divisions of these respected and venerated bodies. The precepts of Him whom they both profess to worship, and who spoke as never man spake,” will be a sure guide to harmony and peace,-and it is to be hoped, that at no distant day, the influence of those precepts will restore unity and Christian fellowship between the churches of the two general assemblies, together with a spirit of fraternal harmony, so that being again united by a common faith and common rules of religious government, there may be no disposition or occasion to invoke the aid of the civil tribunals, in a controversy alien to the objects of all Christian association, and which should never have been permitted to disturb the prosperity or endanger the usefulness of the Presbyterian Churches of the United States

These defendants have, since the unfortunate separation, caused by the exscinding resolutions of the general assembly, *adhered to that division of the church known as the New School Assembly. They are among its most -valued public teachers, both in precept and example; and if it be true that to thus belong to that body, disqualifies them for the professorships which they respectively fill, the cause of disqualification occurred more than three years prior to. the commencement of these proceedings. Hence, the question arises, admitting it to be a cause of ouster, can they be reached under our statute, and ousted by these j>roceedings ?

These suits were instituted under the act passed March 17,1838 (Swan’s Stat. 769), and fall within the first class of cases enumerated in section 1 of the act: “ The unlawfully holding and exercising of office in a corporation created by the authority of this state.”

The defense presented by the plea is made under the provision of section 26, page 775, of the statute, which reads thus :

“ Nothing in this act contained shall authorize any proceeding,” etc. “Nor shall any proceeding be commonced under this act, against any officer, to oust him or her from office, unless such proceeding shall be commenced within three years next after the cause of such ouster.”

This language seems to us sufficiently explicit, and to admit of very little doubt as to the intention of th.e general assembly in employing it. We can not hesitate in coming to the conclusion that the right to proceed by quo warranto, is denied after the lapse of three years from the time the right to prosecute first existed. Any other construction would practically annihilate this portion of the statute, and leave a large class of cases without any bar. There is, in our estimation, no propriety in considering each day’s continuance in office without the requisite qualification of a new cause of ouster. Such a refinement of construction can not be allowed, because its tendency is destructive to the letter and spirit of the law. It would extend the application of this remedy to all officers who originally entered upon office without authority, notwithstanding an incumbency of more *than twenty years. The legislature never intended that this process should be used for such a purpose. Their object was to secure peace after a certain period, and to allow no one to question a right, in this form, that he had acquiesced in for three years, and the exercise of which, for that period, bad been so harmless as to give no occasion for complaint.

In Ohio v. Granville Alexandrian Society, 11 Ohio, 9, it was said that “ if the proceeding is against an officer, to oust him from office, it must be commenced within three years after the'cause-of such ouster shall have arisen.”

We can see very little of the analogy discovered by counsel between the action for false imprisonment, and this proceeding. It is true that a bar of the statute of limitations would not be good as to that portion of the imprisonment subsequent to the six years. The case cited from Angelí, to that effect, is undoubted law. The reason of that decision is, that each day’s continuance of the body of a person in custody, is a distinct trespass, and may be treated as such. The other cases cited in support of the relator’s views, seem to have still less application, and need not be further noticed..

But it has been said, “ It can not be that because a man has. been permitted to usurp an office for which he has not the qualifications required by the charter, he may continue to usurp indefinitely, because three years have elapsed since the first aggression.”

It is quite a sufficient answer, to state in reply, that this remedy in such a case is forbidden in decisive language. But it by no méans follows that because it is denied there is no remedy. If these defendants are usurpers, the trustees of Lane Seminary have ample power to make a new cause of ouster by removing them from their professorships, and electing others to fill their places.

It is the stranger only, whose hands are quieted by operation of the statute. Judgment for defendants.  