
    *The State of Ohio, for use of Monroe Township, v. Geo. Williams, Benjamin Long, and Samuel Pope.
    The treasurer of a township school fund is not a disinterested witness when offered by a township, in a suit against his predecessor in office, to prove-that he received less money than he receipted for to his predecessor on their settlement.
    He can not be admitted to testify on the ground of necessity, to prevent a. failure of justice.
    The township trustees have no authority to release a treasurer from his liability for any portion of the school fund belonging to the township..
    This was an application for the allowance of a writ of error,, to the Supreme Court of Logan county.
    The action was debt upon the bond of George Williams, a township treasurer, conditioned for the faithful discharge of his duties, .and the payment, according to law, of all schools or other public; moneys, which should come into his hands for school purposos,, etc.
    The breach assigned was that he did not pay over to one Moots,, the duly qualified successor of said Williams, all moneys that Game-to his hands, to wit: the sum of $500.
    The plea was non est factum, with a notice, in substance, that, after the qualification of Moots, the successor in office, and on April 14, 1842, he, and the said Williams, had a settlement, and that there was found to be in his hands $340.51, which was then paid over. Also, that there was a settlement on the same day, as-to other funds, embracing all that came to his hands for school purposes, and there was found in his hands $454.85, and notes-upon individuals to the amount of $126.12, for uncurrent money loaned in 1840, by order of the school directors, which, by agreement, was to be paid over when demanded, but that demand had not been made.
    The cause was tried by a jury, before Judges Wood and Birchard, on the circuit, in 1844, and a verdict rendered for the plaintiff. The sum due, in equity, was assessed at $135.05. Judgment-was rendered accordingly.
    *During the trial, a bill of exceptions was taken, showing the following facts:
    That Philip Moots, the successor in office, was offered as a witness by plaintiff, to prove that ho received and receipted for $97 of orders from the school directors which had been previously credited to said Williams, on a prior settlement with the county auditor.
    The witness was objected to as interested, and the objection sustained. The plaintiff then produced a release, to the said Moots, from the trustees of the township, releasing him as treasurer, for the consideration of $100, from all liability on account of any school funds received by him from Williams, late treasurer, except, certain specified funds, and particularly for $583, pi-ovided he should pay $485.97. The execution of the release was proved by one of the trustees, who testified that Conrad and John Moots-had verbally agreed to pay the amount in controversy, if the plaintiff Jailed in the action to recover it of the defendants. To-this release the defendants objected that the said trustees had no-power to release the said Philip Moots from his liability, and to-take the verbal promise of John and Conrad Moots in lieu thereof, which objection was sustained, and the witness excluded from testifying. /
    Stanton & Lawrence apply for a writ, on the ground that the court erred: 1. In ruling out the testimony of Philip Moots;
    2. In determining that the trustees of the township had no power to release him, and restore his competency.
    Wm. Lawrence, for plaintiff:
    Two questions are presented on the record in this case:
    Is the township treasurer a competent witness against his predecessor, to state the amount of money paid over on settlement?
    If the treasurer is not competent on the ground of interest, can the township trustee execute a release of his liability so as to make him competent?
    *1. The township treasurer is a competent witness against his predecessor. If he is not, it is because he is interested in the ■event of the suit. To disqualify him, his interest must be a legal interest in the event of the suit. 3 Term, 33. He has no such interest. . When the treasurer now in office was elected, he became chargeable on the books of the township with all funds 'which he actually received from his predecessor, and no more. If ho gave a receipt or other evidence of the amount received, it is evidence against him, unless he explain it away by proof. His liability to the township can not therefore be affected by the event ■of this suit. If the township recover, the treasurer in office must •charge himself with the amount recovered when paid to him. If the township fail, his liability is not affected, being fixed by the .amount actually received. The township is amply secured against fraud, so far as relates to the amount received by a township treasurer, by section 14 of the act of March 7, 1838. Swan’s :Stat. 830. The interest which disqualifies must be so direct .and immediate, in the event of the suit, that the legal consequences of the judgment will be to better the situation of the witness, by either securing an advantage or repelling a loss. '7 Term, 60. I have shown that no such advantage would be .gained or loss repelled. A transcript of the judgment would be no evidence from which he might derive advantage or repel loss, because it can only be given in evidence for or against the immediate parties to the suit, 3 Term 33; and he is not a party to .the suit.
    It has been repeatedly decided that, in corporations of a public-¡nature, including counties, towns, school districts, etc., the members of' such corporations, though parties to the suit, are competent witnesses.' In the case of Stewart v. Saybrook Township, the township trustees were permitted to testify, which is a case analogous to this. Wright, 374; 5 Ohio, 284; 6 Cow. 367. The reason why officers of public corporations appear to have been decided competent witnesses is, that they have no individual interest. It seems clear that there is not, on the part of Moots, such a present, certain, ^direct, vested interest as to disqualify him, 8 Wheeler’s Dig. 491; 2 Stark. Ev. 745; but, on the contrary, there is only the bare possibility of an uncertain and contingent interest, depending on a settlement under section 14 of the law referred to, or on the event of a suit which ¡might possibly be brought by the township, if he failed to account lor all that his receipt specified he received from Williams, which, according to the authorities, does not disqualify.
    2. Was it competent for the township trustees to execute a release ? Had they power to execute it? Their powers depend ■upon their duties as defined by law. They have, ex necessitate ■rei, power to do every act “ necessary and proper ” to the discharge of their duties. By section 15 of the act to provide for” the incorporation of townships, passed March 5, 1831, Swan’s Stat. 952, it is enacted, “ that the trustees shall settle the accounts of the township treasurer, etc., and examine and settle all demands and accounts against the township; and for every demand .against the township, allowed by the trustees, the creditors shall ■be entitled to receive from said trustees an order on the township treasurer for the full amount thereof.” By this section, the trustees are invested with the power of a general superintendence ■over the whole of the township funds, including school funds, to ■settle demands against the township, etc. By section 19 of the same act, whenever the township treasurer’s bond for township funds shall become forfeited, the township clerk, “ by order of the trustees, ” is required to put it in suit. By ■section 12 of the act of March 7, 1838, “for the support and better regulation of common schools, etc., the township treasurer is required to give bond as treasurer of the school funds, which, when forfeited, is to be prosecuted by the township clerk. Swan’s Stat. 829. By section 13 of the act first cited, it is provided that to the township clerk; “for attending such suits as-may be instituted- in favor of the township, and for any other township business they may require of him. to perform, the-trustees shall allow said clerk a reasonable compensation.” This provision relates to all suits brought on *bonds of treasurers, whether as treasurer of township funds or of school funds. From these provisions, it is apparent that the trustees have the solo management and control of the township funds and township school funds; and that all suits “ in favor of the township ” are to be managed and controlled by them, through the township clerk, and that they settle and allow all proper demands against the township, including necessarily the expense of jxrosecuting suits, attorney’s fees, etc.
    Those powers necessarily carry with them the authority to execute a release. If such authority does not belong to the trustees,, it does not exist, and thus they are clothed with power to sue, but not with the powers necessary to carry on the suit. Such a construction would nullify the objects of the statutes, which courts will always construe in such manner that they shall avail for the-purposes of their enactment, rather than they should fail to carry out the intention of the legislature.
    B. Stanton, upon the same side:
    .Moots was liable to the township for the money that came into-his hands, and no more. The decision in this case could not affect that liability. It is not like a ease where a witness has received money and is admitted to have been once liable, and seeks to discharge himself by testifying that he has paid it to another. The¡ question in controversy must be decided against the plaintiff before the interest of the witness can be established. The record can not be used for or against the witness, because the parties will not be the samo. If the fact be established in favor of the claim set up by Moots, he can not use it, because it may have been found upon his testimony. But if interested, he should be admitted from necessity, to prevent a failure of justice. 1 G-reenl. Ev. 483; 2' Stark. Ev. 753. The case is clearly within the rules laid down by those authors; for settlements between a treasurer and his predecessor arc not required to be in the presence of witnesses. Swan’s-Stat. 830, sec. 14. From the nature of the transaction *it is ordinarily impossible to ascertain the amount of money paid by ■a treasurer to his successor, except by the testimony of one of the parties.
    Again, the trustees have power to restore competency by a release. It is a necessary incident to the power to sue. Th'e power •to sue is discretionary, and carries the power to refuse to sue. The trustees may sacrifice the interests of the township to as great ■an extent by refusal to sue, or by an ill-advised settlement of a pending suit, as by the release of a witness from liability. The law confers power to release. Swan’s Stat. 949, 952.
    If, on settlement with the trustees, Moots shall be able to satisfy •them that he never received this $97, will they not be authorized to allow him a credit for the improper charge ? And will not the allo'wance be binding on the township? Undoubtedly. This shows ■the court were incorrect.
    No argument was presented on the other side-
    A non allocatur was indorsed upon the record, signed by all the judges.
   Birchard, J.

In the settlement that took place between the •defendant, Williams, and his successor in office, the appropriate papers were executed between the two, to evidence the discharge of the former, and the liability of the latter, for the then existing -school fund of the township.

This settlement was required by law. “ At the expiration of the treasurer’s term of office he shall deliver over to his successor in office all the books, etc., belonging to his office, with all moneys and property of every description in his hands belonging to said township, or any district therein, and take the receipt of his successor therefor, and deposit the same with the township ■clerk, within ten days thereafter.” Swan’s Stat. 830. The first •error assigned, makes this question: Was Moots, the successor, a •competent witness to prove that the receipt executed by him, pursuant to this provision of *the statute, was incorrect; that it embraced a sum too large by $97 ?

It may well be admitted that these settlements can be made in the absence of third parties, and that no one but the parties will be able to testify concerning it, for the statute contemplates that better evidence of the particulars of the settlement shall be furnished than the uncertain memory of any witness, and that this «evidence shall be deposited with the superintendent of common schools of the township. The written receipt is the evidence. It is to be deposited with the clerk to show, in all future settlements-with the county auditor, or his successors, the sum with which the-treasurer should be charged.

Much inconvenience, and many abuses, may be expected to occur, if the officers of townships, regardless of the evidence prescribed by law for the safety of the school fund, were generally in the practice of interfering in disputes between two treasurers, and commencing suits in the name of the state, in order to enable one-to avoid the liabilities incurred by his official voucher, and by means of his own testimony, to cast the burden upon the other, whom that voucher was designed to protect. Under such a course of practice it is not difficult to see that the means of securing the school fund, and a correct, safe system of accountability on thia part of the officers intrusted with it, would be inefficient, and uncertain.

On the other hand, if they will be governed by the legal evidence pi'ovided by law, instead of attempting to amend it by the-oaths of the parties, whose duty is to furnish that evidence, their task is plain, as it is safe for the public. This view of the issue makes it substantially, and in fact, a controversy between Williams and the witness Moots. The one was interested in maintaining the payment of the ninety-seven dollars in cash; the other in controverting the payment. It is something strange, if Moots’ interest was not equal to Williams’. He had given a receipt, prima facie, discharging Williams, and was liable to an action for the money if he had received it, and if ho had not received it, liable for a careless, or faithless performance of duty in discharging the-same, without receiving it. A *man of sound common sense, viewing the question upon its merits, untrammeled by any supposed technical rule, would not hesitate to declare it unfair and inequitable to permit Moots to testify to the truth ol his own statement, and to deny to Williams the advantage of his oath to the truth of his counter statement. When a rule of law works an absurd result in a particular case, it is, in general, worth one’s while to cautiously examine, and see that it is not misapplied. It seems-to us that no rule can be correctly applied to this case, which will-result in the conclusion that Moots was disinterested, and a competent witness.

Counsel have argued as if the true test of interest were, whether or not the verdict might be used in a suit in any way for or against the witness. If it could be so used, it is obvious he would bo incompetent, yet it by no means follows that if it could not be so used, he would be.disinterested. “ The law,” says Gilbert, “ looks upon a witness as interested, when there is a certain benefit, or disadvantage, attending the consequence of the cause one way.” Thus, a person who has deposited with the sheriff a sum of money in lieu of bail, which, by rule of court, is to abide the event of suit, is not competent for defendant. 1 Phil. Ev. 63 ; Cowen and Hill’s Notes, 114, and cases there cited.

The auditor of Logan is superintendent of the common school® for that county. Swan’s Stat. 835, sec. 29. The clerk of Monroe is superintendent for the township. Swan’s Stat. 832, sec. 21. Both are presumed to have knowledge of the state of this school fund. In the annual settlements with these officers, by the township treasurer, they should rely upon the evidence provided by law, and the legal presumption is, that they would do their duty. If that evidence charge Moots, as treasurer, with this sum of ninety-seven dollars, they ought to make him account for it, and leave him to resort to his personal action against Williams, provided he gave the discharge without consideration. He is the one who is .interested in correcting the error, or mistake, and the way to correct it is by a suit in his own name, in which he can not bo a witness for himself, but by bill *may compel Williams to answer under oath, and use that answer himself in support of his claim. The bringing of the suit by the township is a device that makes no change in the.nature of the controversy. Is it true that a recovery would be no direct advantage to Moots ? If he bo sued after the money shall be collected of Williams, will he not be able to trace that money into the possession of the township ? Can the township maintain an action for money had and received by Moots, when his proof will show that the identical money was in its possession, and that he did not receive it?

But it is contended that if interested, he should have been allowed to testify to prevent a failure of justice, and Greonleaf and Starkie are cited in support of this position. They fail to do it. We have already seen that the law contemplates written evidence; that no necessity exists, in cases of this description, for a resort to parol proof. The receipt in question should have specified the amount received in money, and the orders, and other projjerty, should also have been specified. If money was receipted for when only a canceled order was handed over, it was an act, not of necessity, but of carelessness, or folly, and one which furnishes not the least ground for a departure from general principles.

The next inquiry is, had the town trustees any right to release the demand? It is claimed that they had the right, as an incident to the authority to sue; and the act of 1831, Swan’s Stat. 952, 953, is cited to show the authority. Section 1 confers upon the township the capacity of suing and being sued. Section 15 authorizes the trustees to settle the accounts of township treasurers. Section 19 makes it the duty of the treasurer to execute a bond to the trustees, and their successors in office, “conditioned for the faithful receiving, and paying over, all moneys which may come into his hands, for the use of the township,” to be deposited with the clerk, and, when forfeited, by him sued, on the order of the trustees. This law has no reference to the school funds. It relates to a different subject, and can not be made to conflict with the provisions of the act of March 7, 1838, Swan’s Stat. 824, the ' *first eleven sections of which provide for the creation of the fund, and its uses. Section 12 constitutes the treasurer of the township treasurer of the school funds of the township, and re■quires him, “ on his election, to give bond with sufficient security, payable to the State of Ohio, to be approved of by the trustees, for the faithful disbursement of all such funds as shall, from time to time, come into his hands, and on the forfeiture of said bond, it chalí be the duty of the township clerk to prosecute and collect \he same for the use of the township.” Section 14 proves for the mode of disbursement, and the fifteenth for annual settlements with the county superintendent, and with the successor in office. 'Thus it will be seen that the two statutes do not conflict. Each (Operates on an appropriate subject. The township fund for civil purposes, and the township fund for the support of schools. Each fund is secured by a separate bond, and, in many respects, controlled and managed by a distinct class of officers. The trustees of the township have no right to control the school fund, no right •to interfere, or meddle, with the treasurer’s bond given to secure it, except to approve of the sureties. The right to sue it, is vested in the township clerk, and with this right the trustees can not interfere. A discharge by them of the bond, or of any demand which it was intended to secure, is a perfect nullity, because the power has not been granted to them expressly, and can not be taken by implication, as incidental to any expressly granted power. Application refused.  