
    Charles Famulener v. John R. Anderson and others.
    1. Where a person called as a talesman has already served as a tales juror at the same term, so far as to have been sworn and heard all the evidence in the case, although the case was then'compromised and the jury discharged without a verdict, he is within the causes for challenge enumerated in the act of February 25, 1859, a to amend section fourteen of an act entitled an act relating to juries,” etc.
    The case of Ohio v. Boring, 15 Ohio Rep. 507, followed and approved.
    Error to the common pleas of Ross county. Reserved in the district court.
    The record shows, that Anderson was elected sheriff of Ross county at the October election, 1854; and that, afterward, on November 28, 1854, he gave bond to the State of Ohio, .in $12,000, with Hough, Carson, and Amberg as sureties, com ditioned for the faithful discharge of his duties; which bond was, the same day, received, approved, and accepted by the board of county commissioners, in behalf of the state.
    It also appears that in 1856, Anderson, as sheriff, collected •and squandered some $1950 due to the plaintiff. In March,1 1861, the plaintiff brought suit in the Ross common pleas ■upon the bond, against Anderson and his sureties, to recover the amount so converted, with interest. Anderson, who had ■become insolvent, suffered judgment to go against him, by default, at the June term, 1861, for $2270.17. But the sureties answered and denied the execution of the bond.
    At the November term, 1861, of the common pleas, the cause was tried before a jury, and, under the instructions given by the court, a verdict and judgment were rendered for the defendants.
    Exceptions having been taken on the trial, the plaintiff afterward filed his petition in error in the district court of Ross county, for the reversal of the judgment in the common pleas.
    At the October term, 1862, the district court reserved the cause to this court for decision.
    The record shows that, during the trial below, the sheriff called to the jury one Ludwig List, a talesman, who, as it appeared, had, on a former jury trial of the same term, served as a tales juror, by being sworn, sitting during an entire day’s session of the court, and hearing all the testimony in the case; after which the case was compromised, the jury discharged without verdict, and a judgment rendered for one of the parties; that thereupon, the plaintiff challenged said List from the jury, for such cause, but the court overruled the challenge, and permitted List to serve on the jury. To which ruling the plaintiff excepted.
    The record further shows that, during the trial below, and after the plaintiff had produced the bond of Anderson in evidence, and had proved the signatures thereto, and its delivery by Anderson to the board of commissioners, and its acceptance, the parties offered further evidence, proving, or tending to prove, that when Anderson and the sureties signed and sealed the paper writing, it contained no penal amount, but had a blank space left therein for the. future insertion of the penalty; that the sureties then knew the paper was incomplete as a bond, and knew it was to be Anderson’s official bond when completed; that, during the signing, Amberg, in the presence of Carson (Hough being absent), asked what the amount of the bond was to be? to which Anderson replied that the board had not then fixed the amount, but would do so that day, to which reply neither surety objected; that Anderson then took the paper away, after which the sureties did not again see or hear of it for four or five years; that, after taking it away, Anderson got the prosecuting attorney (who had originally drawn the paper) to fill up the blank space, left for the penalty, with the words “ twelve thousand dollars,” in the absence of the sureties, and without their express authority or knowledge; and that, after such filling and completion of the bond, Anderson delivered it to the board, who thereupon approved and accepted it as Anderson’s official bond.
    Thereupon, the plaintiff moved the court to instruct the jury:
    “ First. If the jury shall be of opinion that the blank lteft in said bond for the _ amount of the penalty, as first drafted and as signed and sealed by said Anderson, Hough, Carson, McGinnis, and Amberg, was afterward, by either the said Anderson or the prosecuting attorney of the county, at the request of said Anderson or any of his said sureties, filled up with the words ‘twelve thousand dollars,’ before the bond was delivered to the county commissioners for acceptance and approval, and that after such filling and before such delivery, ■the said defendants acknowledged to said prosecuting attorney that the bond so filled was 'their bond, then the jury must find a verdict for the. plaintiff against such of said sureties defendant as so acknowledged the same.
    “ Second. If the jury shall be of opinion that said blank in said bond (left for said penalty) was, by said prosecuting attorney, at the request of said Anderson, or either of said other defendants, filled up with said words ‘ twelve thousand dollars/ after the bond had been signed and sealed' by the defendants, and before the same was delivered to said county commissioners for approval and acceptance, then the jury must find a verdict for the plaintiff against said Hough, Carson, and Amberg
    !' “ Third. If the jury shall be of opinion that said blank in said bond (left for the penalty) was by said prosecuting attorney, after said signing and sealing, filled up with said words ‘ twelve thousand dollars/ with the assent or expectation of said sureties defendant (either expressed or implied) that said blank should be so filled, and that the bond, after ■being so filled, was delivered to the county commissioners for approval and acceptance, and was, on such delivery, approved and accepted, by them, then the jury must find a verdict for the plaintiff against said Hough, Carson, and Amberg.
    “ Fourth. If the jury shall find that when said bond came to the hands of the county commissioners for approval and acceptance it was full and complete, and had no blank or blanks therein, and was signed by all the defendants, and was on such receipt approved and accepted by the commissioners, the jury must, in the absence of fraud in obtaining it, find-a verdict,for the plaintiff against said. Hough, Carson, and ^Amberg.
    ■ “ Fifth. If the jury shall find that the said Anderson, at the time when said bond was sigDed and sealed in blank as to ■the penal amount, as aforesaid, by said Hough, Carson, McGrin■nis and Amberg, told them that the county commissioners had not then fixed the penal amount of the bond, but that ■they would do it; and that, as soon as they should do so, the -amount so fixed by them would be filled in said blank in the bond, then that such statement of Anderson, in the absence of any objection from said sureties, amounts in law to. sufficient authority from said sureties, to said Anderson, or any other person for him, to fill up the said blank with the penal amount fixed by the commissioners at any time before delivery of the bond to them for acceptance.”
    Whereupon the court then gave to the jury the first instruction asked for, but refused to give to the jury the second, third, fourth and fifth instructions asked for; but did charge the jury that if they should find that said sureties, Hough, Carson, McGinnis and Amberg, signed and sealed said bond in blank, ■ as to penal amount, then that such fact alone, without express authority or request from them, did not in law amount to, authority or a binding request, on their part, to the said Anderson, or any other person for him, to fill up afterward the said blank with the penal amount; in other words, that the signing and sealing of said bond, (by the sureties who are ■ defending this suit) in blank as to the penalty thereof, gave no implied authority to said Anderson, or any one, to fill up said blank with the amount of the penalty. The court further said to the jury that, as there was no proof offered tending to show that said sureties, or either of them, gave any express authority, either verbal or written, to said Anderson, or any one else, to fill said blank with the amount of the penalty— that it was unnecessary to charge them as to what the law would be on that point in case such proof had been offered j but did charge the jury that if they found that said defendants (the said sureties) or either of them acknowledged the said bond to be their bond after the amount of the penalty had been filled up in the blank, or consented to such filling up when or'after the same-was done, that then their verdict should be for the plaintiff, and against such of the said defendants as may have so acknowledged or consented.
    To which refusal to charge, and to the charge as given, the plaintiff excepted.
    
      S. S. Cooke and Milton L.' Clarke, for plaintin in error.
    
      A. G. Thurman, John L. Green and Alfred Yaple, for defendants in error.
   Bkinkerhobt, C.J.

The act of February 25, 1859, “to amend section fourteen of an act entitled an act relating to juries,” etc., 4 Curwen’s St. 3180, provides, that “any person who shall have served once already on a jury as a talesman in the trial of any cause in the same court during the term, may be challenged for such cause,” etc.

We think that on the facts stated in the bill of exceptions, the juror, List, was brought fairly within this cause of challenge prescribed by the statute, and that the court below erred in overruling the challenge.

But on the second point assigned for error, we are of opinion that there was no error in the charge of the court below as given to the jury, and none in its refusal to charge as requested. It seems to us that both the charge as given and the refusal to charge as asked, were required by the law as laid down by the supreme court of this state in Ohio v. Boring, 15 Ohio Rep. 507; and after listening to arguments of unusual force and ability, and giving the matter the most thorough consideration of which we are capable, we are not prepared to say that the law was not ruled correctly in that case.

The law, as we find it to be, may call for the reforming Hand of legislation, and, for myself, I think it does; but we can not legislate.

Por error in overruling challenge to juror, the judgment is reversed, and cause remanded.

Scott, Day, Welch and White, JJ., concurred.  