
    Calvin K. Warner v. The Baltimore and Ohio Railroad Company.
    1. Where a jury of twelve men was selected and summoned for the trial of a cause before a justice of the peace, under the act of March 30,1875 (72 Ohio Laws, 159), and before the day set for trial this act was repealed by another (73 Ohio Laws, 14), which provided for a jury of six men for such trials; Held, That the act in force at the time of the trial governed, aud that the justice erred in submitting the cause to a jury of twelve men.
    2. Where a contract is attested by a witness, such witness must be called or his absence accounted for, before the testimony of other witnesses can be received to prove that the maker’s signature is genuine' or was admitted by Mm to be genuine.
    •3. Under the act of April 18, 1874 (71 Ohio Laws, 85), an action will not lie in favor of a land owner against a railroad company, to recover the cost of building' a fence along the line of a railroad, where a former owner of the land, for a consideration, released the right of way for the railroad over the lands, and agreed to build and keep up fences on both sides of the line of the r.oad.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Licking county.
    Warner brought an action before a justice of the peace to recover of the railroad company the cost of building a fence, under the amended act of April 18, 1874 (71 Ohio-Laws, 85).
    The writ issued for the appearance of the defendant on the 14th of February, 1876. On that day both parties appeared, and on the demand of the plaintiff) a jury of twelve men was struck, and by consent of the parties the case was adjourned to March 15, 1876, for trial.
    • In this interval, i. e., March 4,1876, the law authorizing-a jury of twelve men before a justice of the peace, was repealed (73 Ohio Laws, 14), and the repealing act provided for a jury of six men.
    By several bills of exception, which are made part of the-record, the following facts appear: On the day to which the ease was adjourned for trial, viz., March 15, 1876, before the jury was sworn the defendant moved the court to-set aside the array of twelve jurors, on the ground that the-law authorizing such a jury before a justice had been repealed. The motion was overruled, and the defendant excepted.
    The jury of twelve men was then impanneled and sworn, and the trial proceeded.
    The plaintiff' introduced testimony tending to prove “ that the line of his land adjoined the line of the defendant’s-railroad and other testimony tending to prove his claim. “The defendant then proved by one Sperry, on ci’oss-exammation, that one Jacob Bell owned the land for thirty-five years last past up to his death, and that he died one year ago last October.” The defendant then offered in evidence-a sealed instrument, dated in 1849, and purporting to be-executed by Jacob Bell and attested by one J. W. Webb,, which showed that Bell, in consideration of one hundred and fifty dollars to him paid by the Columbus and Lake-Erie Railroad, released to the company the .right of way sixty feet wide over “ any lands I own which lie on the line of the company’s road,” and also agreed “ to build and sustain all fences on both sides of said roadway.” The defendant proved by one Sperry that the instrument “ was signed by Jacob Bell, that it was his signature; and then called William Alsdorf and offered to prove that the instrument referred to was shown to Jacob Bell, in his life time, and in his presence, and that Jacob Bell admitted that the signature to the paper was his, and that he made it, and that it. was the right of way he gave to the railroad company.”' The attesting witness was neither called nor his absence accounted for. The court rejected the evidence and the instrument, and refused to permit it to go to the jury, and defendant excepted.
    The defendant then offered in evidence a duly certified transcript of the recorder of Knox county, showing that the-sealed instrument above mentioned, and which was therein copied, was recorded in that county, July 28, 1868 ; and in connection therewith offered to prove by the witnesses Sperry and Alsdorf, “that the railroad wras on and over the lands therein described, and that the west line of said lands of Jacob Bell was the line upon which the plaintiff had built the fence for which suit was brought.” Which evidence and transcript the court rejected, and the defendant excepted.
    There was a verdict and judgment for the plaintiff. On. error prosecuted by the railroad company, the judgment, was reversed by the court of common pleas; which judgment was affirmed on error in the district court.
    Warner now asks leave to file a petition in error to reverse the judgments of the district court and court of common pleas.
    
      Gr. Atherton, for the motion.
    
      Charles JEL. Kibler, contra.
   Gilmore, J.

1. Did the justice err in overruling the motion of the defendant, at the trial, to set aside the jury •of twelve men ?

By the provisions of the act in force at the time the jury was selected and served with process in the case, a jury of •twelve men was legal before a justice of the peace.

After the jury had been so selected and served, but be-before the day of trial, an act was passed abolishing the jury of twelve, and substituting a jury of six men as the legal jury before a justice.

On the day of trial the defendant moved the justice to •set aside the jury of twelve men, on the ground that the law in force at the time the jury was selected and served, had subsequently been repealed. The motion was overruled.

It is settled in this state, that the constitutional provision in reference to the right of trial by jury, does not apply to “trials before justices of the peace. Work v. The State, 2 Ohio St. 296; Norton v. McLeary, 8 Ohio St. 205.

It is, therefore, a subject over which the legislature has control.

The power of the legislature to reduce the number of jurors from twelve to six, as was done by the act of March 4, 1876, can not be questioned. There is no clause in this act, expressly saving the right to a trial by a jury of twelve men, in actions pending at the time the act was passed and took effect.

It is contended by counsel for plaintiff that the act of February 19, 1866 (S. & S. 1), saved the right of the plaintiff to a trial by a jury of twelve men in this case. The ■act saves pending actions, prosecutions, or proceedings in civil and criminal cases, and also saves the causes of such actions, prosecutions, or proceedings. It was intended to preserve existing rights, and its provisions do not relate to the remedies by which such rights may be asserted or obtained. Demedies always have been subject to legislative control, except to the extent which the constitution has limited such control. As has been shown, jury trials before justices of the peace are subject to legislative control. They are simply one of the means by which justice is administered in those courts. They are remedial in their nature, for they may be given or taken away, at the pleasure of the legislature; and while there exists a right of appeal from the judgment of a justice of the peace, to a tribunal in which a trial by a jury of twelve men can be-had, no constitutional or legal right is violated by changing the number of men that shall constitute a legal jury for the trial of a cause before a justice.

In this case, at the time of the trial, the justice had no-legal authority to impanel a jury of twelve men, and therefore erred in overruling the motion of the defendant, to set aside the jury of that number.

The court of common pleas did not err in reversing the-judgment on this ground,- and its judgment of reversal was properly affirmed by the district court. The motion in this court must be overruled on the same ground.

There are other questions presented on the record, and argued by counsel, which may become important in the-case, if it is again tried in the courts below, and upon which, we therefore deem it proper to express an opinion.

2. Did the justice err in rejecting as evidence the written-instrument by which Jacob Bell released the right of way over the lands in question, to the Columbus and Lake Erie-Railroad Company?

There was but one attesting witness (J. "W. "Webb) to the instrument, who was neither called nor his absence accounted for.

The defendant, before offering-the instrument in evidence, (1) proved by one Sperry, that the signature of Jacob-Bell to the instrument was genuine, and (2) offered to-prove, by one Alsdorf, that Jacob Bell, -in his lifetime, in his presence, admitted that the signature to the paper was-his.

This testimony was incompetent, under the circumstances,, to prove the execution of the instrument.

The testimony of the 'attesting witness would have been-, ■the highest and best evidence of the due execution of the instrument; and until he was called, or his absence accounted for, secondary evidence was not admissible to prove that the maker’s signature was genuine. 1 Greenleaf’s Ev., sec. 569.

Neither was the admission of the maker, that his signature to the instrument was genuine, without first calling the attesting witness, or accounting for his absence, receivable in evidence. Zerby v. Wilson, 3 Ohio, 43.

A transcript copy of the instrument, duly certified by the recorder of Knox county, where it is recorded, was next offered in evidence by the defendant. There is but one attesting witness to the instrument, and it was never acknowledged before any officer. The law makes no provision . for the recording of such an instrument (S. & 0. 458), and for this reason a certified transcript of such a record is not admissible. Johnson v. Haines, 2 Ohio, 55; Webster v. Harris, 16 Ohio 490.

The justice did not err in rejecting the testimony offered to prove the execution of the instrument, nor in rejecting the instrument, nor in rejecting the certified transcript of the record of the instrument.

3. Suppose the execution of the instrument had been duly proved, and it had been admitted in evidence, and the ■defendant had, in addition, proved, by competent testimony, that the defendant railroad company had succeeded to all the rights of the Columbus aud Lake Erie Railroad Company, under the instrument; how would such testimony have affected the plaintiff’s case?

We think it would have been fatal to it.

It was a statutory action, brought under the act of April 18, 1874, which requires railroad companies to fence their roads on both sides, “ except as hereinafter provided and upon their failure to do so, the land-owners, over which the railroad runs, may build the fences, and upon complying with the provisions of the statute, may recover the cost of the fence from the railroad company. The plaintiff’s cause of action was a claim for-building a fence along the railroad, on the line of lands formerly owned by Jacob Bell, who, by the written instrument above referred to, for a consideration, released the right of way over the lands, and agreed to construct and keep up fences on both sides of the road. This is substantially the way we understand it. If we are correct, the case falls within the following-proviso of the statute: “Provided further, that this act, so far as it relates to fences or private crossings, shall not apply to any case in which compensation for building a fence or fences, or a private crossing, was, or shall herealter be, taken into consideration and estimated as a part of the consideration to be paid for the right of way, so far as the fence or right to private crossing were or shall be settled and paid for.”

The fence which the plaintiff built, and for which lie seeks to recover, is built on the line that Jacob Bell, for a consideration that was paid, agreed to build it. This being so, the plaintiff’s case is within the exception, and for this reason we think he can not maintain his action under the statute.

Motion overruled.  