
    Williams, Mayor, v. Shiveley.
    
      Negotiable instruments — Purpose and consideration void— Promissory note given as substitute for fine in criminal case- — Fraud in securing signature of maker — Representation that note merely bond or recognizance — Allegations of fraud sufficiently pleaded.
    
    1. In suit on note it is a good defense that note was taken by mayor of municipality, as substitute for fine in criminal case.
    2. Allegation in answer that signature to note sued on was obtained by fraudulently representing that it was bond requiring principal to remain constructively in charge of court held good as against demurrer.
    (Decided June 24, 1926.)
    Error: Court of Appeals for Union county.
    
      Messrs. Blair & Littleton, for plaintiff in error.
    
      Mr. W. R. Mahaffey, for defendant in error.
   Mauck, P. J.

E. E. Williams filed his petition in the common pleas alleging that he is the mayor of the village of West Union and is the owner and holder of a promissory note of which the following is a copy:

“$520.00
West Union, Ohio, December 9, 1924.
“Ten days after date we or either of us promise to pay to E. E. Williams, mayor of West Union, Ohio, for the benefit of.the state of Ohio and West Union, the sum of five hundred and twenty dollars for value received.
“Henry Shiveley.
“Sarah Shiveley.”

It is averred that there are credits on the note in the amount of $120, and that there is due and unpaid from defendants the sum of $400, with interest, for which the plaintiff asks judgment.

Sarah Shiveley filed an answer setting up among other matters these two defenses:

“First defense: That the note herein sued on represents a fine imposed by said E. E. Williams as mayor of the incorporated village of West Union, Ohio, upon the codefendant, Henry Shiveley, upon his conviction before said mayor for the violation of a state law, that there was no other consideration for the giving of said note, and that said mayor had no authority or power to exact said note and that it is void.
“Second defense: That the signature of this answering defendant to said note was obtained by fraudulently representing that it was a bond requiring the defendant, Henry Shiveley, to remain constructively in charge of the court, and for no other purpose.”

The plaintiff filed a demurrer “to the first and second grounds of defense in the answer, for the reason that the same do not state facts sufficient to constitute a defense.” The court, finding this demurrer not well taken, overruled same “as to each of said defenses Nos. 1 and 2,” to which ruling and finding as to each of said defenses plaintiff excepted and asked that “his exception be entered of record.” Judgment was thereupon entered in favor of Sarah Shiveley, and to that judgment error is prosecuted to this court.

The first of these defenses is somewhat obscure. The defense is that the note sued on “represents a fine imposed” by the mayor of the village of West Union upon another defendant in the case “for violation of a state law.” We take it that this plea that the note represents the fine means that the judgment in the criminal case referred to was deemed paid by the giving of the note. If the note represents the fine it must be that the note takes the place of the fine. It might be, if the collection of a fine were postponed, and the benefit thereof accrued to one bound to pay the fine or go to jail in lieu of payment, that a contract to pay the fine might be enforceable on the ground that those signing the contract, after securing the benefits thereof, were estopped from denying the validity of the agreement. That is not the case pleaded here, however. The demurrer in this case admits that the note is a substitute for the judgment in the criminal case. No statute gives the mayor authority to substitute a note for a judgment. If a mayor can substitute a note with good security for a judgment he can likewise substitute one with insufficient or no security. He could under such a state of the law surrender, for a simple promise to pay, a judgment behind which stands the power to imprison for nonpayment. It would be equivalent to an exercise of the pardoning power. It was early held in this state that a public officer has no power to change the form of credit owing to a public body unless soma statute authorizes him so to do. Hunter v. Field, 20 Ohio St., 340.

The second defense is likewise good as against the demurrer. It pleads that the defendant’s signature was obtained by fraudulent representations. It is not specific as to the person or persons practicing the fraud, and was clearly open to a motion to make more definite and certain, but it was quite as full as the allegations of fraud sustained by the Supreme Court in Bennett v. Fleming, 105 Ohio St., 352, at page 364, 137 N. E., 900.

Judgment affirmed.

Sayre and Middleton, JJ., concur.  