author: G-holson, J.

text:
    *Jacob Bisher v. Milverne Richards.
    .1. In a case of which the court of common pleas would have had original jurisdiction, brought into that court by appeal from a justice of the peace, if the parties proceed to trial upon the merits, without objection to the mode in which jurisdiction was taken, it is too late after verdict to make such an objection.
    '.2. In an action brought by a supervisor to recover damages sustained by the traveling public on account of .the deepening of a ford on a county road, by the elevation of a dam erected for the use of a mill on the stream crossed by the ford, evidence that the inconvenience to the public would have been removed by a change in the bed of the stream, which could have been easily made, and which the defendant, the owner of the land and mill, before the commencement of the action, offered to make, but was not permitted to make by the supervisor, is competent upon the question of damages to be .ascertained and assessed by the jury.

      3. The laying out a state road over the same ground upon which a part of a county road was established, does not extinguish the county road. The two may well co-exist as to the part occupied in common, for the benefit of different classes of the traveling public.
    In error to the district court of Highland, county.
    The defendant in error is the supervisor of a road which passes through the land of the plaintiff in error.
    A stream of water flows through the land, upon which the plaintiff in error and those under whom he claims had, as early as 1806, erected a mill. A county road, which was laid' out in 1813, crosses this stream. This crossing, from the time of the laying out of the road up to the commencement of the action, was by means ■of a ford.
    The plaintiff in error having raised his dam, the water at the ford was so deepened as to render the crossing more difficult. Eor this obstruction an action was brought by the defendant in error, us supervisor, before a justice of the peace. This action was defended before the justice, and a judgment was rendered against the plaintiff in error. He took an appeal to the court of common pleas. In that court the defendant in error filed his petition, setting forth *two causes of action, one for an obstruction by raising the dam, the other for an obstruction by means of a fence across the stream below the ford. To this petition the plaintiff in error filed an answer setting up different grounds of defense. No objection to the jurisdiction was then made by the plaintiff in error, but the case proceeded to a trial upon the issues presented by the petition and answer.
    All the evidence offered is set out. Three bills of exceptions contain a statement of the evidence bearing upon the rulings of the judge to which exception was taken.
    From the first bill of exceptions it appears that “ evidence having been offered tending to show that the defendant and those under whom he claimed had for a long space of time before the commencement of this suit, to wit, from the year 1806 (except at intervals for short periods of time, when the same had been destroyed by fire and flood), kept up and used mills on the said creek in the said petition mentioned, at a point below the point where said road in the petition mentioned crosses said creek, the machinery of which had been and was propelled by the waters of saidxcreek, and kept, up and maintained at the point where the dam of the defendant now stands, a dam not uniformly of the same height, for the purpose of turning the waters of said creek to the said mills. The defendant, to mail tain the issue on his part, then offered to prove by the testimony m WTcneooe3 that at the time of the obstruction claimed by the plaintiff to have been made in the said road, the defendant was-using no more of the water of said creek by means of said dam than was necessary and convenient for propelling the machinery of his said mills. Which evidence being objected to by the plaintiff’s counsel, was not permitted by the court to go to the jury,” and the defendant excepted,
    From the second bill of exceptions it appears that “the defendant, to maintain the issue on his part, called a witness and offered. to prove, in mitigation of damages, that *the said witness was one of the commissioners of the county, and that he had visited the ford in the creek mentioned in the petition, which is charged therein to be obstructed by the defendant’s mill-dam, and that said ford in said creek could be amended and said obstruction removed by filling up said ford. And, further, that the defendant offered,, when notified of said obstruction, before the commencement of this suit, to remove the said supposed obstruction in said road, by filling up said creek, and making said ford as safe and convenient for travelers and persons using said road mentioned in said petition as-it was before said obstruction was put in said road, which the plaintiff refused to allow him to do, and which said testimony being objected to, was refused by the court, and, on motion of the-counsel for the plaintiff, the court excluded said testimony from the-jury, and the same was overruled,” and the defendant excepted.
    The third bill of exceptions sets out the record of the survey and location of a state road over and upon the same ground before covered by the county road, and other evidence offered by the plaintiff in error to establish the proposition that the county road became-merged in the state road, and that, therefore, the defendant in error, as supervisor, had no interest in or concern about it. But the defendant in error objected to this testimony, and the court excluded it, and plaintiff in error excepted.
    The verdict of the jury having been against the plaintiff in error, he filed a motion to set it aside, and for a new trial, on the grounds, that the verdict was against the law and the weight of the evidence,, and because the court- erred in overruling the evidence offered by him.
    The court overruled this motion, and rendered judgment upon the verdict. And to reverse this judgment'the plaintiff in error filed his petition in error in the district court, insisting that the common pleas erred:
    1. In assuming and exercising jurisdiction of the case, *because the justice of the peace from whose judgment the appeal was taken, had no jurisdiction of the subject-matter of the action.
    2. In rejecting the evidence as sot out in the first bill of exceptions.
    3. In rejecting the evidence as stated in the second bill of exceptions.
    4. In its action as stated in the third bill of exceptions.
    ' 5. In refusing to set aside the verdict, and in entering judgment thereon.
    The district court affirmed the judgment of the common pleas. To reverse this judgment of affirmance, a petition in error was filed in this court.

      J. H. Thompson and Nelson Barrere; for plaintiff in error.

      William Á. Collins, for defendant in error.
   G-holson, J.

As to the first point raised in this case (the jurisdiction of the court of common pleas),.we think that, whatever force it might have claimed, had it boon presented at the proper time, the plaintiff in error must be regarded as having waived it, by his failure to object, and proceeding to a trial upoh the merits. The case was one of which the court of common pleas would have had original jurisdiction. It was brought by the plaintiff in error into that court by appeal. He answered the petition, and proceeded to trial without objection. He can not be allowed thus to speculate on the chance of a favorable verdict, and then turn around and deny the jurisdiction of tho tribunal to the decision of which he had submitted his case. It was competent for that tribunal to assume jurisdiction by the consent of the parties, and the parties must be understood as having given such consent.

¥c can perceive.no error in the rejection of the evidence shown to have been offered by the first bill of exceptions. The test of the right of the plaintiff in error to deepen *the ford could not ■depend upon the power required to propel the machinery of his mill. What might be necessary and convenient to propel the rna■chincry; might bo unreasonable as compared with the rights of others in thoir’use of adjoining land, or of a right of way acquired over the land of the owner of the mill. If the mill was erected before the road, and the water was used in the same manner at the time of its erection as at the time of the alleged obstruction, that might bo a defense; but if the flow of the water was changed, as by the elevation of a dam, the fact that the machinery of the mill required this change, which we understand was proposed to be proved, would furnish no reason for a consequent inconvenience and injury to third persons.

The second bill of exceptions discloses facts which present a question of some importance. It involves the relative rights of the plaintiff in error as owner of the land and mill, and of the defendant in error as representing the public, in the road and ford across the stream. It is conceded that, subject to the right of way of the public, the plaintiff in error was entitled to the benefit of the fall ■of water upon his land for the purposes of his mill, and might make any use of the same not inconsistent with the right of the public. Such is the general principle; but whether particular acts, which circumstances may show to be reasonable and convenient in the exercise of their respective rights, may or must be done by the plaintiff in error, or by the authorities having the control of the road on the part of the public, the general principle does not demónstrate.

In this case it appears that at an early- period in the settlement •of the country a mill was erected, a thing which has been deemed ■a public interest, and subsequently a road was laid out across the rstream which supplied the mill, and the mode of passage adopted was a ford. The very settlement and improvement of the country may have affected the quantity'of water flowing in the stream so as to render ^-necessary the elevation of the dam and the consequent occasional deepening of the ford.. Should the improvement ■in the mode of crossing keep pace with the improvement of the ■country, or have the public authorities the right to require that the mode of crossing first adopted shall be continued, to the destrucrtion, it may be, of the use of the water-power? If an improvement in the ford, or the erection of a bridge, would accommodate ithe public as well, or better, and preserve the use of the waterpower, it seems reasonable that there should be some mode in which such a result might be accomplished.

It is claimed on behalf of the defendant in error that the right of the public is in this respect absolute and unqualified, and that the owner of the land and mill has no right, himself, to make the improvement, however reasonable and convenient, or to require it to be made by those representing the public. This, it is argued, results from the condemnation of the land for the right of way, or its dedication for that purpose, and that any such consequence must be considered as having been in view at the time of the condemnation or dedication. The owner of the land, it is claimed, has either received, or might have received, and has waived payment for a damage and injury of this description.

Practically, we suppose difficulties of this kind very rarely occur. If, for example, the crossing of a stream be originally by a ford, .■and the convenience of the public demands a bridge, and 'one is ■constructed by the proper authority, and then a corresponding improvement is made by the erection of a mill, and in such use of the water the stream is deepened at the point where there was originally a ford, it would hardly be regarded as an obstruction, or any interference with the right of the public. The bridge becomes a highway, and according to the rule of the common law it would become the duty of the county to keep it up and in repair. It would be the mode of exercising *the right of way adopted by the public, and the deepening of the stream would be no interference.

Suppose the progress of improvement was greater in the other •direction, and the owner of the land desired to use his fall of water, and to accomplish this purpose, the erection of a bridge, as a mode of passage across the stream, became necessary, might he erect it, at his own cost, and offer it to the public as the mode of exercising the right of way, instead of the ford ? It appears to be the rule of the common law, as shown by numerous authorities, that the circumstances of a case may be such as to make the exercise of such a right, on the part of the owner of the water-power, reasonable and proper, and one which it would not be proper for those representing the public, under all circumstances and in every case, to refuse to permit. The common law professes to be founded in reason, and certainly the mode of the exercise of many rights turns upon the inquiry — what is reasonable ? An inquiry for the answer to which the common law has provided its peculiar and practical tribunal— a jury.

The purport of a number of authorities appears to be, that any person may erect a bridge over a stream crossing a public highway, if it be of public utility. If it be built in a slight and incommodious manner, it may be treated as a nuisance. If not so treated as a nuisance, and it bo really for the use and benefit of the public, then,

the charge of its repair is thrown on the county. 6 Mod. Cases, 400, page 307; 1 Salk. 359; 5 Burr, 2594; 2 Blackf. 685; 2 East, 342; 2 M. & S. 513; 3 B. & Adol. 147. The right of the owner of land, through which a road passes and crosses a stream of water, to build a bridge for the public, with a view to the use of his waterpower, appears to have been tacitly or expressly admitted in a number of cases. The only doubt or inquiry in such cases has been, whether the cost of the subsequent repair shall be borne by the mill-owner or the county. In the case of the King v. Inhabitants of 502] Kent, 2 M. & S. 513, where a person had erected a *mill and dam for his own profit, and thereby deepened the water of a ford, through which there was a public highway, but the passage through which was at times inconvenient to the public, and the miller erected a bridge over it, which the public used, it was held the county, and not the miller, was chargeable with the reparation. It is said in a case decided in New York: “ A bridge built by all individual over a public highway, that is useful to the public and generally used by them, or if in the course of time it has become useful, and is used by the public, must bo kept in repair by the public; as should a patriotic person build abridge, at his own expense, over a public highway, it would be more than unjust to compel him also to keep it in repair. Even should he derive a benefit or convenience individually, still, as it would be a great accommodation to the public, it ought to be repaired by the public.” Heacock v. Sherman, 14 Wend. 58-60. Similar remarks are made in a case in New Hampshire. State v. Campton, 2 New Hamp. 513. In another case in New York, where the distinction was recognized as to the question of a liability to repair, that the bridge was exclusively for the use of the miller, it being over a ditch which he had dug in the surface of the ground for a race-way, it was said : “The defendant certainly committed no trespass in digging the ditch. It was on his-own soil. The only right adverse to his was one to have a common highway for the purposes of travel. All the public could require was that he should make and keep the road as good as it was before •he dug the ditch.” Dygert v. Schenck, 23 Wend. 446.

There seems to bo some conflict- in the authorities as to the cases in which, by the erection of a bridge, tho burden of its repair can be cast upon the public. The point has been regulated, in England, by a statute, which, by implication, admitting that a private person might build a bridge upon the public highway, provides that its repair shall not devolve upon the public, unless built under the supervision and direction of the proper officer. 1 Harr. *Dig. [503 2148; 3 B. & Adol. 147. So upon the construction of the road laws ■of a state, the same result, clearly provided in England, has been held to follow. Sampson v. Goochland Justices, 5 Gratt. 241. And we are not prepared to say that the same rule might not be required under our statutes regulating the construction of roads and bridges.

It would appear to be a proper inference, from the authorities which have been cited, that whore such a change, as has been stated, in the mode of crossing a stream becomes proper and reasonable, the owner of the water-power can not, by deepening the stream, devolve upon those having charge of the road the immediate necessity of building a bridge, however reasonable and proper it may bo that a bridge should be built at public expense. It was «o decided in a ease somewhat similar to the present. Monmouth v. Gardiner, 35 Maine, 247.

So far as the rights of adjoining proprietors of land through which a current of water flows may afford any analogy to the present case, it would appear that a temporary inconvenience or interruption which a reasonable use by one proprietor causes to its use by another, is not a ground of just complaint. What would be .such a reasonable use is necessarily, in most cases, a question of fact depending on the circumstances. These circumstances have been stated to be such as “ the width and depth of the bed, the volume of water, the fall, the previous usage, and the state of improvement in manufactures and arts.” 13 Met. 156-158. Of •course, the circumstances as between the owner of the land and the public having a right of way would differ; but it may be remarked that the state of improvement has called, and may call, for an application of the principle of a reasonable use on the part •of the public. If the construction of a railway and the planting in the soil of a telegraphic post are deemed reasonable, it might be ui’ged that an improvement in the use of water-power, requiring a change in a fore] or the erection of *a bridge, might render such change or erection a reasonable and proper act on the part of the owner of the soil.

In 'view of these principles, and the authorities which have been!; cited, we feel justified in coming to the conclusion that the evidence disclosed in the second bill of exceptions ought to have been re ceived. If this evidence had satisfied the jury that a slight change-in the banks of the stream or in its bed would have enabled the-plaintiff in error to use his water-power and preserve his mill, and this change, both in being made and when made, would not interfere with the right of way, but obviate the former difficulty, the-inference might have been drawn that the refusal of the defendant, in error was unreasonable and capricious; and after such refusal, and during its continuance, tho jury might, with propriety, have-withheld damages of the character and description claimed. The-damages claimed and allowed were, at best, of an uncertain and indefinite nature. They were the damages sustained by the public. They must be very difficult to estimate or compute, resting really in the discretion of the jury.

It does not follow from this view of the evidence that the conduct of the defendant in error would afford an answer to a claim on the part of ány person for a special and particular damage resulting from the deepening of the ford. In what form permanent relief might be obtained by the plaintiff in error, and the right, if it should exist, to make the desired change might be enforced, we-are not now called on to decide. Indeed, we do not think a case presenting such a question is likely to arise; for we are inclined to-believe, in the language of the counsel for the plaintiff in error, that the real want of the public is a bridge across said creek at that ford;” and had the plaintiff in error proposed to build a safe and substantial bridge for the use of the public, it is not likely that, any objection would have been interposed.

As the judgment must be reversed for the error which has been pointed out, we do not think it necessary to extend *this-opinion by any comments on two other propositions which have been presented. As to them we find no error in the rulings of the-court. We think that the county road described in the petition was so established or dedicated, and it is immaterial which view is-taken, as to give to the public an undoubted .right of way, and that this right of way was not merged in the state road laid out over the same ground. The two might well co-exist for the use and accommodation of different classes of the traveling public. The defendant in error represented and brought his action in behalf of those interested in the county road.

For the error in the rejection of evidence as shown in the second bill of exceptions, the judgment must bo reversed and the case remanded to the court of common pleas for another trial. - •

Brinkerhoee, C. T., and Scott, Sutliee, and Peck, JJ., concurred.


source: Caselaw Access Project

author: Pjsok, J.

license: Public Domain

text:
    The Knox County Bank of Mt. Vernon v. Stephen Doty and others.
    The taking of a judgment upon a warrant of attorney, without filing the original warrant or a copy thereof, is an irregularity, for which the judgment may he set aside upon motion, at the same or at a subsequent term, the motion having been filed at the first term and regularly continued.
    If such motion was made at the term when judgment was entered, by one of two or more several debtors, and continued to a subsequent term, it may be so amended at such subsequent term as to permit the other debtor or debtors to j oin in it.
    A payment made after the issuance of an execution, to prevent a levy upon or a sale of the property of the defendant in execution is not such a voluntary payment as will preclude the party paying from setting aside tbe judgment for irregularity.
    If the district court, upon error brought to reverse an order granting a new trial “for such irregularity, made by the court before which the judgment was rendered, should dismiss the petition generally and without affirming the order of the court below, the error, if one, is not an error of which the plaintiff below can complain.
    In error to the district court of Morrow county.
    At the September term, 1855, of the Morrow common pleas, the plaintiff in error recovered a judgment upon warrant of attorney against S. Doty, M. B. Doty, David Loyd, and Robert Thompson, for $670.20 and costs. No service of process was made upon any of the defendants. The petition claimed to recover the above sum as a balance due upon a bill of exchange drawn by the defendants therein named upon Atwood & Co., New York, for $2,500, dated May 23, 1855, and payable twenty days after date, and which had been protested for non-payment.
    At the same term David Loyd, one of the defendants, filed in said court his motion in writing, to set aside said judgment: 1. Because the bill had been altered after execution by him, in a material part, without his consent; 2. Because the warrant of attorney was not filed with the papers.
    This motion was continued to the next (February) term of said court, and at the February term it was again continued to the April term of said court. At the April term, 1856, said motion was by leave of court amended so as to make Robert Thompson a party thereto, and assigning five reasons for setting the judgment aside: 1. That they never drew the bill copied in the petition; 2. That the ouly bill which they ever signed for said Doty for $2,500 was to be discounted at the Knox'County Bank; which discount was refused, and it was subsequently discounted by J. C. Ramsey & Co., without-their knowledge or consent; 3. Because the Knox County Bank never had any interest in said bill; 4. Because judgment was taken without the original bill or power of attorney being *prosented at the time of judgment; 5. Because the claim was paid before judgment.
    Sundry affidavits were filed for and against said motion, and the judgment was set aside and leave given to all the defendants to plead, and the entry of satisfaction of the judgment by payment made under the circumstances stated in the opinion of the court (post, 508, 509), was vacated.
    To this order setting aside said judgment and giving leave to defendants to answer, the plaintiffs objected and tendered their bill of exceptions, which was signed by the court.
    The plaintiff then prosecuted his petition in error to the Morrow county district court, and the said district coart dismissed the petition in error generally. The present petition in error is brought to reverse this ruling of the said district court. And the error’s assigned are :
    1. The district court erred in dismissing the said petition in error.
    2. That it erred in not reversing the order of the court of common pleas setting aside said judgment and granting defendants leave to plead.

      ¡EE. B. Gurtis & Scribner, for plaintiff in error.

      ¡Delano, Sapp <& Smith, for defendants in error.
   Pjsok, J.

The taking of judgment in the Morrow common pleas upon a warrant of attorney, without its production and proof of its execution, and without filing the original warrant, or a copy of it, at the rendition of the judgment, was an irregularity, for which the judgment so taken might be vacated and set aside, upon motion to the court in which it was rendered (sections 380, 534, and 535 of the code of civil procedure) ; and such motion prior to as well as since the code, might be made at the term in which such judgment was rendered, or at a subsequent term. Huntington & McIntyre, 3 Ohio St. 445. Section 535 of the code.

*Loyd, one of the defendants, at the term in which it was rendered, filed his motion to vacate the judgment for this cause, and that motion was regularly continued, from term to term, until it was finally disposed of by Getting aside the judgment. A motion thus made, continued, and determined, is, in legal contemplation, as if made and decided at the trial term. A motion •to vacate a judgment for irregularity is a “proceeding” authorized by the code, and as such, is amendable. There was not, therefore, any error in permitting the defendant Thompson to become a party thereto, at the second term after rendition of the judgment, such amendment being authorized by section 137 of the code; and, as we have already seen, an original motion might have been filed by Thompson at the time such amendment was made.

But it is claimed that shortly after the rendition of said judgment, Loyd and Thompson voluntarily paid and discharged the same, and should not now be suffered to deny its binding obligation when rendered. There is no doubt but that the voluntary payment of a judgment by the debtor therein, if made with a full knowledge of the facts affecting, its validity, will have the effect claimed; but there must be a concurrence of both volition and knowledge. If paid voluntarily, but in ignorance of the facts af_ footing its validity, or if the payment was not voluntary, though the party paying was aware of the facts rendering it invalid, such payment will not preclude the judgment debtor from questioning its validity. It is apparent from the facts and circumstances set forth in the bill of exceptions, that at the time Loyd and Thompson paid off said judgment, an execution issued thereon was in the hands of the sheriff of Morrow county, upon which a horse, saddle, and bridle, the property of Loyd, had been seized, and were then in the hands of the sheriff, and that he had been instructed by the plaintiff to levy said execution upon the grocery-store and goods, then and there in the possession and ownership of Thompson, unless *the judgment should be paid off; and as they severally testify, Loyd’s object was to release his property thus seized and held upon execution, and Thompson’s,to prevent the seizure of his store and goods, and the injuries and discredit such a course would occasion to him. These facts would seem to bring the case within the principle stated by Ranney, J., in Mays v. Cincinnati, 1 Ohio St. 278, that a payment is not voluntarily “ when it is made to procure the release of the person or property of the party from detention, or where the other is armed with apparent authority to seize upon either, and the payment is made to prevent it.” Such a payment not having been voluntary, it is unnecessary to examine the point, much mooted by counsel, as to the full knowledge or ignorance of Loyd and Thompson, of the facts affecting the validity of the judgment. We do not think them estopped by reason of such payment from vacating the judgment.

If the money had been collected by a levy and sale, and the judgment thereby satisfied, there could be no doubt but that the judgment could have been reversed, notwithstanding the satisfaction; and we see no difference in principle between the two cases.

It appears from the record that the defendant never, in fact, executed such a bill or such a power as are sot forth in the petition and answer. The bill of exchange which they did execute, was one drawn upon J. B. Miles, No. 8, Washington Market, and the power of attorney was to confess a judgment upon that bill. The petition describes a bill drawn by defendants upon Atwood & Co., of Wall street, N. Y., and the power of attorney is to confess a judgment upon that bill. The record shows that no service, actual or constructive, was ever made upon the defendants, and that no authority was ever delegated by them to any attorney to appear and confess judgment upon the bill set forth in the petition. It was, then, an appearance and confession by an attorney, without any warrant or authority for so doing, and the record therefore shows that the *Morrow common pleas, in fact, had no jurisdiction over the persons of the defendants. The appropi’iate remedy, in such a case, is by mo- * tion to the court in which the judgment was rendered, at the same or a subsequent term. Abernathy v. Latimore et al., 19 Ohio, 288; Hunt et al. v. Teatman, 3 Ohio, 16.

The proofs taken upon the motion to vacate, render it highly probable that defendants are indebted to the plaintiff' upon another and different bill of exchange ; and it is urged that, inasmuch as courts, in motions to set aside judgments at a subsequent term, exercise an equitable jurisdiction (3 Ohio St. 445), such vacation should not be permitted in this case, because, though not indebted for the cause of action described in the petition, they are indebted to a similar amount upon another cause of action, which the plaintiff ought to have declared on. This, it seems to us, would be an extension of this rule of equitable adjustment, somewhat novel in its character, dangerous in its application, and far beyond any precedent which can be found. The record of the judgment by confession contains no means of identifying the bill upon J. E. Miles, with that declared on. Section 538 of the code, which provides that a judgment shall not be vacated on motion, until it is adjudged that there is a valid defense to the action, was intended to apply to cases where the ground of the motion is that the party had a defense which he, for some cause, was prevented from setting up, and not to cases where, as in the- ease at bar, there is confessedly no such cause of action, or where the court had no jurisdiction over the person of the defendants.

It is also insisted that the judgment of the district court should be reversed, because it merely dismisses the petition and does not affirm the judgment of the court of common pleas, and award restitution of the money paid upon the judgment. It is sufficient for us to say, that if the order of the district court is liable to these objections, and as to which we make no intimation, they are not errors *of which the plaintiff can complain, and the defendants have not seen fit to do so, except in their brief.

Judgment and order of district court affirmed.

Brinker.hoi’f, C. J., and Scott, Sutliee, and G-holson, JJ., concurred.


author: Brinkerhoff, C. J.

text:
    Celia Huntington and others v. Lucy Rogers and others.
    Where a vendor of land recovers judgment against the vendee in possession under the contract of sale, for the purchase money unpaid, causes the land to be levied on and sold under execution at law, himself becomes the purchaser, takes the sheriff’s deed therefor, and enters into possession; and the vendee thereupon tenders the balance due upon the original contract of sale, after deducting the amount ostensibly made by the sheriff’s sale, and files his petition to compel a specific performance of the original contract for the conveyance of the land: Held, that on this state of fact a decree for specific performance will be denied.
    Reserved in the district court of Wood county.
    This case was reserved to -the Supreme Court, from the district ■court of Wood county, upon the following agreed statement of facts:
    “ On December’25, 1838, Henry Zeigler, by'article of agreement under seal, sold tract 11, Maumee and Western Reserve road-lands, Wood county, Ohio, to Elijah N. Knight for $1,800, payable in installments extending to December 25,1843. Zeigler covenanted to convey by good deed or deeds, in fee simple, free from all incumbrances, on payment of the purchase money. He also covenanted to give possession April 1, 1839, and full control of the premises from January 1, 1839, reserving rights of a tenant whose lease extended to April 1,1839. Knight went into possession *under the agreement, paid part of the purchase money, and continued to -occupy under and by virtue of the contract, until November, 1847. In March, 1843, Zeigler brought suit in Wood common pleas, in •covenant on the article of agreement, to recover the purchase money then due, and from the judgment rendered in the common pleas, Knight appealed to the Supreme Court. There Zeigler obtained judgment for $1,206.65, besides penalty and costs. In June, 1844, Zeigler brought covenant, in Wood common pleas,-on the article of agreement, to recover the amount falling due in December, 1843, and at October term, 1845, obtained judgment for $421.71, being the full balance then remaining due on the contract. On 5th January, 1847, Zeigler assigned the two judgments to Icbabod Rogers, who agreed to save Zeigler harmless from cost and counsel fees that had accrued. He made no other stipulation with .Zeigler. No assignment of the article of agreement was made by .Zeigler to him. Everything coming to Zeigler at that time was adjusted and settled by judgment; the assignment of the judgments was in these words:
    “‘Henry Zeigler v. E. N. Knight. Supreme Court Wood county, Ohio. Judgment August term, 1845; damage, $1,216.64; penalty, $60.85 ; $1,277.48. Henry Zeigler v. E. N. Knight. Wood oouuty, Ohio, common pleas. Judgment September term, 1845; damages, $421.71. The above are all the judgments of said Zeigler in Wood common pleas and Supreme Court, and this description is believed to be accurate, for a valuable consideration to me this day paid, and given by Ichabod Rogers, I hereby assign and transfer to him the judgments above referred to, and authorize him to use all lawful means for the collection of the same, as well as all moneys due me on account of said judgment, to his own use and benefit. I am not to be liable for any costs that have accrued, or may accrue, on-'said judgment; costs advanced by me to inure to the benefit of said Rogers. The said Rogers to fulfill the agreement made by me with *Josiah Scott, in reference to the collection of the moneys due on said judgment, the same as I am bound thereby. Witness my hand and seal, this 5th January, 1847.
    “ ‘ Henry Zeigler. [seal.] ’
    “On January 17, 1847, a fi. fa. was issued on the smaller judgment levied on the land mentioned in the article of agreement, on. the property of Knight. It was appraised at $2,166, and on October 5, 1847, sold to Rogers for $1,444. On the 28th of October, 1848, the sale was confirmed, and the overplus of moneys, under order of court, applied on the larger judgment, upon which execution had been issued, and was then in the sheriff’s hands. In October, 1848, debt was brought in Wood common pleas, on Huntington’s appeal bond. By way of defense, he pleaded specially the above facts, and also averred that Rogers had obtained from Zeigler a deed of conveyance for the land, and an assignment of the article of agreement, and covenanted to perform all the-stipulations of the article of agreement binding on Zeigler; that upon payment of the balance of the judgment in the appeal case,, amounting to $690, Rogers was bound to convey tbo land to Knight, and that, on October 17, 1849, he tendered to Rogers said balance, and demanded of him said deed, and that Rogers refused to-receive the tender or execute the deed. To this plea the plaintiff demurred. At the October term, 1850, the demurrer was sustained,, and judgment rendered against Huntington, with an order for execution to issue for $743.78, in district court, Wood county, bcingr the whole amount, including interest due on the contract, and cost of suit, to date of judgment. Huntington sued out of the Supreme Court a writ of error to reverse the judgment. At the December term, 1853, the Supreme Court affirmed the judgment, with costs. In October, 1848, Eogers conveyed the land to one-Hart, and took a mortgage for the purchase money. Hart and his representatives having failed to pay, Eogers foreclosed the mortgage, *and obtained decree for the amount remaining unpaid, and an order for the sale of the land. An order of sale was issued November 11,1852, by virtue of which the lands were sold January 15, 1853, and bid in by Lucy Eogers, administratrix of Ichabod Eogers, for the benefit of the estate. December 24, 1853, Knight conveyed to Huntington the land in controversy, and February 20, 1854, Huntington tendered to Lucy Eogers the balance due on said contract, and demanded a deed of said premises, which was refused. It was also agreed that, January 5, 1847, Zeigler conveyed said premises to Eogers by a regular deed of conveyance.”
    It is averred in the petition that the tender is kept good. It appears that, prior to the commencement of this suit, Eogers died, and his administratrix and heirs are made parties defendant, and since the commencement of the suit Huntington has died, and his heirs are made parties plaintiff. It appears, also, that neither Knight nor Huntington ever received a deed for said premises.

      James Murray, for plaintiffs.

      Adams and Plants, for defendants.
   Brinkerhoff, C. J.

The problem presented by this case, when Yeduced to its simple elements, is this:

The vendor of real estate (here represented by Eogers), retaining in himself the legal title, and the purchase money being unpaid, recovers judgment at law for the purchase money against the vendee in possession (Huntington), and under an execution issued on the judgment, sells-the land, himself becomes the purchaser ior an amount less than the whole purchase money, takes a deed from the sheriff, and goes into possession. The original vendee (defendant in the judgment) then tenders the amount duo upon the original contract of sale, after deducting the amount ostensibly made by the sheriff’s sale, and files *his petition to compel a conveyance of the land to him as a specific performance of the original contract of sale.

On this state of case, ought a specific performance to be decreed ?

It has boon held in this state that a mere possession of land is a species of title, and such an interest as may be sold by process of execution at law. Scott v. Douglass, 7 Ohio (pt. 1), 227; Baird v. Kirtland, 8 Ohio, 21. This doctrine, though much questioned as one of universal application, has never been overruled ; and thereupon has been often mooted the further question, whether the purchaser under such execution takes the naked possession of the judgment debtors merely, or, in addition to that, the equities also under which the possession may have been obtained and held. Counsel, in argument, seem to suppose that these questions necessarily arise in this case, and that the case depends on their solution. "We do not think so.

Counsel admit, and indeed it is very clear, that if it were to be held that such a sale carries with the possession all the equities of the judgment debtor, then the complainants can have no standing in this court; for their equities passed with the sale on execution, and are gone.

But suppose we adopt the contrary alternative, and hold that nothing but the naked possession, disconnected from all the equities under which it was acquired and held, passed by the sale on execution — the question then arises, has the complainant, on that hypothesis made out a case for the enforcement of a specific performance ? Let it be granted, as matter of argument, that the court would not now interfere, and would not at any time heretofore have interfered, at the instance of these defendants, to avoid this sale on execution, still it by no means follows that a specific performance will be decreed in favor of the opposite party. Matthews v. Terwilliger, 3 Barb. 50; State v. Baum’s Heirs, 6 Ohio, 383; Watkins v. Collins, 11 Ohio, 31; Kirby v. Harrison, 2 Ohio St. 327.

*A specific performance of a contract of sale rests in ‘the sound legal discretion of the court, in view of all the circumstances of the case. It is not a matter of right, but of grace; and the defendant will succeed in procuring the dismissal of the bill, if he can convince the court that the exercise of their jurisdiction will be inequitable under the circumstances. 2 Leading Cases in Eq. (pt. 1), 547, and cases there cited. “ There are few eases in which equity will insist on the maxim, that he who seeks equity must do it, with more rigor than in those of suits for specific performance.” Ib. 550. And it makes no difference whether the circumstances which render the claim for specific performance, when made, inequitable, arose prior or subsequent to the date of the contract sought to he enforced. Perkins v. Wright, 3 H. & McH. 326. In either case, a court of equity will leave the parlies to their remedies at law.

On this hypothesis, then, how stands the case? The defendant bought the land at sheriff’s sale at two-thirds of its appraised value, considered as an estate in fee simple; the plaintiff insists that he thereby acquired but a naked possession merely, and yet asks this court to decree to.them an absolute conveyance of the premises on the tender by them of the balance due under the original contract, after deducting the amount for which the land ostensibly and nominally sold at sheriff’s sale. If there be any equity in this demand, we are unable to see it. It is asking us to accept of shadow for substance, and to make that shadow the foundation of a decree.

But it may be said, that the possession, both in law and in fact,, did pass by the sheriff's sale; and that, peradventurc, that possession may have been fully equal in value to the amount at which the land was bid off. This is certainly a supposable case; but all ordinary presumption is against it, and nothing of the kind is-either alleged in the petition or pretended in argument. If the plaintiff had averred in his petition an offer and a continued willingness *to pay the full amount of the purchase money due 'upon the original contract without reference to the sheriff’s sale, after deducting therefrom the value of rents, issues, and profits of the land, over and above the taxes paid and the value of permanent improvements made thereon, while held by the defendants, the question would be a different one from that now before us, and one which we are not now called on to decide. And now, if he desires to amend, he can have leave to do so within a reasonable time to be named in the order ; if not, the petition will bo dismissed.

Scott, Suture, Peck, and Gholson, JJ., concurred.


author: Scott, J.

text:
    Solomon R. Darling v. Alson Wooster.
    Suit was brought on an instrument of the following tenor: “Due H. K., or order, the sum of ninety-two dollars, on demand, value received.” There was no averment in the petition, nor proof on the trial, of a demand of payment before suit brought. Held:

    That under the statute of 1824, “ fixing the rate of interest,” the plaintiff was entitled to recover interest from the date of the instrument.
    Error to the district court of Lorain county.

      S. Burke, for plaintiff in error.

      H. D. Clark, for defendant in error.
   Scott, J.

From the record in this case, it appears that suit was brought and judgment recovered, in the court of common pleas, by the defendant in error, as the assignee and holder of a written instrument of the following tenor:

“192.59. . Elyria, February 16, 1847.
“Due H. B. Kelsey, treasurer, or order, the sum of ninety-two dollars and fifty-nine cents, on demand, value received.
“ S. R. Darling.”

*The petition contained no averment of a demand previous to the commencement of suit, and no evidence of such previous demand was offered upon the trial.

The defendant below thereupon claimed that interest should be computed only from the commencement of suit. .But the court held otherwise; and, on his default for answer, rendered judgment, after deducting a payment indorsed, for the residue of the principal, with interest from the date of the instrument.

On petition in error to the district court, this judgment was affirmed.

Did the district court err in this judgment of affirmance?

The instrument sued on in this case is not in the usual form of an ordinary promissory note, payable on demand. Yet the difference is one rather of form than of substance.

As to the time from which interest is to be computed on such a note, containing no express stipulation on the subject, the authorities are not entirely uniform; though it must be conceded that -fche weight of authority, both in England and in this country, ■favors the rule that such note will bear interest only from the ■time of demand made or of suit brought.

But, whatever may he the general rule, it may unquestionably be controlled by statute. The act of January 12, 1824, “fixing the rate of interest,” prescribes “that all creditors shall be entitled to receive interest on all moneys after the same shall become due, either on bond, bill, promissory note, or other instrument of writing,” etc. In Hill v. Henry, 17 Ohio, 9, it was held that “ a right of action exists in the payee of such note, upon its delivery; and that from the time of delivery, the statute of limitations commences to run.” It is not easy to see how this doctrine can be sustained, upon legal principles, unless the note be due upon delivery; and if due at its date, then, by the terms of the statute, it bears interest from that time. And so it was held by the Supreme *Court of Arkansas, under a statute similar to ours. Pullen v. Chase, 4 Ark. 210.

As the parties must be presumed to have contracted with reference to the statute, wo think the terms of the instrument create an •obligation to pay interest from its date.

Judgment of the district court affirmed.

Brinkerhoee, O. J., and Suture, Peck, and Gholson, JJ., concurred.


author: Sutliff, T.

text:
    Stephen Doty, J. E. Hunt, et al. v. J. D. Rigour & Co.
    ■Where, in an action and confession of judgment under the code upon a bill of exchange with a warrant of attorney attached, the bill of exchange attached to the petition is for sixteen hundred dollars, payable to J. D., and the petition is in the names of J. D. and others, members of the firm of J. D. & Co., and describes the bill as for sixteen dollars, but asks judgment for sixteen hundred dollars, and interest, etc., and judgment is confessed ■on warrant of attorney and entered accordingly, in favor of the plaintiffs named in the petition, such error in describing the amount of the bill, and in the names of the parties plaintiffs, may, on motion, be corrected by reference to the bill so attached to the petition.
    'Where judgment is taken for more than is at the time legally due, the error may be corrected by remitting the excess.
    The fact that between the date of the judgment and the amendatory proceedings, a petition in error is filed by the defendants in the judgment, does not prevent the corrections from being made; the rule under the code being the same as it was at common law, to wit, that amendments may be made at any time before a suggestion of diminution of record would be too late; that is, at any time before final adjudication on error.
    Where it is shown to the supervising court by a copy of the amended record, that the corrections mentioned have been made, and the errors thereby cured, the judgment, as corrected, will be affirmed, but at the costs of the defendants in error.
    Petition in error to the court of common pleas of Delaware •county. Ecserved in the district court.
    ,*On the 24th of July 1855, Stephen Doty, Morgan B. Doty, and J. E. Hunt, gave their bill of exchange to J. D. Eigour, for sixteen hundred dollars, on Miles & Bartlett, of New York, payable in .twenty days, at the office of Butler & "Winter, of New York, waiving acceptance, demand of payment, protest and notice of non-payment, ■and authorizing a confession of judgment and release of errors.
    On the 19th of September, 1855, Joseph D. Eigour and others, members of the firm of J. D. Rigour & Go., filed their petition against the Dotys and Hunt, counting upon a bill of exchange drawn by them, July 24th, upon Miles & Bartlett, of New York, for sixteen ■dollars payable at the office of Butler & Winter, in New York, etc. “Whereupon plaintiffs say there is due to them, from the defendants, sixteen hundred dollars, and interest since the 16th day of August, A. d. 1855, and six per cent, damages and one per cent, ■exchange,” and ask judgment accordingly.
    There is no averment in the petition of any transfer to J. D. Eigour & Co., of a bill payable to J. D. Eigour.
    To this petition is attached the bill of exchange first above described, and by virtue of the authority it contained, judgment was ■confessed against said Dotys and Hunt, as prayed for in the petition, viz., for sixteen hundred dollars and interest, damages, and exchange, by an attorney appearing and answering for them, and releasing all' errors. Judgment was entered upon the confession, at the same September term, 1855, in favor of J. D. Eigour & Go.

    October 5, 1855, the Dotys and Hunt filed their petition in error in the district court of Delaware county, to reverse this judgment .assigning for error that:
    1. The bill of exchange embodying the warrant of attorney wae payable to J. D. Eigour, and not to J. D. Eigour & Go., and tha+ there is no allegation in the pleadings that J. D. Rigour cfc Co-owned the bill, or that the same had ever been transferred to them.
    *2. The petition is upon a bill for sixteen dollars, whereas-the bill filed is for sixteen hundred dollars.

    3. The petition is upon a bill payable to J. D. Rigour & Co., whereas the bill filed is payable to J. D. Rigour.
    4. The warrant filed did not authorize the confession of a judgment against plaintiffs in error on a bill payable to J. D. Rigour & Co.

    5. The judgment includes exchange in addition to six per cent-damages.
    On the 1st of March, 1856, the plaintiffs below moved the court, of common pleas for leave to amend their original petition and judgment:
    1. By striking out all the names of the parties plaintiffs, except that of Joseph D. Rigour.
    2. By inserting in said petition a more accurate description of the bill of exchange therein mentioned.
    3. By correcting the amount claimed in said petition.
    4. Also to correct the judgment so as to make it conform to the contract attached to the petition and answer.
    5. And if necessary to carry out said amendments, to file an amended petition containing them.
    At the March term, 1856, of the common pleas, the cause was continued.
    At the May term, 1856, said court sustained the motion to amend,, and the amendments wore made as asked for, by filing a new petition containing them. The motion to amend and the amendments wore ordered by the court to be made part of the complete record of the case.
    The plaintiffs below also, on leave of the court, at the term last mentioned, caused the answer to be amended so as to remit the exchange, which had been carried into the judgment.
    Afterward, on May 19, 1856, the defendants in error filed, in the district court, a supplemental transcript of these amendatory proceedings, and also their answer in error, insisting that there were no such errors in the record as are assigned by the plaintiffs in error; that by virtue of *the warrant of attorney embodied in the bill of exchange, upon which judgment was confessed and rendered, the attorney who appeared for the plaintiffs in error, was authorized to, and did, release all errors; and that all the errors ■complained of were cured by said amendatory proceedings.
    The case thus presented was reserved for decision in this .court.

      BL. B. Curtis & Scribner, and MS. Mitchell, for plaintiffs in error.

      O. Bowen, and Olds & Burns, for defendants in error.
   Sutliff, T.

Formerly there was thought to be serious objections 'to any amendment of the records of a court. And while at common Jaw all mistakes occurring before the judges during the term were .amendable, they “were strictly required to record the parols or •pleadings deduced before them in judgment; but they were not to erase their' records or amend them, nor record against their enrollment.” After judgment, when the proceedings were regarded .as enrolled, the record was considered no longer subject to any .alteration, and was held to import absolute verity. But owing to the frequent occurrence in records of slight clerical mistakes, it was found necessary as early as 14 Ed. III., c. 6,. by statute, to provide that the misprision of the clerk “in writing one syllable or letter too much or too little,” should not render the process null, but that the same might, when objected to, be duly amended. It was not, however, until the 8th of Hen. YI., c. 12 and 15, that the judges were allowed to amend what they in their discretion should regard the misprision of their clerk in their records. Although the more modern English statutes have been remarkably liberal in ■allowing amendments for the furtherance of justice, while the proceedings were in paper, those statutes have never been extended to *the amendment of the record. And the English statutes ■of amendment have generally been followed in this regard by the ■statutes of amendments of the most of the states, and with but few ■exceptions, until quite recently.

In many of the states at this time, however, there is a great confusion and want of unanimity in the decisions, owing to statutory provisions upon the subject of amendments.

The State of New York seems to have been among the first of the states to extend a liberal statute of amendments to the record. Her revised statutes of 1829 allowed “ any defect or imperfection in matter of form, contained in the record,” . . . to be rectified and amended by the court in affirmance of the judgment,” . . . and that any variance in the record from any process, pleading, or proceeding had in such cause, should be reformed and amended according to such original process, pleading, or proceeding. (

It is provided by section 5, of chapter 181, of the code adopted by Virginia in 1849, that the court, or the judge thereof in vacation, may on motion amend any judgment or decree rendered, by correcting any mistake, miscalculation, or misrecital of any name, sum,, quantity, or time, when the same is right in .any part of the record or proceeding, or when there is any verdict, report of a commissioner, bond, or other writing whereby such judgment or decree-may be safely amended, upon reasonable notice to the opposite-party, at any time within five years from the date of the judgment or decree.

It is provided by the 137th section of our Code of Civil Procedure as follows:

“ The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistako in any other respect, or by «inserting other allegations' material to the ease, or when tbe amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved. And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable-thereto by amendment.”

The amendment of the record before us not being allowable at common law, necessarily depends for its validity upon this section-of our code. The language of the provision might seem to give the-courts the same right to amend after as before judgment. But evidently the common-law rules, and the maxim that the record imports absolute verity, should confine amendments, after judgment, to cases where there is something to amend by; while cases very frequently occur in which it is very proper to allow amendments-before judgment, independent of any such restriction.

This distinction between the allowance of amendments before and after judgment, I think, will be found generally recognized by the decisions made under the statute of amendments of New York,, referred to, and under the provisions of their code, which is similar to ours, as well as bv the express provision of the Virginia code, And, I doubt not, the same distinction will be found to generally prevail under similar statutes of jeofails of other states.

With these preliminary remarks, let us recur to the record before-us. Are the amendments therein made within the reasonable purview of section 137 of our code?

The amended record comes before us in somewhat of an irregular manner; but we think it may properly be regarded as an amended record, as if presented to us by certiorari on suggestion of diminution, since the case has been so treated by counsel of the respective parties.

In this view of the case, the following amendments appear to-have been made in the record, and under the following *circumstances, after the proceedings in error were commenced and pending in the district court. The petition, upon which the judgment sought to bo reversed, was entered, stated the right of action existing upon a certain bill of exchange, attached to the petition, to belong to J. D. Eigour and others; and the petition also described the bill as one drawn for $16. The judgment was rendered upon the bill, which was in fact for $1,600, and for the true amount due, and $16 exchange, not due. The bill also appeared to be in favor o'f J. D. Eigour solely, and not J. D. Eigour and others. It thus appears, upon inspecting the record, that the judgment was correctly rendered in- accordance .with the contract, except as to the $16 exchange; and that there were two errors in the petition, to wit: laying the right of action in J. D. Eigour and others, instead of J. D. Eigour solely, and in describing the bill of exchange as drawn for $16, instead of $1,600. We think the record itself afforded ample means whereby to amend; and that the amendment being to sustain the judgment, which was evidently correct upon amendment, and the remittance of the $16 exchange (which defendants make), is for the furtherance of justice, and clearly within the purview of section 137 of the code.

The judgment of the court of common pleas must therefore be affirmed, except as to said $16 exchange so remitted. But as the amendments and remittance of the exchange have been made since the commencement of the proceedings in error, the petition in this case must be dismissed at the costs of the defendants in error.

Brinkerhofe, C. J., and Scott, Peck, and Gholson, JJ., concurred.


author: Sutliff, J.

text:
    Stephen Doty, Smith Goodin, et al. v. J. D. Rigour & Co.
    Upon an application made to the court of common pleas on notice duly given to the adverse party, an amendment of the record, in a case in which judgment had been rendered at a former term of that court, may be made under section 137 of the code, by changing the names of the drawees of the bill of exchange as expressed in the petition, so as to make the same conform in the petition to the copy thereto attached, and to the bill on which judgment was rendered.
    Amendments of the record may be made after proceedings in error commenced, at any time while diminution may be suggested in the supervising court, and certiorari awarded.
    When judgment has been rendered for a larger amount than was legally due on the contract, after petition in error filed thereon the defendant in error may correct the judgment by remitting'such excess.
    Upon a. copy of the amended record duly ordered and produced in the supervising court showing such errors cured, and such excess appearing to have been remitted, the judgment of the common pleas should be affirmed; and the petition in error should be dismissed at the cost of defendants in error.
    Petition in error to the court of common pleas of Delaware county. Deserved in the district court.
    On the 28th of June, 1855, Stejihen Doty, Morgan B. Doty, and Smith Goodin, gave their bill of exchange to J. D. Eigour & Co., for $1,020, on Butler & Winter, of New York, payable in thirty days (no grace), at the office of the drawees, waiving acceptance, demand of payment, protest, and notice pf non-payment, and authorizing a confession of judgment and release of errors.
    On the 19th of September, 1855, the members of the firm of J. D. Eigonr & Co. filed, in the court of common pleas of Delaware county, their petition against the said Dotys and Goodin, stating “that the defendants, being citizens of Ohio, or residing therein, did, on the 28th day of June, a. d. 1855, draw their bill of exchange upon Messrs. Miles & Bartlett, of the city of New York, then being citizens of the United States and within the jurisdiction thereof, and out of the jurisdiction of this state, to-wit, in the *eity and state of New York, and thereby (waiving his compliance) required them to pay to plaintiffs by their said firm-name, at the office of Messrs. Butler & Winter, in the city of New York, one thousand and twenty dollars, thirty days after the date thereof {which period has now expired), delivered the same to plaintiffs, and ilie said Miles & Bartlett did not, nor did any person for them, •or on their behalf, pay the said bill of exchange, although the same was protested for payment at the office of said Butler & Winter, and the same was presented for payment at the office of said Butler & Winter, at their office in said city of New York. The plaintiffs say that the said bill was then and there legally protested for non payment, of all of which the said defendants then and there had notice. Whereupon, plaintiffs say there is due to them from the defendants one thousand and twenty dollars, and interest from the 31st day of July, a. d. 1855, and six per centum damages and ■one per cent, exchange,” for which judgment is asked. To this petition the bill of exchange first above described is attached, and by virtue of the authority it contained, judgment was confessed as prayed for in the petition, and all errors released by an attorney .appearing and answering for the Dotys and Goodin; and judgment was entered upon the confession September 19,1855, for the amount of the bill, interest, damages, and one per cent, exchange.
    On the 5th of October, 1855, the Dotys and Goodin filed, in the •district court of Delaware county, their petition in error to reverse. ■this judgment, assigning for error that:
    1. The pleadings in the case were based upon a bill drawn upon Miles & Bartlett, whereas the bill attached to the pleadings is drawn upon Butler & Winter.
    2. There is no allegation in the pleadings that the Dotys and ■Goodin, or either of them, executed the bill attached thereto, and upon which judgment was taken.
    3. There is no allegation that the bill attached to the pleadings remained unpaid.
    4. The warrant of attorney attached to the pleadings *does not authorize any attorney to confess judgment against the Dotys and Goodin on a bill drawn on Miles & Bartlett.
    5. There are no pleadings upon the bill filed with said papers.
    6. The plaintiffs took judgment for exchange in addition to damages, which they had no right to do.
    On the 1st of March, 1856, the plaintiffs below filed a motion in the common pleas, to amend their petition and judgment above described, in these particulars: 1. To insert in said petition a more accurate description of the bill of exchange mentioned in it; 2. To so amend the judgment as to conform it to the contract attached to the petition and answer; 3. And if necessary to carry out said amendments, to file new petitions containing said amendments.
    This motion was continued at the March term, 1856, of the common pleas.
    At the May term, 1856, of said court, the motion was granted, and, on leave, a new petition was filed, accurately counting upon the bill of exchange attached to the original petition, correcting the alleged defects therein existing, and asking judgment as in said original petition asked, except as to the one per cent, exchange, for which judgment was not asked in the amended petition. The court further ordered that the amended petition should be made a part of the complete record in the case. To this action of the court the Dotys and Goodin excepted.
    Afterward, on May 19, 1856, the defendants in error filed in the district court a supplemental transcript of this amendatory proceeding, and also their answer in error, insisting that there were no such errors in the proceedings and judgment in the common pleas as claimed in the petition in error; that by authority of the warrant of attorney embodied in the bill of exchange filed with the original petition and answer, the attorney who appeared and confessed judgment against said Dotys and Goodin, released all error ; *that all errors were cured by the amendatory proceeding above described.
    The case thus presented was reserved for decision in this court.

      H. B. Curtis & Scribner, and M. H. Mitchell, for plaintiffs in error.
    O. Bowen, and Olds & Burns, for defendants in error.
   Sutliff, J.

The errors alleged are all apparent in the original transcript filed in the district court. They do not, however, appear in the transcript obtained after the amendment in the common pleas, and subsequently filed. If, then, the amendment of the record of the common pleas was legal, and such subsequently-filed transcript is to be regarded a legal exemplification of the record in the case, the errors relied upon for the reversal of the judgment of the common pleas would not be shown by such copy of the amended record.

At common law, while the proceedings were ore tenus at the bar of the court, whenever it was perceived that an error had occurred, it was at once amended. And therefore, afterward, when the pleadings had to be reduced to writing, it was still considered a reasonable rule that tbe parties should amend errors, when they were discovered, during the pendency of the case in court. Hence, it became, from long practice, well settled at common law, that whilst the proceedings are in paper, and before they are regarded as entered of record, an amendment of the declaration or plea, etc., either in form or substance, might be made upon such terms as the court deemed proper. But such amendments had to be made during the term. And the reason has been thus expressed: Because it is a roll of that term, and so in the breast of the court during the whole-term, and then a new roll might be brought in the cause, and consequently the same roll may be amended.” *But, inasmuch as amendments at common law were confined to the time of the proceedings being in fieri, when they had ceased to be in paper, and were entered of record, the courts could amend no further than allowable by the statute law — the statute of amendments. And those statutes allowing amendments of the record, were, in England, extremely cautious and guarded.

The first statute upon the subject (14 Edw. III., stat. 1, chap. 6)-provided that no process shall be annulled or discontinued by misprision of the clerk in writing one syllable or letter too much or too little, but as soon as the mistake is perceived, by challenge of the party, or in other manner, it shall be amended in due form,, without giving advantage to the party that challengeth the same because of misprision.” And by 8 Henry YI., chap. 15, courts-were allowed to amend the misprisions of their clerks, sheriffs, or-other officers, in any record, process, or return before them, by error or otherwise, in writing a letter or syllable too much or too little. This statute remained as the statute defining the right of amendment of the record, notwithstanding the various statutes extending-the right of amendment before the proceedings had passed into record. The statute of 9 George IY., chap. 15, provides “ that it shall and may be lawful for every court of record holding plea in civil actions any judge sitting at nisi prius, and any court of oyer and terminer and general goal delivery in England, Wales, the town of Burwickupon-Tweed, and Ireland, if such court or judge shall see fit so to do, to cause the record on which any trial may be pending before-any such judge or court, in any civil action, or in any indictment, or information for any misdemeanor, where any variance shall appear between any matters in writing or in print, produced in evidence, and the recital or setting forth thereof, upon the record •whereon the trial is pending, to be forthwith amended in such particular by some officer of the court, On payment of such costs, if :any, to the other party, as such judge or court shall think reasonable; *and thereupon the trial shall proceed as if no such variance had appeared; and in case such trial shall be had at nisi prius, the order for amendment shall be indorsed upon the postea .and returned, together with the record; and thereupon the. papers, rolls, and other records of the court from which such record issued, iShall be amended accordingly.” But no such liberal -provision was, by any English statute, extended to the proceedings after the same ■were recorded.

Our statutes of amendments previous to the adoption of the provisions contained in the code of civil procedure, were somewhat analogous to the English statutes. The act of March 12, 1845, of this state, was equally liberal with the statute 9 George IY., in allowing amendments in civil proceedings, and, like that statute, contained no provision for amending a record. It provided “that the -court in which any action shall be pending, shall have power to allow parties to amend any process, pleading, or proceeding in rsuch action, either in form or substance, for the furtherance of justice, and upon such terms as may be just, at any time before or •during the trial of such action, and before judgment rendered therein,” etc. Ourwen, 1170. The authority given by this statute •of 1845, seems to leave the subject of amendments in a proceeding previous to judgment, whether in form or substance, almost entirely to the discretion of the court. But even this liberal statute, like that of George IY., afforded no authority for such an amendment as made in the record before us. It is in vain, therefore, to look for precedents either to the English cases or to adjudications under our own former statutes of amendments.

The amendment of the record in this case evidently depends upon the statute alone for its support. It can only be sustained, if .at all, by force of statute law. Upon this subject it is provided by the code of civil procedure of this state, as follows:

*“Sec. 137. The court may, before or after judgment, in furtherance of justice, and on such terms as may be px-oper, amend .any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved. .And whenever any proceeding taken by a party fails to conform, in any respect, to the provisions of this code, the court may permit the same to be made conformable thereto by amendment.” Curwen, 1958.

This statutory provision is evidently a great innovation upon our-former statutes of amendments, as well as upon the common-law rule. It seems to allow nearly the same liberty of amendment, after, which former statutes allowed before judgment.

Has the court of common pleas, then, in allowing the amendment under consideration, transcended the authority given by the foregoing provision of the code?

The amendment can not be objected to by reason of its having' been made after the petition in error was filed in the case. An amendment which is allowable may be made in any stage of the proceedings. If amendable before error is brought, the record is equally amendable afterward, during the pendency of such proceedings in error, and while diminution of record may be alleged, and a certiorari awarded. It is therefore no objection to the amendment that it was made by the court of common pleas while proceedings in error in the case were ponding in the district court.

Under the English statutes of amendments, it was said to be a. general rule that there must be something to amend by. But while we do not regard this rule as applicable to amendments in all cases-necessary, previous to judgment, we regard it as a rule peeuliarly applicable to amendments of a record. Looking, however, to the amendments under consideration, that rule does not appear to have been disregarded. The original petition, after stating what-was the legal effect of the contract upon which judgment was asked, set forth a copy of the contract, the bill of exchange on which the action was predicated. The record showed that a judgment was rendered upon proof of a bill of exchange corresponding to the copy thereof so attached to the petition. That copy shows that the-bill was in fact drawn on Butler & Winter instead of Miles & Bartlett,. as stated in the petition.

The provision of the code, under consideration, evidently contemplates only such amendments after judgment as are clearly in ■ furtherance of justice and consistent with the rights of all parties interested in such amendment. And although the exercise of the ■ discretion, so clearly given to the courts, to allow amendments for ■the furtherance of justice must be presumed to have been properly-exercised, a supervising court will always regard such discretion as a legal discretion, and carefully look to the circumstances and extent of its exercise. For, unless such discretion be cautiously and prudently exercised in the amendment of records, such amendments will rarely be found to result in the “furtherance of justice.”

But we do not perceive anything in the allowance of the amendment of the record in this case,‘inconsistent with our view of a proper exercise of such legal discretion by the court of common pleas.

The amendment was not- by the introduction of a new defendant, or the introduction of allegation of fact, constituting a new and distinct cause of action, nor without notice, and in the absence of the other parties. But the amendments in this case have been in accordance with the truth as shown by other parts of the record, and for the purpose and tendency of sustaining the judgment. And the defendants in error, having remitted from the judgment of the *court of common pleas the sum of $10.20 for exchange included therein, and by said amendments obviated the other errors, .apparent in the former record, since the filing of the. petition in error, we find no errors in the record as now appearing. The judgment of the common pleas, with the said $10.20 so remitted, must, therefore, be affirmed, and the petition in error stand dismissed at the cost of defendants in error.

Brinkerhoef, C. J., and Scott, Peck, and Gholson, JJ., concurred.


author: Peck, J.

text:
    Mary Parish v. Daniel Parish.
    A decree from the bonds of matrimony, although obtained by fraud and false testimony, can not be set aside on an original bill filed at a subsequent term.
    In chancery. Reserved in the district court of Brown county.
    Oi the 24th day of June, 1853, the complainant filed an original bill in chancery, in the court of common pleas of Brown county, to impeach and set aside a decree of divorce from the bonds of matrimony, rendered by said court at its previous March term, 1853, against the present complainant, and in favor of the present defendant, upon his petition charging her with adultery, fraudulent contract, and extreme cruelty.
    The averments of the bill are, in substance, that the decree of divorce was obtained by fraud and perjury; that the court obtained jurisdiction by the false and fraudulent representation of the defendant that he was a resident of Brown county, and the false testimony of witnesses suborned by him to prove his alleged residence. The bill ^further avers that no personal service of noticé of the pendenc3r of the petition for divorce was ever made upon the complainant, and that she had no knowledge of its pendency; and that the defendant, for the purpose of preventing her from getting notice, fraudulently procured the suppression of the exchange of the local newspaper, in which the notice was published, with the Cleveland papers, where the complainant and her friends resided during the publication of notice; and that the same was true in regard to the publication of notice for the taking of depositions, and that although they were taken in the neighborhood of her place of residence, they were taken so secretly that she knew nothing of it.
    And finally the bill avers that the defendant, to prove the charges made in his petition for divorce, wickedly and corruptly suborned witnesses to commit perjury.
    To this bill containing these averments the defendant demurred upon eight grounds; the eighth is, in substance, that the decree of divorce is final and conclusive, and can not be reviewed or set aside. The case is disposed of upon this eighth ground. It is therefore unnecessary to state the other grounds of demurrer.

      Banney, Backus & Noble, for complainant:
    The facts averred in the bill are all admitted by the demurrer, and the3r must certainly be regarded as making as strong a case as could ever be presented to a court of justice. They show that the petitioner stands convicted, upon the record of a court of justice, of the foul crime of adultery, in a decree procured by fraud, falsehood, and subornation of perjury on the part of her husband ; and the only question is, whether this court possesses the power to do the wife justice by expunging the foul stigma from the records of that court. That this is the regular way of proceeding to effect that purpose, and that no other decree would be permitted to stand for one moment which had been obtained by such means, will not be for one moment *doubto¡d. Does a proceeding for divorce-stand upon a different footing? and can the party guilty of such corruption and crime be entitled to retain the fruits of his rascality, and thus deprive the wife of her character and rights ? We think not. But few cases are to be found upon the subject; but we refer the court, as containing a very satisfactory exposition of the subject, to the case of Allen v. Maclellen, 12 Penn. St. 328,. and to the-able opinion of C. J. Gibson, delivering the opinion of the court, in that case.
    In addition to the above, we refer the court to Vischer v. Vischer, 12 Barb. 640.

      G-. W. King, also for complainant.

      Daniel Parish, defendant, argued the case on his own behalf.
   Peck, J.

This cause is now before us for disposition upon the-demurrer filed by the defendant to the bill filed in the court below. The defendant assigns various causes for demurrer, relating principally to the form and sufficiency of the allegations of the fraudulent acts and conduct on the part of the defendant in the procuration of the decree for divorce, and the absence of necessary averments to show the materiality of the testimony fraudulently procured. But as these objections, if well taken, would only result, in amendments of the bill, we have merely bestowed upon them a passing notice, as we are all satisfied that the eighth assignment is-fatal to the present proceeding, and is one which no amendment of the bill could remedy. The eighth assignment is, “ That the-decree in said divorce suit of Daniel Parish v. Mary Parish, (which the bill of the said Mary seeks to review and reverse) was, and is,, final and conclusive (between the parties), and can not be reviewed or annulled (by original bill or otherwise).” This is an original bill, *filed in the Brown county court of common pleas, to-vacate and annul a decree of divorce from the bonds of matrimony, pronounced by that court, between the same parties, at a former-term. This vacation is claimed on the ground that the original de‘croe was procured by the Complainant in that proceeding, by means. of false and fraudulent representations as to his true residence, the-willful suppression of the published notices of its pendency, and the false testimony of witnesses suborned by him. The demurrer, by its legal operation, admits a state of facts in regard to this transaction, and the agency of the defendant therein, which place him in no enviable position, and does not commend him or his cause to the favorable consideration of a court. Eor the honor of human nature, ■ it is to be hoped that the facts alleged in the petition in regard to the procuration of the decree are not true in fact, though, for the purpose of the demurrer, they are to be taken as admitted. Indeed, if a case could be supposed in which a decree a vinculo, by a court having jurisdiction over person and subject-matter, could be vacated at a subsequent term by reason of its fraudulent procurement, it would seem that such a case is presented in the bill under consideration.

The statute of March 14, 1843, conferring jurisdiction in divorce cases upon the courts of common pleas, which was in force when those proceedings were had, provides that “no appeal shall be obtained from the decree, but the same shall be final and conclusive.” Curwen, 991. This statutory provision is nothing more than a legislative recognition of the principle of public policy, which had been repeatedly affirmed by the courts, that a judgment or decree which affects directly the status of married persons by sundering the matrimonial tie, and thereby enabling them to contract new matrimonial relations with other and innocent persons, should never be reopened. Such a course would endanger the peace and good order of society, and the happiness and well-being of those who, innocently *relying upon the stability of a decree of a court of competent jurisdiction, have formed a connection with the person who, wrongfully perhaps, procured its promulgation. See Bascom v. Bascom, 7 Ohio, 466; Laughery v. Laughery, 15 Ohio, 404; Tappan v. Tappan, 6 Ohio St. 64; Lucas v. Lucas, 3 Gray, 136; and Greene v. Greene, 2 Gray, 361.

The case of Greene v. Greene is in many respects analogous to the case at bar. It was an original libel for-a divorce a vinculo, in which the libellant sought a divorce from her husband for the causes authorized by the statutes of Massachusetts, and set forth that her husband, at the preceding November term of that court, had, by means of false testimony, procured a divorce a vinculo from the fibellantfor the alleged cause of adultery, and asked that the former decree might be annulled for the fraud in its procurement, and a decree granted to her for the causes set forth. Chief Justice Shaw, in a very elaborate opinion, in which ho examines all the cases-, as-well as the reasons upon which the rule of public policy is founded, refused the relief asked, holding that a decree from the bonds of matrimony, though obtained by fraud and false testimony, can not be sot aside on an original libel filed at a.subsequent term, and concludes his opinion in these words: “ We have seen no reliable authority opposed to the position above taken, that a decree of divorce a vinculo, when no appeal, review, or writ of error is allowed by law, or where the time for bringing such review or writ of error has expired, is final and conclusive upon the parties, and that an original proceeding to set it aside on the ground that it is fraudulently obtained upon false evidence, can not be maintained.” This case seems to be decisive of the point, and is amply sustained by principle and authority. "We have, however, been referred to two cases as establishing, or tending to establish, a different rule. The first of these (Allen v. Maclellan, 12 Penn. St. 328) is one where the validity of a decree annulling a former decree for fraud in obtaining it came collaterally in question, in a suit between Mother parties, upon a promissory note, and it was held that as to such third persons, the .last decree not having been set aside by the parties, nor reversed ¡upon appeal, was conclusive. This case by no means decides that .-such a decree of reversal, if contested at the time, would ever have ’been entered. But the inference, from some of the remarks of 'Chief Justice Gibson, is the other way. The other case is Vischer v. Vischer, 12 Barb. 640. The parties were originally married and • domiciled in New York, where the wife obtained a divorce a mensa. ‘The husband then removed to the State of Michigan, the wife still 'remaining in New York. The husband obtained a divorce a vinculo an Michigan, for willful desertion, no process or personal notice '■having been served upon -the wife. He then returned to New York ¡.and married another, and the first wife applied for a divorce a vin.culo, for adultery. The husband, in bar of the application, set up •the previous divorce in Michigan ; but the court held that that deforce was no bar, because the court in Michigan had never acquired ■any jurisdiction by service of process upon or appearance of the wife. It is difficult to see how this case decides that a court has the power to reverse or annul its own decrees entered at a previous term. The decree in New York does not attempt to annul the decree in Michigan, but merely disregards it. That decree still stands mpon the records in Michigan, in full force and unreversed, and ¡should occasion .and opportunity offer, would doubtless be enforced by their courts. Again, though there was .not any actual service upon Mrs. Parish in this case, and though, for that cause, it might be disregarded in New York or elsewhere, still the court in Brown county had jurisdiction of the subject-matter, and of the parties— of the one by his appearance, and of the other by publication in a newspaper, which, under our statute, is as effective in conferring jurisdiction as actual service. The courts in New York might, for this cause, hold the decree void, but the Ohio courts must regard the Brown county common pleas, in the original ^divorce suit, as having acquired jurisdiction over persons as well as subject-matter. We therefore feel compelled, though reluctantly, to hold that sound public policy in this class of cases, forbids us from setting aside a decree of divorce a vinculo, though obtained by fraud and false testimony, on an original bill filed at a subsequent term.

Demurrer sustained and bill dismissed.

Brinkerhoee, C. J., and Scott, Sutliee, and Gholson, JJ., concurred.


author: Gholson, J.

text:
    Daniel Foster v. The Commissioners of Wood County.
    The act of the general assembly “ authorizing county commissioners to grant further time for the completion of free turnpike roads, and paying for the same,” passed May 1, 1854, is not repugnant to the present constitution.
    Deserved in the district court of Wood county.
    This case was reserved in the district court of Wood county for decision in this court, and is presented on the following agreed statement of facts : “ It is agreed, that on the 23d day of March, a. d. 1850, the legislature of Ohio passed an act, 48 Ohio L. L. 183, entitled an act to incorporate the Wood County and Western Deserve Free Turnpike Doad, which said act in detail, is referred to and made a part of thi3 agreed statement of facts. It is also agreed, that at the time of the passage of said act, and from that time to the present, Daniel Foster, the plaintiff, was, and is the owner, of ¡the southwest quarter of section twelve (12), in township sis (6), range twelve (12), in Wood county, Ohio, being the land in the petition described. It is further agreed, that said free turnpike road was laid out, located *and went into operation, and that taxes were collected under the act of incorporation, during the existence of said charter, from all lands subject thereto. It is also agreed, that said land of said Foster, lies within one-half mile of the line of said road, and was subject to tax therefor under the charter thereof, and that the same was collected and paid during the existence of the original charter. It is further agreed, that such charter, or act, and all power, right, and authority, to levy a tax under it, expired at and after the March session, A. d. 1854, of the county commissioners of Wood county, Ohio. It is further agreed, that on the 1st day of May, a. d. 1854,' the legislature of Ohio passed an act, entitled 1 an act authorizing county commissioners to grant further time for the completion of free turnpike roads and paying for the same,’ which said act is found in vol. 52, page 99, of the general and local laws of said state, and, in detail, is referred to and made a part of this agreed statement of facts. It is further agreed, that at the June session, a. d. 1855, of the county commissioners of Wood county, Ohio, the said commissioners, the charter of said free turnpike road having expired, extended the same for the period of four years from and after that time, and ordered the special tax for the year 1855 to be placed on the county duplicate by the auditor of said county, and collected in accordance as the same is provided to be levied by the original act or charter of said road. It is further admitted, that the county auditor will place said tax on the duplicate, and collect the same, unless it be restrained by injunction, and that there is no law authorizing the levy and collection of said tax except the act of May 1, 1854, vol. 52, page 99, laws of Ohio above referred to. If the court under this state of facts are of opinion that this act of May 1, 1854, is repugnant to the present constitution of Ohio, then judgment is to be rendered for the plaintiff, otherwise for the defendants.”

      * James Murray, for plaintiff, argued the following points at length:
    The levy of eight cents per acre, on all lands within a given distance on each side of this road, is not such an assessment as was authorized under ^either the constitution of 1802, or that of 1851,' but is a special tax, and the exercise of the power to levy it is in violation of the present constitution and void.
    The levy is not an assessment, but a special tax. Reeves v. Treasurer of Wood county, 8 Ohio St. 338, 344; Hill v. Higdon, 5 Ohio St. 243; People v. Mayor of Brooklyn, 4 Comst. 424; Ridenour v. Saffin, 1 Handy, S. O. 464; In the matter of the Mayor of New York, etc., 11 Johns. 77; Mayor of New York v. Livingston, 8 Wend. 85; Thomas v. Leland, 24 Wend. 65; Bleecker v. Ballou, 3 Wend. 263; Sharp v. Spier, 4 Hill, 76; State v. City of Newark, 1 Dutcher, 399; City of Boston v. Shaw, 2 Met. 130; Wright v. City of Boston, 9 Cush. 233; Downer v. City of Boston, 7 Cush. 277; Norwich v. County Comm’rs, 13 Pick. 60; People v. Brooklyn, 23 Barb, 166; 24 Mo. 20; McMasters v. Commonwealth, 3 Watts, 292; Soady v. Wilson, 3 Adol. & Ell. 248; Vin. Abr. title Sewers; Comyn’s Dig. title Sewers; Strange, 11-47; 2 Term, 368; 3 Maule & Selwyn, 447, 1 Barn. & Cress. 477; 1 Barn. & Ald. 21; 4 N. & M. 777; 3 Car. & Pul. 71.
    In a word, the unbroken current of authority is, that to authorize an assessment against a person or property, such person or property must be the subject of some benefit or advantage from the improvement to pay. for which the assessment is made, and that the person or property assessed, is only liable to pay in proportion to the benefit or advantage received. Now if such is the rule, the special tax authorized to be levied by the county commissioners in the case at bar, can in no event be regarded as an assessment — it is levied absolutely— according to quantity — on all land within a certain distance on each side of the road — it is levied without regard to whether any benefit is conferred, and is levied ^without reference to the extent or amount of benefit (if any) that may be conferred.
    The authority attempted to be conferred on the county commissioners, to revive the charters of expiring free turnpike road companies, together with their right of special taxation, is repugnant to sec. 1, art. 13, constitution of Ohio, which provides, “ That the general assembly shall pass no special act conferring corporate power.”

      8. Jefferson, for defendants. '
   Gholson, J.

The question reserved in this case arises upon an agreed statement of facts, and is stated to be, whether the act of the general assembly, “ authorizing county commissioners to grant further time for the completion of free turnpike roads, and paying for th¿ same,” passed May 1, 1854, “is an unconstitutional and invalid act, and repugnant , to the j>resent constitution of Ohio.” The general and abstract question, whether an act of the legislature be unconstitutional, can not with propriety be presented to a court. 'The question must be, whether the act furnishes the rule to govern the particular case. What, then, is the effect and operation of the act upon the particular case ? and does such effect and operation conflict with any provision of the constitution ?

It appears that by acts referred to in the agreed statement, and particularly an act passed the 23d of March, 1850, “ to incorporate the Wood County and Western Reserve Free Turnpike Company,” that the general assembly, for the purpose of having constructed a road in a particular locality, appointed certain persons commissioners, and that those commissioners and their successors were made a corporation, under the style mentioned, for the purposes of the act. The form of things and the name of things are not often material, and certainly ought not to be regarded in a matter so serious as a question of refusing obedience to an enactment of the legislature. In form *and name the enactment looks like the creation of an ordinary turnpike company, for the benefit of a body of corporators, and in this view might lead to an application to it of principles only applicable to private corporations. When, however, the substance is examined, it appears to be a public corporation, and really only a part of the machinery of the state for the construction and repair of highways; and there is properly no personal and private interest. The officers of the corporation are really county or township officers discharging duties usually discharged by such officers — the construction and repair of a highway for the free use of the public. It is, in terms and in fact, to be a free turnpike road. The only personal interest is that which those who live on land abutting upon a public highway have, as compared with other citizens of the county or state.

It is such interest which sustains the assessment as distinguished from a tax. The same principle is applied in charging upon cities and towns the repair of the highways which pass through them, and in allowing an assessment by the front foot on the real estate abutting upon the highways. The only difference between such cases and the present is, that in the latter the assessment is by the acre. It has the principle of benefit, which is sufficient when ascertained and fixed by law in reference to a particular locality, as compared with other localities, and need not be limited to particular pieces of property as compared with other pieces. If the legislature directs that upon a road being constructed in a particular section of the state, there shall be an assessment on account of the benefit to the locality, of a certain rate per acre, or a certain per cent, on the valuation, this would be equally an assessment as if a commission had been established to ascertain the amount of benefit which each individual owner, as compared with others, would receive. In this view we see no ground to sustain the objection, that what the legislature directed in this case was not an assessment.

*The other ground relied on is, that the act is a special one, conferring corporate powers, and repugnant to the first section of the thirteenth article of the constitution. We do not think it necessary to follow the counsel for the plaintiff in his elaborate argument as to the true meaning of that section of the constitution. We prefer to take the question negatively, and say that this particular case is not embraced, without attempting to lay down any rule as to other cases. We regard this case as somewhat anomalous. We need not decide whether such a corporation could be formed, or its powers as a corporation renewed by a special act, or whether the act passed is to be regarded as a general law or a special act; for we think that the particular thing authorized in this case can, in no proper sense, be deemed a corporate power within the meaning of that section of the constitution.

The public road in a particular locality, for the construction of which a provision had been made before the adoption of the constitution, remained unfinished and unpaid for. It was a duty resting on the government to dispose of this road. For the purpose of its completion, or the payment for labor expended, a law is passed directing the county commissioners to assess for a limited period of years the property immediately benefited. The amount of money so raised, is to be expended under the direction of those having charge of the road. Now, in all this, we are not able to say, certainly not with that clearness and freedom from doubt which such a case requires, that the legislature exceeded its powers and violated the constitution.

The judgment must be for the defendants, that the injunction be dissolved and the bill dismissed.

Brinkerhoef, C. J., and Scott, Sutlife, and Peck, JJ., concurred.