source: Caselaw Access Project

author: Wood, Judge.

license: Public Domain

text:
    *The following cases were decided at the December term, 1841, in bank, and are now furnished to the reporter for publication :
    James Ingersoll v. Jacob Herider.
    In a prosecution under the 10th section of the act prescribing the duties of supervisors, and relating to roads and highways, passed March 20, 1837, the defendant may show that travelers were not accustomed to pass the state-road obstructed by him, but that the travel was on a turnpike road, shorter and more convenient.
    This is a Writ of Error to the court of Common Pleas of Hamilton county, and, on the last circuit, was reserved for decision in bank.
    The original action was debt, brought to recover a penalty for obstructing a highway, instituted, originally, before a justice of the peace, and removed, by an appeal, into the court of Common Pleas of Hamilton county, where the defendant in error filed his declaration against the plaintiff in error, and, in the first count thereof, complains : For that the said plaintiff in error, on the 10th June, 1840, at the county aforesaid, fenced up the public highway, leading from Main street, in the town of Miami, to the Whitewater River, in said county; which said highway was and is authorized by a law of the state of Ohio, and did suffer said obstruction to remain, to the hindrance of travelers, twenty-four hours and more, contrary to the form of the -statute in such case made and provided, and whereby the plaintiff in error forfeited the sum of twenty dollars, and thereby an action hath accrued to the defendant in error, to demand, and have, of, etc.
    In the second count, the defendant in error avers that the plaintiff in error, on the 10th June, 1840 — other obstructions made by him before that day in the public highway, in the county, aforesaid, autho528] rized before that time by a law of Ohio, ^did, for twenty-four hours and more, suffer to remain, to the hindrance of travelers, contrary to the form of the statute in such case made, and wrongfully and injuriously kept and continued the said obstructions, so existed, for a long space of time, to wit: for the space of fifty periods, of twenty-four hours, from the day and year last aforesaid, to the 2nd August, 1840, to the great hindrance of travelers, and contrary to the form of the statute, aforesaid ; by means whereof, and by force of the statute in such case made and provided, the plaintiff in error forfeited, on the 11th June, 1840, the sum of twenty dollars ; and, also, the further sum of ten hundred dollars, for the said fifty periods of twenty-.four hours, aforesaid, terminating on the 2d day of August, 1840, and thereby an action hath accrued, etc.; yet the said plaintiff in error, though often requested, hath not paid, etc.
    To this declaration the plaintiff in error plead nil debet. The cause was then submitted to a jury, and a verdict rendered for the defendant in error, for $100. A motion was then filed for a new trial, by the plaintiff in error ; a remittitur entered by the defendant in error, for eighty dollars of the verdict so found by the jury ; the motion for a new trial then overruled, and judgment entered upon the verdict.
    A bill of exceptions was taken during the progress of the cause, from which, among other things, it appears that the defendant in error proved, on the trial, that the state road, leading from Cincinnati to the town of Harrison, by the way of Miamitown, was laid out and established, agreeable to law, in or about 1807, and was duly opened and continued, until 1816. That the original road crossed the River Miami, above the town of Miami, and ran north thereof, west of the river ; that, in 1816, an application was made, by petition, to the county commissioners of Hamilton county, to alter the route of said road ; that the alteration was duly made, and reported to the commissioners, in 1816, and the report and survey ordered to be entered of record, and the alterations to be opened. There was no evidence that the original road had ever been vacated, nor any record of any subsequent proceedings, ^approving the report of the alteration and [520 survey, and order to record. It was proved, immediately after the report and survey; the alteration was duly opened, and had always since continued a public road; and that the old road had been shut up and discontinued ever since the alteration was opened.
    It was also proved that the alteration, in 1816, on the west side of the Miami, was as follows : At State street, in th.e town of Miami, the alteration left the old road, and passed down State street, in said town, about one thousand feet, to the south side of the town; it then ran west, parallel with the old road, at the average distance, south of the same, from half of a mile, to two hundred yards, for the distance of about a mile and a quarter, when the alteration and old road again came together, and followed the same track thence to Harrison. It was also in evidence, that the plaintiff in error put his fence across the road, as altered, about half a mile west of the town of Miami, in 1839, and had continued it there ever since.

      The plaintiff in error gave in evidence the charter of the Cincinnati and Harrison Turnpike Company, passed in 1831, and proved that, in 1832, the company constructed a road, under the charter, leading from Cincinnati to Harrison, crossing the bridge at Miamitown ; that between the two places, Cincinnati and Miamitown, the turnpike was laid upon the track of the state road, as altered, with the exception of three or four departures, for the purpose of straightening the road. In some places the two roads, the turnpike and road, as altered, were two or three hundred yards, and, at other places, a few rods distant from each other. That, in all the departures, the company had compromised the damages for the land taken, by the surrender of the ground, covered by the track of the old road departed from, to the owners of the land, and made an agreement to vacate the old road, at such points of departure. It was proved that the turnpike, west of Miamitown, left the track of the road, as altered, and passed north of said town, after reaching State street, and ran parallel with the state road, as altered, west, for about a mile and a quarter, where the turn-530] pike again came into the track of the old road, as altered, *and followed the same from thence, west, to the town of Harrison, with the exception of some few departures, at crooked places. It was proved that, between the bridge, at Miamitown, and the aforesaid junction, the turnpike runs parallel with the old road, as altered, the distance of one third of a mile, at the widest place, and about two hundred yards at the nearest point, and that the turnpike runs south of the track of the original state road, before the alteration, some few rods west of the town, and crosses the line of the same, at several points, before it reaches the junction west; and that the turnpike, from the place where it leaves the state road, at Miamitown, to the junction aforesaid, is shorter than the state road, as altered. The plaintiff in error also offered to prove, that he owned the land on both sides the state road, as altered, and, also, of the turnpike, and that the ■company agreed with him to vacate the state road, and permit him to fence it up, as altered, by way of compensation for damages, and that •it should be shut up and discontinued ; but the court refused to permit this evidence, so offered, to go to the jury, and charged the jury that the company had no authority to make the vacation and compromise, aforesaid, with the plaintiff in error; that the company had the rright to occupy the state road, as altered, so far as they followed the track ; but if the company made any material departure from the state iroad, as altered, the company ceased to have any power over it; and the state road, in such ease, between the point of departure and junction was, in no wise, vacated. The court further charged, that if the departure, where the obstruction was created, was material, the company had no power over the state road, to vacate it, or to make the compromise with the plaintiff in error.
    The plaintiff in error also offered to prove, that the obstructions by him so placed, and the fencing up of the state road, as aforesaid, was not any hindrance or inconvenience to travelers, and that the same was not used by travelers when open ; that the turnpike was shorter and. better than the state road; but this evidence was rejected by the court.
    *The plaintiff in error also objected to the evidence of the alter- [531 ation of the road, as being insufficient, without proof of the order of the county commissioners vacating the old state road; but the court admitted the evidence to go to the jury. To all which opinions of the court, the plaintiff in error excepted, assigns the same for error, and prosecutes this suit to reverse the judgment of the court of Common Pleas.
    Morris and Rairden for plaintiff in error.
    This is-an action of debt Nought to recover damages for obstructing a highway, under the tenth section of the act of March 20, 1837, entitled “An act prescribing the duties of Supervisors, and relating to Roads and Highways.” Vol. 35, O. L. 65.
    This act provides, “ That if any person shall obstruct any road or highway, authorized by any law of this state, and suffer such obstruction to remain to the hindrance and inconvenience to travelers, any person so offending,” etc.
    The intention of the legislature here, undoubtedly, was, to make the hindrance and inconvenience to travelers, which is caused by the obstructions being upon the road, the gist of the action. To constitute the offence contemplated by this law, there must be an obstruction placed upon the road, the obstruction must be suffered to remain, and the obstruction remaining upon the road, must be a hindrance and inconvenience to travelers. If such was not the intention of the legislature, why do they use the words “ to the hindrance and inconvenience to travelers.” The offence of placing the obstruction upon the road, would be precisely the same, without those words, if the intention had not been, to make the hindrance and inconvenience resulting from these obstructions, the reason of the offence.
    In construing a statute, we are not permitted to exclude any words used by the legislature, when we can apply the law, and give to all the words used their appropriate meaning; giving, then, all the words in 532] this section of the act, their ^proper meaning, how can placing the obstruction on the road be an offence unless it results in a hindrance and inconvenience to travelers. We are supported in this view by a latter clause in the same section, which is as follows; “ And for every twenty four hours such person or persons shall suffer such obstruction to remain to the hindrance and inconvenience of travelers, such person or persons,” etc. By this latter clause it seems that the legislature were careful that their meaning and intention should not be mistaken ; the same words are retained,' and cannot, it seems to us, create an additional offence with any other construction than we have given.
    If we are correct in this view, it is incumbent on the defendant in error to show by proof that the obstructions placed and suffered .to remain upon the road are a hindrance and inconvenience to travelers or the public.
    It has been said, however, that this will be presumed, where the fact of the obstructions being placed upon the road is proved. If -this position be correct, (which we do not admit,) in the absence of proof to the contrary, it is certainly competent for the plaintiff in error to rebut the presumption by proof, and show that the acts done by him cause no hindrance or inconvenience to the public. The court of Common Pleas, therefore, erred in not permitting that evidence offered by the plaintiff in error to go to the jury.
    The court of Common Pleas erred in permitting the evidence of the defendant in error to go to the jury, to prove this a public road or highway, authorized by a law of this state, and instructing the jury that the same was sufficient to prove the altered road an established highway.
    The change of this road from the original route of the state road á-t this point was made upon the petition of Arthur Henrie, under the act', of 16th February, 1816. 2 Chase’s Stat. 945, 948.
    The plaintiff in error insists that the proceedings of the county commissioners of Hamilton county, ordering this change, are irregular 533] erroneous, and incomplete, and do not ^establish the changed route “ a public road or highway” authorized by any law of this state.
    The ninth section of the act above referred to provides the mode of changing an established road upon the application or petition of an individual, and that the county commissioners, upon receiving “ satisfactory information that the petitioner or petitioners have opened such road equally convenient i'or travelers and carriages, they shall vacate so much of the old road as shall lie between the different points of intersection, and record such vacation, which shall afterwards be a public road or highway.”
    Thus it will be seen, that the altered route can only be a public road or highway, after the vacation of the old road and a record of the new route. And the only legal evidence of such altered route being a public road or highway, “ authorized by any law of this state,” is the record of such vacation and alteration.
    It has been contended by the defendant in error that this alteration was made under the provisions of the third section of the act of 1816, and does not require a vacation of the old, and a record of the new route to establish this a public road.
    The third section requires that “ previous to any application being •made to lay out a new, or alter an established road, such intended application shall be advertised,” etc.
    This section is equally applicable to the second and ninth sections, as both declare the mode in which an application to lay out a new or alter an established road shall be made ; and the ninth section prescribes the only mode by which an alteration of an established road can be made upon the application of a single individual.
    A public road, or highway, authorized by a law of this state must, we suppose, be laid out and established according to the law in force at the time such road is laid out and established, or legalized by some subsequent act of the Legislature.
    If we are correct in our view of this act, the change, when made upon an application of a single individual, must be under the provisions of the ninth section, and that to establish the *new or [534 altered route a public road, the county commissioners must first vacate so much of the old road as lies between the different points of intersection of the old and new routes, and cause such alterations to be recorded. There is no provision for either establishing a new road or altering an established road that does not require a record of such road or alteration. And where the alteration is made upon the application of a single individual, a vacation of the old road and a record of the new is required to establish the alteration, and so we understand this court to'have decided on the circuit in this county, in the case of Doitrich v. Pendry and others.
    It may be contended, however, on the authority of the case in 5 Ohio, 271, that the alteration is complete and establishes the new route without such record and vacation. We conceive a material difference between the ease in 5 Ohio, and the ease under consideration.
    In the ease in 5 Ohio, there is no petition or order of the county commissioners establishing the road ; there is the report of the viewers and survey, and a full record of the road, and in the absence of proof to the contrary, the court presume the proper petition was on file, and the proper order made at the time.
    In the case under consideration, there is a petition by a single, individual, the order of the county commissioners to view the proposed change, and the report of the viewers, but no order vacating the old road, and no record of either.
    In the case in 5 Ohio, the court presume, in the absence of testimony to the contrary, certain acts to have been done when the necessary results of those acts are found on record, as the law requires. In the present case, there are certain acts done, which prove incomplete and insufficient either to vacate the old or establish the new route. And,, in this case, there is no record whatever.
    It is contended by the plaintiff in error, that the state road from Cincinnati to Harrison, was, to all intents and purposes, vacated by the Cincinnati and Harrison Turnpike Company, in laying out and estab535] lishing their road, under the seventh ^section of the charter of said company, which provides, “ that if any part of said road shall be located on ground occupied as a county road, and which have been-'graded and improved by direction of the county commissioners, at the expense of the county, said company, before they collect any toll thereon, shall pay or secure to be paid to the satisfaction of the-county commissioners, the fair value to said company of such grading or improvement,” etc.
    We suppose there can be no doubt that this provision in the charter was made to meet the very case now made. It was well known that the best route from Cincinnati to Harrison across the bridge at Miami-town, was occupied by the state road, and this provision was incorporated into the charter for the purpose of giving the company the-right to appropriate this road, or any part thereof, to their own use,, upon paying a fair equivalent for the improvements made on the road at the expense of the county.
    If the turnpike road, under this provision in the charter was located substantially on the land occupied hy the state road, under any arrangement with the county commissioners, we think the state road would lose its character as such, and as a state road would be vacated.

      The turnpike road was located on the exact track of the state road, the whole distance from Cincinnati to Harrison, except some slight variations for the purpose of avoiding a crooked route, where the-company departed from the land occupied by the old road, varying inth'e present case from one-fourth of a mile to a few rods, the distance between the two points of intersection being about one mile.
    It seems to us clear that'the turnpike road occupying the track of the state road under the charter, except the very slight variations, the parts departed from are substantially vacated, as much so as the parts-actually occupied by the turnpike road.
    Suppose the turnpike company to have established a toll-gate on their road between the two points of intersection, would it be said that this road must be kept open, and so give *an opportunity to [536-travelers to evade the payment of toll for the two ten miles on either side of such gate. The road being kept open in such case would be a complete trap to travelers to incur the penalty provided for in the eleventh section of the charter of the turnpike company.
    The ninth section of the Cincinnati and Harrison Turnpike Com* pany’s charter gives the right to said company to erect toll-gates on-their road. The tenth section fixes the rate of toll which may be-charged by the company, and the eleventh section, or that part to which we refer, is as follows : “ If any person or persons using said road, shall, with intent to evade the law, pass through any private gate or bars, or along any other ground near to any turnpike gate which shall be erected pursuant to this act,” — “ shall forfeit and pay to said company,” etc.
    We suppose it would not be contended that the road said to have been obstructed would not be vacated, if the company had erected a gate between the two points of intersection. It would be doiDg violence to the good sense of the Legislature to suppose they intended to-give the right to the company to appropriate the state road to their use, to erect toll-gates on the same, and inflict a penalty on those who pass round such gates, if the old road must be kept open at every trivial departure, as a lure to travelers to incur the penalty provided for in the charter.
    The only reasonable construction is, that the old road at this point is vacated by the turnpike company, and if the action of the turnpike company, ea; vi termini, vacates the state road for one purpose, it is by the same action vacated for all purposes.
    The court erred in instructing the jury that the turnpike company had no right or power to agree with the plaintiff in error, as the owner of the land through which both roads run, to close up the old road in lieu of damages for the land occupied by the turnpike.
    We have seen that the turnpike company, under the seventh section 531] of the charter, have the right to locate their road *upon the land occupied by the state road. Now, what is the difference to public convenience, if the turnpike company, in locating their road, agree with the owners of the land through which- both roads run, to depart from the track of the old road and permit it to be closed, in consideration that the owner of the land will give ground for the turnpike road on a straight route, equally convenient for the travel of the public. In either case the convenience of the public is the same, and is wholly under the control of the owner of the land and the turnpike company, and it is highly probable that the turnpike road would have been located on the exact track of the state road but for this arrangement. The court of Common Pleas erred, therefore, in ruling the testimony out, and instructing the jury as they did.
    William M. Corry for defendant in error.
    By the diagram herewith presented, in explanation of the plaintiff’s exceptions, the court sees that this controversy is not vexatious merely —it is important. The plaintiff, living at the north end of Miamitown, proposes, by his obstruction, to force the traveling public away from a state road leading to the ford of the river, and to compel them to use the turnpike and the bridge. He has also shut in the other owners of fronts on such a road ; and the south end of town, where defendant resides, is cut off from all direct communication towards the west. This substantial injury, thus done to a large number of citizens of every description, results to the benefit of two corporations, the Harrison turnpike and the Whitewater bridge companies. The plaintiff is the instrument by which this wrong is done ; and the unteehnieal part of his excuse is, that he has by this means, and the consent of the former, indemnified himself against private loss. This is the reason given for condemning a mile and a half of state road, diverging from the turnpike a whole furlong in that distance, indispensable to the neighborhood, and a link of communication between the ford, mills, 638] and town of Miami and the country on one side. We *are at issue on its sufficiency, and will proceed to investigate the merits of the defence. The first question is, was there any road established by the action of the commissioners in 1816, and was not an order of vacation of the road of 1807 necessary? There was no such necessity, The argument of plaintiff to prove it is utterly fallacious. Its premises are a perversion of the facts and a mistake of the law. It assumes that because Arthur Henrie presented the petition to vacate, that the petition (now lost) was not signed as the law required. We say it was so signed, and this court will undoubtedly so presume on the authority of 6 Ohio, 166, and 5 Ohio, 271, after a lapse of more than twenty years. If this presumption were not one of law, it must be drawn from the fact that the petition covered all the road from, within seven miles of Cincinnati (Fenton’s) to the state line. What individual would presume to ask for the revision of fifteen miles of the state road? And yet the main argument of the counsel for the plaintiff is to show that the road of 1816 is a case where one person has requested the commissioners to alter a route on his own land, and. so falls under the ninth section of the road law of that year, in which event the owner of the land requests the alteration, and after certain proceedings, “ so much of the former road as shall lie between the different points of intersection, shall be vacated, the alteration recorded, and, afterwards, the new route shall -be a public highway ; ■” Chase, 948. There Í3 no proof that Arthur Henrie ever owned a foot of land on these roads ; there is proof that plaintiff owns both sides, at a certain place. The counsel have totally mistaken the sections controlling these proceedings; they are the second, third, fourth and fifth sections of the law of 1816, (2 Chase, 946,) and not by any means the ninth, (Chase, 948,) as they suppose. I will not labor the point.
    Second : Was the requisite proof of the establishment of the road of 1816 produced at the trial? The answer to this'question is very brief. If the road came into existence as we assert, it is the case in 4 Ohio, 79, where the original papers were ruled sufficient without the record; and if it should *be a road under the ninth section, it [539 makes no difference in the testimony. But that supposition is inadmissible.
    Third : A fence across the public road does not hinder travelers nor put them to any inconvenience, because the turnpike company had a new road running between the same extreme points, and with this difference of route only at Miamitown, that it enters the north end of it and crosses the Whitewater Company’s bridge, within a furlong of the point at the south end, where the old road entered, going directly to the mills and ford ; and a traveler on horseback, or with his wagon, who crossed the ford from the east side of the river, and went up to the old road, half a mile on the west side of the town, to plaintiff’s fence, had only to turn back and get to the turnpike as well as he could. As to the other land owners on the old road, for the mile and a. half front, though obstructed, they had no business to complain, because they were not travelers in any correct sense of the word. The statement of this argument is its refutation.
    Fourth : Plaintiff avers that the old road was vacated by the turnpike company at the place of obstruction, not by actual user, but because the departure was very slight, and only made to avoid a crooked route. The old road was substantially occupied. How far the property of the citizen in the easement of public highways can be divested, by a special charter for a turnpike company, is one of the gravest questions which this tribunal may have to consider. But in this ease-there is no occasion for going into that subject. The case is clear upon other principles.
    1. Plaintiff did not show any agreement to pay, nor any payment of the value of the old road by the turnpike company to the county commissioners. This was indispensable, both to the right of collecting any tolls on the road (7 sec. Charter,) and, a fortiori, of their right to prevent its use by the public.
    2. The whole mass of testimony bears down the plaintiff’s position,, that the variation of the route was slight, and that the turnpike lay substantially upon the track of the old road. There was a most mate-540] rial departure from the track. It is *precisely analogous to the course of Yine and Sycamore streets extended on the north side of Cincinnati. These streets are great thoroughfares for the country to-different sides of that city; out of which they run up two converging-ravines, until they intersect just over a mile to the north. Who would presume to fence up either of them ? What man would listen to the-argument, that one of them was a slight variation of the other, and that a certain turnpike charter authorized him to vacate either ? The attempt would be utterly abortive. Any obstruction would be indignantly removed in an hour, though ever so formidable, by a rising of the community; and shall the people of Miamitown, in the same instances, aggravated by the loss of a public ford, be so unjustly treated by two companies who were never certainly chartered, the one to hold and the other to skin the traveling public.
    Fifth : I hardly know what to say to the fifth proposition of the-opposite counsel. It is very obscurely stated in their argument; but the court will find that it is insisted upon. They quote several sections of their charter to show a right of punishing evasion of the toll-gate, and then speak of these deviations of their road from the state road as furnishing lures of that sort to travelers. By such an argument they expect to impress this court. No one can fail to see that so far from requiring its assistance they have only to help themselves. If they plant their gate at the intersection of the two roads instead of between the intersections, it can not be evaded. And why should not this company, if it be more convenient to vacate the old road than to put the toll-gate in the right place, or remove it from a wrong one, petition for that purpose like other citizens ? Simply, because usurpation is more grateful than justice to the passions, and a charter in this country is become only the more effectual by being the very last hold of usurpation. So fearful are freemen even yet of its power, that they hardly question any of its acts ; and in the present instance a whole town submitted to the deprivation presented by these proceedings, very probably under the mistake that a special law granting privileges to corporators could cut off ^travel on the state [541 road and shut up men in their own houses.
    Plaintiff's positions were all overruled by the court successively, and they held that, in the last place, if the company could not vacate the state road of 1816, through Miamitown, they had no power of that sort to grant to the plaintiff. Hence the agreement about compensation for his damages was ruled out below. The ease is with this court. The defendant supposes that the Common Pleas settled the case correctly, and that there is no error in his record.
   Wood, Judge.

The inquiry arises, has error intervened to the prejudice of the plaintiff? It appears to us the facts set forth in the bill of exceptions must demonstrate, at a single glance, that this inquiry should be answered in the affirmative, so far, at least, as one of those exceptions is concerned,

The action is founded on the tenth section of the “ act prescribing the duties of supervisors, and relating to roads and highways.” This section enacts, “ that if any person shall obstruct any road or highway, authorized by any law of this state, and shall suffer such obstruction to remain, to the hindrance and inconvenience of travelers, any person so offending shall, for every such offence, forfeit and pay any sum not exceeding twenty dollars, nor less than two dollars,” etc. No penalty is given for obstructing a road authorized by law, nor for permitting the obstruction to remain, unless it is to the hindrance or inconvenience of travelers. It was, then, assuredly competent for the plaintiff in error to prove that travelers did not pass the state road, as altered, and as fenced up by him, but that all the travel was upon the turnpike, which was shorter and more convenient. Besides, the penalty is limited from $20 to $2, and is, therefore, to be graduated according to the nature of the obstructions, and the quantum of' hindrance and inconvenience to which travelers are subjected; and it was, therefore, clearly competent to the plaintiff in error to prove, that there was a turnpike road shorter and better than the altered state road, upon which travelers might, and did pass, without hindrance 542] or inconvenience. In refusing this *evidence we think the Common Pleas erred, and the judgment must be, therefore, reversed.

It is also contended by the plaintiff that the Common Pleas erred in permitting the evidence of the defendant in error to go to the jury to prove this road a public highway, authorized by a law of this state, and instructing the jury that the same was sufficient. As a general rule, the jury are the judges of the sufficiency of the testimony, and the court exceeds its province when the opinion is advanced, that the issue is, or is not, proved ; but in the case before the court, the alterations in the old road were made under the act of 1816, the 9th section of which provides that when the county commissioners shall receive satisfactory information that the alterations of any such road have been opened, equally convenient for travelers and carriages, they shall vacate so much of the old road as shall lie between the different points of intersection, and record such vacation and alteration. Now, these alterations were made in 1816, and used as a public highway, without interruption, until 1832, when the turnpike was constructed under the company’s charter, and, in fact, until about the time it was fenced up by plaintiff in error, a period of nearly a quarter of a century ; and, it seems to us, it was too late to claim the absence of the record of such alterations and vacation, when all the other proceedings were strictly in accordance with the law, and sufficient to destroy the validity of the road. In such case, and after such a lapse of time, the record should be presumed to have been made, and lost by time and accident; and the instruction of the court, on careful examination of the bill of exceptions, will be found to be, substantially, nothing more than that the proof was, or might be sufficient, without the introduction of such record. In this there does not appear, to us, to be any error.

It is again claimed the Common Pleas erred in rejecting the evidence offered, that the turnpike commissioners surrendered to the plaintiff in error the altered road as a compensation for the land over which the turnpike was constructed, including the locus in quo the obstructions were created ; and *their agreement to cause the same to be [543 vacated, and their permission to fence up the road.

From the inspection of the charter it is clear that no authority is given to said commissioners to vacate the said road, but power remains with the commissioners of the county ; and, as this power is not conferred, it follows that such compromise and permission, to create the obstruction, would have been unavailing, as a defence, and the evidence was properly rejected by the court.

Nor was it error that the court charged the jury that the old road, so altered, was vacated no farther than the turnpike was laid, substantially, upon its track, and that, between the points of intersection and material departure, the road commissioners had no authority, power or control, over the alterations of the old road; and it was, by the charge, .expressly left to the jury to find whether, at the place where the obstruction was, the departure was material or not, though no evidence’ was offered by the plaintiff in error that it was not material; but, on the part of the defendant in error, the evidence proved that, although the turnpike and the old road, as altered, run parallel with each other, they were at some rods’ distance at the very place where the obstruction was created.

There does not seem, to us, to be anything erroneous, then, in the rejection of this testimony, nor in the charge of the court, on the last points made; but for rejecting the evidence offered by the plaintiff in error, that the obstruction was no hindrance or inconvenience to travelers, the judgment will be reversed, and the cause remanded for' further proceedings. >

Judgment reversed.


text:
    *Josiah Spalding v. The Bank of Muskingum.
    An agreement between a bank and contractors on the public works, for the bank to make a loan to the state, to be applied to the public improvements on which they were engaged, and charge the contractors five per cent, commission, is an illegal shift and device by the bank to obtain more than six per cent, interest upon its loans.
    Such a contract would not be enforced in favor of the bank against the contractors.
    But the contractors will be regarded as in pari delicto, and having paid the commissions, the amount can not be recovered back.
   Wood, Judge.

The declaration in this case contains the common money counts in indebitatus assumpsit, and to which the defendant plead the general issue of nonassumpsit.

The cause was submitted to the court on the circuit in the county of Muskingum, and reserved here to determine the law upon an agreed statement of the facts submitted by the counsel.

From this agreed statement, the substantial facts in the case appear to be these: On the twenty-third day of May, 1837, the plaintiff, a contractor on the public works upon the Muskingum River, in company with two other contractors, entered into an agreement with the defendant, as follows :

“ We agree, if the bank of Muskingum will take a loan from the state of Ohio, to be applied to carry on the public improvement at Zanesville, and the dam near the mouth of Symmes’ Creek, in which we have contracts, that we will allow the said bank a commission of five per cent, on the amount of said loan, to be paid by each of us, on the respective amounts applied to each of our contracts ; the loan to be of such amount as the bank may he able to obtain, not exceeding fifty thousand dollars. The said Manypenny agrees to take at least seventeen thousand dollars; and if there should be no money in the hands of the fund commissioners, applicable to the dam near the mouth of Symmes’ Creek, the said Hosmer agrees to take the amount that may be sufficient to complete the said contract; should there be money 545] in the hands of the fund commissioners, ^applicable to said work, said Hosmer is not bound to take any of said loan. The money is to be paid to said parties by the bank,, on the cheeks of the acting commissioner of the board of public works, in current bank paper.
Signed, Josiah Spaulding,
G-. W. Manypennt,
S. R. Hosmer.”

This contract being entered into, Stiirges, the Cashier, as the agent of the bank, made a written proposal to the fund commissioners to purchase of them, on behalf of the bank, fifty thousand dollars of the six per cent, stock, redeemable at the pleasure of the state after the yeor'1856, the interest payable semi-annually in New York, where the principal should also be redeemed. The amount to be placed to the credit of said commissioners, at once, on the books of the bank, and to be paid on the authorized cheeks of the acting commissioner of the board of Public Works, to the contractors, at Zanesville, and the contractors, at the dam, between Zanesville and Dresden. This proposition was made expressly with a view of enabling these contractors to go on with their work, and thereby prevent the great loss to themselves and the public, which the suspension of the work would occasion, and an early decision was desired, as expressed in the letter of the cashier.

The fund commissioners accepted this proposition, and on the 31st of May, 1837, they gave the bank the scrip certificate for $50,000, and in lieu thereof a stock certificate was issued for the same amount in October following.

This $50,000 was placed to the credit of the board, as proposed, on the books of the bank, and the acting commissioner of the board of Public Works, between the 26th of June and 31st of December, 1837, drew, checks in favor of the plaintiff for money due in favor of the plaintiff, as such contractor, upon the bank, on the said fund so deposited, in bank, for the gross amount of $27,542.78. The bank paid to the plaintiff on these cheeks the gross sum of $26,165.65, and retained, with the consent of the plaintiff, in pursuance of the agreement of *the 23d of May, the gross sum of $1,377.13, being five per [54@ cent, on the amount of the acting commissioner’s checks in favor of the plaintiff. The whole amount of $50,000 was not paid to the three contractors ; but $10,000 applied elsewhere. Hosmer required no part of the $50,000. The bank paid all the checks presented by the plaintiff, with the deduction of the five per cent., and a further amount beyond what was s» paid on the plaintiff’s checks, remained due him for work under his contract.

If, on these facts, the court shall be of the opinion the plaintiff is entitled to recover the five per cent, so retained by the bank, then it is agreed jndgment shall be entered in his favor for $1,377.13, with interest from the 31st of December, 1837, and costs of suit; otherwise judgment is to be entered for the defendant.

The facts agreed upon, and upon which this case must exclusively be determined by us, would seem to place the defendant in no very enviable position. Whatever pretence may be set up to retain the amount in controversy, as commissions in the sums allowed, it is very clear it is one of those illegal shifts and devices to which the inordinate money -lender resorts to acquire to himself gains by an evasion of the wholesome provisions of the laws of the state, and it is much to be regretted that such efforts are but too frequently successful.

This corporation, the defendant, is prohibited by the charter which gave it birth, and not only so, but by a general law, from receiving more than six per cent, upon its loans or discounts ; though, it is true, this amount may be reserved in advance, yet no one can doubt for a moment, that this five per cent., covered up under the name of “ commissions,” is, substantially, interest on this large amount of $50,000, placed to the credit of the fund commissioners, and on which, or the scrip, or stock in lieu thereof, the bank was to receive six per eent., semi-annually, in the city of New York, and on which interest she will not fail to avail herself also of the difference in exchange.

*This fund being created upon her books, it is worthy of inquiry what services she renders to entitle her to five per cent, upon it, in the name of commissions ? It would be difficult to give the answer. Instead of advancing the $50,000 at once, she keeps it in her possession and receives her interest until it is checked out in small sums to-contractors.

This may be considered “ a fair business transaction,” under the modern system of banking; but formerly, so far as I am acquainted, these institutions were glad to avail themselves of large deposits, and' for the accomodation to themselves, would pay them out without any other reward. But it is said this was a voluntary arrangement between the parties. Such appears to be the fact, from the agreed ease, and by which, as was said in the outset, we must decide this case; and it would also appear, from the agreed case, the plaintiffs, Manypenny and Hosmer, applied, first, to the bank to make this arrangement, both for the loan and the five per cent, commission. Other papers, however, accompanying the record, show that on the 17th of May the fund commissioners addressed a circular to the bank, proposing to take this-loan, and that the arrangement with the plaintiff was on the 23d. Of this proposition of the commissioners, the plaintiff had no knowledge from any evidence before us. The plaintiff and others were contractors ; the state was, doubtless, in their debt, for it appears from one of' the papers in the cause, that the commissioners had not funds to make farther advances, and had refused; and I strongly suspect the period between the 17th and 23d of May, was used by the bank in mousing-out the condition of the contractors, and obtaining the agreement for this five per cent., called commission. I say called commission, though it is clear to my mind that it was only another name for interest, and a mere device, whereby to evade the law; and while it may succeed in retaining this interest, for which it has done no act, and run no risk, it is due that the facts should be exposed, as they, from the evidence, doubtless exist. If, then, this five per cent, is substantially interest, the bank had clearly no right to receive it. It is an act malum prohibitum, and if *the bank was seeking to recover it, it would [548 not receive the aid of this court. It is, however, a part of the agreed statement that the money being in the hands of the bank, the plaintiff when, from time to time, he presented his checks, consented to this deduction of five per cent. This being so, and the consideration being illegal, the plaintiff appears to us to be particeps criminis. He-is injpari delicto with the bank, and while the law will not enforce an executory contract, but leave the parties as it finds them in such case so, neither will it aid the party who has performed such contract, by enabling him to recover back the amount he has paid, but the maxim, volenti non jit injuria, applies in all its force. There is, perhaps, no principle on which there is less conflict of authority from the earliest to the most modern reports. Roll v. Raguet, 4 Ohio, 418 ; Raguet v. Roll, 7 Ohio, part I., 78 ; Chit. Con. 219 ; Stone v. Hooker, 9 Cow. 154 ; Moore v. Adams and Newkirk, 8 Ohio, 372. It has been repeatedly held by this court, that where illegal interest is once voluntarily paid, the payer is without remedy.

T. Ewing and H. Stanbery for plaintiff.

R. Stillwell for defendant.

We must, therefore, inevitably come to the conclusion that the plaintiff is not entitled to recover, and judgment will be entered for the defendant.

Judgment for defendant.


author: *Birchard, J. Lane, C. J.,

text:
    The Miami Exporting Company v. Edmund Clark.
    The act of 1803, incorporating the Miami Exporting Company, docs not confer upon it banking powers; and, if the company possess any such powers, they can only he claimed under the act of February 23, 1816.
    The(Miami Exporting Company, as well as the other banks therein named, is prohibited by the act of 1816 from receiving a greater rate of interest than six per cent, per annum, in advance, on its loans and discounts.
    Where a bank so prohibited discounts a bill, charging exchange as a mere shift or device to obtain a greater rate of interest than it is authorized to receive by law, the contract is void, and the hank can neither recover upon the bill, nor upon the common counts, for money loaned.
    This is a motion for a now trial, from the county of Cuyahoga.

      The action was assumpsit against the defendant, as acceptor of two bills of exchange drawn by James S. Clark, payable at New York, one for $2,700, and the other for $3,000, and accepted by the defendant.
    *Tbo declaration was upon special counts, and the common money counts. Plea, non assumpsit, and motion of set-off.
    The bills offered in evidence were as follows:
    Cincinnati, January 10, 1837.
    Nine months after date, pay to the order of John W. Willey, Esq., $3,000, at the Union Bank, in the city of New York, for value received.
    (Signed,) Jas. S. Clark.
    To Ed. Clark.
    Accepted — Edmund Clark.
    Cleveland, June 28,1837.
    Three months from the 15th of July next, pay to the order of John W. Willey, Esq., $2,700, at the Union Bank, in the city of New York, for value received. Your obd’t serv’t,
    (Signed,) Jas. S. Clark.
    To Ed. Clark.
    Accepted, payable in city funds — Edmund Clark
    The defendant offered to prove that, at the discounting of the bills by the plaintiffs, a greater rate of interest was taken than six per cent, per annum, in advance; that the bills were given for the arrangement of a former draft of $10,000, discounted by the plaintiff for the defendant; and that there was an agreement, at the time when the original draft of $10,000 was discounted, that the defendant should allow the plaintiff a greater rate of interest than six per cent, per'annum.
    To the admission of this evidence the plaintiff objected, and’the court overruled the objection.
    The evidence offered and admitted to go to the jury was:
    1 An abstract from the books of the bank, showing its transactions with the defendant, as follows:

      *2. The deposition of John C. Wright, who testified that, several years ago, he was president of tho Miami Exporting Company, and had placed in his hands several bills and obligations, against gentlemen in Cleveland, for collection or settlement, which, at their earnest request, he arranged the best way he could, keeping in view the interest of tho bank. That he arranged for the 'bank some protested paper of the defendant’s, probably about the sum of $10,000, on which Jas. S. Clark and John W. Willey were also liable. That tho loan had been a long time before obtained, and under the most positive assurances of punctual payment. That he, at the request of said defendant, arranged said paper, by extending the time, and making the new paper fall due by installments. That the defendant paid him money enough to cover all the back interest and expenses, the discount and exchange on the new paper,'and his fees, and something in reduction of the original debt. Tho discount, and usual exchange at tho time, was included. The precise amount of the expenses paid, or the rate of exchange estimated, he did not recollect; but he had a general, recollection that tho exchange at that time ranged high ; that on paper payable out of Cincinnati, having more than sixty days to run, he thought exchange was increased one-half per cent, a month on the extended time.
    3. The defendant further offered evidence to provo that, for many years past, exchange had uniformly been in favor of New York, and against Ohio.
    4» The defendant then offered John Barr as a witness, who testified that, in the year 1836, as the agent of the defendant, he proposed to the President of tho Miami Exporting Company to make a loan of them. That the president declined to discount a note, but said that they would discount a bill of exchange, payable at New York. That the president stated that they could make all the loans they wished upon the latter kind of paper. It being suggested by witness that perhaps the defendant would not bo able or willing to make payment in New York, the president said that the whole might be done at the bank in Cincinnati. That the paper need not *be fully paid at maturity; -but that the loan should be paid by installments of from twenty-five to thirty per cent, at a time. That what the defendant would have to pay, would not bo more than at the rate of eight per cent. That the loan was made; and the money, in the bills of the plaintiffs, was forwarded and delivered to the defendant.
    The witness stated in his cross-examination, that, after his conversation with the president,-the defendant had an interview with him upon the subject of the loan, but what passed between them he did not know. That it was his impression, though of this he was not certain, that $100 more than the interest, at six per cent., was retained on the original loan ; but he does not know the precise amount of money received from Cincinnati.
    The defendant then rested.
    The plaintiffs thereupon, by their counsel, requested the court to charge the jury:
    1. That the act of incorporation of the plaintiffs, and the law, does not prohibit them discounting a note or draft payablo in Now York, and that a note or bill so discounted is not void.
    2. That the plaintiffs arc not restricted by their act of incorporation, or any modification thereof', to the taking of interest, at the rate of six per cent, per annum, and no more; and therefore the bills in suit are not void, if, in discounting them, interest Vas reserved at a greater rate than six per cent.
    3. That if the jury should be of opinion that more than six per cent, interest was reserved in the discounting of said bills, that partean only operate to render the socurity void , but as against the defendant, if it be proven that the plaintiffs loaned money to the delendant, the plaintiffs can recover, on the common count, the amount loaned, with interest at the rate of six per cent., deducting the payment made by the defendant.
    4. That, although on the previous bills more than six per cent, interest was reserved, yet if, at the time of the discount of the draft of $2,700, no more than at the rate of six per *ecnt. was reserved on it, the plaintiff is entitled to recover on that draft.
    But the court refused so to charge the jury; and, on the contrary, charged :
    1. That the act of incorporation of the plaintiffs, and the law, do not prohibit their discounting a note or draft payable- in Now York, and that a note or bill so discounted is not yoid ; but still, if a note was refused, and a draft accepted, payable in Now York, and this was a device to acquire more than six per cent, per annum in advance by the bank, the bank had no capacity to make such discount.

      2. That the plaintiffs are restricted, by their act of incorporation, and the modifications thereof, to the taking of interest at the rate of six per cent, per annum, in advance, and no more; and therefore the bills in suit are void, if, in discounting them, interest was reserved at a greater rate.
    3. That if the jury should be of opinion that more than six per cent, interest was reserved in the discounting of said bills, that fact not only operates to render the security void, but as against the defendant, although it be proved that the plaintiffs loaned money to the defendant. Tho plaintiffs can not recover, on the common counts, the money loaned.
    4. That if, on the previous bills, moro than six per cent, interest was reserved, although at the time of the discounting of the draft of $2,700, no more than at tho rate of six per cent, was reserved on it, the plaintiffs are not entitled to recover on that draft. _ ,
    The jury returned a verdict for the defendant.
    The plaintiffs move for a new trial, on the ground:
    T. That the evidence objected to was improperly admitted
    2. For error in the charge of the court.
    3. That the verdict is against the evidence.
    Peter Hitchcock, for plaintiff, in support of the motion:
    The court erred in directing that, by their act of incorporation, *and tho modifications thereof, tho plaintiffs were restricted to the rate of six per cent, per annum in. advance.
    Th'e Miami Exporting Company was incorporated on April 15, 1803, to continue until May 1, 1843. From a careful examination of the act of incorporation, it will be found that there is no restriction as to the rate of interest. I think I am right in saying, that interest is named but onco in the statute, and that is in section 9, which provides “ that the president and directors shall pay to each stockholder an annual six per centum interest on the sum or sums which shall have been paid into the funds of the company,” etc. The corporation are not then, by its charter, restricted to the taking of interest at the rate of six per cent, and no more.
    The act to which reference is made, to show that the act to incorporate the Miami Exporting Company has been modified, is the act of February 23,1816 (Chase’s Stat. 913), “ to incorporate certain banks therein named, and to extend the charters of existing incorporated banks.” There is no other act but this, so far as my knowledge extends, which claims to have any reference to this subject.
    The title to this act indicates the object which the legislature had in view. It is “an act to incorporate certain banks therein named, and to extend the charters of existing incorporated banks.”
    Section 31 reads thus: “The said corporation shall not take more than at the rate of six per’ cent, per annum in advance, upon its loans and discounts.”
    This section can apply only to the “ said corporations ” created by, or previously enumerated in the act.
    Section 40 provides that the charters of the several banks in this state, heretofore incorporated by law, shall be and are hereby extended, according to the provisions of the several laws incorporating them, until January 1, 1843, on condition of their accepting and complying with all the terms, requisitions, and provisions contained in this act, in the same manner as though such banks had been named and referred to in this act.
    *“ The requisitions and provisions ” referred to in this sec-■Jon unquestionably refer to the setting off o^ stock to the state. It was upon this condition that the charters of the then existing incorporated banks were extended. And if, by construction, the restriction as to interest can be construed to extend to those banks, as well as to those incorporated by this act, as seems to have been held by this court, in the caso of the Bank of Chillicotho v. Svvayne and others, 8 Ohio, 257, still, it docs not extend to the Miami Exporting Company, because its charter was not extended.
    Section 42 of the act now under consideration is in these words: “On condition that the directors of the several banks incorporated by this act, and of the several banks, tho charters of which are extended thereby, and also of the Miami Exporting Company, shall accept of, and comply with the conditions and provisions of this act. Any bank thus accepting and complying shall be and remain exempt and free from the payment of any tax to be imposed or collected by any other law of this state.”
    From this section it seems to me to be clear that, hitherto, the legislature did not suppose that there was anything in the act relative to the Miami Exporting Company, else why mention it here byname? They had neither extended its charter, nor given it corporate -existence; but were willing, if any privileges were conferred upon the other banks, by exempting them from futuro taxation, the same priviloge should be extended to this institution. They did not undertake to impose any now restriction, cither upon the previously incorporated banks, or upon tho Miami Exporting Company, without their assent. But they made certain propositions to them, in consequence of acceding to which, they would be released irom tho then existing tax of four per cent, and also from future taxation. It is in this section that the Miami Exporting Company is first named.
    In section 43 of tho act the penalty is proscribed, on tho bauks failing to comply with the provisions of the act. It is in these words: “If any of tho banks hereby incorporated, *or if any of the banks heretofore incorporated, the charter of which is hereby extended; or, if the president, directors, cashier, or any.other officer of any of said banks, shall fail to comply with all and singular the requisitions and duties required of them respectively by this act, according to tho true intent and meaning thereof, the bank so failing, or the bank of which the officer or officers shall so fail, shall forfeit all and every advantage, privilege, and benefit of this act, and from the time of such failure, shall be placed, adjudged, and considered in the same condition and situation as if this act had never boon passed.” Whether this is a sufficient penalty is not now a matter for inquiry. It is sufficient to say that it is tho penalty which the law-making power thought proper to prescribe, and which this court is bound to enforce.
    Now, suppose the banks incorporated by this act had failed to comply with the requisitions of the act, by setting olf to the state stock, etc., what would have been their situation ? The answer is clear and manifest. They would have remained unincorporated ; for, as to them, this act would have been as a dead letter. Suppose the banks which bad been previously incorporated, but whose charters were extended by this act, had failed to comply, what would have been their situation? They must have been “adjudged ” to remain as they were before, subject to tho same amount of tax, and their charters to expire in 1818 and 1819, according to the terms of' their respective acts of incorporation. They must, if any regard is bad to this law of 1816, have been “ adjudged and considered in tho same condition and situation as if this act had never been passed.” And suppose the Miami Exporting Company failed to comply, can any different rule be applied, as to that institution, from what would have been applied to the others ? If so, for what reason? If not, then if that institution did not comply with the law of 1816, it follows that this law has no application to it, for “it shall be placed, adjudged, and considered in the same condition and situation as if this act had never been passed.”
    *This brings us to the consideration of the question, whether tho Miami Exporting Company complied with the conditions of this act.
    There is nothing to show that the Miami Exporting Company ever accepted of the terms offered by the act of 1816, or complied with the requisitions of that act, but, on the contrary, tho most conclusive evidence that it did not. What is the consequence? The act itself gives the answer. It expressly declares, as wo have already seen, that from the time of failure to comply, the corporation so failing “ shall bo placed, adjudged, and considered in tho same condition and situation as if this act had never been passed.” It remains as it was under its original act of incorporation, and no one pretends that, by that act, there was any restriction as to tho rate of interest.
    From these considerations it seems that tho court were mistaken in the instructions given to the jury, that this company was restricted by its act of incorporation, and the modification thereof, to six per cent, interest.
    The court were mistaken in the instruction given to the jury, that if, in the previous bills, more than six per cent, interest had been reserved, although at tho time of discounting tho draft of $2,700, no more than at the rate of six per cent, was reserved on it, the plaintiffs could not recover on that draft.
    If I am right in the position, that tho Miami Exporting Company were not, by any law, restricted any more than individuals as to the rate of interest it might receive on its loans and discounts, it follows, of course, that the court were mistaken in this opinion. For almost forty years it has been uniformly held that no contract was void on account of the reservation of excessive interest, except as to such excessive interest. But it may bo thought that, where corporations are concerned, a different rule should prevail. The law, however, makes no distinction, and there is no reason why it should. Corporations, although not natural persons, are persons in law, equally entitled to the privileges secured to them as are individuals. As an authority to sustain the correctness of the ^instructions given by the court, the case of the Chillicothe Bank v. Swayne and others, 8 Ohio, 257, will probably be relied upon. That case I consider as an authority in favor of tho plaintiffs in this case. The court, it is true, held the contract in that case void, but why? Not because the interest reserved was greater than that allowed by the general law of the land. On t'ho contrary, they held expressly that, upon this ground, it was not void. 8 Ohio, 285. The only ground upon which the court held the contract to be void was, that the corporation had not power to make it. It was nowhere to be found in the charter. Express. power was given it to loan money at six per cent, interest. Beyond this it had no power; and, as in the case under consideration, it had made an attempt to go beyond this, it had exceeded its powers, and tho contract thus attempted to be made was as no contract. It had, to bo sure, the forms of a contract, but it had not the necessary pai’tios; and it was void, not because against law, but solely because there wdro not the necessary parties.
    The draft for $2,700 is not like the one in the case cited. The rate of interest upon which it was discounted does not exceed six per cent. It had three months to run, and this discount is but $41.85, precisely, as I believe, six per cent.
    Although the securities may have been void on account of the reservation of excessive interest, still the money actually loaned might be recovered under tho money counts.
    This principle has justice in its favor, if it is not based upon tho well-known principles of law. Where there are usury laws making contracts void, no such principle could be sustained, for the policy of such laws seems to bo to punish the lender of money. As in this state wo have none of these usury laws, there is no reason why the court may not in this case adopt a rule which shall do strict justice. Tho defendant has received the money of the plaintiffs. He ought to repay it. Upon proof of his having received it, the court would in ordinary cases say that he was bound in law to refund it, and would so instruct the jury. But it so happens that the plaintiffs have taken security for the payment of the money, which is *void because they had not power to tako such security. There is no sound reason why they should not be permitted to resort to the original loan, and recover upon the common count.
    With this evidence before them, the jury should have found for the plaintiff on the money counts, and not having so found, justice requires that theverdict shouldbe set aside, anda new trial granted.
    Payne & Wilson, for defendants, contra:
    As to the first cause assigned, was it possible for the jury to have arrived at a different conclusion ? It is impossible to conceive of a more absurd and shallow pretext for covering a usurious transaction.
    But the plaintiffs insist, that though this loan were usurious, yet they were authorized to make it, and that, therefore, the court erred in its charge to the jury.
    The proceeds of the discount were paid to the defendant in the notes or bills of tho Miami Exporting Company. And as well such notes, as the paper of the defendant received therefor, were, under the restraining law of 1815, utterly void, unless the plaintiffs were authorized to exorcise the franchise of banking.
    After the repeated decisions of the judicial tribunals of Now York, and the opinion of this court in the case of the Bank of Chillicothe v. Swayne and others, 8 Ohio, 257, it may be assumed as the settled rule of law, that the right to bank must be expressly conferred by tho legislative power. And no usage, however respectable or ancient, though acquiesced in by the state, and regarded by its agents in the assessment and collection of taxes, will legalize an assumption of that right. Its exercise is a matter of public concern ; and public policy, and public security, no less than strict justice, demand its denial, except where it is distinctly and unequivocally authorized by legislative enactment. 8 Ohio, 285; The People v. Utica Insurance *Co., 15 Johns. 358; 2 Cow. 678; New York Fire Insurance Co. v. Ely, 19 Johns. 1.
    If the plaintiffs possess such power, it is not by virtue of their original act of incorporation. And unless some subsequent legislative authority can be found, it is clear that the bank notes issued by the plaintiffs, and the paper, or written contracts received therefor, are within the restraining act of 1815, and utterly void. Such authority can not be found, unless it is contained in the “bank law” of 1816. 2Chase, 913. Section 40 extends the charters of all the other banks of the stale to January 1, 1843, on tho condition of “their accepting of, and complying with, all the terms, requisitions, and conditions contained in this act, in t.he same manner as though such banks had been named and referred to in said act.” Section 41 exempts all banks, so complying, etc., from taxation under the law of 1815. Section 42 provides that all of said banks, and also the Miami Exporting Company,' shall be exempt from all further taxation, on their compliance with all tho requirements of this act. And the remaining sections, respecting forfeitures, etc., apply to all the banks, etc.
    The plaintiffs had assumed banking powers, and were then in tho exorcise of thorn. By section 40 it was intended to legalizo that exercise of power, and extend it to 1843; granting to tho plaintiffs the privilege of issuing bills, discounting notes, and receiving deposits, and placing them, on the score of rights, immunities, and exemptions, on a footing with the most favored banking institutions of the state; and in return, exacting from thorn a compliance with those terms, and restrictions which wore deemed salutary for the public, and from which no bank Was exempt. The clause in section 42 may have been inserted for greater certainty, and to exclude any doubt as to its being included in the former section.
    The act wisely prohibited, the taking of more than six per cent, interest in advance. The plaintiffs sought to evade this restriction, and contracted for eleven per cent. This they were unauthorized to do; and the contract is on that account illegal, and void.
   *Birchard, J.

If the objection, that improper evidence was permitted to go to the jury, refers to tho abstract from the plaintiff’s books, the answer is, that it was not objected to at the trial as a mere copy, and tho objection not being then made, it is now too late. If made in timo, it is probable the defendant would have introduced tho original books, or have laid a proper foundation for the introduction of tho transcript, by showing that the plaintiffs had been duly served with notice to produce them. If tho objection relates to any other portion of the evidence, it will bo seen that, with the views we entertain of the merits of tho case, it was not well taken. The evidence all tended to establish the fact, that the original loan, as well as the paper upon which the suit was brought, was tainted by an illegal contract to pay interest at a rato greater than six per centum per annum, in advance.

Before proceeding to consider tho instructions of tho court to tho jury, it is proper to remark that on the trial, no questions of law were debated, the points only were made in order that they might be considered, and determined here, with a notice to counsel, that, for the purpose of settling the questions of fact, the law would bo given to the jury as it had been settled on a former trial in the same court. It may also be observed that it was then supposed that the act of February 8, 1815 (2 Chase, 868), and the act of February 23,1816 (2 Chase, 923), recognized the plaintiff as a bank, and modified, and restricted to some extent, the powers tf the plaintiff. This impression may have obtained from the fact, that, on one of the preceding trials, the counsel for the plaintiff had claimed for her a franchise of banking, under the act of 1816. However, that may bo, it was on the part of the defendant claimed, that if such was not the fact, the plaintiff was an unauthorized banking company. Butit is now claimed, in support of this motion, that she is not bound by any of the provisions of the act of February 23, 1816, in consequence of her non-acceptance of the provisions and conditions therein contained. Lot us see what would be the effect of adopting this assumption. The plaintiff sues as an incorporated banking institution. All her powers are *those expressly granted by the act of incorporation, and those necessary to carry into effect the powers expressly granted. The act incorporating the Miami Exporting Company is to be found in 3 Chase’s Stat. 2010, and it may be searched without finding any express or specific grant of banking privileges. There is no language, and no clause in it, which, honestly construed, will boar any such interpretation. It must follow that if tKe plaintiff is thrown back upon the act of 1803, a new trial should be refused. Because in that event, no suit could bo maintained. All the bills, notes, etc., issued by her, and all her securities, fall within the provisions of the laws against unauthorized banking.

It is said, however, that the legislature has recognized her right of banking. To be of any validity, this recognition must appear by some legislative enactment. The only statutes to which we have been relerrod, that seem to be of any importance in connection with our present inquiry, are the two above cited. .

The act of 1815 (1 Chase’s Stat. 868,) section 1, provides, “that every bank, and banking company, whether chartered or unchartered, within this state,” which, at the taking effect of this act, had commenced the business of banking, by discounting paper, etc., should pay a tax of four per cent, on dividends.

Section 5 provides, that thereafter “ it shall not be lawful for any individual, or company of individuals, to issue, and put in circulation, any note, or order, for the payment of money struck or printed on any engraved plate, and calculated to circulate as a bank bill, or note, unless such individual shall be by law specially authorized so to do, or unless such company of individuals shall be by law incorporated for that purpose; and all bonds, bills, notes, or written contracts given to, entered into with, or discounted by any such individual, or company of individuals, shall be, and the same are hereby declared null and void.”

Section 7 provided that until January 1,1818, the above section 5 should not be construed to extend to a company that had commenced “ bank business ” prior to January 1, 1815.

*The provisions of the foregoing sections imply that there were at that date banking companies doing business in the state, some being authorized to bank, and others not; and that of these, some, who were unauthorized to bank, were companies incorporated for other purposes. Hence the provision postponing the final operation of section 5, in the cases specified in section 7, to January 1,1818. This would give them time to close up their “bank business.” It is, moreover, an admitted fact that, in 1815, and prior thereto, the plaintiff was engaged in “bank business.” Her right to continue the business seems not to be recognized. It is merely tolerated for a limited period, and the act asserts the right, on the part of the state, to close all its banking operations on a given day, and inftho meantime, a right to subject it to taxation.

The act of February 23,1816, is somewhat complicated, and the whole act must be looked to, in order to give it a sound interpretation. The first fifteen sections incorporate so many banks by name, and specify their general powers. Some of theso had already, as unchartered companies, been engaged in business. From section 16 to section 40, the rights and duties of all are more particularly defined. Section 36'is in those words: “That the said corporations shall not take more than at the rate of six per cent, per annum in advance on their loans or discounts.” Section 40 extended the charters of all the incorporated banks until January 1, 1843, upon condition of their compliance, “in all respects, with the terms, requisitions, and provisions of this act.”

Section 42 reads thus: “ That on condition that the directors of the several banks incorporated by this act, and of the several banks, the charters of which are extended thereby, and also of the Miami Exporting Company, shall accept of, and comply with, the conditions and provisions of this act, any bank or banks thus aeceptng or complying, shall be exempt from tax, etc.” Section 43 provides, that on a failure to comply with all and singular the requisitions and duties required of them respectively, according to the true intent and *meaning.of‘ the act, they shall forfeit all its advantages, privileges, and benefits. And by section 44, the Supremo Court has full power and jurisdiction, upon a writ of quo warranto, to hear and determine all questions touching such violation or forfeiture.

The Miami Exporting Company is nowhere else named in the act. But named as she is in section 42, we can not doubt the intention of the legislature to bind her by the provisions of section 31, which prohibited all the banks then chartered from taking more interest than at the rate of six per centum per annum in advance. That was one of the provisions of the act, and an important one. How can it be said that it was not to be complied with — not to be accepted as a part of the law of her creation, or that in fact it has not been so accepted, when such assertion, if true, makes her an unauthorized bank and liable to the penalties of the statutes against such institutions ? The facts of the case show that the plaintiff did accept the provisions of the act; did issue bank paper; did do business as a banking institution after January 1, 1818, notwithstanding section 5 of the act of 1815. And admitting that she did not comply with many of the conditions of the act of 1816, and has been remiss in observing, “all and singular, the requisitions and duties required by the law, according to its ‘true intent and meaning,’ ” it does not appear that the privileges which that act extended to her had been declared forfeited by a judgment of this court. How then stand the instructions? The first instruction was given substantially as requested, and, if erroneous, the error was in favor of, not to .the prejudice of plaintiff. ■ The second was rightly refused, and the remarks upon the first proposition, upon which instruction was asked, together with the instruction given upon the first point, were strictly in accordance with the law as settled in the Bank of Ohillicothe v. Swayno et al., 8 Ohio, 261. The refusal to instruct the jury that the plaintiff might recover upon the draft for. $2,700, as requested in the fourth proposition of counsel, was not erroneous. The correct instruction was given. It was, in ^substance, that if the paper was discounted as a mere device to obtain more than six por contum interest, in advance, the contract was void, other, wise not. The jury were thus left to find, upon the evidence, whether this whole series of paper was not part and parcel of one transaction, and whether, at the inception of that transaction, the corrupt and unlawful-agreement was made that plaintiff, by such means, should obtain a prohibited rate of interest. They found such to be the fact, and upon sufficient evidence. The circumstance that the draft of $2,700, was a renewal of the former one, and discounted at six per centum, made no difference. For the proof was clear that it embraced a part of the original and prohibited excess, and that, too, in pursuance of the original unlawful agreement. To allow a device of this nature to defeat a salutary provision of law, and to sanctify usury by banks, would be equivalent, in many eases, to relieving them from all restraint. It would make an important distinction where a substantial difference does not exist.

Lastly, did the court err in instructing the jury that the plaintiff could not recover for the money loaned, upon the common counts?

This is a new question, and one that involves important considerations. It has been said, with much propriety, that it is wrong for the defendant to refuse a compensation for the money actually received. But, with equal propriety, it may bo said to be wrong in the plaintiff to do what the law forbids. Both plaintiffs and defendant were violators of the law — the one in loaning, and the other in receiving, on an illegal contract. Can the transaction bo dissected so as to enable us to separate the good from the evil, to reject the bad, and enforce the remainder? The money was all received at once; was a single transaction, and the whole contract is alike tainted with-the fraud and illegality. Again, the parties made their own contract. True, it was void for want of capacity or power in the plaintiff to make it; void because it was a fraud upon the law continuing the plaintiff’s existence as a bank. In this view of the case can it be seriously contended that the *law will make out of their illegal contract a legal one; that it will imply a contract differing substantially from the express contract made by them? Clearly this can not be. We hold, then, that as to the money actually received by the defendant in this case, both parties are in pari delicto, and the general rule in such case applies that no action can be maintained.

As to the point, that if the original loan was not tainted with usury, the plaintiff might recover upon the common counts, although the subsequent paper was so tainted, we believe no difference of opinion exists. According to our recollection, the jury were so instructed, and they have found that the loan was originally fraudulent. Now does the testimony sustain their finding? * As shown by the plaintiff’s books, the net proceeds of the discount were $9.800 — $200 being reserved, which was the true rate of interest taken in advance on a loan of $10,000. The witness,- Barr, sajrs, that he negotiated the loan: that the agreement was to discount drafts on New York instead of notes, in order that more than six per cent, interest should be procured, and there was no conflicting evidence upon the point. Ho also stated his belief that $100 mor« than was shown by the abstract was retained of the original loan. Certainly the verdict could not have been different, without being against evidence. Motion overruled.

Lane, C. J.,

dissenting. I confine my opinion to a single point. The Miami Exporting Company was incorporated in 1803; it immediately assumed the exercise of banking' powers, and continued to claim them, and to exercise some of them uninterruptedly, the period of thirty-nine years. For a part of this period, its notes constituted the largest portion of what was called money in the west. The state, more thaq once, borrowed from it, deposited with it, legislated upon it, and taxed it as a bank. The judi. ciary have at all times until now enforood its rights as a bank, and have placed its affairs in liquidation, under a law applicable to banks only. After this *lapso of time, contemporaneous • construction, and repeated recognition — after this course of life, and death, and burial — I find abundant'reason to hold it to have possessed banking franchises.

Assuming, then, that the plaintiff possessed the powers of a bank, and that this loan was made as such to the defendants, at a rate of interest greater than six per cent., I think the court erred in not instructing the jury that the plaintiffs were entitled to recover from the defendants, if they were beneficially interested in the loan, the amount advanced, and six per cent, interest.

In England, and in some of the Atlantic states, contracts upon usury are called base, corrupt, immoral; are pronounced void by statute, and no recovery ol the money loaned is admissible, because they are regarded as intrinsically wrong, and against policy. If such epithets are used in Ohio, they lose their ordinary meaning. Men may distrust the prudence of those who give or take more than six per cent., but they impute no want of integrity, or anything wicked or immoral; for the ordinary profits of other investment» of capital are (or are supposed to be) at a higher rate, and the profits of money loaned will depend upon them. If there were anything intrinsically wrong in taking more than six per cent., tho legislature would not have authorized certain incorporated companies to receive it, nor would they have authorized its payment on part of our own state loans. So our courts, from the first, have not treated such bargains as illegal, corrupt, and void, but have recognized the contract as binding, and reformed the terms after its own rulos, and given judgment for the principal, and six per cent, interest.

Such, in my opinion, was the duty of the court in the present case. If the plaintiffs possessed tho power to make such a eon-tract, unrestricted by any limitations except the general law relating to interest, they wore entitled, like other plaintiffs collecting such loans, to a judgment for tho principal, and lawful interest. *But if the contract bo void from the mere want of power, and not in consequence of an illegal or immoral consideration, it constitutes tho common caso of money paid upon- a consideration which fails, and the plaintiffs should recover the amount advanced, and simple interest, from those who beneficially received tho money. The decision in the Bank of Chillicothe v. Paddleford, is in no degree inconsistent with this opinion, as that suit was against sureties who were liable on the security only. The court, in the present case, should have instructed the jury to inquire if the defendant was interested in the loan.


author: Wood, J.

text:
    Joseph McClintock v. Henry W. Inskip.
    The act authorizing notice of special matter to be given with' the general issue, dispenses only with form.
    The notice must contain tho substance of a good dofenso, and if the same matter pleaded would be bad on general demurrer, the notice is insufficient.

      If the judgment of the court below can be sustained by the record, it will not be reversed because an incorrect or insufficient reason was given.
    This is a writ of error to the Supreme Court of the county of Greene.
    The original action was trespass, brought in the common pleas and taken, by appeal, into the Supreme Court.
    Inskip, the plaintiff below, declared against MbClintock, for breaking and entering his close, and quarrying, carrying away, and converting to his own use large quantities of stone of great value. The defendant plead the general issue, with notice that, on the trial of the cause, he should give in evidence, in bar of the action, that the county commissioners'of Greene county, by virtue of an act of the legislature of Ohio, incorporating the Cincinnati, Lebanon- and Springfield Turnpiko Company, appointed Moses Shoup, David Haines, and *Jacob Coy, three disinterested freeholders of the county of Greene, to assess the damages which the said plaintiff and others might sustain, in consequence of said turnpiko road passing through or near the lands of the said plaintiff; and, by virtue of said appointment, the said Shoup and others were afterward duly sworn to execute and perform the duties assigned, and did assess and determine, by their award, in writing, that the said Inskip was entitled to no damage at all; the said Shoup and others believing that the advantages of the said road, when completed, would be a compensation sufficient for the stone to be taken, and that a copy of the award was given to each party to the suit, according to the act of incorporation under which the same was made.
    Also, that evidence would be given on the trial that the several trespasses complained of in the plaintiff's declaration were the same upon which the above assessment of damages was made by the freeholders appointed, on the application of the president and agent of said company, acccording to the provisions of its charter.
    On these pleadings and notice, the case was submitted to a jury, in the Supreme Court of Greene county, at the May term, A. D. 1843, a verdict rendered for Inskip, the plaintiff below, and judgment thereon. To reverse this judgment McClintock now prosecutes this writ of error.
    A bill of exceptions was taken during the trial, from which it appears the plaintiff below offered in evidence to the jury, the entry of the defendant into his unimproved land, the taking and carrying away a quantity of stone, with the value thereof, and rested his case. That the defendant then offered in evidence to the jury certain papers, marked A, B, C, and D; A being an application in writing, signed by the president and agent of the company, addressed to the commissioners of Greene county, setting forth that he wished to procure stone, for the construction of the road, from the unimproved lands of the plaintiff below and others; that he was unable to agree with them about the price, and asking the appointment of three ^suitable men of the county to appraise the value of the stone, agreeably to the act of incorpo ration.
    The paper B is a bond, in the penalty of fifty dollars, executed by the president and agent of the company, to the State of Ohio, for the use of Greene county, according to the provisions of the charter, conditioned for the payment of the expenses of the appraisement.
    The paper C is the appointment, by the commissioners, of the appraisers, with directions, after being duly sworn, to view the premises of the plaintiff below and others, and taking into consideration whether their lands were more or less valuable by the road passing, through or near them, to appraise the damages claimed, and make out their assessment, in writing, of the amount of damages assessed, if any, and to deliver copies thereof to the parties.
    Paper D is the report of the appraisers, that the advantages of the road to Inskip, when completed, will be a compensation sufficient for the stone to bo taken.
    The bill of exceptions also shows that the defendant below offered to prove to the court and jury, that the defendant below was a contractor on the said turnpike road; that the road passed through the plaintiff’s farm, and that, as such contractor, he entered on the unimproved land of the plaintiff, by virtue of the aforesaid assessment, and took said stone; and that a copy of the award or assessment was duly served on the plaintiff. All which evidence was overruled by the court, and the defendant excepted.
    It also appeal’s, from the bill of exceptions, that the counsel then asked the court to charge the jury that the defendant had the right, by section 7 of the act of incorporation, to enter on the unimproved land of landholders, for the pui’poso of procuring materials for the construction of said road, and that, in such case, the plaintiff could not maintain trespass. This instruction the court refused to give, and the defendant again exceptod.
    It was assigned for error: 1. That the court did not admit the papers marked A, B, C, and D, to-go in evidence to *the jury. 2. The same in substance, to wit: that they were improperly excluded from the jury. 3. Section 7 of the act of incorporation, and the proceedings under it, are not unconstitutional. 4. If unconstitutional, the entry was nevertheless authorized by law; and trespass, in such case, could not be maintained. 5. General assignment of error.
    Lowe, McCorkle & Lowe, for plaintiff.
    W. & B. F. E. Ellsberry, and Harlan & Gest, for defendant.
   Wood, J.

We will dispose of the questions raised by the assignments of error, in the order in which they stand on the record. • Did the court err in excluding from the jury, as evidence, the papers-marked A, B, C, and D,. or the other evidence offered by the plaintiff in error, as set forth in the bill of exceptions? To determine this question, it is necessary to refer to the state of the pleadings, and inquire as to the sufficiencj’’ of the notice. In the action of trespass, quare clausum fregit, under the general issue, at common law, the defendant can only give such evidence as falsifies the plaintiff’s declaration, as by showing that he did not break the close in the manner laid. Gil. Ev. 221; 2 Term, 166 ; 2 Wils. 173. Every matter in justification or bar must be specially pleaded. To simplify, prevent delay, and avoid unnecessary expense, the statute of Ohio has provided that, instead of a special plea, the defendant may give notice of the facts on which he will rely to bar the suit. It would seem to follow, that, while form is thus dispensed with, every notice should contain the substqnce which, when proved, would constitute a complete bar. This court so decided in Reynolds v. Rogers’ Ex’rs, 5 Ohio, 169.

If we look to the charter of this company (26 Ohio 1¡. 149, sec. 7), it only authorizes an entry on the land of an individual to take materials, when necessity compels, in order fo construct the road. If materials can bo found upon the lqnd condemned for the road, no authority to enter on adjoining 'Hand is conferred, Nor does the charter authorize an entry, unless the land be unimproved. The notice is silent as to the necessity of obtaining the stone of the plaintiff, in order to make the road. It does not suggest that any such proof will be made on the trial. There is nothing said in it of any evidence to be adduced that there was not sufficient material for every purpose of the road, within its lines, but only that the entry was made on unimproved lands. It is also necessary to state the circumstances which constitute the necessity to make the entry. In Fulton v. Monahan, 4 Ohio, 426, this court have said : “ In trespass, for breaking one’s close and carrying away stone, it is not enough to say, in justification, that the stone was needed in the construction of the National road. The circumstances that constitute such necessity must be sef forth ; ” and the reason is, that the plaintiff may know what is relied upon, and prepare to meet it by proof, and that the court may see whether the proof to be offered will constitute a bar to the action. The notice is, therefore, in our opinion, defective. A special plea which contained the same facts only would be bad on general demurrer. This is a rule by which to determine the sufficiency or insufficiency of the notice. Reynolds v. Rogers’ Ex’rs, 5 Ohio, 169. All evidence under the notice was legally excluded.

By the third and fourth assignments, we infer, counsel suppose the court excluded the evidence, on the ground that section 7 of the charter was unconstitutional in permitting the property of tho plaintiff below to be paid for in fancied benefits, to be derived from tho location and completion of the road. If so, the bill of exceptions contains no evidence of it. Nor is it necessary to inquire whether the reason for the opinion of the court was sound or unsound. But is the judgment of the court, on the point in issue, sustained by the record? Fulton v. Monahan, 4 Ohio, 426; Westerhaven v. Clive, 5 Ohio, 136. Under the general and last assignment, we suppose, is intended to be embraced the refusal of the court to charge the jury, as asked by tho defendant’s counsel. Had the charge been given after the exclusion of tho defendant’s *testimony, there was no possible state of the case to which it could have had any application. Under such circumstances, to withhold a correct opinion, or to express one to the jury which is incorrect, does not lay the foundation for a writ of error. Reed v. McGrew, 5 Ohio, 379. Judgment affirmed.