Commissioners instead of a jury. We think the constitution of Ohio interposes no such restriction upon the action of this Court. This opinion renders it unnecessary to inquire what a jury is, in the meaning of the Ohio constitution; or whether it consist of twelve or any other number of persons. The late Judge Wilson, in his Lectures on Law, (2 vol. 300,) defines a jury to be "a convenient number of citizens, selected and impartial, who, on particular occasions, or in particular causes, are vested with discretionary powers to try the truth of facts, on which depend the property, the liberty, the reputation and the lives of their fellow-citizens." Mr. Jacobs, in the 3d vol. of his Law Dictionary, 566, says a jury is "a certain number of men sworn to inquire of, and try, a matter of fact, and declare the truth upon such evidence as shall be given them in a cause; and they are sworn judges upon evidence in matters of fact." We are not aware that we shall profit in the pursuit of this inquiry further. The constitution of Georgia, in the 61st Article, declares "the trial by jury shall remain inviolate for ever." In the case of Cooper vs. Telfair, (4 Dallas, 16,) the Supreme Court of the United States decided that an act of the Legislature of Georgia, of attainder and confiscation against one of her citizens, was constitutional, though no jury intervened. If this be law, little difficulty will be experienced in awarding to the Ohio Legislature, under our constitution, power to pass the occupying claimant law. Indeed, we are unable to discover wherein the law of Ohio conflicts with the constitution of Ohio. Were we to decide otherwise, there is a series of legislative acts, commencing with the organization of our government, and continuing to this time, that we should be compelled to declare void. We allude to enactments providing juries in cases of forcible entry and detainer, for the trial of the rights of property, for the assessment of damages where private property has been taken for public use, for inquiry in cases of idiocy, lunacy, &c. Upon the principle assumed all these are contrary to the constitution, and all rights acquired under them are void and of no effect. To sustain such a decision we should have unquestionable authority, and a firm conviction that the constitution has been clearly violated. The case in hearing is not one of that kind. It follows from this opinion, that the objections filed to the report of the Commissioners, in this case, are over-ruled. 11 JOSEPH WESTERHAVEN vs. JACOB CLIVE. The fact whether a constable's official bond was received or rejected may be proved by parol, where no written entry is made concerning it. The admission of evidence pertinent to any point in a case, is not error, though the court admit it for a wrong reason. Constable's official bond, given after the expiration of ten days from his appointment, is not void. bond found in the office, is not therefore a matter of record. Such a THIS cause came before the Court, upon a writ of error, to a judgment of the Court of Common Pleas of Hocking county, and was adjourned here for decision by the Supreme Court sitting there. The original case was this. An action of debt was brought in the name of the State of Ohio, for the use of Jacob Clive, against Joseph Westerhaven. The declaration counted upon a bond made by Joseph Westerhaven and others, on the 2d day of May, 1826, conditioned that if Simon Decker should well, truly, and faithfully discharge the duties of constable, for the township, in the year 1826, &c. The declaration averred that Decker held the office of constable for the year 1826: that on the 20th of May, 1826, an execution was put into his hands, in favor of Clive, against one Burt: that Decker refused and neglected to levy upon property, to make the money due on the execution: that for this default, Clive recovered judgment against Decker, upon which execution had issued, and return made, that nothing could be found to satisfy the same. The general issue of non est factum was pleaded, with a notice. This notice set out, that Decker was elected constable, but did not give bond within ten days; whereupon the trustees appointed another person to the office of constable: that if defendant ever did give bond for Decker, it was with other obligors than those named in the bond declared upon: that the bond declared upon never was delivered to the clerk of the township, and by him received as defendant's bond; and that the same never was approved of by the trustees. Verdict and judgment for the plaintif. At the trial the plaintif offered in evidence the record of the judgment, Clive vs. Decker, which was objected to, but received. Defendant excepted. Plaintif then gave in evidence the township record, containing the subjoined entries: "April 16, 1826. Ordered, that Horace Stone and Samuel Alexander be appointed and serve as constables for said township, the present year, and that they be notified of their appointment by the township clerk." "May 2d, 1826. Simon Decker gave bond as constable, in the sum of six hundred dollars, with Joseph Westerhaven, T. W. Claxton, W. Wallace, and J. W. Coffinbery, as sureties-bond filed the same day." Whereupon the defendant offered to prove, by the individuals who were trustees at the time, that the bond declared upon, was never accepted by them, but absolutely refused and rejected. The plaintif objected to the admission of this testimony, and the Court rejected it. The defendant excepted. The evidence being closed, the defendant moved the Court to instruct the jury, that the bond not being given within ten days after the election, and a new appointment having been made, there being no evidence of the re-appointment of Decker, he could not be held a constable, and the bond was not obligatory. That the township record showed that Wallace was a surety, in the bond accepted, and his name not being on the bond declared upon, it did not appear that the bond declared on, was the one on which Decker acted as constable. The Court refused to give all the instructions asked for, and the defendant excepted. The errors assigned were predicated upon these different exceptions. OLDS, for plaintif in error, cited 3 O. Rep. 487, 2 O. Rep. 348. H. STANBERY and HUNTER, for defendant in error, cited 14 Mass. R. 167. Opinion of the Court, by JUDGE HITCHCOCK. Sundry errors are assigned in this case: 1st. That the Court of Common Pleas erred in admitting, under the state of 'the pleadings, in evidence of the breach, in the declaration assigned, the record of a judgment in favor of said Jacob Clive, against Simon Decker. It is not denied that this record was a proper item of evidence, but the objection is, that it was admitted for an improper purpose. This objection is not well taken. If evidence is proper for any purpose in a case, it should be admitted, and it is immaterial what reasons are assigned by the Court, when it is received. That this record is proper evidence to show the amount which the plaintif is entitled to recover, provided he has any right, there can be no doubt. If, in the charge to the jury, the Court had directed them that this was an item of evidence to prove the breach in the declaration assigned, and this had been spread upon the record, the question which the counsel for the plaintif in error wishes to raise, would have been fairly presented to the Court. But nothing of this kind appears. Upon this assignment, then, we cannot reverse the judgment. 2d. That the Court erred in rejecting the testimony of the trustees, to prove that the bond declared upon, had been by them disapproved and rejected. The law requires that a constable shall give bond with sureties, to be approved of by the trustees of the township. This law ought to be complied with; but we are not prepared to say, that if a bond be delivered to a township clerk, and by him filed away, that such bond would not be obligatory, without proof of its having been approved by the trustees. When, however, a bond is presented to the trustees, and by them rejected and disapproved of, it is clear that such bond cannot be held obligatory. The sureties are discharged. Can this disapproval or rejection be given in evidence? The Court of Common Pleas rejected this evidence upon the principle, that the official acts of the trustees must be proved by the record of the township alone. We do not believe that these records are of that absolute verity, that any person shall be estopped to show the truth, in consequence of any matter which they contain. We are of opinion, therefore, that in rejecting this evidence, there was error. 3d. That the Court erred in refusing to charge the jury, as requested by the plaintif in error. And, 4th. That the Court erred in charging the jury, that the bond itself became matter of record, &c. There can be no doubt, but that after the ten days had expired, Decker having failed to give bond, it was the duty of the trustees to consider the office as vacant, and appoint another person to fill the office of constable. This was done; but up to the time the bond in suit bears date, neither of the individuals thus appointed, had complied with the law, by executing bond. If then the trustees had accepted this bond it would have been, on their part, a ratification of the appointment of Decker, and the security would have been holden. The mere circumstance that the bond is executed after the ten days have expired, is not sufficient to vitiate it. So far then as respects the first and third instructions of the Court, we think they might well be refused. As to the second instruction requested, it should have been given. From the township book, as shown by the bill of exceptions, it appears that on the 2d of May, 1826, Decker gave bond as constable in the sum of six hundred dollars, with the same persons named in the bond now in suit, together with Wm. Wallace, as sureties. It cannot with propriety be said, that a bond found in the office of the township clerk, years afterwards, became so far a matter of record, as to control this entry of the 2d of May, 1826. In refusing the instruction stated in the second particular, and in declaring the effect of filing bond, upon the entry of the 2d of May, there was error, Judgment reversed. D. MCARTHUR vs. A. KELLEY AND M. T. WILLIAMS, ACTING CANAL The canal laws do not authorize the Commissioners to compensate those who may be injured by appropria ting lands of others to be used without their consent. An attempt to make such an appropriation may be stayed by injunction. THIS cause was adjourned for decision here, from the Supreme Court of Pickaway county. The case made in the bill was this. The complainant alledged that he was owner of a tract of land, and in actual possession and occupancy, situate between the Ohio canal, a certain feeder and dam, and the Scioto river, the feeder being upon the land thus owned and possessed by the complainant. That the defendants, Neville and others, owned a mill on the Scioto river a short distance below the land of complainant. That the defendants, with Kelley and Williams, acting as Canal Commissioners, threatened that, under color of an act of the Legislature, 8th March, 1831, they would erect a waste wear and dig a race to conduct water from the head race of the mill to supply it with water: that this waste wear and race defendants were about to cut on complainant's land without his consent and against his will. The bill alledged that the Acting Canal Commissioners had no authority under the act referred to, to proceed in this manner. It made the act a part of the bill, and prayed an injunction, which had been allowed by a single judge out of term. The defendants demurred. LEONARD, for complainant, cited 2 John. Chy. 162, 463, 7 John. Chy. 436, 329, 332. OLDS and HUNTER, for defendants. Opinion of the Court, by JUDGE COLLET. The bill states that complainant was seized in fee simple, and was in possession of a tract of land situated on the Scioto river in the county of Pickaway; that the Canal Commissioners, to supply the canal with water, have erected a dam across the said river, which is abutted on the said land, and have constructed a feeder from said dam to the canal; that the feeder passes through said land; that the defendants, H. Neville, James Neville, and J. Cushing, are the owners of a mill on said river a short distance below said tract of land; that they have no right to abut a dam against said land, or to dig a mill race on it, or in any manner to use it, or any part of it, to convey water to said mill, or for any other purpose; that neither the complainant nor any other person, who was authorized, ever consented or agreed that they should do so; that the defendants pretend that they, by virtue of an act of the Legislature, passed on the 8th day of March, 1831, entitled "An act concerning the surplus water at the Scioto dam near Circleville," have authority to construct a waste wear in said feeder, and to dig a race from it to the head race of said mill to supply it with water, without the consent and against the will of the complainant, although the wear and the greater part of the race, if constructed, will be on the said land of the complainant; that they threaten, without the consent and against the will of the complainant, to construct this waste wear and race, for the purpose aforesaid; that they have no right or authority to do so. The act referred to by the bill is made a part of it. The bill prays an injunction, which was allowed in vacation. The defendants demurred to the bill, and moved to dissolve the injunction, and dismiss the bill. This act, which is a part of the bill, (29 v. p. 199, Local Acts,) provides, that on the owners of Neville's mill releasing to the State all damages sustained by them, by the construction of the canal, and supplying it with water from the Scioto river, that then the Canal Commissioners should construct in this feeder a waste wear of sufficient dimensions to pass off all the surplus water of the river, which can safely be made to pass, into said feeder, over and above what can be safely made to pass along said canal below its junction with said feeder; and shall cause to be constructed a sufficient race from such waste wear to the point where the canal leaves the head race leading to the mill known by the name of Neville's mill, and shall permit all the surplus water as aforesaid, to pass through said waste wear into said race for the use of said mill." This act further pro |