Mr. Chief Justice Shepard
delivered the opinion of the Court:
1. The first error assigned relates to the action of the court in ordering the proceeding to be continued under the provision of the act of June 6, 1900, instead of under the act of March 3, 1899.
The substantial difference between the two acts is that the former would require the new assessment to be made by a jury of twelve, while the latter limits the number to seven. The second, responding to a suggestion made by the court in Todd v. Macfarland, 20 App. D. C. 176, 184, cures the defect in the former relating to the payment of the assessed benefits in certain instalments. The latter contains no limit of the area of the assessment, while the former does.
We regard it as unnecessary to consider whether the later act was intended to supersede the former entirely as regards the reassessment of benefits under the proceeding pending when the same was approved. The appellant and others interested were apparently of the opinion that it did so, as is shown by their motion of June 17, 1904. The opposing parties accepting that view as correct, the court made the order on that day, [124]*124and the proceedings were continued in accordance therewith, resulting in the verdict returned dime 6, 1906, the confirmation of which is the subject of the appeal. No objection was raised to the new order of procedure until a late hour in the proceedings. The objection appears for the first time in the affidavit of Leo Simmons, filed February 5, 1901, which is recited in the preliminary statement of the case. This affidavit, which does not appear to have been acted upon by the court, unless it may be embraced in the final act of confirmation, fails to show that the order of procedure was not his own conception, or that the motion had not been in fact filed. But, were it more definite in its statement, it cannot be received to contradict the record. Having suggested the procedure under the later act, and carried on the litigation, without objection, in accordance therewith, the appellant is estopped to object to the verdict on the ground alleged. Having made his election, he is bound by it. Bank of Iron Gate v. Brady, 184 U. S. 665, 668, 46 L. ed. 739, 740, 22 Sup. Ct. Rep. 529; Davis v. Wakelee, 156 U. S. 680, 689, 39 L. ed. 578, 584, 15 Sup. Ct. Rep. 555; Robb v. Vos, 155 U. S. 13, 43, 39 L. ed. 52, 63, 15 Sup. Ct. Rep. 4; Clark v. Barber, 21 App. D. C. 214, 280.
2. The second assignment of error is that “the court erred in proceeding in this case after an appeal was noted by the appellees from the order passed on the 4th of March, 1904, and from the decree of March 9, 1906. The first appeal referred to is based on the recital of the order of March 4, 1904, in which the court, after the filing of the mandate in this court, overruled a motion of the petitioners to confirm the verdict of the first jury. The order recites that they excepted and prayed an appeal. This order was in accordance with the mandate aforesaid. Whether it could have been appealed from or not is immaterial, as it is plain that no attempt was made to prosecute one. It is true the commissioners were not required to give an appeal bond, but other steps were necessary. Instead of taking these, they showed that the intention had been abandoned, by coming in and filing the amended petition and prosecuting [125]*125the proceeding. The record does not show the second appeal referred to. The assignment of error is without merit.
3. The third assignment relates to the failure of the court as charged to examine the jurymen, and in refusing permission to the counsel for appellant to examine them touching their qualifications. Counsel had notice of the time when the jury was impaneled and the members sworn, and could have had the opportunity to examine them and present his objections, if any, to each one. His request to examine them afterwards came too late. He made no objection to any one of them.
4. The fourth assignment of error is: “The court erred in refusing to discharge the jury on motion of appellant’s counsel.” This motion, referred to in the preliminary statement, was overruled March 31, 1906.
This motion came too late also. If there was any irregularity in the selection and summons of the jury, it should have been raised before they were impaneled and sworn. Moreover, the record fails to show that the jurors were not regularly selected and summoned by the marshal. It appears therefrom that each member selected was notified, by notice signed by the marshal, on February 9, 1906, of his selection, and commanded to appear for service. In support of his motion, he filed an affidavit of William D. Robinson, chief deputy marshal, to the effect that he had conferences with the marshal concerning the selection of jurors, and that some of the persons selected were suggested by him. He was unable to say what jurors were suggested by him, but he added that the jurors were finally selected by the marshal from the entire list under consideration, and the notices regularly served. Assuming that this affidavit might be considered, without so affirming, all that appears therefrom is that the marshal canvassed a list of names with his chief deputy, and then made his selections. There is nothing illegal or improper in the marshal’s conduct. The selections were his.
5. The fifth assignment is that “the court erred in not bearing and sustaining appellant’s plea of the statute of limitations.”
We perceive no error in denying the effect of the plea of limitations. The proceeding was a continuous one; the amend[126]*126cd and supplemental petition was no departure from the case originally begun. It was filed as a continuation of the same proceeding under the later statute, in obedience to the order-of the court founded on appellant’s' motion embodying the view that the further proceedings could be had only under the later-act. Moreover, the amended petition of August 9, 1904, was filed within three years after the mandate of this court had been transmitted, on January 22, 1903. And it was not until March 4, 1904, that the order was entered refusing to confirm the assessment of benefits made by the first jury. It is questionable, also, whether there is any limitation in such proceedings unless imposed by the condemnation act itself.
6. The sixth assignment is that “the court erred in not hearing and sustaining appellant’s plea of res judicata
This plea was to the effect that the former verdict found that certain remaining parts of lots 1 and 30 in block 21, and lots-1 and 16 in block 28, would be damaged by opening of said street, and the issue is not now whether or not said lots were benefited, as that has been settled. And, further, that the appellant, is the holder under grants from the owner of said lots at that time, and petitioners are estopped by said verdict and its confirmation from now asserting that said lots were benefited by the said street extension.
The plea is untenable. The former verdict not only shows, that the parts of the lots mentioned were condemned, and part, damaged, with the assessments therefor, but also that the remaining parts of the same were found to be benefited to a considerable extent.
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Mr. Chief Justice Shepard
delivered the opinion of the Court:
1. The first error assigned relates to the action of the court in ordering the proceeding to be continued under the provision of the act of June 6, 1900, instead of under the act of March 3, 1899.
The substantial difference between the two acts is that the former would require the new assessment to be made by a jury of twelve, while the latter limits the number to seven. The second, responding to a suggestion made by the court in Todd v. Macfarland, 20 App. D. C. 176, 184, cures the defect in the former relating to the payment of the assessed benefits in certain instalments. The latter contains no limit of the area of the assessment, while the former does.
We regard it as unnecessary to consider whether the later act was intended to supersede the former entirely as regards the reassessment of benefits under the proceeding pending when the same was approved. The appellant and others interested were apparently of the opinion that it did so, as is shown by their motion of June 17, 1904. The opposing parties accepting that view as correct, the court made the order on that day, [124]*124and the proceedings were continued in accordance therewith, resulting in the verdict returned dime 6, 1906, the confirmation of which is the subject of the appeal. No objection was raised to the new order of procedure until a late hour in the proceedings. The objection appears for the first time in the affidavit of Leo Simmons, filed February 5, 1901, which is recited in the preliminary statement of the case. This affidavit, which does not appear to have been acted upon by the court, unless it may be embraced in the final act of confirmation, fails to show that the order of procedure was not his own conception, or that the motion had not been in fact filed. But, were it more definite in its statement, it cannot be received to contradict the record. Having suggested the procedure under the later act, and carried on the litigation, without objection, in accordance therewith, the appellant is estopped to object to the verdict on the ground alleged. Having made his election, he is bound by it. Bank of Iron Gate v. Brady, 184 U. S. 665, 668, 46 L. ed. 739, 740, 22 Sup. Ct. Rep. 529; Davis v. Wakelee, 156 U. S. 680, 689, 39 L. ed. 578, 584, 15 Sup. Ct. Rep. 555; Robb v. Vos, 155 U. S. 13, 43, 39 L. ed. 52, 63, 15 Sup. Ct. Rep. 4; Clark v. Barber, 21 App. D. C. 214, 280.
2. The second assignment of error is that “the court erred in proceeding in this case after an appeal was noted by the appellees from the order passed on the 4th of March, 1904, and from the decree of March 9, 1906. The first appeal referred to is based on the recital of the order of March 4, 1904, in which the court, after the filing of the mandate in this court, overruled a motion of the petitioners to confirm the verdict of the first jury. The order recites that they excepted and prayed an appeal. This order was in accordance with the mandate aforesaid. Whether it could have been appealed from or not is immaterial, as it is plain that no attempt was made to prosecute one. It is true the commissioners were not required to give an appeal bond, but other steps were necessary. Instead of taking these, they showed that the intention had been abandoned, by coming in and filing the amended petition and prosecuting [125]*125the proceeding. The record does not show the second appeal referred to. The assignment of error is without merit.
3. The third assignment relates to the failure of the court as charged to examine the jurymen, and in refusing permission to the counsel for appellant to examine them touching their qualifications. Counsel had notice of the time when the jury was impaneled and the members sworn, and could have had the opportunity to examine them and present his objections, if any, to each one. His request to examine them afterwards came too late. He made no objection to any one of them.
4. The fourth assignment of error is: “The court erred in refusing to discharge the jury on motion of appellant’s counsel.” This motion, referred to in the preliminary statement, was overruled March 31, 1906.
This motion came too late also. If there was any irregularity in the selection and summons of the jury, it should have been raised before they were impaneled and sworn. Moreover, the record fails to show that the jurors were not regularly selected and summoned by the marshal. It appears therefrom that each member selected was notified, by notice signed by the marshal, on February 9, 1906, of his selection, and commanded to appear for service. In support of his motion, he filed an affidavit of William D. Robinson, chief deputy marshal, to the effect that he had conferences with the marshal concerning the selection of jurors, and that some of the persons selected were suggested by him. He was unable to say what jurors were suggested by him, but he added that the jurors were finally selected by the marshal from the entire list under consideration, and the notices regularly served. Assuming that this affidavit might be considered, without so affirming, all that appears therefrom is that the marshal canvassed a list of names with his chief deputy, and then made his selections. There is nothing illegal or improper in the marshal’s conduct. The selections were his.
5. The fifth assignment is that “the court erred in not bearing and sustaining appellant’s plea of the statute of limitations.”
We perceive no error in denying the effect of the plea of limitations. The proceeding was a continuous one; the amend[126]*126cd and supplemental petition was no departure from the case originally begun. It was filed as a continuation of the same proceeding under the later statute, in obedience to the order-of the court founded on appellant’s' motion embodying the view that the further proceedings could be had only under the later-act. Moreover, the amended petition of August 9, 1904, was filed within three years after the mandate of this court had been transmitted, on January 22, 1903. And it was not until March 4, 1904, that the order was entered refusing to confirm the assessment of benefits made by the first jury. It is questionable, also, whether there is any limitation in such proceedings unless imposed by the condemnation act itself.
6. The sixth assignment is that “the court erred in not hearing and sustaining appellant’s plea of res judicata
This plea was to the effect that the former verdict found that certain remaining parts of lots 1 and 30 in block 21, and lots-1 and 16 in block 28, would be damaged by opening of said street, and the issue is not now whether or not said lots were benefited, as that has been settled. And, further, that the appellant, is the holder under grants from the owner of said lots at that time, and petitioners are estopped by said verdict and its confirmation from now asserting that said lots were benefited by the said street extension.
The plea is untenable. The former verdict not only shows, that the parts of the lots mentioned were condemned, and part, damaged, with the assessments therefor, but also that the remaining parts of the same were found to be benefited to a considerable extent. The former verdict, when confirmed, became-conclusive as to the damages, and that question was not attempted to be reopened. The assessment for benefits having been vacated, the single purpose was to reassess the lots therefor. In general proceedings for condemnation, benefits to remaining-land are to be set off against damages thereto. When separately stated in the verdicts in cases like this, one finding may be-confirmed and the other vacated and opened for another assessment, as provided by the law.
The appellant, having acquired title pending the proceedings,, [127]*127takes subject thereto, and is bound thereby. Wilkinson v. District of Columbia, 22 App. D. C. 289, 295; Buchanan v. Macfarland, ante, 6. Moreover, it was substantially conceded on the argument, that the appellant in this case is a corporation organized for the purpose of taking over and holding the property of the former owner, John Sherman, for the benefit of his devisees.
7. The seventh assignment of error is: “The court erred in granting the first prayer on behalf of the appellees, whereby the court said, by extension of the street the jury was to understand its establishment, laying out, and completion for all ordinary purposes of a public highway; and erred in refusing to-grant appellant’s five separate prayers for instructions; and, further, erred by said first instruction by saying to the jury that they might assess the benefits which had resulted to any and all other pieces of land from the extension.”
(1) This first instruction, copied in the preliminary statement, appears to have been a fair and just one. The purpose of' the condemnation proceeding was the opening of Eleventh street, for all the ordinary uses of a street. The grade was known and taken into consideration by the jury, which awarded not only the value of the land actually taken, but also the damage done by the reduction of the grade which would compel the grading-of the adjacent lots and portions of lots. The purpose being to* open and grade the street, and damages having been awarded as the result of said opening for use, it was proper to assess the benefits accruing therefrom also. Any danger, however, that the jury would consider the benefits arising from any other-improvements in the street than those above mentioned was entirely removed by the second and fourth instructions. These-excluded any future or speculative benefits arising from special improvements in or uses of the street subsequent to condemnation and opening as aforesaid. The benefits arising from the-opening of the street, though not immediately realized in full,, were so far present as to be certain and ascertainable. All that, was proper in the refused instructions is contained in those-given.
[128]*128(2) Assuming that the record shows that assessments for benefits extended beyond the area fixed by the former law, these were made under the act of June 6, 1900, which contains no such limitation, but permitted the assessment to be made against all lands benefited by the street extension. See sec. 6, 31 Stat. at L. 667, chap. 809. Committed, as we have seen, to the procedure under said act, the appellant is bound thereby. Moreover it is not perceived that any injury accrued to the appellant by reason of the extension of the area of benefits. Congress, in the exercise of its taxing power for the establishment and widening of streets, had the power to require the expense of the same to be taxed against all property found to be benefited, generally or in a defined district. Bauman v. Ross, 167 U. S. 548, 549, 42 L. ed. 270, 274, 17 Sup. Ct. Rep. 966. In this instance it required one half the cost to be assessed, first in a certain district, and later to an area within the limits of actual benefits received. The latter method is the most equitable. Now, as the amount of one half had to be assessed under any conditions, the result of the extension of the area was to relieve the lands within the former fixed area to the extent of benefits assessed against lots situated farther away. That Congress had the power to alleviate the burden imposed by the former law, by extending the assessment to all property actually benefited, at the same time giving all owners an opportunity to be heard before the assessment tribunal, we think cannot be successfully denied.
8. The eighth assignment relates to exceptions taken to the refusal of the court to permit the appellant to have the jurymen examined in order to show that they had not been properly selected and sworn. This question has been disposed of under the third and fourth assignments of error.
9. The ninth assignment of error is: “The court erred in not taking up and considering the evidence and the several objections and exceptions taken thereto before said jury, and the rulings of said jury and objections noted in the record.”
It must be remembered that the jury are required to view the premises and then to hear evidence either in the presence of [129]*129the court or not, as the court may direct. 81 Stat. at L. 666, chap. 809, sec. 4. Without objection, the court directed the hearing to be had out of its presence. Passing by the objection to this assignment of error that it does not specify the particular points of exceptions, but refers to the proceedings as a whole, we think that the bill of exceptions as taken does not authorize inquiry as to the competency of the evidence, or as to its sufficiency and weight as raised by the tenth assignment of error, which has been argued with this on the brief. It does not recite the evidence as taken before the jury, nor present an agreed statement of the same. As recited, it purports not to be a transcript of the evidence actually given, but merely an affidavit of the stenographer that it contained the substance of that evidence, which seems to have been preserved. And, in conclusion, it is recited that it contains, not this affidavit, but an abstract made by the appellant therefrom; and that the court declined to hear or consider the same.
Where the ground of objection is that the verdict is unsupported by the evidence, the bill of exceptions must show upon its face that it contains the substance of all the evidence given in the case. We have said that it would seem that a full report of the evidence had been made and filed in the court below, because, in proper time, before the submission of the cause, the appellees made a suggestion of diminution of the record and applied for a certiorari to bring up a transcript of the entire report of the evidence, sworn to be on file in the court below, and make it a part of the record. The application was denied because it did not appear that the report had been used as evidence on the hearing of the exceptions to the verdict and preserved by bill of exceptions. Even if the entire evidence were before us, it would be necessary to point out some apparent misconduct or plain mistake on the part of the jury of assessment to authorize its consideration, as they were required to view the premises, and were, therefore, in a situation to know the actual conditions and to test the reasonableness and weight of the evidence. No such situation was occupied by the court passing on their verdict, as the witnesses were neither seen nor heard by him. Shoemaher v. [130]*130United States, 147 U. S. 282, 305, 37 L. ed. 170, 187, 13 Sup. Ct. Rep. 361.
Having found no reversible error in tbe proceedings in tbe case, we must affirm the judgment with costs. It is so ordered.
Affirmed.
A writ of error to the Supreme Court of the United States, prayed for by the appellant, was allowed April 7, 1908.