By the Count.
Penning, J.
delivering the opinion.
Are the questions put 'to the Grand Jurors legal ?
In the formation of a Special Jury, by the Judiciary Act of 1799, there may be challenges for cause, as well as challenges without cause. (Cobb’s Digest, 548.) The right of challenge for cause, given by this Act, was not taken away by the Act of 1810, “to amend the several Judiciary Acts” then in force in the State. This Act of 1810 requires that the Special Jury -shall be formed in the following manner: The Clerk shall produce a list of the Grand Jurors present and empannelled, from which the parties, plaintiff and defendant, may alternately-strike out one, until only twelve are left, who shall 'forthwith be empannelled and sworn as Special Jurors, to try the “ appeal cause”. But this requisition is to be construed as applying to cases in which the Grand Jury list, has upon it no per■son against whom there exists good* cause of challenge. Its restriction to cases of this kind, is made necessary by contemporary construction and usage, by other legislation, in pari materia, and especially by a provision of the Constitution, viz: that .which declares, “ that trial by Jury, as heretofore used in this State, shall remain inviolate”. Of these reasons, it is not necessary to speak with particularity. It maybe remarked, however, that it is never to be presumed that the Legislature intends one of its Acts to be inconsistent with a provision of the Constitution. And in Jury'trials, before the time of the Constitution, challenges for cause weresan essential -element.
This being so, is it, in the formation of a Special Jury, good ■cause of challenge against a person on the Grand Jury list, that he has expressed an opinion as to which' party ought to prevail, or that he has a wish or desire as to which should succeed ?
[1.] It is. That is settled by Cooled case. “ Cook being [54]*54indicted for high treason, and the Jury called, he offered to ask the Jurors, in order to challenge them, if they had not said he was guilty or would he hanged; et per cur. This is a good cause of challenge”. (1 Salk. 153.) So Hawkins says, “it hath been allowed a good cause of challenge”, that the Juror “hath declared his opinion beforehand, that the party is guilty, or .will be hanged, or the like”. “Yet,” he adds, “it hath been adjudged that if it shall appear that the Juror made such «'declaration from his knowledge of the cause, and not out of 'any ill-will to the party, it is no cause of challenge”. (Bk. 2, ch. 43, sec. 28.) It is sufficient to say, that nothing of this sort appears in this case. And see 2 Co. Litt. 157, a. (l.) (n.) (p.)
If the formation and expression of an opinion, that one party, mther than the other, ought to prevail, be a good cause of challenge, much more is the actual “wish” or “ desire” that one party should so prevail, a good cause. Such wish or desire is partiality itself—not merely evidence of partiality—which is the most that the formation and expression of an opinion can be.
These, then, are good causes of challenge. May they be proved by the testimony of the Juror, himself, or must they be proved by evidence aliunde ?
Why may they not be proved by the Juror himself? They are matters of fact, and why is a person called as a Juror, not as competent to prove one matter of fact in the case, as another ? Such person, unless interested in the event of the suit, or falling within some other exception to the general rule, that all persons are competent to testify as witnesses, is clearly competent to testify of any matter of facj;. Surely authority is not needed to prove this.
[2.] Persons, then, called as Jurors, are competent to testify .concerning matters of objection to themselves, as Jurors. If, in such case, they do testify, it follows that their testimony is legal; and its being admitted by a Court, cannot be made a ground of error.
That is this case. The persons of the Grand Jury, on being asked the questions above referred to, answered them without [55]*55objection, and tbe Court acted on tbe answers. Tbe Court did right.
Had these persons themselves objected to answering the-questions, the result might have been different; although, I;. must say I strongly think it could not have been.
The result would have been different, if they could have •, shown that answering the questions would render them infctr ■ mous or criminal. Upon the trial of no issue, before any tri-. bunal, Court or triers, is a, person hound to^tell what will make. him out a criminal, or perhaps what will cover him with infa-. my.
And it is upon this ground that Jurors have been excused,. by Courts, from answering questions on the voir dire. In Cook's case, (supra) the Court say “ This is a good cause of' challenge, (saying the prisoner is guilty or will be hanged,) but then the prisoner must prove it by witnesses—not out of the mouth of the Juryman. A Juryman may be asked upon a voir • dire, whether he hath any interest in the , cause—whether he • hath a freehold? for these do not make him criminal; but you. shall not ask a witness or Juryman whether he hath been, whipped for larceny or convicted of felony, or whether he was ever committed to Bridewell for a pilferer, or to Newgate for clipT ping and coining, or whether he is a villain or outlawed, because that would make a man discover that of himself, which., tends to shame, crime, infamy or misdemeanor. ' So it is in this case—the answer would charge him with misdemeanor or mis-, behavior. Pt per Powell, Justice. In a civil case, you may perhaps ask a man if he has not given his opinion beforehand, up-, on the right, for he might have done that as arbitrator between the parties—otherwise, in this case”.
When put upon his voir dire, the Juror becomes merely a. witness, and he may be examined as a witness. He will be. exempt from answering such questions as witnesses are exempt, from answering, and from no others.
The .questions put to the Jurors in this case, are not such as-witnesses would be allowed to refuse to answer; they are such-[56]*56as would not make the Jurors infamous or criminal, no matter which- way they might he- answered.
When it so happens that talesmen have to be summoned to serve as- Special Jurors, is it necessary that they should be sworn» as Grand Jurors, before they can be used as Special Jurors ?
To swear them in such a case, as Grand Jurors, would at least be a useless act. And to make the failure, on the part of a Court, to do a useless act, a matter of error, there should at least be a Law commanding that act to be done, in unmistakable terms. Is there such a Law, in reference to the formation! ©f a Special Jury, by the means of talesmen ?
There is no such Law. The Act of 1810 must be such Law, if there» is any such. It declares that “ all Special Jurors shall be taken from the Grand Jury list, in the following manner .- The Clerk' shall produce a list of the Grand Jurors present, and there empafinelled, from which the parties, plaintiff and defendant, or their attorney may strike out one alternately, until there shall be but twelve Jurors left, who shall forthwith be ompannelled and sworn as Special Jurors, to try the appeal-cause”.
This Act is to be construed with all other Acts of the State, on the same subject. Construed in this way, it does not, as we» have seen, abrogate the Law which gives the right to challenge Special Jurors for cause—it does not extend to cases in which-the list of Grand Jurors empannelled and sworn happens to have on it persons against whom exist objections for cause, but only to cases in which the list has on it persons against whom no such objections exist. So construed, in reference to the present point, it merely means to say that the “ Clerk shall produce a list of the Grand Jurors present and empannelled, from which the parties” shall select a Jury, provided challenges, for cause, do not reduce the number on the list below the number required to make out a pannel of Grand Jurors; but that if challenges shall reduce the number on the list below that number, then the Act of 1799 is to come into play, which says: “ The Court may order the Sheriff or his deputy to summon. [57]*57by-standers or others, qualified as hereinbefore required, for the trial of such cause or causes, sufficient to complete the pannel”. And of course, if summoned, these talesmen are to have their names put on the pannel of Grand Jurors, in the places of those whose names have been struck from it for cause. And this being done, it completes the “pannel” for the occasion; that is, for the purpose of supplying a means of obtaining a Jury for the trial of the’special case in hand. In order to complete the pannel for this purpose, it is not necessary that the talesmen should also be sworn as Grand Jurors.
This view is confirmed by the mode provided by the Act of 1799, for selecting Special Juries for new trials. According to that mode, the Clerk was to produce a list of “ the original pannel of Grand Jurors returned to the term”, and the Special Jury was to be made, by alternate strikes from this list, until only twelve should remain. That is to say, the Jury was-, to be got from all of the whole thirty-six persons drawn for Grand Jurors, who had been returned to Court as summoned,, to serve as Jurors. Now of the whole number so returned as. served, not more than twenty-three could be sworn as Grand Jurors; yet, the rest, over and above the twenty-three, so. sworn, would be of those from whom, equally with the sworn ones, the Special Jury would be to be struck. The substance of the mode was, that Special Jurors were to be made out of' those who were drawn as Grand Jurors; or in the event the number of these should not be sufficient, then out of talesmen —“ by-standers or others”—of the class in the community to. which the drawn Jurors belonged. It was of no concern to the-mode, whether any of the drawn or Tales Jurors should be. sworn as Grand Jurors or not.
[8.] Upon the whole, therefore, we cannot say that we find: in the Statutes, any direct or .indubitable requisition for the doing of this useless act, swearing persons as Grand Jurors, merely to qualify them to be Special Jurors. And we cannot, therefore, say that we think the Court below erred in not re-, quiring this act to be done,
[58]*58[4.] The object of using the order of the Inferior Court, by ■which the Flat Shoals Road was opened, as evidence, could have been only to show that that road was a public road. But that this road was and had been for twenty years, a .public road, was admitted by the answer. The question, therefore; whether it was or was not a public road, was not in issue; and evidence is receivable, to prove only what is in issue.
It was wholly immaterial at what time the application, by the Justices of the Inferior Court for an- injunction, was made to Judge Stark, unless-' the Plank Road Company had notice of,the application. The object of proving the time of the application could have1 been no other than to show that the Inferior Court objected to the course of tho Plank Road Company; that is, to show that it did not stand by and see the'Company lay out its money, without warning, and so to show that it had not given ground for the implication, that it acquiesced in the action of the Company. But nothing in the application to Judge Stark for the injunction, could prove this. This waa to be proved by something of which the Company,, not the Judge; had notice.-
Besides, it may be added that it does not appear that the Justices of the Inferior Court could have suffered any injury 'at all, by the rejection of these letters, had they been proper as evidence. The Company did not prove that they had completed any part of the Road, before they had notice of the purpose of the Inferior Court, to oppose their course in building it. The Company proved no acquiescence.
This remark is equally'applicable to the rejection of the testimony of the' counsel of the Justices of tho Inferior Court, which was offered to prove when the bill was presented to Judge Stark for his sanction, and how long he kept it.
[5.] A new trial will not be granted for an erroneous decision, if it harms nobody.
And as to Judge Stark’s letters, it may be said, too, that they were not the best evidence—his sayings, whether verbal or written, could not bind the Company in this case.
The rejection, as evidence, of the notice given by the Inferi- [59]*59or Court to the Plank Road Company, of the intention of the Court to resist the Company'1 s usurping the public road, and also requesting the Company to desist from its acts and designs, in taking, appropriating and obstructing the road, was no matter of error.
1. That notice was admitted by the answer, and so was not in issue.
2. The Plank Road Company offered no proof to show any acquiescence on the part of the Inferior Court, in the Acts of the Company. Therefore, the Inferior Court had nothing to gain or lose by proving such a notice. So its rejection could do them no harm.
The rejection of the evidence of Manghapi, that the order or act of the Inferior Court, in which the Court use the words “the Court have bestowed on this subject the consideration which its importance demands, and do not hesitate to express' their opinion that it is the duty of the Commissioners of Roads to follow the Law, as laid down in the eighth section of the Act incorporating said Company”, was served on the Plank Road Company, was proper. That order or act was one to which that Company was not a party. And if it had been one to which the Company was a party, what use could proof of it serve in the case ? To show that the Inferior Court did not stand by acquiescing ? But there was no proof or attempt -at proof, that the Court did acquiesce. The Jury could not have found, on the ground of acquiescence. In a word, no harm was done the Inferior Court, by the rejection' of this evidence.
The testimony of McLendon, which was offered to show how much the Flat Shoals Road, occupied by the Plank Road, was worth by the mile, and how much it would costthe county to obtain the right of way and build another road, was properly rejected. The object of this testimony must have been to enable the Jury to measure the damages to which the complainants supposed themselves to be entitled.
What damages did they pray for ? What relief did they pray for ?
They prayed as follows: “ that the defendants to this 'bill [60]*60may, by the decree of this Court, be perpetually enjoined from taking, appropriating or using any part of said public road, for the construction of said plank road, or for the collection of toll, or from obstructing the same, in any manner whatever”.
Also as follows: “that the said Company and defendants hereto, may be decreed to pay such damages to your orators, as have leen by them sustained, in consequence of the wrongful and fraudulent proceedings aforesaid”.
They also prayed for “general relief” for a temporary injunction of the building of the road, and for security to be given for the damages that might be assessed against the Company.
’ They did not pray for damages for the future, as well as the past appropriation of the Plat Shoals Road, in case it should turn out that the Plank Road Company should be found enti'tled to the future appropriation of it; that is to say, they did not pray-for damages to be assessed to them, in case it should "be found that the Company, in taking the Plat Shoals Road, 'had complied with its Charter. The whole prayer goes upon the assumption that the Plank Road Company had not complied with their Charter—had violated the Law—not upon the assumption that it had complied—that it had not violated any law. And the case made by the bill, is one which will support only the former sort of prayer—not the latter.
. The damages, then, to which the complainants were entitled, if-entitled to any, were for the wrongful acts which the Plank Road Company had done, up to the time of the assessment of such damages, if indeed the company had done any wrongful acts.
But at that moment, the measuring of damages had to stop. Thenceforth, the relief was of another kind—an injunction upon the Plank Road Company, from taking and obstructing the Plat Shoals Road, and a restoration of the complainants, to their full enjoyment of that road. The complainants, if entitled to anything, were entitled to indemnity for the past and security for the future—not to indemnity for both past and future—not to a decree giving the Plat Shoals Road to the Plank [61]*61Road Company, and to them, the complainants, in lieu thereof, ■a compensation in damages.
The case being of this kind, what sort of facts were the complainants entitled to prove, to make it out—to make out the amount of damages to which they were entitled ? The answer is, such facts as would go to show how much loss they had sustained by the obstruction of their road, for the length of time which the obstruction had lasted, viz : from the commencement of the obstruction up to the time of trial.
Now the facts sought to be proved, arc not of this sort.— What the Flat Shoals Road was worth by the mile—that is, worth in perpetuity, is not of this sort. What it would cost to build a new road, including the purchase, in peryetuity, of the right of way, is not of'this sort. The Court below, therefore, was right in not allowing either fact to be proved.
[6. Am I to be asked what sort of facts, then, would be admissible, to show the amount of damages in the case, as made ? I reply, with some hesitation, such facts as show the actual loss which the complainants have sustained, by reason of the obstruction of the Flat Shoals Road. Did they lay out money in building a new road, to be used in place of the obstructed •one ? If so, this money would be an item in assessing the damages. Did they or those they represent, have to stay at 'home in consequence of the obstruction of th'e road, when their business called them abroad, to their injury, in such and such ■sums ? Then these sums, perhaps, would also be items in counting the damages.
These may, perhaps, serve as instances 'of the sort of facts which are admissible, to make out the damages in such a case ■as this.
Yet, I must confess, for myself, that I know of no law which .■gives damages at all, in such a case.
This case is one, simply of the obstruction of a highway—a public road. If a wrong at all, it is the case of a common or public nuisance. It is the case of a crime—not of a private wrong. (4 Black. Com. 167. 3 do. 218. do. 5, 6.) It is a «ase to be reached by indictment, not by an action at Law, for [62]*62'■•damages, or by a bill in Equity for damages and injunction.— ■ It is true tbe public injury, of nuisance, carries -within it injury ' to private persons; but for the private part of the injury, the Gaw has provided a peculiar remedy, viz: one by the mere act ‘ 'of the party injured. The private person injured may, himself, ; abate or remove a nuisance. “ If a new gate be erected across " the public highway, which is a common nuisance, any of the King’s subjects passing that way, may cut it down and destroy ' it”.. (3 Black. 5, 6.) “No action lies for a public or common ' nuisance, but an indictment only, because the damage being ■ common to all the King’s subjects, no one can assign Ms par- ; ticular proportion of it; or if ho could, it would be extremely ■hard if every subject in the Kingdom were allowed to harrass ' the offender with separate actions. For this reason, no person, " natural or corporate, can have an action for a public nuisance, 'but only the King in his public capacity of supreme governor -and •paterfamilias of the Kingdom. Yet. this rule admits of ■me exception, where a private person suffers some extraordinary damage, beyond the rest of the King’s subjects, by a 'public nuisance; in which case, he shall have a private satisfaction by action. As if, by means of a ditch dug across a prablic highway, which is a common nuisance, a man or his •horse suffer any injury by falling therein, there, for this particular damage, which is not common to others, the party shall -have his action”. (3 Black. Com. 219, 220.)
• The complainants do not show a case within the exception. They do not show that they have been damaged beyond the ■rest of the people of the State. From what law, then, do they get a right to an action—to a bill—to damages—to an injunction ? I know of none.
And then, too, what are the complainants to do with the damages, if they should recover any ? Divide them out among the citizens of Pike county, for whose “ use” they sue ? in ■what. proportion ? apply them to county works, jails, courthouses, &c. ? What law requires it ? •
And again, what is to be the effect of this suit upon other suits ? It is to be a bar- to other suits, in favor of the other In[63]*63ferior Courts of the State, who may sue for the “use” of the. citizens of their respective counties. The obstruction of the • public highway is, to the citizens of every other county in the. State—perhaps in f;he U. States, an injury of the same kind,, if not of the same degree, as it is to the citizens of Pike. The. bill seems to go upon the idea that the Flat Shoals Road be-. longs to Pilce county. If this idea were correct, the suit might perhaps be a bar to all other suits of a similar nature. But the-idea is not correct. The road is a public road. Every man in ■ the State—in the United States—in the world, for aught I know, has a right to pass over it.
The road, therefore, belongs, if itunay be said to belong at all, to the public, at least until the,State shall say na,y. And' this the Legislature assume, when they give'the Road Commissioners absolute power over it, as they do in the Charter of the-Plank Road Company.
It is to be borne in mind, that this bill is not a proceeding under that Charter; and therefore, is not affected by anything in that Charter, touching damages. It is a bill which has to. live, if it live at all, in spite of that Charter—not by virtue of' it.
And the remedies for such an injury, over and above those, prayed for by this bill, are, by our own Statutory regulations, ample. The Road Law of 1818 declares, that when “ any-person shall make any fence, or cut any tree, or make other-obstructions in or across any public road, the Commissioners, may be notified of the obstructions, if the same do not come, under the knowledge of any of them, (and unless removed in two days,) such person shall, for every such offence, pay a fine not exceeding twenty dollars, to be' recovered by warrant, under the hand and seal of any Justice of the Peace, to be applied as herein directed; and it shall be the duty of the overseer of the road, forthwith to cause the said obstructions to be. removed”. (Pri. Dig. 737.)
And the Penal Code, for abating nuisances, provides most; fully. (Id. 648.)
Speaking for myself, therefore,'! do not see anything in this. [64]*64case, -winch gives the complainants the right to any damages, much or little—to- any damages, whether measured by this rule or by that.
The complainants offei-ed to prove it not to have been necessary for the Plank Road Company to take the part of the Flat Shoals Road which they took—offered to prove that the Plank Road Company could have obtained the right of way over another route, off the Flat Shoals Road, and passing through a country free from ravines and mountain barriers.— The Court would not receive any proof for such purpose.
And ini charging the Jury, the Court told them, among other things, that an award, “ if fairly obtained, without fraud, settled the question of necessity”.
Was the Court right in these decisions? To answer this, question, we must look to some facts in the case, and to some1 provisions in the Charter of the Plank Road Company.
First, as to some facts in the case.
It appears, in substance, that between the Plank Road Company and the Commissioners , of the Public Roads, for the districts through which the Flat Shoals Road runs :
1. Agreements were made, by which the Commissioners were to let the Company have that road on certain terms, namely: for such price or compensation as arbitrators should fix; or such as a Jury should find, in case either party should wish to appeal from the arbitrators to a Jury. This is known, by the fact that the Commissioners and the Company appointed, under the Charter, arbitrators for fixing this price or compensa-, tion. '
2. It does not appear that the Commissioners were forced or seduced into these agreements. And it will appear presently,, that the agreements were such as they had power to make.
3. It appears that under the agreements, arbitrators acted and designated the terms on which the Plank Road Company was to have the Flat Shoals Road.
4. It appears that the Road Commissioners of every district, except one, ratified the awards for their respective districts.
5. It appears'that as to the award which was not ratified,. [65]*65the non-ratification was not unanimous; but that whilst two of the Commissioners disapproved the award, the third approved it; and that as to the disapproval of the two, it was put upon the sole ground, that the arbitrators had not “ assessed as large an amount to be paid for said road, as those two believed they-should have done”.
6. It appears that appeals from the awards were taken.
7. That these appeals were entered by the complainants partly in their own names, and partly in the names of the Commissioners of Roads.
8. It appears that these complainants pray, that “ adequate security” be given to them, by the Plank Road Company, to pay such damages as may be assessed against the Company. This means, assessed in the cases in which appeals. have been taken. It is true, they also pray to have set aside the awards, and all proceedings between the Road Commismissioners and the Company; and therefore, they pray to set aside the appeals themselves. The bill is strangely incongruous.
Second. As to some provisions of the Company’s Charter:
1. By section five, the Plank Road Company has power to upurchase any lands they may find necessary” for their road.
2. By section six, it is declared, that if “land” be “required” by the Company, “ and the same cannot, for want of' agreement between the parties, as to price, or for any other cause, be purchased from the owner, the same may be taken at a valuation to be made by Commissioners”, one to be appointed by the Judge of the Superior Court, one by the Company, and one by the owner of the land; but if the owner shall refuse to appoint one, then two to be appointed by the Judge, and one by the Company.
3. That the award of the Commissioners or arbitrators, however, is to be subject to the right, .in either party, of an appeal to a Jury, whose verdict is to vest the land in the Company, and in the other party, the right to the value of the land, as. found by the verdict.
[66]*664. Section seven declares how the award shall be made.
5. Section eight defines the course to be pursued, “ whenever it shall become necessary for the said Plank Road Company to use any part of a public highway, for the construction of said plank road”. This course is :
1. “ The Commissioners of Roads of the Militia Districts in which such highway is situated, or a majority of them, may agree with the said company, upon the compensation and damages to be paid by the said Company, for taking and using the highway”.
2. “ In case such agreement cannot be made, the compensation and damages for taking such highway, shall be ascertained in the same manner as the compensation and damages for taking the property of individuals”.
Now, under these provisions of the Charter, there are two ways by which the Plank Road Company can obtain land for its road.
1. Ey agreement with the owner of tho land.
2. Without agreement with him, and in spite of him.
Our concern is with the first only, of these modes.
There are two sorts of agreement by which the Company can obtain such land. First, an agreement, in which the parties to it themselves, the Company and the land owner, settle all the terms of it, including the price. Second, an agreement in which the parties to it, do not themselves, settle all the terms of it; but refer some of the terms—those relating to price or compensation—to third persons, to be settled by those persons for them.
Land obtained in either of these ways, is equally obtained by the mode of agreement of the parties. And an agreement to alien for a price already settled by the parties, is no more binding than an agreement to alien for a price, to be settled by named persons, who are not parties. The land owner, in cooperating in the second mode, acts voluntarily. Of his own accord, he bpcomes a party to an agreement which involves the alienation of his land.
Let it be admitted, however, that an agreement of this sort, [67]*67is nothing but an agreement to arbitrate a matter; and that it is attended by the ordinary incident of an agreement to arbitrate, viz: that either party may revoke the power of the arbitrator's, at any time before the making of the award—still, at least, until the revocation is made, the agreement stands good. And in this case, no revocation by cither party, the Commissioners of Roads or the Plank Road Company, has ever been made.
It is quite clear, too, that under th¿ Charter, the Company may obtain, by agreement, any land which it pleases to obtain, lying so as to be used for the purposes of its road; and that as to such land as it thus obtains, it lies in the mouth of no third person to complain of the Company, on the ground that such land is not ‘ necessary’ for the purposes of its road, except, perhaps, in the mouth of the State, in some proceeding against such Company, for a violation or an abuse of its Charter.
Of course, in such a case, the mouth of the land owner himself—of the party to the agreement, is closed.
It is also apparent from the Charter—first, that the lawmaking power considered public highways to belong to the State; and second, that it placed the-Commissioners of Roads, in the districts through which highways passed, in some respects, in the place and stead of. .such owner, the State—that it gave to such Commissioners the same power of alienation over such highways, as private persons have over their lands.
These matters of fact and of law being so, could the complainants—the Inferior Court—insist that the part of the Flat Shoals Road taken by the Plank Road Company, was not necessary for the Plank Road, and that, therefore, the taking of it was void ? They could not.
1. Such part of that road had been taken by the Company, by virtue of agreements with the Road Commissioners of the districts through which such part passed—agreements, the effect of which was, that the Road Commissioners bound themselves to let the Company have the said parts of that road, for so much compensation as arbitrators, or as a Jury might designate; agreements, by the making of which, the Road Commis[68]*68sioners admitted that there was no open question between them and the Company, except as to the amount of compensation, if any, tobe paid by the Company; and therefore, that there was no open question, as to the necessity of taking such part '•of the Elat Shoals Road, for the Plank Road.
2. These agreements had been partially or wholly carried ■out. The arbitrators had been appointed—had made their awards, and these awards, except in one instance, had been confirmed by the Road Commissioners. In that instance, the award was approved by one Commissioner, and disapproved by the other two—only on the ground that the amount .of compensation awarded was not enough, as they thought. This matter of disapproval was just such matter as, by the provisions of the Charter, and by the terms of arbitration, was to be referred, by appeal, to a Jury, for settlement.
As to another award, a majority of the Commissioners withdrew, if such a thing is possible, their confirmation. But they •did this on a ground which is confined wholly to compensation. They said, “ after reflection, we are and ever have been oppos-ed to said Company’s taking and using the whole of the now .public road, without opening one by its side”.
The Commissioners of Roads do not once insist, that the part of the Elat Shoals Road taken by the Company, ought to he given up, because not necessary to the Company. They complain, when they complain at. all, at what they consider the insufficiency of the pay, for certain parts of that road, so taken. Eor this, an appeal was the fit and the chosen remedy —chosen by the Justices of the Inferior Court themselves.
And even these complaints, when made, are .put in no legal form for assertion. These Commissioners, none of them, appeal —none of them become parties complainants in this Equity suit.
If then, except as to the mere matter of compensation—the price to be paid—the Commissioners of Roads are not by these acts, and omissions to act, bound and estopped, it is difficult to say by what they would be. They have not revoked any power which they conferred on the arbitrators, if they could re[69]*69voke such power. They still stand to the agreement to refer the damages.
8. But, although the Commissioners of Roads entered no appeals, the complainants, the Justices ©f the Inferior, Court, did. How they could appeal, in cases in which they were not parties, is certainly not very manifest; but, admitting that they could do it, does it not follow, [that in appealing, they merely take the place of the parties to the case in which they appeal—the Road Commissioners; and of course that they are bound and estopped by everything which binds and estops those Commissioners ? Certainly it does.
Again: in appealing, what do they say? This: We are willing to be bound by the verdict of the Jury to which we appeal. What verdict can that Jury render ? This: We find that the Plank Road Company shall have the highway, and in .place thereof, the Justices shall have so much money or compensation. This is the sole verdict the Jury can render. In ■appealing, therefore, the Justices say, we agree the Jury may render this—we agree the Plank Road Company may have our highway, but then we must havé their money.
And again: in the bill itself, one of the prayers of the Justices is, that the Plank Road Company may be enjoined “from further progressing with said work, in taking or using any part of the public highways in said county, until it gives adequate security to your orators, the' Justices aforesaid, to pay such damages as may be assessed against it”. This prayer was -sanctioned; the security has been -given; and the Company has gone on with the work. Now, when they ask for security for their damages, do they not say we are willing to accept damages? Whpn the security they ask for has been given, do they not say, we have got all we want ? It would seem so.
If the Commissioners of Roads were estopped, much more •are these Justices estopped; All matter of estoppal whiqh •existed against the Commissioners, exists against them, and other matter besides, viz : the appeal—the prayer for security to be given—the given security.
No fraud or -other misconduct is charged upon the Oommis[70]*70sioners, for entering into the agreements to arbitrate with respect to the Elat Shoals Road. It is not said that the Commissioners repent the having entered into these agreements.
The conclusion is, that these agreements, of themselves, are sufficient to estop the Commissioners of Roads; and also, the Justices of the Inferior Court from complaining against the Plank Road Company, that the parts of the Elat Shoals Road, taken for the Plank Road, were not necessary for the purposes ■of the Company; and that much more are they sufficient to do •this, Avhen folloAved by the acts by Avhich they Avere followed— ..the appeals—the prayer for security—the gift of security.
This being so, it is useless to pursue the inquiry further—to 'investigate the question whether the awards or the ratifications ••of the awards, were obtained by fraud or not; or whether a •failure to comply with some of the directions of the Charter, as to the making of the aAvards, vitiates the awards or not. Let •it be granted that the awards were obtained by fraud—that the ratifications were obtained by fraud—that the omissions to follow the directions of the Charter, as to the making of the awards, vitiated the awards; still, the agreements, that the Company shall have the parts of the Elat Shoals Road, for such compensation as shall be named by referees, stand Avithout objection; therefore, they stand good; and whilst they staud good, either of the parties to them have the right to have them enforced. The only effect, therefore, to follow from setting aside the awards, would be to give the parties—the Plank Road Company and the Road Commissioners, an opportunity to begin, anew, the work of executing the existing agreements to arbitrate the compensation. The effect would not be to vest in the Inferior Court power to say that no such arbitration should take place ; power to say, we think the highway not necessary for your Plank Road; and therefore, you shall not have it for love or money. The effect of setting aside the awards, vrould not be to displace the Road Commissioners from the place in which the State has placed them, and to place the Inferior Court in that place, with power to do what the Charter gives none but the Road Commissioners power to do. Even [71]*71if not the awards only, but the agreements on which they are founded, were set aside; if not only superstructure were torn down, but foundation torn up, this effect would not follow.— Even then, the Road Commissioners could make new agreements ; could let the Plank Road Company have the highway, on just such terms as they might please to let them have it on, and this, in spite of anything which the Inferior Court could' do or say to the contrary. In short, the effect of setting aside the awards, would not be to give the Justices of the Inferior Court the right to have the relief they pray for by this bill.
Admit that everything done under the Charter, whether by the Company, the Road Commissioners, the Judge, the arbitrators or others, has been wrong, and is absolutely void, what is the consequence? Only’ to restore things to the condition which they were in, before any attempt was made to execute the Charter. The Charter will still stand; the powers of the Road Commissioners will still remain; the franchises of the Company will still be unabated. It will have forfeited nothing. Young vs. Harrison, (6 Ga.) Will the Justices of the Inferior Comt have gained a vetó on the Road Commissioners, or have stepped into the places .in which the Legislature placed those Commissioners ? By no means.
[7.] The decisions of the Court below, therefore, to the effect that the question, whether it was necessary to the purposes of the Plank Road Company, that they should have the site of the Flat Shoals Road, was barred by the awards, were, in effect, right. 'It was barred by less than the awards, viz: by the agreements that there should he atoareis.
There are other decisions in the case, which were excepted to. What has been already said, disposes of most of the exceptions ; and those that it does not dispose of, are of such a nature that if good, they can be of no service to the plaintiffs in error. The errors complained of, if they exist, do the plain-' tiffs in error no harm. As long as the agreements between the Road Commissioners and the Plank Road Company, to arbitrate, stand good, they give .law to the case and to. all concerned in the case. The most the Justices of the Inferior [72]*72Court can do, is to ask to have those agreements fairly carried out. New referees and new awards, as to the compensation to be paid for the highway, are all to which they can possibly be entitled.
I would' not be understood, however, as saying that I think the Inferior Court has, in this case, any rights of any sort.
The judgment's, therefore, of the Court below, in the case of the Justices of the Inferior Court, as plaintiffs in error, against the Plank Road Company, ought to be affirmed.
This' disposes of one of the two cases which were consolidated.
The other is a case in which the position of the parties is merely reversed. In that the Plank Road Company are the plaintiffs in error; they except to two decisions of the Court below:
1. A decision that citizens of Pike county were ' competent as Jurors to try the case.
2. A decision that citizens of that county, were competent as witnesses for the Justices of the Inferior Court.
What would be the wrong in this case, should the Justices of the Inferior Court recover ? According to the conclusions to which we have come, it could only be damages for the obstruction of a highway—the Elat Shoals Road—and an injunction to prevent the continuance of the obstruction. Supposing, then, they should have recovered damages for that obstruction, what would they have been obliged to do with the money so recovered ? Doubtless to pay it over to the County Treasurer for county purposes, just as fines, under the Penal Code, have to be paid over to that officer for those purposes.
The Code declares, that “ all fines imposed by this Act, not otherwise appropriated by this Code, shall be paid over by the Clerks of the Superior Court, to the County Treasurer, for eounty purposes”. (Pr. Dig. 661.)
Now notwithstanding this provision, it has been uniformly held by the Courts of Georgia, that in criminal cases involving no greater punishment than a fine, citizens of the county are [73]*73competent, both for Jurors and for witnesses, on behalf of the State.
Under this view of the Code, if the present case, instead of' taking the form which it has taken, had taken another, which it might well have taken, viz-: that of an indictment for obstructing a public highway, the citizens of the county would have been competent, both for witnesses and Jurors. And yet,, in that form, the result might have been a fine upon the defendant, which would go to the County Treasurer.
[8.] In this State of things, would it be unsafe to apply the maxim—Ubi ecidem ratio ibi idem jus? (Co. Litt. 10 a.)
[9.] But the recovery of the Inferior Court would not stop-at damages. If entitled to damages, they would be entitled to an injunction, to prevent the plank road from using the public highway. Such an injunction would be equivalent to the temporary or permanent destruction of the plank road. And this would, it may be safely assumed, be more or less of an injury to the public. A plank road is a public benefit. The citizens of Pike county are a part of the public : the part which would suffer most by the destruction of the plank road in this case. The injunction would inflict this injury. The recovery which would give damages, would give the injunction. Which would, be the greatest to any particular citizen, the gain by the dam-, ages, or the loss by the destruction of the plank road ? Who-can tell ? No one. It is not certain, therefore, but that the-citizens of Pike would lose more, in losing the plank road, than-they would gain in gaining damages for the obstruction of the-highway, and in getting the highway re-opened. But unless it. were certain that the citizens would gain by the result of the-suit, if it resulted in favor of the plaintiffs, they are not incompetent for Jurors or witnesses. The interest that disqualifies, is one that is certain.
Upon the whole, we cannot say that these persons were incompetent, either as Jurors or witnesses.
We therefore reverse none of the decisions of the Court below.