1861. SNELSON determine, necessarily carries with it a power which makes May Term, the determination obligatory, without any reference to the question whether it was right or wrong. If this were not so, the judgment or determination of any Court would be of no particular value. It might be attacked or avoided at pleasure, upon the ground that the Court or judge had committed. an error. We are of opinion that the acts of the board of commissioners were not void, but within the general scope of their authority, and that the money having been allowed and paid upon a mere mistake of law as to the liability of the county, it can not be recovered back. In this conclusion we are supported by a decision of the Supreme Court of the State of New York, directly in point. Supervisors of Onondaga v. Briggs, supra. That was an action by the supervisors (whose powers were very similar to those conferred upon our board of commissioners) against Briggs, to recover back certain moneys which had been audited and allowed to him by the board of supervisors, upon the ground that the claims thus allowed and paid were not due to him from the county. Bronson, J., in delivering the opinion of the Court, proceeds as follows: "The defendant presented his accounts from time to time to the board of supervisors, which board has power to examine, settle and allow' all accounts chargeable against the county, and to raise money to defray the same; and the board from time to time examined, settled, allowed and paid the accounts. These acts conclude the plaintiffs from maintaining this action upon two grounds: first, as adjudications of the matter made by a tribunal duly constituted for that purpose, and having ample authority to decide; and second, as voluntary payments, without fraud, and with full knowledge of the facts. Either ground is a complete answer to an action to recover back the money. It is a monstrous proposition to say, that all the accounts which have been audited and settled by boards of supervisors of this State can be re-opened and litigated at the pleasure of either party; and if one party can do it, the other can do it also. If the determination does not bind the party that makes it, clearly the other party can VOL. XVI.-3. V. THE STATE. May Term, not be bound. But upon the plainest principles it is con1861. clusive upon both. And then, in addition, there was a volunCHARLESTON, tary payment of the money. There will never be an end of &c. TURN- legal strife if an action will now lie to recover it back." PIKE CO. V. Per Curiam.-The judgment is reversed, with costs. Cause WILLEY. remanded, &c. John Davis, for the appellant. J. S. Buckles, for the appellee. Monday, THE CHARLESTON AND JEFFERSONVILLE TURNPIKE COMPANY v. WILLEY and Others. Suit upon a promissory note given by the Turnpike Company for the purchase of the Central Plank-road. Answer: 1. That the purchase of the plank-road was not necessary. 2. That the plaintiffs had not conveyed the road by such a deed as by the contract of sale they were to have made. Held, that as the turnpike company was incorporated by a private act, the Court could not judge of the quantum of power conferred, unless the act was pleaded and proved; and as this was not done, the first paragraph of the answer did not properly raise the question of the power of the company to make the purchase. Held, also, that the power to purchase the plank-road might have been appropriately inserted in the charter of the turnpike company, or even been an incident of her general powers. Held, also, that the second paragraph of the answer was bad, for not setting out a copy of the deed, or showing, by an averment of its contents, how it differed from that agreed to be made. APPEAL from the Clark Circuit Court. PERKINS, J.-Suit upon a note, of which a copy follows: "$1,166.663. "Twelve months after date, the Charleston and Jeffersonville Turnpike Company promise to pay John P. Willey, Shiveral Willey, and Dennis Willey, jointly, the sum of $1,166.663, payable twelve months after date, without relief 1861. from valuation or appraisement laws, said sum being the May Term, third and last installment in the purchase of the Central Plank-road and its appurtenances of said Messrs. Willey by CHARLESTON said Turnpike Company. "D. H. MCDANIELS, "May 23, 1859.. Pres't of C. & J. Turnpike Co." Answer: 1. General denial. 2. That it was not necessary for the Charleston and Jeffersonville Turnpike Company to purchase the plank-road. 3. That the plaintiffs had not executed, for the conveyance of the road, such a deed as they agreed to execute for that purpose. Demurrer sustained to second and third paragraphs. Trial, and judgment for plaintiffs. The demurrer was rightly sustained to the second paragraph of the answer. That was designed to raise a question. of power in the corporation. The turnpike company was created and vested with powers by a private act. The Court could only know the quantum of power conferred through an examination of the act; but the Court could only examine it when pleaded and proved, or admitted. The defendant did not plead it in this case; and as she was seeking to avoid her own obligation, on account of defect of power, she should have made that defect manifest. It is easy to see that a power to purchase the plank-road, in this case, might have been appropriately inserted in the charter of the turnpike company; or even been an incident to her general power. If there was an existing plank-road from Charleston to Jeffersonville, which had so gone to decay as to be useless for travel, but the company owning it had the right of way, the graded track, bridges, tollhouses, &c., and the turnpike company had a charter for a gravel turnpike between the same points, and could purchase the right of way, grade, bridges, &c., of the plank-road company, instead of obtaining, constructing, and building ab origine, if we may use the expression, certainly a note for the consideration of such purchase would be good. The third paragraph is bad, because it admits the execution of a deed pursuant to the contract, and undertakes to deny &c., TURNPIKE Co. V. WILLEY. May Term, that the deed conformed to the contract; and yet it neither 1861. states the contents of the deed executed, nor gives a copy SUTHERLAND of it. That paragraph is a negative pregnant, asserting, not V. FLYNN. facts, but a proposition of law without the facts upon which it rests. A pleading is not necessarily demurrable because it contains a negative pregnant, but that now under consideration is so. 2 Bouv. Dic., p. 187, tit. Neg. Preg. Per Curiam.-The judgment below is affirmed, with 5 per cent. damages and costs. R. Crawford, for the appellant. J. S. Harvey and J. W. Ray, for the appellees. (1.) By counsel for appellant: The directors of the turnpike company had no power to do any other acts than their charter authorized, and their powers are to be fairly yet strictly construed. Bank of Augusta v. Earl, 13 Pet. 520; Perrine v. Ches. and Del. Canal Co., 9 How. 172; Pearce v. Mad. and Ind. Railroad Co., 21 How. 442; East Anglian Railroad Co. v. Eastern County Railroad Co., 7 E. L. & E. R. 505; McGregor v. Dela. and Dover Railroad Co., 16 id. 180; Mayor of Norwich v. Norfolk Railroad Co., 30 E. L. & E. R. 120; Halstead v. New York, 5 Barb. 218; same case affirmed, 3 Com. 430; Abbott v. Balt. and Rapp. St. Packet Co., 1 Md. Chan. 542; Albert v. Sav. Bank, 2 Md. R. 159; Snyder v. Prest., &c. Rockport, 6 Ind. 237. The plaintiffs had more than a year in which to perform their agreement to convey, and can not maintain this action without showing an actual or offered conveyance. Leonard v. Bates, 1 Blackf. 172; Warner v. Hatfield, 4 id. 392; Shirley v. Shirley, 7 id. 452; Mix v. Ellsworth, 5 Ind. 517. Monday, SUTHERLAND v. FLYNN and Another. APPEAL from the Cass Common Pleas. Per Curiam.-Sutherland sued before a justice for $40; trial upon the statutory issue of denial, and judgment for defendants for fifty cents. Appeal by plaintiff. Verdict and judgment for $4.40, for plaintiff; and judgment for the defendants for all costs. 1861. The only error assigned, and point made, is in relation to May Term, this judgment for costs. The correctness of the judgment depends upon the construction that should be given to 2 R. S., § 70, p. 464. Where a judgment is for one party, and the other, upon appeal, changes it in his favor, does the case fall within the section quoted, and is such change equivalent to a reduction of the judgment the requisite amount? This question is already settled in Brenneman v. Grover, at this term. The judgment is reversed, with costs. Cause remanded, &c. J. R. Flynn, for the appellees. ROSE V. TEEPLE. ROSE v. TEEPLE. Where the maker of a promissory note is inquired of, by a person proposing to take an assignment of the note, as to the validity thereof, and answers that he has no defense against it, he is estopped from setting up any defense against such person, or his assignee. APPEAL from the La Porte Common Pleas. DAVISON J.-John P. Teeple sued David Rose upon a promissory note for the payment of $1,100. The note bears date June 29, 1854, was payable to Norman Lewis & Co., at twelve months, and by them indorsed to one Abijah Wallace, who indorsed it to the plaintiff, Defendant answered by five paragraphs. As the third and the reply thereto, sufficiently raise the only point made in the case, the other paragraphs will not be further noticed. The third paragraph alleges that the note was given to Norman Lewis & Co., the payees, for sheep sold by them to the defendant; that they represented to him that they brought the sheep from Vermont, and that they were sound and free from disease; when, in truth, they were not sound, but were infected with a disease called "foot-rot," by which they became wholly valueless. That |