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Fox v. Hart.

tion to the jury, asked for by the plaintiff, in the trial of the said cause in said court, stated in the bill of exceptions.

2. That the judgment of the court of common pleas, was given for the defendant, when, by the law, etc., the same should have been given for the plaintiff, etc.

*BIRCHARD, J. This case was supposed to present the ques- [416 tion, whether the public right to a road is lost, by the encroachments of an adjacent owner for the period of twenty-one years. We think, however, it may be disposed of without deciding that point, The bill of exceptions does not show an actual adverse possession, by any person for a period of twenty-one years; and therefore the question, whether the public right can be barred by our statute of limitations, does not necessarily arise. Whether the maxim, nullum tempus occurrit regi," is applicable or not to a highway, should be left to be determined when, by a proper case, it is required.

As the road was laid out in 1794, and a part of its width only was used up to the period when the defendant found it necessary to open it to its full width, it is claimed that the public right to that part, wbich so remained unoccupied, was lost by non-user.

It is not doubted that a right to a highway may be so lost. The law would raise a presumption of an extinguishment of the right, when the road had been abandoned for a long period.

But this record shows a continued use of the part of the road left open, and there is nothing to authorize the presumption, that any portion of it had been abandoned or would not be occupied as soon as the public convenience should require. The encroachments of the creek, at the time the transaction complained of occurred, rendered it necessary that the full width of sixty feet should be thrown open. The public had been deprived of a part of the original road for about eighteen years previous, by the encroachments of the adjacent owner. He had no reason to suppose such portion was lost by this encroachment, or the right to it in anywise impaired, nor was it so lost or impaired. The supercisor performed no more than his duty in opening it, and the court of common pleas did right in sustaining him.

Judgment affirmed.
ARIUS NYE, for plaintiff.
GODDARD & CONVERSE, for defendant.

Shelton et al. v. Gill et al.

417]

*JEREMIAH SHELTON ET AL. V. JOSEPH GILL ET AL.

To enjoin a judgment at law, on the ground of illegal interest, the bill must

show a tender of the amount equitably due. Illegal interest paid, can not be recovered back. A stipulation in a warrant of attorney to pay collection fees, in addition to

the principal debt and interest, is against public policy and void.

This is a bill of chancery, from the county of Pike.

The bill is filed by the complainants, setting forth a loan of money from the respondent, Joseph Gill, at a rate of interest of ten and twelve per centum per annum, and which the answer shows, from time to time, liquidated and paid, as the time was extended for the payment of the original loan. The loan was $4,500, for which a bond was executed, with a warrant of attorney to confess a judgment for the amount due, with two and a half per centum, as attorney's fees, for collection, and on which judgment was rendered for the balance due, nearly $5,000, with two and a half per centum, collecting fee. Execution was issued, and levied on the complainants' property.

An injunction was allowed on this bill, and the respondent restrained from the collection of this judgment; and the complainants pray that an account may be taken of the loan, the amount of interest paid, and the attorney's fees, and that the respondent be decreed to credit, on the execution, all excess over six per centum, and the attorney's fees, for which judgment was taken, and for other relief. Gill answered, and the above allegations are substantially admitted.

CREIGHTON, GREENE & HUNTER, for complainants, contended: That the defendant was entitled to no more than the principal oaned, with legal interest. Bank of Chillicothe v. Swayne et al., 418] 8 Ohio, 257. And, having obtained judgment on *the warrant for a larger amount, a court of chancery should restrain the collection, beyond what was justly due, for principal and interest. That the two and a half per centum, included in the judgment, was clearly illegal, and was so decided, in the State of Ohio o. Taylor and others, 10 Ohio, 378. That the defendant having answered, admitting the allegations

Shelton et al. v. Gill et al.

of the bill, he waived his right to object to the relief claimed, and should have demurred. Rees v. Smith, 1 Ohio, 124. A tender of the amount due is not necessary.

LE GRAND BYINGTON, for defendant:
The bill must be dismissed, because:

1. Upon its own showing, the complainants could have ade. quate remedy at law, by defense to the action before judgment, and, even after judgment, by baving it set aside. Critchfield v. Porter, 3 Obio, 518; The Bank of Mount Pleasant v. McKee, 7 Ohio, 175.

2. A large amount is admitted to be justly due, which is not tendered, and therefore the complainants have not placed themselves in a position to demand relief.

3. The interest, claimed to be illegal, was voluntarily paid, with a full understanding of the contract, and, being paid, can not be recovered back.

WOOD, J. Are the complainants entitled to relief? It seems to us, upon one of the most familiar maxims of equity jurisprudence, the complainants make no case. He who seeks equity, must do equity. The complainants, in this bill, have no averment that they bave offered to pay the amount which is admitted to be due, nor do they bring such money into court. Without this allegation, there is no pretense for sustaining this bill. In the many cases of this character, which bave been adjudicated upon the circuit within the last few years, not one is within our recollection in which the bill has not contained this averment, or been dismissed for the want of it. It is true, in the case of Clark v. Brockway, 6 Ohio, 45, the bill does *not appear, from the [419 report, to bave distinctly set forth wbat has since been required; but that case seems to bave rested upon its own peculiar circumstances. The judge who delivered the opinion remarks: “We should have been better satisfied if the complainant had proffered payment of the money due, and, if refused, had brought it into court; but the case, admitted by the demurrer, is so strongly marked, and the exactions, for the use of the money, so scandal. ous, that we are induced, without intending to establish a precedent, to overlook the omission."

There is also another objection to sustaining this bill, and equally fatal. The interest, excessive as it was, was paid ; and, whether we place the case upon the ground of an executed contract—or, as

Saterlee et al. v. Stevens.

one which is against sound morals, or malum prohibitum, and the parties, therefore, in pari delicto-we know of no principle by which it can be recovered back. And, in analogous cases, it has been repeatedly so held on the circuit, and in this court.

As to the two and a balf per centum, attorney's collection fees, wbich were included in the judgment, it is equally clear the place for its correction is not on the equity side of this court. That such agreements are against sound policy, and void, was decided in the case of the State of Ohio, for the use of the Fund Commissioners, v. Taylor, 10 Ohio, 378. The complainants, however, have adequate remedy at law. . The warrant of attorney, in which this two and one-half per cent. is contracted for, forms a part of the record; and the error, if any exist, is apparent on the record, and may be corrected, on motion to set aside the judgment, or by a writ of error. McKee v. Bank of Mount Pleasant, 7 Obio, 175, pt. 2.

The injunction is dissolved, and bill dismissed. Bill dismissed.

420] *SATERLEE, MASTERS AND BEBEE 0. HORACE STEVENS

A defective appeal bond, if it contain the substance of a bond, will sustain an

appeal, so far as to justify an order to file a new bond.

This was a motion to quash an appeal, from the county of Trumbull.

Judgment had been rendered against the plaintiffs in the court of common pleas, and they gave notice of their intention to appeal to the Supreme Court. Within the thirty days, the following bond was filed in the clerk's office:

Know all men by these presents, that I, Jacob H. Baldwin, as principal, am held and firmly bound unto Horace Stevens, in the penal sum of $100. That the payment of which may be well and truly made, we jointly and severally bind ourselves. Signed and sealed May 2, A. D. 1842. The condition of the above obligation is such, that, whereas, Horace Stevens, at the April term, 1812, of the court of common pleas within and for the county of Trumbull,

Saterlee et al. v. Stevens.

in the State of Obio, recovered a judgment against

- for the 80m of

- dollars, cents, for his costs of suit in an action of assumpsit, from which said judgment —- the said has appealed to the next Supreme Court of the State of Ohio, to be held within and for the said county of Trumbull. Now, therefore, if the said

sball pay the full amount of the condemnation money, in the Supreme Court, and costs in case a judgment shall be entered therein in favor of the appellee, then this obliyation shall be null and void, otherwise to remain in full force and virtue in law,

“ JACOB H. BALDWIN.” [L. s.] The bond was indorsed by the clerk as follows: “Saterlee, Masters and Bebee v. Horace Stevens." “Appeal Bond." “Filed, May 2, 1842."

*At the September term of the Supreme Court, a motion [421 was made by the defendant to quash the appeal. The plaintiffs at the same time moved for leave to perfect their appeal by filing a new bond.

CROWELL & ABELL, for plaintiffs.
TAYLOR & HARRIS, for defendant.

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BIRCHARD, J. It was formerly held in this state that if a sufficient bond was not filed in due time, the appellate court had no jurisdiction of the case, and could neither permit a new bond to be filed nor make any other order in the case. Owing to careless. ness of parties, and others in preparing and executing bonds, many appeals were consequently lost. To remedy the evil a statute wani provided, Swan's Stat. 686, authorizing the appellato court to order a new bond to be given, it, on exception taken, the bond should be found detective either in form or in any other respect. This boing a remedial statute, should be liberally construed. The condition of this bond is defective. It does not name the suit. From its face, independent of the indorsement, it could not be ascertained that it belonged to any particular suit in court; yet giving the law a liberal interpretation, it may with propriety be called a defective appeal bond, and justify an order to file a new one. Taking the face of the instrument in connection with the indorsement, there is something to amend by. It is under seal, and purports to bind J. H. Baldwin to Horace Stevens, in the sum of one hundred

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