
    Commissioners of Delaware County v. Hiram G. Andrews.
    1. A board of county commissioners, at tbe solicitation of tbe directors of a railroad company, without being authorized by law, issued to the company orders on the county treasury to the amount of $15,000, payable at a future day, for the purpose of aiding the company to build its road, and for the orders received $20,000 of the income bonds of the company. The orders were not applied to the purpose for which they were issued; but, before they were paid, the commissioners took the personal bond of. the directors in the penal sum of $20,000, conditioned that, whereas the orders had been issued to enable the company to complete its road, and they had been otherwise used, without so doing, the bond should be void, if the road was finished in a specified time, and then paid the orders as they afterward became due. Held, the orders having been issued without authority, and in violation of the constitution and laws of the state, were illegal and void; and the bond of the directors to the commissioners, having been taken in furtherance of the illegal purpose for which the orders were made and paid, was taken in violation of the public policy of the state, and is, therefore, void; and, though the condition of the bond be broken, no recovery 50] “can be had thereon, for either the penal sum named therein, or the amount paid on the illegal orders.
    2. In an action on the bond for its penal sum, the petition contained, in addition to the statement of such cause of action, allegations claimed to show a right to recover upon the ground of fraud in the procurement of the orders, and an implied liability to pay their amount, hut which showed that the right to such recovery was barred by the statute of limitations: Held, that it was not error to sustain a demurrer to the petition.
    3. Upon leave to file an amended petition in the action on the bond, in addition to amending the original cause of action, a new and distinct cause of action, then barred by the statute of limitations, was stated along with the .amended cause of action on the bond: Held, that, under the provisions of the code, it was not error to sustain a motion of the defendant to strike from the amended petition all matter not material to a cause of action on the bond.
    Error. Reserved in tbe district court of Delaware county.
    On the 2d day of January, 1863, the plaintiffs filed their petition in the court of common pleas for Delaware county, against Hiram Gr. Andrews and Joshua Judy, in which they averred that on the 28th day of January, 1857, Hiram G-. Andrews and Joshua Judy, together with Charles Anthony and Obed Horr (both of whom have since died), executed and delivered to the board of county commissioners of said county, their bond, under their hands and seals, as follows:
    
      “Know all men by these presents, that wo, Charles Anthony, Obed Horr, Joshua Judy, and Hiram G\ Andrews, of the State of Ohio, are held and firmly bound unto the commissioners of Deleware county, in the State of Ohio, aforesaid, in the penal sum of twenty thousand dollars, for the payment of which we bind ourselves, our heirs, and administrators. Signed and sealed with our seals this 28th day of January, A. d. 1857.
    “ The conditions of the above obligation are these: that whereas heretofore, to wit, at a special session of the board of the commissioners of the county aforesaid, held in the town of Delaware, in said county, on the 21st day of August, A. d. 1855, said commissioners authorized and directed the auditor of said county, upon certain conditions, to execute and deliver to the Springfield, Mt. Yernon and Pittsburg Railroad Company, three several county orders for the sum of five thousand dollars each, making the sum total'of fifteen thousand dollars, payable in one, two, and three years from the date thereof, to be used by said railroad company to relieve them of their pecuniary embarrassment, and enable them to prosecute *the work upon said road to a speedy completion to its [51 eastern terminus; and whereas said orders having been issued by said auditor, and delivered to said railroad company, the said Hiram G. Andrews subsequently, with the consent of said railroad company, negotiated said orders to the Delaware Branch Bank of the State of Ohio, to satisfy a judgment in favor of said bank against said Andrews and others, obtained in the Clark county common pleas, November 6, 1854 ; and whereas the proceeds of said orders were not used by said railroad company in completing the work upon said road, east of Delaware, according to the meaning and intent of said commissioners; and whereas, said road still remains unfinished: Now, the condition of the above obligation is such that if the pres-, ent Springfield, Mt. Yernon and Pittsburg Railroad Company proceed within a reasonable time from this date, and not to exceed five years from this date, to finish and complete said road to its eastern terminus, then the above obligation to be void, and of no effect ; otherwise, to be and remain in full force and virtue in law.
    “ The plaintiffs further say, that the said Springfield, Mt. Yernon and Pittsburg Railroad Company, before the date of said writing obligatory, had located its road to Lakeville, in Holmes county, in said state, and at the date of said writing obligatory, said Lakeville was, and ever since has been, the duly established eastern terminus of said road.
    “ The plaintiffs further say that, although more than five years have elapsed since the date of said writing obligatory, yet the said railroad company has not finished and completed its road to Lake-ville, aforesaid, nor to any other place established as an eastern terminus thereof. But on the contrary thereof, no part of said road, east of the village of Delaware, in said county of Delaware, haá been completed’.
    “ Whereby an action hath accrued to the plaintiffs to have and demand of the defendants the said sum of twenty thousand dollars; yet the said Anthony, Horr, Judy, and Andrews, did not, nor did either of them, in the lifetime of said Anthony, or said Horr, nor have the said Andrews and Judy, or either of them, since then, paid to the said plaintiffs said sum of twenty thousand dollars, or any part thereof, to the damage of the plaintiffs, twenty thousand dollars. 52] *“ Plaintiffs therefore ask judgment against the defendants for twenty thousand dollars, their debt aforesaid, and also for twenty thousand dollars, their damages aforesaid.”
    The defendant, Andrews (who alone was served), appeared and demurred to the petition, on the ground that it “ does not state facts sufficient to constitute a good cause of action in favor of the plaintiffs, and against the defendants.”
    The court sustained the demurrer, and granted to the plaintiffs leave to file an amended petition.
    On the 25th of November, 1864, the plaintiffs filed their amended petition, and alleged therein :
    That the Mt. Vernon and Pittsburg Railroad Company was duly incorporated and organized under the laws of this state; that the company was authorized by law to construct a railroad from Springfield through Marysville to an eastern terminus fixed pursuant to law, prior to December, 1854, at Lakeville, in Holmes county; that the road was duly located through the county and village of Delaware; that the road was divided into two divisions — the western, extending from Springfield to Delaware, and the eastern, from the latter place to Lakeville; that the western division was completed; and the eastern division was partly constructed; that the commissioners of Delaware county, prior to December, 1854, had subscribed and paid, in behalf of the county, $50,000, for the stock of the company, and still hold the same.
    
      That at the November term, 1854, of the court of common pleas’ of Clark county, the Delaware Branch of the State Bank of Ohio,, recovered a judgment against Hiram G-. Andrews, Joshua Judy, and one Charles Anthony, and one Obed Horr, for over 115,000, being for money borrowed of said Branch Bank by said Andrews, Judy, Anthony, and Horr, individually, hut which had been applied to the use of said company, in the construction of said western division of its road.
    That prior to November, 1854, said company had become, and has over since been, in very embarrassed circumstances, pecuniarily, and is now hopelessly insolvent, and, for want of means, totally unable to complete any part of said eastern division of its road, and no part thereof has been completed.
    *That in order to relieve itself fromits embarrassments, and [53* to procure means to complete its road, said company, shortly before December, 1854, determined to issue and dispose of income-bonds, and to solicit individuals 'and corporations to purchase the-same.
    That at the December session, 1854, of the commissioners of said county, the said Andrews, Judy, Anthony, and Horr, all being directors of said company, and said Anthony being its president, and’ being also a lawyer of distinction, combining with each other, and contriving how to procure from said commissioners a subscription for a large amount of said proposed income bonds, in order that,, with the proceeds of such subscription, they (Andrews, Judy, Anthony, and Horr) might pay off or reduce the amount of said judgment against them, represented to said commissioners that said company was laboring undergreat pecuniary embarrassments ; that-the stock of said county was in danger of being entirely lost; that, if said commissioners, in common with other stockholders, would render pecuniary aid to said company, said .stock- might he preserved for the benefit of the county; that if said commissioners, would subscribe liberally for the bonds of said company, said company by means thereof, and of other like subscriptions by counties,, townships, corporations, and individuals, already obtained or certain to be obtained, and with its other means, would be relieved of its pressing necessities and be enabled to complete the construction of its road ; and that whatever means should be furnished by said commissioners should he expended in the construction of said eastern division of said road; and that said commissioners had full and* ■complete legal authority to subscribe for said income bonds, or to ■otherwise render pecuniary aid to said company.
    That, fully believing said representations to be, all and singular, -true, and relying upon the same, and wholly ignorant of the secret ■purpose aforesaid of said Andrews, Judy, Anthony, and Horr, to use whatever moans they might obtain from said county to pay off ■or reduce the amount of the said judgment against them, the said ■commissioners did subscribe for $15,000 of said income bonds.
    ■54] *That afterward, to wit, at a special session of said commissioners, held on August 21, 1855, at the village of Delaware, aforesaid, the said commissioners, by the procurement of said Andrews, Judy, Anthony, and Horr, and relying on their representations aforesaid, and on like representations by them then made, and yet ignorant of their secret purpose aforesaid, did agree with said railroad company to take its mortgage bonds for $20,000, instead of income bonds, and to pay for the same by three county orders for $5,000 each, payable to said company at one, two, and three years, respectively, with interest.
    That afterward, on August 23, 1855, said railroad company delivered to said commissioners certain mortgage bonds issued by it, amounting to $20,000. And thereupon, at the same time, said commissioners, fully believing said representations of said Andrews, Judy, Anthony, and Horr to be true, and relying thereupon, and having no knowledge or suspicion of the secret purpose aforesaid, ■of said Andrews, Judy, Anthony, and Horr, and prevailed on by them so to do, did cause the auditor of said county to draw and deliver to said company three negotiable orders on the treasurer of said county, commonly called county orders, of that date, each for $5,000, and payable, respectively, at one, two, and three years after their date, with interest; which county orders were delivered to •said company, in pursuance of the premises, for said $20,000 of mortgage bonds, and upon the conditions mentioned in said orders of said commissioners, so far as said conditions had not been rescinded ■or removed by any or either of said orders.
    That said representations made by said Andrews, Judy, Anthony, ■and Horr were false, and known by them to be false when they made them as aforesaid.
    That afterward, and before the 25th day of August, 1856, the said Springfield, Mt. Yernon and Pittsburg Railroad Company, and the said Andrews, Judy, Anthony, and Hoi*r, combining and confederating together to effect and carry out the said secret purpose of said Andrews, Judy, Anthony, and Horr, did negotiate and deliver, or cause to be negotiated and ^delivered to the said Delaware [55. Branch Bank, the three county orders aforesaid, in part payment ■of the judgment aforesaid.
    That said mortgaged bonds, when delivered as aforesaid to said ■commissioners, were of little or no value, and are now wholly •valueless, the said railroad company being wholly insolvent, and without any means whatever; and the plaintiffs now hero bring the same into court, and offer to re-deliver the same to said company, or to transfer the same, without recourse to the defendants, upon being repaid the amount, with interest, of said county orders.
    That, on August 23,1856, the said Hiram G-. Andrews, in consideration of the premises, executed and delivered to the plaintiffs his certain writing obligatory of that date, a copy whereof is attached to the petition as a part thereof, and is the same as the bond before recited, except that it is signed by Andrews alone.
    That, on January 28, 1857, the said Andrews, Judy, Anthony, and Horr executed to the plaintiffs the bond of that date, in lieu of, and on cancellation of the bond of the date of August 23, 1856; which bond so executed and delivered to them, dated January 28, 1857, is copied and made a part of the amended petition, and is in •the same language as that recited in the-original petition.
    That the said three county orders were paid by said county, at their maturity respectively, with interest from their date.
    That afterward, and before the commencement of this action, the said Anthony and Horr departed this life.
    That at the date of said last-mentioned writing obligatory, Lakeville aforesaid was, and it ever since has been, the duly established eastern terminus of said Springfield, Mt. Yernon and Pittsburg Railroad. Nevertheless, although more than five years have elapsed since the date of said last-mentioned writing obligatory, yet the said Springfield, Mt. Yernon and Pittsburg Railroad Company has not finished and completed its road to Lakeville aforesaid, nor to any other place established as an eastern terminus thereof. On the ■contrary, no part of said road, east of said village of Delaware, has been completed; nor has the said railroad company, or the said Andrews, Judy, Anthony, and Horr, or any or either of *them, [58 ■ever repaid to said county the money paid by it in redemption of said county orders, or any part thereof. By means of which premises an action hath accrued to the plaintiffs to have and demand of the defendants the said sum of $20,000, in said last-mentioned writing obligatory mentioned. Yet the said defendants-have not ¡laid, nor did said Anthony and Horr, or either of them, pay in their lifetime, respectively, nor have all or any or either off said obligors paid to the plaintiffs the said sum of $20,000, or any part thereof; to the damage of the plaintiffs $20,000.
    The plaintiffs therefore ask for a judgment against the defendants-for $20,000, the debt aforesaid, and also for $20,000, their damages-aforesaid.
    Copies of the records of the proceedings of the commissioners-are attached to and made part of the petition.
    The defendant moved the court to strike from the amended petition certain matter claimed to be irrelevant, and “all allegations-therein relating to the supposed representations, made by the defendants to the plaintiffs, and ail allegations therein relating to the falsity of such supposed representations. Also, all allegations therein charging the defendants with fraud or fraudulent combination in procuring the plaintiffs to issue the county orders for-$15,000 therein mentioned.”
    That part of the petition sought to be stricken out was particularly specified in the motion.
    The court granted the motion, and ordered the matter specified in it to be stricken out as “irrelevant and prejudicial to the defendant.”
    To the petition, thus amended, the defendant demurred. Theeourt sustained the demurrer, and rendered judgment for the defendant.
    To all the rulings of the court the plaintiffs duly excepted, and filed their petition in error in the district court to reverse the judgment of the common pleas. The case was reserved in the district-court for decision in this court.
    
      A. G. Thurman and Carper & Van Deman, for plaintiffs in error:
    I. The common pleas erred in sustaining defendant’s demurrer-to plaintiff’s original petition.
    57] *Point 1. The instrument sued on being under seal imports a sufficient consideration; and it was not necessary, in declaring-on it, to state a consideration. Indeed, it needs no consideration. 1 Chitty’s Pl. 366; Chitty on Contr. (9 Am. ed.) 4, 5; 3 P. Wms. 222.
    
      
      Point 2. The court can not say that the recitals in the condition are a statement of the consideration. They do not purport to be, •and there is no legal intendment that they are. Hence, it matters not whether they show a sufficient consideration or not. If they do, of course the bond is valid. If they do not, yet, inasmuch as •they do not purport to be a statement of the consideration, the presumption of law remains that the instrument, being under seal, is founded upon a sufficient consideration. 1 Greenl. Ev. 24, 25, sec. 19.
    
      Point 3. Hence, to sustain the demurrer, the demurrant must show that in no possible case could there have been a valid consideration for the bond. For, if there could be such a case, the court is bound to presume it upon demurrer to the petition. 1 Greenl., supra ; 2 Brock. 96, 97 ; 1 Chitty’s Pl. 221; 1 Parson's on Contr. 354, note s; 2 Ohio St. 592.
    
      Point 4. If it be said that the commissioners had no authority to issue the county orders to the railroad company, and that, conse.quently, no legal consideration for the bond could arise out of that •transaction, we reply:
    (1.) There is no such defect of authority apparent upon the bond ■or petition.
    (2.) Divers cases may be supposed that would make the transaction legal. 10 Ohio St. 241; 5 Id. 119.
    
      Point 5. We have so far proceeded as if want of consideration would defeat the action. But, in truth, no such defense is admissible. Our former statute authorizing it was repealed by the code. Hence, the common-law rule, prohibiting such a defense against a specialty, again prevails. As to this rule, see Vrooman v. Phelps, 2 Johns. 177; Dorlan v. Sammis, Id. 179, note; Dorr v. Munsell, 13 Id. 430; Page v. Trufant, 2 Mass. 158, 161, 162.
    
      Point 6. Even in equity the same rule prevails. Chitty on Contr. (9 Am. ed.) 4, 5, notes y and z, and cases cited; Franco v. Bolton, 3 Ves. Jr. 368; Gray v. Matthias, 5 Id. 286; 6 *Humph. [58 234; Hinge v. Moore, 1 Sim. & Stu. 61; 1 Story’s Eq., see. 245.
    
      Point 7. But were the consideration for the bond apparent on its face, and were it admitted that the commissioners transcended their authority in issuing the county orders, yet the bond would be good; for there was nothing fraudulent, nothing malum in se, in what they did. They simply parted with county funds under a mistake of the law. So it must be presumed. For the law always presumes innocence in the absence of proof of guilt. 1 Greenl. Ev. sees. 34, 35.
    In such a case a bond to indemnify them, or to secure the object for which they parted with their money, given, not to procure them to do the illegal act, hut after they had done it, and without any preexisting agreement to give it, is perfectly valid. Doty v. Wilson, 14 Johns. 378; Given v. Driggs, 1 Caine, 450; Marchioness of Annandale v. Harris, 2 P. Wms. 432; Fox v. Tilley, 6 Mod. [226], case 326; Hacket v. Tilley, 11 Mod. [93], case 150 ; Hunter v. Agee, 5 Humph. 57; Turner v. Vaughan, 2 Wilson, 339; Walker v. Perkins, 1 W. Bla. 518 [519], note p; Carey v. Stafford, 2 Ambler, 519, 20, and App. K 831; Nye v. Mosely, 6 B. & C. 133; 13 E. C. L. 119;: Mumford, ex parte, 15 Ves. Jr. 288, 289, notes; Kneeland v. Rogus, 2 Hall’s Sup. C. 587, 588.
    II. The common pleas erred in striking out a portion of the-amended petition. The ground of the motion to strike out was- “ irrelevancy.”
    If the amended petition, in its integrity, stated no cause of action,, the plaintiffs were not prejudiced by the order to strike out. But we insist:
    
      Point 1. The amended petition states a good cause of action.
    (1.) If either point 5 or point 7, under head I., is sound, then-a good .cause of action upon the bond is stated in the amended, petition.
    (2.) A mistake of law will be relieved against, even where both parties are innocent. A fortiori will it be relieved against in favor of ah innocent party against a guilty party who, by fraudulent, representations and contrivances, led the former into mistake. 10' 59] Ohio, 85-90; 11 Id. 223-232; *11 Id.. 486; 19 Id. 21-24; 10-Ohio St. 544; Coventry v. Barton, 17 Johns. 142.
    (3.) It follows, that an obligation given by the guilty party to-the innocent party to repair the consequences of such a mistake, is supported by a sufficient consideration, and is valid. As shown by the cases above cited, relief against the mistake may be obtained, in equity (and in some cases at law, perhaps). Equity and good morals require reparation, and no principle of law or of public-policy prohibits it. A bond for that purpose is, therefore, plainly valid.
    On the case, then, made by the amended petition, which (supposing the commissioners to have transcended their authority) is one of a mistake of law into which they were drawn by the fraud of the defendant and his confederates, there is a good cause of action on the bond. And the case is particularly strong for the-plaintiffs, inasmuch as the funds obtained from them went to the benefit of the defendant and his confederates, being secretly applied by them to discharge the judgment against them in favor of the Delaware Branch Bank.
    (4.) But if a case for a recovery on the bond is not made, yet one for a recovery of the amount of the county orders, $15,000, with interest, is stated. And this for the reasons shown.in two-paragraphs next preceding. This is not a case for the application,, as against the plaintiffs, of the maxim, ex turpi causa non oritur actio. They are not chargeable with any turptitude, and even if they violated the law or the constitution, that, under the circumstances, will not prevent their recovery. Brooks v. Martin, 2 Wallace •U. S. 70.
    
      Point 2. The matter stricken out of the amended petition was relevant.
    This is sufficiently obvious from what has already been said.
    We have only to add that, “ irrelevancy ” is one thing, “ insufficiency ” is another. As to irrelevancy, the question is, “ is the matter relevant to the alleged cause of action or defense?” not whether the alleged cause or defense is sufficient. Port v. Williams, 6 Ia. 219; Seney’s Code, 161, note 36.
    A motion to strike out is not a demurrer. A general demurrer asserts that the matter of the pleading demurred to, how- [60 ever well stated, is insufficient. A motion to reform admits that, if well stated, it is sufficient, but objects to the manner of the statement, or avers that more is stated than is necessary. To permit the sufficiency of a pleading to be tried on motion, as upon a demurrer» would confound essentially different things, and deprive the opposite party of the right to go back to the first defect.
    III. The .common pleas erred in sustaining the demurrer to the amended petition after the matter aforesaid had been stricken out.
    
      Point 1. If the original petition was good, as we have contended, the amended petition, even after its mutilation, was also good, inasmuch as it contained all that was in the original, and consequently the plaintiffs were entitled to recover on the bond.
    
      Point 2. But it contained additional averments, showing the plaintiffs’ mistake of law, produced by the defendant and his confederates, and the fraudulent purpose of the defendant and his confederates to secretly apjDly the funds they might obtain from the plaintiffs to the individual benefit of the defendant and his confedera tes, and so made a canse of action to recover at least the amount •of the county orders, $15,000, and interest.
    
      R. C. Hurd and W. P. Reid, for defendant in error:
    I. A board of county commissioners is only a local organization, which, for the purposes of civil administration, is invested with a few functions characteristic of corporate existence. It can exercise no powers not expressly granted ; and all powers granted to it are subject to strict construction. S. & C. 243, secs. 1, 7; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109; Treadwell v. Commissioners Hancock Co., 11 Ohio St. 190.
    II. The plaintiffs had no legal power to cause the county orders, recited in the bond on which the action is founded, to be issued ; .and they, together with the bond designed to effectuate the unlawful purpose for which they were issued, were illegal and void. S. & C. 243, secs. 1, 7 ; 61] Commissioners *Hamilton Co. v. Mighels, 7 Ohio St. 109 ; Treadwell v. Commissioners of Hancock Co., 11 Ohio St. 190 ; Goshen Tp. v. Shoemaker, 12 Ohio St. 628; Hopple v. Brown Tp., 13 Ohio St. 324; East Ang. R. W. Co. v. East Counties R. W. Co., 7 Eng. L. & E. 505.
    III. The bond being illegal, the parties are in pari delicto, and neither can maintain an action upon it against the other. Trimble v. Doty, 16 Ohio St. 118.
    IT. The matter stricken out of the petition was irrelevant, because it had no legal tendency to support any essential proposition involved in the plaintiffs’ cause of action.
    1. It did not tend to obviate the objection of illegality to the bond.
    2. It was inadmissible in evidence to alter in any way or to add anything to the bond on which the action was founded. Howard v. Thomas, 12 Ohio St. 201; McNair v. Compton, 35 Penn. St. 23; Brown v. McCune, 5 Sandf. 224; Taylor v. Riggs, 1 Pet. 591; Sellar v. Sage, 12 How. (N. Y.) 501.
    3. It was inadmissible in evidence, because the action being in affirmance of an illegal contract, it was immaterial which party was the more culpable. Trimble v. Doty, 16 Ohio St. 118, and cases cited; Comyn Contr. 360; Story Contr. 492; Tracy v. Talmadge, 4 Kern. 162; Roberson v. French, 12 Met. 24.
    
      V. The defendant was not estopped by his alleged fraudulent representations to claim that the plaintiffs had no power to enter into the contract, for the plaintiffs having no legal capacity to make the contract, it was utterly void; and neither acquiescence on their part, multiplication of agreements in furtherance of the unlawful object, nor fraudulent representations on the part of the defendant, can remove their legal disability, or indirectly give legal force to their illegal and void acts. Brown v. McCune, 5 Sandf. 224; Lowell v. Daniels, 2 Gray, 161; Keen v. Coleman, 39 Penn. St. 299; Glidden v. Struple, 52 Penn. 400; Robertson v. French, 12 Met. 24; Drury v. Foster, 2 Wallace, 24; Miranville v. Silverton, 48 Penn. 147; Hood v. N Y. & N. H. Railway Co., 22 Conn. 502; Madison Plank-road Co. v. Watertown Plank-road Co., 7 Wis. 59; *East Ang. Railway Co. v. East Counties Railway Co., 7 Eng. L. and E. 505; Treadwell v. Commissioners Hancock Co., 11 Ohio St. 183; Hopple v. Brown Township, 13 Ohio St. 311. [62
    VI. The matter stricken out of the petition, if sufficient to con-stitute a cause of action, could not be allowed as an amendment, for that would be to change the cause of action from one on contract to one in tort. Whitcomb v. Hungerford, Barb. 177; Lane v. Beam, 19 Barb. 51; McNair v. Compton, 35 Penn. 23.
    YII. The plaintiffs do not found their action on the fraudulent representations, and the action of the court in striking out is tantamount to its refusal to allow such an amendment.
   Day, C. J.

It is claimed that the court of common pleas erred: 1. In sustaining the demurrer to the original petition; 2. In granting the motion of the defendant to strike out of the amended petition irrelevant matter; 3. In sustaining the demurrer to the amended .petition.

All the questions that were made by the demurrer to the original petition are raised upon the demurrer to the amended petition, and it will not therefore be necessary to give a separate consideration to the ruling of the court upon the demurrer interposed to the original petition.

The original petition is manifestly based upon the bond alone. It is equally evident that by the amended petition a recovery on the bond is sought, without any indication of a purpose to add another cause of action by having it “ separately stated and numbered,” ns required by section 86 of the code.

The amended petition differed from the original, chiefly, in stating-fully all the circumstances that gave rise to the bond, or that which-constituted the consideration therefor.

In determining whether the court erred in sustaining the demurrer to the amended petition, the first question presented for our determination is, whether the plaintiff was entitled to recover on. the bond, which was the real ground of the action.

It is apparent upon the face of the bond, as well as from the allegations in the petition by way of inducement to the bond, that it. <83] was not given for the repayment of a sum of *money obtained' of the commissioners. It does not purport to be given for that purpose, nor did the defendant in fact even receive any money of them. The orders amounted-to $15,000; and the sum named in the first bond, as well as in the bond in suit executed in lieu of that, was-$20,000. Moreover, that amount is called the “penal sum,” to be-paid only on failure of the railroad company to complete its road in a specified time. It is not an obligation for the unconditional payment of any sum of money whatever. It is more in the nature-of a covenant to finish the road, or to secure its completion, than a. promise to pay money. The completion of the railroad is the primary object of the bond; the payment of “ the penal sum ” of money is soeondary. This is evident from the recitals in the “ conditions” of the bond. From them it ajjpears that the orders were issued to-the railroad company, “ to bo used by said railroad company to relieve them of their embarrassment, and to enable them to prosecute-the work upon said road to a speedy completion to its eastern terminus,” and that the orders had been applied to another purpose,, leaving the road “unfinished.” These are the reasons assigned in the bond for the obligation to pay the “penal sum” named therein, on failure of the company to complete the road within the time mentioned. The bond was to be void as an obligation to pay money,, if the purpose for which the orders were issued was accomplished. It thus appears that the bond was taken to secure the completion-of the road (the end for which the orders were isstíed), rather than for the payment of a sum of money.

The orders had been issued to the railroad company, as stated in tha bond, “ to enable them to prosecute the work to a speedy completion.” It is manifest that the bond was taken in furtherance-of the same object that was sought to be attained by the issuing-of the orders to the railroad company. Had the road been finished, the purpose for which the orders were issued at one time, and the-bond taken at another, would have been attained, and the intended mission of both fully accomplished and ended. The obligors in the bond would have been relieved from all liability thereon. Neither “the penal sum of twenty thousand dollars,” nor the amount *of the orders, or any sum paid thereon, could, in [64 that event, be recovered on the bond.

The county orders were made payable in one, two, and three-years respectively after their date. The first became due August 23,1856. It appears, from the bond taken of the defendant on that day, that the commissioners had at that time been informed that the railroad company had not used the orders in constructing-the road, but had suffered them to be applied on a debt of the defendant, which, it is shown by the petition, had been incurred for the benefit of the company.

Instead of refusing to pay the orders, as undoubtedly they might, have done, the commissioners made the orders available to the-company by payment, on receiving the bond of the defendant in-the nature of a guaranty that the road should be built.

It is evident that the whole object and purpose of the commissioners in this entire series of transactions — the issuing the orders, the taking the bond, and the consequent payment of the orders— were, just what is expressed in the bond, to relieve the company of its pecuniary embarrassment, and to enable it to finish the road.

Were these transactions within the legal powers of the board of commissioners ?

In Treadwell v. The Commissioners (11 Ohio St. 190), it was. held that “ a board of commissioners of a county is a quasi corpo-. ration, ‘ a local organization which, for purposes of civil administration, is invested with a few of the functions characteristic of-a. corporate existence. A grant of powers to such a corporation, must be strictly construed.’ ”

The “ act establishing boards of county commissioners, and prescribing their duties,” confers upon them power to perform only “ such duties as now are, or hereafter may be, required of them by law.” S. & C. 243.

We do not find among the powers conferred or duties imposed upon the commissioners, anything that would authorize them to-purchase railroad bonds with the county funds, or to loan the-■credit or money of the county to aid railroad corporations to build ■their roads, however desirable it may be to do so.

•65] *But the commissioners in undertaking to draw money from the county treasury to pay for railroad bonds, or to enable a railroad company to build its road, without authority conferred upon them so to do, not only transcended their powers, but were acting in violation of the fundamental law of the state. It is a provision of the constitution that “No money shall be drawn from •any county or township treasury, except by authority of law.” Art. 10, sec. 5.

Nor, indeed, could the legislature authorize county commissioners to issue orders, or dispose of county funds as a loan of county credit or money for the purpose stated in the bond. The 6th section of the 8th article of the constitution prohibits it, as follows :

“ Seo. 6. The general assembly shall never authorize any county, ■city, town, or township, by vote of its citizens or otherwise, to become a stockholder in any joint stock company, corporation, or association whatever; or to raise money for, or loan its credit to, or in aid of, any such company, corporation, or association.”

It is true that it is shown by the petition, that for the $15,000 of county orders the commissioners received in return $20,000 in the mortgage bonds of the railroad company.

If it might be claimed that this transaction was not literally within the prohibition of the section of the constitution above •quoted, it can not be denied that it was in contravention of the policy clearly indicated thereby. If the legislature were forbidden to authorize such transactions, the commissioners, who derive their powers from it, were not less so prohibited.

It follows that the county orders mentioned in the bond, issued without legal authority, and in violation of the public policy of the state, were void. They imposed no legal obligation on the county in favor of the company to which they were delivered; nor is anything shown in the petition — if indeed it were legally possible — to render them of any more value in the hands of a third party.

When the first order became due, and after they had learned of the misapplication of the orders, the commissioners, instead of re-66] fusing to pay them, as they ought to have done, *took the bond ■of the defendant to secure the accomplishment of the object for which the illegal orders were issued, and paid them as they became due. The money was paid, as the orders were made, in “aid of” the railroad company. Though the money may not have been paid' upon the faith of the bond of the defendant alone, it was evidently taken, in fact, to enable the company “to raise money” on the illegal orders, or in furtherance of the object for which they were-■made.

The second bond — the one in suit — was substituted for the first,, a short time after that was made, in pursuance of an agreement, between the parties when the first was made.

The bond was not taken for $15,000, the amount of the orders, but for $20,000, the amount of the railroad bonds that had been-received for the orders. It did not purport to secure the return of the money to be advanced, but rather to secure the value of the-railroad bonds by a completion of the road, or, if that failed, an amount of money equal to that of the railroad bonds, and greater than that of the orders.

Moreover, as if this was intended to ratify the original transaction, the commissioners retain the mortgage "bonds that they received for the orders.

The money was paid on the orders after the delivery of the defendant’s bonds: the first order was paid on the day the first bond was given, and the others after the date of the bond in suit. Hence it woitld seem that the bond was taken to keep alive and make-effective the illegal orders, so that they might be available to the-company for the accomplishment of the purposes for which the orders were issued. The bond thus entered into and became a part-of the transactions of the board of commissioners in the unauthorized and illegal disposition of the county credit and county money in aid of the railroad corporation. The whole transaction was clearly against the spirit and policy of the constitution and laws of the state. To sustain transactions like these would nullify the salutary prohibitions of the constitution, and open wide the door to-the very evils thereby sought to bo obviated.

The majority of the court, therefore, hold that the bond, as well as the orders, were illegal and void; and that an action can not be-maintained thereon to recover either the “penal *sum of [67 twenty thousand dollars,” or the amount paid on the illegal orders.

But it is claimed that, although the bond may be void, a case is made in the amended petition, “ to recover at least the amount of the county orders, $15,000, and interest-.”

If this can be done, it must be either upon the ground of the-fraudulent procurement of the orders, or of an implied promise of the defendant to repay their amount to the commissioners.

It was settled in Sturges v. Burton, 8 Ohio St. 215, that the .statutory bar arising from lapse of time, is available on demurrer, when the facts requisite to constitute the bar are shown by the pleading to which the demurrer is interposed.

An action for the recovery of money on the ground of fraud is barred in four years after the discovery of the fraud. The first bond was dated August 23, 1856. It is apparent from the condition, of the bond, as well as from other facts stated in the petition, that the fraud complained of was known by the commissioners at that time. This action was commenced January 2, 1863, more than four years after the discovery of the alleged fraud.

For myself, I do not see how the plaintiffs could, at any time, -maintain an action against the defendant on an implied promise to pay the plaintiffs either the amount of the orders or the money paid thereon. The orders were not issued to the defendant, nor was the money paid to him. Whatever benefit was derived from -either, came to the defendant from the railroad company. The railroad company was the immediate beneficiary of the plaintiffs. 31oreover, the orders and the bond upon which the money was paid were illegal, and the commissioners by this suit still affirm and .stand upon the illegal bond. It is an elementary principle that, “ Where money has been actually paid over, in pursuance of an Illegal contract, it can not be recovered back; for the court will not assist such a transaction in any way.” Broom’s Legal Maxims [645],

If, however, it be conceded that an action could have been maintained, on an implied liability upon the facts alleged in the amended *68] petition; if it arose when the orders were procured, *or when they were applied in payment of the judgment against the defendant — the only time when he derived any benefit from the •transaction — a period of more than six years had elapsed before the commencement of this suit, and the action would be barred by the statute of limitations.

But if an action accrued against the defendant on an implied liability when the money was paid to the railroad company, or to the bank to which they had been negotiated, still there exists, it seems to us, insuperable obstacles to a reversal of the judgment •of the court of common pleas.

The original petition was based upon the bond alone ; and, from, •,a careful perusal of the amended petition, it would seem that no •other ground or cause of action was intended to be inserted in that. There is no attempt to state more than one cause of action by distinct and separate statements. Much of the matter set forth in the amended petition was not necessary to a full statement of that cause of action. Before the demurrer to the amended petition was filed, the defendant availed himself of the provisions of the •code, by filing his motion to strike out of the amended petition certain specified matter claimed by him to be “ irrelevant,” also all .allegations “relating to the supposed representations made by the •defendants to the plaintiffs,” and charges of fraud alleged against them. The motion was broad enough in its terms to embrace sub■stantially all matter that was either irrelevant or redundant to a ■single cause of action based on the bond.

It is difficult to see how the fraudulent, representations alleged to have been made in procuring the county orders, are materially relevant in an action on the bond given after the fraud was discovered, to secure the purpose for which the misapplied orders were made, since the efficacy of the bond in no manner depended upon the alleged representations when the orders were made.

But if the amended petition be construed as having, in addition to an amended cause of action on the bond, another cause of action interlarded with, and masked under that, it can hardly be ■claimed that the court erred in sustaining the defendant’s motion by striking out all the matter that was redundant to the action on the bond.

*When the amended petition was filed, more than six years [69 had elapsed after the orders were fully paid. The ruling of the court, in sustaining the motion, at once expurgated the petition of matter not material to the action on the bond, and was also equivalent to a refusal to so far extend the leave to amend as to permit the plaintiffs to ingraft on to the original cause of action a new and •distinct cause of action that was barred by the statute of limitations.

The discretionary powers conferred upon the court by the code, in relation to the amendment and modification of pleadings, are so ample we can not say that the court erred in sustaining the motion of the defendant to strike from the amended petition the matter specified in the motion.

This motion was made and sustained before the demurrer to the amended petition was filed. The petition then contained no cause-of action but that on the bond alone. There was no ease for a recovery on an implied liability for money paid, or for money had and received.

For the reasons already stated, a majority of the court hold that, the court below did not err in sustaining the demurrer to the-amended petition; and for the same reasons there was no error in-the ruling, on the demurrer to the original petition.

It follows that the judgment of the court of common pleas must be affirmed.

Brinkerhoff, Scott, and White, JJ., concurred.

Welch, J.,

dissenting. I can not concur in this opinion. I see¡ no technical reason, and surely there is no reason injustice, why the county should not recover back its money, and recover it upon this bond. The reason assigned is, that the bond is founded upon-an “illegal ” consideration, or was given to enforce the performance of an “ illegal ” act. The answer to this is threefold:

The act complained of — paying out county money for railroad purposes — is in no sense an illegal or criminal act within the meaning of the rule of law on that subject. It was simply an unauthorized act. It involved no turpitude or immorality, and violated no-TO] penal provision of law. In fact, *it violated no provision of law. The prohibition in the constitution operates upon the legislature, and not upon the officers of the county; much less does it operate upon the county itself.

It was not the act of the county, the real plaintiff in this action, but the act of its agents, the commissioners. It is well known- and well settled (Carder v. Comm’rs of Fayette Co., 16 Ohio St. 369), ihat the “county commissioners” is another name for the county itself, in actions for and against the county, while in most cases it means the officers or agents of the county. It is unnecessary to say that the commissioners acted in the latter character-when they paid out this money. If the act, then, was ever so “ illegal ” or criminal, the commissioners themselves stood liable to-the county. If the agents of the county illegally, as by embezzlement, take money from the county, surely it can be recoveredvback,. and they can not be allowed to set up their own guilt as a defense. .And if they can not, it is difficult to see upon what ground their accomplices in crime, especially those at whose instance it was committed and who reaped all its fruits, should fare any better. The-provision of the constitution, on which the illegality of the transaction is predicated, was intended for the protection of the people —the tax-payers — of the county against improvident appropriation of the county money by its agents. It seems to me a strange application of the rule of law referred to — the rule which denies to a guilty party an action against his accomplice in guilt — to say that a violation of this constitutional provision by the agents of the county and their accomplices shall work an injury to the people of the county, the very party for whose benefit it was inserted. This is utterly at variance with the purpose underlying that rule of law, which is, that crime shall be discouraged by refusing aid to the-guilty, and not that it shall be encouraged by permitting it to be set up as a defense against the innocent.

But it does not appear upon the face of the bond, or in the-matters set up in the amended petition, that either the consideration or the object of the bond was illegal, or even unauthorized. Legally and technically, the bond imports a debt, founded upon a presumed consideration, subject to be discharged upon the happening of a named condition. I know *that such is often only [71 the form of the paper, while in reality it is to be regarded in the-light of a covenant to do the act specified in the condition; and that, when it is impeached for illegality, the court will look through its-form and inquire into its real object. Lot us do so in this case. Its object was not to enforce the payment of money out of the-county treasury by the commissioners. If it had been, the bond, would have been given by them, and not to them. If it was given, to secure the performance of any act then, it was an act to be performed by the defendants. That act must have been, either the-building of a railroad, or the repayment of the money to the county. I say, in fair legal effect, it was the latter. Either object, however,, is lawful. It is certainly not unlawful to build railroads; and' although it may be unlawful to take county money to build them with — and still more unlawful to apply the money to private purposes after you have received it — it certainly is not unlawful to-refund the money to the county. It is, perhaps, therefore, entirely immaterial whether we hold the object of that bond to be the building of the road, or the repayment of the money. It can, however, in no just sense, be said to be the former. The penalty of the bond. "was wholly inadequate for such a purpose, while it was just about the amount of the county money and interest. Besides, the condition is, not that so much money shall he expended on the road, or that defendants shall build the road, but that if the road shall be built the bond shall be void. The original object, the laying out of the. money upon the road was abandoned, and instead, a bond for $20,000 was taken, conditioned to be void if the road should be built. The parties had a year and more in which to reflect on this matter, and to find out their mistake. We must presume they had •done so, and that at the date of the bond they knew the law, and /that this money should be paid back to the county. If their bond will bear a ponstruction consistent with the intention to secure the restoration of the money, as honest men should have done, we are bound to give it that construction.

But if we hold that their real object was to enforce the building 72] of the road, I can not see but that they are equally ^liable. It was a lawful object, and they bound themselves in their solemn bond either to build the road or pay $20,000 to the county. What good reason is there why they should not be held to their bond, .and compelled to do one or the other. It may be true, that they /should have given an absolute bond for the $20,000. They chose not to do so, and to insist upon the insertion of a condition for their •own benefit, and that condition they now admit is wholly unfulfilled.’ They got the money, and agreed to build the road, and both these facts appear upon a bond in which they acknowledge tkem■selves indebted to the county in the sum of $20,000. Grant that it was unlawful to pay out the money to build the road, surely it was lawful to build the road with the money, after it had been paid out, ,-and to give a bond for that purpose. If it is unlawful to obtain •county money to build a county railroad, it is more unlawful to ■obtain it for that purpose and then refuse to-build the road; and it .seems to mo that a bond, binding the party to do one or the other, •ought to be held good.

If we consider the matters set up in the amended petition — as I think we must — how do the defendants stand before the court? They stand before us admitting that they fraudulently procured this money from county commissioners, whose only fault is that they too readily believed the defendants’ misrepresentations; that they violated the promise upon which the money was obtained— ■■¿hat it should be used in building the railroad; and that they now propose to violate their solemn agreement under seal, either to pay the $20,000 at the end of the five years, or to build the railroad. And they set up these several wrongful acts — “illegal contract,” they call them — as a defense against an action by the county to recover the money. I can not concur in the opinion that such a defense ought to prevail.

I am unable to see that the case is varied by the fact that the funds consisted in county orders. Whether these orders were equivalent to money, is immaterial. The parties considered and treated them as money. The defendants paid them out as such, and should now be estopped from denying their validity, and thus asserting that the treasurer is liable *for wrongfully paying them at [73 maturity to their assignees, or that the latter is liable to the county, for money thus received upon orders delivered to them in payment of the defendants’ own debt.  