
    Joseph McClintock v. Henry W. Inskip.
    The act authorizing notice of special matter to be given with' the general issue, dispenses only with form.
    The notice must contain tho substance of a good dofenso, and if the same matter pleaded would be bad on general demurrer, the notice is insufficient.
    
      If the judgment of the court below can be sustained by the record, it will not be reversed because an incorrect or insufficient reason was given.
    This is a writ of error to the Supreme Court of the county of Greene.
    The original action was trespass, brought in the common pleas and taken, by appeal, into the Supreme Court.
    Inskip, the plaintiff below, declared against MbClintock, for breaking and entering his close, and quarrying, carrying away, and converting to his own use large quantities of stone of great value. The defendant plead the general issue, with notice that, on the trial of the cause, he should give in evidence, in bar of the action, that the county commissioners'of Greene county, by virtue of an act of the legislature of Ohio, incorporating the Cincinnati, Lebanon- and Springfield Turnpiko Company, appointed Moses Shoup, David Haines, and *Jacob Coy, three disinterested freeholders of the county of Greene, to assess the damages which the said plaintiff and others might sustain, in consequence of said turnpiko road passing through or near the lands of the said plaintiff; and, by virtue of said appointment, the said Shoup and others were afterward duly sworn to execute and perform the duties assigned, and did assess and determine, by their award, in writing, that the said Inskip was entitled to no damage at all; the said Shoup and others believing that the advantages of the said road, when completed, would be a compensation sufficient for the stone to be taken, and that a copy of the award was given to each party to the suit, according to the act of incorporation under which the same was made.
    Also, that evidence would be given on the trial that the several trespasses complained of in the plaintiff's declaration were the same upon which the above assessment of damages was made by the freeholders appointed, on the application of the president and agent of said company, acccording to the provisions of its charter.
    On these pleadings and notice, the case was submitted to a jury, in the Supreme Court of Greene county, at the May term, A. D. 1843, a verdict rendered for Inskip, the plaintiff below, and judgment thereon. To reverse this judgment McClintock now prosecutes this writ of error.
    A bill of exceptions was taken during the trial, from which it appears the plaintiff below offered in evidence to the jury, the entry of the defendant into his unimproved land, the taking and carrying away a quantity of stone, with the value thereof, and rested his case. That the defendant then offered in evidence to the jury certain papers, marked A, B, C, and D; A being an application in writing, signed by the president and agent of the company, addressed to the commissioners of Greene county, setting forth that he wished to procure stone, for the construction of the road, from the unimproved lands of the plaintiff below and others; that he was unable to agree with them about the price, and asking the appointment of three ^suitable men of the county to appraise the value of the stone, agreeably to the act of incorpo ration.
    The paper B is a bond, in the penalty of fifty dollars, executed by the president and agent of the company, to the State of Ohio, for the use of Greene county, according to the provisions of the charter, conditioned for the payment of the expenses of the appraisement.
    The paper C is the appointment, by the commissioners, of the appraisers, with directions, after being duly sworn, to view the premises of the plaintiff below and others, and taking into consideration whether their lands were more or less valuable by the road passing, through or near them, to appraise the damages claimed, and make out their assessment, in writing, of the amount of damages assessed, if any, and to deliver copies thereof to the parties.
    Paper D is the report of the appraisers, that the advantages of the road to Inskip, when completed, will be a compensation sufficient for the stone to bo taken.
    The bill of exceptions also shows that the defendant below offered to prove to the court and jury, that the defendant below was a contractor on the said turnpike road; that the road passed through the plaintiff’s farm, and that, as such contractor, he entered on the unimproved land of the plaintiff, by virtue of the aforesaid assessment, and took said stone; and that a copy of the award or assessment was duly served on the plaintiff. All which evidence was overruled by the court, and the defendant excepted.
    It also appeal’s, from the bill of exceptions, that the counsel then asked the court to charge the jury that the defendant had the right, by section 7 of the act of incorporation, to enter on the unimproved land of landholders, for the pui’poso of procuring materials for the construction of said road, and that, in such case, the plaintiff could not maintain trespass. This instruction the court refused to give, and the defendant again exceptod.
    It was assigned for error: 1. That the court did not admit the papers marked A, B, C, and D, to-go in evidence to *the jury. 2. The same in substance, to wit: that they were improperly excluded from the jury. 3. Section 7 of the act of incorporation, and the proceedings under it, are not unconstitutional. 4. If unconstitutional, the entry was nevertheless authorized by law; and trespass, in such case, could not be maintained. 5. General assignment of error.
    Lowe, McCorkle & Lowe, for plaintiff.
    W. & B. F. E. Ellsberry, and Harlan & Gest, for defendant.
   Wood, J.

We will dispose of the questions raised by the assignments of error, in the order in which they stand on the record. • Did the court err in excluding from the jury, as evidence, the papers-marked A, B, C, and D,. or the other evidence offered by the plaintiff in error, as set forth in the bill of exceptions? To determine this question, it is necessary to refer to the state of the pleadings, and inquire as to the sufficiencj’’ of the notice. In the action of trespass, quare clausum fregit, under the general issue, at common law, the defendant can only give such evidence as falsifies the plaintiff’s declaration, as by showing that he did not break the close in the manner laid. Gil. Ev. 221; 2 Term, 166 ; 2 Wils. 173. Every matter in justification or bar must be specially pleaded. To simplify, prevent delay, and avoid unnecessary expense, the statute of Ohio has provided that, instead of a special plea, the defendant may give notice of the facts on which he will rely to bar the suit. It would seem to follow, that, while form is thus dispensed with, every notice should contain the substqnce which, when proved, would constitute a complete bar. This court so decided in Reynolds v. Rogers’ Ex’rs, 5 Ohio, 169.

If we look to the charter of this company (26 Ohio 1¡. 149, sec. 7), it only authorizes an entry on the land of an individual to take materials, when necessity compels, in order fo construct the road. If materials can bo found upon the lqnd condemned for the road, no authority to enter on adjoining 'Hand is conferred, Nor does the charter authorize an entry, unless the land be unimproved. The notice is silent as to the necessity of obtaining the stone of the plaintiff, in order to make the road. It does not suggest that any such proof will be made on the trial. There is nothing said in it of any evidence to be adduced that there was not sufficient material for every purpose of the road, within its lines, but only that the entry was made on unimproved lands. It is also necessary to state the circumstances which constitute the necessity to make the entry. In Fulton v. Monahan, 4 Ohio, 426, this court have said : “ In trespass, for breaking one’s close and carrying away stone, it is not enough to say, in justification, that the stone was needed in the construction of the National road. The circumstances that constitute such necessity must be sef forth ; ” and the reason is, that the plaintiff may know what is relied upon, and prepare to meet it by proof, and that the court may see whether the proof to be offered will constitute a bar to the action. The notice is, therefore, in our opinion, defective. A special plea which contained the same facts only would be bad on general demurrer. This is a rule by which to determine the sufficiency or insufficiency of the notice. Reynolds v. Rogers’ Ex’rs, 5 Ohio, 169. All evidence under the notice was legally excluded.

By the third and fourth assignments, we infer, counsel suppose the court excluded the evidence, on the ground that section 7 of the charter was unconstitutional in permitting the property of tho plaintiff below to be paid for in fancied benefits, to be derived from tho location and completion of the road. If so, the bill of exceptions contains no evidence of it. Nor is it necessary to inquire whether the reason for the opinion of the court was sound or unsound. But is the judgment of the court, on the point in issue, sustained by the record? Fulton v. Monahan, 4 Ohio, 426; Westerhaven v. Clive, 5 Ohio, 136. Under the general and last assignment, we suppose, is intended to be embraced the refusal of the court to charge the jury, as asked by tho defendant’s counsel. Had the charge been given after the exclusion of tho defendant’s *testimony, there was no possible state of the case to which it could have had any application. Under such circumstances, to withhold a correct opinion, or to express one to the jury which is incorrect, does not lay the foundation for a writ of error. Reed v. McGrew, 5 Ohio, 379. Judgment affirmed.  