
    Geo. W. Rice vs. E. Alley, assignee of Thos. Calloway.
    
    1. Private Way. County Cowrt. Constitutional law. The county court has no power to compel a private person at whose instance a private.way is opened through the lands of another, to pay damages for such private way-The consent of the parties cannot confer with such jurisdiction. The right of a private way can only exist by prescription or convention .between the parties, and not by judicial compulsion. The Act of 1811, ch. 60, which authorizes the construction of private ways, upon the petition of any person whose lands may be surrounded by the lands of another, upon petitioner’s paying damages, is repugnant to the constitution, as violative of private right. Vide Cons., Art. 1, § 8, et 2 Yerg., 554-560.
    2. Limitation. Demands founded on record. Debts and demands based upon any specialty, as a statute, bond or record, are not, in general, affected by the Statute of Limitations. 21 Jas., 1, C. 16. But the record on which such demand is founded must he valid in itself. So, where a defendant in an action of debt produced the record of the county court, from which it appeared that the county court, more than six years before, had adjudged the plaintiff indebted to him a sum of money as damages for a private way through the lands of defendant, and from which it appeared also that he and the plaintiff had agreed upon said sum as the amount to be paid for said private way, and claimed that said record demand be set-off against the demand of the plaintiff; Held, that as the county court had no power to make such order, said agreement must be considered as a simple contract, and therefore barred by the Statute of Limitations.
    FROM MARION.
    This suit was instituted by Alley against Bice, before a justice of the peace, in the county of Marion, on a note under seal, executed by Bice, which resulted in a judgment against the plaintiff for costs; from which he appealed to the circuit court. On the trial of said cause in the circuit court, at its March Term, 1853, Bice produced the subjoined proceedings of the county court of Marion county, as evidence of debt against Alley, and demanded that the same should be allowed him as a set-off against the note, upon which the suit was founded:
    “ State of Twmmee: Marion county. October session, 1841. Be it remembered, that on this day were returned into court, the proceedings of the jury of view, on the road from Kellysville, intersecting the stage road at Marcum’s old house, which said “ agreement ” is returned in words and figures following, to wit:
    
      “State of Tennessee: Ma/rion county. ¥e, the undersigned, appointed by virtue of the within order, say that the damages due and owing to George W. Rice from Erasmus Alley, for the road agreed upon between them, shall be the sum of three hundred dollars, to be paid by Erasmus Alley to Geo. W. Rice, and that' said Rice have until the 1st day of January next to open the same, and to fix the fences and enclosures to suit said road; otherwise, said Alley, by performing-said labor, may be allowed to do the same. September 28th, 1841. Signed by the commissioners, and Geo. W. Rice and Erasmus Alley; and ordered by the court, that said order be made final.”
    The circuit court, (Hon. Charles E. Keith presiding,) charged the jury that the claim evidenced by the paper above quoted, introduced by the defendant as a set-off, to plaintiff’s debt, was such a claim as would be barred by the statute of six years; and if a longer period than six years had elapsed, between the making of said paper and the commencement of this suit, that said claim would be barred. The jury rendered a verdict, and judgment was entered for plaintiff Alley, for the amount of his note and interest, from which Rice appealed.
    Mimas, for Rice.
    This is an agreed case from Marion county circuit court, and raises this point: Where a party seeks to open a road through the land of another, and gets a jury to assess damages, and the jury report the damages, in this case the report is signed by the parties themselves, and is in the character of an agreement and report, and that report made a part of the record of tbe county court, wbetber this claim will be barred by the statute of six years, see pp. 8 and 9 of this record.
    It is insisted for plaintiff in error, that this is not a simple contract, but that it is debt evidenced by record, and is not barred by statute of 21 James, 1, ch. 16, § 3, limiting simple contract debts to six years; and that it is not barred by our statute of 1115, to three years.
    Hyde, for Alley.
    The only reasonable ground, to my mind, upon which an argument could be based, in support of the position taken by the plaintiff in error, is the principle laid down by Bouvier in his Institutes of American Law, vol. 1, p. 332, couched in the following language: — “ When the liability of the defendant is created, not by the act of the parties, but by the express terms of a statute, the plaintiff is not barred.”
    To give application to this principle a liability musti be created by the statute, and it must arise under its provisions as expressed.
    To create a liability, implies an obligation on the part of the party liable, which is to be performed in the future. Certainly, if no debt or obligation remains to be paid or performed in pursuance of the provisions of the statute, no liability is created thereby. The Act of 1811, ch. 60, § 1, on the subject of private ways, is illustrative of this position. By this act, any person surrounded or inclosed by the lands of another, who refuses to allow such person a private road, on petition, a jury may lay off and mark a road, and tbe court shall have power to grant an order, to open, &c.; provided tbe damages assessed be paid by tbe person applying, &c. By a plain construction of this statute tbe county court would bare no authority to order the opening of the way prior to payment. If the parties stipulate a future payment tbe liability created is the result of a private contract, and does not arise under the terms of tbe statute. The act of 1825, cb. II, § 1, is equally explicit in reference to tbe establishment of a public road in cases where damages have been assessed by a jury, by the terms of which tbe liability ceases when the road is established, otherwise its establishment is unlawful. If tbe person entitled to damages agrees that tbe payment may be in future, tbe liability is created by tbe act of tbe parties and not by tbe express terms of tbe statute.
    Upon tbe supposition that a liability for damages assessed by a jury under tbe statutes referred to, could in any ease, be created under the provisions of the statute, yet it will not be denied, that to create tbe liability tbe county court must pursue the authority conferred by the statute, otherwise its proceedings would be illegal and void. By tbe act of 1804, cb. 1, § 19, upon complaint of the person aggrieved by tbe laying out of any road, tbe county court may order a jury to assess the damages to be paid by the county, or turn, the road, &c. By tbe act of 1825, before referred to, payment of tbe damages assessed is made a condition precedent to the opening or establishment of tbe road by the county court. By these acts tbe duty of tbe jury, and the court are clearly defined; the one is to assess damages to be paid by tbe county or turn tbe road, and tbe court, on payment of tbe damages assessed, are to establish tbe road.
    Tbe writing relied upon' by the plaintiff in error, purports to be tbe proceedings of a jury of view to assess damages resulting from tbe laying off of a public road, from “ Kellysville ” to “ tbe stage road.” . Tbe caption also clearly indicates that tbe jury do not return tbe paper as a report of tbe damages assessed, but as an “agreement” returned, &c. Tbe body shows that there is no assessment of damages upon tbe road as previously laid off by order of tbe court, but damages upon a road agreed upon between Eice and Alley. The three hundred dollars is not to be paid by tbe county, but by Alley, although tbe money is not paid, but “ to be paid.” By stipulation, Eice is to have over three months in which to open tbe road; and should be fail Alley is authorized to open it. If this writing is to be regarded as tbe proceedings of tbe jury, its provisions and stipulations are in express violation of their authority as conferred by tbe statute, in every particular; and, consequently, any action of the county court, confirmatory of their proceedings, or any order based upon them, would be void. If, then, in. a case where tbe provisions of tbe statute referred to are pursued, a liability might be created, yet, where tbe plain provisions of tbe statute are violated and tbe proceedings are wholly illegal, as in this case, certainly no liability could arise by tbe express terms of a statute which are disregarded in creating tbe liability.
    Divesting this writing of tbe unauthorized proceedings of tbe jury of view, and it remains, what it was doubtless intended to be, .a simple contract in writing between Rice and Alley, witnessed by the jury, and as such, strictly within the bar. of the Statute of Limitations.
    Should this court hold the charge of the court below to be clearly erroneous, it is submitted whether that error, in itself, would afford a sufficient ground for a reversal of the judgment in this case. The Statute of Limitations could only apply to the right of way demand relied upon in defense by the plaintiff in error, unless presented by way of set-off, of which there was neither notice or plea filed, as is apparent from an examination of ■ the record. A set-off being a cross action, requiring notice, by plea or otherwise, of the nature of the demand, so as to give the party affected thereby an opportunity of preparing his defense, and no notice having been given, the demand of the plaintiff should have been excluded on that ground; and no injury has resulted to the plaintiff in error in the exclusion of his set-off, if upon any ground it was not available, although it should be held that a wrong reason for its exclusion was assigned by the court below.
    Eor these reasons we aslc an affirmance of the judgr ment below.
   TotteN, J.,

delivered the opinion of the court.

This action is debt; the defense is set-off, which being denied in the court below, the defendant appealed in error.

The matter of set-off is imperfectly stated in the record; but it seems that, by order of the county court of Marion, Alley was permitted to open a road over Nice’s farm. A jury was appointed by said court to assess tbe damages done, and tbey assessed it by consent of parties, at $300, and made report thereof to tbe county court at October Term, when it was ordered that the same be affirmed. The report states that Alley “ agrees ” to pay Nice $300, and the same being due more than six years before the institution of this suit, the circuit judge held it barred by limitation of time.

It is now argued for defendant Nice, that no statute of limitation will apply, because it is a liability founded upon a record. -

That is true as a matter of fact but not as a matter of law. For the county court had no jurisdiction to make such an order upon its record. If a public road were intended in that case, the private indemnity was due from the public, and the county court as a court of police, had power to order it to be paid bj the county; 1804, ch. 1, § 19; but no power, even by consent, to make a valid order that it be paid by a private person; for consent in general, cannot confer jurisdiction. If a private way were intended, in that case we have held, that the right can only exist by prescription or convention between the parties, and not by judicial compulsion, under the act of 1811, C. 60, and this act was considered repugnant to the constitution, as being in violation of private right. White vs. Settle, at Nashville, 1852. In any view of the case it must be true that the county court had no jurisdiction to order that Alley pay Nice the indemnity in question; and its order to that effect, must be considered as merely void.

It is in general true, that demands founded upon any “ specialty,” as a statute, record, or bond, are not affected by tbe statutes of limitation. 21 Jas., 1 C. 16; Ang. Lim., C. 10. But bere, tbe record relied upon is invalid in itself, for want of any power in tbe court to make it, and cannot be considered as tbe foundation of a right. Tbe right to indemnity was agreed upon by tbe parties, but as there was no valid specialty to secure its payment, it must be considered as founded merely in simple contract, and is -barred by tbe statute.

Let tbe judgment be affirmed.  