
    NOVEMBER TERM, 1844.
    County of Yalabusha v. Thomas Carbry.
    Where a supposed creditor of a county presents his claim for allowance, before the board of police, and the board of police refuse his application, such refusal is a judgment of the board of police, from which an appeal under the statute (How. & Hutch. 453), by bill of exceptions or certiorari, will lie to the Circuit Court.
    The statute authorizing appeals to the Circuit Court from the decisions of the board of police, is not unconstitutional, an ultimate appeal being given to this Court.
    An agreement made of record before the board of police, that an appeal prayed from their decision may be tried in the Circuit Court de novo, upon such evidence as might be introduced, is equivalent to an agreement of trial by jury in that. Court, and is a waiver of any objection that might otherwise arise from the trial being so had.
    The judgment of the board of police, like that of any other competent tribunal, is final until reversed.
    Where the statute authorized an appeal by bill of exceptions from the decisions of the board of police, and that body consented of record to an appeal without the bill of exceptions; held, that the consent cured the error.
    Whether a party agrieved by the decision of the board of police has a right upon the removal of his case to the'Circuit Court by certiorari, to a trial in that Court by a jury; qucere.
    
    An agreement by the president of the board of police, on an appeal in regard to the mode of trial, must bind the county, where there is nothing in the agreement contrary to law, or calculated to injure the county.
    The board of police of each county has power under the statute to contract for the building of the Court House; the commissioners empowered by law to contract being the mere agents of the board of police.
    The right to a change of venue in civil cases, under the statute (How. & Hutch. 592), applies only to cases instituted in the Circuit Court, and not to appeals from the decisions of the board of police.
    Where’ a change of venue was granted on an appeal from a decision of the board of police, and a trial had and verdict given in the case in the new venue; held, that the proceedings there were void for want of jurisdiction.
    Whether a suit can be brought directly against a county, as a quasi corporation, without express statutory provision ; qucere. ■
    In error, from the Yalabusha Circuit Court.
    The defendant in error, Thomas Carbry, on the 6th February, 1843, presented a petition to the board of police of Yalabusha county, praying to be allowed the sum of $6437.53, on account of ♦work done on the Court-house of the county, under a contract made between the board of police and one Bennet J. Higgins. It was stated in the petition that Higgins had employed Carbry to do the wood-work on the Court-house, and had drawn an order on the board of police which was accepted, requesting them to pay to Carbry in instalments, according to payment to be made to him, and in proportion as the payments maybe made, the sum of ‡ 11,633, it being the amount due to him for doing all the wood-work, and all other work necessary to finish the Court-house, except the brick-work and plastering. The petition also stated that the Court-house had been finished according to the contract, except in some particulars, which were either directed or sanctioned by the board of police.
    The board of police, ,on the 13th Feb. 1843, rejected the petition of Carbry, and refused to make him the allowance asked, or any part of it ; to which opinion of the Court, Carbry excepted, and offered to file a bill of exceptions, which was waived by the Court, by an order entered on their records; and a further entry was made, that “ it is agreed, upon the said petitioner praying an appeal to the next Circuit Court of Yalabusha county, that the cause may be tried de novo upon such evidence as the respective parties may introduce, subject, nevertheless, to the opinion of the Circuit Court as to the- legality of such evidence. This agreement is not to preclude the right to change the venue to Carroll county, or the right to appeal from any judgment in the Circuit Court.”
    Carbry subsequently made an application to the Circuit Judge in vacation, and the venue was changed to Carroll county.
    
    The appeal came on to be heard at the April term, 1843, of the' Circuit Court of Carroll county, and, it appears, was submitted to a jury to be tried ; no issue was made up ; but it also appears from the bill of exceptions, that when the cause was called, and the parties present in Court, a doubt was suggested by the Court as to its jurisdiction of the cause, to which the counsel, representing the county of Yalabusha, replied, that they did not wish to raise any question as to the jurisdiction of the Court. The Court then asked, if any issue had been made up, whereupon it was replied by all parties concerned, that the making up any issue was waived.
    
      The bill of exceptions sets out the petition of Carbry, and the contract and other documents accompanying it, a copy from the minutes of the Police Court of all the proceedings and orders in relation to the building of the Court-house, and the testimony of the witnesses examined on both sides.
    It appears from the contract entered into between the board of police and Higgins, that the Court-house was to be built according to particular specifications contained in the contract, and that the money was to be paid in instalments, and the last instalment being one fourth, was not to be paid until the building should be finished, and received by the building committee appointed by the board of police.
    In September, 1838, the board of police adopted the plan of a Court-house recommended by the building committee, and authorized them to receive proposals for the building of the Court-house, and enter into a contract, requesting the committee to draw out in detail, such contract, and to superintend the building from the time the work is commenced until it should be completed. And the board then authorize?! the committee to direct the regulation and construction of the internal parts of the house, and to alter any part of the building that should not increase materially the expense.
    On the 13th Nov. 1838, the contract for building the Courthouse was entered into between Bennet J. Higgins and the president of the board of police, and on that day confirmed by the board of police.
    In October, 1840, the board of police made an order directing the Circuit Court to be held in the new Court-house, the order stating that it was under contract, and unfinished.
    In December, 1840, the time for completing the Court-house was, on the application of the administrator of the contractor, extended until 1st October, 1841.
    In September, 1842, the building committee reported that the work had not been done according to contract, and that the building was still unfinished.
    In November, 1842, the same committee reported that the deficiency in the work, according to their estimate, amounted to $6746.69, besides other matters, which they could not estimate in dollars and cents.
    
      Gruf Johnson, a witness introduced for Carbry, and to whose testimony an exception was taken, stated, among other things, that the Court-house was generally a good job of work ; that it was a better Court-house than the one at Carrollton ; that he thought the board of police ought to pay for it : that he had been a member of the board of police of Yalabusha county for the last five years ; that he was not a mechanic ; that he did not know that the board of police Had ever consented to variations in the contract,,but thought the building committee had.
    John Montgomery, a witness' on the same side, whose testimony was also excepted to, proved that in two particulars the plan was varied by the building committee, and assented to by the board of police ; and that an arch called for by the contract was dispensed with.
    A more full and decided abstract of the record of the testimony is not deemed essential to present fully' the points made by arguments of counsel, and decided by the board.
    No errors were assigned.
    
      W. F. Gholson, for plaintiff in error.
    This was an appeal from an order of the board of police of Yal-abusha county, refusing to allow Carbry a claim against the county. The question which first arises is, whether any appeal would lie in such a case. On this point it is insisted, that the decision of the case involved the question, whether the people of that county should be taxed to the amount of the claim, and that this question of taxation it was exclusively the province of the board of police to decide ; that it was wholly irregular and illegal to take the matter from the board of police, and devolve its determination upon a jury empan-elled in the Circuit Court.
    The statute which allows an appeal from a judgment of the board of police, was never intended to apply to a case like the present. The refusal of the board to allow the claim in this case, could not, with propriety, be declared a judgment. There was nothing conclusive in it. The petition might have been renewed again from time to time. If not appealed from, it would have constituted no bar to Carbry’s claim.
    
      Even if the Circuit Court of Yalabusha had an appellate jurisdiction in the case, the Circuit Court of Carroll had not. An appeal within the contemplation of the statute is not a case in which the venue may be changed. How. & Hutch. 592.
    Further, if this case comes within the provision of the statute authorizing an appeal, it was irregular and illegal to submit the decision of that appeal to a jury. The statute evidently only authorizes an appeal in relation to matters of law. The terms used in the statute are, that persons aggrieved by the judgment of the board of police, may “appeal by bills of exception, or certiorari, to the Circuit Court of his county.” How. & Hutch. 453.
    
      The board of police could not by consent give either the Circuit Court of Yalabusha or Carroll jurisdiction of this case ; nor could they by consent leave the decision of the case to a jury. The powers of the board of police are both conferred and limited by the constitution and laws, for the benefit of the people of their county. They have nó right to devolve a matter, which they should themselves decide, upon another tribunal. They cannot consent that any other course should be pursued, in relation to a matter in which the people are interested, than that prescribed by law.
    It is contended, in this case, that the appeal, which was properly to be determined by the Court, having been submitted to a jury for the satisfaction or information of the Court, and the Court having acted on and affirmed the decision of the jury, and by bill of exceptions placed all the evidence in the record, this Court must look into the facts, and determine whether the judge of the Circuit Court, according to the law and the evidence, ought to have certified such decision to the board of police. There was no issue to be tried, and nothing of which a new trial could be asked. It was not necessary, therefore, for the plaintiff in error to have 'moved for a new trial in order to have the benefit of a full inquiry into the merits' of the case.
    It is further insisted, in this case, that the original contract on which the whole claim of Carbry rested, was illegal and void, there being no law allowing the board of police to enter into such a contract, and they having.no power to contract except in cases specially authorized by law-
    
      The statute directs specially the manner in which the erection of court-houses and jails shall be carried on. Commissioners are to be appointed for the purpose of superintending their erection, who are to give bond and security for the faithful performance of their duty, and are to receive a compensation for their services. It appears, from the condition of the bond to be taken of these commissioners, that the money to be used in the erection of the buildings is to be paid to them, and be by them expended for that purpose. There is no power conferred in that statute or in any other, on the board of police, to make a contract in relation to the building of a court-house. How. & Hutch. 466, s. 82.
    In relation fo bridges, an express authority is given to the board of police to make contracts. How. & Hutch. 449, 450.
    Even if the board of police should have power to make contracts, and enter into obligations involving themselves, their successors, and the people of their county in heavy debts in relation to all matters of county police, still this power, it is insisted, may be restrained by the legislature, and that the legislature having expressly directed the mode in which they are to cause public buildings to be erected, they are bound to pursue that mode.
    If the jurisdiction of boards of police over matters of county police, including the erection of public buildings, is so full and exclusive as not to be subject to the control of the legislature, certainly a Circuit Court can have no power to supervise their proceedings in relation to such matters. What the legislature cannot do directly, it cannot do indirectly through the Circuit Court.
    If, then, the statute last referred to be obligatory, the contract in this case not being in accordance with it, but in direct violation of it, must be considered void ; if not obligatory, then the decision of the board of police was conclusive, and no appeal could be taken from it.
    It will be observed, that the petition of Carbry sets out that the Court-house had been completed according to the contract, except in a few particulars which were, dispensed with. It must certainly be admitted, that the completion of the building according to the contract was a condition precedent to the recovery of the last instalment to be paid. The proof does not show that the building was completed according to the contract, but the contrary.
    
      The Court below erred in permitting a variation of the original contract to be shown by parol proof. Surely no act of the board of police could be shown except by their record. The building committee had no authority to dispense with the performance of any part of the contract.
    It is lastly insisted, that the Court below erred in not excluding the testimony of the witness Johnson, and in allowing him to state to the jury that he thought that the board of police should pay for the Court-house. It would be illegal in any case to allow a witness to state his thoughts to the jury ; in this case it was peculiarly improper, as this witness was a member of the board of police.
    
      William Thompson, on the same side, argued the cause orally, but filed no brief.
    
      E. S. Fisher, for defendant in error.
    It is insisted by the counsel for the plaintiffs in error, that the 41st section, p. 453, of How. & Hutch. Digest, is unconstitutional, in authorizing an appeal to be taken to the Circuit Court, instead of to the High Court of Errors and Appeals. It is true, the Constitution has established a Court of Errors and Appeals, but the jurisdiction of this Court is confined to such matters as are usually determined by such a Court. It is not usual (and indeed not the law) for an appellate tribunal to revise the proceedings of Courts possessing a jurisdiction similar to our boards of police. Whenever a jurisdiction is improperly assumed, or justice withheld where there is a jurisdiction, the Court of King’s Bench in the first case restrains by prohibition, and in the second coerces by mandamus, the inferior tribunal. The Circuit Court possesses a jurisdiction in this country similar to the King’s Bench in England. But for the statute authorizing an appeal, it would clearly possess a jurisdiction over the board of police by mandamus. The question therefore is presented, whether this statute, authorizing an appeal,' does anything more than to substitute one mode of proceeding in the same Court for another. If the legislature should repeal this statute, it would not be urged for a moment, that the Common Law remedy, by mandamus, would not be revived. What does this statute do ? It sends the party complaining of the decision of the board of police, by appeal, into the same Court to which he would apply by mandamus, if there had never been any such law enacted by the legislature on this subject. The statute then merely substitutes the remedy by appeal to the Circuit Court, for the remedy by mandamus in the same Court. The statute, therefore, only interferes with the Common Law, and not with the Constitution.
    But it is insisted that this statute only applies to cases where there are parties litigating their rights to ferries, roads, &c., before the board of police. To this it may be answered, that this clause, authorizing an appeal, is embraced in the 41st section of the, statute ■organizing and defining the jurisdiction of boards of police. All the powers and duties formerly exercised by the old County Court, are, by the 3d sect. p. 445,' How. & Hutch., given to the boards of police. Among the most important of these duties enjoined upon the old County Court, it is declared that they shall erect and keep in repair a court-house and jail for every county in the State ; and the same law which imposes this duty, clothes the County Court with full power to levy a tax sufficient to d.efray all expenses'’necessary to erect such buildings. See How. & Hutch, sect. 82, p. 466 ; sect. 49, p. 474.
    Another duty which the third section of the law cited has imposed upon the board of police, is to audit and allow, upon due proof, all claims against the county. Ib. sect. 80, p. 465.
    We have enumerated a few of the duties required to be performed by the board of police, and on failure to perform them according to the true spirit of the law, an appeal will clearly lie. The statute which gives this appeal, regulates the manner in which it shall be defended. The president of the board is required to defend all appeals ; in other words, to represent the interest of the county. Now, if the statute only applied to individual litigants, the law would have left each party to protect his own rights. If, therefore, there is any doubt as to the application of the statute, it does not apply to individual controversies before the board ; if so, it would have left each party free to protect his own rights, without being under the control of the president of the board of police.
    In answer to the other objection urged by plaintiff’s counsel, it may be said that the board of police undertook to pay by instal-ments, the sum of $23,000 for building the Court-house of Yala-busha county, and they must be presumed to have levied and collected, by the time these instalments fell due, an amount of money sufficient to meet their obligation.
    As to the question of jurisdiction, it may be said that if the statute authorizing the appeal to the Circuit Court be constitutional, it follows as a necessary consequence, that this Court had jurisdiction. But it is now too late for the plaintiffs in error to object to the jurisdiction. After plea in bar it is too late to object to the jurisdiction. 3 Johns. Rep. 113, and cases therein cited.
    Here the board of police should have interposed their objection as to the jurisdiction of the Circuit Court at the time the appeal was prayed. They should have refused to grant an appeal to a tribunal having no power to overlook their proceedings. But let us refer to the bill of exceptions in this case, where it appears that the Circuit Judge, just on the eve of the trial, suggested a doubt as to the jurisdiction ; and what answer did the counsel representing the county give ? “ They replied that they wished to raise no question as to the jurisdiction of the Court.”
    After the agreement, or negligence of the plaintiffs in error, they should now be-relieved only as to such error as the record shows they complained of in the Court below. Indeed, this Court will -only notice such objections as the parties took in the Circuit Court.
    It is further urged that the questions embraced in the appeal should have been tried by the Court, and not by a jury. To this it may be answered that the parties, defendants below, made no objection to this mode of trial; that they tacitly agreed to this trial by the agreement in the record. .
    That it is competent, even in a question triable by the Court, for the parties to agree to have the question tried by a jury. But this was a question properly triable by a jury.
    1st. It was necessary to assess the damages, which the plaintiff below was entitled to recover. 2d. There was conflicting evidence, at least, attempted tobe introduced; and,’3d. The credibility of some of the witnesses was involved. These are all questions for the jury. But when parties come into the Circuit Court by appeal, or otherwise, their rights'are to be ascertained and adjudicated according to the practice of that Court. It is a part of the practice of that Court, to submit all questions of fact to a jury for their determination.
    Indeed, a jury may be said to constitute an integral part of the Court. This trial is, therefore, to be had upon the record of the Inferior Court, according to the usual course of proceeding in the Circuit Court.
    • This is the manner in which the Court proceeds in trying appeals from a Justice of the Peace. There are no new pleadings in the Circuit Court, neither writ or declaration; yet all causes of this kind are tried de novo, in the same manner that other causes are tried. It will be perceived that the issue was waived by the county.
    Another objection urged by the counsel for the plaintiffs in error is, that the Court below erred in admitting the testimony of Gruf Johnson, John Montgomery, and others, to rebut the evidence offered by the county. This is the only point which the record shows the plaintiffs in error reserved, or were dissatisfied with in the Court below. This evidence was properly admitted. The Court allowed the plaintiffs in error to read to the jury the report of the building committee ; this was error, as it was nothing more than the mere affidavit of the men who made this report, taken without notice, and without any opportunity to the adverse party to cross examine. The object of the evidence complained of was to show that this report was made in a fraudulent manner, and did not contain the truth. It was made by men appointed after the Court-house had been completed, and who knew nothing about what had taken place while the building was progressing. They were instructed to examine and report according to the plan specified in the original contract. This plan had undergone numerous variations by former building committees. Was there any fairness or truth in a report made according to the original plan of the building, when that plan had undergone perhaps more than twenty alterations ? The object of the evidence was to show that these alterations, as to the plan of the building, had been made and sanctioned by the building committee at the time in office ; that the building committee had power to make such alterations. The law gives them a discretionary power in superintending such buildings. The evidence was not understood to show any particular variation as to the price, or the workmanship of the building, but merely to show that a performance according to the original contract had been waived by the building committee. This the law fully sanctions. Fleming v. Gilbert, 3 Johns. Rep. 528. These alterations were made for the benefit of the county. But suppose the contractor had voluntarily made alterations of the plan, and the building committee not disapproving, and the county afterwards received the building, all objections would thereby be waived. 7 Pickering, p. 181.
    But we insist that the covenants upon which the verdict of the jury is predicated, are material and independent; if so, the evidence complained of was immaterial. By the contract entered into between Higgins and the board of police, the money is payable to the contractor by instalments, and several payments are to be made before the work is to be completed. The rule of law is, that when covenants once commence running independently, they must so continue. Covenants, whereby money is. to be paid by instalments at -certain periods, have always been construed to be material and independent. Gibson v. JVewmtm, 1 How. Rep. 349 ; Platt on Covenants, 1 Law. Lib. p. 90 to 100°; Pondage v. Cole, 1 San. Rep. 320, and Terry v. Durilz, 2 Henry Blackstone’s Rep. p. 389. This last case was one precisely analogous to the one now under consideration. But even dependent covenants will be construed independent, when justice can be administered in no other way. 3 Randolph, p. 71. The party shall not be allowed to retain the benefit of a contract, without paying for it. If it has not been performed strictly according to contract, he must resort to his cross action for whatever damages he may have sustained.
    In this case the board took from the contractor security in the sum of $23,000, binding him to á. performance, according to the specifications of the contract. This maybe regarded as conclusive evidence of the intention of the board to rely upon their remedy upon their bond, and security for damages in the event of failure to perform.
    The. acf of 1838, gives to the board of police a discretionary power as to the amount of taxes to be levied. How. & Hutch, s. 49, p. 454.
    The verdict conforms strictly, to the order accepted by the board. The contract has six securities to it.
    
      George 8. Yerger, on same side.
    This is an appeal from a verdict and judgment rendered in the Circuit Court of Carroll county. The facts are stated in the abstract, furnished by Mr. Fisher. They will, therefore, only be. noticed by me in connexion with the points of law arising out of them.
    1. The first question is, whether the verdict is against evidence. It is objected that it is. It is a sufficient answer to this, to state that the record does not show that a new trial was moved for. The defendant’s counsel seemed to have relied upon other legal points. Whether a verdict is or is not contrary to evidence, cannot be determined by this Court, for this Court can only act upon the judgment of the Court below ; and if the Court below is not asked to set aside the verdict, because, it is contrary to evidence, it cannot grant a new trial. There is, therefore, no judgment of the Circuit Court upon this point to review ; and if this Court can s'et aside the verdict, it must be on grounds which occurred, or for error, during the progress of the trial.
    But if there had been a motion for a new trial, the evidence supports the verdict, or rather the evidence against the finding is not of that strong conclusive character as to show rashness on the part of the jury.
    The rule on this subject is, “ that to the jury belongs the province of weighing the testimony, and pronouncing the result; and although it appears there was a preponderance in favor of the plaintiff, yet the appellate Court will not, for that reason alone, award a new trial.” Dickins v. Parker, 3 How. 219.
    The evidence on the part of the plaintiff showed an agreement or acceptance of an order on the part of the board of police, for -, the amount due him for the carpenters’ work, or the woodwork of the Court-house. He proves the county to be in possession of the Court-house, using it for county purposes. The board of police wish to defeat his claim, upon the ground that the work was not performed according to contract; that it was varied, and that it was not as well done as it ought to have been ; and for this purpose they offered in evidence the report of a building committee, appointed by themselves, which report shows divers alterations, and reports the work not well done in many particulars. This repórt was objected to as incompetent evidence, but the objection was overruled by the Court, and the report read in evidence.
    The plaintiff read in evidence the order appointing a committee to superintend the building, by which the committee were authorized to alter or modify the plan. He proved that the alterations were made by the building committee. He then introduced witnesses, who proved they were mechanics ; that they examined the work,, and that it was well done ; and that many, if not all of the objections of the committee, were not true. The strength of the testimony is, therefore, with the verdict.
    But the report of the committee was improperly admitted. The members ought to have been introduced as witnesses. Their report was wholly inadmissible. If 'the jury, therefore, have found such a verdict as they ought to have found if this illegal evidence had been excluded, it will not be set aside. Perry v. Clarke, 4 How.' 495. Perhaps they were incompetent on the ground of interest.
    2. It is next contended, that the Circuit Court of Carroll had no jurisdiction. 1st. Because the law allowing the appeal from the judgment of the board of county police is unconstitutional. 2d'. Because if the appeal is allowed to the Circuit Court, it is only to be tried by the Judge, and -is not a jury case ; and therefore the change of venue to Carroll county was without authority. 3d. Because the appeal granted is to be examined by the Circuit Court, as a writ of error, and no bill of exceptions was taken to t'he opinion of the board of county police. 4th. Because the appeal is only allowed in cases of roads, bridges, &c.
    By the act of 1822, How. & Hutch. 465, sec. 80, the county Court is authorized to audit and allow, on due proof, all accounts and demands legally chargeable on the county. At the time the Constitution of 1833 was adopted, the settlement and allowance of claims by the County Court, against the county, was a part of “ the county police” of each county,
    • By the 20th section of 4th Art. of the amended Constitution, a board of “ county police” is established, with full jurisdiction over roads, ferries, highways, and bridges, and all other matters of-county police.
    By the 2d section of the act of 1833, How. & Hutch. 445, the jurisdiction which was then vested in the «county courts, is given to the board of police. Hence they have the power to hear and audit claims against the county. This jurisdiction was not perhaps exclusive ; the party might, perhaps, sue the county at once ; or át his election, present his claim to be allowed by the county Court, or the board of police. If the board rejected his claim, whether he could still maintain his action, is not necessary to examine. It was, however, clearly competent to the legislature, if the board of police disallowed his claim, to authorize an appeal to the Circuit Court. This was allowed by the 41st section of the Act of 1833. How. & Hutch. 453.
    This section, is broad, and covers all cases in which the board of police have power by law to act. There is no exception in the act; it embraces all cases. Burúey v. Boyett, 1 How. 41.
    That the act allowing the appeal is constitutional, no one can doubt.
    3. It is objected, that if constitutional, it only authorizes an examination of the case by the Circuit Judge, and not by a jury ; and hence for a jury to pass on it is erroneous, and not being a jury case, there could be no change of venue, and the Circuit Court of Carroll had therefore no jurisdiction.
    We contend the party on an appeal to the Circuit Court was entitled to a trial by a jury, if he wished it. Or he might, if he wished it, file a bill of exceptions, and appeal on that, in which case it would operate as a writ of error.
    The Constitution guarantees “ the right of a trial by jury.” It does not say or mean that all cases shall be tried by a jury. The parties may waive a jury trial. In this case the bill of exceptions was waived; both parties agreed that the case should be tried in the Circuit Court by a jury on the merits. It was not intended, therefore, that the Circuit Court should act as a revising court on matters oflaw-alone. But it is said “ consent cannot give the Circuit Court jurisdiction.” This is true. But the law here gives it appellate jurisdiction, to try both law and fact, or either. If an appeal simply had been given, the whole matter of law and fact would have been open for investigation, — the facts to be tried by a jury, the law by the Court; and would necessarily, as to facts, been triable by a jury. But the statute is peculiarly worded ; it says, “ the party aggrieved may appeal by bills of exception or certiorari.” This language is ambiguous, but as we know the operation of a bill of exception, and of a certiorari, the meaning is, if the facts are clear, and the judgment of the Court of Probate in point of law is wrong, he may except to that opinion, put it on the record, and appeal. In such case there is nothing for a jury to try ; the Circuit Court will either affirm or reverse, as the law is. But if the party wishes law and fact tried, or if the facts are disputed, as in this case, and the. party wishes a jury, he may waive or refuse to take a bill of exceptions, and simply appeal without it, in which case the appeal will have the effect of a certiorari, — it will remove the whole case for trial.
    At Common Law, a certiorari in general only lay before trial or issue joined, and the case was dismissed, or quashed, or tried by a jury. But in this State, judgments of Justices, after trial, may be removed by certiorari, by statute. And the statute, in this case, contemplates an appeal by certiorari, after trial; for it says, any person aggrieved by the judgment, &c.
    Now, as by Common Law the certiorari removed the whole record before trial, and a jury trial could be had on the facts after a removal; so here a certiorari, or in the awkward language of the statute, an appeal by certiorari, authorizes a jury to ascertain the facts, when the appeal by certiorari is taken after judgment.
    The parties, by waiving the bill of exceptions and taking the appeal, generally give to the appeal the operation of a certiorari. It was, therefore, competent and proper for the case to be tried by a jury, and, as the Circuit Court is organized, the facts could only be tried by a jury.
    4. It is said there was no issue made up. ■ If the Court had jurisdiction, the trial of a. plea or issue might be erroneous, where by law it is required. But where,the error is waived or released, it is no ground to reverse the judgment. In this case it would be a fraud in the plaintiff to attempt it, after it was waived on the record. Error or irregularities in the course of proceeding may be waived, and when so done, the act complained of is not erroneous.
    5. It is said the act allowing the appeal or bill of exceptions is unconstitutional; that writs of error can only be prescribed to the High Court. This is not so. Art. 4. sec. 4, and sec. 14.
    By the Common Law, appellate jurisdiction may be given to any superior court. The Constitution says,-Circuit Courts shall have original jurisdiction, &c. But does not prohibit to it the exercise of appellate jurisdiction from inferior courts, as appeals from justices, forcible entry, and detainers, &c.
    6. It is again said, that it was discretionary with Police Courts to lay a tax, ,&c., and no tribunal can coerce them. We have not appealed from any order refusing to lay a tax, but from their judgment refusing to audit or allow the claim.
    But it is a mistake to suppose they cannot be compelled to lay a tax. After the debt is ascertained by judgment, or by the decree of the Police Court allowing it, a mandamus will compel them to lay an annual tax, not to exceed one half of the State 'tax, until the debt is paid. Counties cannot contract a debt, and then say, we will be the judges whether we shall pay it or not.
    The agreement to waive an issue and bill of exceptions was equivalent to a release of the error, and if that was the only error complained of, the writ of error should be quashed, as brought against good faith and fair dealing. 10 Wendell, 625, 626 ; 11 Wendell, 186. These stipulations, in fact, amount to an agreement not to bring a writ of error. Graham’s Practice, 941.
    7. The conditions or covenants were, independent. See authorities referred to in Mr. Fisher’s brief.
    8. This case does not involve the question of taxation. It is merely whether the debt is due by the county.
    
      9. A general objection to testimony of a witness is not good, unless the whole is illegal. The part objected-to must be pointed out. Beebee v. Bull, 12 Wend. 504 ; Richmond v. Richmond, 10 Yerger, 343 ; 4.Wend. 277, 483.
    10. The building committee by law (see How. & Hutch. 466), and by the order of the Court, were authorized to make variations in the work.
    As to change of venue, the other side read How. & Hutch. 592, sec. 18. The previous section 17, authorizes a change in all cases depending in the courts. It authorizes the change either in or out of term time. The two sections or acts must be taken in connex-ion, the last being merely cumulative.
    The board of police acts in many respects as the public agent; as such it has power to make a contract to build Court-houses. H. & H. 466. The power to contract is expressly given. The appointment of the building committee, is to superintend the work contracted for by the board of police. In this respect, they are the agents of the courts. But in regard to matters over which they have power to adjudge, they act judicially. Besides, this matter cannot be inquired into, as there was no motion for a new trial.
   Mr. Justice Clayton

delivered the opinion of the Court.

In the year 1838, one Bennet Higgins entered into a written contract with the president of the board of police of Yalabusha county, for the building of a Court-house for the county. Afterwards Thomas Carbry, the defendant in error, made a sub-contract with Higgins to do the wood-work of the building, and received an order for the amount to be paid him upon the board of police, which order was approved and accepted by the board. After some years, -and after the completion of the work, as Carbry alleges, he presented the amount of his claim . against the county to the board of police, to be audited, and applied to the board for a warrant upon the county treasurer for the amount due. The board refused the application, upon the ground that the work was not finished according to contract; from this order of refusal, Carbry prayed an appeal to the next Circuit Court. He offered to tender a bill of exceptions, which, by consent of the board of police, was waived, and, in the language of the record, “it was agreed, upon the said petitioner praying an appeal to the next Circuit Court of Yalabusha county, that the cause might be tried de novo, upon such evidence as the respective parties may introduce, subject to the opinion of the Court as to its legality and competence.” Afterwards upon the petition of Carbry the venue was changed to the county of Carroll. Upon the trial of the cause in that county, by consent of the counsel on both sides, all objection to the jurisdiction was waived, and by like cohsent, the cause was tried de novo by a jury, without the formal-, ity of pleading, and without an issue. The jury found a verdict in favor of Carbry for the sum of $7356, for which a judgment was rendered by the Court against the county, and the judgment ordered to be certified to the board of police of Yalabusha; from which judgment a writ of error is prosecuted to this Court.

The questions involved in the record are many of them highly important, and of the first impression in this Court. But we have been much aided in the investigation, by the ability with which the case was argued by the counsel on both sides.

The first question presented for consideration is, whether the appeal would lie in this instance. The statute enacts, that “ it shall and may be lawful for all persons who feel themselves aggrieved by the judgment of the board of police of the county, to appeal by bills of exception or certiorari to the Circuit Court of his county.” H. & H. 453. It is insisted in argument, that the order of the board of police refusing the application, is not within the meaning of the statute a judgment; that there is nothing conclusive in it; that it constitutes no bar to another application, and that the petition may be renewed again and again without restraint, and at pleasure.

We cannot concur in this view of the matter. By the 80th section of the Act in regard to' the1 board of police, which has succeeded to the powers of the County Court, it is provided, that the County Court shall in term time audit and allow, on due proof, all accounts and demands legally chargeable on their respective counties, and the claimant shall receive a warrant on the county treasurer, signed by the clerk, with the seal of office thereto affixed, for the amount so allowed,' H. & H. 465. This vests the board of police with power in term time to decide upon claims of the kind which was submitted to it in this petition. A judgment is defined to be the decision or sentence of the law given by a court of justice, as the result of proceedings instituted therein, for the redress of injury.” Bingham on Judgments, 1, 11 Law Lib. This definition embraces the determination in this case, and gives to it the character of a judgment. In The People v. Collins, 19 Wend. 60, the law is thus laid down : “The very act of creating a board for determining controversies and settling rights, implies that the legislature cannot themselves determine and settle them. They, therefore delegate judicial power to others, with the intent that they shall hear, try, and determine finally. This is so of every court, every magistrate, and every commissioner.” The decision of the solicitor of the treasury of the United States, upon a claim specially referred to him by an Act of Congress, is final. Kendall v. United States, 12 Peters, 527. So of aboard of commissioners to adjudicate land titles. Strother v. Lucas, 12 Peters, 412. Their judgment or decision is conclusive, unless an appeal in some shape be given. In Burnett v. The Auditor of Portage County, 12 Ohio R. 58, there was a contest in regard to a claim against the county. The Court says, “ The board of county commissioners must first act in the matter. That is the tribunal which the law has provided for settling the question ; and when adjudicated there, the decision will be final, unless vacated by an appeal.” It would tend to an endless discussion of the same matter, if at some period the decision of the board of police were not final, and we can lay down no other rule than that which is applicable to all other tribunals, that the first judgment is conclusive, unless a rehearing be granted, or an appeal be taken in some specified mode.

It is next objected, that the statute granting an appeal to the Circuit Court is unconstitutional. The foundation of this objection is, that the Constitution intended that all appellate jurisdiction should be vested in this Court alone. It is certainly true that no law can be passed which would give an ultimate jurisdiction of an appellate character to any other than the Court of Errors and Appeals. Yet that intermediate appeals may be allowed, has already been settled by this Court, in reference to other tribunals. It was settled in regard to the Criminal Court, that the allowing of a certiorari to remove the record into the Circuit Court was constitutional. 5 How. 28. Again, it was so settled in regard to an appeal from the Vice-Chancery Court, to the Superior Court of Chancery. 7 How. 552. These cases are decisive of this point.

It is said that this case involves the question of taxation of the county, and that no tribunal is by law competent to pass upon that matter but the board of police. That question does not yet arise. That it may do so in a proceeding hereafter to be instituted, is very possible, but it is not necessary to anticipate it. The application is for an order on the county treasury ; for aught this Court can judicially know, there may be sufficient funds in the treasury to pay all demands upon it. That point is, for the present, excluded from our view ; it will be very properly presented, if an application for a mandamus to compel the- assignment of a tax for the satisfaction of a judgment should ever be made.

It is next insisted, that if the appeal were regular and proper, it was illegal to try it in the Circuit Court by a jury ; that the object of the appeal was to correct the errors of the Court below apparent upon the record.

The phraseology of the statute is peculiar. It says, it shall and may be lawful for all persons who feel themselves aggrieved by the judgment of the board of police of any county, to appeal by bills of exception or certiorari to the Circuit Court‘of his county ; which appeal shall be taken • during the term of the board at which judgment is entered, or at the next succeeding regular term thereof, and not after.” How. & Hutch. 453. An appeal by bill of exceptions would necessarily confine the revising Court to the matters of law arising upon the exceptions. Had the object of the legislature been to bring about that result, it would have been unnecessary to have added the words, “ or by certiorari.” In that event they would have been superfluous. One of the purposes of the writ of certiorari at Common Law, was to remove the record before judgment from a subordinate to a superior court, that the trial might be had in the latter. The like proceedings are then had, as if the cause had been instituted in the Superior Court. Grah. Pr. 559. In several of the States of the Union, this writ has been-employed after judgment to answer tbe same purpose. It removes a transcript of the record into the Superior Court, where a new trial is had upon the facts and law, and the case decided as if there had been no previous trial. It is tried do novo. 1 Iredell, Law Rep. 410 ; 2 Hawks, 364 ; Cooke’s Tenn. Rep. 280. This might have been the intention of the legislature in using the term in this instance so as to allow a trial upon the whole case, facts and law, in a court better constituted to render a correct judgment. But in such an application of the writ, in analogy to any known and existing use of it in other instances, it should be issued from the Court into which the cause is to be removed, by an order of such Court, or of the Judge thereof, upon cause shown.

We are, however, relieved from the necessity of deciding this question in this cause, by the agreement of the parties themselves. When the appeal was" prayed’, it was agreed by the parties, and entered of record, “ that the cause might be tried in the Circuit Court do novo, upon such evidence as the respective parties might introduce, subject to the opinion of the Court as to its competency.” This was equivalent to an agreement to a trial by jury, because matters of fact are tried in the Circuit Court only by jury, unless in a few cases, where it is waived either expressly or impliedly. It has been decided that an agreement to dispense with a jury is lawful. 5 How. '454. It must be equally so, to agree to call in a jury in a court in which it is usual to try all disputed facts and causes by jury. The agreement was in substance reaffirmed, and the trial by jury consented to, when the cause was called. See 6 Cowen, 571. Although consent of parties will not give jurisdiction to a Court, yet where the jurisdiction is conferred bylaw upon a Court proceeding according to the course of the Common Law, an agreement of the parties, to a trial by a jury, would be valid ; and the verdict would not afterwards be set aside, upon the ground that the case should have been determined by the Court, without the'intervention of a jury. It is a received maxim, that consent takes away error. The bill of exceptions in the Police ’Court was dispensed with by consent of both parties, expressed by their counsel and in person ; to hold now that the Circuit Court could not, under the agreement, inquire into the facts, would be to deprive the party of all remedy by appeal, in consequence of the agreement. This would be unjust, and we cannot, on this ground, reverse the judgment. Our inclination would be to decide that the statute intended to secure to the party who did not appeal by bill.of exceptions, the right to the writ of certiorari at any time before the end of the next term of the board of police, upon application to the Circuit Judge. And we are-the" more disposed to adopt this rule, because in many instances it is peculiarly appropriate that a jury should pass upon the matter in controversy. On this, however, we do not give any authoritative opinion, as it is not called for.

An agreement by the president of the bpard of police, who is appointed by the statute to defend for the county in the case of appeal, in regard to the mode of trial, must bind the county, where there is nothing in the agreement contrary to law, or calculated to injure the county.

It is next contended, that the board' of police has no power to make a contract for the building of a Court-house ; that it is only authorized to appoint commissioners, who are empowered by law to contract; and that hence the contract in this case having been made by the president of the board of police, is void. There is abundant evidence in the record that the board of police ratified and confirmed this contract made by their president, as fully as they could. This makes it a contract of the same character as if entered into by their whole body, and the question arises, is such contract valid ? We can have no doubt that it is so. The statute directs that the County Court shall cause to beo erected, and kept in repair, a courthouse and jail in each county ; that each court-house and jail shall be formed of such materials and be of such dimensions, as shall be directed by the justices of the Court, or a majority of them ; that the Court shall appoint two commissioners to plan and carry into' effect, by drawing the draft, superintending the foundation, and erecting and completing every court-house and jail. This, to our minds, gives to the Court the power to contract for the public buildings, and to the commissioners, to carry the contract into execution. The commissioners are in all respects under the supervision of the Court; they are to give bond to it, to account with it, are removable by it, and are to be compensated at its discretion. They are its mere agents to carry- into effect the contract. How. & Hutch. 456. The Court, in this instance, employed agents to carry this contract into effect.

After the cause had been carried into the Circuit Court of Yala-busha by the appeal, an application was made in the usual form for a change of venue. The application was granted, and the venue changed to the county of Carroll, where the trial occurred, from which the writ of error to this Court was taken. It is insisted, that this change of venue was not authorized by law* Upon careful examination of the statutes, we have come to the conclusion, that this objection 'is well taken and must prevail. In the first place, the statute granting the appeal, gives it to the Circuit Court of the «county in which the board of police sits. Next, the act authorizing the change of venue, in its terms is restricted to actions instituted in a Circuit Court, and its whole scope shows that it is confined to original, and does not embrace appellate causes. H. & H. 592. The change of venue was not authorized by law, and all the subsequent proceedings were in a court which had no jurisdiction. The consent of the parties could not give jurisdiction, nor confer power on the Court to enter up judgment, in a case in which the law did not confer the authority to do so. The whole proceeding in the county of Carroll was void for want of jurisdiction, and will be disregarded, and we shall remand the cause to the Circuit Court of Yalabusha to be there proceeded in.

This makes it unnecessary to decide upon the exceptions to the testimony taken in the progress of the trial. We wpuld, however, recommend to the parties, upon'the next trial, to file a declaration, and make up an issue, so as to give shape and semblance to the proceedings. This would be in analogy to the prescribed course, when causes are brought up by certiorari from Justices'of the Peace to the Circuit Court.

The causé, considered in all its bearings, has been by no means free from difficulty. It was insisted, in the argument on one side, that a person having a disputed claim against the county for services rendered, might sue it as a corporation sub modo, and that this was the true and only remedy in this case ; and that the'judgment might then be enforced by writ of mandamus. On the-other side it was insisted, that the party had his election to bring suit, or to apply to the board of police to have the claim audited.

The remedy by action will be found, upon examination, to be by no means clear' against counties, considered as quasi corporations. The right to maintain an action against them, must be regarded upon the authorities as matter of question, unless the action is given- by statute. See Angell & Ames on Corporations, 374; 2 Kent’s Com. 278, 5th edition, note; Purdy v. The People, 4 Hill, 384; 1 Cowen, 261, note; Russell v. Men of Devon, 2 T. R. 667; Myers v. Irwin, 2 Ser. & Raw. 371; 4 Ser. & Raw. 443. It is true that in this State trustees of the school lands have been permitted to maintain suits as a quasi corporation. 3 How. 84; 5 How. 665. We shall not undertake to settle the question in this case, because the opinion is- not necessarily called for.

The point how a judgment against a county in this State is to be enforced, however it may have been rendered, whether upon action brought, or upon appeal from the board of police, is new, and will be found hedged in with embarrassments. We need not now pass upon it, but we trust that we may be pardoned the suggestion, that the whole subject seems to us to require some legislative provision.

The judgment of the Circuit Court of Carroll is directed to ’be set aside for want of jurisdiction, and the cause remanded to the Circuit Court of Yalabusha county for further proceedings.  