
    Robb v. Brachman.
    In an action by a part owner of a partition fence, against another part owner, to recover half the value of the fence awarded by the township trustees, an objection that one of the trustees making the award was a son-in-law of the plaintiff, is waived, where the defendant, knowing such relationship, made no objection untij after the award was made.
    Error to the District Court of Highland county.
    The original action was commenced by the plaintiff in error against the defendant in error under the first section of the act relating to fences and enclosures (S. & O. 548), to recover one-half the value, as awarded by the township trustees, of a fence erected by' him, and which constituted, as he alleged, a partition fence between his and the defendant’s inclosures.
    In his amended petition, the plaintiff states his cause of action as follows: That he had theretofore erected, on one of the lines of his land, in Dodson township. Highland county, a fence, in all respects such as a good husbandman ought to keep ; that the defendant is the owner of the land adjoining thereto, and has an enclosure on the opposite side of said fence, so that said fence answers the purpose of enclosing the defendant’s field; that the defendant has not, at any time, paid to the plaintiff one-half the cost and value of said fence, as he' is required to do by the statute in such case made; that for the-purpose of ascertaining one half the value thereof, the plaintiff duly notified the defendant, in writing, seven days previous-to September 9, 1865, that on said day he would require the township trustees of said township of Dodson, to determine and fix such value on actual view; that on said day, the- said trustees, on actual view of said fence, and, in the presence- and by consent of the agent of the -defendant, did determine and fix one-lialf the value of said fence to be $118.63, and. did, by-writing under their hands (a copy whereof is attached), adjudge the defendant to pay the plaintiff said sum; whereby the defendant became indebted to him in said sum> of money, and which the plaintiff avers was then due and. payable ; yet the defendant, though often requested, has not paid the same nor any part thereof.
    Issue was taken on the petition by answer. The trial resulted in a judgment for the defendant.
    On error, this court reversed the judgment and remanded the case for re-trial. The case is reported in 24 Ohio St. 3. On further proceedings in the common pleas, the defendant, on leave, filed an additional answer, setting forth the following facts: That said award was made by two only of said township trustees — to wit, Eli Roush and 13. A. Selph; that the award was irregular and invalid for the reason that said Selph was, at the time of viewing said fence and making said award, the husband of one of the plaintiff’s daughters. Wherefore, the defendant alleged said Selph was incompetent to act as trustee in viewing said fence and making said award; that there was no legal quorum present at the view of said fence and making of said award; and that the award is invalid and of no force or effect in law.
    The court, having overruled a demurrer to this answer, gave the plaintiff leave to file a reply, which -was filed accordingly.
    The reply avers that said Selph’s alleged relationship to the plaintiff was known to the defendant at the time of making said award, and that no objection was then, or afterward, made to said Selph acting as such viewer. It also avers that both the defendant and his attorneys well knew of said alleged relationship when the original answer was filed, but did not allege the same as an objection to the plaintiff’s recovery.
    A. general demurrer'to this reply was interposed and sustained; whereupon, the plaintiff not asking leave to plead further, the defendant moved for final judgment in his favor against the plaintiff; and judgment was rendered accordingly.
    The judgment was affirmed-by the district court; and the object of the present petition in error- is to obtain the reversal of these judgments. .
    
      Harrison, Olds & Marsh, for plaintiff in error,
    as to waiver cited: Crow v. Daniels, 20 Conn. 331; Sherwood v. Steven
      son, 25 Conn. 432; Kellogg v. Brown, 32 Conn. 108: Hollister v. Hollister, 35 Conn. 241; Ipswich v. Commissioners, 10 Pick. 519; 5 Pick. 483; Fox v. Hazelton, 10 Pick. 275; Shoemaker v. State, 12 Ohio, 43; Hayward v. Calhoun, 2 Ohio, St. 164; Eastman v. Wright, 4 Ohio St. 156; Beck v. State, 20 Ohio St. 228; Young v. State, 23 Ohio St. 577; Kenrick v. Reppard, 23 Ohio St. 333; Hull v. Ambro, 2 Disney, 147; Williams v. True, 1 C. S. C. R. 321; Lowe v. McCorble, 8 W. L. J. 64.
    
      UlrieJe Sloan, for defendant in error,
    insisted that the action of the trustees was judicial, and hence the inability of one of them to act could not be waived.
   "White, J.

The judgment of the court of common pleas is sought to be supported on the ground that the award of the township trustees was not merely voidable but absolutely void. We cannot assent to this proposition. There was no statute incapacitating Selph from acting in the matter. The objection related to the regularity of the action of the trustees, which objection it was competent for the parties to waive if they saw proper to do so. Had the objection been seasonably made, it may be that Selph would not have acted, and that the services of the other trustee would have been obtained, against whom the objection might not exist. In the Inhabitants of Ipswich v. County Commissioners (10 Pick. 519), it was held that “ if a party to the proceedings of county commissioners in laying out a highway, has notice that one of them is not disinterested, but takes no exception to such commissioner’s acting, until after the highway is established, he will be deemed to have waived any exception on that account.”

It was said in the opinion by Shaw, C. J., that, “ By consenting to proceed with full knowledge of the ground of exception, the exception was'waived.”

And in Wakefield v. Railway Co. (6 B. & S. *794, 802), Cockburn, C. J., in speaking to this point, said : “Nothing is better settled than this, that a party aware of the objection of interest cannot take the chance of a decision in his favor and afterwards raise the objection.” See, also, Kellogg v. Brown, 32 Conn. 106 and note; Matter of Hilltown Road, 18 Pa. St. 233; Road in Allen Township, Id. 463.

We do not mean it to be implied that such an objection, if not waived, would be available in cases where a competent number of trustees cannot be had free from the objection, and the function to be performed by the trustees can be exercised by no other body. But where a competent body can be had, not subject to the objection, such body ought to be obtained when the objection is made.

Judgments reversed, demurrer to the reply over-, ruled, and cause remanded.  