Practice What proper procedure to correct errors in proceedings of township trustees. The final orders of township trustees, establishing ditches, drains, and watercourses, may be reviewed by petition in error, and reversed for errors apparent on the record. Such procedure, and not injunction restraining the construction of the ditch, drain or water-course, is the appropriate remedy for the correction of such errors; and an action for an injunction to restrain the construction of a ditch, for errors and defects in the proceedings of the trustees establishing the same, cannot be maintained, where the only evidence to support the action is the ditch record, on which the errors and defects complained of appear. (Decided January 10, 1888.) ERROR to the Circuit Court of Sandusky County. Fuller commenced his action in the court of common pleas of Sandusky county, against Haff and others, to enjoin the construction of a ditch, ordered by the trustees of Townsend Haff v. Fuller. township in that county, on the ground that the trustees had not jurisdiction to establish the ditch, because: (1) the petition for the ditch does not state that it will be conducive to the public health, convenience or welfare; (2) the trustees made no finding that the petitioners filed a bond or gave notice of the pendency and hearing of the petition, nor that the ditch would be conducive to the public convenience or welfare; (3) that the trustees lost jurisdiction by adjourning during the hearing; and (4) one of the trustees was a brother of a petitioner for the ditch. The allegations of the plaintiff's petition being denied by the answer, the case was tried in the common pleas, where judgment was rendered for the defendant in the action. On the trial of the cause in the circuit court on appeal, the plaintiff, to maintain the issues on his part, gave in evidence the ditch record of Townsend township, which shows that the petition for the projected ditch states the ditch will be conducive to the public health, convenience and welfare, and the trustees in their report establishing the ditch found that it will It also contains an entry to the effect that when the petition was filed with the township clerk "the corresponding bond required by law" was filed with it. The plaintiff also proposed to prove that the ditch was not required by the public health or welfare, but this being rejected he offered no further evidence. be so. The defendant offered evidence to show that in fact the proper bond was filed with the clerk of the township, and that notice was given the plaintiff of the pendency of the petition for the ditch; that the trustees so found the facts to be, and that the plaintiff was present at the hearing before the trustees. But the court held the testimony incompetent and excluded it. Judgment having been rendered for the plaintiff below perpetually enjoining the construction of the ditch, the defendants prosecute error to this court to obtain a reversal of the judgment. Richards & Heffner, for plaintiffs in error. Haff v. Fuller. WILLIAMS, J. As a result of the rule that courts of equity do not entertain jurisdiction for the enforcement of rights, or the prevention of wrongs, when the legal tribunals are capable of affording the redress, it is always a sufficient objection to the granting of an injunction, that the party aggrieved has a full and adequate remedy at law. In the application of the rule it is accordingly held that courts of equity will not sit as courts of error, to revise or correct proceedings at law, or grant injunctions against judgments, because of errors in the proceedings, where proper relief can be had in the ordinary course of appellate procedure. And, though there has been much conflict of authority in regard to the application of the doctrine to void judgments, "the prevailing tendency of the the courts seems to be toward the establishment of the simple test, in such cases, of whether an adequate remedy exists at law for protecting the judgment debtor against the judgment. Where such remedy exists either by appeal, certiorari, application to the court itself which rendered the judgment, or in any other legal and adequate manner, no satisfactory reason is perceived why equity should depart from the universal rule of withholding its extraordinary aid, to redress a grievance which is remediable at law." 1 High on Injunctions, sec. 230. In this state, the proceedings and final orders of township trustees and county commissioners establishing ditches and roads, and of other boards exercising similiar judicial functions, may be reviewed by petition in error, and reversed for errors appearing on the record. Revised Statutes, section 6708; Burrows v. Vandevier, 3 Ohio, 383; Ferris v. Bramble, 5 Ohio St. 109; Beebe v. Scheidt, 13 Ohio St. 406, 419; Commissioners of Wood County v. Junkins, 19 Ohio St. 348; Fravert v. Finfrock, 43 Ohio St. 335. The remedy thus afforded being adequate for the correction of errors in such proceedings which are disclosed by the record, the rule aready stated has been applied in such cases, though the errors so appearing rendered the proceedings void for want of jurisdiction. Frevert v. Finfrock, 31 Ohio St. 621; Fravert v. Finfrock, 43 Ohio St. 335. The operation of the rule is not extended, however, to cases VOL. 45-32 Haff v. Fuller. where "the steps are regular in form, so that the illegality does not appear on the face of the proceedings themselves." 1 High on Injunctions, sec. 578. In cases of that kind, if it be shown, contrary to what appears on the record, that the board or tribunal proceeded without jurisdiction, injunctions y may be granted, for there is then no adequate remedy at law. Anderson v. Commissioners, 12 Ohio St. 635; Hays v. Jones, 27 Ohio St. 218. And where the judgment or order has been obtained by the fraud or misconduct of the party, or other circumstances of fraud, accident or mistake or the like are shown, it has been held that injunction restraining the execution of the judgment or order is a proper remedy. Gifford v. Morrison, 37 Ohio St. 506; Frevert v. Finfrock, 31 Ohio St. 627. But nothing of the kind is claimed in this case. We do not find it necessary to decide here whether the defects in the ditch record given in evidence by the plaintiff on the trial of the action in the circuit court, are such as to require or authorize the reversal of the order of the trustees establishing the ditch. He gave no evidence in support of his action but the record, and therefore whatever infirmities there were in the proceedings of the trustees, of which he sought to avail himself, were apparent on the record. If they were not of that substantial character which affected the validity of the proceedings, he was not entitled upon that proof to the perpetual injunction granted him. If they were of that character, they appeared on the face of the record, and the remedy by petition in error to reverse was open to him. Such a proceeding afforded a plain and adequate remedy, and no ground for interference by a court of equity by injunction was shown. The offer of the plaintiff below to prove that the ditch was not required by the public health or convenience, in no way aids his case. The proposed inquiry could not be made in that way. The determination of the contemplated public use, is by the statute conclusively committed to the trustees in the first instance, and to the jury on appeal. Revised Statutes, sections 4511 and 4539. Judgment of the circuit court reversed, and judgment for defendant below. McMonigal v. Brown. MCMONIGAL v. BROWN. Promissory notes-Demand and notice- Waiver. order, his promissory On the 9th of March, On the 16th of January, 1877, G. executed to B., or note payable one day after date, with interest. 1877, B. indorsed and delivered the note to M. At the time of indorsement, it was mutually agreed between the indorser, indorsée, and maker, that the maker should have an extension of time in which to pay the note, "to about the first of April, 1877." Held: That the indorser waived demand, and notice of the non-payment of the note. (Decided January 10, 1888.) ERROR to the District Court of Fairfield County. John S. Brasee, for plaintiff in error. The law of demand and notice is for the sole benefit of the indorser. It is settled that the indorser can waive this benefit as well by acts and circumstances from which a waiver can be inferred, as by an express written or verbal contract. It is clear, from the facts pleaded, that the indorser understood, at the time of the delivery of the note, that the maker could not then pay it, and he consented that the same might be considered as not then payable. The fact that by the understanding of all the parties the note was not expected to be paid until about April first, is conclusive of the other material fact that it was not then, March ninth, to be considered payable. The plaintiff, therefore, insists that the usual demand and notice to follow the delivery were not necessary in this case, or were waived. It may be claimed, however, that although demand and notice were not required to immediately follow March 9th, the day of the indorsement, yet they were necessary "about April 1st," when it was expected the note would be paid. The parties did not make a valid contract for the extension of the time of the payment of the note. There was no definite time fixed, no consideration appears, nor is there anything to indicate that the maker and payee contemplated that a right |