An opinion has been already expressed by the court, on some of the points made on the argument. (6 Johns. Rep. 1.) In considering the bill of exceptions, we are confined to the inquiry, whether the evidence rejected ought to have been admitted. The 5th section of the act of *545the .32d sess. c. 186. provides, that when a bill of ex- . ceptions is taken on a trial, it shall be returned into this court, where judgment is to be given according to the same exceptions, as they ought to be allowed or disal- . lowed, with power to award a new trial, in our discretion. The evil intended to be remedied was the carrying of causes before the court of dernier resort, upon the opinion of a single judge j but according to the new provision, the point ruled at the trial must be concurred in by the court, or a new trial will be awarded.
; The new law, therefore, is calculated frequently to save the expense of a writ of error; and to secure a decision of the court on the question of evidence.
There having been no motion in arrest of judgment, we might dispense with pronouncing any further opinion on the plaintiff’s title, or the objections heretofore raised and urged anew, for our consideration; but it is possible that our opinion may prevent future litigation.
It has been contended, there being no averment in the plaintiff’s declaration that the corporation took possession of the valued premises, that there is no right to recover. We are of opinion that such an averment is unnecessary. There are two sections of the act which apply to this case. (2 Rev. Laws, 153. 158. s. 13. and 22.) The 13th section directs the proceedings in making the assessment, and it requires, that before the corporation can appropriate the ground to public use, they must pay or tender to the owner the sum assessed. The 22d section creates the duty on the corporation, by' providing, that after the value and damages shall have been ascertained, the amount with interest shall be paid to the person interested, on demand. This section of the act extends to all cases where an assessment has been made, as well under the directions of the 13th as of the 2lst section. The 21st section merely provides a mode of proceeding somewhat different from that of the. *546isth section, as to the manner of giving notice to the, proprietor of the ground intended to be applied to pub-lie use; and it relates only to such persons as reside without the state, - or whose place of residence is unj£nown< jt js admitted, that in the latter case an assessment would create a duty on the corporation, but it is denied, where the proceeding is under the 13th section. We perceive no ground for the distinction; and indeed, it would be a most unreasonable construction of the act, to allow the corporation to take their chance of an assessment, and if it did not suit their notions, to treat it as nugatory; or, in other words, to let them have the land, if assessed low, but not to require them to take it, if assessed high. There would be no reciprocity, if the owner of the ground is bound to abide by the assessment, and the corporation are at liberty to accept it or not; and it cannot be denied, that should they have the option of taking, or refusing to take the ground, at the assessment, that they may proceed, toties quo ties, until they get an assessment which they approve.
The proceedings in question do not partake at all of the nature of judicial proceedings. There is nothing to be done by the mayor’s court but to affirm or disaffirm the assessment. The process to convoke the jury is issued by magistrates out of court, under their hands and seals. The authority under which the mayor’s court acted, was specifically derived from the legislature, and . must be strictly pursued; when, therefore, the assessment was confirmed, the court had no further powers : they were functus officio. (11 East, 200, 201, 202.) There is no analogy between this proceeding and the judicial proceedings of a court of record, in the progress of a cause. The power granted by the legislature to the mayor’s court in the present instance, may, not unaptly, be compared to the power given to a court of common pleas, to discharge an insolvent from his debts. In both *547eases, the court act qua commissioners. Should the r . ... . court ot common pleas discharge a person, as an msolvent, can it be pretended they would have a revisionary power, and might annul the discharge? In all that class of cases, where the proceeding is conducted in court, ánd the judges act as commissioners, their acts once done are irreversible by themselves.
The variance between the requisition made by the corporation, and the venire, or the description of the land, is cured by the subsequent assent of the corporation, through its attorney, by moving a confirmation of the assessment. In doing that act, they assented to take the land as described in the venire. Any irregularity which may have intervened on the assessment, was cured, also, by that act of assent.
The objection to the want of a record, has its foundation in considering this proceeding as judicial. If it is not, then there is no force in the objection.
We, therefore, concur in the opinion delivered at the trial, excluding the evidence offered by the defendants.
That the venire, under which the jury was summoned, differed from the one produced at the trial, was an objection which should have been taken at the trial, and cannot now be discussed. It may, however, be observed, that as it was matter of inducement; and as courts have latterly inclined to get over technical objections, there may not be much weight in the objection.
Motion denied.