Opinion on Petition for Rehearing.
Perkins, J.An elaborate petition has been filed, in this cause, for a rehearing, and numerous authorities cited. We have patiently examined the petition, to see if we could find any legal ground justifying its allowance. The general proposition relied on by counsel is, that the appeal bond was without consideration; and, as supposed analogous cases, there are cited: '
1. Haymaker v. Eberly, 2 Binn. 509, to the point that a promise to forbear a suit, where no cause of action exists, is not a valuable consideration. See Spahr v. Hollingshead, 8 Blackf. 415, and Ind. Dig., § 2, p. 259. Also Wiggins v. Kieser, 6 Ind. 252, to the point that a promise to pay a debt claimed upon a moral, not a legal, obligation, is not binding. And Murphy v. Jones, 7 Ind. 529, to the proposition that a deed conveying no title to a tract of land, is not a sufficient consideration for a promise to pay, &c. See, however, the cases cited in Ind. Dig., § 23, p. 787, and p. 285. But supposing the award appealed from void, the bond was not given for its payment; such was not the consideration of the bond. The bond was to pay the judgment which might be rendered in the appellate Court, to which the perfected appeal removed the cause.
2. Yol. 1 of Parson on Contracts, p. 363, is cited, to the point that both parties to a submission to arbitration must be bound, to render their promises mutually binding. In the case at bar, both parties were bound by the submission.
3. To the position that in a suit upon an appeal bond, from a Court of special, limited jurisdiction, it must appear, by the complaint, that the Court had jurisdiction of the cause *507in which the appeal was taken, are cited: Tarbell v. Gray, 4 Gray’s Mass. R. 444, and 24 Maine, 180; 2 Fairfield, (Maine,) 344, and 4 Mass. 641; see also Parker v. Henderson., 1 Ind. 62. But, in the case at bar, this fact did appear; because the statute creating the White Water Valley Oanal Company was a public act, of all whose provisions the Court was bound to take notice. 8 Blackf. 130, 266. Those provisions authorized the submission, award, and appeal bond sued on.
J. L). Howland and B. F. Claypool, for appellant. C. B. Smith, J. C. McLntosh and W. J. Smith, for appellee.4. Thompson v. Lockwood, 15 Johnson, 255; Benidict v. Bray, 2 Cal. R. 254; Germond v. The People, 1 Hill, 343; Perry v. Hensley, 14 Ben. Mon. 474; Buckingham v. Bailey, 4 Smedes & Mar. 538, are cited to show that bonds given, where not authorized by law, or to obtain the issuing of a writ in a case where the Court has no jurisdiction, are void. And see cases cited in Ind. Dig., § 48, p. 292, and §§ 23, 24, and 25, p. 601; also 4 Blackf. 15. But the appeal bond, in the case at bar, was executed in a cause of which the Court had jurisdiction.
5. In Ried v. Quigley, 16 Ohio, 445, the Court below sent up a transcript as upon appeal, when no party to the suit, nor any one authorized to appeal, had prayed one. A stranger to the cause had filed a bond. This case falls within the preceding. The bond was not authorized by law. Had the bond been filed on behalf of a party to the suit, who had prayed an appeal, the case would have been different.
6. Sharp v. Bedell, 5 Gilman, 88; Wright v. Guy, 10 Serg. & Rawle, 227; and 5 Ala. 657; fall within Parker v. Henderson, 1 Ind. 62.
7. To the point that the appeal is not an estoppel, 7 Ind. 669; 11 Md. 322; 10 N. Y. R. 328; 1 Ohio, 390; 5 id. 190; 6 id. 366, are cited. But see Reeves v. Andrews, 7 Ind. 207; Ind. Dig., p. 125.
We discover no ground for changing the conclusion formerly arrived at. See Wood v. Thomas, Ind. Dig., p. 125.
Per Ctoriam.The petition is overruled.
*508(1.) The following extract from the charter of the White Water Valley Canal Company, will explain the nature of the award from which the appeal was taken, and also the judicial powers of the secretary:
“ Sec. 11. That whenever any lands, water, or materials shall he taken for the construction of said canal, or any of its feeders, or works connected therewith, and the same shall not be given or granted to said company, and the proprietor or proprietors do not agree with said company, as to the compensation to be paid therefor, it shall be lawful for the person or persons claiming compensation as aforesaid, to select for themselves one arbitrator, and said company shall select another, and the two thus selected shall take to themselves a third, who shall award as arbitrators between the parties, and report the result of their award in writing to the secretary of said company, who shall enter the same at full length, with the other proceedings properly appertaining to said arbitration, in books of said company; and from any such award- either party may appeal to the Circuit Court having jurisdiction thereof; and such appeals shall, in all things, lie governed by the law regulating appeals from justices of the peace, regarding the secretary as a justice for all purposes of appeal. * * • , *