text:
    Union Mutual Life Insurance Co. v. Reif.
    A policy of life insurance was to be void, if either of the answers to the following questions was false or untrue: “Has the party whose life is to be insured ever been intemperate?” “Ho.” “Is the party now of correct and temperate habits ?” “Yes.” Held, that these questions and1 answers refer to the habits of the insured as to the use of intoxicating liquors, and not to occasional practices; and if his usual and general habits were to abstain, or to use in moderation, an occasional indulgence to excess does not render the answers false or untrue. But it is not necessary to the existence of intemperate habits, that the excessive use of intoxicating liquor should be continuous and daily, and an instruction to the jury, that a continuous and daily use of intoxicating liquor is necessary to constitute such a habit, is erroneous.
    Error to the Superior Court of Cincinnati.
    The action below was founded upon a policy of insurance upon the life of Charles Reif, who died October 19, 1872. The policy was dated July 22, 1872, and was for the sole and separate use of the mother of the insured, who is the plaintiff in the action, in case she survived him.
    Several defenses were specially pleaded, upon which issue was joined and evidence submitted, one only of which is noticed by the court in its opinion.
    One of the conditions upon which said policy was issued was, that:
    “ Sixth. The apjilication herefor shall form and be a part of this policy; and if any statement made therein, or in the medical examiner’s certificate accompanying it, by the applicant, or the person whose life was to be insured, shall be found witrúe, in any respect, then this policy shall be null and void.”
    It is averred that the following answers made by Charles Reif in his application, were false and untrue:
    “ Has the party whose life is to be insured ever been intemperate?” Answer: “No.”
    “Is the party now of* correct and temperate habits?” Answer: “Yes.”

      Appended to said application was an agreement of the applicant, that if there was any untrue or fraudulent allegation contained therein, which application it was also agreed should form and be a part of the policy, or if anything material or important affecting the risk applied for, which the company ought to know, has been concealed, withheld or omitted, the policy and all moneys paid thereon were to be forfeited.
    Evidence was offered in support of this defense. This evidence tended strongly to prove that prior to and at the date of said application the applicant was in the habit, of being intemperate — of periodically getting drunk, though there were times and occasions of longer or shorter duration during which he was duly sober.
    In view of this testimony counsel for plaintiff in error requested the court to charge as follows:
    “ 9. The court charges you, that if Charles Reif was addicted, before July 16, 1872, to periodical spreeing or getbmg drxmh, and the insurance company, its agents, and examining physician were ignorant of, such fact when the insurance was effected and the premium paid, the policy is void, and your verdict must be for the defendant, even though there were periods of longer or shorter duration in which he was duly sober.”
    Also: “ 11. The court charges you, that Charles Reif was not of correct and temperate habits, if, at said time (the 16th day of July, 1872), and for a period before that sufficiently long to beget a, habit, he was in the hábil of period/icalby getting drxmh, even though there were times and occasions of longer or shorter duration'in which he was duly sober.”

    Each of the foregoing requests were offered separately and refused, and exceptions taken.
    Upon this subject the court charged as follows:
    “ The first and second of these answers which, it is claimed, avoids the policy, are given- to question 5 in said application. Said question is as follows :
    “ Has the party whose life is to be insured ever been intemperate? To which Charles Reif answered, ‘No.’ And also, Is the party now of correct and temperate habits. To which said Charles Reif answered, ‘ Yes.’ It is obvious that these inquiries are not whether the person whose life is to be insured was ever drunk, or whether he ever used intoxicating drinks; but whether he has ever been intemperate, that is, whether, at any period of his Ufe, his usual and daily habits were such as to constitute and render him what is hnown as an intemperate mam, — a man habitually under the influence of too great an amount of intoxicating liquor. They do not relate to the question whether the applicant habitually uses intoxicating drinks, for he may do this and yet be1 a temperate man; but whether, at any period, or at present, he habitually used, or now uses, intoxicating drinks to such excess as to make him an intemperate man. If you find, from the testimony^ that Charles Reif did so habitually use intoxicating drinks to excess, then the plaintiff cannot recover in this case.”
    The jury rendered a verdict for the plaintiff below. A motion for a new trial was overruled and after a judgment was rendered it was affirmed in general term.
    A reversal is now sought on several grounds, and among them for error, in charging and refusing to charge as above stated.

      Sayler ds Sayler, for plaintiff in error :
    The charges requested and refused by the court on the subject of intemperance were correct propositions and charges, and should have been given as requested.' May on Ins. 328, 329, 330, 331, 332; Bunyan on Ins. *38, § 12, ch. 2 ; Bliss on Life Ins. 1 ed. pp. 166-168, §§ 124, 125 ; 2 ed. pp. 179-183, §§ 123, 124, and p. 428, § 252 ; Sieveking, Medical Adviser in Life Ins. 59, 96-101 ; Southcomb v. Merriman, 1 Car. & M. 286; Hutton v. Waterloo Life Ass. Co., 1 Fost. & F. 735 ; Mowry v. Home Life Ins. Co., 9 R. I. 346, 354; Horton v. Equitable Life Ass. Soc. of U. S., 2 Big. L. & A. R. 108; Conover v. Massachusetts Mut. Life Lns. Co., 3 Dillon, 217; Miller v. Mut. Ben. L. Ins. Co., 34 Iowa; 222; Mutual Benefit Life Ins. Co. v. Holterhoff, 2 Cin. Sup. Ct. R. 379.

      Hoadly, Johnson & Colston and R. W. Nelson, for defend- and in error, claimed that the charge of the court on the subject of intemperance was correct, and cited Insurance Co. v. Holterhoff, 4 Bigelow, 377; Fox v. Insurance Co., 4 Bigelow, 461; Van Valkenburg v. Ins. Co., 70 N. Y. 606; Mowry v. Ins. Co., 9 R. I. 355.
   Johnson, J.

The ninth request was, that if the jury found that the applicant was, before the date of his application, addicted to periodical spreeing or getting drunh, without the knowledge of the company or its agents, the policy would be void, even though there were periods of longer or shorter duration in which he was duly sober.

The eleventh was in substance the same, that, if “ he was in the habit of periodically getting cl/runh, even though there were times aud occasions of longer or shorter duration in which he was duly sober,” the policy was void.

Each of these requests was refused, and in lieu thereof the court charged that it was obvious that these questions are not, whether the insured was ever drunk, or whether he ever used intoxicating liquors; “ but whether he was ever intemperate; that is, whether at any period of his life his usual and daily habits were such as to constitute and render him what is known as an intemperate man, — a mam, habitually under the influence of intoxicating liquor I

An occasional excess in the use of intoxicating liquor does not, it is true, constitute a habit, or make a man intemperate, •within the meaning of this policy; but if the habit has been formed and is indulged in, of drinking to excess and becoming intoxicated, whether daily and continuously, or periodically, with sober intervals of greater or less length, the person addicted to such a habit cannot be said to be of temperate habits, within the meaning of this policy.

In view of the fact, that the evidence strongly tended to show that it was the habit of ‡-he insured to indulge to excess at frequent times, and did not tend to show a case of daily or continuous state of intoxication, this charge was clearly misleading. Erom it the jury might well understand, and in view of the whole evidence, we think, may reasonably have understood, that Charles Rief was of correct and temperate habits, although it was his habit to get drunk periodically and frequently, with sober intervals of longer or shorter duration.

The habit of using intoxicating liquors to excess is the result of indulging a natural or acquired appetite, by continued use, until it becomes a customary practice.

This habit may manifest itself in practice by daily or periodical intoxication or drunkenness.

Within the purview of these questions it must have existed at some previous time, or at the date of the application, but it is not essential to its existence that it should be continuously practiced, or that the insured should be daily and habitually under the influence of liquor.

Where the general habits of a man are either abstemious or temperate, an occasional indulgence to excess does not make him a man of intemperate habits. But if the habit is formed of drinking to excess, and the appetite for liquor is indulged to intoxication, either constantly or periodically, no one will claim that his habits are temperate, though he may be duly sober for longer or shorter periods in the intervals between the times of his debauches.

In Miller v. Mutual Benefit Ins. Co., 34 Iowa, 222, the insured was shown to be a man who indulged in a periodical habit of driuking to excess, and protracting these debauches until liis strength was exhausted. These excesses were not of long duration, and were followed by seasons of sobriety which would last for mouths. In one of these debauches, he died of delirium tremens. It was held he died from intemperance. Who would say that such a man wras of temperate habits? Such a habit of intemperance is quite as material to the risk, and equally as much within the terms of this policy, as the habit, of daily intoxication. Indeed, high medical authority is not wanting to show that periodical drunkenness, the result of an uncontrollable appetite, is generally much more excessive, and therefore more dangerous, than daily habitual intoxication.

But it is claimed that the latter part of this charge cures any error that may exist, caused by the use of the word “ daily,” in the first part. We think not. The concluding sentence: “If you find from the evidence that Charles Reif did so habitually use intoxicating drinks to excess, then the pla’ntiff cannot recover,” referred the jury back to the definition, wherein they are told that if his usual cmd daily habits were to be under the influence of liquor, he could not recover, and was not a modification, but a? reiteration of the error.

Judgment reversed and cause rema/ndedfor a new trial.


source: Caselaw Access Project

author: Johnson, J.

license: Public Domain

text:
    Teegarden v. Davis et al.
    The rule that a person through whose lands an improvement has been laid out and constructed, cannot, after it has been completed, have an injunction to restrain tbe collection of the tax or assessment to pay for the same, as laid dowm in 'Kellogg v. Ely, 15 Ohio St. <ii, is not applicable to a land-owner who had no actual notice that the improvement was being made, and w»as not guilty of any want of diligence in asserting his rights before the work was completed.
    Error to the District Court of Allen County.
    The object of the plaintiff’s petition in the court of common pleas was, to enjoin the collection, by the county treasurer, of an assessment against the plaintiff’s land, to defray his share of the cost and expenses of laying out and constructing a ditch through the same. This assessment had been properly certified and placed upon the tax duplicate.
    To this petition a demurrer was filed, on the ground that it did not state facts entitling the plaintiff to the injunction prayed for.
    The common pleas overruled this demurrer and enjoined the collection of the assessment.
    On error to the district court this judgment was reversed and the petition was dismissed.
    The plaintiff now seeks to reverse the judgment of the district court and to affirm that of the common pleas. The facts, so far as they bear upon the question of law raised by the demurrer, will be stated in the opinion.

      Cunningham c& Brotherton, for plaintiff in error:
    The law under which these proceedings were had is unconstitutional. Railroad Co. v. Smith, 25 Ohio St. 91.
    There was no waiver in this case. Lamb v. McKee, 4 Ohio St. 167.

      Maclcensie de Robb, for defendants in error:
    Conceding the statute of 1874, in which provision is made for a jury to assess damages and compensation for private property, to be unconstitutional, in this, that it does not give the party an opportunity to give evidence and be heard before a jury, has the plaintiff placed himself in a position to question its constitutionality?
    The record shows that no objection was made by the plaintiff to the location of the ditch in question, nor did he file with the township clerk any claim for damages and compensation. He therefore, we hold, waived any objection to the location and establishment of said ditch, and any right to compensation and damages thereby. In other words, he waived his constitutional right to the same. Reckner v. Warner, 22 Ohio St. 293; Kellog v. Ely, 4 Ohio St. 64; Baker v. Braman, 6 Hill, 48 ; People v. Murray, 5 Hill, 468; Embury v. Comer, 3 N. Y. 519; Cooley on Const. Lim. 163.
   Johnson, J.

The ditch in controversy was laid out and constructed under the act of April 8, 1874. 71 O. L. 124r-135.

The plaintiff having failed to construct that portion allotted to him, it was let out as the statute provides, and the cost of the work as well as his share of the expenses, was placed upon the tax duplicate to be collected as other taxes.

It is conceded that this statute is" unconstitutional, because the body of men provided for in the 16th and 17th sections of the act, to fix the compensation of owners of land, is not a constitutional jury. Smith v. A. & G. W. R. R. Co., 25 Ohio St. 91.

The law being unconstitutional, the question here is, does the petition state facts which entitle the plaintiff to an injunction?

It may be assumed that tlie provisions of this statute have been substantially complied with, and that the proceedings are in all respects regular.

It is admitted that unless the plaintiff in his petition states facts which constitute a waiver or estoppel, the demurrer is not well taken.

In support of the demurrer, the claim is, that the petition states facts, showing that the plaintiff has waived the right he may have had, by standing by and permitting the ditch to be located and constructed without objection, and therefore, that equity will not interfere by an injunction to restrain the collection of the cost of the ditch, with which he was properly chargeable, but will leave him to his legal remedy, if he have any.

This principle is recognized and followed in Kellogg v. Ely, 15 Ohio St. 64; Goodin v. C. & W. Canal Co., 18 Ohio St, 169; Richer v. Warner, 22 Ohio St. 275 ; Neff v. Bates, 25 Ohio St. 169; Quintan v. Myers, 29 Ohio St. 500.

This rule is predicated on the fact that the party has slept upon his rights, and has, by neglecting to assert them and by allowing the authorities to go on with the improvement on his land, and presumably for his benefit, placed himself in a position where it would be inequitable to allow him an injunction to restrain the collection of his share of the work.

It is essential to the application of this rule, that the owner should know that the improvement is being made, and have the moans of stopping it, or objecting to it, before the authorities have expended labor or money in its construction.

Without such knowledge, he cannot be charged with neglect or with standing by and permitting the improvement. Stephan v. Daniels, 27 Ohio St. 527.

This rule, that silence or acquiescence may amount to a waiver of the right to an injunction against the collection of the tax or assessment, does not apply -where the improvement is not on the land of the party sought to be assessed. In such case he may have the injunction after the work is completed, unless ho has requested it to be done or promised to pay for it. Wright v. Thomas, 26 Ohio St. 346.

111 the case at bar, the plaintiff was entitled to compensation for his land, and if the statute had provided a constitutional jury to assess the value, he might have waived his right by failing, after being notified, to file his claim therefor, but, as was said in Lamb v. McKee, 4 Ohio St. 167, “ a man cannot be said to have waived a thing which he cannot have, let him demand it ever so stoutly.” His demand would have been fruitless, for there was no law for such a jury as he was entitled to. To compel plaintiff to pay for an improvement made on his land, taken without authority of law, and without an opportunity of asserting his right to compensation, would not be in the interest of justice.

But if we examine the jietition it fails to show, or even to suggest, any fact tending to show a waiver, within the principle of the cases relied on.

It nowhere appears that he knew of the steps taken to construct this ditch, or that he stood by and permitted the work to be done for his benefit. If we look to the petition it is silent as to whether plaintiff had notice or not. If we look to the record and proceedings of the township trustees it also fails to show this important fact. That shows that a petition was filed July 27, 1874, by one Garner, for this ditch, through certain lands, the plaintiff’s included, and that he, on the same day, gave bond as required by the statute, and that the case was set for hearing August 11.

It further shows that a notice, such as the act requires should be given to land-owners, signed by Garner, and dated August 5, was addressed “ To--,” but whether, it was ever served upon Teegarden, or, if so, how, does not appear by affidavit of Garner or otherwise.

August 11, the trustees nipt at the time and place fixed. After this entry on their record: “ we find that legal notice has been given to all the parties,” they proceed to locate and establish the ditch.

Now, legal notice, under this statute may be actual, or constructive merely.

The notice may be given by the petitioner in one of three ways: 1st, by giving him a copy; 2d : if he is a non-resident of the county aud his residence is known it may be sent by mail; and, 3d, if his residence is not known, then by publication for two consecutive weeks in some newspaper of general circulation in the county. 'Whether Teegarden was ' a nonresident of the county does not appear; but it is assumed that he was, from the fact, that upon his failure to do the work allotted to-him a letter was sent to him, addressed to St. Paul, Pickaway county, Ohio, offering him further time, but whether that place was his residence, or whether he ever received this letter, does not appear.

In view of this state of facts we are of the opinion that it does not appear that plaintiff has stood by and permitted this work to be completed without objection.

So far as appears, either from the petition or from the record and proceedings of the township trustees, he had no knowledge of the laying out and construction of this ditch, until he found the amount assessed against him on the tax duplicate.

Judgment of the dist/riet court reversed a/nd of the common goleas affirmed.


author: Boynton, O. J.

text:
    Abbott v. Bosworth.
    1. Where the signing and sealing of a lease for ninety-nine years, renewable forever, are attested by hut one witness, the lessee acquires only an equitable title.
    3. To entitle a widow to dower in an equitable estate of her husband he must have owned said estate at the time of his decease. Rands v. Kendall, 15 Ohio, 671, followed.
    Error to the Superior Court of Cincinnati.
    This was an action by Mary Jane Abbott against Henry S. Bosworth, for dower in the south half of the premises below described.

      Tbe court found the following facts, and upon them gave judgment for the defendant.
    “1. On February 1, 1840, the trustees of Lane Seminary, by indenture of that date, and, recorded in book 104, page 480 of the records of said county, demised to Jonathan Ely, his heirs, executors, administrators, and assigns, a tract of ground fronting 167 34-100 feet on Elm street, by 406 6-10 feet on Locust street, for 99 years, from October 21, 1839, renewable forever on the same terms, for an annual rent of thirty-one dollars, which Ely for himself, his heirs, etc., covenanted to pay. Said lease was duly executed, and acknowledged, save that there was but one subscribing witness.
    “ 2. By an instrument in writing, without date, but acknowledged May 8, 1841, and attested by one witness only, and indorsed on the original lease, Jonathan Ely, in consideration of fifteen dollars, paid by Isaac C. Abbott, sold and conveyed to the said Abbott, his executors, administrators, and assigns, ‘the within lease and all and singular the within demised premises.’
    “ 3. On June 25, 1841, Isaac O. Abbott, in consideration of $1.25, demised all his claim, title, and interest to the south half of said laud to Leonard Ii. Nason, for the unexpired term of said lease and renewable forever, Nason covenanting in the instrument to pay to the trustees of Lane Seminary, sixteen dollars per annum rent, payable on the same days as the rents reserved in the original lease.
    “ The plaintiff, who was the wife of said Abbott, did not join in this instrument.”
    The trustees of said seminary at the date of the lease to Ely held the title in fee. The defendant now holds through sundry mesne assignments the interest acquired by Nason. Isaac C. Abbott died in 1876. Upon this state of facts the plaintiff claims that she is entitled to dower in said south half of said premises.

      O. D. Robertson, for plaintiff in error.

      Sage <& Hmlcle, for defendant in error.
   Boynton, O. J.

To entitle the plaintiff to dower in the premises demised by Isaac C. Abbott to Nason, it must appear that sncli estate was one of inheritance within the meaning of the act relating to dower, passed January 28, 1823 (1824). 29 Ohio L. 249. The first section of that act provided, that the widow of any person dying shall be endowed of one full and equal third paid of all lands, tenements and real estate of which her husband was seized, as an estate of inheritance, at any time during the coverture. And of one-third paid of all the right, title and interest, that her husband at the time of his decease had in any lands and tenements, held by bond, article, lease, or other evidence of claim.

By the act of March 5, 1839 (2 S. & 0. 1142), it is provided, “ that permanent leasehold estates, renewable forever, shall be subject to the same law of descent and distribution as estates in fee simple are or may be subject to.” If it be granted that the effect of this provision is to convert permanent leasehold estates into estates of inheritance, where the instrument creating the estate is properly executed and acknowledged, and that the widow of the lessee is consequently entitled to dower in the leasehold premises, there still is an insuperable objection to the plaintiff’s right of dower in the estate or interest assigned to her husband by Jonathan Ely.

The lease to Ely from the trustees of the seminary had but one witness, and his lease to Abbott had but one. Consequently neither of them acquired any legal title to the premises demised. The first section of the act to provide for the proof, acknowledgment and recording of deeds and other instruments of writing (1 S. & 0. 458) requires the signing and sealing of all instruments in writing by which any land, tenement or hereditament shall be conveyed, or otherwise affected or incumbered in law, to be acknowledged by the grantor or maker in the presence of two witnesses, who must attest such signing and sealing, and subscribe their names to such attestation. By the ninth section of said act, a lease of school or ministerial lands for a term not exceeding ten years, and of any other lands for a term not exceeding three years, is excepted from this requirement.

The lease in the present case does not fall within the class not required to be acknowledged. It was a lease for ninety-nine years, renewable forever, and to create thereby a legal estate or seizin, its execution attested by two witnesses, was an indispensable formality. Hence, the estate acquired by Ely, and the only one he could part with, was wholly equitable; and had he possessed a legal estate instead of an equitable one, Abbott could have acquired but an equitable interest under a lease attested by but one witness. To entitle a widow to dower in an estate of which her husband had an equitable title only, he must have owned such equitable estate at the time of his decease. Rands v. Kendall, 15 Ohio, 671.

Judgment affirmed.


text:
    The Farmers’ Insurance Company v. Archer.
    The condition of a policy of insurance upon a dwellingliouse was, that it would he void if there was any sale, transfer or change of title, without the consent of the insurer. The insured, without such consent, sold, and, hy deed of general warranty, conveyed the'land on which the property insured was situated, and, in part consideration therefor, took from the purchaser a bond, acknowledged under the deeds act, covenanting to permit the insured to use and occupy the dwelling-house as his own during his natural life. Held, that this avoided the policy.
    Error to the District Court of Noble County.
    The plaintiff in error issued to Simon Archer a policy of insurance for five years, from July 19th, 1871, for $700; $500 of which was on his dwelling-house, and $200 on furniture and clothing, of which the insured was the owner.
    The action below was to recover $500 for a total loss of the dwelling-house, by fire, on the 24th of August, 1874.
    Several defenses were pleaded, but one only will be stated, as it presents the legal point considered by the court.
    It was a condition of the policy that it should be void “if the property be sold or transferred, or any change takes place in the title by legal process. or otherwise.” The defense pleaded was, that on the 22d of December, 1873, the insured sold and conveyed by deed, with covenants of general warranty, the farm on which the insured property was situated, to one Michael Archer, who continued to own the same at the time of the loss.
    It appears from a copy of this deed that the conveyance was in fee, without any reservation, and it is averred that this transfer was without the knowledge or consent of the company.
    The reply admits the sale and the execution of this conveyance, but alleges that it was in trust; but as part of said transaction, and as part consideration therefor, said Michael Archer, by his deed dated January 27, 1874, conveyed to the insured said dwelling-house, for his exclusive use and occupancy, for the term of his natural life, and therefore he was the owner of the building at the time of the fire.
    This instrument of January 27, 1874, denominated in the reply as a conveyance to plaintiff of the dwelling-house, is set out in the bill of exceptions.
    It is in form a bond, executed by Abraham Archer, Patrick Archer and Michael Archer, to Simon Archer, in the penal sum of $6,000. The obligors recite, that in consideration of deeds with covenants of general warranty, to them executed by Simon Archer, whereby he has conveyed to them all his lands and tenements in Noble county, and has set over to them all his personal property absolutely and equally to them, they obligate themselves to pay all his debts; also to pay to sundry named persons specified amounts. This obligation then stipulates that they, the said Abraham, Patrick and Michael, will “ permit him, the said Simon, the sole use and occupancy of his present mansion house and household goods as long as he shall live, as completely and fully as if it was his own;” that they give and secure to him as good a living off said lands as if they were his own; permit his daughters to remain with him; give him one-fifth of the products of said lands, which is made a perpetual charge on the whole of said lands, during his natural life ; furnish him with all necessary fuel and the use of a good riding horse during the same period.

      This bond was acknowledged before a justice of the peace, the same as a deed or lease.
    A demurrer to this reply was overruled, and on the trial the court refused to charge the jury that the facts above stated amounted to a change of title, but did charge, that if the deed to Michael of the land on which the dwelling-house was situate, and the above recited bond were parts of the same transaction, the insured was still the owner of the house, within the terms of the policy, and that the transaction did not amount to such a change of title as to avoid the policy.
    A verdict and judgment were rendered on the policy for the loss of the dwelling-house.
    This judgment was affirmed by the district court.

      Chritchfield & Graham, for plaintiff in error :
    I. It was stipulated that if the property should be sold, transferred, or any change made in the title, the policy should become void. To hold that the defendant’s breach of these conditions, consequent to his deed to Michael Archer, was obviated by the bond, is to destroy the agreement of the parties and render the language of the policy meaningless. Savage v. Howard Ins. Co., 52 N. Y. 502; Foot v. Hartford Ins. Co., 119 Mass. 259 ; Wood on Insurance, § 325, p. 551; Western Mass. Ins. Co. v. Ricker, 10 Mich. 279; Home Ins. Co. v. Hauslein, 60 Ill. 521; Grevemeyer v. Southern Ins. Co., 62 Penn. St. 340; McIntire v. Norwich Fire Ins. Co., 102 Mass. 230 ; Abbott v. Hambden Ins. Co., 30 Me. 414; Perry v. Lorillard Ins. Co., 6 Lans. 201; Young v. Engle Ins. Co., 14 Gray (Mass.) 150 ; Adams v. Rockingham Ins. Co., 29 Mo. 292; Barnes v. Union Ins. Co., 51 Me. 110; Hazard v. Franklin Ins. Co., 7 R. I. 427; Reynolds v. Mutual F. Ins. Co., 34 Md. 280; McEwan v. Frase, 1 Mich. (N. P.) 118; Dadmun Manuf'g. Co. v. Worcester Ins. Co., 11 Met. 429 ; Bilson v. Manuf’g Ins. Co., 7 Am. Law Reg. 661; Buchanan v. Westchester Ins. Co., 61 N. Y. 661; Burger v. Farmers’ Ins. Co., 71 Penn. St. 422; Hoxie v. Providence Ins. Co., 6 R. I. 567; Mt. Vernon Man’f’g Co. v. Summit Co. Ins. Co., 10 O. S. 347.
    II. The application was made a part of the policy. Byers v.
      Farmers Ins. Co., recently decided by this court; and see cases there cited.

      B. F. Spriggs, for defendant in error.
   Johnson, J.

Did the courts below err in holding that the condition of the policy against alienation was not broken by the deed of the insured to Michael Archer of the land on which the dwelling-house insured was situate ?

We presume from the nature of the transaction that it was a family settlement. Simon Archer, the insured, had several tracts of land in Noble county.

By several deeds of general warranty he sold and conveyed all these lands, in distinct parcels, to Abraham, Patrick and Michael Archer, and at the same time sold and set over to them, in equal shares, all his personal property; in consideration of which, they bound themselves, under a penalty of $6,000, to pay all his debts, pay certain females bearing his name specified amounts, sell certain of the lands so conveyed to pay his debts, permit him the sole use, as his own, of the insured dwelling-house on the lands conveyed to Michael, as long as he shall live, give and secure to him a good living off all the lands so conveyed, permit his daughters to live with him, and give him one-fifth of the products of all lands so conveyed, which were made a charge thereon, during his natural life. These and other stipulations for the support and comfort of the grantor, they, the said Abraham, Patrick and Michael, jointly and severally bind themselves to perform, and this instrument is acknowledged before a justice.

We assume that this deed in fee to Michael Archer for the land, including the dwelling-house, and the covenants of the bond, by which a home and a support was provided for the grantor during his life, were equivalent to a reservation by the insured, in his conveyance to Michael, of a life estate in the dwelling house, and that the transaction as a whole vested in him at least a qualified life estate in the property insured. This being so, it is clear that the plaintiff below had at the time of the fire an insurable interest in the building and sustained a loss by its destruction. It is also clear, that as the owner of a life estate in the dwelling, the value of such insurable interest is changed by this transaction. As owner in fee, his interest in the property insured equaled its value. As owner of an estate for life in this dwelling, its value depended, treating it as an unqualified life estate, on his age and his expectation of life. This again depended on his health, and all the contingencies to which life is subject. Treating it, however, as in fact it was, a qualified life estate, personal to himself, a permit for him to use and occupy while he chose to make that his home, it was still less valuable.

It was his so long as he chose to use and occupy. The estate was limited to his use and enjoyment as ahorne, but if he chose from any cause to leave it, the right was of no value to others.

The insurable interest of the defendant in error was the value of the use to him. Whether this value was greater or less than the amount of the policy does not appear. Even if it be valued as life estates usually are it might, be much less. That would depend on the value of the fee in the dwelling, and his expectation of life. So far as we learn from the record the property as a whole was insured to its full value as in fee.

In no event could his loss exceed the value of his life interest, which, if he is very old, would be much less than the whole. In case of a man sixty-five years of age, the value of this life right, at six per cent, would, according to the usual tables, be worth 45 per cent, of the whole value of the property. American Almanac, 1856, p. 228.

In case his right be regarded as personal to himself and not alienable, its value would be still less.

From the facts stated it is apparent there was a material change in the value of the insurable interest by this sale and reconveyance.

The condition of the policy is, that if any sale, transfer or change of title takes place, it becomes void.' The object of this clause is, not to prevent a recovery where the insured has parted with his insurable interest, for in that case there could be no recovery if such a condition were omitted, because there could be no loss; __ but it is to prevent any sale, transfer or change of title, even where an insurable'interest remained, that would change the relations of the insured to the property. The object is to prevent any change in the title that may increase the risk by increasing the temptation or motive to burn the property, or to take less interest in guarding and preserving it from destruction by fire. Any change or transfer of title which carries with it a change of the interest in the property, of a nature calculated to have this effect, is a violation of the condition.

Whether a nominal change of title,without a change of insurable interest, would avoid the policy, we do not consider or determine.

We hold, therefore, that Simon Archer, by his deed in fee simple to Michael Archer, and by taking back to himself a life right to use and occupy the dwelling-house insured, not only changed his title but his insurable interest therein, and that thereby he avoided the policy. Ayers v. Hartford Ins. Co., 17 Iowa, 176; Springfield Ins. Co. v. Brown, 1 Ins. Law Journal, 57; Savage v. Howard Ins. Co., 52 N. Y. 502; Orrel v. Hampton Ins. Co., 13 Gray, 431; Springfield Ins. Co. v. Allen, 43 N. Y. 389 ; Abbott v. Hampden Ins. Co., 30 Maine, 414; Home Mutual Ins. Co. v. Hauslein, 60 Ill. 521; Hoxie v. Prov. Mut. Ins. Co., 6 R. I. 517; Bilson v. Man's Ins. Co., 7 Am. Law Reg. 661; Perry v. Lorillard Fire Ins. Co., 61 N. Y. 214; McIntire v. Norwich Fire Ins. Co., 102 Mass. 230.

Care should be taken to distinguish between cases where the condition is to prevent a sale, transfer or change of title, and those where the condition is construed to prevent a change in the insurable interest.

Tims, in Hitchcock v. N. W. Ins. Co., 26 N. Y. 68, the condition was against a transfer or termination of the interest of the assured, and it was held that a deed in fee with a mortgage back for the purchase-money did not work such a change as to defeat the policy. The distinction between this class of cases, depending as it does on the terms used to restrict alienation, is pointed out, and the cases carefully distinguished in Savage v. Howard Ins. Co., 52 N. Y. 502, where it was hold that a sale and a mortgage back for the purchase-money avoided a policy in which the condition was agtiinst “any sale, transfer or change in the title or possession.”

The conclusion reached upon the facts of this case is by no means a variance with the decision of Byers v. Insurance Co., 35 Ohio St. 606, where it was held, tinder a clause in the same' words as in this case, that this condition was not broken by the execution of a mortgage on the insured property. It was there said that the execution oí a mortgage was, in no proper interpretation of words, a sale, transfer or change of title. In this case we hold that a deed in fee simple, with a reconveyance back of a life use of the property, is a change of title, the effect of which is to materially change and diminish the insurable interest of the grantor.

Judgment reversed and cause remanded.


author: Okey, J.

text:
    Kerr v. The State.
    1. The act of 1877 (74 Ohio L. 239, § 9 ; Bev. Stats. § 7079), making it punishable to convey land without title, applies as well to instruments purporting to convey lands situated beyond our territorial limits as to those purporting to convey lands situated within this state.
    2. The provisions of that section are not repugnant upon the ground that by their terms it is made an offense to eonwy land,where the party conveying has no title. To execute lo another an instrument in the form of a conveyance of land, with intent to defraud, is the crime inhibited in the section.
    8. In an indictment under that section, for conveying land, it is not essential that a copy of the deed be set forth ; nor is it necessary, where the instrument purports to convey land situated in another state, to aver in the indictment, in terms, that (he deed was in the form of a proper conveyance of land under the laws of such state. It is sufficient if it be averred in the indictment that the conveyance was by deed of general warranty.
    4. Where, in an indictment under that section, it is charged that the accused sold and conveyed the land, such indictment is not subject to the objection that two offenses arc charged therein.
    5. An objection that it does not appear in the record that the indictment found by the grand jury was ‘ ‘ presented by the foreman to the court, ” in accordance with the revised statutes, § 7210, is waived hy the plea of not guilty, where there was no motion to quash. Rev. Stats. §§ 7249, 7253.
    6. Where the record shows that the jury for the trial of a criminal case was duly sworn to do the only thing required of its members by the statute (Rev. Stats. § 7281), that is, to well and truly try and true deliverance make between the state and the accused, the fact that the record does not contain the invocation, “so help you God,” which is provided for at the conclusion of such oath, affords no ground of reversal.
    7. A bill of exceptions in a criminal case taken under Revised Statutes, §.§ 5302, 7304, cannot bo regarded as a part of the record, unless it appears from the journal of the term at which the cause was tried and terminated, that such bill was signed during that term or within thirty days , thereafter.
    Error to the Court of Common Pleas of Miami County.
    At the October term of said court, 1880, J. Manford Kerr, charged in an indictment with selling and conveying land without title, was convicted and sentenced to the penitentiary; and, on his application, leave has been granted to file in this court a petition in error to reverse the judgment.

      C. H. Blachburn, for plaintiff in error:
    1. The record does not show that the indictment was ever presented to the court, or any judge thereof, by a grand jury. This is contrary to the provisions of section 1210 of the revised statutes,'and was error. Mackey v. State, 3 Ohio St. 62: Wharton’s Crim. Plea. & Prac. 372; State v. Brown, 81 N. C. 516 ; Hancock v. State, 42 Ind. 393; Sattler v. People, 59 Ill. 68; Crookham v. State, 5 W. Va. 510; Fitzcox v. State, 53 Miss. 585 ; Terrell v. State, 41 Texas, 463; Rasberry v. State, 1 Texas Ap. 664; Coen v. Cawood, 2 Va. Cas. 529; State v. Glover, 3 Iowa (Greene), 249; State v. Davidson, 2 Cold. (Tenn.) 184; State v. Cox, 6 Ired. 440; Rainey v. People, 3 Gilm. 71; Chappell v. State, 8 Yerg. 166; Brown v. State, 7 Humph. 155.
    2. The record does not show that the jury were sworn or affirmed according to law. Palmer v. State, 41 Ala. 416; Abram v. State, 25 Miss. 589; State v. Connor, 5 Blackf. (Ind.) 325 ; Connor v. State, 19 Ind. 98; Springer v. State, 19 Ind. 180; Springer v. State, 18 Ind. 428; State v. Wareham, 25 Ohio St. 601; Bartlett v. State, 28 Ohio St. 669; Patterson's Case, 2 English, 59; State v. Rollins, 2 Foster (N. H.) 528.
    3. Do the provisions of section 7092, 2 Rev. Stats, apply to lands out of the state of Ohio ? If so, do they apply to lands iñ the state of Missouri, where the conveyance is made and executed in Ohio, and not in the manner required by the lawu of said state uf Missouri ? To both questions we say no. See Foster v. State, 19 Ohio St. 415.
    The legislature never contemplated, nor does this act of legislation contemplate, lands, other than those situate in the state of Ohio.
    1. Because they had no power to legislate concerning lands in another state.
    2. Because they were evidently desirous of protecting our own land-holders against assaults of this kind. These views are fortified by the consideration, that it is but fair to conclude that our legislators framed and passed this and other acts in the light of recognized authority. That authority admonished them, that .crime could only be punished where consummated. That it could only be consummated at the place or situs of the object of the crime. 1 Whart. Cr. L. (8 ed.) 288; Ham v. State, 4 Tex. App. 670; Foster’s Crown Law, 349; 1 Chit. Crim. Law, 191; Whart. Crim. Law, 115 ; 4 East, 164; 8 Am. Jur. 69; 6 East, 583 ; 7 S. & R. 477; 1 Bish. Cr. Pro. (2 ed.) § 553; 1 Bish. Crim. Law, §§ 109, 110, 112, 556.
    4. The court below had no jurisdiction of the pretended crime charged. I claim that the facts alleged constitute no offense against any law of which the court below had jurisdiction. The place of reception, or the situs of the object of the crime, has jurisdiction, and no other place has. This view is strengthened by the accepted doctrine that an act designed in one state, and consummated in another, exposes the perpetrator to an action of damages only, where the act is unlawful in the place of execution. 1 Whart. Cr. L. (8 ed.) 288, § 288 ; Rex v. Jones, 1 Denio, C. C. 551; T. & M. 270; State v. Chappin, 17 Ark. 565 ; Ham v. State, 4 Tex. App. 670; Commonwealth v. Smith, 11 Allen, 244; People v. Adams, 3 Denio, 190; People v. Griffin, 2 Barb. 427; United States v. Davis, 2 Sumn. 482; People v. Rathburn, 21 Wend. 500.
    Under this point, I also desire to submit, the act of the general assembly, upon which the accusation is predicated, is void.
    1. Because it is unconstitutional.
    2. Because it is repugnant.
    3. Because it is uncertain.
    4. Because it is vague.
    5. Because it is indefinite.
    6. It is an attempt to give the laws of Ohio extra-territorial effect.
    5. ££ The pretended indictment, and the allegations therein, are not sufficient to charge any offense against any law of Ohio.
    This point may, in all respects save one, be considered in connection with the argument and authorities cited in support of the third proposition. In addition, however, I claim that if the court should find that the law applies to the ££ sale or conveyance ” of lands lying in another State, the indictment is fatally defective, and the judgment must be reversed.'
    1. Because no copy of the deed or other instrument of conveyance is set forth in the pretended indictment. Manor’s Criminal Law, 307; Ham v. State, 4 Tex. App. 670; Wharton Plea. & Prac. (8 ed.) 167; Bonnell v. State, 64 Ind. 498; 2 East, 238; 2 E. P. C. 976; 1 Leach, 77; 1 Leach, 145 ; 1 Mass. 54, 62; 1 Cush. 46, 66; 3 Halst. 333 ; 2 South. 749; 7 S. & R. 469 ; 10 S. & R. 173; Wright, 173; 2. Hawks, 248; 65 Ind. 86; 7 Hump. 63; 2 McCord, 248.
    2. Because there is not even such a description of such deed that it could be identified and considered. Dord v. People, 9 Barb. 671; People v. Galloway, 17 Wend. 540; People v. Williams, 4 Hill, 9.
    3. Because it is not alleged in the indictment that the prosecutor owned or had any interest in the lands in question. Dord v. People, 9 Barb. 671.
    The rule of pleading in this ease is, I submit, the same as in forgery, lottery, libel, sending threatening letters, &c., in all of wbicli tlie paper, whatever it is, must be set forth. Lamberton v. State, 11 Ohio, 282, is a very important authority on the subject, and one that I think reflects great light thereon.

      Craighead c& Craighead, for defendant in error :
    To the claim that the-record does not show that the indictment upon which Kerr was tried and convicted was ever found or returned into court by a grand jury, we say that the record clearly shows that there was a grand jury, and that grand jury found and returned the indictment set out in the record, ana upon it the plaintiff in error was tried by a jury; and as to the other objections suggested in' this connection, we say, that the way to have reached such objections was by challenge. Huling v. State, 17 Ohio St. 583.
    If there are formal defects apparent upon the face of this record — in the indictment or elsewhere — the way to have reached them was by motion to quash. Rev. Stats. § 7249; Carper v. State, 27 Ohio St. 574; Baatertlet v. St, 28 Ohio St. 669.
    The defendant below having pleaded the general issue, without having interposed any challenge as to any of said grand jurors, or any motion to quash the indictment, or any plea in abatement thereto, he must be held to have waived all such defects 'and irregularities as could have been reached in either of said ways. None of such questions can be presented for the first time on error. Rev. Stats. § 7253; Davis v. State, 32 Ohio St. 24; Picket v. State, 22 Ohio St. 405 ; State v. Easter, 30 Ohio St. 549 ; Carper v. State, supra ; Bartlet v. State, supra.

    The record may not be as full and distinct as it should be in showing that the petit jury was sworn according to law; but we sirbmit, in view of the holdings of this court, that it is sufficient. Wareham v. State, 25 Ohio St. 601; Bartlet v. State, 28 Ohio St. 669.
    II. There is no bill of exceptions that can be considered here. It is true there is a paper attached to the transcript, having the form and similitude of a bill of exceptions; but it is shown by the record that said paper was not signed or sealed by the judge until some time after the term at which said cause was hied and disposed of. The record shoyvs that said cause was tried at the October term of said court for 1880 ;'tliat said term ended January 3, 1881; and that said paper purporting to be a bill of exceptions was not signed or sealed by the judge, or filed by the clerk, until the 17 th day of January, 1881.There was no consent that it might be filed within thirty days or at any time after the close of the term; nor was the allowance and signing thereof entered upon the journal as of said October term; nor was said journal kept open for that purpose; and, therefore, as we claim, it cannot in law be regarded as a bill of exceptions. Rev. Stats. § 5302; Hill v. Bassett, 27 Ohio St. 597. This, we submit, disposes not only of said paper, but also of objection 3, for without a bill of exceptions the matters to which they refer are not to be found in the record. Goodin v. State, 16 Ohio St. 344.
    III. The indictment meets all the requirements of the statute defining the offense charged. It cannot be necessary that an exact copy of the fraudulent deed should be set out in the indictment. Under section 7220 of the revised statutes it ■would have been sufficient to have charged merely that the conveyance by Kerr to Overton was by “ deed o£ general war-l'anty.” In case of another prosecution for the same offense, there will be no trouble in showing exactly what Kerr has been prosecuted for under this indictment — for that may be shown outside of the record. Rev. Stat. § 7258; 30 Ohio St. 264; 19 Ohio, 423. Nor is it essential that this deed should have been so exactly in accord with either the laws of Ohio or of Missouri as to have conveyed a perfect title to Overton, if Kerr had really owned the land when he pretended to convey it. It was sufficient if it was an instrument that so resembled a deed as to be likely to impose on persons of ordinary intelligence. Hess v. State, 5 Ohio, 14; 1 Whart. Cr. L. (8 ed.) § 695 ; 8 Ohio St. 630, After verdict and judgment below,, this court, on error, will not say it was not such an instrument. On the contrary, it will presume that the jury found the fraudulent conveyance to have been made as charged in the indictment — by “ deed of general warranty.” The rule which formerly required, in cases of forgery, &c., that a literal copy of the instrument should be set out in the indictment no longer exists in Ohio. Rev. Stat. §§ 7218,7219. It never had any application to a case of this kind. It only applied where — as in forgery — “ the words of a document were essential ingredients of the offense charged.” Wharton’s Pl. & Pr. (8 ed.).§ 171. In such cases it required the instrument to be set out in words and figures, so that the court could see whether it was, in law, the subject of forgery. But there is nothing of that kind in this case.
    Is the offense charged in said indictment an offense against the laws of Ohio ? The. indictment show's that the land, which is charged to have been sold and conveyed in the county of Miami and state of Ohio, is situate in Butler county, in the state of Missouri.
    Section 7079 of our revised statutes, defining this offense, reads as follows: “ "Whoever knowingly sells or conveys any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written contract or deed of conveyance, with intent to defraud, shall be imprisoned in the penitentiary not more than seven years nor less than one year.”
    Now, if it had been the purpose of the legislature, in enacting this section, to have limited prosecutions under it to lands situate within this state, it would probably have said so. But it has not said so ; nor do we believe it was the purpose of the legislature that such prosecutions should be so limited. There is no reason why they should be. The fraudulent sale and conveyance having been made in Miami count}7, Ohio, it makes .no difference, so far as the criminality of the transaction is concerned, where the land is. The crime is complete in the county of this state in which a person so sells and conveys land, without reference to whether the land is located in this state or not. There are no doubtful jurisdictional questions here. This is not a oontimoing offense — commencing in Ohio and ending in Missouri; nor is it an offense, in its entirety, against the laws of the latter state, so far as we are advised. If it were, it would make no difference, because, the defendant below being first prosecuted in Ohio, our jurisdiction becomes complete and exclusive. Whart. Cr. L. (8 ed.) § 293; Exp. Bushnell, 8 Ohio St. 599.

      George K. Nash, attorney-general, and M. B. Earnhea/ri, also for defendant in error.
   Okey, J.

A large number of alleged errors are- relied on as grounds of reversal; but, as I will presently explain, many of them are not before us on the record. This opinion will be coniined to the consideration of the supposed errors which the record presents.

The indictment charges that Kerr, on January 21,1879, in the county of Miami, with intent to defraud William Overton, knowingly sold and conveyed to him, by deed of general warranty of that date, certain lands (described in the indictment) situated in Butler county, state of Missouri, he, said Kerr, not having title to said lands, in law or equity, by descent, devise, deed of conveyance or written contract.

The indictment was found under the act of 1877 (74 Ohio L. 289, § 9; Rev. Stats. § 7079), which provides: “Whoever knowingly sells or conveys'any land, or any interest therein, without having title to the same, either in law or equity, by descent, devise, written contract, or deed of conveyance, with intent to defraud, shall be imprisoned in the penitentiary not more than seven years nor less than one year.”

The same provision, in nearly the same words (2 Ohase, 1203, § 29,1333, § 31; Ohase, 1728, § 32; 1 Curwen, 194, § 33), has been in force for more than half a century, but no case has arisen in this court which called for its construction. It is insisted on behalf of the plaintiff in error:

J. That the statutory provision does not, and constitutionally cannot, extend to the sale or conveyance of lands which lie beyond the territorial limits of this state. Upon grounds of public policy, it may not be competent for the legislature of this state to provide that acts committed wholly in another state, with respect to property situated therein, shall be punishable in this state; but nothing of the sort is contemplated by the statutory provision under consideration, which provides for the punishment of frauds committed within this state. The place where the land may be situated is wholly immaterial. This case is within the letter as well as the reason and spirit of the enactment.

2. Moreover, it is said that the statute is repugnant and void, in that it punishes one who conveys land which he did not own. But the crime inhibited is giving to an instrument the form of a conveyance of land, with intent to defraud. The objection is clearly untenable. ,

3. The indictment, it is said, is insufficient, because the deed is not set forth therein. Counsel insist that the court should be enabled to say, looking to the face of the indictment, whether the deed would have been of any legal force or effect if Kerr had been the owner of the land. We do not find it necessary to determine whether it is essential, in order to constitute the crime inhibited, that the deed should be in such form as to convey the land in case the grantor had been the owner. Of course, the form of the conveyance must be determined from the law of Missouri, but what the law of Missouri may be is a question of fact. Ingraham v. Hart, 11 Ohio, 255 ; Smith v. Bartram, 11 Ohio St. 690; Niagara Co. Bank v. Baker, 15 Ohio St. 68. Even if the deed had been set forth at large in the indictment, the court would have been unable to legally determine whether it was in compliance with the law of Missouri. An averment that the deed was in proper form under the laws of that state would still have been necessary. We are satisfied that neither of these things is required in an indictment under the provisions of our statute relating to criminal procedure; and that, if it is necessary in order to constitute the offense here charged, that the deed should be in the form of. a proper conveyance under the laws of Missouri, the matter is one of proof and not averment. Whart. Cr. Pl. &Pr. §§114, 182, 183.

4. Furthermore, it is urged that two offenses are charged in the indictment, that is, a sale and a conveyance. But a conveyance under this statute includes a sale, and hence the indictment is unobjectionable in form. In holding this objection to be untenable, we are supported by the principle of vrell considered cases. Thus, in Mackey v. State, 3 Ohio St. 362, it was held that an 'indictment under the act of 1835, charging that the accused uttered a “false, forged, and counterfeited bank note,” was not bad for repugnancy. And see Stoughton v. State, 2 Ohio St. 562; Bailey v. State, 4 Ohio St. 440.

5. Objection is also made, that the indictment found by the grand jury was not “ presented by the foreman to the court,” as required by Rev. Stats. § 721 Ó. But there was no motion to quash. “ A motion to quash may be made in all cases when there is a defect apparent upon the face of the record” (Rev. Stats. § 7249), and the accused, by pleading not guilty, without filing such motion, waives all defects that might have been reached by such motion. Rev. Stats. § 7253.

6. Further objection is made that the jury impaneled for the trial of the cause was not properly sworn. The record shows that a jury came (the names being set forth), “who were duly sworn well and truly to try and true deliverance make between the state of Ohio and the defendant at the bar, J. Manford Kerr.” The statute provides: “ When all challenges have been made, the following -oath shall be administered: ‘You shall well and truly try and true deliverance make between the state of Ohio and the prisoner at the bar (giving his name): so help you God.’ ” Rev. Stats. § 7281.

Johnson v. State, 47 Ala. 62, is cited as an authority in support of the objection to this oath. Ye deem it unnecessary to enter into an examination of the difference in the statutory provisions regulating practice in criminal cases in that state and this state. This record shows that the jury was sworn to do the only thing required of its members by the statute, that is, to well and truly try and true deliverance make between the state and the accused. The supposed defect is the omission from the record of the invocation, “ so help you God.” But, under the practice in this state, the omission of those words from the record is not a substantial defect for which we would be warranted in reversing the judgment; certainly we should not do so where it is stated, as it is in this record, that the jury was “duly sworn.”

7. Divers errors, it is said, are shown by a bill of exceptions. The record contains a paper called a bill of exceptions, but we are not at liberty to consider it. The cause was tried, verdict rendered, motion for a new trial overruled, and sentence pronounced at the October term, 1880. In fact, the case was finally terminated at that term; but there was no entry made during, or as of that term, showing the signing of any bill of exceptions. The only entry of signing a bill of exceptions, was made in the minutes of the $anuary term, 1881. The statute (Rev. Stats. § 7304), provides for bills of exception in criminal cases, and that “ the taking of all bills of exception shall be governed by the rules established in civil cases.” In civil cases, the bill may be allowed and signed, during the term, or, where the party taking the exception consents, such bill may be allowed and signed at any time within thirty days after the term; but where the bill is signed after the term, “ the journal must be kept open, and the allowance and signing thereof entered thereon as of the term.” Rev. Stats. § 5 302. In this case it is true that the bill was signed, and entered on the journal of the court within thirty days after the expiration of the October term, but, as already stated, it was not entered in the minutes of, or as of that term; and, according to the principle of cases decided by this court, we are not permitted to disregard such omission. Unless the statute is complied with, a bill of exceptions cannot legally be regarded as part of the record. See cases cited in 2 Rev. Stats. 1290.

We find no error in the record which will warrant a reversal of the judgment.

Judgment affirmed.


text:
    Miller v. Oehler.
    The act of May 14, 1878 (75 O. L. 213, ch. 5, § 1, Revised Statutes, § 1744), confers on the mayor of an incorporated village jurisdiction in bastardy proceedings concurrent with that of a justice of the peace.
    Error to the District Court of Hamilton county.

      D. Thew Wright, for plaintiff in error:

      The mayor had jurisdiction. 75 Ohio L. 212, 228; and see 2 S. & 0.1510, § 51; 66 Ohio L. 169 ; State v. Ricker, 32 N. II. 179, 184; Maine Stats, of 1871, p. 738, ch. 97; Id. 663, ch. 83, § 30; 64 Me. 471; 66 Me. 270.
    Bastardy proceeding is a proceeding undei; the code. 75 Ohio L. 740, ch. 4, div. 7. It is no more a special proceeding than any of the proceedings of that division.

      G. 11. Blackburn, for defendant in error:
    The act in force when this action was commenced, and which controls the case, is found in 75 Ohio L. 740. It is a special act, as the bastardy act ever has been in this state. Section 1 of the act, among other things, provides that such action must be commenced before a justice ofthepeace. Hence the mayor was not authorized to entertain proceedings in bastardy, and therefore the complaint filed before him was void, and all proceedings had before him, predicated on such complaint, were likewise void. Edmiston v. Edmiston, 2 Ohio, 251; Ludlow’s heirs v. Johnson, 3 Ohio, 553, 561; Adams v. Jeffries, 12 Ohio, 253, 272; Severn v. State, 6 Ohio St. 288 ; Grieve v. Freytag, 31 Ohio St. 149; Hulse v. State, 35 Ohio St. 421.
   Boynton, O. J.

Proceedings in bastardy were commenced before the mayor of the incorporated village of Riverside by the plaintiff in error, Katie Miller, against the defendant, W illiam Oehler, on the 14th day of January, 1879. The mayor recognized the defendant to appeal1 at the next term of the court of common pleas of Hamilton county, to answer the accusation and abide the order of the court. The prosecution in the court of common pleas resulted in a judgment that the defendant was the reputed father of the bastard child, and that he stand charged with its maintenance in the sum- of $600, to be paid upon the entry of the judgment. The defendant in error carried the proceedings to the district court, where the judgment of the court of common pleas was reversed, upon the ground that the mayor of the incorporated village of Riverside had no jurisdiction or power to entertain the complaint. This judgment of reversal it is here sought to reverse. AVe are of the opinion that the district court erred in reversing the judgment of the court of common pleas. If the question of jurisdiction depended alone on the provisions of the bastardy act, there •would be no doubt that a justice of the peace would have exclusive jurisdiction over the preliminary examination. But the act defining the powers and prescribing the duties of a mayor of a city or village declares that, within the limits of the corporation, he shall have all the jurisdiction and powers of a justice of the peace in all civil cases (75 Ohio L. 212), and concurrent jurisdiction with justices of the peace in criminal proceedings throughout the county. 75 Ohio L. 227-8. "Were this an original provision .there would be much doubt whether the legislature intended to embrace proceedings in bastardy, or any special proceedings, within the term “civil eases.” But when we trace the legislation on the subject this doubt is removed. Section 51 of the act of May 3, 1852, to provide for the organization of cities and incorporated villages (2 S. es 0. 1493), provided that the mayor should have, within the limits of the corporation, “ all the power and jurisdiction of a justice of the peace in all matters, civil and criminal, arising under the laws of this state, to all intents and purposes whatever.” Section 114 of the municipal code, enacted in 1869, preserving the substance and legal effect of this provision, provided, that within the limits of the corporation the mayor should have all the jurisdiction and powers of a justice of the peace, in all matters, civil and criminal, arising under the laws of this state, and for crimes and offenses his jurisdiction should be eo-extensive with the county. 66 Ohio L. 169. In the revision of 1878 (75 Ohio L. 212, 228), the subject matter of this provision was divided into two sections; the first conferring upon the mayor, within the limits of the corporation, all the jurisdiction and powers possessed by a justice of the peace in “civil cases,” and the other, jurisdiction in felonies, and other criminal proceedings not specially provided for by the act, to be exercised throughout the county, concurrently with that of a justice of the peace. It is very obvious that by the act of 1852, and by section 114 of the municipal code, while they were respectively in force, the jurisdiction of the mayor embraced the power to entertain proceedings in bastardy, as fully as to entertain any other proceedings of a civil nature. And we think it was not the purpose of the legislature by the change of language found in the present act to withdraw the power thus previo usly possessed. It is a familiar rule, that wh ere an act of the legislature has been revised, the same construction will be given to its provisions as before revision, unless the language of the new act plainly requires a change of construction to conform to the manifest intent of the legislature. State ex rel. Clough v. Commissioners of Shelby County, ante, 326.

There is no reason arising from the nature of proceedings in bastardy why the preliminary inquiry or examination should be made exclusively by a justice of the peace. If the matter is adjusted, or a settlement reached, before final judgment in the court of common pleas, between the accused and the complainant, by his paying, or securing to be paid to her, an agreed sum, and executing the bond provided for by the statute, .such bond is required to be conditioned to save all municipal corporations within the state free from all charges for the maintenance of the bastard child, as well as all counties and townships. 75 O. L. 741. And where the mother of the child neglects to bring suit for its maintenance, or fails to prosecute a. suit duly commenced, the treasurer of a municipal corporation interested in the support of such bastard child may make complaint in behalf of the corporation, or take up and prosecute the complaint made by the mother of such child, unless sufficient security is offered to save the corporation from the expense of the child’s maintenance. 75 O. L. 744. I mention these provisions only for the purpose of showing that there is no reason growing out of the character of the proceeding, why the preliminary examination should not be made by a mayor of a city or village, as well as by a justice of the peace. We are inclined to the view, and so hold, that by the change in phraseology from “civil matters” to “civil cases” in the provision defining the civil jurisdiction of the mayor, the legislature did not intend to withdraw from the mayor the power to entertain a complaint in bastardy.

Judgment of the district court reversed and that of the common pleas affirmed.


text:
    Murphy v. The State.
    1. In an indictment for larceny it was alleged that the stolen chattels were the property of the P., C. & St. L. Il’y Co., the “company then and there being a body corporate;” but no direct evidence was offered that the company was incorporated. Held, that the want of such evidence afforded no ground for a new trial. Burke v. State, 84 Ohio St. 79, followed.
    2. Where two persons charged with a'larceny, having the stolen property in their possession, were taken into custody by a police officer, the declarations of one of them, assuming to speak for and implicating both, made to the officer in the presence and hearing of the other person . charged, who remained silent, are competent evidence for the state on the separate trial of the latter.
    Motion for leave to file a- petition in • error to reverse the judgment of the Court of Common Pleas of Greeny County.
    Thomas Murphy and Charles Morrow were jointly indicted in said court, charged with grand larceny, committed March 24, 1880, by stealing divers articles of clothing, “ the goods, chattels and property of the Pittsburgh, Cincinnati and St. Louis Railway Company,” said company “then and there being a body corporate.”
    Murphy pleaded not guilty, was separately tried at the June term, 1880, a verdict of guilty was rendered, a motion for a new trial was overruled, a bill of exceptions, embodying all the evidence, was signed, sealed and entered of record, and Murphy was sentenced to the penitentiary. Ho now moves for leave to file in this court a petition in error.

      J. A. GooJc, for plaintiff in error :
    1. As to the competency of the declarations of Morrow, see 1 Whart. Cr. L. § 703 ; 1 Phillips on Ev. 359; 5 L. & E. Rep. 147; 12 Met. (Mass.) 235; 13 Allen, 570; Roscoe’s Ev, 17, 52; Clauson v. State, 14 Ohio St. 237; Rufer v. State, 25 Ohio St. 464; 6 A. & E. (N. S.) 126; 49 N. H. 39; 3 Daley, 136; 13 Ind. 63; Patton v. State, 6 Ohio St. 467 ; Sheridan v.
      Smith, 2 Hill, 538 ; 1 Greenl. Ev. §§ 197, 215 ; Joy on Confessions, 77; 21 Ohio St. 64; 2 Ohio St. 500.
    2. Proof of the incorporation of the railroad company should have been given. Beed v. State, 15 Ohio, 217; Bwrlte v. State, 34 Ohio St. 79.

      George K. Nash, attorney-general, for defendant in error:
    1. The statements of Morrow were admissible against Murphy. 1 Whart. Cr. L. § 696 ; 1 Greenl. on Ev. § 215.
    2. It was not necessary to make proof of incorporation. Burke v. Ohio, 34 Ohio St. 79.
   Okey, J.

Two of the questions presented for our consideration in this case are deemed of sufficient importance to call for a report.

1. The indictment charges that the party injured, the railway company, is a body corporate. No direct proof of the allegation was offered. But this was unnecessary. Burke v. State, 34 Ohio St. 79. And see State v. Balt. & O. R. Co., 15 W. Va. 363; State v. Thompson, 23 Kansas, 888; Wharton Cr. Ev. (8 ed.) § 102 a.

2. Evidence was offered tending to show that Murphy and Morrow committed the larceny on the night of March 24, at Xenia, and afterward, unknown to the employees of the company, came to Columhus. in Franklin county, the next day, concealed in a freight train of the company. When the train reached Columbus, Bryant, the conductor, looked out of the caboose window and saw them. They had just got out of a car. When they saw the conductor watching them they started to run in different directions. The conductor ran after and caught Morrow, and a brakesman, Tamplin, followed Murphy, and after running after him about two squares overtook him. The defendants were immediately brought together. Morrow said: If you let us go we will get clear and will never foi’get you; but if you don’t, we will be sent to the penitentiary for seven or eight years.” Morrow added: “We did not get the goods out of this train.” The conductor said: “ Yon got them out of some cars I left on the way at Morrow-town.” Morrow replied: “We did not; we got them out of some ears at Nenia.” Murphy was present at all this conversation, but said nothing. TIis counsel objected to the declarations of Morrow, but the coart overruled the objection and he excepted.

Immediately after Morro'w had made the above declarations,. the conductor called a policeman, Shannon, who took the defendants into custody. Morrow said to the policeman, in the presence of Murphy, that the clothes had been given to them in Columbus. Murphy said nothing, but on the trial he objected to the admission of the declaration of Morrow, and the court having overruled the objection, he excepted. It appears that the declarations of Morrow to the conductor and to the policeman were entirely voluntary.

At the time these declarations were made, Morrow had on his person two pair of pantaloons, three vests and two coats, and Murphy had on his person two vests, three coats, two pair of pantaloons, and two j>air of stockings. The evidence tended to show that this was the clothing stolen; and it is contended on behalf of the state, and, speaking for myself alone, the position seems to be warranted, that at the time of their arrest the defendants were endeavoring to reach a harbor where they could find shelter for themselves and the stolen goods.

We are all of opinion that the declarations of Morrow were properly admitted as evidence on the trial of Murphy. I would have preferred that their admissibility should have been placed on the peculiar circumstances of the case, to which reference lias been made, as I doubt whether, as a general rule, one who is under arrest can legally be regarded as called upon to reply to the statements of another touching liis guilt. 1 Greenl. Ev. (13 ed.) § 199, note; Whart. Cr. Ev. (8 ed.) §§ 680, 698; 1 Bishop Cr. Pro. (3 ed.) § 1254, note; Fouts v. State, 7 Ohio St. 471; Commonwealth v. McDermott, 123 Mass. 440. But the other members of the court are of opinion, without regard to the question whether the accused persons, when arrested, were endeavoring to reach a place of safety for themselves and the goods, that; where two persons charged with a larceny, having the stolen property in their possession, are taken into custody by a police officer, the declarations of one of them, assuming to speak for and implicating both, made to the officer in the presence and hearing of the other person charged, who remained silent, are competent evidence for the state on the separate trial of the latter. Among the cases sustaining that view is Kelley v. The People, 55 N. Y. 565.

We find no error in the record.

Motion overruled.


author: MoIlvaine, J.

text:
    The Cincinnati and Springfield Railway Company v. The Incorporated Village of Carthage.
    1. Where a village council and a railway company agree, under the statute, as to the terms upon which thd company may use the streets of the village for its road, whereby the company bound itself to grade and gravel the streets so used, in a manner “to the acceptance of the council,” Held, that a subsequent ordinance repealing the contract ordinance, passed with intent to rescind the entire contract, being inoperative, without the assent, of the company, to rescind the grant of the right of way, is also inoperative to release the company from its obligation to grade and gravel streets.
    2. That upon the failure of such company within, a reasonable time to grade and gravel the streets as per contract, a right of action accrues to the village without special notice, request or demand on the company to perform its contract.
    3. R is not essential to the right to maintain such action that the city should have established, by ordinance, other than the contract ordinance, the permanent grado of such streets.
    4 Where such contract provides for the improvement of a dedicated street which had not been previously accepted by the council, such contract for its improvement constitutes an acceptance of the dedication on the part of the village.
    5. Under the statute, the exclusive control of the streets is in the council of villages, and directions by the mayor, concerning their improvement, are wholly without authority.
    0. The measure of damages for the breach of such contract on the part of the company, is the reasonable cost of doing or completing the work, and upon such breach, a right of action accrues for full damages, although Ihe work has not been dodc or completed by the village.
    Error to the District Court of Hamilton County.

      On May 2, 1871, the incorporated village of Carthage granted to the Cincinnati and Springfield Railway Company the right of way through the village on Lebanon street, by ordinance, which contained the following proviso :

      “ Provided, however, that the cuts and fills for said railway shall not be greater than shown in the accompanying plan or profile, and that in constructing said railway through' said Lebanon street, or across any other streets in said village, the said railway company shall be required to construct, whenever the same may be needed, suitable culverts and gutters for the passage of water, and shall cause to be made easy and convenient crossings for all streets crossing said railway, and that said Lebanon street be so graded and graveled by said railway conqpany as to permit the j>ortion thereof not occupied by said tracks to be used as other streets are used, to the acceptance of the village council.”
    The company accepted the grant and constructed their road through said street.
    The original action was brought by the village against the railway company, in the court of common pleas of Hamilton county, to recover damages for an alleged breach of the stipulations contained in the proviso.
    The defendant claimed, in the first place, that said stipulations had been performed by it, and, second, that said ordinance had been repealed. Yerdict and judgment were rendered for plaintiff. This judgment was affirmed by the district court.
    tJpon a bill of exceptions taken on the trial in the court of common pleas, several matters are alleged for error, which are sufficiently stated in the opinion.

      If. 0. Shoemaker and Stalls <& Kitt/ridge, for plaintiff in error:
    I. As to the measure of damages in cases of this kind, see Railroad Co. v. City of Lawrenceburg, 37 Ind. 489 ; S. C., 34 Ind. 304; Huston v. Railroad Co., 21 Ohio St. 235; Railroad Co. v. City of Fort Scott, 15 Kansas, 490.
    II. The court below erred in holding that no notice or demand, which the plaintiff below alleged, was necessary to enable tbe village to maintain its action. We understand tbe rule on this subject is that whenever the fact upon which the right of action depends is within the peculiar knowledge of the plaintiff rather than of the defendant, that notice and demand must be alleged and proved. Hatch v. White, 22 Pick. 518; Norris v. Dock Co., 21 Wis. 130; Walton v. Walker, 3 Fos. (N. H.) 471; 2 Parsons on Con. 670, note.
    Now in this'case, whether public convenience or necessity required any work, and what work, to be done to enable Lebanon street to be conveniently used, was a matter exclusively within the discretion and knowledge of the village council. The work that was provided for was to be done to their acceptance, and whether they were satisfied with it and accepted it was exclusively within their knowledge.
    III. The village council are vested with exclusive discretion and control of the improvement of the streets. Nor can they contract or bargain away this discretion, or limit the exercise of it by contract. The improvement of Lebanon street,— whether it should be improved at all or not, and how and when, was to be determined by it in the exercise of its legislative powers. 8 Beach (Ky.) 415. Row, while it could not recall the permission given to, and accepted by the railway company to lay its track in Lebanon street, for that had become a vested right, it could reverse or repeal its action requiring Lebanon street, outside of the railroad track, to be improved at all. State v. Andrews, 28 Mo. 14; Bailey v. Gilman, 4 Minn. 546; Mayor of Hagerstown v. Dechert, 32 Md. 384; Christy v. Supervisors of Sacramento City, 39 Cal. 3; Mills v. Sargent, 36 Cal. 379.
    Jordan, Jordan <& Williams, for defendant in error:
    1. Wliat is the measure of damages in this case? We say, what it would cost to do the work. Lawton v. Railroad Co., 8 Cush. 230; Walker v. Swayzee, 3 Abb. Pr. 136; Vivian v. Champion, 2 Ld. Raym. 1125 ; Burdet v. Withers, 2 Nev. & Per. 123.
    2. The railroad company was not entitled to any notice or demand in regard to the work to be done. Its contract was an absolute unconditional agreement to do something, and to do it to tho acceptance of the council or village.
    The major had no control or authority ever the work or the streets.
   MoIlvaine, J.

The ordinance of -May 2, 1871, and the acceptance of the grant by the railway company, constituted a valid contract between the parties. The 12th section of the corporation act of May 1, 1852, as amended April 15, 1857, provided that If it shall be necessary in the location of' any part of any railroad to occupy any road, street, alley or public way or ground of any kind, or any part thereof, it shall be competent for tho municipal or other corporation or public officer or public authorities, owning or having in charge thereof, and the railroad company, to agree upon the manner and upon the terms and conditions upon which the same may be used or occupied.” The contract for the right of way having been thus entered into by the parties, it was not within the power of the council of the village to rescind or modify it without the consent of the railway company. The ordinance of October 3, 1871. purporting ti repeal the contract ordinance of May 2, 1871, was not intended to operate merely as a discharge of the railway company from its obligations to perforin the stipulations of tho contract on its part, but to rescind the contract entirely; and as it cannot have the operation intended by the council, the railway company has no right to insist that it shall have an operation not intended by the council.

It is claimed by the company, that, although the stipulated work was not performed, a right of action did not accrue to the village until refusal or neglect to do the work by the company, after special notice or demand on the part of the village. On this point it is sufficient to say, that, under the contract, the company was bound to do the work within a reasonable time. No provision was made for notice or demand. Hence, after the lapse of reasonable time, the work not being performed, a right of action accrued to.tho plaintiff. It is true, that this work was to be performed “ to the acceptance of the village council.” And as to such portions of the work as were assumed to be done, but not to tbe satisfaction of the council, there would be some reason for requiring notice of non-acceptance, if the work as done had been tendered for acceptance. Rut in the case before us formal acceptance was not solicited, arid the court charged the jury on this point, that they should ascertain whether or not the village council were in fact satisfied, or ought, as a reasonable body of men, to have been satisfied with such portions of the work, and if they were, or ought to have been satisfied, then there could be no recovery on account of such portions. This statement of the law was as favorable as the defendant had a right to ask. ~

It is also contended that inasmuch as no grade for Lebanon street had been established by the village council, there was no means for determining the extent or nature of the work tp be done by the company, or the amount of damages for failing to perform it. It appears to us that the non-existence of an established grade of this street did not affect the right of recovery. The grade of the railroad track had been fixed by the company, as was shown by a “jalan or profile” referred to in the contract; and this grade being fixed, the undertaking of the company was to so grade and gravel the street as to permit it to be used as other streets were used. The street was to be improved with reference to the grade of the railroad track, so that the extent and nature of the work were sufficiently defined. We see no objection to the council making such a contract for the improvement of a street under its care and control.

The southern terminus of Lebanon street was originally at Second street, but previous to this contract one French, liad laid out an extension of this street southward three hundred feet and had sold lots abutting on the extension, upon which buildings had been erected. In respect to this extension, the defendant below requested the court to charge the jury as f ollows:

“ The defendant was under no obligation, by the terms of the contract set forth in the petition, to grade or gravel any part of Lebanon street, as shown on said plat of T. French, which lies south of Second street.”

The court refused so to charge, but did instruct as follows :

“ The ordinance set forth in the petition dated May 2d, 1871, included all of what was then known as Lebanon street, between the points for which the proposed cuts and fills were marked on the plan and profile accompanying said ordinance, which had been and then was dedicated to public use as a street, and over which said council had control as such ; there is no dispute that this was the case with all of said street from the south line of Second street to Sixth street, the evidence of plaintiff to that effect not being contradicted, and being sufficient to establish the fact.

“ As to the part south of Second street, being a cul de sac, extending three hundred feet from Second street, it is claimed that it was dedicated as a street by T. French, no dedication thereof having been made according to the statute in such case provided. Three things are necessary to be shown to establish its dedication. The owner must have intended to dedicate the property for a street, and to give up his private rights in it, which are inconsistent with its use.as a street by the public at large. And he must have evidenced and carried out this intention by some unequivocal act, such as throwing it open to the public, fencing it out, making or recording a plat, showing it marked as a street, selliug lots upon such plat, and conveying them by deeds referring to the plat. If you find that the owner so intended to dedicate it as a public street, and carried out such intentions by acts necessary for that purpose, then the village council must have accepted the dedication, there being no evidence of any acceptance by the public before plaintiff’s incorporation, and I charge you that the passage of the ordinance of May 2d, 1871, accompanied by the plat or profile referred to in the ordinance, and offered in evidence therewith, recognizing the street as extending three hundred feet below Second street, and providing for its occupancy and improvement by defendant, is a sufficient acceptance of the dedication of that part of the street by the village council, if you find that before that time the owner on his part had done all that was necessary to its dedication as aforesaid.”

We see no error in refusing to charge, or in the instruction given.

' It is also alleged for error that the following testimony was rejected by the court. N. M. Shoemaker, president and superintending engineer of the defendant, was offered by defendant as a witness to prove that while the work of grading Lebanon street by the defendant was progressing under the witness’s charge, that Mi’. Morton, the mayor of plaintiff’s corporation, instructed the witness not to grade and gravel any of the street south of Second street; that Lebanon street, as recognized by the village, did not extend south of Second street.

To which plaintiff objected, and the court sustained the objection and excluded the testimony (it not being shown, nor proposed to be shown, that said mayor had any authority from council in the premises), to which the defendant excepted.

The exclusion of this testimony was not error. The exclusive care and control of the streets of an incorporated village are placed, by statute, in the village council. And any direction in respect to the improvement of streets, assumed to be given by the mayor of the village, without authority from the-council, is wholly without authority.

The last ground alleged for error against the judgment below, which we propose to consider, relates to the measure of damages. On this point the court charged as follows:

“ If you find the plaintiff is entitled to a verdict, the measure of damages for such work, if any, as the defendant ought to have done and failed to do, within a reasonable time, and the plaintiff did do, is the cost to plaintiff of the work done by it, and interest thereon to the first day of this term, provided such cost was the fair and reasonable cost thereof at the time when it was so done. And for such work, if any, as the defendant agreed to do and failed to do, within a reasonable time, and W'hich the plaintiff has not done, the plaintiff is entitled to recover what it would fairly have cost the ]:>laiuti£l: to have it done after defendant had failed for a reasonable time to do it.”

The measure of damages in such cases is compensation, and, of course, corporate compensation must be limited to the corporate injury; but, where the injury resulting to a corporation by tbe breach of a contract is the same that would have resulted to a natural person from a like breach, the rule of compensation is the same. This case is wholly unlike M. K. & T. R. R. Co. v. City of Fort Scott, 15 Kan. 490, where the city had granted the right of way through its streets in consideration that the company would build its repair-shops in Fort Scott, which the company failed to do. By the failure of the company the injury to the city in its corporate capacity was not equal to the cost of the improvements contracted for. If the shops had been built, they would not have become the corporate property of the city. Nor is this case like one where the right of way is granted upon conditions, by an ordinance operating as a law merely, and the way is occupied in violation of the conditions. We need not stop to discuss the nature of penalties in such cases. Here we have a violated contract entered into by parties authorized to contract; and made, though by a municipal corporation, in relation to its corporate affairs. We cannot, therefore, see why the ordinary rule of damages should be departed from, or why the municipal corporation should be required to perform the work contracted for before instituting an action for damages for the breach of the contract. Should a tax be collected to pay for the work, and an action their brought for the purpose of reimbursing the taxpayer ? Surely not. Nor does it matter at all, to the delinquent contractor, whether or not the work which he contracted to do, but failed to perform, should ever be accomplished. Whether the damages realized in such action should be devoted to the improvement contracted for, or to other purposes, is a question between the village and its citizens^ with which the railroad company can have no concern.

Judgment affirmed.