author: Bead, J.

text:
    Christopher C. Cockerill v. The Cincinnati Mutual Insurance Company.
    A policy of insurance must be in writing.
    A verbal waiver of the forfeiture of a policy of insurance is not binding.

      A 'erbal agreement that a policy which has been forfeited by a transfer of the interest of the assured by judicial sale, that on repurchase by the assured of the property originally insured, the policy shall re-attach and continue in force during the unexpired term, must, whether regarded as a waiver of a forfeiture, or a verbal policy, or an agreement to continue the old policy, to have any binding force, be in writing.
    This is a, writ of error directed to the superior court of the city of Cincinnati.
    The action in the court below was assumpsit. The declaration was upon a policy of insurance, dated March 14, 1844, for one year, on two-thirds of the steamboat Mound City, in the sum of $3,500, the valuation being $10,000.
    The declaration, upon which the parties first went to trial, was in the usual form, averring generally interest in the plaintiff, seaworthiness, and loss within the time, and by the perils insured against, but not containing the special matter hereafter described. Tbe defendant pleaded the general issue; and during the trial the following state of things occurred, as shown by the bill of exceptions, a part of which is as follows:
    ^“In the course of offering the said testimony, it had appeared, that after the purchase by said plaintiff of his two-thirds of the said steamboat Mound City, at the city of New Orleans, in the month of February, 1844, the owners had caused her to be caulked and otherwise fitted to pass inspection, and had then sent her on a trip to St. Louis, where she had been judicially seized and sold to one Perrine, under the law of Missouri, on June 5, 1844, for a debt contracted by those who owned her prior to the purchase by said plaintiff of his said interest, and against his will; and then, in order lo prove the interest of said plaintiff at tbe time of said loss, said plaintiff offered to prove the following facts, to wit: That aftor the said judicial sale, and before the said loss, the said defendants were informed by said plaintiff of the said judicial sale, and asked whether they considered themselves any longer liable on said policy—to which they replied that they did not: that said defendants were then asked to give up the premium note, upon being paid the proportion thereof to the time of the said judicial sale, which the said defendants refused to do, but said to the plaintiff, that they would agree that if said boat should again come to be the property of the insured, eithor by purchase or compromise, during the life of the policy, the said defendants would waive any forfeiture arising from said judicial salo, and said policy should continue to the end of the time. That, in consequence of said agreement, said plaintiff did, shortly thereafter, to wit, on August 20, 1844, purchase from said Perrine the said steamboat Mound City, with her apparel, tackle, and furniture, and thereby became and was sole owner thereof at the time of said loss.
    “To the introduction of which offered testimony the defendants objected, and the court sustained the objection, and refused to admit the samo.” '
    Thereupon a juror was withdrawn by consent; and the plaintiff had leave to amend his declaration, which he did by adding a second count, containing the special matter above rejected, as follows:
    *“And the plaintiff avers, that after the making of the said insurance, and before the loss hereinafter mentioned, to wit, on May 24, 1844, at the city and county of St. Louis, in the State of Missouri, to wit, at the county aforesaid, the said boat, without the consent and against the will of the plaintiff, was seized by the sheriff of said St. Louis county, by virtue of sundry executions and orders of sale to him directed, from the St. Louis court of common pleas, and from the circuit court of the county of New Madrid, in the State of Missouri, and sundry judgments theretofore obtained against the said boat, and sundry persons, defendants, for claims existing against said boat, before plaintiff became a part owner of her, and of which he had no knowledge; and after due process had, said boat was, with her apparel, tackle, and furniture, sold and convoyed by said sheriff to one William M. Perrine, on June 5, 1844. And the plaintiff further avers, that after the said judicial sale, and before the loss hereinafter mentioned, to wit, on July 1, 1844, said defendants were informed by said plaintiff of said judicial sale, and asked whether they considered themselves any longer liable on said policy of insurance; to which they replied that they did not; and being then asked to abate the premium for so much of the year as l’emained after said judicial sale, they refused so to do; but at the same time agreed, that if said plaintiff would again become owner of said boat, either by pur. chase or compromise, they, said defendants, would waive any forfeiture of said insurance by reason of said judicial sale, and said policy should continue to attach to said boat until the end of said year, as if there had been no change of ownership.”
    Then follows the averment of repurchase, loss, etc.
    The first count, which still remained general, was afterward abandoned; and a general demurrer put in to the second, which demurrer was sustained; and the case comes up on the following assignment of errors:

    “And the said plaintiff now comes and says, that in the ^record and proceedings in the above-entitled cause, there [151 is error in this, to wit:
    “ 1. The court erred in refusing to admit the testimony offered by the plaintiff, as set forth in the bill of exceptions.
    “2. The court erred in rendering judgment upon the demurrer for the defendants, when it should have heen for the plaintiff.”
    Walker & Kebler, and Henry Starr, for the plaintiff in error:
    Two questions are presented for the consideration of the court, which we shall consider in the reverse order of the assignment of errors.

      First, the judgment upon the demurrer should have been for the plaintiff, and not for the defendant. The facts specially averred are these: After the insurance, and 'before the loss, the boat was judicially seized and sold for. debts contracted by a prior owner. Whereupon the plaintiff, supposing the policy at an end, applied for a pro rata return of premium. This the company refused; but verbally agreed with the plaintiff that if he would repurchase the boat they would waive any forfeiture, and the policy should continue to attach as if nothing had happened. And in consequence thereof, he did repurchase the boat, and was owner at the time of the loss.
    If upon these facts the plaintiff can not recover, it must be on account of some strictly technical objection, for every equitable consideration is in his favor; and if the defendant were a man, his conduot in refusing to pay this insurance would subject him to the scorn and contempt of all honorable and honest men. Let us then notice these technical objections.
    1. It is said that the judicial sale put an end to the policy; and this once done, nothing could revive it. It was a dead thing. A new policy only could effect a now insurance.
    Not so. The policy was upon the boat, which still lived; *and, by one of its own stipulations, this policy might have been assigned to the new purchaser, with the assent of the company. This shows that it did not become extinct by the act of sale. We find no precedent exactly in point, but there is a very close analogy in the instance of deviation, which forfeits the policy, unless the insurer agrees to waive it, which he may do. See 1 Phil, on Ins. 572; 1 Sumner, 232; 3 Johns. 142. So here. The company have agreed to waive the forfeiture for the consideration of repurchase, and have thus reinstated the policy.
    2. It is said that this agreement, to be binding, must be in writing; that it is tantamount to an original insurance, which can only be in writing.
    We deny both propositions. We know of no law requiring a policy of insurance to be in writing, unless it come within the statute of frauds, which this does not. But if the law were so, we have complied with it. Our policy was in writing, and still exists. The parol agreement was not a new insurance, but the reinstatement of an old one; and this may be done without even words. It may be done by acts. It is nothing more than the waiver of a forfeiture.
    3. But it is said that granting the verbal agreement to be valid, the suit is wrongly .brought. It should be on this verbal agreement.
    We answer that it is brought on both, as parts of one whole, the declaration is special, and sets forth the whole case. ' We rely upon the old policy, and show its continued existence by special averment. We liken it to a lease forfeited,for non-payment of rent or other cause,'and the forfeiture waived by the lessor. Hero the lease is reinstated to all intents and purposes, and if there be suit upon it afterward, the count is upon the lease, as if nothing had happened.
    Wo also liken it to the case of an indorser waiving protest or notice. This is not regarded as a new contract, but a revivor of the old one, and the count is upon the original note. 12 Mass. 56; 5 Pick. 444.
    *2. The court erred in ruling out the evidence as stated in the bill of' exceptions. The declaration was originally upon the policy alone, without the special averments of a judicial sale, agreement to waive forfeiture, and repurchase. These facts the plaintiff offered to prove, but the court refused. This, we say, was error. We find no precedents exactly in point; but the instances last above adverted to, of a waiver of forfeiture by lessor,, and of notice by the indorser, would seem to be conclusive.'
    Tart, Key & Mallon, for defendant in error:
    The first point made by the plaintiff’s counsel is, “ that the company have agreed to waive the forfeiture for the consideration of repurchase, and have thus reinstated the policy.”
    To sustain this point, the counsel for plaintiff, admitting that they “find no precedent exactly in point,” claim that there exists- “ a very close analogy between this case and the case of a deviation, which forfeits the policy, unless the insurer agrees to waive-it, which he may do.”
    To this point of analogy, the plaintiff’s counsel cite 1 Phil, on Ins. 572; 1 Sumn. 232; and 3 Johns. Cas. 142.
    On this point, we say :
    1. That the analogy, as claimed by the plaintiff’s counsel, does-not exist. The termination of the risk, originally assumed, was not a matter in the nature of a forfeiture. The contract was to indemnify the party insured against loss or damage that might happen to the interest which the insured had in the boat. When that interest ceased, the risk ceased, because no damage could' possibly happen to that which had no existence. A deviation is,, where there has been a variation from the usual course of the voyage, while the interest remains, and is still liable to the perils of the seas. Now, if the insurer waives the deviation, in writing, the insurance may continue; or such is the doctrine claimed from the authorities cited.
    Phillips, in the passage referred to, says: “The insurers *may waive taking any advantage of deviation, which must be done in writing to render it binding, at least if it be after the deviation, and after the policy is subscribed.”
    2. If we grant the analogy to forfeiture, by deviation, as-claimed, it leaves the plaintiff in no better case than before; for the forfeiture, by deviation, is not waived effectually except by writing. By the authorities cited by the plaintiff’s counsel, a verbal waiver has no force. The waiver relied on here is verbal merely.
    3. There is no such thing as that which the plaintiff claims this-to be, in all the authorities, nor in any of the usages of insurance., A waiver, the effect of which shall be to reinstate a policy, the-.subject of which, viz., the interest insured, has actually expired ; or, to use language more intelligible, to transfer a policy from an ■old to a new and different interest; such a waiver is nowhere described in the books of insurance. This is admitted by the counsel for the plaintiff, and is of itself a circumstance tending •strongly to show that there is no such law.
    II. That this agreement relied on by the plaintiff is a contract •of insurance; and that a contract of insurance, to be binding, must be in writing. This the plaintiff’s counsel deny, and recognize “no law requiring a policy of insurance to be in wilting, unless it come within the statute of frauds.”
    A policy is described (1 Phil. Ins. 2) as the instrument containing the terms of the contract of insurance. Mr. Phillips speaks ■of it as a bond of indemnity. “As to the essential part of this •contract,” he says, “ it does not differ from a bond of indemnity, ■or a guaranty of a debt, since the obligor or guarantor takes upon himself certain risks, to which the obligee or creditor would otherwise be exposed. The only difference is in names, and the form of the instrument,—the consideration for an insurance being always called a premium, and the instrument containing the terms of the contract, a policy, which is usually made in a form peculiar to this species of contract.” He says (same page), “ the ^'-instrument by which the contract is made, is called a policy.”

    The contract of insurance is uniformly described as a policy, •and without a policy there is no insurance known or treated of in the books. In like manner a policy without writing is not known ^anywhere. The term policy implies a written instrument. A verbal policy of insurance would be an altogether incongruous ■and incomprehensible idea. A verbal bill of exchange would be •a no more strange and unheard-of instrument than a verbal policy of insurance. There is no statute of frauds which requires ¡that bills of exchange should be in writing, and yet, by the commercial law, the liabilities of the several parties to a bill of exchange must be evidenced by writing. By the same commercial law is the contract of insurance, which falls peculiarly within the scope of the law merchant, evidenced by writing. It is uniformly •spoken of in the text books as a written instrument.
    Duer (1 Duer’s Ins. 60, 61, etc.) says: “Insurance, as a branch •of the law merchant, we have already seen, does not depend (Solely on the rules of our municipal law, but upon questions not eettled by positive decisions, is governed by the general usage of the commercial world. Hence, I adopt the opinion that the general and uniform practice of merchants from the earliest times ought to be considered as evidence of the legal necessity of a written contract, with the same propriety that a bill of sale is held to be necessary by the universal maritime law to pass a valid title on the transfer of a ship.”
    In England, and in all the nations of Europe, verbal policies of insurance are unknown. Insurance is required to be in writing and specific in its terms. All the old works upon which the doctrines of insurance have grown up into their present maturity are uniform in requiring that the contract of insurance should be in writing.
    See notes in first lecture to 1 Duer, notes 2, 3, 4, where the history of the insurance law, as it appears from the old *works and [156 the ancient ordinances of various commercial cities and nations, is given. In no one of all these sources of insurance-law is insurance founded on anything less than written evidence.
    In 1 Phil. Ins. 7, etc.,.the subject is treated as not settled by positive enactment or decision in this country, but the necessity of writing is impliedly taken for granted. After citing the case of Smith v. Odlin, 4 Yeates, 468, where Tilghman, J., doubts “ whether a valid insurance can be made otherwise than in writing,” the author last mentioned adds, “ and the contract is universally understood and spoken of as being written.” On page 8, same book, the same author, in speaking of agreements for insurance, says: “ But it does not appear that the parties are legally bound until the policy is filled up, or some memorandum of the contract is signed, and either actually or constructively delivered to the assured.”
    The authorities cited on the subject of a waiver of deviation nre Giddon v. Man. Ins. Co., 1 Sumn. 232; Crowningshield v. N. Y. Ins. Co., 3 Johns. 142; 1 Phil. Ins. 372.
    They all distinctly assert that a deviation can be waived only by a written instrument.

    III. We claim that their act of incorporation restrains the defendants from making a verbal contract of insurance. 1. Section 6 of the act (see 27 Ohio laws, 25) contains the following provisions, viz.: “ That all policies or contracts of insurance which may be made or entered into by said corporation, shall be subscribed by the president, or president pro tern., or by such other officers as shall be designated for that purpose by its by-laws, and attested by the secretary ; and being so signed and attested, shall l)e binding and obligatory on the said corporation without the seal thereof, according to the true intent and meaning of such policies or contracts.”
    This act is a public act. It contains no other provisions by which any person has or can have authority as agent for *said company, to make contracts of insurance in any other way than is here distinctly set forth. The provision above recited is imperative. It enjoins the mode in which contracts of insurance “shall” be made by the company. This section prohibits any other mode of executing contracts of insurance than such as is specified. It is the usual language employed in legislative enactments to limit and define power. Section 1 of the act makes the company generally competent to contract and be contracted with. Section 2 gives the corporation “ full power and lawful authority to insure all kinds of property against loss or damage by fire, or any other risk.” But section 6 limits the power as to contracts of insurance, by prescribing the mode in which such contracts “ shall ” be executed. Any other construction would make section 6 useless, besides contradicting the plain meaning of the language of the section itself.
    Nor is the provision at all unreasonable. The contract of insurance is and must be in its nature express, and not implied! It is a guaranty, and there is as good reason to require it to be written, as there is to require a guaranty of the payment of a debt to be written. The act is in the nature of the statute of frauds and perjuries; and we insist it is moreover in accordance with the principles of insurance law, independent of all statutes.
    The statutes of frauds and perjuries, all admit, are founded on the soundest reason. They prevent frauds, and defeat perjury. What contract is more liable to frauds and perjuries than the contract of insurance? Yerbal policies of insurance would afford as fruitful a field for frauds and perjuries, as would verbal deeds of real estate, verbal promises for the payment of other men’s debts,’ verbal promissory notes, verbal bills of exchange, or verbal marriage contracts,—all of which are by law required to be written.
    The authorities on the subject we think sustain our view of the case. Head & Amory v. Providence Ins. Co., 2 Cranch, 166-169; Beatty v. Marine Ins. Co., 2 Johns. 109; Angell *& Ames on Corp. 236; 1 Cond. U. S. S. C. 371; Ducany v. Gill, 4 Car. & P. 121; 1 Duer, 64, sec. 9.
    In the case of Head & Amory v. Providence Ins. Co., Chief Justice Marshall delivered the opinion of the court, and the opinion is conclusive upon this point of our case. In that case, there had passed written communications, between the insured and the company, which it was claimed amounted to a contract of insurance. But no instrument had been executed in the manner prescribed by the charter of the company. The court said, u It is a general rule that a corporation can only act in the manner prescribed by law. When its agents do not clothe their proceedings with those solemnities which are required by the incorporating act to enable them to bind the company, the informality of the transaction, as has been very properly urged at the bar, is itself conducive to the opinion, that such act was rather considered as manifesting the terms on which they were willing to bind the company, as negotiations preparatory to a conclusive agreement, than as a contract obligatory on both parties. Without ascribing to this body, which in its corporate capacity is the mere crea-ture of the act to which it owes its existence, all the qualities and disabilities annexed by the common law to ancient institutions of this sort, it may correctly be said to be precisely what the incorporating, act has made it, to derive all its powers from that act, and to be capable of exerting its faculties only in the manner which that act authorizes.
    “ To this source of its being, then, we must recur to ascertain its powers, and to determine whether it can complete a contract by such communications as are in this record.
    “ The act, after incorporating the stockholders by the name of the Providence Insurance Company, and enabling them to perform, by that name, those things which are necessary for a corporate body, proceeds to define the manner in which those things are to be performed. Their name of acting is thus defined : ‘ Be it further enacted, that all policies of ^assurance, and other instruments, made and signed by the president of the said company, or any other officers thereof, according to the ordinances, by-laws, and regulations of the said company, or of their board of directors, shall be good and effectual in law, to bind and oblige the said company to the performance thereof, in manner as set forth in the constitution of the said company, hereinafter recited and ratified.
    “ Ad instrument, then, to bind the company, must be signed by the president or some other officer, according to the ordinances, by-laws, and regulations of the company, or board of directors.
    “A contract varying a policy is as much an instrument as the policy itself, and therefore can only be executed in the manner-prescribed by law. The force of the policy might indeed have been actually terminated by canceling it; but a contract to cancel it is as solemn an act as a contract to make it and, to become the act of the company, must be executed according to the forms in which by law they are enabled to act.
    “ It appears to the court, that an act not performed according to the requisites of the law, can not be considered as the act of the company, in a case relating to the formation or dissolution of a policy.

      “ If the testimony of Mr. Jackson is to be understood as stating that an assent to the formation or dissolution of a policy, if manifested according to the forms required, is as binding as the actual performance of the act agreed to be done, it is probable that the practice he alludes to is correct. But if he means to say that this assent may be manifested by parol, the practice can not receive the sanction of this court. It would be to dispense with the formalities required by law for Valuable purposes, and to enable these artificial bodies to act and to contract in a manner essentially different from that prescribed for them by the legislature. Nor do the oases which have been cited by the gentlemen of the bar, appear to the court to apply in principle to this.
    *“ An individual has an original capacity to contract and bind himself in such manner as he pleases. For the general security of society, however, from frauds and perjuries, this general power is restricted, and he is disabled from making certain contracts by parol. This disabling act has received constructions which take out of its operation several cases not within the mischief, but which might very possibly be deemed within the strict letter of the law. He who acts by another, acts for himself. He who authorizes another to make a writing for him, makes it himself. But with these bodies which have only a legal existence, it is otherwise. The act of incorporation is to them an enabling act; it gives them all the power they possess ; it enables them to contract, and when it prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated.”
    ¥e have borrowed a liberal extract from Judge Marshall’s decision, because it is very much to the purpose, and lays down what we urge as the true principle applicable to this case in language not to be misunderstood, and gives to it the full authority of his-deliberate opinion. There are two points, however, in which the-case now before this court is stronger against the power to make a verbal insurance than the case of Head & Amory v. Prov. Ins. Co. The act of incorporation in that case, merely declared that “ all poliices of assurance and other instruments, made and signed,” etc., “ shall be good and effectual in law, to bind and oblige the said company,” etc., without any prohibitory or restraining words. The act of incorporation of the defendant in this case provides “ that all policies or contracts of insurance which may be made or entered into by said corporation, shall be subscribed by the presi* dent, or president pro tem., or by such other officer as shall be designated for that purpose,” etc. This language clearly prescribes the mode of making contracts of insurance under the charter, and as clearly excludes all other modes.
    *The second point in which the present case might be distinguished from the case of Head & Amory v. Providence Insurance Co. is, that in that case testimony was introduced to show a custom sanctioning such contracts as that which was relied on in that case. The court held such testimony incompetent. But here we have no such statement to meet. No custom is alleged or pretended.
    The case of Beatty v. Marine Insurance Co., 2 Johns. 109, is to the same effect. The opinion was by Judge Thompson, afterward judge of the Supreme Court of the United States. He says, “ The only question in dispute between the parties is, whether there was a valid and binding acceptance of the abandonment made to the underwriters. To determine this point, recurrence must be had in the first place, to the act incorporating the Marine Insurance Company, in order to ascertain who were empowered to accept an abandonment, and adjust a loss.” After stating the provisions of the charter on the point in question, the judge remarks: “The defendant being a body corporate, the general and invariable rule is, that such body can act only in the mode prescribed by the law creating it. To enable-its agents to bind the company, they must act pursuant to the requisites of the incorporating act.”
    So in Angelí & Ames on Corporations, 229, the authors say, sec. 6: “ Whore the charter or act of incorporation prescribes the mode in which the officers or agents of a corporation must act or contract, to render their acts or contracts obligatory on the corporation, that mode must be strictly pursued.” The subject is pretty fully discussed in the work last cited, and the authority of the case of Head & Amory v. Providence Insurance Co. fully acknowledged.
    In the case of the New England Marine Insurance Co. v. De Wolf, 8 Pick. 56, the court held an assignment to which the company assented by their secretary was binding on the company, as the act of incorporation did not require the assent to an assignment to be signed by the president. The court (C. J. Parker) say, “ It is to be presumed that the secretary *acted under instructions of the president and directors, and the charter does not require the signature of the presiden t to any instrument but the policy. ’ ’

    This subject is stated very briefly, and with the proper distinctions, by Duer. 1 Duer, 65, see. 9. He says, “ Where the insurance is made by an incorporated company, the execution of the policy must be attested by the officer or officers designated for that purpose by its charter, or by its by-laws. In the United States, according to the recent decisions, the addition of the corporate seal is not necessary to complete the attestations, unless its use is enjoined by the charter.”
    IY. There is no consideration to support the pretended new contract or waiver. As stated in the declaration, there was no premium paid for the new contract. It is only alleged that the plaintiff made the purchase in consequence of the alleged promise. But the defendants received no benefit or advantage whatever. ■Can a binding contract of insurance arise in that way ? We think not. It is merely a promise to make a gift in a certain event. Can that be binding? The purchase is in no way made for the company at their desire, or for their benefit. The plaintiff himself has done nothing intended for the benefit of the defendants, .as a consideration for the alleged promise.
    Y. The first error assigned, can not be entertained by the court.
    Originally, the declaration consisted of but one count. On that the defendants took issue, and a trial was had, when the exceptions were taken upon which the first error, is predicated. Instead, of suing out a writ of error, the plaintiff’s counsel obtained leave to amend, by adding a new count to their declaration, and then, ■on further leave, struck out the old count altogether. With the ■original count, the exceptions that grew out of it, passed from the Teach of this court.
    Wrights & Miner, also of counsel for the defendant in error, *being satisfied with the argument of their colleagues, submitted nothing in addition
   Bead, J.

The first error assigned will not be considered. The count under which the evidence was offered that was rejected by the court, has been abandoned and forms no part of the record. The special matter which was rejected was inserted in a second count which was added on leave to amend the declaration, to which count a general demurrer was put in. Thus, in either form, the same legal questions are brought to the consideration of the court.

A determination of the following questions must determine this case:

1. Is a verbal policy known to the law of insurance?

2. Is a verbal waiver of forfeiture binding?

3. If an end be put to a policy before the time limited for its expiration by a determination of the interest of the insured by transfer, will a verbal agreement of the underwriter, on demand and refusal to abate the premium for the unexpired time, that if the insured will repurchase the interest the policy shall continue to attach for the original time limited, bind the underwriter for a loss which may accrue afterward, but within the original time limited, either upon the original policy, or such verbal agreement?

The last proposition involves the two first, and presents the additional feature, as to whether a verbal agreement can revive and continue a policy which had been put an end to by a judicial sale of his interest, in case of a re-acquisition of such interest by the insured. This feature was regarded by counsel as novel, and worthy of consideration by the whole court. As to the first proposition :

Insurance is a branch of the law merchant, and its nature and principles spring from commercial usage, to which we are to look for tbe forms and mode in which it is reduced to practical action, in cases not determined by positive decisions or the rules of municipal law. The form of giving ^effect to the indemnity, is by a written instrument, containing the consideration, terms, and stipulations of the contract of indemnity between the underwriter and' tbe insured, called a policy. It is universal commercial usage, that this policy shall be in writing, and there is no exception to it in positive decision or municipal regulation. Such a thing as a verbal policy is unknown to the law of insurance. All the books upon the subject, and decisions, unite in declaring that a policy must be in writing. And in every instance where the municipal law has created and empowered corporations to enter upon the business of insurance, it has required that the contract of insurance, or the policy, should be in writing, and signed by the parties to be bound. It is so in the act incorporating the insurance company now in question. To hold that there could be1 sneh a thing as a verbal policy would be contrary to all commercial usage, and the authority of all the books and decisions, and in this case would be in opposition to the spirit and express requirements of the act of our legislature creating the company. It may bo said that this act is directory only to the officers of the-company, and that a failure to comply with its requisitions on-their part, ought not to relieve the company from a compliance with a verbal contract entered into on their part, upon full consideration. That it is no hardship to compel men to comply with their contracts. The reply to this is, that it not only contradicts all the settled notions upon this subject contained in the books- and decisions, and universal usage, but the statute itself declares that the contract or policy being so “ signed and attested ” as is designated in the act, “shall be binding and obligatory upon the corporation without the seal thereof.” But without the act we should hold that a policy of insurance upon the principle of general usage must be in writing, as supported and declared by universal adjudication.

As to the second point. A waiver of forfeiture must be in writing. This point is established by the decisions referred *to by the plaintiff, and by commercial usage. There is no decision to the contrary, and we do not feel at liberty to depart from a principle of universal recognition, in a matter of commercial law.

As to the third point. If the verbal agreement be considered a. new policy, or a waiver, it is invalid, as we have stated. But it is stated that the policy did not become extinct by the act of sale, because it might have been assigned to the new purchaser by the assent of the company. We can not adopt this reasoning. The policy was at an end by the transfer of the entire interest of the insured by judicial sale. Upon a loss happening after the sale, no one could.have enforced the original policy; it was at an end; or at least its obligation was destroyed by a determination of tho interest of the insured. The boat was discharged of the policy. The repurchase of the boat by the insured would not reinstate the policy. It required some further act to be done. If the determination of the interest of the insured was a forfeiture merely of the policy, that could only be waived by a written instrument to-that effect. If this was not a forfeiture which could be waived, but an entire destruction of the policy, the agreement was equivalent to a new policy, and should have been in writing. But it is-said that, as the old policy attached to the same boat, and the names and interest of the parties were the same under the repurchase, it might, under the verbal agreement, be considered as a new policy for the unexpired time. But to have given it effect as a new policy, it should have been delivered as such. This was not done. The parties evidently treated the judicial sale as a forfeiture, and the verbal agreement as a waiver of such forfeiture. In this view it is invalid, as the waiver should have been in writing. But it may be said that this was not a waiver of forfeiture, but a parol agreement that the old policy which had been severed from the boat by the transfer, should re-attach and continue for the unexpired time, on a repurchase of the boat. This gives to the verbal agreement the force and effect *of a new policy; it is the verbal agreement which re-attaches the policy, and gives it life and obligatory force. The policy was at an end; and the same reasons which would require the original policy, or a waiver of forfeiture to be in writing, would require an agreement of this sort to be in writing, even if it can be considered in any other light than a waiver of a forfeiture.

In view of all the facts relied upon by the plaintiff, we see no mode in which he could recover without violating well-established; principles in the general law of insurance, and the spirit, if not the letter, of the act incorporating this company. Judgment affirmed.


source: Caselaw Access Project

author: Birchard, C. J.

license: Public Domain

text:
    Alpheus Channel and Richard Stadden v. Elias Fassitt and others.
    A person can not claim to be a member of a partnership composed of a number of persons, unless all the persons composing said firm have agreed to accept him as such.
    This is a bill in chancery, reserved in the county of Licking.
    The bill is filed by the complainants, Channel and Stadden, against Elias Fas sitt, Alfred Avery, the administrators of Periander W. Taylor, and the executors of Nathaniel Medbury, deceased, claiming that they were partners with said Fassitt, Avery, Taylor, and Medbury in the contract made by them with the board of public works, for the construction of thirty-three sections of the Miami Extension canal, together with the Loramie Reservoir; and that their interest in said contract was one-third part, and praying an account of the profits growing out of the contract.
    The questions involved and discussed by the counsel in the case were almost entirely questions of fact, and. are, so *far as necessary to an understanding of the case, stated in the opinion of the court.
    Wm. and James R. Stanbery, for the complainants.
    T. Ewing, N. H. Swayne and Smythe & Sprague, for the respondents.
   Birchard, C. J.

This case turns mainly upon questions of fact.

1. Were complainants actually members of the firm of P. W. Taylor & Co., and interested to the extent of one-third of the profits of the contract with the board of public works, for the construction of sections one to thirty-three inclusive, and for the Loramie Reservoir of the Miami Extension canal ?

2. Were P. W. Taylor and Nathaniel Medbury the other parties ?

3. Were the complainants, by the agreement of all the parties, to have one-third of the profits, and each of the others one-third?

These propositions are all put in issue by the answers, and the issues are to be determined by the proof adduced by the parties. The evidence has been fully discussed by counsel, and we are not aware that any great good would be attained by a detailed statement of the views we entertain respecting it, and think that our duty will be performed, and the interests of the profession best subserved by a brief statement, embracing merely the results of our investigation of the litigated facts.

"We are satisfied from the evidence, that the contract was originally let upon the bid of P. W. Taylor & Co., and that at that time this firm was composed of P. W. Taylor, Alfred Avery, and Elias Fassitt.

Secondly, that after the letting, by agreement made between themselves, Nathaniel Medbury was taken into the partnership upon the terms set forth in the answer of respondents, and. that the firm thus continued till the work *was completed, except as to the changes effected by the death of Taylor.

And thirdly, that complainants were never partners of the firm, and that if they were, there is an entire want of proof to establish the terms of the agreement. The testimony relied on to sustain the bill, is that of Col. Spencer. On interrogatory, he says he-never had any conversation with Avery & Fassitt, in which they spoke of either of the complainants as parties, and that Medbury never stated to him in terms that they were to be members of the firm. His words were, that he would so arrange as to provide for them. That he had but little hopes that the work could be-awarded on his own bid; but so far as he was concerned, it was not material whether awarded on his bid, Stadden & Channel’s, or Taylor & Co.’s, as it would amount to the same thing. The statement made by Taylor was, that they were to bid separately, and if the work was let on either bid, it was to be considered by them as a company; that the terms wore, that himself, Avery & Fassitt were to have one-third, and Medbury two-thirds; and Medbury was to divide his interest with complainants, but in what proportion he did not state.

Now, of this evidence, it is proper to remark, that Medbury ought not to be charged with the declarations of Taylor, made in his absence. And the same rule applies as to the others. But taking it entire, and it does not prove the alleged partnership set up in the bill, or amended bill, but a very different agreement. It. shows, if it shows anything, that Medbury, Taylor, Avery & Fassitt, were to compose the firm, and that if complainants had anything, it was by virtue of some secret arrangement between Med-bury and themselves. Fassitt & Avery never had any knowledge- ■ of this agreement, and they can not be held as third parties, unless they have agreed to be such. Nor can Taylor. He only agreed that Medbury might come in with Taylor & Co. as partner. True, he says Medbury was to provide for Stadden & Channel out of his two-thirds; but how? As ^partner? That does not follow. That could not follow; for they could not become partners without the consent of the others. No man can be a partner of others without their assent. It is doubtless true, that there was an understanding before the letting, that Stadden & 'Channel were to derive some benefit through Medbury from the work, let it be given to which one of the other parties it might. But •if the whole were to be considered as partners, it is inconceivable that no writings should have been drawn, no witnesses called to hear the agreement, and that no one should know anything about it; that complainant should neither do or say aught concerning it until years had gone by, and all the risks had been run, and the job completed and found to be profitable. On the other hand, if ■there existed, prior to the letting, an agreement to form a partnership between Taylor, Medbury, and complainants, there is no way •of reconciling this conduct with the other facts in proof but by supposing it was abandoned before the work began, and some new .arrangement or compromise made with Medbury. Medbury said he would so arrange as to provide for them; he intended to do with them what was right. That “ Stadden must have an inter.est; he has neither capital nor influence, and $500 or a $1,000 will buy him out. and get rid of him.”

It is quite as probable that this arrangement was made in the lifetime of Medbury, as it is that complainants should keep silent ■ during the progress of a job of the extent of $322,000, and never be known as connected with it until its successful completion had developed the fact that the net profits upon it were $69,000.

Bill dismissed, but without prejudice to any rights that may exist against the estate of Medbury.


author: Read, J.

text:
    *The Bank of Virginia v. The Bank of Chillicothe.
    Where a cause is submitted to the court to try the facts, as well as determino the law, the finding of the court can not be brought under review by writ of error, unless the evidence be made part of the record by bill of exceptions.
    An agreed statement of facts forms no part of the record, unless made so by bill of exceptions.
    .Upon error, the finding of the court will be treated precisely as the verdict of a jury.
    This is a writ of error, directed to the Supreme Court of the 'County of Ross.
    The original action was commenced in the court of common .pleas of Ross county. It was an action of assumpsit, brought to recover the amount of a $1,200 draft which had been transmitted by the Bank of Virginia to the Bank of Chillieothe for collection. The draft was collected in Illinois paper, which was current at the time of reception, and placed to the account of the Bank of Virginia upon special deposit. The Illinois paper became uncurrent ■and much depreciated. The question was which should bear the loss. The Bank of Chillieothe contended that she was authorized by the Bank of Virginia to collect the draft in current bank notes, .and place them to the account of said bank upon special deposit^ .and that she was ready to deliver over the bank paper so collected. It was contended, on the part of the Bank of Virginia, that the Bank of Chillieothe was authorized only to receive current bank ■notes and place them to general account as so much money, subject to draft, deducting exchange. The case was submitted to the court of common pleas, upon an agreed statement of facts, or rather upon an agreed statement of the evidence containing the correspondence of the banks, in reference to this draft and their usual course ■of business, and the court was to enter up judgment as the facts might warrant.
    *The court found for the defendant and rendered judgment accordingly.
    A writ of error was issued and the cause brought to the Supreme Court.

      The error assigned was that the court erred in rendering judgment in favor of the defendant.
    The Supreme Court affirmed the judgment.
    A writ of error was allowed to the judgment of the Supreme Court, and the error now assigned is the same in effect as that to the judgment of the court of common pleas, to wit, that the Supremo Court erred in affirming the judgment of the common pleas.
    T. Ewing and H. H. Hunter, for plaintiff in error.
    Creighton & G-reen, for defendant in error.
   Read, J.

There is no error in the record before the court. The object of the writ was to bring into revision the finding of the court upon the facts. The steps requisite to accomplish this end have not been taken. The agreed statement of facts forms no part of the record, and hence is not properly before the court. If a cause be submitted to the court to determine the facts as well as the law, we treat the finding of the court precisely as we would the verdict of a jury. The court, in this instance, found for the defendant. The question is, did the facts warrant such finding ? The error assigned is that judgment was rendered for the defendant when it should have been for the plaintiff, upon the agreed statement of facts. Judgment was not rendered uj>on the agreed statement of facts, but upon the finding of the court upon such facts; and finding that the defendant did not assume and promise as in the plaintiff’s declaration alleged, judgment for the defendant followed of course. The agreed statement of facts is not a special verdict, which is a conclusion of fact; but the evidence upon which the court was to find. A verdict is a conclusion of fact, as-a judgment is *a conclusion of law. It can not be pretended in this case that if the finding was right that the judgment was wrong. If a wrong judgment be rendered upon a verdict, either general or special, it is manifest-upon the record, because both verdict and judgment are parts of the record. But an agreed statement of facts, which constitute the evidence in a case, can not be regarded as a special verdict, and forms no part of the record unless made so by bill of exceptions. The statute defines what a record shall be, and of what it shall be composed. Matters which are not. properly part of the record, can not be made so by being improperly inserted in the record. An agreed statement of facts is-no more part of the record than a deposition or any other evidence which may have been inserted improperly.

"We are thus explicit because we have found it a mistake of quite frequent occurrence upon the circuit, to regard an agreed statement of facts, inserted in the record, to be matter of record, both iu civil and criminal cases.

The only mode in which the evidence, upon which the court passed in their finding, can be brought under consideration upon writ of error, is to make it matter of record by bill of exceptions, upon motion for a new trial, or by excepting to the ruling of the court upon the evidence during the trial. An agreed statement of the evidence can not take the place of a bill of exceptions as a special verdict.

If the error assigned be to the finding of the court, and the evidence upon which they acted is not before us, it is impossible to determine whether it was right or wrong; but the presumption of law is, that the finding was warranted by the evidence. In such case judgment would be affirmed of course. The present is a very proper case in which to settle this question of practice, because we have examined the agreed statement of facts sufficiently to determine that no other result than the one we have arrived at would have followed, had it been regularly before the court by bill of exceptions. Judgment affirmed.


text:
    *Charles J. Wolverton v. The State of Ohio.
    On an indictment for bigamy, the admissions of the defendant as to a prior marriage may be given in evidence to prove the fact of such marriage.
    This is a writ of error, directed to the court of common pleas of Cuyahoga county.
    The bill of exceptions shows that the defendant below was indicted for the crime of bigamy; that on the trial the prosecutor, to establish the fact of the former marriage, offered to prove by the admissions of the defendant, that .he had been married in the State of Michigan, which testimony was objected to by the defendant ; but the objection was overruled and the testimony received; to which ruling of the court exceptions were taken in due form; and the question now presented for decision is, whether the court of common pleas erred in receiving this testimony.
    Noble & Treat and Rowland D. Noble, for the plaintiff in error:
    Upon the recognized principles of law, that the best evidence which can bo obtained shall be produced, a fact which, by the law of the land, is required to be made a matter of record, should be proven by the production of the record, or of an exemjfiified copy thereof; but in cases of marriage, the rule prevails, to prove the fact before a jury by means of a witness who was present at the celebration, or by the production of the register, or proof of a copy of the same, together with proper evidence of the identity of the parties. 2 Stark. 505 (new ed.); 2 Greenl. 377; Arch. Crim. Plead. 592, 593.
    In criminal prosecutions, the marriage should be proven to have been celebrated in conformity with the laws of the country where it took place. 2 Stark. 653. And it has been *held that the prosecutor should prove what the law of that country was. 2 Stark. 510.
    A valid marriage must be proved ; the law will not presume it in criminal prosecutions as it will in civil cases. The proof should be of the highest character, and although the prisoner has, by cohabitation and otherwise, acknowledged the first marriage, and although such proof would be sufficient for the purpose of a civil action, except for adultery, it is insufficient in a prosecution of this nature. Arch. Crim. Plead. 594; 2 Stark. 219; Freeman’s case, 2 Stark. 654; People v. Humphrey, 7 Johns. 314; 1 East’s P. C. 470; Morris v. Miller, 4 Burr. 2057; Birt v. Barlow, Doug. 171; The State v. Raswell, 6 Conn. 446; 2 Stark. 506, n.
    The case of the People v. Humphrey, 7 Johns. 314, is exactly in point. In that case, Humphrey was convicted of bigamy upon his own confessions of his first marriage. The court there say; that the confessions of a prisoner out of court, without any other evidence of a marriage in fact, were insufficient for his conviction on a charge of bigamy.
    Henry Stanbery, attorney-general, for the state.
    The only question presented in this case is, whether, on a trial for bigamy, the confession of the defendant of the first marriage, made whilst he was cohabiting with the alleged first wife, is admissible.

      The cases upon this point are not uniform, as the court will see by reference to note Nb. 782, 3 Phillips’ Ev.
    In New York and Connecticut, the decisions have been against such proof; whilst in Pennsylvania and Maine they are the other way.
    The New York case (People v. Humphrey, 7 Johns. 314) is founded on a dictum of Lord Mansfield in Morris v. Miller, 4 Burr. 2056. The case before Lord Mansfield was an action for criminal conversation. The confession there was not by the husband, bub by the defendant in the action, who might be mistaken as to the fact, or derive his knowledge *from hearsay. Now, in such a [175 case, would it be proper to admit the confession of the husband— the plaintiff—to make out his own case ?
    Obviously there is a distinction between that case and the one at bar. Lord Mansfield does say, in the course of the case, that the confession of the first marriage is not admissible in bigamy. Sir Eletcher Norton, arguing for the plaintiff, maintains the contrary, after the dictum of Lord Mansfield, and says that “ confession would be good evidence on a prosecution for bigamy.” It would seem from this that there was not, at that day, a settled rule as to such testimony, and that the American cases, which have proceeded upon the dictum of Lord Mansfield as the English rule, have given too much effect to what was said.
    The case of Morris v. Miller was decided in 1767. The case of Joseph Freeman, which was an indictment for bigamy, was decided in 1795, and is to be found in 1 East’s P. C. 470. The confession of the prisoner as to his first marriage, coupled with other circumstances tending to show the marriage, was admitted. Some of the judges thought that the acknowledgment alone would have been sufficient, and that the paper produced in evidence was only a confirmation of such acknowledgment; and one of them observed, upon the case of Morris v. Miller, that there was a distinction between an action for a criminal conversation and an indictment for bigamy ; that in the former, the acknowledgment and cohabitation of the plaintiff could not prove his marriage against the defendant, and the acknowledgment of the defendant in such an action, of the plaintiff’s marriage, might be of a fact not within his own knowledge; as it must be if a defendant in bigamy admitted his own marriage. Mr. East remarks, upon this ease, that it is difficult to say that the acknowledgment is not

      evidence, like the acknowledgment of any other matter in pais, where it is made by a party to his own prejudice at the time, and that its weight should bo left to the jury.
    *A recent English case, Regina v. Simmons, 47 Eng. C. L. 164, shows that what was said by Lord Mansfield in Morris v. Miller, is not considered law in England at this day. The syllabus of that case is as follows :
    “On an indictment for bigamy, the first marriage may be proved by the admissions of the prisoner, and it is for the jury to determine whether what he said was an admission that he had been legally married according to the law of the country where the marriage was solemnized.”
    The weight of authority is clearly in favor of the admissibility of the testimony; so, too, is the reason of the thing.
    The confession of a party, that the woman with whom he lives and cohabits is his wife, ought to be admitted against him. He has full knowledge of the fact, and it ought not to be presumed, in his favor, that what he has so stated is false, and the cohabitation a criminal intercourse.
   Birchard, C. J.

The plaintiff was indicted for the crime of bigamy, tried, and convicted at the late March term of the court; of common pleas for the county of Cuyahoga. On the trial the prosecutor offered to prove the first marriage, which was solemnized at Detroit, in the State of Michigan, by proving, among other circumstances, the admissions of the defendant made while living with the first wife. This testimony was objected to; the objection was overruled, and a bill of'exceptions taken. The first assignment of error presents the question : Did the court err in permitting this evidence of the plaintiff’s confession to be given to the jury to prove the marriage ?

Upon the propriety of admitting such evidence, the authorities are conflicting, as will be seen by a reference to the cases cited by counsel. It is said on behalf of plaintiff that the ruling of the court was in conflict with the well-established rule requiring the best evidence to be produced of which the nature of the case admits, and that, by the law of the State of Michigan, records are required to be kept of all *marriagos, and that the prosecutor should have been required to produce the record. Upon this theory, it would follow that the marriage could not be proved by a person present at the ceremony ; and yet such proof is always admissible.

Indeed, reasoning upon principle, it would be difficult to assign a reason against the competency of evidence of confession in this case, which would not be equally valid against the proof of any confession, or against receiving a plea of guilty to the indictment. It is true that confessions of marriage may be made by persons living in a state of fornication, with a view to secure the offenders from public censure, and thus make a case unlike the ordinary cases of confession against one’s interest. This, in our opinion, furnishes no reason for rejecting the evidence as incompetent. It shows rather that the confession thus made should not be relied on and held by the jury, when unsupported, sufficient to work a conviction. In such a case, and indeed in all cases where the confession of a party is given in evidence, its force must depend upon the circumstances under which it is made; and of these circumstances the jury, under the advice of the court, are the proper judges. It is rather a question of credibility than competency of the confession, and, like all confessions, to be considered of much or little weight according to the attending circumstances; and these may be such as render it very conclusive of the fact, or as tend very little to sustaining it.

Were courts to reject proof of confession when the time, manner, and circumstances under which it was made, were such as tended to weaken or destroy its force, they would be substituting, in fact, their own judgment for that of the jury, and would make it their business to weigh and estimate the value of evidence to the exclusion of those who, by the law, are the legitimate tribunal for that purpose.

The error next assigned is, that the verdict was rendered against the plaintiff, when, by the law of the land, it should have been rendered in his favor.

The plaintiff can take nothing by this assignment. If it *were well founded, the plaintiff should have moved for a new trial, and failing in that, should then have taken a bill of exceptions presenting the entire evidence in the case.

Judgment affirmed.


author: Hitchcock, J.

text:
    Decoise M. Goodsill v. The Brig St. Louis.
    An action for supplies furnished to a steamboat, or other water-craft, can not be sustained against the boat by name, unless such supplies were furnished while the craft was navigating the waters within, or bordering upon this state.
    This is a writ of error directed to the court of common pleas of Lucas county.
    The original action was assumpsit, under the law authorizing suits against steamboats and other water-crafts by name.
    It was tried by the court, the intervention of a jury being waived, and judgment rendered in favor of the defendant.
    Whereupon a bill of exceptions was tendered by the plaintiff, and allowed by the court. This bill of exceptions discloses, in substance, the following facts: The plaintiff proved to the court that he had expended $350, in repairing and refitting the brig St. Louis, between the 1st day of August and the 1st day of December, 1844, as in his bill of particulars set forth. That such repairing and refitting was done under the procurement and direction of the master of the brig, at the city of Detroit, in the State of Michigan. That before and after said repairs, said brig had navigated the waters of Lake Erie from Buffalo, in the State of New York, to ports and places in the State of Ohio, and in the State of Michigan. The plaintiff further proved, and gave in evidence, an act of the senate and house of representatives of the State of Michigan, entitled “an act to ^provide for the collection of demands against boats and vessels.”
    This act is set forth in the bill of exceptions. In its several features, it is like the law of Ohio upon the same subject, except that the “ craft ” is not made liable for the trespasses committed by its officers. The plaintiff proved that this act had been in force in the State of Michigan, from the time of its passage to the time of the trial of this case. Having made this proof, he rested.
    Whereupon the defendant moved the court to nonsuit the plaintiff, which motion was sustained, and judgment of nonsuit was rendered.
    The errors assigned are, in substance, that the court erred in rendering this judgment of nonsuit.

      Hill & Bennett, for plaintiff.
    Daniel MoBain, for defendant.
   Hitchcock, J.

Two questions seem to be presented for consideration in this case. 1. Can an action be sustained in this state under the law of February 26, 1840, “providing for the collection of claims against steamboats and other water-crafts, and authorizing proceedings against the same by name,” where the repairs made, or supplies furnished, are so made or furnished within the territory of another state? 2. If such action can not be sustained under the law of this state, can a law of a sister state, somewhat analogous to our own law, be enforced by the courts of this state?

As to the first question, it would seem to have been virtually decided in the case of Steamboat Champion v. Jantzen, decided at the present term of the court, in which it was held that the boat was not liable for an assault and battery, committed by the captain or mate upon a hand, unless the trespass was committed while the boat was navigating the waters within or bordering upon this state ; that where the trespass was committed entirely without and beyond the territory *of this state, the boat, by name, could not be sued, but that the party injured, so far as the courts of this state are concerned, must be left to his common-law remedy. Tthe act, in its phraseology, makes no difference between contracts and torts—that is, between such contracts and torts as are therein specified. If we are right, then, in the former decision, and we still entertain the same opinion, it follows that the evidence offered by the plaintiff, in the case now before the court, was not sufficient to authorize him to recover against the watercraft by name. It did not even conduce to prove a case which would authorize him thus to recover. The court of common pleas, therefore, decided correctly in ordering judgment of nonsuit.

As to the other question, it is sufficient to say, that this mode of proceeding is an innovation upon common-law remedies. So far as the action of the courts of the state are concerned, common-law remedies can be varied or changed by our own legislature alone. The legislature of another state can neither limit nor enlarge the jurisdiction of our own courts, nor vary or change the remedy prescribed by our own laws for their action. The law of the place where a contract is made, is the law of the contract whenever an attempt may be made to enforce it. But the law of the remedy depends alone upon the law of the state where that attempt is made.

By the law of Ohio, supplies furnished to a steamboat, or other water-craft, must be sued for as at common law, unless such supplies are furnished while the craft is navigating the waters within or bordering upon this state. The fact that Michigan has a statute furnishing a different remedy in such case, can not affect the courts of this state;

The judgment of the court of common pleas is affirmed, with costs.


text:
    *The City of Cincinnati v. Alfred D. Coombs and others.
    An ordinance -of tbe city council of Cincinnati, which provides for the review of damages assessed to the owners of property appropriated in opening a street, and does not secure to each party aggrieved the right to select two of the five freeholders comprising said board of reviewers, violates the act passed March 16, 1839.
    The city can not justify under proceedings which are a violation of the charter; and a party having sought redress under a mistaken belief that the city council had provided adequate means, may abandon that remedy and seek it by action.
    This is a writ of error directed to the superior court of Cincinnati.
    The writ is sued out to reverse a judgment of that court rendered in a special action on the case, brought by the defendants in error, to recover damages for tbe taking of their property, by the plaintiffs in error, and appropriating the same to their own use. The declaration set forth, that on a certain day therein named, the plaintiffs being seized of certain real estate in the city of Cincinnati, the defendants entered thereon, took and appropi’iated it to their own use, without rendering the plaintiffs any compensation therefor, and claiming reimbursement for the same. To this the defendants pleaded the general issue; and on the trial offered in evidence (subject to all just exceptions) the charter, and sundry ordinances of said city, together with the transcript of certain proceedings, had under the direction of the defendants, and appended to the bill of exceptions, and thereupon asked the court to charge the jury, that the said charter and ordinances, together with the matters disclosed in said proceedings, wore a bar to the plaintiffs’ action; which instructions the court refused to give; and thereupon the defendants excepted. The jury found a verdict for the plaintiff's; assessing their damages to $8,827.61, upon which judgment was given.
    The error relied upon is the refusal of the court to charge the *jury, as prayed for, that the matters referred to were a bar to the plaintiffs’ action.
    The facts material to an understanding of the question are these: The defendants, by an ordinance of the city council, passed on July 12, 1841, undertook to extend Green street, in the city of Cincinnati, from Elm street to Western Row, in the doing whereof, they condemned to the use of the city the premises in the plaintiffs’ declaration described. After the appropriation had been made, the plaintiffs made an application to the trustees, or city council aforesaid, demanding remuneration for the injury sustained by thorn. And thereupon, alter much delay, the council, by resolution, on -, 1844, constituted George W. Jones, William Rankin, and William Stephenson a board of assessors, to ascertain the amount of damages sustained by the various individuals, whose property had been thus appropriated to the uso of the city, and to assess the benefits derived to those through or near whose propertj’- the street was laid opon. The board mot; and, on the 18th day of Juno ensuing, made a report to council, assessing damages and benefits; and among others, stating the amount of damages sustained by those plaintiffs at a certain sum. Thereupon, within four weeks after the filing of said report, the plaintiffs notified the council, that they claimed a review of the appraisement, and named for that purpose, and on their behalf, John P. Foote and David T. Disney, two disinterested freeholders of the city, to act in conjunction with two others, to be selected by the council, as a board of review. The council refused to entertain the application, or to make the appointment; but, on the contrary, directed their clerk to give notice to all persons whomsoever, interested in the opening of said street under said ordinance (as also to those interested under another ordinance, passed on the same day, for the opening of another part of Pearl street)—both those whose property had been seized and taken, and those upon whose property bonefits had been assessed—to meet, and choose jointly, and in their
      joint behalf, *two freeholders, to act in conjunction with two others, on the part of the city, as a general board of review, to revise the entire assessment and valuation made by the original board of assessors. It was conceded that the plaintiffs refused to sanction any such appointment, or to be bound thereby. Nevertheless, the defendants went on, and constituted such a board of review; refusing to make any other. The board of review, after much delay, reported on -, 1845, that in consequence of the difficulties of the subject, they were unable to'agree upon all the matters before them ; and so referred back the original report to the council, without alteration. Since when, nothing has been done by the defendants toward the satisfaction of the plaintiffs’ claim. It appears further, by the finding of the jury, that the premises of the plaintiffs have been actually taken possession of by the defendants, and appropriated to their own use, and in eonrequence thereof, the plaintiffs have been endamaged in the sum of $8,827.61; for which no compensation whatever has been made them.
    Samuel M. Hart, for the plaintiff in error, made the following-points :
    1. A suit like this can not be sustained when a statutory remedy is provided. Scovil v. Griddings, 7 Ohio, 216, pt 2; Hickox v. Cleveland, 8 Ohio, 583; Rhodes v. Cleveland, 10 Ohio, 161; Stowoll v. Flagg, 11 Mass. 364.
    2. The act of March 16, 1839, under which these proceedings were had, is constitutional. Symonds v. Cincinnati, 14 Ohio, 147; Brown v. Cincinnati, Ib. 541.
    3. The ordinances which affect this case conform to the charter of the city, and are accordant to the constitution and the laws of the state.
    4. The proceedings themselves are not void, but are conclusive upon all who made themselves parties thereto.
    ^Spencer & Corwin and J. A. Pugh, for the defendants in error, made these points :
    1. The remedy provided by the charter in cases where property is condemned or appropriated to public use is cumulative and does not deprive a party of his common law remedy.
    The charter of the city is unconstitutional, because it does not provide an adequate and complete remedy; because it does not mako any provision which will enable the party to compel compensation in money, and because it provides that property shall be condemned and vacated, and an irremediable injury inflicted, as a condition precedent to any acts done to compensate for the injury.
    3. The ordinance of the city council is unconstitutional because the remedy is inadequate and unjust; because it leaves the person injured at last with simply a claim upon the city; because it postpones the right of a party to resort to this remedy; and because the tribunal constituted under this ordinance has necessarily an interest adverse to these parties.
    4. The ordinance of the council is not in pursuance of the charter ; does not give the party aggrieved a right to select two reviewers ; and unites the interest of the parties whose, property is injured, with the interest of the parties assessed.
    5. The remedy is inadequate and incomplete, the only provision for payment being by special tax, which tax is paid into the general treasury.
    6. The city council has denied to the party aggrieved that remedy to which by the charter he is entitled.
    7. The party has exhausted his remedy without obtaining relief, and is compelled to resort to the common law tribunals.
    In support of these propositions they submitted the following authorities :
    *Baker v. City of Boston, 12 Pick. 193; Stevens v. Middlesex Canal Co., 12 Mass. 468 ; Perry v. Wilson, 7 Mass. 394; Gardener v. Village of Newburg, 2 Johns. Ch. 168; Bloodgood v. Mohawk and Hudson R. R. Co., 18 Wend. 18; Rogers v. Bradshaw, 20 Johns. 744; Jerome v. Ross, 7 Johns. Ch. 343; Wheelock v. Pratt, 4 Wend. 650; 2 Kent’s Com. 389; 5 Ohio, 143; Foote v. City of Cincinnati, 11 Ohio, 409 ; 1 Com. Dig. 447, letter C; 1 Ch. Pl. 144; Reese v. Robinson, 2 Burr. 893; 1 Saund. 136, n. 4; Crittenden v. Wilson, 5 Cow. 165; Scidmore v. Smith, 13 Johns. 322; Farmer’s Turnpike v. Coventry, 10 Johns. 389 ; Almy v. Harris, 5 Johns. 175 ; 1 Kelley, 536 ; 11 Pet. 638; 18 Pick. 501; 18 Wend. 443; 4 Hill, 140; 5 Paige, 143 ; 3 Paige, 76; 2 Term, 385; Fire Ins. Co. v. Wilson, 8 Pet. 291; 4 Hill, 381; Wheat. Selw. 1094; People v. Mayor, 10 Wend. 493; 8 Pet. 291; 7 Eng. Com. Law, 243; 14 Ib. 241.
   Birchard, C. J.

Several very important questions have been presented in this case, and very fully argued; but, in our opinion, ono or two material questions are decisive of the controversy, and we shall notice these only.

The first in importance regards the construction placed by the city council upon section 2 of the act to amend the city charter, passed March 16, 1839. By this section, the city council have power to open, by ordinance, any street, and to condemn any real estate necessary for that purpose, by making the owners compensation for the value thereof, or for the damages they may sustain thereby; and to make any ordinance not inconsistent with the act, to ascertain all damages and benefits that may accrue to the real estate in the section, etc., and to provide for a final adjustment by the assessment and collection of a special tax. “ Provided, that the city council shall provide by ordinance for the review of any assessment or valuation, or any part *thereof, which may be made under the provisions of this section by the appointment of two freeholders on the part of the city, two by the parties aggrieved, and the fifth by the four thus appointed.” In the action of the city council, this proviso has been so construed as to deny to the defendants in error their right of selecting two of the freeholders to act as a part of the board of review. The property of several persons was affected by the improvement in question. Some sustained heavy damages; others were taxed to pay the damages. The ordinance, as construed by the city council, requires all those interested to unite in selecting two freeholders; and therefore they refused and omitted to place before the board the two persons selected by defendants to act in their behalf in reviewing the assessment of damages returned by the board of assessors. Wo do not think this was in accordance with the spirit of the charter. It was never the intention of the legislature to authorize a condemnation of their property, and to deny them the right to be heard before a jury of their coun try on a claim for damages, without providing the means of a full and fair investigation before a fair and impartial tribunal. In the first instance, the charter is so drawn as to permit the city authorities to name the person to assess damages; and by that assessment, when returned, the city may well be bound. It should be final upon the city, for it is the assessment of its own tribunal; but the aggrieved property holder should by no moans bo compelled to abide the determination of the board of assessors so chosen. He ought to have his day before a court of Ms choice, in a matter like this, where the proceeding is designed to supersede the necessity of a resort to the courts of justice.

In the proceedings offered in evidence below, as a defense to this suit, it appears that the only committee of review allowed to the defendants, was a committee chosen—two on tho.part of the city, two selected by the majority vote, not only of all the owners of condemned property who had sustained damages in consequence of the improvement, but of *all those whose property was assessed for the payment of those damages, united together; and these four were to select the fifth. This process, instead of giving each of the owners of condemned property privilege of selecting two disinterested freeholders, and placing them upon the board, gave to those equally interested—those who eventually would be required to pay all damages, the power of defeating their choice, and of having placed, upon the board of reviewers, men more directly opposed to their interests; and less likely to be acceptable, than any that the city council would have selected. If the object was to give an equal chance and a summary remedy, a more absurd mode of accomplishing it, or a surer method of defeating it, could not well be imagined. The act of incorporation will not bear a construction that will sustain the practice of the city council under it, and can not receive it without a departure from the spirit of the act itself.

Two things are provided for: 1. The assessment of damages for property appropriated. 2. Assessment of a special tax, to create a fund adequate to discharge these damages. These are distinct things, necessarily antagonistical. The first must be ascertained as a basis upon which to act in ascertaining the second. In the first, the party claiming is represented; in the second, the parties paying. From the very nature of the respective duties, they should not be blended and imposed upon the same board. Again, each individual suffering a destruction of his property is entitled to prompt payment. This the charter was intended to provide for. Hence, the necessity of a tribunal that could promptly adjust the sum to be paid. Nothing can be more cumbersome or annoying than to be subjected to the delays attendant upon the adjustment of numerous distinct claims, which may require an investigation of weeks or months, whereas the review contemplated by the charter, is a speedy mode of settle-merit, a board for oach claimant that asks a review, and whoso powers and duties are to be limited to an investigation of the merits of his individual claim, ^leaving all of the damages assessed to non-complaining property holders as originally assessed; and all the special taxes required for the payment of the aggregate damages, to be assessed by a proceeding necessarily distinct.

The only other question which we have considered is, whether this action can bo maintained, inasmuch as the defendant elected to seek the redress intended to be secured by statute in the first instance. Had the statutory provision been made effectual by proper action on the part of the city council, we should, in accordance with prior adjudication, have held that the common-law remedy was superseded. But even if the ordinance would bear a construction consistent with our views of the statute, which is doubtful, it received from its framers a different interpretation and the statutory remedy was denied. The city, then, has violated the authority under which it assumed to act, has disregarded the terms upon which this special power was granted, and is a wrong-doer from the beginning. Having disregarded the authority of the statute, it can not claim the protection that might otherwise have been made effectual.

Judgment affirmed.


author: Avery, J.

text:
    Thomas Mawhorter and others v. John Armstrong and others.
    A bill in chancery will not lie to sot aside a sale made by an administrator, claiming that the same is void because made without any order of sale of the court of common pleas; the sale in such case being void, and there being adequate remedy at law.
    This is a bill in chancery, reserved in Mercer county.
    The bill states that William A. Huston, the father of complainants, died intestate, seized of real estate in Mercer and ^Shelby counties, which descended to them as his children and only heirs. At the April term, 1827, of the common pleas of Mercer county, the administrator of Huston’s estate filed a petition for leave to sell so much of the real estate as might be required to pay the debts. The land sold under this petition did not produce the amount required, and at the December term of the same court, the administrator filed a supplemental bill for the sale of other lands, situate on the west side of St. Mary’s riven At the April term, 1829, of the court, a return was made of lands appraised, including some acres on the west side of St. Mary’s river, marked on the plat returned as lot 2, No. 19. At the November term of the court, the administrator reported that he had sold said lot 19 to John Armstrong and David Armstrong, together with other lots and lands. The court confirmed the sale of lot 19, and ordered a deed, which the administrator executed and delivered to said John and David Armstrong. Since the execution of this deed, both John and David Armstrong have died, and their heirs are made defendants to this bill. The bill charges that no notice was ever given to the complainants of either the original or supplemental petition to sell the lands of William A. Huston, deceased; that the commissioners were only authorized by the order of court to assign dower to the widow, and had no authority to appraise lot 19 with a view to a sale; that said lot 19 was not included or mentioned in either the petition or supplemental petition for the sale of the lands of said estate; that no notice was given of the time and place of sale of lot 19 ; that said John Armstrong, one of the purchasers of this lot, was one of the appraisers who had valued it. The complainants aver, that said Huston, their ancestor, died seized and possessed of this lot, and that the conveyance by the administrator to the Armstrongs was fraudulent and void; and they pray the court to decree, that the deed be set aside and canceled; that the defendants convey all their right and interest in lot 19 to complainants; and that general relief.may be decreed. Some of the defendants answer for ^themselves, and some, being minors, by their guardian ad litem. The answers filed by the defendants who are of age, deny generally the allegations of the bill; but they insist, whether any or all of them be found true or untrue, they can not affect legally their rights in this suit, or their title to lot 19.
    Byers, Thompson & Conklin, for the complainants.
    W. M. Crane, for the. defendants.
   Avery, J.

The first question presented for our consideration is, whether a case is here made for the exercise of chancery powers, in behalf of the complainants; whether, admitting the truth of all the allegations in the bill, this court can pronounce a decree in their favor, in accordance with the prayer, either for specific or general relief. A court of chancery will not entertain jurisdiction where there is plain, adequate, and complete remedy at law. Does this bill show such a case ? It avers that William A. Huston died seized and possessed of said lot 19, and that the same descended to complainants as his children and heirs at law; that no notice was over given to them of the filing and pendency of either the original or supplemental petition of the administrator for leave to sell the real estate ; that this lot 19 was not included or mentioned in either of the petitions for tho sale of the intestate’s lands. Taking these allegations of the bill to be true, it is very certain that the court of common pleas, then acting as a court of probate, did not exercise jurisdiction, either of the person or land. The sale of this lot 19 was of course void, according to the former decisions of this court; and the remedy was perfect at law, by an action of ejectment. The defendants to this bill now claim a decree upon the principles above recognized. The discussion in the case, however, has turned principally upon another question, which it was supposed might arise ; and that is, in what light a sale is to be viewed to a person who *had acted as one of the appraisers of the property? The inquiry has also been made, whether the principio decided in the case of Armstrong v. Huston’s Heirs, 8 Ohio, 552, is to be considered as correctly settled, according to the authorities ; and if so, whether any effect is to be given to tho act of 1811, intended to make valid all sales of administrators to appraisers, where no actual fraud existed. The court, however, have declined entering, at this time, upon the examination of any of these matters, because the complainant’s case, upon their own showing, is one for which there is ample remedy at law, and for that reason they are not entitled to make their appeal to a court of equity. The bill is dismissed.