apply to the judgments of the justices of the peace thus provided for. Appeals from such judgments, in the absence of any other provision of law in regard to them, would be controlled by the General Statutes. And so it was held, in McClung v. Manson, that the appeal from the judgment of a justice of the peace, provided for in the act of 1876, should be to the district court and not to the municipal.

Our attention is called to section 6, c. 209, Spec. Laws of 1876, which was not referred to in McClung v. Manson, and it is claimed that it shows an intention that all appeals from the judgment of justices of the peace in the city of St. Paul should be taken to the municipal court. Chapter 209 provides for the merger of the court of common pleas of Ramsey county with the district court, and was approved the day after. Chapter 211, § 6, reads: "All recognizances and commitments for criminal offenses shall be made returnable to the said district court, and all appeals from justices of the peace, except from justices in the city of St. Paul, shall be taken to said district court."

This does not show an intention to alter in any respect the laws then in force regulating appeals from judgments of justices in said city, but does show an intention not to make any change. A change would have been effected had there been no exception in the section. As the laws then stood appeals from justices existing at the passage of the act of 1875 were to be taken to the municipal court; those from the justice's, provided for by chapter 211, to the district court. The effect of the exception was to leave the two classes of appeals as they then were, and avoid abolishing appeals to the municipal court provided for by the act of 1875.

The order is affirmed.

THE STATE ex rel. JOHN TOSNEY, Relator, vs. A. LEE,

Respondent.

Filed November 26, 1879.

Where the charter or the amendment to a charter of a municipal corporation provides that it shall be submitted to a vote of the electors and go into effect if there be a majority in its favor, a subsequent act of the legislature recognizing the charter as in force proves (prima facie) the acceptance of the charter or amendment. Courts take judicial notice of acts of the legislature creating municipal corporations. Judgment reversed for exclusion of cross-examination.

Where an act, to be an offence, must have been done within a particular place, although there be no actual proof of the place where the act was done, if it be apparent from the whole case that in the trial it was taken for granted that the act, if done at all, was done within the place, and there was no objection on the trial to the absence of formal proof of it, the judgment will not be reversed merely because there was no such formal proof.

Certiorari to the city justice of Northfield.

W. S. Pattee and A. D. Keyes, for respondent.

Perkins & Whipple, for relator.

GILFILLAN, C. J. The act under which the relator was prosecuted was an amendment to the act incorporating the city of Northfield. The original act of incorporation (section 4, c. 1, of Ch. 17, Sp. Laws 1875) provided that there should be an election, at which the electors of the territory proposed to be incorporated should vote for or against the charter, and that the city of Northfield should become incorporated if a majority should be in favor of the charter. The amendment was to take effect and be a part of the charter upon a similar election and vote in favor of it.

1

The objection is made that it was not proved that the charter and amendment were accepted by the votes of the electors. It is well settled that courts will judicially notice acts of the legislature creating municipal corporations. Dillon Mun. Corp. § 50. That the act of incorporation of the city of Northfield was in force as a law, and consequently that it had been properly accepted by a vote of the electors, has been recognized by the legislature by the passage of three amendments to it. See Sp. Laws 1876, c. 37; of 1878, c. 50; and of 1879, c. 77. That the amendment under which this prosecution was had, that in 1878 was in force as a law, and consequently had been properly accepted, was recognized by the legislature in the act of 1879.

After these recognitions it was not necessary for the prosecution, in the absence of evidence to the contrary, to prove the adoption of the charter or amendment by the vote of the electors. The questions put to the witness, Tallman, on cross-examination were proper. The answers might tend to show the witness interested in securing a conviction, which would go to discredit his testimony.

For error in excluding those questions, the judgment in that case (Cal., No. 8) must be reversed.

In the other case (Cal., No. 11) the only point made here is that the evidence does not show the sale to have been made within the city of Northfield. There seems to have been no formal proof of the place of sale, except that it was at defendant's store, which was spoken of as though it were a wellknown place. From the whole case we are satisfied it was on the trial taken for granted, and not questioned, that the store mentioned is within the city. No objection was made at the trial that formal proof of the fact was wanting. The attention of the justice was not called to it. For these reasons the point ought not to prevail here.

The judgment in that case is affirmed.

MATILDA B. TENNESS, Appellant, vs. THE NORTHWESTERN MUTUAL LIFE INSURANCE Co., Respondent.

Filed November 26, 1879.

A policy of life insurance assured the life of a husband "for the sole use of M. B., his wife, in the sum of $1,000 for the term of ten years from date," and continued, "and the said company doth hereby promise and agree to pay the said sum assured at its office, to said person whose life is assured, or assigns, in ten years from the date thereof, viz.: in the year when the said person shall have attained the age of 55 years, or in case of the person's death, if the person whose life is assured, to the said beneficiary or assigns in sixty days after due notice and proof of such death. ** In case of the death of the said beneficiary before the death of the person whose life is assured, the amount of the insurance shall be payable at maturity to the heirs or assigns of the person whose life is assured." The husband did not die within the ten years. Held, that the wife cannot recover the one thousand dollars; that the policy enured to her only in case the husband died within the term, leaving her surviving.

Appeal from order of district court, county of Ramsey, sustaining demurrer to plaintiff's complaint.

Daniel Rohrer, for appellant.

G. L. & C. E. Otis, for respondent.

GILFILLAN, C. J. Action on a policy of insurance upon the life of Syvert D. Tenness, plaintiff's husband. By the policy the company did "assure the life of Syvert D. Tenness for the sole use and benefit of Matilda B. Tenness, his wife, in the sum of one thousand dollars, for the term of ten years from date;" "and the said company doth hereby promise and agree to pay the said sum assured at its office, to said person whose life is assured, or assigns, in ten years from the date hereof, viz: in the year when the said person shall have attained the age of fifty-five years, or in case of the previous death of the person whose life is assured, to the said beneficiary or assigns, in sixty days after due notice and proof of such death, (the balance of the year's premiums and all notes given for premiums, if any, being first deducted therefrom.) In case of the death of the said beneficiary before the death of the person whose life is assured, the amount of the insurance shall be payable, at maturity, to the heirs or assigns of the person whose life is assured." The husband being still alive at the end of ten years, the wife brings this action to recover the one thousand dollars. The court below sustained a demurrer to the complaint.

The contract is not one purely of life insurance. So far as it is an agreement to pay, upon the death of the husband within the ten years it assures his life, and is a contract of of life insurance; but the agreement to pay at the end of the ten years, though the husband be still alive, is not one assuring his life. By the terms of the policy, so far as it assures continuance of life for the term of ten years, it is for the sole use and benefit of the wife if she survive the husband; and the clause that the company assures the life of the husband for the benefit of the wife refers to the contract so far as it assures the life. It would probably control the entire contract, including the promise to pay absolutely at the end of ten years, were it not that that promise is explicit to pay at the end of the term, not to her, but to the person whose life is assured, to-wit, Syvert D. Tenness. The scheme of the contract is very simple.

It is an agreement by the company to pay Syvert D. Tenness $1,000 at the end of ten years, and in the contingency of

his death within the term, to pay it on that event, to the wife for her sole use and benefit. If she should survive him, and if she should die before him, then to pay it not to her representatives, but to his heirs or assigns. The part of the policy setting forth the specific promises of the company shows how the insurance is for her sole use and benefit, and that it was intended to enure to her only in case of the husband's death during the term, leaving her surviving. Order affirmed.

CHRISTOPHER CARLI, Respondent, vs. SEYMOUR, SABIN & Co., Appellants.

Filed November 26, 1879.

Defendants, for a consideration paid to them, agreed in writing with the plaintiff to lay out between two points a road thirty feet wide, grade it to the width of twenty feet, so as to make a good, passable roadway, not steeper than a rise of one foot in ten, and convey the land covered by the road to plaintiff. They graded the road in part, and then conveyed to him, but refused to complete the grading. Held, that plaintiff is entitled to recover what it will cost to complete the grading and put it in the condition contemplated by the contract.

Appeal from judgment of district court Washington county. J. N. & Ira W. Castle, for respondent.

Marsh & McCluer, for appellants.

GILFILLAN, C. J. The defendants, for a consideration paid to them by plaintiff, agreed with him in writing that before a day named they would lay out between two points indicated, a street thirty feet in width, grade it twenty feet wide between the two points so as to make a good, passable roadway that should not be steeper than a rise of one foot in ten between the points, and then convey the land covered by the street to plaintiff.

After the day named defendants, having laid out but only partially graded the street, conveyed the land over which it run to plaintiff, and refused to complete the grading.

The referee who tried the cause allowed the plaintiff, for breach of the contract, what it would cost to complete the grade so that it would conform to the terms of the contract. This is alleged as error.