Volume 42 — Missouri Reports

<p>1. Instructions.—Instructions Based upon a state of facts not in evidence should not Be given.</p> <p>2. Instructions—Verdict—Reversal.—The giving of such instructions, if the jury were thereby manifestly misled in their verdict, will Be good ground for the reversal of the cause.</p>

Louis Circuit Court. 1. This is not an action of assumpsit, because it is not founded on any agreement either express or implied. Assumpsit lies to recover damage for the non-performance of a parol or simple contract.

<p> Error to St. Louis Circuit Court. </p> <p>I. This was a valid and sufficient contract of insurance—Ang. on Eire and Life Ins. §§ 34, 47; Union Mut. Ins. Co. v. Com. Mut. Ins. Co., Law Rep. vol. 18, p. 610; 2 Dutch. 268; 2 Maine, 259; 9 How. 390; 3 Dutch. 645; 29 Barb. S. C. R. 312 ; 22 Barb. 527.</p> <p>The defense of fraudulent concealment of the fact of the fire is predicated solely on the alleged transaction of Waterman more than a month after February 9 th. The defenses of limitation are predicated solely on the conditions of the extended policy.</p> <p>So with the defense of the non-payment of the premium, for the contract did not require prepayment of the premium.</p> <p>The contract of insurance sued on cannot be defended by showing a failure to comply with a subsequent one.</p> <p>I. The evidence shows that the policy was made out the same day as the contract between the parties, ’ and was ready for delivery upon payment of premium, and not otherwise. It further shows that Waterman did not consider himself insured until he got the policy, for he got it as soon as he heard of the fire and paid the premium.</p> <p>H. By the second section of defendants’ charter all persons who become insured in the company become members of the company, and are bound by the charter and by-laws made under it.</p> <p>UT. The evidence does not show any waiver of the terms of the by-laws, even if the secretary had power to waive them, which is denied—Vide Baxter v. Chelsea Mut. E. Ins. Co., 1 Allen (Mass.) 294.</p> <p>IV. Both the charter and conditions of insurance attached to the policy, and made part of it, require the suit to be brought at the next term of any court in the county sitting sixty days after refusal to pay. The facts show that the plaintiffs’ action should have been brought to the September term, 1860, of the Circuit Court. It was not, and no waiver shown, and therefore the right of action expired — Cray v. Hartford F. Ins. Co., 1 Blatchf. O. Ct. (U. S.) 280 ; Williams v. Vermont Mut. F. Ins. Co., 20 Vt. 222 ; Gooden v. Amoskeag F. Ins. Co., 20 N.'II. 73 ; Wilson v. ¿Etna Ins. Co. of N. Y., 27 Vt. 99; Dutton v. Vermont Mut. F. Ins. Co., 17 Vt. 369; Amesbury v. Bowditch Mut. F. Ins. Co., 6 Gray, 596 ; Fullam v. N. Y. Union Ins. Co., 7 Gray, 61; Brown v. Roger Williams Ins. Co., 5 R. I. 394; Brown v. Savannah Ins. Co., 24 Ga. 97 ; 31 Tenn. 448 ; Carter v. Humboldt F. Ins. Co., Sup.- Ct. Iowa, June, 1861; Peoria Mar. and F. Ins. Co. v. Whitehall, 25 111. 466.</p>

<p> Appeal from St. Louis Circuit Court. </p>

Louis Circuit Court. The court erred: I. In declining to pass upon instructions tendered by defendant. The “instructions shall be in writing”—“ and shall be given or refused”—R. S. Mo. 677, § 47. H. In overruling defendant’s motion for a new trial on the ground of after - discovered evidence, an 'affidavit of defendant accompanying motion. i

Louis Circuit Court. This suit was instituted by plaintiff against Garesche as trustee, and Tkomas E. Smith, as cestui que trust, under two deeds made by Charles Gibson to John E. Riggin, original trustee. Under a power of appointment reserved to Smith to change the trustee, but not the uses or trusts, Weissinger at first, and subsequently Garesche, had been substituted as trustee.

Louis Circuit Court. On motion of the plaintiffs, tho coupt gave the following^among other instructions to the jury, to which the defendants, at the time, excepted: “ The court instructs the jury that, upon the evidence in this cause, the defendants are not entitled to recover anything upon the counter-claim secondly set forth in the answer.” {‘ If the jury find from the evidence that Charles II.

Louis Circuit Court. This was an action brought by plaintiff to recover of defendant his salary as secretary of the Chariton and Randolph Railroad Company. Testimony was introduced showing the election and services of plaintiff as secretary of that company. The remaining facts pertinent to this cause appear in the opinion of the court. I. A sale by the Chariton and Randolph Railroad to defendant-,, under the act of Feb. 10, 1864 (Adj. Sess.

<p> Appeal from, St.' Louis Circuit Court. </p> <p>Lewis McGrath and William Cahill entered into a contract with the city of St. Louis for grading, curbing, and macadamizing a certain street in St. Louis adjoining defendant’s property. This work having been partly finished, the contract was assigned to plaintiff as administratrix of Walter Sullivan, who completed the Same and brought her action upon certified tax bills against ■defendant for the work.</p> <p>Defendant, in his answer, set up a counter claim for damages caused to his property by reason of the negligent and unskillful manner in which the work was done.</p> <p>Upon the trial defendant asked the court to give the following instruction, which was refused:</p> <p>Ninth instruction. ‘£ The defendant is entitled to recover of the plaintiff in this action any amount of damages it may appear from the evidence he has sustained, not to exceed the sum of $2,500, by .reason of the manner in which said work was done, or by the want of proper care and caution on the part of the plaintiff in the execution of said work, or which might have been avoided by the use of proper care, diligence, and precaution on the part of said plaintiff, although the work itself may have been done in a skillful and workmanlike manner.”</p> <p>In lieu of which instruction asked by defendant, the court declared the law to be that if the'work performed by plaintiff and her assignors, under contract No. 1131, was pérformed in a skillful and workmanlike manner, according to the terms of said contract and the directions of the city engineer, then the defendant cannot recover of the plaintiff any damages which he may have suffered on account of the making of said street, unless such damages were caused by some act, omission, or negligence, in performance of the work, for which the city of St. Louis would have been responsible in damages to defendant.</p> <p>I. The court erred in admitting the city tax bills as evidence on the part of the plaintiff. These were only admissible under the provisions of the second section of the act supplementary to the act incorporating the city of St. Louis, approved January 16, 1860. (Sess. Acts, 1859-60, p. 383.) The allegations in the petition show that Alice Sullivan was not the contractor. The act referred to only authorizes the issuing of these bills to the contractor, and the suit must be brought for his use alone.</p> <p>H. Appellant was no party to the contract, nor could he in any way control or direct the performance of it. He is made liable without his knowledge, consent, or approval of the work done. The proof shows that the party for whose use this suit is brought had no contract with the city, either verbal or written. This extraordinary privilege of suing an outside party, in no way connected with the -contract itself, is granted only to the contractor with the city for the work, to whom the bills shall be delivered, who shall proceed to collect in the name of the city to his own use, etc. No provision whatsoever is made in the act for a sub-contractor, assignee, or any other person except the original himself. The act prescribes to whom the certificates shall (not may) issue, and the engineer had no discretion, and could not assume, to do what the law gave him no authority to do. The pretense was that the contract had been assigned to plaintiff, and that she was substituted for McGrath & Cahill. By what authority, or how, a contract of this peculiar character could be assigned, we are not informed, except that it had the sanction of the city engineer.</p> <p>HI. The contract was executory, and therefore not assignable. (Leahy v. Dugdale, 27 Mo. 437.) The money after it was earned, or the certificates after they were issued, might be assigned, but not the contract itself.</p> <p>IV. The consent of the city engineer to, or approval of, an assignment of the contract, gave it no more force or validity than if it had been the consent or approval of any private citizen.</p> <p>V. The ninth instruction asked by appellant and refused by the court was based upon the ruling of this court in the case of The City to the use of McGrath et al. v. Clemens, 36 Mo. 467. The counter claim set up in this suit is identical with that in the case referred to, and which the court therein declared, if established, would have been a complete rebuttal of the plaintiff’s Jprima facie case. No matter how skillfully and completely the work itself may have been done, yet if either the city engineer in charge of the work or the contractor under him omitted to dc anything which common and ordinary care, skill, or attention, would indicate ought to have been done to prevent injury to third parties, or were so careless or negligent in performing the work that damage resulted therefrom unnecessarily to other parties, then the city as plaintiff is liable, and in common justice ought to be. (City of St. Joseph v. Anthony, 30 Mo. 537; Rochester White Lead Co. v. City of Rochester, 3 Comst. N. Y. 463.)</p> <p>In the declaration of law made by the court (in lieu of the defendant’s ninth instruction, refused), it is admitted that the city would he liable for some acts, omissions, and negligences in the performance of the work; but what distinction the court intended to make is not apparent.</p> <p>I. The corporation is not liable to an action for damages consequential upon the paving and grading of a street, directed by the corporate authority in pursuance of an ordinance authorized by its charter, when the agents of the corporation have executed the powers intrusted to them in a skillful and workmanlike manner.</p> <p>H. 'Damages occurring to owners of lots on streets, by reason of the establishing or changing the grades of the streets in improving the same, or by reason that the streets are not improved to a level with the established grades by the municipal authorities, are damnum absque injuria. (Taylor v. The City of St. Louis, 14 Mo. 20 ; Radcliff v. Brooklyn, 4 Comst. 195; Hatch v. Yt. Cent. R.R. Co., 25 Yt. 49 ; Tate v. Ohio & M. R,R. Co., 7 Ind. 479, 482; Commonwealth v. Erie R.R. Co., 27 Penn. 354, 357 ; Porter v. North Mo. R.R. Co., 33 Mo. 128; Lambor v. The City of St. Louis, 15 Mo. '611; Hoffman v. The City of St. Louis, 15 Mo. 651.)</p> <p>HI. If the work performed by the plaintiff was performed in a skillful and workmanlike manner, according (to the terms of the contract and the directions of the city engineer, then the defendant cannot recover of the plaintiff any damages which he may have suffered on account of the making of said street, unless such damages were caused by some act of omission or negligence in performance of the work for which the city of St. Louis would have been responsible in damages to defendant. The facts of this case are not very dissimilar from those in the case of The City of St. Louis to use of George I. Decker, assignee of Ursula Buol, adm’x, v. Wiley Rudolph, 36 Mo. 465.</p>

Louis County. I. Tbe assignment of tbe claim of tbe North Missouri Railroad for $2,400, paid to Abell, Cunningham, Johnson, et ah, is sufficient as tbe deed of the corporation. (31 Mo. 193 ; 1 Am. Lead. Cas. 453 ; 5 Wheat. 336.) H. The use of the word “we” in the assignment shows that the words “President of the North Missouri Railroad Company,” attached to his name, are not a description of the person of Isaac H. Sturgeon. (Ang. & Ames on Corp. 159, 2d ed). DI.

¡Appeal from St. Louis Circuit Court The following instructions were given on behalf of the plaintiff; (The remaining instructions which figure in the case appear in the opinion of the court.) 1st. If you find that *the defendant, at the time of the injury to the plaintiff, was a corporation and common carrier, and that plaintiff., was a passenger for hire in a car of defendant, and that defendant at the time of the injury had but one agent or servant on said car, and that…

Louis Circuit Court. The following instructions, asked for by defendant, were refused, viz: 2. Held: in respect to those risks, to the exercise of due diligence and care: his contract does not extend to exemption from liability for negligence. In this respect his common law liability still exists.

Louis Circuit Court. I. A trustee can only be sued in equity, and a garnishment is a law proceeding. (Curling et al. v. Hyde, 10 Mo. 876.) H. An agent, not of tbe debtor, but of a third person, creditor of tbe debtor, is not liable to be garnisheed, because there is no privity of contract between him and tbe debtor. A creditor’s bill, if any, is tbe only remedy for tbe party to enforce payment out of tbe trust fund.

Louis Circuit Court. Defendants asked the following instructions, which were refused: 1. The plaintiffs have no greater interest in or title to the note than Daniel Klein had, from whom they acquired it, and the defendant should be allowed every just set-off or other defense existing as against Daniel Klein in favor of the defendant before notice of the assignment. 2.

Louis Circuit Court. I. Tbe defense of failure of consideration cannot be set up, as no eviction was shown, and, therefore, no breach of the covenant. (Hoy et al. v. Taliaferro, 8 Sm.' & M. 727, 241; Dennis v. Heath, 11 Sm. & M. 206 ; Rawle, 645, Am. note 1. Even if there was a paramount title in Balthrope, which is not shown, unless there was an adverse possession under it, this is not equivalent to an eviction.

Louis Circuit Court. This was an action in ejectment. The answer put in issue the allegations of the petition, and by way of defense set up the statute of limitations. In 1842 George Morton owned the premises.

Louis Circuit Court. . I. Tke second section of defendant’s ordinance did not bave tbe effect to withdraw the positive acceptance made in the first section, or in the least to modify it. The city council of Carondelet no where intimate that they take back their acceptance. On the contrary, they direct their agent to enter into a written agreement embracing the terms of Eads’s proposition. They tell him to close the contract between said city and Eads.

Respondent was indicted, in the Cooper Circuit Court, for perjury, under § 6, art. 13, of the constitution.

Where the defendant in execution is a non-resident of the county where the land was sold on execution, he is entitled to notice, or the sale will be set aside, on motion, at the return term of execution. (Ray v. Stobbs, 28 Mo. 35; see, also, Hobein v. Murphy, 20 Mo. 447; Harris v. Chouteau, 37 Mo. 165; Buchanan v. Atchison, 39 Mo. 503 ; Harrison v. Cachelin etal., 35 Mo. 79.)

Jippeal from Cooper Circuit Court, This action was upon a policy of insurance issued by defendant upon tbe livery stable and other property of plaintiff in the city of Boonville, Cooper county.

The ground of attachment against Harper was, that he was a non-resident of this State. Harper appeared, filed his plea in abatement, and the issue was found for him. Smith did not appear. Harper then put in his answer, alleging that neither plaintiff nor defendants were residents of Polk county, etc.

I. Tbe settlement and adjustment of tbe accounts of the collectors of tbe revenue of tbe State are, by tbe statute, vested solely in tbe State Auditor.

<p>Judgment affirmed.</p>

Plaintiff claimed tbe property in controversy by virtue of two judgments rendered in Ms behalf, against John McHenry, in 1855. These judgments, as appeared in evidence, were satisfied by a sale of the property on execution. Plaintiff became the purchaser, and received a deed from the sheriff of Greene county, dated in 1864, conveying to Mm McHenry’s interest in the premises.

I. On principles of equity, independent of contract, the appellant, although ostensibly a surety for Warfield, was, as between himself and the other sureties, a principal, so far as the administration of the Beck estate was concerned. Whether a party to an obligation is a mere surety or a principal, depends upon the question whether such obligation was made for his benefit. In this case, the two official bonds were made for the joint benefit of the appellant and Warfield.

I. The defendant was a foreign corporation, which could only do business in this State by complying with our statutes requiring them to concede the right to be sued in the courts of this State and to abide the issue of such suit. (R. C. 1855, p. 884.) After obtaining this privilege, the defendant became and was in this respect a domestic corporation, and was estopped from transferring this case to the courts of the United States.

District Court. I. Under the deed of trust offered in evidence, the defendant had a first lien on all the goods, merchandise, and effects therein conveyed, for the repayment to him of any sum he might be required to pay upon the note on which he was security; and the proceeds of said trust property, no matter when or by whom the same were realized, collected, or received, should have been applied: 1st, to the payment of the expenses of the trust; 2d, to the payment of the…

I. The plaintiffs’ hemp was stored in a warehouse in Glasgow, within the military lines of an army then in absolute possession of the place, under regular officers and leaders, constituting apart of the armies of the late rebellion. This army was a “usurped power,” within the meaning of the policy.

<p>1. Attachment—Order of Publication—Sufficiency.—The order of publication required by the attachment act of 1855 (R O. 1855, p. 246, $ 23) did not itself operate an attachment, but was intended to impart notice to defendant of the pending attachment.' And a publication notifying defendant that his property is “ about to be attached,” is sufficient, within the meaning of the statute.</p>

I. Tbe legislature is not competent to declare that a tax deed shall be conclusive evidence of the regularity and validity of the prior proceedings, as such an exercise of the power of taxation would amount to a legislative transfer, without cause and without due process of law, of the property of one citizen to another. A tax sale can only be maintained when the law has been strictly pursued.

I. The verdict did not support the judgment, and was not in conformity to the provisions of the statute in such cases.

I. The County Court of Platte county, by virtue of the sixth section of “An act to incorporate the Platte City and Fort Des Moines Railroad Company,” approved January 4, 1860 (Adj. Sess. Acts 1869-60, p. 448), was fully invested with the power to subscribe to the capital stock of said company, and issue the bonds of the county to raise funds to pay the stock thus subscribed.

<p>1. Public Printer—Appendix — Price allowed.—Under the twenty-first section of the act concerning the public printer (Gen. Stat. 1865, p. 148), the appendix to the journal of either house of the General Assembly constitutes a part of the journal; and although the greater part of the reports and public documents, incorporated in ,the appendix by virtue of that section, had already-been printed in the journal, under the order of the two houses, or in pursuance; of a law of the State requiring it to be done, yet the public printer would be entitled to charge separately for it, at the prices regulated by law. (State ex rel. Dyer v. Thompson, 41 Mo. 240, affirmed.)</p>

' I. This action is not brought to try the right of the respective parties to the office, but to recover damages for a breach of the official bond of an officer , The only question which could arise in such case, upon a demurrer, is, Hoes the petition show a breach of the conditions of the bond ? If it does, then all other questions which may arise are questions concerning the amount of damages.

I. The instruments sued on were notes. (McGowan v. West, 7 Mo. 564; Brady et al. v. Chandler, 31 Mo. 28.) II. The judgment of October 17,1866, on the notes, was regular, and was taken at the proper time; and, no fraud or legal surprise being shown, the court erred in setting it aside. (7 Mo. 22; 19 Mo. 184.) HI.

I. It is clearly shown that the property was sold by the trustee with the distinct understanding that it might be redeemed; and, such being the agreement, the title was held in trust by defendant. (Brown on Fr., § 34, and cases referred to; 1 Watts, 214; 12 Mo. 30.) H. A ‘ ‘ reasonable time, ” as mentioned in this agreement, and its determination, might depend upon the circumstances of the parties; but a trust created by parol cannot be revoked, altered, or extinguished.

I. The answer alleged negligence on the part of the plaintiff. Plaintiff’s motion to strike out. defendant’s answer admitted the allegations contained in it. If either party, by his negligence, contribute to the catastrophe, he must suffer the consequences. (Kennedy v. North Missouri R.R. Co., 86 Mo. 363; Brown’s Leg.

I. The debts of plaintiff were cash debts, and were taken up and satisfied in part by notes of Huxley, the purchaser ; and the balance of the purchase money, not so paid by Huxley, he paid to the trustee, in cash. The notes given by Huxley, in part satisfaction of the notes of Mead, were received by the owners of the notes of Mead, secured by the deed of trust, in full payment óf ■ the same; and the notes thus paid were delivered over to the trustee, which was a cash payment.

<p>1. Decision in case of Tarwater v. Hannibal and St. Joseph Bailroad Company {ante, p. 193) affirmed.</p>

This is a case where defendant was indicted, at the October term, 1866, of the Andrew county Circuit Court, for an assault with intent to kill. At the April term, 1867, of said court, he filed his motion to quash the indictment, and the same was sustained. The State then took the case to the Fifth District Court, where the ruling of the Circuit Court for Andrew county was affirmed; and the case is now brought to this court by appeal.

<p> Error to Livingston Circuit Court. </p>

The facts material to the case appear in the opinion of the court. I. The court below erred in reversing the judgment of the Circuit Court on the ground that the information did not set out the ordinance of the city of Chillicothe by which the office of treasurer was created, for the following reasons : 1. The charter, which is well pleaded, gives ample authority to appoint or elect a treasurer, and no ordinance is required to create the office.

I. The statute under which this proceeding was had was only-intended to give a party a remedy, where he owned land and was in undisturbed possession thereof, by compelling a person who claimed to have some adverse title to assert it in the court and have the title quieted. But it was not intended to confer this right upon any one who was in a condition where he could bring an ejectment himself to try the title.

This case came by appeal through the Fifth District Court. I. It is not necessary that a sheriff’s deed should recite the issuing by the justice of an execution, and its return “no property found.” (Coons v. Munday, 8 Mo. 374; Murray v. Saxton, 15 Mo. 623; 13 U. S. Dig. 318, §§ 31, 32.) H. The judgment in which the Circuit Court execution issued was not dormant at the time of the issue.

<p>Per Holmes, Judge.</p> <p>1. County Bridges —Statute — Common Law Remedies.— The mode of compensation to owners of lands adjoining county bridges, prescribed by the twenty-first section of the chapter concerning bridges (Gen. Stat. 1865, p. 299), must be held to be exclusive of common law remedies.</p> <p>2. County Bridges — Statute, what authority given by.—The authority to take rock and timber from adjoining private lands, conferred by that section, is broad enough to embrace all the specified cases of building and repairing county bridges.</p> <p>3. County Bridges — Commissioner—Contractor—Agency, how given.— The County Court, the commissioner, and the contractor or undertaker,, were all alike the agents of the county, and derived their powers and authority from the provisions of the law. The commissioner could not only take the necessary materials for building the bridge, in porson, but he might cause them to be taken by his proper agents. And it was not necessary that the authority should bo given by express words in the contract. It resulted from the very nature of the employment.</p> <p>4. Trespasses—Act concerning, contemplates what.— The act concerning trespasses (Gen. Stat. 1865, ch. 76, § 1) contemplates voluntary or willful trespasses only, which are committed without any lawful right, and it inflicts penalties as upon a-wrong-doer.</p> <p>5. County Bridges—Materials for building, how may be taken under Statute.— The clause in a contract between a county commissioner and a contractor for building a county bridge, which provides that said contractor was “to furnish all the material required for said bridge,” does not exclude the authority conferred by the statute to procure these materials by talcing them from the adjoining lands, in case they could not he purchased elsewhere. If such an agreement divested him of the powers conferred on him by statute through the County Court and the commissioner, and by virtue of the agenoy created by the contract itself, it would be in contravention of the law, and would exceed the lawful authority of the commissioner, and would therefore be void.</p> <p>6. County—Payment by, for material chargeable to contractor—Photo construed. The county being compelled by operation of law to pay money which by the terms of the contract the contractor was bound to pay, as between him and the county it would amount to a payment made at his request and ior his use.</p> <p>Per Curiam.</p> <p>1. Eminent Domain, not given by implication. — The power to take private property for public use is in derogation of property and the right of the citizen, and the authority so conferred by law must not be implied or inferred, but must be given in express language.</p> <p>2. County Bridges — Statute — Construction.— The twentieth and twenty-first sections of the chapter in relation to bridges (Gen. Stat. 1865) wore intended to apply only to cases where the county commissioner either repairs or builds the bridge by the direct employment of some person, when the contractor has failed to comply with his covenants, and have no application to the original contractor; and in that case the county pays for the materials and recovers their value, as well as the price paid for the labor of repairing, from the contractor who is in default.</p> <p>8. Damages—Appeal — Practice.—Where plaintiff, having claimed treble damages, was allowed single damages only, and failed to appeal from the judgment of the court, but the case was carried to the District Court by defendant, it was error to reverse the decision below and award plaintiff treble damages.</p>

<p>1. Practice, Criminal—Appeals—Neglect to file statements, etc., how treated.— In appeals from the Criminal Court, where no statement or hriefs are filed, the case will he dismissed. In these cases the Supreme Court is governed by the practice in civil cases, and not by the act concerning criminal practice.</p>

<p> Appeal from St. Louis Criminal Court </p>

Louis Criminal Court. I. The court erred in not compelling the circuit attorney to elect between the two counts in the indictment. The power ia within the discretion of the court. (1 Chit. Or. L. 248-9 ; 1 Arch. Cr.' PI. 93-1.) .

<p>1. Act of Congress of 1812 — Commons Title—Recorder Stmt’s Certified list— Proof of inhabitation, cultivation, etc., prior to 1803.— A commons title, under act of Congress of June 13,1812, -with an approved survey, is equivalent to a patent, and must prevail, unless the claimant can prove the facts necessary to show that no title passed; and this may ho done by actual proof that claimant had inhabited, cultivated, or possessed a lot, within the meaning of that act, prior to December 20, 1803, situated within the boundaries of the survey of the commons. But documentary evidence, consisting of Recorder Hunt’s certified list of lots, confirmed under the acts of June 13,1812, and May 26, 1824, a H. S. survey and field notes showing the lot sued for, and a certificate of confirmation issued by the United States Recorder of Land Titles, taken alone, are only prima facie evidence of title, and not sufficient to surmount the commons title under the act of 1812. (Yasquez v. Ewing, 24 Mo. 81, affirmed.) And it is not enough merely to prove inhabitation, cultivation, or possession, somewhere on the land claimed. There must also he evidence of the location and boundaries of the lot.</p> <p>2. Out-lot—Existence of facts necessary to constitute, how determined.—The existence of facts necessary to constitute an “out-lot” is a question of law for the court.</p> <p>3. Out-lot—Location and Boundaries prior to 1803.—To constitute such a lot, it must be shown to have had an existence as such under the former government, prior to the 20th of December, 1803, with a definite location and boundaries.</p> <p>4. Out-lot—Surveyor-General—Power of, to assign location to.—The Survej'orGeneral had no authority by law to assign a location to suoli out-lots, but authority only to survey them by their definite location and boundaries, as they had actually existed prior to 1803, or as the same had been proved before the recorder; nor had his superior officers of the land office any authority by law to create, by instructions, a definite location and boundaries for such lots,' where none existed before.</p> <p>6. Out-lot — Mow shown by evidence of facts in pais.—"When an out-lot is to be proved by evidence of facts in pais, it must be shown to have existed in ihe character of an out-lot prior to December 20,1803, with designated and ascertainable location and boundaries; though actual occupancy or cultivation may not be essential to establish its existence.</p> <p>6. Concession under Spanish Government—Abandonment—■Re-annexation.—■ "Where, under the former government, a written concession, by the lieutenant governor, of certain land was given, upon a condition set forth in the concession, and on the margin of the record of the same was a subsequent entry declaring that the lot remained incorporated in the royal domain on aocount of the owner having abandoned it, such entry must be competent to show that the practice of abandonment and re-annexation prevailed at that time, and, a fortiori, it must be competent to show a re-annexation of the very land conceded.</p>

Louis Circuit Court. This suit is brought, on the ground of fraud, to annul the title of defendant to a piece of realty in the city of St. Louis. Both parties claim under McCarthy: plaintiff, under a judgment in attachment; respondents, under a voluntary deed of trust made prior to the attachment, and a sale under the deed subsequent to the attachment. McCarthy kept a shoe-store on Market street, and also owned the realty in dispute.

Louis Circuit Court. This was an action originally commenced in the Probate Court o£ St. Louis county, under Section 67, article I., o£ an act concerning executors and administrators (R. C. 1855, p. 126; Gen. Stat. 1865, p. 487, § 68), and thence appealed to the Circuit Court. John Shannon died in April, 1861, and thereupon his brother Joseph became his administrator, the appellants becoming securities on the administrator’s bond.

Louis Circuit Court. I. The defendant, Anderson, not being served with notice of the proceeding herein, the court below had no power to make any order against him, or enforce such order or judgment pgainst his securities on the administration bond of said Anderson, and the judgment is therefore void. (Smith v. Ross, 7 Mo. 463; Anderson v. Brown, 9 Mo. 646 ; Roach v. Burnes, 33 Mo. 319.) H. A judgment is an entirety, and if void as to one defendant is void as to all.

Louis Circuit Court. I. Oberschelp’s appeal from the Probate Court to the Circuit Court was properly dismissed. Section 4 of chapter 127, Gen. Stat. 1865, p. 514, requires every appellant to give bond, except an executor or administrator. Oberschelp was merely surviving partner, having the partnership assets in charge, and does not come within the exception. To appeal as executor or administrator, the appeal must be on behalf of the estate.

<p> Appeal from St Louis Circuit Court. </p>

Louis Circuit Court This was an action for the claim and delivery of a lot of railroad iron which had been laid down by the Callaway Mining and Manufacturing Company on land in Callaway county, belonging to Kowns, plaintiff in error. The iron was solidly spiked to sleepers, securely fastened to the land. The Callaway Mining and Manufacturing Company was a corporation created by act of the General Assembly of the State of Missouri, passed February 16, 1847 (Sess.

Jlpjieal from St. Louis Circuit Court. I. The plaintiffs must prove a lawful possession of the real estate within three years before suit, and not merely constructive but actual possession. And it is not pretended that plaintiffs ever were in possession of the premises. (Gen. Stat. 1865, P. 732, §27.) II. The writing offered in evidence, signed by Julia B. Grant and Joseph W. White, did not give possession to plaintiffs.

<p>1. Executions — Property exempt from—Marriage Settlements —• Construction of Statute.— The provisions of the act exempting additional property from execution (R. O. 1855, p. 754, § 1) do not affect the right of the husband to receive and dispose of bis wife’s property; nor do they exempt her property from the indebtedness of the husband created after the reception of such property by the wife.</p> <p>2. Susband and Wife — Marriage Settlements —How affected by debts of Susband, at law and in equity.— The doctrines of equity touching settlements of money or property in trust for the sole and separate use of the wife relate purely to property that belongs to the wife before marriage, or which may have been given or bequeathed to her after marriage, and expressly settled to her sole and separate use by the creation of a trust for that purpose. In such case a proper instrument, based upon a valuable consideration, to the effect that she may carry on a separate trade on her sole account in the name of her trustees, may be protected at law and may be enforced in equity, for the benefit of her husband, against him and his creditors; but a voluntary agreement of this kind will not be good against bis creditors. And neither law nor equity will permit an insolvent person, in the absence of any instrument like that mentioned, to carry on his own trade, with his own money, or with moneys that were donated by himself, in the name and under the cover of being his wife’s trustee, for their common advantage.</p> <p>3. Husband and Wife—Voluntary Settlements—Creditors.-—As between the parties themselves, a voluntary settlement upon the wife may be upheld in equity. And where the husband is not indebted at the time of making it, such settlement cannot be impeached by subsequent creditors merely on the ground of its being voluntary. But if he were indebted at the time, or if it were made with a view of being indebted at a future lime, it will be void as against creditors prior and subsequent.</p> <p>4. Practice—Replevin— Trusts not recognized by action of.—In a joint action of husband and wife upon claim for delivery of personal property, the court can take no cognizance of trusts or of the equities of the wife.</p> <p>6. Husband and Wife— Wife’s Trust Estate— What Proceedings to protect against Husband’s Creditors.— If a trust can be maintained in equity in favor of the wife against her husband’s creditors, the proper remedy would be a proceeding in equity on her behalf to establish the settlement and to obtain a perpetual injunction restraining a- sale of the property under a judgment at law against him.</p>

I. The contract of defendants, solemnly made in anticipation of marriage, and published by the parties to it, and brought home to the defendants, operated in equity to relieve the husband from the wife’s debts contracted dum sola, and made the wife and her property the sources to which chancery will compel the creditors of the wife dum sola to resort.

Jlppeal from St. Louis Circuit Court. Plaintiff’s charter (Adj. Sess. Acts 1858, p. 290) was substantially as follows: “Be it enacted,” etc.: “1.

Louis Circuit Court. This was an action of ejectment to recover possession of a part of a lot of one by forty arpents in the Grand Prairie common fields… Held: that James might take; for, after rejecting what was false in the description, enough remained to indicate the intention of the testator and justify the application of extrinsic evidence. (Stoekdale v. Bushby, 19 Yes. 381; Doe v. Huthwaite, 3 Barn. & Al. 632; Wigram on Extr. Ev. 81; Standen v. Standen, 2, Yes.

<p> Appeal from St. Louis Circuit Court. </p> <p>I. The appeal being regularly and properly taken for the purpose of a trial de dovo in the Circuit Court, appellants were entitled to it. Appeals from the County Court are governed by the same rules as those from justices of the peace, in which the trials in the Circuit Court are de novo. (Gen. Stat. 1865, chap. 136, p. 550, § 2, fourth clause.) There is no express or separate provision in the statutes prescribing how appeals from the County Court shall be taken, or prosecuted when taken. Wherever referred to in the statutes, they are almost invariably joined with appeals from justices of the peace. The same language is applied to both; the same rules as to taxation of costs and affirming the judgment. (Gen. Stat. 1865, chap. 173, pp. 688-9, §§ 14,16.)</p> <p>H. The County Court, although made by statute a court of record, has no common law jurisdiction, and a writ of error would not lie to it unless authorized by statute. Neither in practice nor by statute is there any way provided to preserve the testimony in the County Court any more than before a justice of the peace. No declaration of law is made by the court; no exceptions are preserved; no bill of exceptions could be made up or signed. An appeal, therefore, in the County Court, would, in almost every case, be impracticable and useless (especially where, as in this ease, there ivas a trial before a jury, and testimony given), unless a trial de novo could be had. A writ of error would not lie to the County Court in a matter of probate. The case must be brought up in the usual way by appeal, and a trial de novo had in the appellate court. (N. Mo. R.R. Co. v. Green’s Adm’r, 34 Mo. 159.) The statute makes no distinction in appeals from the orders or judgments of the County Court, whether made in probate or other matters. Trials de novo have been had on appeals from county courts. (Boggs v. Caldwell County, 28 Mo. 586; Walsh et al. v. Edmonson’s Ex’r, 19 Mo. 142 ; County of Boone v. Coriew, 3 Mo. 12.)</p>

•Appeal from St. Louis Circuit Court. Defendants asked tbe following among other instructions, which were refused by the court: 1.' If the jury believe and find from the evidence that the consideration for the making and indorsing of the note sued upon was the transferring by the plaintiff to the defendants of a bargain or agreement had by the plaintiff and one Henry Shenkel with Mrs. Elizabeth Timmerman, for the purchase and sale of the interest of her deceased husband in…

Louis Circuit Court. I. After the consolidation there was but one cause, and it should have been dismissed as being for a sum greater than the jurisdiction of a justice’s court; and nothing that defendant did, either before the justice or the court below, could give jurisdiction. H. Plaintiffs should have brought this suit in the proper court haying jurisdiction, or should have given a voluntary credit so as to reduce the amount.

<p> Appeal from, St. Louis Circuit Court. </p>

Louis Circuit Court. The eleventh article o£ the partnership agreement, the meaning and effect o£ which is a point in dispute in the case, ivas in the words following, viz: “That in case of the death of any of the said partners, violation of any of the articles of this agreement, or other dissolution of this partnership, a general account of stock shall be taken, in writing, as before provided, and the balance due such deceased or outgoing partner or partners ascertained,…

Louis Circuit Court. This was an action brought in the St. Louis Circuit Court to ■enforce payment of a special tax bill under a street-paving contract.

Louis Circuit Court. Plaintiff’s charter contained the following provisions: “ Sec. 9.

Louis Circuit Court. ' This was an application to the County Court to correct an assessment of property alleged to he erroneously and improperly assessed. The property is historically known as the Gratiot-street Prison. Government seized it — used it first for prison, subsequently for hospital purposes. It was regularly assessed for taxes, under the authority ,of the State, during the years in which it was so held by government.

Louis Circuit Court. The testimony of a witness for the appellants showed that during the year 1864 he was recording secretary of the Western Seamen’s Friend Society; that the affairs of the society were conducted by an executive board, consisting of the president, vice-president, secretaries, treasurer, auditor, and directors; that on September 20, 1864, the following resolution was adopted by the executive board: “Resolved, that the corresponding secretary of the Western…

Louis Circuit Court. The plaintiff in this action, by attempting to have his alleged claims allowed in the Probate Court, seeks to force the administrator to complete a purchase of real estate charged to have been made by Yon Dembusch in his lifetime.

Louis Circuit Court. The deed of trust first mentioned in the opinion of the court, sale under which was sought to he enjoined by appellants, was given upon the property sold by respondent Magwire.

Louis Circuit Court. John D. Sullivan, plaintiff’s intestate, was indorser for Cornelius D. Sullivan upon two promissory notes, amounting to about ten thousand dollars, on which judgment was obtained against both parties, and certain real estate of C. D. Sullivan was sold to satisfy it. John M. Krum was the purchaser, and afterward, on May 9, 1862, conveyed the land to John D. Sullivan, who paid the debt. Previous to the sale of this land Joseph L. Papin and Ben.

Louis Circuit Court. This was an action, in the nature of a bill in equity, to enforce specific performance of a contract made by Matthews with Hardy to sell eleven lots of land on Washington avenue, between'Beaumont street and Leffingwell avenue.

<p> Jlppcal from St. Louis Circuit Court. </p>

Louis Circuit Court. This was a suit brought by Jones, defendant in error, against Moore and Hicltman, plaintiffs in error, upon two promissory notes for $1,500 each, payable to the order of James W. Wilson. To secure payment of the notes, Moore and Hickman executed' to James M. Ming, as trustee of Wilson, a deed of trust on certain land in Franklin county. Hickman and Moore subsequently, in 1860, sold the land to Josiah Thornburgh, who assumed payment of the incumbrance.

Louis Circuit Court. On the trial of this cause, plaintiff asked the court to give the following instruction, which was refused: “If the court find from the evidence in the cause that the plaintiff had invested $70,500 of its capital stock in the bonds of the Government of the United States, and that the said amount of capital stock so invested was by the assessor of St. Louis county assessed for taxation under the State law, and the tax book containing said assessment was…

Louis Circuit Court. Defendant at tbe trial asked tbe following instructions which were refused by tbe court: “1. Tbe assignment of Cochran & Pollack to Stewart and Fiske was inoperative to pass any title to tbe land in question. 2. Tbe deed of Stewart and Fiske, acting as assignees of John Cochran in New York, to tbe plaintiff, was inoperative to pass any title to tbe land in question. 4.

Louis Circuit Court. This suit was commenced by attachment levied on a stock of boots and shoes in a store occupied by Samuel Rosenberg, defendant, near the corner of Seventh street and Franklin avenue, in the city of St. Louis, on the 22d of January, 1867. Simon Strauss, interpleader, claimed the goods by virtue of a bill of sale made on the 18th of December, 1866.

Louis Circuit Court. This was an action to recover on a negotiable promissory note, alleged to have been made by defendants to the firm of Eritsch & Simonton, and by them indorsed to the plaintiff. The note was filed with the petition, and is in these words: “ $1,000.

Louis Circuit Court. This was an action to enforce a maritime lien against the steamer Goldfinch for goods and supplies furnished by the plaintiffs, at St. Louis, which was the home port of the vessel and the; place of residence of her owners. The court below held that no lien attached, and gave judgment for defendant. The defense relied on in the court below was want of jurisdiction. I. The character of the contract decides the jurisdiction.

Louis Circuit Court. I. The court below erred in refusing to allow the plaintiff to introduce the evidence offered. This evidence was competent to show that, prior to the contract being entered into, the defendant had waived a compliance with 'the third condition of the policy,* so that this condition never became a part of the contract. Such a waiver may be by parol or acts in pais. (Carroll v. Charter Oak Ins.

Louis Circuit Court. I. The cause should not have been dismissed, both parties concurring in the prayer that the court adjust the accounts. A plaintiff cannot dismiss a bill when, by a decree in the cause, the defendant has as direct an interest in the continuance of the suit as the plaintiff, and may ultimately be as essentially benefited by it. (Hall v. McPherson, 8 Bland.

<p> Error to St. Charles Circuit Court: </p>

Appellant commenced suit in the Circuit Court of Marion county to recover treble damages for certain alleged trespasses in cutting and carrying away timber from certain land situated in Lewis county, Mo. Respondent filed an answer denying that he wrongfully entered upon said land; denying the appellant’s ownership thereof; and denying the cutting down of said timber.

f This case originated in the Jefferson Circuit Court. Upon the trial, the following instructions asked by defendant were refused by the court: 1. The court instructs the jury that if they believe from the evidence that plaintiff, by any misconduct on his part, willfully brought on the fuss and went into the fight voluntarily, then he must take the consequence of his own misconduct. 2.

Louis Circuit Court. I. The real estate owned by Rosenfield, and situate in Missouri, •could only be conveyed according to the laws of Missouri. The •contract, it is true, was made in New York, but the property is in Missouri and under its peculiar and exclusive jurisdiction. Although, as a general proposition, a contract valid by the law o£ the place where it is made is valid everywhere, yet this is subject to many exceptions. 1.

Louis Circuit Court. ' As appears from plaintiff’s petition, tbe conveyances of Woodward, spoken of in tbe opinion of tbe court, were as follows : 1. Deed of trust, dated May 22, 1860, conveying certain lots of ground near tbe Pacific Railroad, in tbe city of St. Louis, to William P. Curtis, trustee of James Givens Brown, to secure tbe payment of certain principal and interest notes amounting to $4,005. 2.

Defendant in this action had originally instituted proceedings against plaintiff before David Bruner, justice of Montgomery county, upon an affidavit charging him with having stolen a certain neck-yoke and mule-stock. The material facts generally appear in the opinion of the court. On the trial of the present cause the following instructions were given by the court at the instance of plaintiff, to which the defendant excepted: 1.

I. The statute constitutes the Circuit Court the tribunal which is to determine the correctness of the accounts of the officers who. are charged with furnishing stationery, fuel, attendance, etc., required for the use of the court. (Gen. Stat. 1865, p. 540, §§41,42.) H. The action of the Circuit Court must of necessity be final. I£ not, the County Court, an inferior tribunal, may annul or reverse-the action -of the superior court, viz: the Circuit Court. HI.

<p>1. Practice—Appeal—Failure to Prosecute.—“Where the record of a case shows that an appeal was taken therein more than thirty days prior to the term of this court, when the same is called for hearing, and appellant has entirely failed to prosecute his suit, no cause being shown for the delay on the part of appellant, the judgment of the lower court will be affirmed.</p>

Louis Circuit Court. I. Section 6 of the act incorporating the Missouri Benevolent and Loan Association has been repealed by implication. As it professes to be a general law, and is no necessary constituent part of the charter, and could not well be made one, it certainly might be repealed either directly or by implication. A subsequent law on the same subject matter naturally would repeal this, unless it professed on its face not to give the general law on the subject.

<p>1. Practice—Appeals — Filing of Transcript.— Where the record of a cause shows that an appeal therein was taken to this court more than thirty days before the first day of the term in which the same is called for hearing, and that no transcript was filed by the appellant, and no satisfactory reason is shown why it was not filed, the judgment of the lower court Will be affirmed.</p>

I. The fourteenth section' of the bank act of March 18, 1861, gives the revenue bonds issued by authority of said act the priority over all other bonds of the State, and requires them to be paid out of any moneys remaining unappropriated in the treasury. The revenues of the State are pledged for the payment of the principal and interest on these bonds. It is not a part of the revenues, but all the revenues — the revenue of the State at large. .

<p>1. Registration of Voters — Appointment of Registers.—Under the second section of the act to provide for the registration of voters (Gen. Slat. 1865, p. 905), the registers in the election districts appointed in July, 1866, hold for two years; and when the new county supervisor of registration was elected in November, 1866, the appointment of new registers did not devolve upon him.</p>

I. Defendant, at the time the horse was claimed by plaintiff, was an officer on duty in the army of the United States, and was ordered by his superior officers not to give up the horse.

<p>1. County Courts—Repairs of County Buildings—Prohibitions.—The County Courts have an exclusive jurisdiction over the subject of repairs of county buildings and the removal of the seat of justice. (Gen. Stat. 1865, eh. 36, and eh. 137.) These matters belong to the administrative and ministerial functions of the Comity Court, and not to the judicial branch of their jurisdiction. And for this reason it has been decided that even a prohibition will not lie from the superior courts of justice to restrain them from proceeding in such matters according to their own judgment and discretion. Even where a court of equity has jurisdiction to grant an injunction to restrain proceedings at law, it is never granted directly against a court, like a prohibition, but only against the persons who are parties to such proceedings, without impeaching the jurisdiction of the court itself.</p> <p>2. County Courts—Repairs of County Buildings — Mandamus—Injunction.— Although, in proceedings touching repairs of county buildings by the County Court, where there is no appeal or writ of error, the Circuit Courts have a superintending control which may be exercised in certain eases and in a proper way, according to the usages and principles of law, yet when the whole subject is placed under the exclusive jurisdiction of the County Court, and involves the public interest and convenience alone, a writ of mandamus will not lie from the Circuit Court to the County Court to stay such proceedings; and in such case the granting of an injunction can only he regarded as a sheer usurpation or an inadvertent assumption of judicial power not conferred by any law. And a petition being filed in this court praying that a prohibition issue to stay further proceedings in the matter - of such injunction, the prohibition will be granted, and the injunction proceedings will be treated as a nullity.</p>

<p> Error to Fourth District Court. </p>

<p> Appeal from Fourth District Court. </p>

The facts material to this case appear sufficiently in the opinion of the court.

I. The contract alleged in the petition to have been made by the parties is denied by the answer. Therefore it must be by the plaintiff established by written evidence. (Wildbahn v. Roubidoux, 11 Mo. 660, 661, and cases cited therein; Claywater v. Tetherow, 27 Mo. 241; Hammond’s Adm’r v. Cadwallader, 29 Mo. 166; 5 Johns.

Matthew M. Hughes, in his lifetime, for himself and as guardian of M. J. and M. A. Moore, minor heirs oE D. B. Moore, on the 11th of May, 1853, entered into and signed a certain contract with John Weise, by the terms o£ which said Hughes rented to said Weise, from date till May 1, 1861, a certain mill on Bee creek.

Plaintiff’s petition was as follows: “The State, to the use of Worth county, against John Patton, John A. 'Fanning, F. M. Bowlin, James E. Oadle, Laban G. Janes, Daniel Cox, Elias G. Weigart, and Eli Smith. In the Circuit Court for Worth county, April term, 1866.

Jlppeal from Buchanan Circuit Court. I. The allegation in the petition of notice having been given to the defendants of the bridge’s failing is surplusage. No notice was necessary to defendants.

I. The Circuit Court erred in striking out appellant’s answer to respondent’s petition. (Gen. Stat. 1865, p. 659, § 12 ; id. p. 677, § 45; Yallaly v. Yallaly, 39 Mo. 493 ; State ex rel.

I. A writ of error only lies upon a final judgment. (Long v. Towl, 41 Mo. 398, and cases cited.) There was no final judgment in this case until after the second trial. The defendant, in order to avail himself of the error, if such there was, in the action of the court in allowing the withdrawal of submission, or granting a new trial, which is all the same, should haye abandoned the case and sought redress before there was a second trial on the merits.

I. The dismissal of the suit was a sufficient consideration. (Mullanphy v. Reilly, 10 Mo. 489; Livingston v. Dugan, 20 Mo. 102 ; Stephens v. Spiers, 25 Mo. 390.) H. Restraint of trade where limited, not general, is legal.

<p>1. Practice, Criminal — Indictment—Appeal, without Pinal Judgment.— "Where the record simply shows that the court below quashed an indictment, but no final judgment was rendered, nor was the defendant discharged, no appeal will lie from the action of the court.</p>

I. This being a suit in equity, the District Court should have reviewed the evidence in the cause. The errors o£ the Circuit Court were sufficient to justify it in reversing the judgment. The issues involved in the cause having been submitted to a jury by the Circuit Court, and the jury failing to agree and having been discharged, the trial was then at an end, and the cause should have been continued.

This ¿ase originated in the Marion Circuit Court. The facts will be found stated in the opinion of the court.' The only question in this case is as to the propriety of the. action of the Circuit Court in refusing to order payment of the $939.63, plaintiffs’ net share of the rents and profits taken by the ancestor of the defendants out of that part of the proceeds of the sale of the land represented by the defendants in error.

This was a suit for the recovery of certain lands in Jefferson county.

Louis Court of Criminal Correction. I. The statute requires the complaint to be sworn to by a com- ■ petent witness. (Sess.

Louis Criminal Court. I. The two acts, the original and amendatory, ought to be construed together as making but one law; and looking at the two acts as one act, and regarding the provision of the second section of the amendatory act, no one can assert that the provisions of this section are not germain to the general object of the bill — the enabling the city of St. Louis to procure a supply of wholesome water.

<p> Error to Second District Court. </p> <p>I. The proviso of forfeiture in the bond goes to the whole contract— not to any trivial, unimportant stipulation or covenant therein. If it did, the sum, perhaps, might be regarded as a penalty. But the parties show by the very terms of their agreement that they intend to fix the amount' to be paid for a failure to carry out and perform a stipulated act, viz: the whole contract. And this is in a case “where the damages resulting from the non-performance of the contract are uncertain, and cannot he admeasured with any degree of accuracy therefore (it has been decided) “such sum agreed to be paid by the party in default will be regarded as liquidated damages.” (Watts v. Sheppard, 2 Ala. 425 ; 2 Story’s Eq. p. 774, § 1318 ; 1 U. S. Dig. p. 513, § 316.) •</p> <p>II. It is a rule in law that “it is not allowable to interpret what has no need of interpretation.” (Chitty on Cont. 99.) “Nor will the law make an exposition against the express words and intent of the parties.” (Broom’s Leg. Max. 266.) In the contract before the court there can be no doubt as to the meaning and intent of the parties, and no court of law or equity can create a contract for them where there is no room for two constructions as to their meaning. (2 Story’s Eq. p. 774, § 1318 ; id. §§ 1321, 1323, 1324; Pearson v. Williams, 24 Wend. 244; 26 Wend. 630 ; Kemble v. Earren, 6 Bing, 141.)</p> <p>The following cases are submitted, as being precisely in point, to show that, in a contract like the one before the court, the sum agreed to be paid as a forfeiture is not to be construed as a penalty, but as liquidated damages. (Chamberlain v. Bagley, 11N. H. 234, referred to in 1 Ü. S. Dig. p. 512, §§ 307, 308, 316, 319 ; Gammon v. Howe, 2 Shepley, 250.)</p> <p>I. The sum of money specified in the written agreement read inJevidence by plaintiff is a penalty, and not liquidated damages. If damages, the parties would have said so. See the case of Dennis v. Cummins, 3 Johns. Ch. Cas. 297, a case exactly like the one at bar. This was also a contract for the sale of land, and contained the following clause; “And it is further covenanted, in and by the said agreement by and between the said parties, that, in case of failure to fulfill the aforesaid agreements or covenants on the part of either of said parties, the party not fulfilling the said agreement shall forfeit and pay to the other party who shall fulfill the said agreement the sum of two thousand dollars damages.” The court decided that the two thousand dollars was a penalty, and not liquidated damages. The law is very clear that, where the damages are of such a nature that they can be ascertained by a jury, the amount stated by the parties as damages shall be considered as a penalty, and the aggrieved must declare and prove the damages he has sustained. And this is so although the parties state that the amount specified is “liquidated damages.” (2 Story’s Bq. Jur. p. 540, § 1318 ; Kemble v. Barren, 6 Bing. 141; Bagley v. Reddis, 5 Sandf. 192 ; Moore & Hunt v. Platte County, 8 Mo. 467 ; Gower v. Saltmarsh, 11 Mo. 271; Basye v. Ambrose, 28 Mo. 39.) In this last case the court reviewed the law at great length, and laid it down as stated in the proposition above.</p>