H. W. Currey and Frank L. Forlow, for appellant. Howard Hasbrouck and Howard Gray, for respondents.

ELLISON, J. The plaintiffs are trustees in a deed of trust in the nature of a mortgage given by a mining corporation known as the Missouri Blanket Vein Company, whereby an issue of bonds of certain denomination was secured. Defendant is the sheriff of Jasper county, and as such had seized certain property (covered by the mortgage) under a writ of attachment sued out by certain creditors of the company. The plaintiff trustees brought this action in replevin against the sheriff, and they prevailed in the trial court.

The only question presented by the record is whether the provisions of the mortgage render it void as to creditors as a matter of law. Among the provisions which it is urged make the mortgage void is one which makes it mandatory on the trustees to sell any of the mortgaged property on the written request of the company, whenever the latter deemed that it could not be further advantageously used. But it is provided that, before a sale, the trustees must have the property appraised; and upon a sale at not less than appraisal the money realized shall be paid to the trustees, and held as security for the bonds, until the company shall thereafter have acquired property of equal value to stand instead of the property sold. The provision reads: "Fourth. So long as the company shall not be in default in the payment of any interest or principal, or in the exchange, of any of the bonds issued as herein provided, any of the real or leasehold property subject to this indenture, which cannot be advantageously used in the proper and judicious operation and management of the business of the company, or the sale of which shall become necessary for any cause, may be sold or exchanged for other property; and it shall be the duty of the trustees, or either one of them, upon the written request of the company, to execute suitable instruments releasing the same from the lien and effect of this indenture. But in case of any such sale or exchange the company covenants and agrees as follows: (a) That before any sale or exchange of property shall be made, such property shall be appraised by the trustees, or either one of them, or by an appraiser chosen or approved by said trustees, or either one of them. (b) That in case of a sale of any of said property or of any interest therein, the price or proceeds of such sale, not less than the appraised value of such property or interest sold, shall be paid to the trustees, or either one of them, and held for the further security of the said bonds, until the company shall thereafter have expended money in the erection of buildings, or other permanent improvements on the property of

the company, subject to this indenture, or in the purchase of other real property or mining leases, free from incumbrance, or of leasehold property, at a price not exceeding its or their appraised value, which appraisal shall be made by said trustees, or either one of them, or by an appraiser chosen and approved by said trustees, or either one of them, and until such property shall have been conveyed to the trustees, to be held by them hereunder, as part of the mortgaged premises; whereupon the trustees, or either one of them, on being certified of such facts, shall pay to the company out of any money received and held by them, or either one of them, as the proceeds of property sold as aforesaid, an amount equal to the expenditures so made by the company in order to reimburse it therefor. (c) That, in case of an exchange of real property, other property free from incumbrances, and of an appraised value, which value shall be determined by the trustees, or either one of them, or by an appraiser chosen and approved by the trustees, or either one of them, equal to the appraised value of the property conveyed, shall be received by the company and conveyed to the trustees, to be held by them hereunder as part of the mortgaged premises. The company shall be permitted to alter, remove, or otherwise dispose of any buildings, fixtures, plant, machinery, boilers, tools, pumps, or other personal property covered by this indenture, which cannot, where located, be advantageously used in the judicious operation and management of the business of the company. The company, however, covenants that it will maintain and preserve the value of the mortgaged premises or property from impairment or reduction, by restoring to their original value any buildings, fixtures, plant, or machinery, or personal property, which may be altered or removed from one portion of the mortgaged premises or property to another, and by replacing any buildings, fixtures, machinery, plant, or other property, which may be removed or otherwise disposed of, by other buildings, fixtures, plant, machinery, or other property, of at least equal value, which shall be erected or placed upon or attached to the premises or property hereby mortgaged, either before or promptly after such removal or other disposition."

The statute of this state (section 3397, Rev. St. 1899) avoids deeds conveying chattels to the use of the grantor. That statute has been applied to a variety of cases of attempted disposal of personalty, the effect of which was to hinder creditors and to protect the debtor; and defendant urges that the effect of the foregoing clause, enabling the mortgagor company to dispose of personalty connected with the mining property, is nothing less than a clause for the imme diate benefit of the company, at the expense of general creditors, both prior and subse

quent. But we do not think so. The persenal property involved is not merchandise in constant sale at retail, to be renewed and resold, as in the ordinary mercantile trade; thus enabling the debtor to carry on his business free of molestation by creditors. Such was the character of property in State, to Use, etc., v. Mueller, 10 Mo. App. 87, Oliver-Finnie Grocer Co. v. Miller, 53 Mo. App. 107, and other cases cited by defendant. The property here referred to is rot property to be sold for the benefit of the mortgagor, but it is rather property which may become worn out or otherwise seless in the service of the mortgagees. The mortgage provides that such property may be sold, or otherwise disposed of, provided that other like property shall be immediately substituted and the mortgage security not impaired. Thus, if a machine necessary to mining should become worn and impractical for further use, it could be disposed of and a proper and suitable one substituted, to the end that the security of the mortgagees might not be impaired. But in all this, nothing was to result to the benefit or use of the mortgagor company, in such respect differing from the cases of McCartby v. Miller, 41 Mo. App. 200, Walter T. Wimer, 24 Mo. 63,.Stanley v. Bunce, 27 Mo 269, and other like cases. We may appropriately borrow the words of Judge Thompson in Jennings v. Sparkman, 48 Mo. App. 246: “It is plain that this language does not confer upon the mortgagor any general power of sale, or any general power of substitution by way of sale, but that the only power of substitution which it confers is a power of substitution for the purpose of supplying breakage, loss, or waste of the property. This does not bring the case within the decision of the Supreme Court in Goddard v. Jones, 78 Mo. 518, nor within the decision of this court in State, to Use, V. Busch, 38 Mo. App. 440. When it is considered that a part of the property covered by the mortgage was a sawmill, portions of which are constantly liable to wear out or get broken, the appropriateness of the language to the subject-matter of the deed is apparent; and it is not at all apparent that the parties intended thereby to Lake a conveyance to the use of the mortgor, within the meaning of our decision." See, also, Cook on Corp. § 798.

Mortgages of railroad property are analogons to that in controversy. In such conveyances the distinction is made between the taracter of chattels mortgaged and those zore closely pertaining to a mercantile character, such as we have referred to above. It 's said by the courts that this kind of property is necessarily undergoing constant wear and consequent destruction, and that mortpages on going concerns would have but litte value if the lien could not be made to ply to a renewal of such property; that there was a constant necessity, from the

very nature of the property, to dispose of worn-out ties, rails, machinery, and other property, and replace it; that such necessity naturally forbids an inference of a fraudulent purpose in providing that it may be done; that such provisions were in the interest of the mortgagees, and consequently, as a result, also to the interest of all other creditors. Butler v. Rahm, 46 Md. 541; Ludlow v. Hurd, 1 Disney, 552, 561; Pa., W. & B. Ry. v. Woelpper, 64 Pa. 366, 3 Am. Rep. 596; Shaw v. Bill, 95 U. S. 10, 24 L. Ed. 333.

Those parts of the mortgage which we have quoted which refer to the power to sell real estate are qualified by further provisions requiring the trustees to appraise such property, the sale not to be at less than the appraised value, and the proceeds thereof turned over to the trustees, to be held until property of equal value be purchased and held as part of the mortgaged property to secure the payment of the bonds. Whatever could be said of this part of the mortgage in case of controversy between the mortgagees and persons claiming title, or an interest in the real estate which might be thus substituted, we cannot see any ground for declaring that such provision renders the mortgage void in toto as to creditors. In regard to real estate different considerations enter from those concerning personalty. No actual fraud appears, and there is nothing in the mortgage which shows that any fraud can result to the creditors at whose suit the defendant seized the personal property in controversy. The only ground upon which the defendant can justify in the present case is the absolute invalidity of the mortgage; such invalidity springing from the mortgage being to the mortgagor's use. The provisions as to the sale of the real estate do not sustain such contention.

The defendant presents a great number of other reasons which he urges make the mortgage fraudulent as a matter of law. Those already referred to are all that we care to notice in detail. The others we do not regard as substantial. It was certainly not a fraud upon creditors to provide that, in case of fire, the insurance money should be paid to the trustees, and by them held as security for the bonds, until the company should rehabilitate such property. So the provision that a foreclosure should not be had until a certain portion of the bondholders so requested is not such an one as renders the mortgage void. Indeed, such conditions are believed to be usual, and the only practical way in. which to draw a mortgage of like nature.

It is finally insisted by defendant that the mortgagor company was not properly organized and put into shape as a legal entity capacitated to execute a mortgage. It seems that the corporation was organized under the laws of Delaware. The point of objection is that, while the certificate of incorporation was granted by the state of Delaware, the organization was in fact had afterwards in the state of New York, where the board of

directors were elected and entered upon the discharge of duties connected with the management of the affairs of the company. Defendant's point, as disclosed by brief of counsel, is that "the first or organization meeting of the corporation must be held within the state issuing the charter"; that is, the state of Delaware, instead of New York. It is shown by the plaintiffs that the charter of the corporation provides for the meeting of directors and transaction of business outside the original state granting the charter. But be that as it may, we do not see where defendant, as representative of the attaching creditors, has any right to make such defense. The corporation was and is an acting concern, and the creditors have dealt with it as such; and their claims arose out of contracts with the corporation as such. They are now estopped from asserting to the contrary. Continental Trust Co. v. Toledo Ry. Co. (C. C.) 82 Fed. 642; Toledo Ry. Co. v. Continental Trust Co., 95 Fed. 497, 507, 36 C. C. A. 155.

We are satisfied with the judgment of the trial court, and order that it be affirmed All concur.

FIELDS V. MISSOURI PAC. RY. CO.* (Kansas City Court of Appeals. Missouri. June 5, 1905.)

1. TRIAL DEMURRERS TO EVIDENCE-CONSIDERATION OF TESTIMONY.

In considering whether a party is entitled to recover, all the evidence of both parties must be reviewed; and, if there is any substantial testimony in support of his case, it must be submitted to the jury, and their determination is final.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 338-343.]

2. EVIDENCE

CIRCUMSTANTIAL EVIDENCECONNECTION OF CIRCUMSTANCES.

In order to support an action based on circumstantial evidence, the circumstances must form a connected chain pointing to a single conclusion, or a number of independent circumstances pointing in the same direction or verging to a common center.

[Ed. Note. For cases in point, see vol. 20, Cent. Dig. Evidence, § 2436.]

3. RAILROADS-FIRES-DESTRUCTION OF PROPERTY-EVIDENCE-SUFFICIENCY.

In an action against a railroad for the destruction of property by fire communicated by sparks from a locomotive, evidence held sufficient to support a verdict for plaintiff. 4. WITNESSES

TION.

IMPEACHMENT-CONTRADIC

In an action against a railroad for the destruction of a barn by fire, defendant introduced what would be the evidence of a certain person, if present and testifying, that about 30 minutes before the fire strangers, looking like tramps and apparently intoxicated, passed along the road in the direction of the barn, and one of them remarked that they would sleep in the barn that night. Thereupon a witness for plaintiff testified that he was present all the time, and never heard defendant's witness state that he had heard any such remark from the stran

Rehearing denied June 26, 1905.

gers. Held, that the testimony of plaintiff's witness was incompetent to contradict the statement of defendant's witness.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1276, 1277.] 5. EVIDENCE-UNCONNECTED

-COMPETENCY.

CIRCUMSTANCES

In an action against a railroad for the destruction of a barn by fire, testimony that about 30 minutes before the fire strangers, looking like tramps and apparently intoxicated, passed along the public road in the direction of the barn, and one of them remarked that they would sleep in the barn that night, was incompetent, standing by itself, to show that the fire was started by the tramps.

6. APPEAL-HARMLESS ERROR.

The admission of incompetent testimony to contradict other incompetent testimony is harmless.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 4153-4155.] 7. WITNESSES-IMPEACHMENT-INSTRUCTIONS. Where the testimony of a witness is wholly discredited, a charge that the jury may reject the testimony of any witness whom they believe has willfully sworn falsely to any material fact is proper.

[Ed. Note. For cases in point, see vol._46, Cent. Dig. Trial, §§ 490-494; vol. 50, Cent. Dig. Witnesses, § 1080.]

Appeal from Circuit Court, Jackson County; E. P. Gates, Special Judge.

Action by Bettie M. Fields against the Missouri Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Elijah Robinson, for appellant. Geo. B. Strother and Sam B. Strother, for respondent.

BROADDUS, P. J. This is a suit for damages for the destruction of plaintiff's barn and hay therein by fire alleged to have been started by sparks emitted from one of defendant's locomotive engines. The fire occurred at about 5:30 p. m., October 27, 1903, near Lee's Summit, Mo. The testimony shows that the barn in question was situated on the west side and about 850 feet from defendant's tracks, which ran nearly north and south with reference to said barn. No one testified seeing the sparks communicated to the barn. There was evidence that a freight train passed about 4 o'clock p. m., and other evidence that no such train passed at that time, but that a passenger train passed at 4:13 o'clock. The witness who testified that a freight train had passed at the time stated testified also that soon thereafter he saw a small fire burning in the grass near defendant's tracks. No witness saw the barn on fire until about 5:30 o'clock p. m., at which time it had gained considerable headway. Between the railroad track and barn was a field in which were stalks and grass, which was burned over to within 180 to 215 feet of the barn. In order to have reached the barn, the sparks from this burning field necessarily had to pass over this space. It was shown that the wind was blowing from southeast to southwest, which

would carry sparks from the field towards the barn. The evidence from the governLent weather bureau was that at the time named the wind was blowing at Kansas City (about 20 miles distant) from a southeasterly to a southwesterly direction at a velocity of from 7 to 8 miles an hour, and that the speed and direction would be about the same at Lee's Summit, but there might be some difference in the two places. The evidence of witnesses at Lee's Summit was that the wind was, in the language of one of them, "pretty strong." It was shown that the grade at the point where the fire was first seen was slightly upward, and that trains in passing at times threw out sparks.

The contention of appellant is that under the evidence plaintiff was not entitled to recover. If we consider only defendant's testimony its position is correct. But we are to take into consideration all the evidence, that of plaintiff as well as that of defendant; and, if there was any substantial testimony upon which to base the verdict, we are bound by it. And it can make no difference notwithstanding there was much evidence to the effect that the field in question had been burned over before the day in question, and that, if defendant's witnesses are to be believed, the fire could not have been communicated at the time claimed by plaintiff. Nor are we to take as conclusive the evidence of defendant's agents that its engines were in good repair, the netting and appliances in good condition, and consequently its smokestack did not emit sparks. The defendant submitted a demurrer to plaintiff's case, which the court overruled.

We are cited to numerous cases by defendant as parallel with this to show that plaintiff was not entitled to recover. But in cases of this kind the facts are nearly always different. Upon a given state of facts the court declares the law. It is the application of the law to the facts that gives rise to difficulties. And, when the question is raised that plaintiff has not proven his case, the court must look to his evidence; and, if there is any substantial testimony to support its allegations, the question is one for the jury; otherwise it is a question for the court. In a case like this, where the action depends upon circumstantial evidence, the rule is that the circumstances must form a connected chain pointing to a single conclusion, or a number of independent circumstances pointing in the same direction or verging to a common center. The chain of circumstances is as follows: The locomotive attached to a freight train was seen to pass going upgrade. In a few minutes a fire is discovered in the dry vegetation along defendant's right of way. An adjoining field is covered with dry grass and cornstalks. This vegetation is found burned over to within 200 feet of plaintifs barn. Within 12 hours after the fire was first discovered along the right of way this barn was on fire. During all the while

the wind was blowing from the fire in the direction of the barn.

These circumstances all point one way. From them we may infer that the locomotive going upgrade emitted sparks which fell upon the dry grass and set it afire, which spread and communicated to the dry material in the field, and which fire, driven by the wind which directed it towards the barn, was driven across the intervening space of 200 feet to said barn, setting it afire. That a wind traveling at the rate of 7 miles an hour-much less a strong wind-would carry sparks a distance of 200 feet is a matter of common knowledge. It was not only probable, but it was certain to do so. All the circumstances lead to but one conclusion. It is true that these circumstances might all tend like a chain to lead to one direction only, yet after all, without a single link in the chain missing, the ultimate result, in fact, might be different. But it is not probable.

The fact that the barn was not discovered to be on fire for so great a length of time after it was first seen on defendant's right of way is not a circumstance, when considered in the light of common experience, that tends to overthrow the foregoing conclusion; for it is well known that fires sometimes, even in high winds, travel slowly, especially over fields whereon is found dry grass and stalks in the month of October, for at that season of the year the grass is not all dry and the corn stalks, as a rule, are not so numerous on the ground as to furnish ready material for a continuous and rapid progress of the flame. The case is stronger than in Kenney v. Railroad, 70 Mo. 243, and Torpey v. Railroad, 64 Mo. App. 382, in which cases the court held that the proof was sufficient. The case of Peffer v. Railroad, 98 Mo. App. 291, 71 S. W. 1073, was where the evidence showed that defendant's engine could have set the fire, and nothing more, which was held sufficient to maintain the action.

But it is held that what is probable, or even possible, may be given in evidence, and its probative force is a question for the jury in arriving at their verdict. Campbell v. Railway Co., 121 Mo. 349, 25 S. W. 936, 25 L. R. A. 175, 42 Am. St. Rep. 530; Matthews v. Railway Co., 142 Mo. 645, 44 S. W. 802. As an original proposition, speaking for myself, I think that what is possible in a given case is entering into an almost limitless field of speculation, and a mere probability would be in a less degree guesswork. These cases are cited to show that, under any theory of the case predicated upon the plaintiff's testimony, the verdict is bound to be upheld.

Defendant introduced what would be the evidence of one Joseph Faust, if present and testifying, to the effect that, about 30 minutes before the fire, three strangers having the appearance of tramps passed along the public road going in the direction of the barn; that they seemed to be intoxicated, and

one of them remarked that they would sleep in the barn that night. Several witnesses were called by plaintiff to contradict Faust's statement. One witness by the name of Nickell was permitted to testify over defendant's objections that he was present all the time, and that he never heard Faust at any time make the statement that he (Faust) had heard any such remark from the strangers. The object of introducing Faust's evidence was to show that the fire may have been started in the barn by supposed tramps. The admission of such evidence to contradict the statement of Faust was error. But it was harmless, as the statement of Faust, in the first place, was incompetent. Standing alone, as it did, and disconnected with any other fact, it proved nothing. As the defendant invited the error, it ought not to complain.

The court, at the instance of plaintiff, gave an instruction that "if the jury believe, from the evidence, that any witness has willfully sworn falsely to any material fact, the jury are at liberty to disbelieve and reject as untrue the whole or any part of the testimony of such witness, or accept and believe such parts as they may believe to be true when considered in connection with all the evidence in the case." Instructions of this kind are not applicable, unless justified by the conduct of the witness or his statement, which indicate that he is knowingly testifying to matters that are untrue. Faust's statement as to what he heard one of the supposed tramps say about their intention to sleep in the barn justified the instruction, as several witnesses who were with him and could have heard what was said testified that they did not hear anything of the kind spoken. He was wholly discredited, and it was proper to call attention to his testimony in the general instruction mentioned.

For the reasons given the cause is affirmed. All concur.

SCHOOL DIST. NO. 1, TP. 24, RANGE 4, v. BOYLE et al.

(St. Louis Court of Appeals. Missouri. June 19, 1905.)

1. BILL OF EXCEPTIONS-FILING-TIME.

A bill of exceptions, not filed within the time granted by the court for that purpose, will not be noticed on appeal.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2404, 2405.] 2. SAME-EVIDENCE-RECORD.

A recital contained in a bill of exceptions that it was filed in due time, etc., was insufficient to show the facts, since proof that time was allowed to file a bill of exceptions must be shown by the record proper, outside of the bill itself.

[Ed. Note.-For cases in point, see vol. 3, Cent. Dig. Appeal and Error, §§ 2319-2321.]

Appeal from Circuit Court, Howell County: W. N. Evans, Judge.

Action by school district No. 1, township 24, range 4, against Arthur Boyle and others.

From a judgment for defendants, plaintiff appeals. Transferred by Supreme Court to St. Louis Court of Appeals. 81 S. W. 409. Affirmed.

This cause was transferred to this court from the Supreme Court. It originated in the circuit court of Oregon county. The petition counts upon a building contract and bond, and in substance alleges that defendant Boyle, a contractor and builder, entered into a contract with plaintiff school district, whereby he was to erect for plaintiff a certain brick school building as provided in said contract; that the other defendants are sureties on the bond for the faithful performance of the contract; that defendant failed to erect said building in accordance with the requirements of such contract, etc.-and prays judg ment for $5,000, the penalty of said bond, to be satisfied by the payment of the aggregate sum of $2,286.52, etc. The issues were tried to a jury in the Howell circuit court, to which court the cause had been transferred by change of venue. The finding was for the defendants. Plaintiff appeals.

The appeal is in what is commonly called the long form; that is, a transcript of the entire record is filed in this court over the certificate and hand of the clerk. This record shows the following facts: The trial was completed on February 2, 1901, and on the same date separate motions for new trial and in arrest of judgment, having been filed, were by the court overruled, and on the same day a proper affidavit for appeal to the Supreme Court was filed, whereupon the appeal therein prayed for was granted plaintiff to that court. On the same day and at the same time when such appeal was allowed, plaintiff was granted 90 days in which to prepare and file its bill of exceptions. There is no order in the transcript of the record before us granting further time for the filing of said bill. The only further entry in the record pertaining to the bill of exceptions is that of date May 31, 1901, which shows the filing of said bill on that date, from which it conclusively appears that the bill of exceptions was not filed within the 90 days' time theretofore allowed by the court.

So much for the showing of the record in this behalf. It must be stated, however, that the bill of exceptions, at its conclusion, immediately before the certificate of the judge, contains the following entry, to wit: “And thereafter, to wit, on the — and before

the time originally granted for the filing of the bill of exceptions had expired, the time for filing said bill of exceptions in the aboveentitled cause was by an order entered of record in vacation extended thirty days from the expiration of the time originally granted.” As said, this quotation is from the bill of exceptions, and it nowhere appears in the transcript, which is certified to us by the clerk under his hand and seal to be a correct transcript of the entire record in said cause. Respondent moves to strike out the bill of