think there was error in proceeding against the wife alone. 2. The record shows that Washington Hendson, one of the plaintiffs, and a copartner with the other plaintiffs, also died pending the suit and prior to the trial and judgment. The action proceeded after his death in the name of the survivors without objection by defendant. It is in this court objected, for the first time, that the court erred in thus proceeding, and for that reason the judgment should be reversed. We do not agree to this objection for two reasons. It is the settled rule of practice in this state that an objection on account of defects of parties, unless made in an appropriate manner before the trial, will be taken as waived by the opposite party. Dunn v. Railroad Co., 68 Mo. 269; Butler v. Lawson, 72 Mo. 227. Again, it does not appear from the record that the administrator of the deceased partner had qualified as administrator of the partnership estate, and unless that was done the surviving partners had the right to proceed alone in the collection of the debts and settlement of the affairs of the partnership. Bredow v. Pank, 28 Mo. 185; Easton v. Court wright, 84 Mo. 27; Matney v. Gregg, 19 Mo. App. 109. These decisions clearly indicate that giving a bond, as required by sections 57, 60, Rev. St. 1879, was not necessary to vest in the surviving partner the title to the partnership goods, or the right to collect the partnership debts, but it was intended to preserve these rights to them, as against the administrator of the deceased partner, who had given bond under section 62 of said statutes. 3. John D. Crook, one of the plaintiffs, was examined as a witness in his own behalf, and was permitted to testify, over the objection of defendant, that the debts upon which the judgments against Dabney L. Tull were rendered were created in the years 1872 and 1874, respectively. The objection was to the competency of the witness to testify to these facts, the said Tull being dead. The case was in equity, and was tried to the court without jury issues. In such case no harın can result from the admission of the evidence in the trial court, as it can be disregarded by this court, if deemed inadmissible. Powell v. Adams, 98 Mo. 601, 12 S. W. Rep. 295. The evidence of this witness was only significant in showing that the property was conveyed to the wife subsequent to contracting the debts by the husband. This was unquestionably a material fact to be proved by plaintiff; otherwise the gift to the wife, if honestly made, would be good. The judgments against Dabney L. Tull recite the dates of the notes sued upon to have been the 4th day of March, 1874, and the 19th day of January, 1876, respectively. The notes, which were offered in evidence, showed the same facts. The testimony to which objection is made fixed the dates of the debts for which these Lotes were given about two years earlier. The evidence also shows that the title to all the property was vested in defendant subsequent to the date of each of the notes, except the undivided half of the N. W. % of section 26, township 66, range 11, which was vested by deed from George Tull dated April 23, 1874, but which was subsequently sold by the sheriff under a judgment against ber husband, and was reconveyed to her in 1882. So it sufficiently appears by other evidence that defendant acquired title to all the property after the debts upon which judgment was rendered had accrued, and the evidence of the witness objected to was harmless. 4. We think the judgment of the circuit court abundantly supported by the evidence. The presumption of law is that property acquired by the wife during coverture was paid for with the ineans of the husband. Sloan v. Torry, 78 Mo. 625, and authorities cited. Defendant offered no evidence to rebut that presumption. 5. Objection is made that the amount found due plaintiff upon the judgment was excessive; that interest on the judgments should have been calculated at 6 per cent. simple interest, and the costs which accrued on these suits and judg ments should not have been allowed, for the reason that there was no evidence that it had been paid by the plaintiffs. It is not insisted that the judgment is excessive if interest was properly calculated at 10 per cent., and if the costs which accrued in those suits are properly chargeable on this judgment. The judgment of the justice shows that each of the notes sued upon hore interest at 10 per cent. per annum, and the one upon which judgment for $61.65 was rendered bore compound interest. Section 2725, Rev. St. 1879, provides that all money judgments shall bear 6 per cent. interest, except that those judgments "upon contracts bearing more than six per cent. interest shall bear the same interest borne by such contracts." It appears upon the face of these judg ments that the contracts bore 10 per cent. interest, and under the statute the judg ment should bear the same rate. We do not think it necessary that there should have been a recital in the judgment to the effect that it bore a particular rate of interest. The statute fixes the rate the judgment is to bear. State v. Vogel, 14 Mo. App. 189; Evans v. Fisher, 26 Mo. App. 543. The judgments of the justice were for debt and costs, and the latter were properly taxed for payment in favor of the officer entitled to them, if they were never paid by plaintiffs. We find no error affecting the merits of the case. Judgment affirmed. All con cur. STATE V. PATTERSON.1 (Supreme Court of Missouri, Division No. 2. July 1, 1892.) FORGERY-EXTRADITION-SUFFICIENCY OF AFFI DAVIT. 1. Defendant was convicted of selling and delivering a forged check, with intent to have the same passed, he having been arrested in and brought back from another state by requisition based upon an affidavit charging that he feloniously forged a certain check, setting it out in full, with intent to cheat and defraud, and that he had the same in possession, and did feloni ously sell, exchange, utter, pass, and deliver it, for a valuable consideration, knowing the same to be forged, with intent to pass the same. 'Rehearing pending. Held, that the affidavit was sufficient to give the court jurisdiction of defendant's person. 2. Rev. St. § 3634, which provides that every person who shall sell, exchange, or deliver, for any consideration, any forged instrument, knowing the same to be forged, "with intent to have the same altered or passed," shall be adjudged guilty of forgery in the second degree, applies to a case where the person to whom the forged instrument was sold was ignorant of the forgery, and merely intended to pass it believing it to be genuine. Appeal from criminal court, Saline county; JOHN E. RYLAND, Judge. Indictment of Don C. Patterson for forgery. Defendant was convicted, and he appeals. Affirmed. Saml. Boyd, for appellant. The Attorney General, for the State. sen THOMAS, J. The defendant was tenced to imprisonment in the penitentiary for 10 years by the criminal court of Saline county in October, 1889, for selling and delivering a forged check, knowing the same to have been forged, with intent to have the same passed, and he prosecutes this appeal. 1. Defendant's first contention is that the court had no jurisdiction over his person. After the alleged commission of the offense, defendant went to Montana, whence he was brought back on a requisition of the governor of Missouri upon the governor of Montana, which requisition was issued upon an affidavit made in due form by J. P. Huston, charging that defendant at the county of Saline and state of Missouri, on the 20th day of December, 1890, feloniously forged a check "purporting to have been drawn upon the Joplin National Bank, a bank duly incorporated under the laws of the United States, which said false, forged, and counterfeit check is of tenor following, that is to say: 'Joplin, Mo., December 17th, 1890. No. Jop lin National Bank. Pay to A. R. Ruger, or bearer, $125.00-100 (one hundred and twenty-five) dollars, ac. M. C. T. Co. A. B. MCINTIRE,'-with intent then and there to cheat and defraud; and did then and there have in his possession, and feloniously sell, exchange, utter, pass, and deliver, for a valuable consideration, to wit, one hundred and twenty-five dollars, said false, forged, and counterfeit check, knowing the same to be falsely made, forged, and counterfeited, with intent to pass the same, and to cheat and defraud, against the peace and dignity of the state. - 19 Defendant claims that his affidavit makes but one charge against him, that of making a false, forged, and counterfeit check; and we have been cited to a long list of adjudged cases on the question whether a party extradited for one offense can be tried for another. There is much learning on this subject in the books, but we do not deem it necessary at this time to examine it. The offense for which defendant was tried and convicted is set out in the affidavit, not probably with that explicitness required in an indictment, but yet explicitly enough to fully inform defendant and the authorities of the two states what the offense was for which extradition was asked. The instrument is set out in full, and defendant is charged, first, with forging it, and then with hav ing it in his possession, and selling it, and delivering it, knowing it to have been forged, with intent to pass the same. The omission to charge that defendant sold the check with the intent to have the same passed is, at most, a mere formal, and not a substantial, defect, and does not, in the slightest degree, affect the validity of the requisition. If it was ever available, it was before the governors of Missouri and Montana, and not before this court on this appeal. 2. The next error assigned by defendant arises out of the evidence and the instructions of the court. The evidence tends to show that about the 19th day of December, 1890, defendant went to the town of Marshall, in Saline county, representing that his name was A. R. Ruger, and that he was the chief engineer of the Chicago. Milwaukee & St. Paul Railroad, and desired to establish his headquarters there. He drove around the town that day with some of the citizens looking over the route of the proposed road, and spoke of hiring teams, etc. The next morning he hired a team to drive him towards Miami; but before leaving he went to the Huston & Wood Bank, and, presenting the check set out in the affidavit of J. P. Huston, given above, obtained $125 in cash for it. The check turned out to be a forgery, there being no such person as A. B. McIntire. After driving around a while, defendant left. He was next seen in Washington, D. C., and next in Montana. The defendant was charged in the indictment in three several counts: (1) With forging the check; (2) with uttering it with intent to defraud; and (3) with selling it with intent to have the same passed. The state entered a nolle pros. as to the second count, and the jury convicted defendant of the charge contained in the third count. As to the third count, the court instructed the jury, in substance, that if they found that defendant did feloniously sell, exchange, and deliver to the Huston & Wood Bank, for the consideration of $125, the check above set out, and that at the time he did so he knew it was falsely made, forged, or counterfeited, with the intent to have the same passed, then they would find him guilty. This instruction, defendant insists, was not warranted by the evidence. In order to understand his posi tion, it becomes necessary to state his argument. It is that our statute creates several distinct offenses in regard to forged instruments: (1) Forgery; (2) uttering with intent to defraud; and (3) selling with intent to have passed. The section defining "forgery" says nothing about in. tent. Then follows section 3634, Rev. St., under which the third count of this indictment is drawn, which provides as follows: "Every person who shall sell, exchange, or deliver, or offer to sell, exchange, or deliver, or receive upon a sale, exchange, or delivery, for any consideration, any falsely made, altered, forged, or counterfeited note, check, bill, draft, or other instrument, the falsely making, altering, forging, or counterfeiting of which is by the last section declared to be an offense, knowing the same to be falsely made, altered, forged, ly that the principle of the first decision should not be extended. Indeed, we do not regard the principle announced in the Vanvalkenburg Case as sound. The question decided was at that time res nova in that state. But in another particular we think the Ohio court in the Leonard Case overruled the Vanvalkenburg Case, and that is that selling a forged instrument is no less a crime because an intent to defraud accompanies the act of selling. The court says: "But, on the contrary, to hold that when a sale of counterfeit coius has been made by a party knowing it to be counterfeit, the circumstance that the sale was also a fraud on the buyer will not prevent the guilty party from being prosecuted as a seller under the act of 1858. The traffic is no less guilty on the part of the seller than it would be if the buyer knew of the counterfeit character of the coin." And on this point this court in the Watson Case, supra, evidently intended to approve what BIRCHARD, J., said in the Vanvalkenburg Case, in his dissenting opinion, Judge HENRY saying: "It may be remarked that in the latter case BIRCHARD, J., dissented, and in a very able argument contended that, the offense proven being of a lower grade than and embodied in that charged, the defendant could be convicted under that indictment." In U. S. v. Nelson, 1 Abb. (U.S.) 135, it was held that, "under a statute which punishes one who shall utter' or 'pass' spurious notes, knowing them to be such, with intent to defraud, and which does not in terms require that they be uttered as true, a defendant may be convicted of uttering or passing upon proof that he sold and delivered the notes as spurious notes to another person, with intent that they should be passed upon the public as genuine. The fact that other provisions of the statute exist which expressly provide a punishment for selling spurious notes does not prevent convicting a defendant under an indictment for passing, uttering, and publishing such notes upon proof that he sold them as spurious, with intent that the purchasers should cause them to be put in circulation as genuine." In discussing the meaning of a similar statute, the supreme judicial court of Massachusetts in Hopkins v. Com., 3 Metc. (Mass.) 460, said: "But the omission of the words 'as true' strengthens the conclusion that the legislature intended further to prohibit the passing of counterfeit bank bills as money by any person, at any rate of discount or otherwise, whether as between him and the immediate receiver they were passed as true or not." Section 3634 was intended to cover cases where a party sells forged instruments knowing them to be forged, with intent to have them passed, whether the purchaser knows they are forged or not. Now, shall a party be permitted to escape punishment because the state proves more than it is required to prove? Here the state proved, and the jury found, that the defendant sold the check knowing it to be forged, with intent to have it passed, but it did not stop at this; it went fur or counterfeited, with intent to have the same altered or passed, shall be adjudged guilty of forgery in the second degree. The subsequent sections define the offenses of having forged instruments in possession for the purpose of passing or uttering the same, and of passing and uttering forged instruments with intent to defraud. In regard to these several provisions, the defendant says: "The offense described in section 3634 is a distinct offense, not a lesser degree of some other offense, and proof of an intent to pass cannot include an intent to 'have the same passed.' The offense described in 3646 is for uttering and passing, but the offense described in 3634 is for procuring some other person to pass. The intent to pass might be included in the term 'intent to have passed,' on the principle of facit per alium, facit per se; but can it be even reasonably inferred, from the facts shown in this case, that defendant's intent was to have the Huston & Wood Bank to pass a forged check?" The argument is that section 3634 was intended to cover cases where the parties are willing purchasers of forged instruments as such, and hence are not deceived or defrauded, but they buy with the distiuct understanding they are getting forged instruments for the purpose of passing them to others. In other words, that the seller and purchaser are confederates in the crime. The defendant cites Vanvalkenburg v. State, 11 Ohio, 404; Hutchins v. State, 13 Ohio, 198; and State v. Watson, 65 Mo. 115,-in support of his position. The Missouri case is clearly not in point, as will readily appear upon examination, nor are the Ohio cases applicable here to the full extent claimed. The words in our statute, "with intent to have the same uttered or passed," are not found in the Ohio statute, under which the above-cited cases were prosecuted. In the case at bar the defendant did not present the check to the drawee for payment, but he sold and transferred it to the Huston & Wood Bank, and he must have intended, for he must have known, that this bank would present it for payment to the Joplin Bank. But, leaving out of view the distinction between the Ohio and Missouri statutes, we are not disposed to apply the same construction to our statute that the Ohio court did to the statute there. The Vanvalkenburg Case did not receive the indorsement of the whole court. The case was decided in 1842, and in 1876 a cognate question was presented to the supreme court of that state in Leonard v. State, 29 Ohio St. 408. In this last case the defendant was indicted for selling counterfeit coin, and the proof showed that he sold the coin to an innocent person, and therefore defrauded him. The defendant insisted that, as the evidence showed be intended to defraud, he could not be convicted under an indictment simply charging him with selling counterfeit coin as such, and not as genuine coins; but the court overruled this point, and held that the conviction was right. It is true the court shows that there was a distinction between the statutes under which the Vanvalkenburgther, and proved that defendant sold the and the Leonard Cases were prosecuted, but the latter opinion indicates very clear check to an innocent party, and therefore must have intended to defraud it. The Huston & Wood Bank was not a willing purchaser of the forged check as such, but defendant is certainly as guilty as if the bank had known the check was spurious. Hence, under our statute, the defendant was rightfully convicted, under a charge for selling a forged check, with intent to have the same passed, upon proof that he sold a forged check knowing it to be forged, with intent to have the same passed and with intent to defraud the purchaser, because the charge is contained in the proof. The judgment will be affirmed. All concur. MCPIKE V. MCPIKE. (Supreme Court of Missouri, Division No. 2. July 1, 1892.) EXECUTORS AND ADMINISTRATORS-ACCOUNTING RENTS-INTEREST-PRACTICE. 1. An administrator is entitled upon his final accounting to credit for money paid by him for the schooling and clothes of his intestate's daughter, where such payments were made during the intestate's lifetime and were not intended as a gift, and where the claim therefor, though not formally allowed in the probate court, was included in a settlement approved by that court. 2. A Missouri administrator is not chargeable as administrator for rents collected by him from land of the intestate in Illinois, where such rents accrued after the intestate's death, in the absence of any proof that the laws of Illinois gave bim as administrator any power to collect such rents. 3. An administrator is chargeable as such with money collected by him in payment of a debt due to his intestate, even though such payment was made in a foreign state. 4. Where the land of an intestate is left in possession of the heirs, and the administrator with their consent pastures his mules on such land, he is not chargeable as administrator with the value of the pasturage. 5. An administrator is not entitled to interest on money advanced by him for the use of the estate. 6. It is not an abuse of judicial discretion to refuse to strike out objections to a referee's report because the objections are filed one day after the time limited therefor by order of court. Appeal from circuit court, Ralls county; W. W. EDWARDS, Judge. Shields, Wood & McGowan, for appellant. Biggs & Roy, for respondent. was closed 9th March, 1886, when the further hearing was continued to June 22, 1886. At this last date, the administrator, Henry C. McPike, filed his motion to strike out of his account certain charges he had made against himself for rents and the proceeds of sale in partition of certain real estate belonging to his intestate in Alton, in the state of Illinois, amounting to $13,990. This motion the referee overruled. The referee made his report to the circuit court of Ralls county on 6th December, 1886, finding a balance due the estate from H. C. Mc Pike of $8,425.70. Both sides filed exceptions to this report. The referee, Thomas H. Bacon, Esq., having been elected judge of the circuit court, by mutual consent, he called Judge W. W. EDWARDS, of the St. Charles circuit court, to hear the exceptions to his report. Judge EDWARDS heard the cause, and rendered judgment for the estate against the administrator, H. C. McPike, for $23,858.78. 1. The first question which arises upon the rulings of the circuit court is the propriety of overruling the administrator's motion to strike out the objections of the administrator de bonis non to the referee's report. The circuit court gave each side leave to file exceptions on or before Febru ary 1, 1887. The administrator de bonis non filed his exceptions on February 2, 1887. The extension of time was a matter within the discretion of the trial judge, and this motion was properly overruled. 2. In his final settlement, the administrator claimed a credit for $1,246.60, credited July 14, 1873, for the schooling, clothing, and moneys laid out by his intestate, in his lifetime, in the education of Ella McPike, now Mrs. Moore. The referee heard this evidence, and allowed this credit. This account was presented in the probate court for allowance. James W. Lear appears to have been appointed administrator ad litem, and waived notice on it. It was sworn to by Ella Mc Pike as correct at the time, but no formal allowance was made on the record. On the hearing be fore the referee, it appears that Miss Ella made a trip to California, in 1872, with the administrator and his family. She testi. fies he paid her expenses, her dressmakers' bills, in St. Louis; that he paid her school accounts at Monticello, furnished her money, etc. The administrator testified that for five years before her father's death he attended to placing her in school and paying her bills; that he paid the amount of the voucher "C" for her father. No exception was filed to the referee's report al GANTT, P. J. Abram Mc Pike died in January, 1873. Henry C. McPike was duly appointed administrator of his estate by the probate court of Ralls county, Mo. This is an appeal from the judgment of the circuit court of Ralls county, on his final settlement of said estate, with Jeremiah Mc Pike, who was appointed administra-lowing this credit, but the circuit court tor de bonis non. Ou his final settlement in the probate court, the administrator claimed a balance due him from the estate of $5,079, and there was an approval of this settlement. From this judgment the administrator de bonis non appealed to the circuit court of Ralls county. The circuit court referred the cause to Thomas H. Bacon, Esq., with instructions to take the testimony, hear and determine the matters in dispute, and make full report to said circuit court, in writing, of all the testimony, together with his findings and decisions on the issues of the case. The referee heard the cause, and the evidence disallowed it. The learned judge simply says that the evidence does not seem to justify the credit. This credit was allowed by the probate court in the annual settlement. It was again allowed by the referee. The evidence is uncontradicted that the administrator paid this money out for his niece in the lifetime of her father. She testifies that her father did not mean to accept it as a gift; that he was amply able to support her. The law would certainly cast on the father the reasonable education of his daughter. We have been unable to view this charge with any suspicion. The beneficiary of this es tate testifies she received the consideration. At the time this disbursement was first allowed, section 230, Rev. St. 1879), was in force in this state. By that section it was not absolutely essential for the administrator to obtain a credit that it should have been allowed according to law, but he might “produce such proof of the demand as would enable the claimant to recover in a suit at law." Had the probate court refused to allow him this credit at that time, he could have made his formal proof for its allowance. It seems to us that the subsequent approval of the settlement with this credit was tantamount to an allowance, and the evidence before the referee not only did not overturn it, but tended to strengthen it. We think the court erred in setting aside this allowance. To drive this administrator into a court to obtain a judgment now, after the statute of limitations has run, would work an injustice. 3. In his final settlement, the administrator charged himself with the following items: Jan'y 17, 1874. Cash of S. W. Farber & Co., rent of mill.. Dec. 29, 1874. S. W. Farber & Co., mill rent 750 00 750 00 2,920 00 750 00 750 00 750 00 750 00 6,570 00 $13,990 00 He moved the referee to strike these charges from his account. The referee declined to do so, and the circuit court sustained the referee. That this mill was real estate in the state of Illinois seems unquestioned. No administration on it was had in that state. The testimony is that in a partition proceeding in Illinois the mill was sold by a commissioner, and the proceeds of the sale divided among the owners. Abram Mc Pike's heirs' one fourth was paid to Henry C. McPike. The administrator de bonis non claims that, inasmuch as the administrator, on his own showing, received this money belonging to the heirs, he is chargeable with it. The administrator, on the other hand, says that he did receive it, but not as administrator; that his bondsmen ought not to be charged with this money, which never was assets in this state. That the courts have the right, upon final settlement being made, to examine the prior settlements and rectify all errors or mistakes that have been made, by or against administrators, is now settled in this state. Woerner, Adm'n, §§ 504, 539; In re Davis, 62 Mo. 453. The mere fact that an administrator has charged himself in an annual settlement with a fund that he has received as trustee, or attorney in fact for the heirs, and not by virtue of his official character, and to which he would and could have no legal right as administrator, will not estop him from asking to strike the same from his accounts on final settlement, nor prevent the probate court allowing him to do so. Woerner, Adm'n, § 513, note 6, and cases cited. It becomes a question of great importance, not only to the administrator and his sureties and the heirs of this estate, but to administrators and beneficiaries of estates generally, as to proper disposition of the rents and proceeds of sale of the Illinois real estate belonging to Abram McPike. An administrator derives his authority to take and administer the assets of his intestate from the laws of the state in which he is appointed, and these laws of necessity have no extraterritorial sanction. Naylor v. Moffatt, 29 Mo. 126; Cabanne v. Skinker, 56 Mo. 357; Scudder v. Ames, 89 Mo. 522, par. 4, 14 S. W. Rep. 525; In re Ames' Estate, 52 Mo. 290; State v. Osborn, 71 Mo.86. The property of every person who dies in this state, whether citizen or stranger, is subject to the course of administration provided by our statutes, and is regarded as in the custody of the law for the benefit of all persons interested, (Bartlett v. Hyde, 3 Mo. 490;) and in this respect our laws are in harmony with the laws of administration and succession of the various states of the Union. The laws of Illinois were not placed in evidence. In the absence of such evidence it will be presumed the common law is in force in that state, and that the title to Abram McPike's lands upon his death vested according to the canons of the common law. Young v. People, 35 11. App. 363; Le Moyne v. Quimby, 70 Ill. 399; Warren v. Lusk, 16 Mo. 102; Houghtaling v. Ball, 19 Mo. 84; Meyer v. McCafe, 73 Mo. 236; Long v. Long, 79 Mo. 651. At common law the administrator had nothing whatever to do with the real estate of his intestate. It descended to the heirs. Accordingly, at the common law, and in those states generally where the common law has been adopted, and only modified to the extent of permitting a sale of the lands to pay debts, it has generally been held that, where an administrator came into the possession of rents from the realty or the proceeds of sale, he was chargeable therefor individually as a trustee or trespasser, but not in his character as administrator. Newcomb v. Stebbins, 9 Metc. (Mass.) 540; Wilson v. Uuselt's Adm'r, 12 Bush, (Ky.) 215; Head v. Sutton, 31 Kan. 616, 3 Pac. Rep. 280; Belcher v. Branch, 11 R. I. 226, Walker's Appeal, 116 Pa. St. 419, 9 Atl. Rep. 654; Rodman v. Rodman, 54 Ind. 444; Kimball v. Sumner, 62 Me. 305; Calyer v. Calyer, 4 Redf. Sur. 305; Gregg v. Currier, 36 N. H. 200; Scroggs v. Stevenson, 100 N. C. 354, 6 S. E. Rep. 111; Byrne v. Hume, 73 Mich. 392, 41 N. W. Rep. 331. In this state, however, our statutes require the administrator to inventory the real estate, and under the orders of the probate court he is authorized to lease the real estate, collect the rents, prosecute actions for the recovery of possession, discharge mortgages and other lens, and deliver the property to those entitled thereto, when not needed for the payment of debts. Chapter 1, art. 4, § 69; article 5, §§ 93, 94; and article 7, §§ 129, 130, and article 8, § 145 et seq.; Lewis v. Carson, 93 Mo. 591, 3 S. W. Rep. 483, and 6 S.W. Rep. 365; Gamble v. Gibson, 59 Mo. 592; Dix v. Morris, 66 Mo. 514. In this last case the action was against the sureties on the |