majority">Ellison, J.

This case was here on a former occa sion, and will be found reported in 32 Mo. App. 542 The action is founded on a statement filed with a j ustice of the peace under the provisions of chapter 104, Revised Statutes, 1879, relating to division fences. Al the first triaTin the circuit court the case was accepted by defendant as presented by plaintiff; that is, defend - ant treated and assumed the fence in question to be a statutory division fence. I have re-examined the abstract of the' evidence and. instructions at the first trial, and find this to be so. This court, therefore, treated the. case on the former appeal as we found it, and disposed of it as it should have been. Now, however, it appears that defendant has at the second trial contested the sufficiency of the fence as a statutory *382■division fence. Defendant claims that, as the action is based on the statute, sections 5056, 5661, Revised Statutes, 1879, the fence at the time of its division between the adjoining proprietors must be shown to have been .a statutory division fence; that is, ' a lawful fence as •defined in fection 5652.. We believe this claim to be well founded. Our opinion is that, in a statutory action for double damages, the plaintiff to sustain himself must show the fence when divided was a statutory lawful fence. As to how such a fence may be built, divided or agreed upon, we said sufficient when the •case was here before; but to support an action baaed on the statute it must have been, when divided, a lawful fence. This was not shown, and defendant ’ s demurrer to the evidence should have been sustained.

. Plaintiff contends that the cause was remanded when here before, for the reason that the trial court refused a certain instruction which was given on the last trial. That, as that was the sole ground of reversal, it was tantamount to an approval of all else in the former trial. Be this as it may, the case at last trial is, •as before stated, altogether unlike the one now presen ted. In this we are, of, course, 'governed by the abstracts filed in the respective appeals.

It is .suggested by counsel that since the complaint refers to the fence as a “division fence” without setting out its height or other descriptions, and that since ■defendant concedes the complaint is a statutory complaint, and since all the testimony refers to the fence as ■á “division fence,” that, therefore, the evidence sustains the complaint. We cannot allow this for several reasons: Chiefly, that, while the complaint speaks of the fence as a division fence, it shows beyond doubt that it is brought under the statute, and, to sustain it under •the statute, the case must be as above indicated.

The judgment must be reversed.

All concur.

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