About a month after, the woman had a miscarriage. Defendant was called to attend her, and his conversation with her indicated that he remembered the circumstances, but he told another physician who was called in that he did not know what was the matter. After the woman died, he tried to borrow money to pay her funeral expenses, saying that he could settle with her mother in that way, and then left the city for several months. Held sufficient to sustain a conviction.-People v. Van Zile, 73 Hun, 534, 26 N. Y. Supp. 390.

[v] (Pa. 1871) A sworn but extrajudicial certificate that he had not held improper relations with her, obtained from the prosecutrix by defendant before being charged with attempting to procure an abortion, does not conclude the commonwealth.-Commonwealth v. W, 3 Pittsb. R. 463.

[vv] (Pa. 1898) Where the crime of abortion is charged as incident to the meeting of two people, which is admitted to have taken place, evidence that deceased addressed and mailed a letter to defendant, and subsequently wired him to meet her on a certain train, is admissible as tending to prove that these two persons had been in communication prior to the subsequent meeting on the train designated in the telegram.-Commonwealth v. Mitchell, 6 Pa. Super. Ct. 369. 41 W. N. C. 455.

[vvv] (Pa. 1898) Under Act June 26, 1895, making dying declarations competent in prosecutions for abortion, statements made shortly before death by the woman to her mother were properly admitted, when accompanied by instructions as to the weight of such statements, of the necessity that the witness have at the time a sense of impending dissolution, and that she have an enlightened conscience, a strong sense of accountability to her Maker, and that she be not affected by anger or a desire for revenge.-Commonwealth v. Keene, 7 Pa. Super. Ct. 293.

[w] (Pa. 1898) The corroborative evidence of a dying declaration, required by Act June 26, 1895, need not extend to every material fact to warrant a conviction, but should tend to prove that an offense has been committed, and to identify the defendant as the criminal. Commonwealth v. Keene, 7 Pa. Super. Ct. 293. [ww] (Pa. 1898) Where an indictment for attempt to procure a miscarriage and an indictment for procuring an abortion were tried together, evidence of the dying declaration of the woman, being admissible in a trial for abortion by Act June 26, 1895, was properly admitted, where only a general objection to such evidence was made.-Commonwealth v. Keene, 7 Pa. Super. Ct. 293.

[www] (Tenn. 1904) In a prosecution for abortion, testimony that defendant's wife went to the house of the girl operated upon, introduced to show that the wife was spiriting the girl away, was irrelevant and inadmissible, in the absence of any showing that defendant had any knowledge of, or was connected with, such visit.-Smartt v. State, 80 S. W. 586, 112 Tenn. 539.

[x] (Tex. 1892) Defendant was charged with administering cotton-root tea for the purpose of producing an abortion. Experts for the state testified that, while the books said that an abortion was liable to follow the administration of cotton-root tea, they knew nothing of it by personal observation, and thought that as administered to the prosecuting witness by defendant it would not produce an abortion. Held that, under Pen. Code, art. 538, requiring the evidence in support of such a charge to show that the means employed were calculated to produce an abortion, the jury should have found for the defendant.-Williams v. State (App.) 19 S. W.

897.

[xx] (Tex. 1897) Evidence that, about the time of the abortion, defendant had a certain

V.

to commit an abortion, though he did not use such instrument on prosecutrix.-Moore State, 40 S. W. 287, 37 Tex. Cr. R. 552. [xxx] (Tex. 1897) Early in January, defendant furnished to prosecutrix (then between two and three months advanced in pregnancy) certain drugs, which were taken by her until January 21st. On that day, defendant operated with an instrument, which caused pain and faintness. Prosecutrix walked two miles home, and that night her father shook her and struck her. Thereafter she twice rode several miles over a rough road, drew several buckets of water from a deep well, and did some washing. She was worried and mentally depressed. From February 15th to 19th she had hemorrhage and pain, and on the 20th miscarried. The medical testimony was that the drugs as administered were liable to produce an abortion, as was also the insertion of an instrument; that an abortion so produced would probably occur in two or three days, but might be delayed for thirty days or more; that the tendency of the drugs would be to arrest the development of the fetus; and that the work, despondency, etc., of prosecutrix, were also liable to produce an abortion. Prosecutrix was a healthy country girl. Held, that the evidence sustained_a_conviction. Moore v. State, 40 S. W. 287, 37 Tex. Cr. R. 552.

[y] (Tex. 1897) Evidence that ergot was administered, and that it will, under certain circumstances, produce an abortion, is sufficient to sustain a conviction of an attempt to produce an abortion.-Hunter v. State, 41 S. w. 602, 38 Tex. Cr. R. 61.

[yy] (Tex. 1902) On a prosecution for an attempt to procure an abortion, evidence that defendant had had intercourse with the prosecutrix, and was the father of her unborn child, was admissible as tending to prove a motive.Fretwell v. State, 67 S. W. 1021, 43 Tex. Cr. R. 501.

[yyy] (Tex. 1902) On a prosecution for an attempt to procure an abortion, evidence to the effect that defendant suggested to others to have carnal intercourse with the prosecutrix was admissible.-Fretwell v. State, 67 S. W. 1021, 43 Tex. Cr. R. 501.

[z] (Tex. 1902) Defendant was charged with administering ergot for the purpose of procuring an abortion. The prosecutrix took it in much smaller doses than prescribed. Expert witnesses testified that ergot taken according to defendant's directions would be likely to produce an abortion, but there was no evidence showing that the quantity actually taken by the prosecutrix would be likely to have that effect. Held that, since the statute required that the evidence in support of such a charge must show that the means actually employed, and not merely that the means prescribed, were calculated to produce an abortion, the testimony was insufficient to support a conviction.-Fretwell v. State, 67 S. W. 1021, 43 Tex. Cr. R. 501.

[zz] (Tex. 1903) In a prosecution for causing an abortion, in which the state claimed that the girl was, by previous arrangement, taken by the man who was responsible for her pregnancy to the town where defendant lived, to have him procure an abortion, evidence by the girl that while she and the man were stopping in another town, on their way to the town where defendant lived, the man sent a telegram to defendant, stating that they would be there that night, and asking if everything was all right, and that defendant replied: "Don't come to-night. Come to-morrow night"-was inadmissible.-Durham v. State, 76 S. W. 563, 45 Tex. Cr. R. 475.

[zzz] (W. Va. 1900) Where an abortion is fully established and the circumstantial evidence establishes beyond a reasonable doubt the guilt of the accused to the satisfaction of

cause the evidence fails to show the character of the instrument, or the time when used to produce the abortion.-State v. Lilly, 35 S. E. 837, 47 W. Va. 496.

BLURTON et al. v. HANSEN et al. (St. Louis Court of Appeals. Missouri. Feb. 23, 1909.)

1. REPLEVIN (§ 30*)-DESCRIPTION OF PROP

EKTY.

A replevin affidavit described the property as 2,500 pounds of zinc and lead ore, the same being a quantity of such ore delivered to defendants on the day of July, 1907, to be milled, of the value of $50, and alleged that it had been damaged by being mixed with inferior ore. Held, that the description of the property was sufficient under the rule that a petition in replevin need only describe the property with sufficient clearness as to enable the officer to identify it.

[Ed. Note.-For other cases, see Replevin, Cent. Dig. §§ 133, 134; Dec. Dig. § 30.*] 2. CONFUSION OF GOODS (§ 12*)—COMMINGLED GOODS-RIGHT TO RECOVER.

The fact that defendants in replevin to recover ore had wrongfully mixed plaintiffs' ore with ore of a lower grade belonging to them, did not preclude plaintiffs' recovery of their ore, though some of defendants' might have been tak en with it.

[Ed. Note.-For other cases, see Confusion of Goods, Cent. Dig. 88 5-14; Dec. Dig. § 12;* Replevin, Cent. Dig. § 15.]

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by J. Blurton and others against H. C. Hansen and others. Judgment for defendants, and plaintiffs appeal. Reversed and remanded.

According to the recitals in the abstract, the petition was accompanied by a replevin bond in the ordinary form with a penalty of $100. An order of delivery was issued to the constable for the property described in the statement, and the constable returned he had executed the order "by taking into my possession the within named property." Summons was issued in the ordinary form and served on defendants M. P. Welton and H. C. Hansen, who retained the ore by executing a delivery bond which recited the property had been attached by the constable under a writ of attachment. The judgment of the justice also indicates the action was treated as one of attachment and not of replevin, for his transcript recites an attachment and summons had been executed, and contained an entry of judgment in favor of plaintiffs "for $50, the amount sued for and $20 damages." Defendants appealed to the circuit court, where the case came on for trial before a jury, but defendants' counsel objected to the admission of any testimony for plaintiffs, assigning as a reason merely that the petition failed to state facts sufficient to constitute a cause of action. The objection was sustained, plaintiffs taking an exception, and thereupon the jury was discharged and judgment entered dismissing the cause. Plaintiffs appealed to this court.

Ruark & Benton, for appellants. Spencer & Spencer, for respondents.

GOODE, J. (after stating the facts as above). The only question argued and presented for our determination is whether the description of the property in the statement was sufficient to let in evidence to establish a right of possession in plaintiffs; and it is unless a verdict on it would be arrested. Donaldson v. Butler Co., 98 Mo. 163, 11 S. W. 572. We do not say defendants might not have exacted by motion a more specific description. They preferred no definite objection against the description when they objected to the reception of evidence, and, if this had been done, perchance the complaint might have been amended to describe the property more specifically-a circumstance of some influence. Speaking generally, a petition or complaint in replevin must give such a description of property sought to be recovered as will enable the officer to identify it when he undertakes to execute a writ for the caption of it. Mahoney v. Smith, 7 Mo. App. 578; Gray v. Parker, 38 Mo. 160; Kaufmann v. Schilling, 58 Mo. 218. Plaintiff's have described the property involved as 2,500 pounds of zinc and lead ore, the same being a quantity of said ore delivered to the defendants on a certain date to be milled by defendants. It is further alleged the property was wrongfully detained by defendants

This action was instituted before a justice of the peace by filing the following statement verified by affidavit: "Now on this day come the plaintiffs, and for cause of action against defendants state that they are law fully entitled to the possession of 2,500 pounds of zinc and lead ore, the same being a quantity of said ore delivered to the defendants on the day of July, 1907, to be milled by defendants, of the value of fifty dollars; that the same is now wrong fully detained by the defendants at the county of Newton aforesaid; that the same has not been seized under any process, execution or attachment against the property of plaintiffs; that said property has been damaged and injured by defendants, in that the same has been mixed with a quantity of other and cheaper ore; that for the taking and detention of said property and for all injuries thereto plaintiffs are damaged in the sum of $20. Plaintiffs further state that they will be in danger of losing the said property unless it be taken out of the possession of said defendants. Wherefore plaintiffs pray judgment for the recovery of said property and $20 damages for the detention thereof, and for all injuries thereto."

"The court instructs the jury that under the law and evidence of this case your finding must be for plaintiff for amount of notes and interest."

"If the jury believe that the horse was the consideration of the notes and was worth anything, and that defendants have failed to give notice of his defects in a reasonable time to the plaintiff or to return the same, then they are presumed to have acquiesced in the defect, and are not entitled to any deduction from the amount of the note."

"The court instructs the jury that defendants having set up a breach of warranty as a defense to the notes are precluded from retaining the horse or any interest in the horse, if the horse be of any value, and at the same time defeat the notes, and if the jury believe from the evidence that the horse is of any value, and further believe that defendants have not returned their interest to plaintiff according to the terms of agreement under which they signed the notes, then your finding must be for plaintiff."

"The court instructs the jury that if they believe from the evidence that the horse was sold to defendants and defendants signed the notes in question under the representation and agreement that the horse was a sure, satisfactory foal getter, and would get colts of black, bay, and brown in color, and, in the event he did not come up to these representations, then defendants were, by July 1, 1906, to return the horse to the barn of plaintiffs at Sedalia, Mo., and pick out another horse of equal value; and the jury further believe from the evidence that defendants did not return the horse to plaintiff's barn by said date, then defendants have acquiesced in the defects in said horse, if any, and are not entitled to any deduction from the amount of

the notes."

Shain & Barnett and Frost & Wear, for ap- | pellants. C. M. Landis and J. S. Davis, for respondents.

ty on the other. No certificate of stock was delivered to defendants, and the evidence is vague as to whether in truth the company was incorporated. Some testimony looks like a certificate for defendants was sent to another man named Newby; whereas, other evidence indicates the company was not formed. This, however, is immaterial. To induce defendants to subscribe for a share in the proposed company, whose capital was to consist of the horse, the agent of plaintiffs gave certain warranties regarding the qualities of the horse which warranties will be ascertained by reading the instructions. Suffice to say the horse, when delivered, wholly failed to correspond with the warranties; and, while this is not admitted by plaintiffs, neither is it disputed. There was an understanding that, if the horse turned out not to be as warranted, he might be returned to plaintiffs and another selected in his stead. The horse was turned over to the company, or the subscribers for shares in the company, early in 1905, and at the close of the season of that year the men owning shares met and wrote plaintiffs they wished to return him as he was unsatisfactory, and had fallen short of the warranties given regarding his qualities. Instead of taking him back, plaintiffs wrote, requesting the shareholders to keep him another year, and said, if he still proved unsatisfactory, another horse might be selected in his place. In connection with this letter, a written guaranty of qualities was sent to the shareholders, but this guaranty differed in its terms from the original oral warranty, and so was not accepted. The horse remained in Barry county in the custody of some agent of the shareholders. Afterwards an attorney for plaintiffs made one or two trips to said county to collect the notes given by the subscribers. On the first trip he said the notes had been sold and assigned to an innocent purchaser for value in Indiana, and on this occasion the defendants, in view of said fact, offered, not only to relinquish their interest in the horse, but pay one of the notes if plaintiffs would get the other and return it to them. No testimony was introduced in the case except for the defendants, and it is uniform that the horse totally fell short of the warranties, that defendants offered to relinquish their interest in him, and that all the shareholders had offered to return him.