Volume 100 — Missouri Reports

—Hon. J. M. Davis, Judge. (1) In equity proceedings the appellate court will review the evidence offered in the trial court. Beck v. Pollard, 55 Mo. 26; Morey v. Staley, 54 Mo. 419. (2) Adverse possession to be availing to the party pleading it must be open, notorious and exclusive. When held jointly with the adverse party or those in privity with him, it will not overcome the superior title.

Louis City Circuit Court.—Hon. Shepard Barclay, Judge. (1) The ordinances authorizing the work were not passed in accordance with the charter requirements : (a) The journal shows that two necessary prerequisites of the charter were not complied with, viz.: That the speaker before affixing his signature should “suspend all other business and declare that such bill shall now be read,” and also “before any other business is entertained” affix his signature, which fact shall be…

—How. Chas. W. Sloan, Judge. (1) The widow took under the will a quantity equal to the children, an undivided sixth, limited in duration to the time when the youngest should attain her majority; “then” the widow became seized of an estate equal to that of her dower right, coupled with a power to dispose of the undivided sixth by will only. Carr v. Dings, 58 Mo. 400; Chiles ». Bartleson, 21 Mo. 344; Bryant v. Christian, 58 Mo. 98; 2 Jarm. [5 Amer.

Louis City Circuit Court.—Hon. Shepard Barclay, Judge. (1) A person has an insurable interest in bis own life, and has a right to procure a policy on the samé, and to have it made payable to any one whom he may appoint, although the beneficiary may not have any pecuniary interest in the continuance of the life of deceased, nor be of kin to him. It is not relationship between the insured and the beneficiary that is to be invoked to support the insurance. Ins.

Lou,is City Circuit Court.—-TIon. Siiepard Barclay, Judge. (1) Under tlie deed to Baylia, trustee for Mary Catlierine O’Neill, Jolin O’Neill, at Ms wife’s death, took a life-estate, as tenant by the curtesy, and his possession ’ was in his own right. (a) When Mary Catherine O’Neill died, the estate of Charles Bayha, the trustee, became executed in Mary Gr. O’Neill, subject to the life-estate of her father, John O’Neill, as tenant by the curtesy.

Prohibition. (1) The reading of section 892 (Revised Statutes, 1879), contended for by plaintiff’s counsel, is forced and unnatural; and it cannot be held that plaintiff derives any power to exercise the right of eminent domain, under that section, without doing violence to the plain and unambiguous language of the act itself, and violating every rule and canon of construction.

—Hon. B. E. Turner, Judge. (1) All of the evidence of the plaintiff was introduced upon the hypothesis and for the purpose of showing that John A. Bott purchased the lands, paid for them with his own money, that the title bond was made to him, that he was the obligee therein, that the name inserted therein was the name of the defendant, John A. Bott, and not the name of his father, John Bott, that the note was the note of John A. Bott, the defendant, and not the note of his…

Francois Circuit Court.—Hon. J. H. Pox, Judge. (1) Appellant’s declaration of law should have' been given. R. S., sec. 1218.

—Hon. C. W. Sloan, Judge. (1) Article 3, chapter 95, Revised Statutes, page 1056, does not apply to the ordinary duties of officers. Woolf ollc ». Randolph Co., 83 Mo. 501.

—Hon. F. S. Winn, Special Judge. (1) The order, made by the criminal court of Buchanan county, on March 17, 1888, “for the election of a judge to decide the defendant’s application for a change of venue,” was a nullity, because not based on legal authority. There is no such order known to, or authorized by, the law of Missouri.

<p>Jurisdiction: supreme court. The supreme court has no jurisdiction of a cause where the question at issue is whether a surviving-partner is entitled to commission for his services in settling the partnership estate and the amount claimed as such commission is less than twenty-five hundred dollars. (Const., art. 6, secs. 13, 37; Amendment to Const., sec. 5.)</p>

— Hon. J. I). Perkins, Special Judge. Under the decisions of this court in the cases of Turpin v. Turpin, 88 Mo. 337, and Murray v. Yates, 73 Mo. 14, the appeal in this case would have to be dismissed for want of a final judgment. But though we are not on that side of the question we would respectfully submit to the court the question whether those decisions should not be modified or reconsidered.

Louis City Circuit Court.—Hon. James A. Seddon, Judge. (1) The court erred in refusing to allow plaintiffs to dismiss. Hordmanser v. Hitchcock, 40 Mo. 178; Lowing v. Still, 48 Mo. 321; Fink: v. Bruihl, 47 Mo. 173. (2) On an appeal from an inferior court, the dismissal by plaintiffs before submission leaves the cause as though no judgment has been rendered. Turner v. Northcutt, 9 Mo. 252; St. Joseph v. Lavenport, 55 Mo. 572; Lee v. Kaiser, 80 Mo. 431.

—Hon. E. M. Hughes, Judge. (1) The court erred in allowing the indictment withdrawn, amended and changed. R. S. 1879, sec. 1798. (2) The instructions given by the court were erroneous in that they assumed that Geo. Woods did not attack the defendant, but merely restrained him and also assumed that defendant was in the act of committing a felonious assault upon some other person.

Louis City Circuit Court.—non. Daniel Dillon, Judge. (1) The possession which will put in operation the statute of limitations must be hostile In its inception, or, having been begun in consistency with rightful title, its character must have been changed. Cordon v. Eans, 97 Mo. 587; JBudd v. Collins, 69 Mo.. 129; Zeller v. Eclcert, 4 How. 289; Tyler on Adverse Enjoyment [1 Ed.] p. 876.

Louis City Circuit Court.—Hon Gr. W. Lubke, Judge. (1) The facts stated in the petition show conclusively that a contract of partnership existed between Jackson and McLean. A partnership inay be express or implied from the circumstances óf a given case. All the facts stated here point to a relation of partnership between the parties.

Louis City Circuit Court. — Hon. L. B. Yalliant, Judge. (1) Where parties have entered into a contract, if one declines or is unable to execute, the other may dis-affirm the contract and recover back the consideration which he has paid thereon. Lawrence v. Knowles, 5 Bing. N. C. 399; Judson v. Waas, 11 Johns. 525; Green v. Green, 9 Cow. 46; Casioell v. Black River M. Co., 14 Johns. 453; Ellis v. IlosJcins, 14 Johns. 363; Tucker v. Wood, 12 Johns. 190.

Louis City Circuit Court.—Hon. A. M. Thayer, Judge. (1) The stipulation filed and used, in the case of Sutton v. Casseleggi, and received in evidence in the case at bar, cannot be impeached or contradicted in this case by any of the parties or their privies in estate. It became a part of the record and is conclusive on the parties and their privies in estate. Munford v. Wilson, 15 Mo. 540; Ford v. Cameron, 19 Mo.

—Hon. X). C. Allen, ■ Special Judge. (1) The twenty-five hundred dollars’ cash contributed to the co-partnership of Glessner & Ross, in the name of William M. Hall as special partner, having been, in fact, made by Hall Brothers, composed of said William and respondent, out of the money and assets of that firm, said firm of Hall Brothers became thereby and were the real parties and partners in interest in said partnership in the name of William M. Hall; and the advances made…

Louis City (Circuit Court.—IIon. Sixepard Barclay, Judge. (1) The judgment should be reversed and the cause remanded, because the court, sitting as a jury, misconceived the law. (a) This is an action to recover the .value of specific personal property, converted by the respondents to their own use.

Louis City Circuit Court.—Hon. Shepard Barclay, Judge. (1) The sheriff should have executed appellant’s execution number 133 against J. I. Mayer contemporaneously with the other executions delivered to him at the same time. R. S. 1879, sec. 2362. (2) It is the attorney of record only, that is invested with implied authority to do certain acts after judgment to bind the client.

Louis City Circuit Court. (1) The breach of the bond alleged constitutes a clear violation of the ordinance and the permit, and entitles the plaintiff to a judgment for nominal damages at least, and to substantial damages if the same can be shown. No permit was obtained to make the connection between Witteman’s premises and the district • sewer. The connection was unlawfully made. It was in violation of the ordinance.

.Appeal from St. Louis City Circuit Court.—Hon. Shepard Barclay, Judge. (1) The trial court erred in instructing the jury that “under the evidence the plaintiff was not entitled, to recover.” Upon the theory upon which the suit was brought and tried, the appellant was clearly entitled to recover. Corby ». Hill, 4 C. B. (N. S.) Rep. top p. 554, side pp. 556-563; Sweeny r. Railroad, 10 Allen [Mass.] 374; Coreoranr.

—Hon. J. II. Slower, Judge. (1) The respondent’s witness, Brown, usurped the functions of the jury in stating that he judged from their- appearance that the hinges of the door had been broken for some time. The witness should have been permitted to state the facts only. Muff v. Bailroad, 22 Mo. App. 584. (2) The further statement of the same witness, that “the doctor saw her and pronounced her nose broken,” was the merest hearsay.

—Hon. J. M. Sandusky, Judge. (1) Defendant’s objection to the introduction of any evidence ought to have been sustained. The petition shows that plaintiff was guilty of contributory negligeñce, in stepping from a rapidly moving train in front of another, approaching at the same rate of speed, from the opposite direction. Leslie v. Railroad, 88 Mo. 50; Nelson v. Railroad, 68 Mo. 596.

Louis City Circuit Court.—Hon, A. M. Thayer, Judge. This is an action of ejectment. It is conceded that plaintiffs’ title would prevail but for the interference of a sheriff’s deed made under execution in a back-tax suit, which forms the basis of defendant’s claim. Plaintiffs question the validity of the proceedings in the tax suit. They made a successful motion in the trial court to set aside the judgment therein.

—Hon. C. W. Sloan, Judge. (1) ' Defendant’s predecessor entered upon the land in question and constructed its railroad there with permission and under a grant of right of way from Gr. W. Browning, the then owner, and it and its successors, including defendant, have ever since maintained and operated said railroad. Therefore neither said Browning nor any of his successors in estate could maintain ejectment of said land.

Louis City Circuit Court.—Hon. L. B. Yalliant, Judge. (1) An appeal can only be taken from a final judgment. R. S. 1879, sec. 3710. (2) The trial court never rendered a judgment confirming said report of commissioners, and could render no such judgment until the matter was reported to municipal assembly for approval. R. S. 1879, sec. 4519.

—Hon. J. P Strother, Judge. (1) Plaintiff’s second instruction was erroneous in that it directed the jury, in effect, that if defendant’s employes saw Rine on the track, or switch, in time to have stopped the engine with safety, and failed to do so, then their negligence was such as to render defendant liable.

Louis City Circuit Court.—Hon. James A. Seddon, Judge. (1) This court will examine the evidence adduced below. (2) The charges on the petition are not sustained by the evidence, and her alimony should, therefore, be a minimum amount. Busier v. Brpsler, 72 Iowa, 159; Allen v. Allen, 2 Cent. Rep. 390. (3) Plaintiff has voluntarily separated herself from her husband without sufficient cause, and this must weigh in passing on her claim for alimony.

—Hon. Cíias. Gr. Burton, Judge. (1) The court erred in overruling defendant’s application for a continuance. R. S. 1879, sec. 1886 ; State v. .Bradley, 90 Mo. 160; Frazer v. State, 2 S'. W. Rep. 637; Harris v. State, 18 Tex. App. 287. The conversations between the doctors and Margaret Lusk was clearly inadmissible as hearsay.

Louis County Circuit Court.—Hon. W. W. Edwards, Judge. (1) The deed to Mrs. Schnecko’s trustee was fraudulent, because there was actual fraud. Bump on Fraud. Conv., pp. 31, 56, 306, 311; Besson v. Eveland, 26 N. J. Eq. 468; Humes v. Scruggs, 94 U. S. 22. Under pretense of paying a debt, the law will not permit a debtor to assign more property than is reasonably sufficient for that purpose, to the prejudice of creditors.

—John Montgomery, Esq., Special Judge. (1) The modern doctrine is, that a judgment rendered against a party who has not been served with summons, upon the unauthorized appearance of an attorney, whether such attorney is able to respond in damages or not, is, at least, voidable (and in many jurisdictions absolutely void), and will be set aside on motion.

-—Hon. J. M. Davis, Judge. (1) The curator’s deed and judgment of approval by the probate court are not merely erroneous and valid until corrected and disaffirmed, but are void on their face and ab initio. Stat. 1865, secs. 30, 469; R. S. 1879, secs. 2586-8; Hancock v. Hubbard, 19 Pick. 167; Shriver v. Lynn, 2 How. 60; Farrow v. Dean, 24 Mo. 16; Beal v. Harmon, 38 Mo. —; Watts v. Pond, 4 Met. [Ky.] 61; Woodcock v. Bowman, 4 Met. [Ky.] 40; Bell v. Clark, 2 Met. [Ky.] 573.

— Hon. J. P. Strother, Judge. (1) The court erred in giving the second instruction for the plaintiff. It singles out a particular fact or part of the testimony to the exclusion of the rest. Ptorcell v. Lewis, 8 Mo. App. 593; Kaizer «. Ins. Co., 7 Mo. App. 579; Kendig v. Railroad, 79 Mo. 207.

Louis City Circuit Court. (1) The decree is broader than the pleadings and is not,warranted by the pleadings. In snch case an appellate court will either reverse or modify the decree. Bank v. Poynts, 60 Mo. 534; Chouteau r. Allen, 70 Mo. 290; Boss v. Boss, 81 Mo. 84; White v. Bush, 58 Mo. 105; Cox v. Esteb, 68 Mo. 113; Baldwin v. Whaley, 78 Mo. 187; Newham v. Kenton, 79 Mo. 383.

—How. Gr. D. Burgess, Judge. (1) The alleged condemnation proceedings did not follow tlie law with the strictness required by the following authorities: Ells v. Railroad, 51 Mo. 200; Strang v. Railroad, 16 Wis. 666; Nelson v. Brodhack, 44 Mo. 596; R. S. 1879, sec. 892; Railroad n. Campbell, 62 Mo. 585; Cunningham v. Railroad, 61 Mo. 33. Every requisite of the statute having a semblance of benefit to the owner must be complied with. Mills on Em.

Louis County Court.. (1) Appellant is the owner in fee simple ox tne property in St. Louis by virtue of the residuary clause in the will of Anthony Caven, viz.: “As to the rest, residue or remainder of my property, whatsoever or wheresoever the same may be, and not hereinbefore given and disposed of after payment * * '* I give and bequeath unto my said wife, Ellen Caven.’ Schouler on Wills, secs. 484, 485, 510, 522, 525, 549, inclusive; 2 Jarman on Wills [5 Amer.

Transferred from Kansas City Court of Appeals. This is an action to enforce two special tax bills, issued under the charter of Kansas City, Missouri, for grading the roadway and sidewalks of May street in that municipality. The petition is in the usual form in such cases, demanding special judgment against certain real estate described, “claimed by defendant” and alleged to be chargeable with said bills under the city charter.

—Hon. T. A. Gill, Judge. (1) A court of general jurisdiction in partition cases must pursue the statute to the letter, and the Jackson circuit court acquired no jurisdiction over the plaintiff in this case to make partition of her father’s lands till she was first served with copy of the petition of West et at., and notice of its intended presentation, and proof thereof, being first made in open court.

Louis City Circuit Court. — Hon. W. H. Horner, Judge. (1) The first cause of action is on a special contract for letting and hiring labor, not one for selling or buying.

Louis City Circuit Court.—Hon. ' Shepard Barclay, Judge. (1) The record shows that the suit of Kinealy against the Macklins and the trustee Haydell was commenced on twenty-third of February, 1874, and notice of same filed and recorded in the record of deeds for St. Louis, on the same day. Any subsequent conveyance by Mrs. Mackiin and her trustee was with- notice to the grantee, and subject to the result of that suit.

—Hon. Ben. E. Turner, Judge. This cause is here upon an indictment, in the usual form, charging defendant with an assault upon Walker Hale with intent to kill. He was convicted of unlawfully assaulting, stabbing and wounding Hale and was sentenced in accordance with that verdict. He then appealed to this court after the customary motions.

Louis City Circuit Court.—Hon. L. B. Yalliant, Judge. (1) The clause, “And, in case either of them shall die before the said Jemima, then the heirs of such persons so dying shall take his or her portions so devised,” is substitutional, creating new and independent objects of the testator’s bounty. Jarman on Wills [5 Am. Ed.] ch. 30, p. 742, notes by Randolph and Talcott; Tillman v. Sullivan, 63 How.

St. Louis City Circuit Court.—Hon. A. M. Ti-iayer, Judge. This is an action upon a policy of fire insurance issued May 12, 1884, by defendant, at Texarkana, Texas, to M. V, Plippin, insuring the latter in the sum of three thousand dollars for one year, against loss by fire on a three-story building occupied by him there.

Louis Criminal Court.—How. J. C. N oemile, Judge. 1. Defendant’s challenges to the jurors, Worsley, Sceele and Meyer, should have been sustained. They were incompetent to form either a part of the panel, or to sit in the trial of the cause. R. S., sec. 1897. This case does not come within the rule of a long line of decisions in this state, of which State v. Bryant, 92 Mo. 273, is the last. In those cases the jurors had no bias or prejudice.

81. Louis City Circuit Court.—Hon. A. M. Ti-iayer, Judge. (1) The court erred in giving the instruction quoted in the foregoing abstract, (a) It is merely an abstract proposition of law and does not define or explain to the jury what meaning the law gives to the expression ‘ ‘ diligent inquiry. ’ ’ It falls within that class of instructions which has always been condemned by our courts.

—Hon. John Gr. Wear, Judge. (1) It was larceny to cut and remove the timber from the lands, in plaintiff’s petition described, without the knowledge or consent of the owners, and to deprive them of their property (R. S., sec. 1317); and. the damages sued for, for which the action is brought, are for injuries arising from the commission of a felony, or misdemeanor. An attachment is the proper remedy. R. S., sec. 398.

Louis City Circuit Court. — Hon. Daniel Dillon, Judge. This case comes here by appeal from a ruling by the trial court, sustaining a general demurrer to plaintiff ’ s petition.

Louis City Circuit Court. — Hon. Shebard Barclay, Judge. (1) The findings and order of the court appointing the commissioners are defective and erroneous. Said findings wholly ignore the question of defendant’s title to the property over which its so-called “wild track,” near Trudeau street is laid—an issue which is specifically made by the pleadings in the case—and erroneously assume that said track is laid upon the public wharf or streets of the city of St. Louis.

Louis City Circuit Court.—Host. W. H. Horner, Judge. (1) Tbe returns made by tbe defendant Finn to tbe executions were not conclusive in bis favor with respect to tbe amount of money received or tbe application of tbe proceeds. Townsend v. Olin, 5 Wend. 207; Browning v. Hanford, 7 Hill, 120; 5 Denio, 586; Decker v. Armstrong, 87 Mo. 316.

—Hon. Andrew Ellison, Judge. (1) The amended petition changed the cause of action, and should, therefore, have been stricken out. R. S. 1879, 'sec. 3567. (2) The statute relied, on for recovery has no extra territorial force, and does not apply to shipments from a point within to a point without the state of Missouri. Sess. Acts, Mo. 1881, p. 83; Gilbreath v. Bunee, 65 Mo. 349; Vawter ®.

Quo Warranto. The act of March 30, 1887, is unconstitutional and invalid : (1) Because said act contains more than one subject, and the subject is not clearly expressed in the title. Const. Mo., art. 4, sec. 28; Sedgwick on Const. and Stat. Law, p. 521%/ Ewing v. Eoblitzelle, 85 Mo. 71; State ex rel. v. County Court, 41 Mo. 39; City of St. Louis v. Tiefel, 42 Mo. 578; City r>. Payne, 71 Mo. 159. (2) Because said act is a local and special law. Const.

—Hon. T. A. Gtill, Judge. (1) The fund in controversy was a charity. Vidal v. Girard's Ear's, 2 How. 128; Jones v. Williams, Ambler, 652; Hist. Soc. v. Academy of Science, 94 Mo. 466. (2) The proceeding by information, in case of charities, was originated, not from necessity, but by a court of equity, in the face of a statute giving an express remedy. Hist. Soc. v. Academy, etc., 94 Mo. 466; Howe v. Wilson, 91 Mo. 49.

-Hon. J. L. Poster, Judge. (1) The petition does not state facts sufficient to constitute a cause of action. (2) In a proceeding to establish a resulting trust the burden is on the plaintiff, and the proof must be so clear and conclusive as to leave no reasonable ground for doubt. Philpot v. Penn, 91 Mo. 38; Jackson v. Wood, 88 Mo. 76; Rodgers v. Rodgers, 87 Mo. 257; Shaw v. Shaw, 86 Mo. 594; Kennedy's. Kennedy, 57 Mo. 73.

—Hon. Theodore Brace, Judge. (1) The judgment of the circuit court of St. Louis county on the note was void, and its classification in the probate court of Ralls county, and all the proceedings in reference to it in said court nullities. Wernse v. McPike, 76 Mo. 249.

—How. Silas Woodsow, Judge. (1) The court should have sustained the motion to quash the indictment. It was necessary to allege the Christian name and surname of W. E. Brocken or give some reason for not so doing. Willis v. People, 1 Scammon (111.) 399; Moore’s Crim. Law, sec. 160, pp. 217, 881; Jones v. State, 11 Ind. 357; Kelley’s Crim* Law, secs. 174, 176, 180, 600; State v. Fay, 65 Mo. 490; State v. Horn, 93 Mo. 190; State v. Smith, 31 Mo. 120.

—Hon. T. A. Gill, J udge. This case presents for review a ruling of the circuit court, sustaining a general demurrer to plaintiff’s petition, from which, ruling plaintiff has appealed. The pleading referred to is somewhat lengthy, but enough of it will be recited to indicate the nature of the case it makes, with reference to the questions of law discussed in the opinion of the court. “Plaintiff complains and says: “First.

Louis City Circuit Court.—Hon. Daniel Dillon, Judge. (1) The- mayor and municipal assembly of the city of St. Louis have authority under the charter to regulate the use of the streets of the city.

—Hon. W. I. Wallace, Judge. (1) The court erred in admitting any testimony under the indictment. (2) The court erred in admitting testimony of the previous difficulty between Allen and Charles Clayton. State v. Parker, 96 Mo. 382; State t). Tabor, 95 Mo. 585; State v. Jackson, 95 Mo. 623. (3) The court erred in admitting testimony that Allen was, at the time of the difficulty, acting as town marshal, and was a peace officer. (1) The indictment is sufficient.

—Hon. H. C. O’Bryan, Judge. (1) In all felony cases, the law requires -the court to have the sheriff, who is to be in charge of the jury, to be sworn to keep the jury together, etc. Revised Statutes, 1889, section 4210. This statute is mandatory in all felony cases, and its enforcement is much more important in capital than in ordinary felony cases.

—Hon. G. D. Burgess, Judge. (1) The defendant’s ninth instruction is identical with the instruction approved by this court in the case of the State v. Wilson, 91 Mo. 410-412, and ought to have been given. 3 Greenleaf on Ev., sec 212; Roscoe’s Crim. Ev. [7 Ed.] 879; 2 Starkie on Ev. [6 Ed.] side page 700; Kelly’s Crim. Law, sec. 508; 1 Whart. Crim. Law [9 Ed.] sec. 565; Whart. Crim. Ev., sec. 273; Maillet v. People, 3 Am. Crim.

—Hon. W. I. Wallace, Judge. The court committed reversible error in compelling the defendant over his objection to answer the question, “Were you not convicted of a felony?” 1 Greenl. Ev., secs. 375, 377 and 457; State v. Rugan., 68 Mo. 214; R. S. 1879, sec. 1918 ; State v. McLaughlin, 76 Mo. 320; State v. McCraw, 74 Mo. 574; State v. Patterson, 88 Mo. 88; State v. Chamberlain, 89 Mo. 129.

—’.loir. W. D. Hubbard, Judge. (1) The evidence of Price tending to show that L. Hendrick furnished the purchase money is all hearsay and should have been excluded. (2) To create a resulting trust in any case the evidence of payment of. the purchase money by the person seeking to declare the trust must be so clear and full as to remove all doubt from the mind of the chancellor. There is no such evidence in this case.

—Hon. Rudolph Hirzel, Judge. (1) The court erred in refusing the continuance as asked by defendant.

—C. L. Keaton, Esq., Special Judge. This is an action of ejectment for a lot of land in Butler county. The pleadings are in usual form and need not be recited.. The material facts are not disputed. S. H. Strout is the common source of title. He died in August, 1873, leaving three minor children, but no widow. The property in dispute was his homestead. His children' afterwards became of age and then conveyed their interest in the homestead property to plaintiff.

—Hon. N. M. Gtvan, Judge. (1) The court should have sustained the demurrer to the evidence and directed a verdict for the defendant on the ground that the injury which plaintiff suffered was not proximate to the wrong attributable to the defendant in directing the plaintiff to leave the car at the point he did.

—Hon. M. G. McGregor, Judge. The indictment is bad. (1) It does not state tbe specific property obtained, nor allege that tbe option bad a value. State v. CrooTcer, 95 Mo. 349; State v. Roclcford, 52 Mo. 199. (2) It does not state tbe true name of tbe person defrauded. Tbe evidence shows that tbe property belonged to Eliza Splitlog, and not to ber and Matbias Splitlog. State v. Horn, 93 Mo. 190; State v. McChesney, 90 Mo. 120.

—Hon. Harry Larder, Special Judge. (1) The court erred in refusing the first declaration of law as asked by defendants. The disaffirmance of the conveyance should have been pleaded by the plaintiffs. Voorhies v. Voorhi.es, 24 Barb. 150. (2) Defendants’ second declaration of law should have been given as asked by them. Before plaintiffs could recover, defendants weré entitled to a return of the purchase money. This is the well-settled law of this state.

—Hon. J. H. Slover, Judge. The facts necessary to an understanding of this case can, perhaps, be most satisfactorily exhibited by setting out in full the petition and answer as the case is substantially an agreed one, as will be seen. PETITION. “Plaintiff says he is the executor of the last will and testament of Lydia A. Grillett, deceased, and also legatee and trustee under said will.

Mrror to Chariton Circuit Court.—Hon. Gr. D. Burgess, Judge. (1) The circuit court erred in overruling the motion to quash the sheriff’s levy and set aside the proceedings of the appraisers. R. S. 1879, sec. 2690; Perlcins v. Quigley, 62 Mo. 498; ShacJdett v. Scott, 28 Mo. App. 322. (2) The failure of the trial court to give the appellant timber land was error. Perlcins v. Quigley, supra.

—Hon. E. M. Hughes, Judge. (1) It was error to overrule appellant’s objection to tbe competency of Mrs. Mortimer as a witness for tbe state. Sbe was tbe wife of Mortimer, wbo was, in law, a co-defendant, and charged with tbe same homicide. They were not indicted jointly, but tbe law required them to be. R. S. 1879, sec. 1811. Tbe state could take no advantage of its own wrong.

—Hon. Gf. D. Burgess, Judge. (1) The third count of the indictment either charges that Nettie Hall killed and murdered Joseph A. Howell, the defendant, or else it is meaningless. It does not charge that the defendant killed Nettie Hall, and, therefore, the motion to quash that count should have been sustained by the court. State v. Edwards, 70 Mo. 480.

—Hon. John P. Hale, Judge. (1) Instruction, number 1 contains tbe words “wilfully” and “maliciously” which are not defined or explained in any of the instructions given.

Louis City Circuit Court.—Host. Shepard Barclay, Judge. (1) Plaintiff’s testimony did not make a prima facie case, and the demurrer to the evidence should have been sustained. Moore v. Railroad, 28 Mo. App. 622; Schutle v. Railroad, 97 Pa. St. 455. (2) The court committed error in the admission of the testimony offered by plaintiff against the objection of defendant. Stephens v. Railroad, 96 Mo. 207; Railroad v. Gower, 31 Am. & Eng. R. R. Cases, p. 168; Penn. Co. r>.