Volume 1 — Indian Territory Reports

William M. Springer, Judge. Action by the Northern Trust Company against F, B. and A. A. Severs. From a judgment'for plaintiff, F. B. Severs appeals. Appellee alleged that it is a corporation, organized under the laws of the state of Minnesota, and a citizen of that state.

William M. Springer, Judge. Beulah B. Bull sued F. B. and A. A. Severs upon certain interest coupons. The complaint of appellee does not disclose whether or not she is a resident of the Indian Territory. Appellants filed a motion in the trial court to require appellee to file a bond for costs, averring that the complaint showed upon its face that appellee is a nonresident of the Indian Territory, which motion was by the court overruled.

Action by Mary A. Warlick against the Gulf, Colorado & Santa Fe Railroad Company. From a judgment for plaintiff, defendant appeals. The opinion of the court states the facts. 1. It is a settled rule of Federal courts that where the evidence shows the plaintiff to have been guilty of contributory negligence the court should direct a verdict for the defendant. K. & A. V. R. R. Co. vs. Waters, 70 Fed. 28. 2.

Action by Kirk Woodworth against the Chicago, Rock Island & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. 1. Complaint did not allege carelessness on part of defendant. Railroad company is not liable for killing stock, if done without carelessness or negligence on its part. Railroad Co. vs. Holland 40 Ark. 336 ; Railroad Co. vs. Kerr, 52 Ark. 162 ; S. C. 12 S. W. 329 ; Turner vs. Railroad Co. 76 Mo. 261.

C. B. Kilgore, J. James A. Murray was convicted of the theft of a certain bull, alleged in the indictment to be the property of one Newton, Lawrence, and charged to have been taken on the 10th day of March 1893, and appeals.

<p>Appeal from the United States Court for the Northern DistriQt PÍ the Indian Territory.</p> <p>William M. Springer, Judge.</p> <p>Appellants instituted this action in the court below against J. D. Blosser for the recovery of a sum of money, and procured and levied an attachment upon a stock of general merchandise as the property of said Blosser. Appellee, Badgett, interpleaded and claimed the attached property by virtue of a deed of assignment from Blosser to him as assignee. From the verdict and judgment upon the trial of the issue between the appellants and the inter-pleader, which were in favor of the interpleader, appellee here, this appeal is taken.</p> <p>The deed of assignment contained the provision that the assignee ‘ ‘shall first, and before taking possession or control of said property, comply with the law as to inventory and bond as provided in such cases.” At the trial, appellants requested the following instruction, which was refused:</p> <p>“The court instructs the jury that although there is a clause in the deed of assignment offered in evidence in this case which prohibits the assignee from taking charge or control of the property assigned until he has filed bond and inventory as the law provides, yet if you believe from the evidence in this case that at the time the assignor delivered the deed of assignment to the assignee, that he and the assignor entered into an understanding by which the assignee was to take possession of the property assigned before he filed his inventory and bond, and that, in pursuance of such understanding, said assignee did take charge of said property, either by himself or agent, before he filed his inventory and bond, that then such acts would render the assignment fraudulent and void in law, and you should find for the plaintiffs or the attaching creditors.”</p> <p>The court modified this instruction and gave it as follows:</p> <p>‘‘The court instructs the jury that although there is a clause in the deed of assignment offered in evidence in this case which prohibits the assignee from taking charge or control of the property assigned until he had filed his bond and inventory, as the law provides, yet if you believe from the evidence in this case that at the time the assignor delivered the deed of assignment to the assignee, that he and the assignee entered into an understanding for the purpose of hindering and defrauding his creditors, by which the assignee was to take exclusive possession of the property assigned before he filed his inventory and bond, and that in pursuance of such purpose and understanding, said assignee did take exclusive possession of said property, either by himself or agent, before he filed his inventory and bond, that then such acts would render tbe assignment fraudulent and void in law. ”</p> <p>If the assignee * * * before the filing of the bond and inventory * * * in consummation of an agreement * * * extraneous to the deed, takes the keys of the store house and thus, has possession of the property assigned, it renders the deed fraudulent and void as to creditors, just as though such agreement was set forth in the face of the deed. Gilkerson — Sloss Com. -Co. vs. London, 53 Ark. 88; 13 S. W. 513; Smith vs. Patterson, 57 Ark. 537; Good-bar vs. Mears, 13 S. W. 515.</p>

<p>1. Sale of Intoxicating Liquor to Indians — Indictment—Qtianiity Introduced or Sold Immaterial.</p> <p>Under section 2139 of the revised statutes of the United States, as amended by the act of July 23, 1892, providing: “No ardent spirits, beer, ale, wine or intoxicating liquor or liquors of whatever kind, shall be introduced under any pretense, into the Indian country. Every person who sells, exchanges, gives, barters or disposes of any ardent spirits, ale, beer, wine or intoxicating liquor-of any kind, to any Indian under charge of any Indian Superintendent or Agent, or introduces or attempts to introduce, any ardent spirits, ale, beer, wine, or intoxicating liquor of any kind, into the Indian Country, shall he punished by etc.” the offense does not vary with the quantity introduced or sold, and it is unnecessary for the indictment to allege the quantity.</p> <p>2. Joining Different Acts in One Cotmt — Duplicity.</p> <p>Under this statute, the indictment may allege, in one count, by employing the conjunctive “and” instead of “or” in the statute as many of the prohibited acts, as the pleader wishes, and it will not be double, and it will be established at the trial by the proof of any one of them.</p> <p>y. Instruction — Harmless Error.</p> <p>The court instructed the jury that “that the burden of proof is upon the defendant to show that he purchased the whiskey in the Indian Territory, and unless he establishes this fact, they are authorized to assume that he introduced it.” In telling the jury that they were authorized to “assume” that he introduced it,'the trial court commented upon the weight of the evidence, but it is held that under the evidence of this-case, it was harmless error.</p> <p>Quantity oí liquor sold not an element of offense.</p> <p>More than one act may toe joined in one indictment.</p> <p>Burden of proof.</p> <p>Comments Court. Harmless error. of</p>

C. B. Kilgore, Judge. Action by C. S; Pounds- against the Chicago, Rock Island and Pacific Railway Company to recover damages for personal injuries received at a railroad crossing at the town of Marlow, Indian Territory. There was judgment for plaintiff, and defendant appealed. 1. Trainmen are not required to anticipate that a person about to cross a railroad track would not look for the approach of a train. Railroad Co. vs. Walker, (Ind.) 15 N. E. 234.

C. B. Kilgore, Judge. Action against George Oxier and Ewalt Boone. From a conviction of larceny, they appeal. The opinion states the facts.

<p>1. Lease in Violation of Chickasaw Law — Estopped.</p> <p>An owner, who through the fraud of a vendee, is induced t make a conveyance, is not estopped on a reconveyance, fror attacking a lease to which he was not a party, which was mad by the vendor while in possession, contrary to the law of th Chickasaw Nation prohibiting leases to non-citizens for longer period than one year.</p> <p>2. Cotirts — Term—Adjournment.</p> <p>The United States-Court in the Indian Territory may adjourn i1 term to a day after the time for holding court at another plac in the same district.</p> <p>j. Ejectment — Compensation for Improvements.</p> <p>In ejectment, the plaintiff will not be permitted to reposse himself of land, without paying the defendant for the value < improvements put on the land, but defendant will be requirc to account for the benefits from the use of the land.</p> <p>Estoppel.</p> <p>Estoppessssl. Public policy,</p> <p>Improvements by tenant- Ke-muneration.</p>

C. B. Stuart, Judge. Action by Green McCurtain and others against John M. Grady, and others claimants to a part interest in coal mines, adverse to plaintiffs and the Choctaw Coal & Railway Company, lessee of its co-defendants, to recover possession of mines) for an accounting, to enjoin lesses from paying future royalties to its co-defendants, to cancel all leases contracts or transfers of defendants, and to enjoin defendants from interfering with plaintiffs ’ control of the…

William M. Springer, Judge. Attachment suit by L. A. Byrd against the Moffitt— Test Ding Co., commenced before a United States commis-oner and taken to the ‘United States Court for the North-|n District on appeal. Judgment was rendered for plaintiff Bid defendant appeals.

William M. Springer, Judge. Suit in attachment by Johnston-Fife Hat Company gainst J. D. Blosser. W. R. Badgett, as assignee of Blosser, iterpleaded. Judgment was rendered in favor of plaintiff ud the interpleader appeals. Appellee sued one J. D. Blosser to recover a debt of 312.30, and procured and levied a Writ of attachment upon certain merchandise, as the property of said Blosser.

C. B. Kilgore, Judge. Action of unlawful detainer by J. C. Hybarger against G. L. Wilcoxen. Judgment for plaintiff. Defendant appeals. This is an action of unlawful detainer, brought by appellee, to recover of appellant possession of a tract of land, with improvements thereon. The land is alleged to contain about 200 acres under fence, 120 acres being in a state of cultivation.

C. B; Kilgore, Judge. Action in replevin brought by F. J. Hall against T. I. Needles, as United States marshal. Judgment for de-Indant. Plaintiff appeals.

C. B. Kilgore, Judge. Henry B. Oats appeals from a conviction of larceny. The opinion states the facts. 1. Prior to the taking effect of the act of March, 1895, he United States Court in the Indian Territory had no juris-iiction of crimes committed in the Indian Territory which vere punishable by death. Under said act, such court did Lot acquire jurisdiction of such crimes until September 1, 895. Ex parte Mille, 135 U. S. 263; In re John Bonner, 151 J. S. 248. 2.

William M. Springer, Judge. Action by Kate Poplin and another against J. F. Clausen. Judgment for defendant. . Plaintiffs appeal.

<p>Appeal from the United States Court for the Souther: District.</p> <p>C. B. Kilgore, Judge.</p> <p>Action in,ejectment by J. B. Wilson against Sol E Owens. Judgment for defendant.. Plaintiff appeals.</p> <p>Plaintiff’s grantor leased a tract of land in the Cheroki Nation to defendant for a term of seven years. Plainti bought the land with knowledge of these facts, and coi sented to the execution of a written lease, before the co] veyance was made, by which defendant’s term was extern ed for two years. Plaintiff brought suit in ejectment alie; ing that he was in possession of said premises on the ll day of January, 1895, and 'had been entitled to possessicB ever since then. That he had been ousted by defendanH and that said defendant was unlawfully holding possessicH from plaintiff. Defendant specifically denied each and everH ¿legation in plaintiff’s complaint. The proof showed tha^ flaintiff had never been in possession, but had a right to iossession. There was a trial and verdict for defendant, rom which plaintiff prosecutes this appeal.</p>

Wm. M. Springer, Judge. Action in replevin by J. M. Boner against Josial Eddings. Judgment against defendant and his sureties 01 bail bond. Defendant appeals. On the 21st day of November, 1894, appellee, J. M Boner, plaintiff below, traveled over the road between Davi< and the Verdigris river, a distance of about 26 miles, in the Indian Territory.

Yancey Lewis, Judge. Action of forcible entry and detainer for a town lot bj Harry Johnson against W. F. Kelly and others. Judgmen for plaintiff. Defendant appeals. This case was instituted in the United States Court-ii the Central district, of the Indian Territory, at South Me Al ester, on the 11th day of April, 1896, to recover possessioi of a lot situated in the town of South McAlester, Ind.

Yancey Lewis, Judge. Action of unlawful detainer by the Grady Trading ompany against the G. W. Walker Trading Co. Plaintiff emurred to defendants answer, and demurrer was sustained ud judgment rendered for plaintiff.

<p>Judgment of Indian Cotirt — Res Judicata.</p> <p>A judgment of dismissal, entered by a Court of the Creek Nation, on the ground that there has been a former adjudication, is res judicata in a subsequent action between the parties in the United States Court.</p> <p> 2. Lease. </p> <p>All inquiry as to the power of the Chief of the Creek Nation to make a lease, is precluded m the United States Court, by an adjudication, in a suit between the parties in a Creek Court, that the lease is valid.</p> <p>3. Record — Amount in Controversy.</p> <p>The record must affirmatively show that the amount in controversy in an action, exceeded the jurisdictional limit of the court rendering judgment, and where it does not do so, it will be presumed in a subsequent action that the court had jurisdiction.</p> <p>4. Judgment of Creek Court — Informalities.</p> <p>Informalities in the judgment of a Court of the Creek Natior will be disregarded by the United States Court, in determining its validity, and such judgment will be enforced if the intenl can be discovered from all of the accompanying circumstances</p> <p>5. Conveyance— Want oj Consideration.</p> <p>No rights are acquired by a conveyance, without consideration of a reversionary interest in a lease to pasture lands in th< Creek Nation.</p> <p>6. Trespass — Right of Reversioner to Maintain Action to Prevent — Injunction.</p> <p>Although the reversioner, who holds a lease of pasture lam from the Creek Nation, is not entitled to possession, he has fight of action against third persons, who build fences on th land, thereby obstructing the tenant and injuring the revesion And in such case injunction would lie to prevent the' continr anee of such wrongful acts, for the reason that the remedy a law was inadequate and to prevent a multiplicity of suits.</p> <p>Judgment of Crook Court. Conclusive.</p> <p>Jurisdiction of Court — i?re sumption in favor.</p> <p>Judgment oí Oreok Court - Intent to be enforced.</p> <p>Sale without consideration —No right passes.</p> <p>Right of action of reversioner.</p> <p>Equity, Mui-tij>licUy oi s^-</p> <p>Remedy at law must be adequate.</p>

Yancey Lewis, Judge. Action by Mary T. Clark against R. A. Evans & C(| Judgment for plaintiff. Defendant appeals.

I Appeal from the United States Court for the Central trict. Chas. B. Stuart, Judge. I Action by J. J. Thomas and D. Thomas against the lg-Bell Lumber Company. • Judgment for plaintiff. De-llant appeals. On the 7th day of July, 1894, the appellees (plaintiffs! below) filed their complaint at law against the appellant!

Yancey Lewis, Judge. Action by Mrs. E. Lankford a,gainst the American Express Company for the loss of a diamond. Judgment for plaintiff. Defendant appeals. This action was originally commenced before the United States commissioner at Atoka, Indian Territory, in the Central district of the Indian Territory, on the 4th day of January, 1896. The suit was instituted in the name of J. D. Lankford and wife, Mrs. E. Lankford, against the American Express Company.

Yancey Lewis, Judge. Action by R. M. Reed against Kansas & Texas Coal Company for damages'for personal injury. Judgment for plaintiff. Defendant appeals. This is a suit brought by plaintiff, in the United States Court in the Central district of the Indian Territory, at Cameron, to recover $15,000, damages alleged to have been sustained by him by reason of the negligence of the appellant, at its Pocahontas or Braidwood Mine , in the Indian Territory, in May, 1895.

Yancey Lewis, Judge. Action by R. P.. Bowles against M., K. & T. Railway Company. Judgment for plaintiff. Defendant appeals.' On the 22d day of February, 1896, R. P. Bowles, the plaintiff below and appellee' in this court, filed a complaint in the United States Court of the Central district, at Atoka,-Ind.

States Court for the Southern District. C. B. Kilgore, Judge. Suit in attachment by Barton Bros, against J. F. Ferguson and another. Judgment for defendant. Plaintiff appeals.

Appealed from the United States Court for the Southern District. C. B. Kilgore, Judge.

<p>1. Contributory Negligence — Question for Jury.</p> <p>Appellee, who was unacquainted with the surroundings, went to the platform of appellant on the night she was injured, with her sister and the latter’s two children, shortly before midnight, to take appellant’s passenger train. They stepped on the platform at the north end, where it was nearly even with the ground. It was a cold, dark night, with a drizzling rain falling. Appellee’s sister sat down on the side of the platform and took her little hoy in her lap. The little daughter of appellee’s sister asked appellee to take her in her lap. Appel-lee thought her sister had stepped off the platform and sat down on the side of it and that she could do the same. She looked down to see and thought she could see the ground. She attempted to step down, and went down about four feet, sustaining the injuries complained of. Held, That the question of appellee’s contributory negligence was clearly a question for the jury.</p> <p>2. 'Pleading and Proof — Variance.</p> <p>Appellee’s complaint alleged a retroflection of the womb as the result of the injury, while the proof established an antiflection. Held, That appellant having offered no proof that it was misled, the alleged variance must be regarded as harmless.</p> <p>j. Duty' of Railroad Company to Furnish Safe Platform. — Instruction.</p> <p>The-court instructed the jury that it was the duty of therailroad company to exercise ordinary care and prudence in maintaining a safe platform; that it was the duty of the railroad company to light its station place at night within a reasonable time before the arrival of trains in such a manner as to afford a safe place for passengers who desired to take passage upon its trains. Held, That even if there were errors in the instructions to the jury, they were not prejudicial, as the undisputed testimony establishes that appellant was guilty of negligence in the character of the platform which it maintains,</p> <p>4. Judgment — Not Reversed for Harmless Error.</p> <p>A judgment will not be reversed on appeal for error when it plainly appears from the record that such error worked the complaining party no harm.</p> <p>5. Contributory Negligence — Burden of Proof.</p> <p>The burden of proof was not on appellee to show that she was not guilty of contributory negligence and the court did not err in refusing to instruct the jury that if they found from the evidence that the night was dark, that the platform was not properly lighted and because of such darkness and lack of lights it was incumbent upon the plaintiff to show that she took great'er care than she would have taken had the night been light and the platform well lighted.</p> <p>6. Verdict — Misprision.</p> <p>The jury returned a verdict in favor of Georgia Turtey instead of Georgia Turley. The caption and body of the verdict read together, leaving no doubt as to the intent of the jury, and the error in the name is a harmless misprision.</p> <p>y. Verdict — Excessive-Remittitur.</p> <p>Appellee testified that as a consequence of her injury she had undergone much pain and suffering and had been rendered incapable of ordinary physical labor; that at the time of the trial, nearly three years after, she was still suffering from the effects of her hurt. On the other hand, there is much in the evidence to support the conclusion that appellee’s condition as the result of the injury on the platform was in fact largely due to natural, antecedent causes, though aggravated, doubtless, by her fall. The testimony of experts tended to show that her injuries were not incurable. Held, That the verdict is excessive, and a remittitur should be entered in the sum of $5000.</p> <p>proo?-^iar£a anee.</p> <p>Railway platence. Negllg</p> <p>Contributory negligence— Burden of proof.</p> <p>Verdict — liis-prisibn.</p> <p>Excessive verdict.</p>

<p>Appeal from the United States Court for the Central District.</p> <p>C. B. Stuart, Judge.</p> <p>Suit by Charles Newman against John M. Grady. Decree for plaintiff. Defendant appeals. Appellee filed motion to dismiss.</p>

C. B. Kilgore, Judge. Action by Wm. F. MeBee against the Purcell National Bank to recover a sum of money deposited in defendant bank. Judgment for defendant. Plaintiff appeals. The plaintiff in error instituted this action in the United States commissioner’s court at Purcell, Indian Territory, to recover $100, alleged to have been deposited by him with the defendant in error, and of which it refused payment.

C. B. Kilgore, Judge. George Gaines appeals from a conviction of larceny. Appellant, George Gaines, was tried at Ardmore upon an indictment for larceny, and was convicted October 8, 1895. The bill of exceptions, duly authenticated, shows that the case went to trial without arraignment of the defendant, or plea on his part, and without his being called upon to plead, and without any plea being entered for him.

<p>Appeal from the United States Court for the Southern District.</p> <p>C. B. Kilgore, Judge.</p> <p>Action by the Armour Bros. Banking Co. against J. P. Addington and others. Judgment for defendant. Plaintiff appeals. Defendant brings a cross appeal. Judgment for defendant reversed.</p> <p>On the 19th day of October, 1894, the Armour Bros. Banking Company recovered a judgment in the Southern district of the United States court of the Indian Territory, at Ardmore, against J. P. Addington, C. G. Graham, and A. J. Addington, for the sum of $25,678, with interest at the rate of 10 per centum per annum from date until paid, and all costs of suit. An execution was issued on the 19th day of June, 1895, on said judgment, and on the next day was returned indorsed, “No property found.” No part of this judgment was ever paid. On June 21, 1895, the Armour Bros. Banking Company filed in the said Southern district of the United States Court, at Ardmore, its complaint in equity, in the nature of a bill of discovery, under the provisions of sections 3084 — 3088, Mansf. Dig., to subject to the payment of plaintiff’s demand certain property alleged to belong to the defendant J. P. Addington. There were a supplemental and an amended complaint. The plaintiff alleged in each that it had recovered the judgment indicated above; that no part of it had ever been paid; that execution issued, and was returned nulla bona; that the defendant J. P. Addington was then, and for a long time had been, insolvent, but that'he was the owner of a large amount of improvements upon real estate, consisting of ranches and pastures, and a large amount of personal property, consisting of horses, mares, mules, stock cattle, and beef steers, all of which are situated in the western part of the Chickasaw Nation, on the line between the Chickasaw Nation and the Kiowa and Comanche country, the same being particularly described in the complaint; that all of said property had been by the defendant J. P. Addington covered up by fraudulent mortgages, and otherwise secreted, in order to cheat, swindle, and defraud his creditors; and that J. S. Addington, Sam Davidson, and W. H. Featherston were setting up some sort of interest in or claim to the property, and prayed that they be made parties defendant. The plaintiff also alleged that, unless restrained by the court, the defendants would remove said personal property out of the jurisdiction of the court, and into the Kiowa and Comanche country, and prayed that they be restrained from so doing, and that a receiver be appointed so take charge and possession of the property, and hold the same subject to the further orders of the court. • The court granted the injunction, and appointed R. B. Hill receiver, iccording to the plaintiff’s prayer. The receiver qualified, md, under the orders of the court, took possession of horses md cattle of the value of about $20,000. The defendants iled separate answers, in which they denied specifically all he allegations in the plaintiff’s complaint, except the insolvency of J. P. Addington, and the validity of plaintiff’s udgment. Afterwards, on the 2d day of October, 1895, the Lefendants filed an amended answer, in which they alleged ¡that: ‘‘The plaintiff ought not to have and maintain this action against them, because they allege that heretofore, to ,.wit, on the 24th day of June, 1895, the plaintiff instituted in the .District Court, of Canadian county, Oklahoma territory, against the defendants J. P. Addington, C. G. Graham, and A. J,Addington, an action of debt, using as its cause of action the judgment in this cause, and that heretofore, to wit, on the, 19th day of October, 1895, the plaintiff, upon personal service, recovered in said. District Court for Canadian county, against A. J. Addington and C. J. Graham and the defendant J. P. Addington, judgment for the full amount due upon the judgment in this cause, including interest. And the defendants further alleged that in said cause, in .said District Court for said Canadian county, the plaintiff sued out an attachment against the. said J. P. Addington, and caused the same to be levied upon a large amount oi personal property claimed to belong to him, which property the plaintiff is now praying and seeking to hold under saic judgment.. The defendants further allege that in said sui1 .in the said District Court of Canadian county, Oklahoma, 'since the recovery of the judgment in this cause, the plain ■tiff has recovered upon the same cause of action a judgment .and that thereby the judgment in this cause .has been fullj merged, paid, and satisfied, and has no longer any force anc effect, and that the plaintiff does not now have, and has no had since the 19th day of October, 1895, any subsisting judgment upon which, this suit can be maintained. ” Th< plaintiff replied to this amended answer as follows: “Nov comes- the plaintiff, Armour Bros. Banking Company, anc ■ for reply to the amended answer filed herein on Novembe: 2, 1895, says it is true, as alleged in said amended answer that the plaintiff in this case brought an action on the judg ment recovered in this suit in the District Court of Canadiai county, in the territory of Oklahoma, and that a writ o attachment was duly and legally issued on said cause, am the same was levied upon certain personal property alleged to have belonged to the defendant J. P. Addington, and that it is also true, as alleged in said amended answer, that judgment was duly and legally recovered in said action in the District Court of Canadian county, Oklahoma territory, on the judgment recovered in this action, and that said personal property levied upon in the territory of Oklahoma has been duly and legally ordered to be-sold to satisfy said judgment. But the plaintiff alleges that in the suit on the. judgment in this action in the District Court of Canadian, county, Oklahoma territory, attachment was issued against the property of J. P. Addington only, and no attachment was issued or levied upon the property of the other defendants in said judgment; that no judgment was recovered in said action in the District Court of said Canadian county against the defendants C. G. Graham and A. J. Addington. Plaintiff further alleges that since said personal property-was levied upon in the action pending in the District Court of Canadian county, Oklahoma territory, and since the same was ordered to be sold, the defendants W. H. Featherston and E. J. Gannon, as trustees, have instituted proceedings in equity, and procured a writ of injunction to be issued, restraining the sale of all the property levied upon to satisfy the judgment recovered in the territory of Oklahoma on the judgment in this action, and the sheriff of Canadian county has been restrained from selling said property; that in said equity suits in the territory of Oklahoma, .instituted by W,. H. Featherston and E. J, Gannon, it is alleged and claimed that he property levied upon in said action in which the judg-nent was obtained against J. P. Addington in ' Canadian county, Oklahoma territory, is not the property of J. P. Addington, and is not subject to the levy thereon, and can-íot be applied to the satisfaction of the judgment rendered n said cause. Plaintiff alleges that the judgment recovered igainst J. P. Addington in the District Court' of Canadian county of Oklahoma territory has not in any manner been satisfied, and that the plaintiff has not recovered anything thereon. Wherefore plaintiff prays that the receivership be not vacated, and the injunction be not dissolved, as prayed for by said defendants.” The court, upon consideration of said amended answer and the plaintiff’s reply thereto, and the application of the defendants, therewith presented, to vacate the receivership and dissolve the injunction, held that the judgment on which the proceedings in this case were founded was merged in the Oklahoma judgment, and absolutely satisfied and annihilated. Accordingly the receivership was vacated, and the injunction dissolved, and the case dismissed. Exceptions were duly taken, and motion for a new trial was made and overruled, and the plaintiff has prosecuted this appeal.</p> <p>Recovery of judgment in another court in a suit upon a judgment, is not a satisfaction of the first judgment. Mun-ford vs Stocker, 1 Cowan (N. Y.) 177; Andrews vs Smith, 9 Wendall 58; Gregory vs Thomas, 20 Wendall 20; Bates vs Lyons, 7 Paige (N. Y.) 85; Planters Bank vs Calverts, 41 A. D. 616; Story on Conflict of Laws (8 Ed.) § 599a; Black on Judgments §§ 216, 221; Frazier vs McQueen, 20 Ark. 98; Wright vs Yell, 13 Ark. 503; Neale vs Jeter, 20 Ark. 98; Block vs Nettle, 25- Ark. 606; Lipscomb vs Grose, 26 Ark. 231; Russell vs Shute, 25 Ark. 469.</p> <p>Weight of the authority as well as the better reasor sustains the ruling of the trial court that the first judgmenf was merged in a second. Freeman on Judgments §§ 216, 221; Freeman on Execution, § 19; Biscoe vs Sandifer, 14 Ark. 570; Phillips vs Pease, 14 Ark. 595; Kelley vs G-arwin, 12 Ark. 620; 15 A. & E. Enc. of Law 339.</p>

Yancey Lewis, Judge. . Action of the State National Bank of Denison against; T. P. Cardwell, et al. Judgment for defendant. Plaintiff,, appeals. Defendant files motion to dismiss. This is a motion to dismiss the appeal taken,by appell-,. ant in this cause.

Wm. M. Springer, Judge. Action by Smith-McCord Dry Goods Company against S. M. Perry and others. Attachment. Swofford Bros. Dry Goods Co., interpleader. Judgment for plaintiff. Inter-pleader appeals.

The Liverpool & London & Globe Insurance Company filed a petition for mandamus to C. B. Kilgore, J., requiring him to sign bill of exceptions in the case of Kearney & Wysc against the petitioner.

<p>/. Naturalization of Cherokee Citizen — Judgment—Collateral Attacks</p> <p>Appellee an adopted citizen of the Cherokee Nation proceeding under l 43 the Act of 1890 relating to the United States Court in the Indian Territory, applied for and obtained naturalization by judgment of the United States Court in the Indiac Territory. Held, That this judgment is conclusive and cannot he attacked collaterally.</p> <p>2. Judgment — Void—Collateral Attack.</p> <p>Appellant a Cherokee Indian abandoned appellee his wife, the day after their' marriage. Thereafter appellant instituted suit in the Cherokee Court in the name of appellee for divorce. When said cause was called for trial, appellant confessed judgment against himself.- Said suit was instituted without the knowledge or consent of appellee and appellee knew nothing o: it until after judgment. Held, That the judgment of th< divorce rendered by the Cherokee Court is void and may b( attacked collaterally.</p> <p>j. Judgment of Tribal Court in the Indian Territory — Collateral Attack.</p> <p>The judgment of the tribal court in the Indian Territory wil not be treated as a domestic judgment when attacked in the United States Court in the Indian Territory, and want ol jurisdiction in the court rendering such judgment may be shown although such lack of jurisdiction does not appear or the face of the judgment. ,</p> <p>Judgment of naturalization conclusive.</p> <p>Evidence— Presumption to support judgment.</p> <p>Judgment— Collateral attack.</p> <p>Judgment-4iollaterel attack.</p>

C. B. Kilgore, Judge. Wm. J. Carter appeals from a conviction, on an indictment for maintaining a disorderly house. All offenses against the United- States are of statutory origin. No common law offense can be committed against it. U. S. vs Britton 108 U. S. 206; United States vs Walsh, 5 Dili. 60; Wheaton vs 'Peters, 8 Pet. 658. The Federal Courts have no jurisdiction of common law offenses. Penn, vs Wheeling, Bridge Co., 13 How. 563.

C. B. Kilgore, Judge. J. T. Jones sued the Gulf, Colorado & Santa Fe Rail-ay Co., for damages sustained to a quantity of barbed ire transported over defendant’s railroad for delivery to Laintiff. Judgment for plaintiff. Defendant appeals. This action originated in the United States commis-oner’s court at Paul’s Valley, Ind.

C. B. Kilgore, Judge. William R. Watkins appeals from a conviction of murder.' 1.

<p>Petition by D. Applegate for mandamus to C. B. Kil-'ore, J., to sign bill of exceptions in the case of petitioner gainst the Chicago, Rock Island & Pacific Railway Com->any.</p>

C. B. Kilgore, Judge. Suit and attachment by the Stratton-White Company, ainst Thomas H. Martin. Judgment for plaintiff. De-ldant appeals.

C. B. Kilgore, Judge. Suit in attachment by Clay Berry on a promissory note. Judgment for plaintiff. Defendant appeals. This is an action by Clay C. Berry, appellee, upon a promissory note executed by Tom A. Martin, appellant, as follows: “ Dallas, Texas, March 23. 1895. %265.00. On October 1st, 1895, without grace, after date, for value received, I promise to pay to the order of Jos.

C. B. Kilgore, Judge. Suit against L. L. Stowe, as United States Marshal,, and his sureties, on his official bond. Judgment dismissing the action. Plaintiff appeals.

<p>Appeal from the United States Court for the Southern listrict.</p> <p>C. B. Kilgore, Judge.</p> <p>Suit for damages for personal injury by J. F. Drig-gers, against the Chicago, Bock Island & Pacific Railway lo. Judgment for plaintiff. Defendant appeals.</p> <p>.This action was commenced at Chickasha on August ¡2, 1896, by appellee, to recover of appellant $15,000 for jersonal injuries, $50 for medical care and $72 for loss of time, >n account of injuries received by appellee while being carted on one of appellant’s stock trains in Kansas on the 17th lay of the same month. The complaint charges that appel-mt, on said 17th day of August, entered into a contract vith appellee to haul two car loads of cattle from Chickasha o Union Stock Yards, at Kansas City, Mo.; and furnished jppellee transportation to Kansas City and return, for the mrposeof looking after said cattle; “that while in transit, nd in charge of said cattle, on defendant’s road, about 15 liles north of Wichita, Kansas, said defendant, through its gents, servant^ and employes, operated and ran the train, pon which the said cattle and the plaintiff herein were be-ug carried t and hauled, in such a careless and negligent lanner, and at such a great rate of speed, thereby endan-ering the life and safety of the plaintiff; and that by reason f the negligent and careless manner in which the defendant, y its servants and employes, constructed its Cars, and the negligent and careless manner in which they arranged ths cars of said train, wherein they attached an empty to the rear end of said train, causing the same to ñy the track anc break loose from the main train, together with the caboose in which the plaintiff was riding, causing the caboose te violently overturn, breaking and dislocating the plaintiff’s left clavicle from the sternum, and fracturing and breaking the left two-thirds of left clavicle of the plaintiff, near the shoulder joint, also bruising and injuring plaintiff’s lef elbow, causing the plaintiff great pain, suffering, and menta agony, and rendering him permanently injured, to his grea damage, in the sum of fifteen thousand dollars ($15,000).’ The contract is made a part of the complaint. It is theréii stipulated that the two cars of cattle are ‘ ‘to be loaded anc unloaded, watered and fed by the said J. F. Driggers, ór his agents, and in consideration of free transportation for on< person, hereby given by said railway company, such per sons to accompany the stock; that the persons who receive free transportation in charge of said stock, in consideratioi of the receipt of "the same, agree to assume all risk of per sonal injury from any cause whatever, except injuries iron gross carelessness of the railway company.” Appellant an swered on September 9, 1896, and admitted jurisdictiona matters alleged in the complaint, and the execution of th< the contract, and averred that appellee, at the time of th alleged injuries, was being carried on appellant’s freigh train under said contract, and that the alleged injuries wer not the result of gross negligence on its part. It denied tha the injuries were of the kind alleged, and denied that the; were caused by, or the result of, any negligence or careless ness on its part. On the trial the appellee, his father am the witness Harness, appellee’s employe, testified that the; were all on appellant’s freight train, accompanying stock t Kansas City, and when they got beyond Wichita, and whii train was running at from 40 to 60 miles per hour as state* by the father, and at from 40 to 45 miles an hour, as stated by Harness, an empty refrigerator car, the third one from the caboose, left the track, causing the caboose to also leave the track and overturn, resulting in the breaking of apppel-Lee’s collar bone and bruising his elbow, compelling him to keep his bed two to foui weeks, and preventing him from working for six weeks or two months. Appellee further ;estified that his left shoulder still (five and two thirds months liter the injury) hurt him when he lay on it of nights, and ¡hat he did not have good use of his arm about lifting any-¡hing; that he was in the stock business, and his time was vorth $1 to $1.50 per day, and .that he had to pay $85 in loctor bills. Appellant, defendant below, introduced as vitnesses its division superintendent, its general foreman of notive power and equipment, or master mechanic, and the ¡onductor, engineer and brakeman, all of whom were on the rain in question, and who had had from 7 to 24 years expe-ience in railroading; and also introduced its car inspector, vho inspected the car and train at Caldwell before the acci-.ent, and also the inspector who inspected the car after the ccident; and also introduced its road master and section oreman. As to the condition of the track at or near the lace in question, appellee announced that he would aban-on all claim that it was negligently constructed or íaintained. It was shown to have been level and in first-lass condition in every respect, and suitable for trains to un over with safety at 50 or 60 miles per hour. As to the ondition and construction of the car that left the track and aused the accident, the inspector testified that it was in rst-class condition when it passed Caldwell, before the ac-Ldent. After the accident it was carefully looked over by íe train crew, the road master, the superintendant, and Aster mechanic, and none of them were able to detect lything defective about it, or anything that would tend to ¡tuse it4to leavejthe track; and the superintendent and master mechanic had it carefully inspected by a competent inspector, after the accident, with proper appliances and tools, and nothing was found defective about it that would tend to cause it to leave the track. ■ It was shown to have been constructed specially for fast running, carrying perishable freight, very heavy, weighing some 36,000 pounds, and that such cars — refrigerator cars — empty or loaded, were frequently placed in passenger trains by first-class roads. As to the arrangement of the train, all these witnesses who testified on that point testified that the train was properly arranged. As to the speed of the train at the time of the accident, the superintendant, master mechanic, and three o: the train crew, all of whom had had many years’ experience in such matters, testified that the train .was running from 3f to 40 miles per hour, and the speed sheet introduced in evi dence showed that the train was running 40 miles per hour All of them testified that over that portion of the track, be ing in good condition, straight, and some down grade, i speed of 50 or 60 miles per hour was considered safe. Non< of the witnesses could give any cause for the car leaving th< track. At the close of the evidence appellant asked th< court to instruct the jury to return a verdict for it, but th< court refused to so direct the jury. Under the instruction the jury returned a verdict for appellee, plaintiff below, fo $1,400. On the same day appellant filed its motion for a nev trial, which was overruled. Judgment was rendered on th verdict. Appellant moved for fin appeal to this court, whici was gyanted. A supersedeas bond, and also a bill of excej tions, were filed within the time granted by the court, an appellant brings the cause to this court, and asks for ar( versal of the judgment.</p> <p>1. Appellee failed to show any negligence whateve upon the part of appellant, and the court should have instructed a verdict for the defendant. Railway Company vs Woodworth, 1 Ind. Ter. 20; Washington vs Railway, 36 S. W. 779; Schofield vs Railroad, 114 U. S. 615; Motey vs Pickle Company, 74 Fed. 155; Sipes vs Saymour, 76 Fed. 116.</p> <p>2. The court erred in charging the jury “that if they found that the defendant * * * was guilty of negligence in making up * * * said train, and that the injury to the plaintiff was the result of such neglect, it would be your duty to find for the plaintiff.” There was no evidence to support the charge, and it is prejudicial error to charge the jury upon a state of facts concerning which there is no proof. Mich. Bank vs Eldred, 9 Wall. 544; Ins. Co. vs Stevens, 71 Fed. 258, 262; Railroad vs Houston, 95 U. S. 697, 703; Ky. dent. Ry. vs Biddle, 35 S. W. 904; St. L. A. & T. Ry. vs Torrey, 58 Ark. 217; 24 S. W. 244; I. & G. N. Ry. vs Eason, 15 S. W. 208; Fergus vs Dodson, 33 S. W. 272.</p> <p>1. The witnesses who testified in regard to the speed >f the train were competent. When the facts and circumstances are disclosed upon which the opinion is founded, it s competent for witnesses to give their opinion. Kelley vs vlcGuire, 15 Ark. 555; Abraham vs Wilkins, 17 Ark. 322; ■State vs Pike, 6 A. R. 549. Witnesses may be permitted to estify as to the rate of sp.eed of a railroad train upon a cer-ain occasion. Detroit vs Van Steinberg, 17 Mich. 99; Com - nonwealth vs Sturtivant, 19 A. R. 401; 62 Ark. 258; Ben-Lett vs Meehan, 43 A. R. 78; State vs Folwell, 14 Ark. 105; Sommonwealth vs Malone, 114 Mass. 295. The fact of the erailment of the train itself shows negligence upon the part f the railroad company. Albion Lumber Co, vs DeNobra, 19 C. C. A. 168; Seybolt vs Railroad Co., 95 N. Y. 562; 4C Ark. 298; Feltall vs Middlesex Railroad Co., 109 Mass. 720: George vs Railroad Co., 34 Ark. 613.</p>

Wm, M. Springer, Judge. T. M. Buffington, as mayor of the corporate town of Downingville, together with others, filed a bill in equity asking for an injunction restraining James S, Davenport from building in and fencing part of the park. Defendant filed a demurrer, which was overruled. Defendant appeals. This was a bill in equity, brought by T. M. Buffington, who is described as mayor of the corporate town of Down-ingville, Ind.

C. B. Kilgore, Judge. Suit by D. E. Booker against J. L. Barringer. Judg-nent for plaintiff. Defendant appeals. Appellee recovered a judgment before the United states Commissioner at Ardmore against appellant for the um of $100.00 and costs, from which judgment an appeal yas taken to the United States Court in the Indian Territory, 'bird judicial division.

Wm: M. Springer, Judge. Suit upon promissory note by Henry O. Acorn against Henry Taylor. Judgment for plaintiff. Defendant appeals. This is an action brought to recover a judgment upon the following note: “Deering, Kansas, January 12th, 1892. Twelve months after date we promise to pay. to the order of H. O. Acorn three hundred ($300.00) dollars, with interest at the rate of ten per cent, per annum from date until paid. [Signed] Henry Taylor.

<p>Appeal from the United States Court for the Northern District.</p> <p>John R. Thomas, Judge.</p> <p>John D. Harless appeals from a conviction of receiving stolen property.</p> <p>At the December, 1896, term of the United States court for the Northern district of the Indian Territory, sitting at Muscogee, John D. Harless, appellant, was indicted for larceny of certain cattle from Moosa Nebaka, and also, in the same indictment, was charged with receiving stolen property. Harless was convicted in July, 1897, for receiving stolen property ; it being the fourth count in said indictment. From this verdict and judgment of conviction, I Harless prosecutes this appeal. There were originally three defendants i-n the case, — Orcuttand Charles McIntosh, besides Harless. Before the case was tried, it was dismissed as to Orcutt and McIntosh, and they were placed upon the stand as witnesses against Harless. There were seven assignments of error in the case, as follows: “Assignments of error: First. Because the verdict returned by the jury is without authority of law. Second. Because the verdict of the jury is contrary to the evidence. Fourth. Because the court erred in the admission of certain testimony before the trial jury, to which the defendant at the time objected is incompetent and irrelevant, and prejudicial to the defendant, and which testimony was preserved in the record, and nade a part of the motion for a new trial in reference there-;o, and to which ruling the defendant at the time excepted. I'ifth. Because the court erred in refusing to give the ipecial instructions asked for by the defendant, the same lumbered one, two, three, and four, and made a part of the notion for a new trial by exhibit, to which action of the ourt, refusing special instructions, defendant at the time xcepted. Sixth. Because the court erred in submitting he fourth count in the indictment to the consideration of he jury, there being no evidence in support of the same of-ered by the prosecution, to which action of the court de-jndant then and there excepted. Seventh. Because the curt erred in charging the law in reference to accomplices, ) which action of the court in so charging, defendant then nd there excepted. The seventh assignment of error was a motion of the counsel for appellant, stricken from the icord, and all reference thereto in the bill of exceptions ill be disregarded.</p>

C. B. Kilgore, Judge. Action in replevin by Sam and Ed. Noble, partners as Noble Bros, against J. N. Worthy. Lee Cruce, assignee, filed an inter plea. Judgment for Interpleader. Plaintiff appeals.

<p> 1. Cross Examination. </p> <p>In an action in which one of the issues was the validity of the transfer of the stock of goods, it was proper upon cross examination of a witness who has testified concerning the sale tof ask him any question that might shed any lightwhatever upon the transaction.</p> <p>2. Statement of Attorney — When Binding on Party.</p> <p>A party is bound by the statements and admissions in the line of his duties of his Attorney, who was present as such when the sale of the stock of goods took place.</p> <p>y. Fraudulent Conveyance — Statement by Vendor — Res Gestae.</p> <p>Appellant told one Halsell, a creditor of Oziah her vendor, that he must look to Oziah for his money. While the bill of sale was being drawn, appellant told her Attorney he had better hurry up and make the bill of sale, that Halsell was trying to fix his business up with Oziah. Held, That it was not error to permit Halsell to testify as to what Oziah said at the time. That His statements were a part of the res gestae.</p> <p>‡. Fraudulent Conveyance — Prior Statements.</p> <p>Statements made by a vendor to different witnesses, prior to the time of the sale as to his efforts to sell his stock of goods, his reasons therefor, and his liabilities, are properly admitted in evidence.</p> <p>5. Instruction — Not Error to Refuse on Point Already Covered by</p> <p> Court’s Charge. </p> <p>It is not erroT to refuse an instruction when the court has already instructed the jury fully to the same purport in another instruction.</p> <p>6. Fraudulent Conveyance — Notice.</p> <p>One buying a stock of goods with notice of such facts and circumstances in regard to the business and financial standing and conditions, and the purpose of the vendor as would put an ordinarily prudent man upon inquiry, is chargeable with the knowledge of all facts which he could ascertain by inquiry.</p> <p>7. Purchase by Creditor from Failing Debtor.</p> <p>A creditor who buys goods from a .failing debtor, must not aid the debtor in defrauding his other creditors. He must have a bona fide debt, must purchase the goods at a fair price, and , he must purchase only to the extent that will satisfy his own debt.</p> <p>Cross examination.</p> <p>Statements of attorney.</p> <p>Res Gestae.</p> <p>statements prior to sale.</p> <p>instruction - Refusal not error.</p> <p>Notice</p> <p>Oreditor must not aid debtor to defraud.</p>

C. B. Kilgore, Judge. Suit by C. E. Perry against P. Arohard on a pror sory note. Judgment for defendant.

<p>Deed, of Assignment — Recitals—Ejfect as to Validity of Deed.</p> <p>The deed of assignment-in controversy cited that the assignors “have sold, conveyed and delivered ” the stock of goods to the assignee. Held, That the word “deliver” does not necessarily imply the delivery of possession of the goods to the assignee and the deed of assignment is not for that reason void on its ' face under \ 305 Mansf. Dig. requiring an assignee to file his inventory and bond with the clerk of the court before taking possession of the assigned property.</p> <p>trial by Court — Findings of Fact — Conclusiveness.</p> <p>The appellate court regards findings of a fact by the trial judge in the same light as the finding of a jury and will not disturb the finding of facts made by the trial court.</p> <p>I llegation of Partnership — Burden of Proof .</p> <p>| Appellants alleged a partnership between assignors, one Mays and one Bridgeman who were named in the deed as preferred creditors. Held, That the burden of proof was on appellants to prove such alleged partnership.</p> <p>I'nding of Fact by Court— When not Disturbed.</p> <p>|ln order to sustain an assignment of error on account of the finding of facts by the court and its rulings on the law applicable to such facts, it should appear that the finding was conclusively contrary to the evidence.</p> <p> f-tain Provision of Arkansas Assignment Law Not in Force. </p> <p>Dhe provision of the law of Arkansas approved March 31, 1897, providing that “ an assignment for the benefit of creditors may be contested or attacked for fraud * * * whether the assignees knew it or not ” has neyer been put in force in the Indian Territory.</p> <p>6. Assignment — -Creditors Successfully Attacking Fictitious Prefer Claims Allowed Costs.</p> <p>A creditor who attacks a deed of assignment, and succeeds striking out fraudulent preferred claims, is entitled to costs and reasonable attorney’s fees out of any funds in hands of the assignee.</p> <p>Finding of fact by trial court— Orn-clusiveness.</p> <p>Allegation of partnership — Burden of proof.</p> <p>statute of Arkansas of notriCnfoTCe97'</p> <p>Facts necessary to arouse suspicions ot</p> <p>When as-signee put on notice.</p>

C. B. Kilgore, Judge. Action in attachment by Noble Bros, vs J. N. Wo: Lee Cruce, assignee, Interpleader. Judgment Interpleader. Plaintiff appeals.

Yancey Lewis, Judge. Suit upon a promissory note by Turner Wilsonl others, against W. A. Durant and others. Judgment defendant. Plaintiff appeals.

Yancey Lewis, Judge. J. H. McClendon sued the Missouri, Kansas & Texa: Railway Company for the value of a cow, killed througi the alleged carelessness and negligence of said railwa; company. Judgment for plaintiff. Defendant appeals. The opinion states the facts.

C. B. Kilgore, Judge. Henry' Gaines filed a petition íor a writ of mandami to compel J. W. Phillips as clerk of the United States Cou for the Southern District to issue a writ of supersedeas to a execution on a judgment recovered by one Wm. Tol against said Gaines. There was a judgment dismissing t! petition. Gaines appeals.

C. B. Kilgore, Judge. W. J. Leslie brought an action in ejectment agai Henry Gaines and asked for injunction against defend pendente lite. Judgment granting the injunction. De: dant appeals.

William M. Springer, Judge. G-. W. McEwin brought a suit in replevin against ivid Humphrey. The court directed a verdict for defend-Lt. Plaintiff appeals. This was an action of replevin, brought by the appel-nt, who was the plaintiff below, against the appellee, who is the defendant below, to recover certain live stock upon aich had been given a chattel mortgage to secure the pay_ snt of a note described as follows, to wit: “$82.80. nita, I. T., October 24th, 1894.

<p>Bill of Exceptions— Time of Filing — Record.</p> <p>A bill of exceptions must not only be prepared and signed must also be filed with the clerk of the court before the exj| tion of the time granted by the court and where this is done, it is no part of the record and will not be considere the Appellate Court.</p> <p>Bill of Exceptions must be filed before expiration of time.</p> <p>ceptioiS* filed out of of“eCorapart</p>

<p>1. Accessory — Evidence of Conviction of Principal not Admissible.</p> <p>On a prosecution of a defendant as being accessory to an assau under 1505 of Mansfield’s Digest, defining an accessory to l one “who stands by, aids, abets or assists etc.,” evidence th; the principal has been convicted of the crime is inadmissible.</p> <p>2. Accessory — Conviction of Principal — Parol Evidence Inadmissable.</p> <p>In a case in which it would be proper to show the conviction the principal upon the prosecution of an accessory, parol cd dence is incompetent to show such conviction without havii| first shown the loss or destruction of the record of same.</p> <p>Accomplice Accessory— Evidence as to conviction ot principal.</p> <p>Parol Evidence as to conviction of principal.</p>

Yancey Lewis, Judge. Suit in forcible entry and detainer by James Corey ainst T. J. Phillips. Judgment for plaintiff. Defendant peals. This action was brought in the United States court, ting at South McAlester, on the 27th day of March, 1896, which date the complaint of the plaintiff was filed in the rlrs office of the clerk of said court, and is an action of cible entry and detainer.

C. B. Kilgore, Judge. Suit by Mansur-Tebbetts Implement Co. against larey & Moore. Judgment for defendants. Plaintiffs ap-)eals. This is an action for the recovery of six certain >romissory notes, the principal of which aggregates $3,781.-2, all past due.

Yancey Lewis, Judge. Suit in replevin by B. F. Cox and another against Vhit W. Cherry. Judgment for plaintiff. Defendant ap-eáis. The appellees, B. F. Cox and N. N. Cox, brought suit 1 the court below against the appellant, Whit W. Cherry, in splevin for two mules. They gave bond, obtained a writ of splevin, and the mules were turned over to them.

C. B. Kilgore, Judge. Suit by Simon Love against S. L. Williams and other Judgment for plaintiff. Defendant Williams appeals.

C. B. Kilgore, Judge. Wilson Parker and Dan Shipman appeal from a con-iction of larceny. On the 20th day of October, 1896, an indictment was ^turned into the United States court for the Southern dis-:ict of the Indian Territory against the appellants, Wilson 'arker and Dan Shipman, charging them jointly with the irceny of two head of cattle, the property of one W. B. lenson. On April 8, 1897, the case was tried, resulting in verdict of guilty against both defendants.

C. B. Kilgore, Judge. Suit in equity by Harry Simon against J. B. Thornp-on and others. Judgment for defendants. Plaintiff ap-leals. The complaint in this case, filed in the United States ourt at Purcell December 23, 1895, alleged that about the 5th day of August, 1895, the plaintiff borrowed from the rm of Turk Bros. & Co., of Purcell; Ind.

Wm. M. Springer, Judge. Suit by L. A. Byrd ys Moffett-West Drug Co. Judg-uent for plaintiff.

C. B. Stuart, Judge. Charles Newman filed a bill in equity against John M. Grady, praying the cancellation of a certain note and mortgage. There was a decree for Plaintiff. Defendant appeals. The opinion states the facts.

C. B. Kilgore, Judge. Suit upon a promissory note by J. D. Yocum against . H. Cary. Judgment for defendant. Plaintiff appeals. The opinion states the facts. The court should have sustained plaintiff's demurrer to ffendant’s answer. The answer set up facts at variance with the written .contract between the parties. A plea of this kind cannot be sustained. Wilson vs Wilson, 38 Pac. 185; Bank vs Scott, 26 Pac. 276; Barnes vs Scott, 117 U. S. 582.

Wm. M. Springer, Judge. Action on a forfeited bail bond against George Zu-tll, et. al. Defendants filed a motion to quash the summons, nd appeal from an order overruling such motion. The opinion states the facts.

Yancey Lewis, Judge. Charles B. Farrington sued the Missouri, Kansas This is an action brought by the appellee, the plainj tiff below, against the appellant, the defendant below, ofl the 21st day of March, 1893, before Joseph G. Ralls, Unite States commissioner for the Second judicial division of th Indian Territory, at Atoka.

<p>Cha1z~el Mortgage-Contern~oraneous Agreement with Mortgagee-As-signrnent for Benefit of Creditors.</p> <p>A chattel mortgage and an agreement in relation to the powers of the mortgagee were executed at the same time. The mortgage was filed for record, the agreement was not. The agreement enlarged the powers of the mortgagee with reference to the control of the mortgaged property. A couple of days later, a power of attorney was executed - to the mortgagee in which the mortgagee was given control of all property of the mortgagor. Held, That the instruments are void upon their face, as a deception and fraud upon creditors. Further Held, That they constitute when taken together an assignment for the benefit of creditors, and that they are void because providing for the assignee to take possession without filing inventory and giving bond.</p> <p>Mortgage construed as assignment.</p> <p>Assignment, voui ni toto.</p>

C. B. Kilgore, Judge. Suit by G. G. Anderson against C. C. Julinson for the recovery of a tract of land. Judgment for plaintiff. Defendant appeals. On the 20th day of January, 1896, Anderson (appellee) instituted suit in the district court at Chickasha, Ind, Ter., against Julinson (appellant), to recover the possession of a certain tract of land, which he claimed that appellant held under a lease from appellee.

C. B. Kilgore, Judge. Suit by the Schwab Clothing Co., against R. A.I Cromer upon a judgment. Judgment for defendant. Plain-J 'tiff appeals.

C. B. Kilooke, Judge. Suit by J. J. McAlester as United States marshal against Mary Suchy and others on replevin bond. Defendant filed a demurrer to plaintiff’s complaint which was sustained. Plaintiff appeals. Howard Eoss, as cashier, and Nix, Halsell & Co., brought suits, by attachment, against the firm of W. F. King & Co., in the United States Court at Ardmore, Ind. T. Orders of attachment were issued, and a stock of goods, at Wayne, Ind.

Yancey Lewis, Judge. Suit by W. G-. Ward against the Missouri, Kansas & Texas Railway Co. Judgment for plaintiff. Defendant appeals. This was'an action instituted on the 21st day of March, A. D. 1893, before Joseph G-.

C. B. Kilgore, Judge. Suit by John S. Fletcher upon promissory note against H. N. Dulaney and an other. Judgment for defendant. Plaintiff appeals. This it a suit brought by appellant (plaintiff below) against appellees (defendants below) upon certain promissory notes executed by defendants, and fully described in plaintiff’s amended complaint, it being alleged that the plaintiff is the owner and holder of said notes.

Yancey Lewis, Judge. Ft. Smith National Bank filed a petition in equity against P. J. Byrne as assignee for Grayson Brothers and others to reform a mortgage. There was a decree for plaintiff. Defendant appeals. This is an appeal from the decree rendered by the United States court for the-Northern district of the Indian Territory.

Wm. M. Springer, Judge. . Suit by Stilson, Case, Thorp, Ryburn & Co. against Aldace F. Walker and an other as receivers of the St. Louis & San Francisco Railway Co. Judgment for plaintiff. Defendant appeals. This was an action brought by the appellees (the plaintiffs below) against the appellants (the defendants below) for damages for refusal to ship certain cattle from Catoosa, Ind.

<p>Appeal from the United States court for the Northern District.</p> <p>William M. Springer,' Judge.</p> <p>Suit on forfeited bail bond against E. W. Randolph and another. Defendants appeal from an order overruling defendant’s motion to quash the summons.</p>