Volume 1 — Oklahoma Reports

<p>County No. I. Application for writ of prohibition.</p>

<p>Jursidic'tioN of United States' Commissioners — Territories- Criminal Law. — Section 10 of the organic act of Oklahoma provides that persons charged with any crime in the Territory may be arrested by the United States marshal, or any of his deputies, but in all cases the accused shall be taken for preliminary examination before a United States commissioner, or a justice of the peace for the county. Held, that a</p> <p>United States commissioner had authority to commit petitioner upon a charge of assault to the custody of a United States marshal, notwithstanding section II of the organic act puls in force in Oklahoma the Nebraska laws - providing for the arrest and commitment of persons charged with crimes and offenses.</p>

This is an ejectment which comes to this court on appeal from the third district of Oklahoma county, John G. Clark, Justice.

<p>1. Mandamus — Remedy at Law. — The writ of mandamus will not be awarded when the relator has a plain and adequate remedy at law.</p> <p>2. Extraordinary Remedy — IJow Commenced. — The writ of mandamus is one ot the extraordinary remedies, resorted to in cases where the usual modes of procedure cannot furnish the desired relief, and should be commenced in the name of the sovereign power on the relation of the party aggrieved.</p>

<p>3. Insufficient Complaint. — Objection to Evidence. Where the complaint of the plaintiff does not state facts sufficient to constitute a cause of action and an objection is made by the defendant to toe introduction of any evidence under the complaint for that reason, the objection to the introduction of evidence should be sustained and the plaintiff, on application, permitted to amend, on such terms as the court deems just.</p> <p>2. Carriers.— Connecting Lines- Last Carriers. Where property is delivered to a carrier, consigned to a point beyond its line, and in order to reach the place of destination, such property must pass over the lines of several connecting carriers, in the absence of any arrangement constituting the carriers partners or joint undertakers, each carrier is liable only for loss or injury occurring on its own line, and in the absence of such partnership or joint arrangement, the last carrier in the chain of connecting carriers is not liable for property it never received.</p>

<p>1. Habeas Corpus. — Discharge.—After conviction of perjury, the accused cannot be discharged on habeas corpus, if the trial court had* jurisdiction of the person and of the crime, however erroneous its proceedings may be.</p> <p>2. Want of Jurisdiction. — Judgment Void. — If the trial court has no-jurisdiction in a criminal case, its judgment is void, and the party convicted and sentenced will be discharged on habeas corpus.</p> <p>3. Appeal.— Writ of Error__When the trial court has jurisdiction, errors in its proceedings can only be corrected on appeal or writ of. error.</p>

<p>1. Territorial Legislature — Powers—Under Organic Act Okla.T. § 6, providing that the legislative power of the Territory shall extend to all rightful subjects of legislation not inconsistent with the laws and constitution of the United States, it is competent for the legislature to continue in force, after the adjournment ol the First legislature, the Criminal Code of Nebraska, extended to the Territory by the organic act, § II, until the adjournment of the first session of the legislature.</p> <p>2. Ex Post Facto Law — Act 1st. Assem. Okla. T., § I, continuing in force the Criminal Code of Nebraska, which, by the organic act, was extended to that Territory till the adjournment of the first session of the legislature, is valid, and not ex post facto, as to offences already committed, but not prosecuted and punished.</p>

<p>i. Nebraska Laws— Damage by Animals. — The laws of Nebraska which were put in force in the Territory of Oklahoma by the Organic Act, and which provide for the recovery of damages for trespasses committed on cultivated lands by stock running at large, have no-application to an injury done by a mule running at large to a young colt, by which the colt was killed.</p> <p>2? Vicious Animals — Damage by — The owner of a vicious animal, as a mule, who has notice of such vicious propensity, is liable at common law for an injury done by such animal to a young colt, by reason of such vicious propensity; but in such case it is necessary to aver and prove the viciousness of the animal, and the scienter of the owner.</p>

<p>Appeal from the District Court of Logan Cotmty, H011. E. B. Green, Judge.</p>

<p>1. Forcible Entry and Detainer — Pleading and Proof — Variance— Where the petition in forcible entry and detainer asks the recovery of possession of a whole quarter section, and the proof shows the plaintiff to be in possession of a very small part of it, the variance is immaterial.</p>

<p> Appeal from the District Court of Logan County, Hon. E. B. Green, Judge. </p> <p>Action of forcible entry and detainer by David H. Commager against Charles W. Dicks. Judgment for plaintiff. Defendant appeals.</p>

<p>Error to the District Court of Logan County, Hon. E. B. Green, Judge.</p>

<p>Í. Mandamus — To Townsite Trustees — Authority of Territorial Courts. —The organic act of the Territory of Oklahoma, (25 Stat. at Large, p. 85,) conferring upon the Territorial courts chancerv as well as common law jurisdiction, and conferring upon (hem the right to issue writs of mandamus in all cases authorized by law. allows the issue of a writ to compel townsite tiustees to execute a deed for a lot to one of several contestants, whom they have decided is entitled to a deed, and from whom the deed is witheld out of deference merely to the instructions of the Secretary of the Interior that the parties are entitled to an appeal from said decision. Me Intire v. Wood, 7 Cranch, 564; and Me Clung u. Silliman, 6 Wheat. 599, distinguished.)</p> <p>2. Appeai, from Decision of Trustees. — Act Cong. May 14, 1890. (26 Stat. at Large, 109,) entitled, “An Act to Provide for Townsite Entries in * * * Oklahoma and for Other Purposes,”) declares that certain of the lands actually occupied for purposes of trade and business may be entered as lownsites “for the several use and benefit of the occupants” by three trustees appointed by the Secretary of the Interior, who shall provide regulations for the proper execution of the trust; that lands not so disposed of shall be sold for the benefit of the municipality; and that “when final entry is made, the title of the United States to the land covered by such entry shall be conveyed to said trustees for the uses and purposes herein provided.” Held, that after the issue of a patent to the trustees no appeal can be taken to the general land office or to the Secretary of the Interior from a decision of the trustees awai ding certain lands to one of several contestants, since the title has then already passed from the government, nor can the Secretary provide by rule for an appeal in such cases on account of the supervision with which he is charged by Rev. Slat, gtj 441, 442, 453, over public land officers. CLARK, J., dissenting. {Snyder v. Sickles, 98 U. S. 210, distinguished. Moore v. Robbins, 96 U. S. 530, followed.)</p>

<p>I. PUBLIC Lands — Issue of Potent — Equitable Jurisdiction — Where the officers of the United States land department, acting on a known state of facts, draw a conclusion of law and issue a patent for a portion of the public domain, a court of equity may entertain a complaint praying that the patentee be decreed a trustee for plaintiff, and that he be compelled to convey the legal title. *</p> <p>•2. Homestead Entryman — Qualifications.—Under Act Cong. March 2, 1889. (25 U. S. St. at Large, p. 1005,) relating to the opening of certain land in Oklahoma for settlement, which provides that, “until said lands are opened for settlement by proclamation of the president no person shall be permitted to enter upon and occupy the same, and no person violating this provision shall ever be permitted to enter any of said lands or acquire any right thereto,” and under the proclamation of the president, declaring that the lands would be opened ior •settlement at the hour of 12 o’clock noon of the 22d day of April, 1889, an employe of the A., T. & S. F. R. R., Who by virtue of his position, remains on the land fromi March 2, 1889, to noon of April '22d cannot take advantage of his presence to select and claim a homestead.</p>

<p>t. Replevin — Verdict and Judgment. — Code Civil Procedure Nebraska, prevailing in Oklahoma Territory, provides (section 191) that where property has been delivered to plaintiff in replevin, and the jury finds^ for defendant, they shall find whether defendant had the right o property or the right of possession only, when suit commenced, and, if they find either in his favor, they shall assess damages for defendant; for which, with costs, the court shall render judgment. By section 191# the judgment in such case shall he for the return of the property, or the value thereof in case a return cannot be had, or the value of the pjssess on of the same, and for damages, etc. Jleldy that when the, verdict found that the* right of property was in defendant when action began, and assessed his damages at one dollar, it was proper to enter judgment for the return of the property, and damages and costs.</p> <p>2. Verdict — Exception to Saíne. — The plaintiff did not except to the verdict when it was presented, nor to the judgment when it was entered. but aftewards moved to correct the judgment to confoim to the verdict, and refused to take advantage of the trial court’s offer to set aside the judgment, and grant a new trial. Heldy that he could not object to the judgment.</p>

A. J. Seay, Judge. Action by the Peru Plow & Wheel Co., against Samuel F. Robinson and Clarence L. Gibson' to recover damages for the alleged conversion of a stock of farming implements. From a judgment for plaintiff, defendant brings error.

<p>1. Promise of Wife — Liability of Husband — The complaint in this caseseelcs to charge the husband on the promise of the wife, made in his absence, for medical services rendered to a hired farm hand. Held, that the husband was not liable.</p> <p>2. Liability of Husband — Necessaries—In the absence of express authority, the husband is not liable for the wile’s obligations, except lot-necessaries. The power of the wife to bind the husband on contracts is based upon the ground of agency. As wife, she has no inherent, power to make a contract binding upon the husband, even for necessaries.</p>

J. G. Clark, Judge. Injunction by Samuel Crocker against W. J. Donovan, county treasurer, and Harry Bacon, L. N. Deweese and J. L. Robertson, county commissioners, to restrain collection of taxes on improvement on plaintiff’s homestad claim. From a decree for defendants, plaintiff appeals.

Submission without action of a controversy between John H. Beatty and others and Delos Walker and others as to whether plaintiffs or defendants are the legally qualified school board of Oklahoma City. From a judgment dismissing the proceedings, entered upon a finding for defendants, plaintiffs appeal.

E. B. Green, Judge. Mandamus by the Territory of Oklahoma on the relation of Marquis D. Losey against the Mayor and common council of the City of Guthrie, to compel defendants to issue a warrant for the payment of relator’s claim for money due him from defendants in return for duties performed as referee under direction of the court in fixing the amount of certain claims against the city. ■ Defendants made return to relator’s alternative writ of mandamus by way of demurrer,…

<p>1. Herd Law — Validity of Same — kxt. 3, Chap. 3, Statutes of Oklahoma, commonly called the “herd law,” does not contravene the act of congress of July 30, 1883, (24 U. S. Stat. at large, p. 170), which prohibits the passage of a local law where a general law can be made applicable, and is valid.</p> <p>2. Local Law — Validity of Same — In case of a constitutional provision prohibiting the enactment oí a local law where a general law can be made applicable, the legislature must determine the question of the applicability oí a general law, and a local law enacted in such case will be held valid by the courts.</p>

E. B. Green, Judge. Action by the Territory of Oklahoma, on the relation of John Wilson, against Francis E. Marion and others, members of the public school board of the city of Guthrie, and Edward L. Hallock, city supérintendent of .schools of the city of Guthrie, to compel the defendants to admit the relator’s children as pupils to a certain ■ward school of said city. From' a judgment for plaintiff, defendants appeal.

A. J. Seay, Judge. Action by Thomas Russell against James Thompson and Edward Burhart to cancel a deed, and for the specific performance of a contract to convey land. From a judgment for plaintiff, defendants appeal.

<p>1. Common Carrier — Delivery to — Delivery of personal properly to the-common carrier for transporta1 ion to the vendee, whether in accordance with his expressed .or implied instructions, is a delivery to the vendee’s agent, and equivalent to a delivery to the vendee himself.</p> <p>2. Title of Property — When Vested — The delivery of personal property to the common carrier, although s«ld on credit, is a delivery to. the vendee, and vests the title in the vendee, subject to the vendor’s, right ol stoppage in transitti.</p> <p>3. Recission of Sale — What Necessary — If the parties to a sale, completed bv delivery, agree to rescind, as much formality is required to. revest the title in the vendor, as against the vendee’s creditors, as was necessary to transfer the title to the vendee.</p>

<p>%. Forcible Detainer — When it Lies — The plaintiff claimed, and introduced evidence tending to show that he was the owner of the property in question, and entitled to the possession, and that he let the same to the defendant for three months for the sum ot $60, and that, after the expiration of the term, he paid an additional sum of $5, and subsequently refused to sign another lease, pay more rent or recognize the plaintiff as his landlord, or surrender possession of the leased premises. Held, that an action of forcible detainer would lie for restitution of the premises.</p> <p>2. Forcible Detainer — What Involved — In an action of forcible detainer the title to the property is not, and cannot be, tried and determined. The right of possession is the only right involved.</p> <p>3'. Description of Premises — Slight Error — Substantial accuracy in the description of the premises, in an action of forcible detainer, is all that'the law requires. A slight error which does not mislead the defendant will not be regarded.</p> <p>4. Claim of Lessee — When He May Make — To enable a lessee to set up a claim to the leased premises, which is adverse to the lessor, he must first surrender to the lessor the possession obtained under the lease, and, then, assert his right in a proper action.</p>

A. J. Seay, Jtidge. Mandamus by Charles Rider against George F. Brown and others, county'commissioners, to compel defendants to issue to plaintiff a certificate of election to the officer of register of deeds. From a judgment in favor of defendants, plaintiff brings error.

<p>1. Indictment — Ground of Demurrer. — An indictment is not demurrable on the ground that the grand jury presenting it was not selected, formed,'and impanneled as provided by law.</p> <p>2. Same — When Sufficient in Perjury. — An indictment charged that in a United States land office, before the register thereof, a land contest was pending, in which it became material to know the whereabouts of one W., and with whom he was at noon on a certain day, and defendant was produced as a witness, was duly sworn, and testified that he met W. and others at that tinje at a certain place, and was with them, whereas defendant did not meet or see W. and the others at the time and place testified to; and that by such testimony defendant knowingly and feloniously committed perjury before the register, who had competent power, under the laws of the United States, to administer the oath to said defendant Held, that the charge was sufficient, within Rev. St. U. S. § 5396, providing that it shall be sufficient to set forth in an indictment for perjury the substance of the offense charged upon the defendant, and by what court, and before whom the oath was taken, averring such court or person to have competent authority to administer the same, together with the proper averments to falsify the matter wherein the perjury is assiged.</p> <p>3. Act OF 1857 — Revised Statutes. — Though the act of congress of 1857 specially covering oaths taken and testimony given in United States land offices was not incorporated into the Revised Statutes, it will not be held that it was the purpose of congress to repeal the act, and thus leave people free to perpetrate by peijury gross frauds in obtaining and defeating titles to public lands without being subject to punishment.</p> <p>4. Indictment for Perjury — Stifficiency of.- — In a prosecution by the United States in a territorial court, the sufficiency of the indictmen- and the endorsements thereon must be tested by the requirements of the federal statutes; and, since there is no law of the United States requiring the names of witnesses to be indorsed upon the indictment, absence of such indorsement is a mere imperfection in form, which imperfections Rev. St. U. S. § 1025, declares shall not affect the indictment unless they tend to the prejudice of defendant.</p> <p>5. Instructions — When Considered on Appeal. — Objections to the instructions will not be considered on appeal when the evidence has not been brought into the record, unless such instructions are clearly erroneous as abstract principles of law, or could not under any hypothesis have been applicable to the evidence.</p> <p>6. Motions in Transcript — When Considered. — Motions copied into the transcript and entries by the clerk ofrulings thereon are not parts of the record, and will not be considered on appeal unless properly brought before the court.</p>

<p> ■Appeal from the Probate Court of Oklahoma County. </p> <p>Replevin by Robert Y. Chandler against C. F. Col-■cord. From a judgment in defendant’s favor, plaintiff ■appeals.</p>

<p>1. Organic Act- Sale of Malt Liquor. — Under the organic act, providing that Laws Neb. c. 5°> entitled “Liquors” shall be in force in the Territory, but no license shall be issued thereunder, taken in connection with said chapter 50, which makes it a misdemeanor to sell malt liquors without a license, the sale of such liquors is illegal.</p> <p>2. Lease of Premises — Illegal Business. — Where one leases premises for the keeping of liquor for sale, the landlord agreeing to supply ice to keep the premises cool, if the sale of such liquor is illegal the tenant cannot recover for damage to the liquor caused by failure of the landlord to supply ice as agreed.</p>

<p>1. Appeal — Filing Transcript. — The statute required the appellant to obtain from the justice of the peace a transcript of the proceedings and deliver the same to the clerk of the appellate court within 30 days from the rendition of the judgment, and the transcript was not 'delivered to the clerk within the time prescribed. Held, there was no appeal, and the appellate court acquired no jurisdiction.</p> <p>2. No Transcript Filed — Dismissal.—Alter the trial was commenced in the appellate court, it was discovered that there was no transcript on file, and, on motion of appellee, the appeal was dismissed. Held, not to be error, as the appellate court had acquired no jurisdiction.</p> <p>3. Motion to Reinstate — Affidavit.—A motion was made by appellant, supported by affidavit, to set aside an order of dismissal and re-inslate the cause, but the motion and affidavit were not preserved in a bill of exceptions so as to make them a part of the record. Held, that thev could not be considered.</p>

James M. Murphy was convicted of perjury, and sentenced, and his motion for appeal denied. He petitioned for writ of habeas corpus, and also prayed the court to fix amount of bail pending appeal.

<p>1, Provisional City — Contracts of . — The original provisional municipal government of Oklahoma City was not a de facto municipal corporation, and had no power to contract or bind itself or successors by any agreements.</p> <p>2. Municipal Corporation — Legislative Authority.• — Prior to the-act of congress of May 2, 1890, there was no law in the Territory of' Oklahoma authorizing municipal corporations, and where there is no law authorizing de jure municipal corporations a de facto corporation cannot exist. Such de jure corporations can only exist under legisla, tive enactments.</p> <p>-3* Act of May 2. 1890 — De Facto Corporation. — The act of congress of May 2, 1890, made provision for the organization of de jtire municipal corporations, and the provisional government of Oklahoma City became and was a de facto corporation from and after that date.</p> <p>•4- De jure Corporation — Liability.of.—A de jure successor of a de facto municipal corporation, which acquires the property, rights and improvements, and embraces the same territory, and is composed of the same people as its de facto predecessor, is liable for the valid contracts and legal liabilities of the de facto corporation.</p>

<p> Appeal from the District Court of Kingfisher County, Hon. A. J. Seay, Judge. </p>

<p>1. Demurrer to Evidence— IVhat it admits — A demurrer to evidence not only admits tile facts, as proven, to be true, but also admits all facts wlwch the evidence fairly tends to establish.</p> <p>2. Nebraska Statutes — Attachment under — Under the Nebraska Statutes, § 237, Code of Civil Procedure, a creditor can only maintain an attachment on a debt not due for one of the following causes: First, Where a debtor has sold, conveyed, or otherwise disposed of his property, with the f raudulent intent to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts; Second, When he is about to make such sale, conveyance, or disposition of his property with such fraudulent intent; Third, Where he is about to remove his property, or a material part thereof, with the intent, or to the effect of cheating, or defrauding his creditors, or of hindering and delaying them in the collection of their debts. The fact that a debtor fraudulently contracted the debt sued for, is not sufficient ground for an attachment before the maturity of such debt.</p> <p>3. Attachment. — Statutory remedy — The right to an attachment is statutory, and, in order to maintain it, the defendant must be brought within the terms of the statute.</p> <p>4. Insolvent — Preference of creditor — An insolvent debtor may use, convey, or mortgage all, or substantially all of his property, if done in good faith, to pay or secure a part o f his creditors, to the exclusion of his other creditors. Persons in failing circumstances, while they still have complete dominion of their property, may use it as •Rev see fit in liquidating bona fide debts.</p>

<p>1. Reai. Estate — Parol Contract- By the common law, prior to the enactment of the statute of frauds, 29 Charles Second, Chap. 3, contracts for the sale of real estate, or any interest therein, were not required to b:in writing.</p> <p>2. Indian Territory — Laws in force — There was no law in the Indian Territory regulating the making of contracts for the sale of real estate, or any interest therein, at the time of the approval of the act of congress establishing a United States court in that Territory, by act of March I, 1889.</p> <p>3. Settlement of Oklahoma — Common law — When the people from all parts of the United States, on April 22, 1889, settled the country known as Oklahoma, they brought with them the established principles and rules of the common law as recognized and promulgated by the American courts; and a parol contract for the sale of real estate, or any interest therein, made between April 22, 1889, and May 2, 1890, is not invalid as being prohibited by any rule of the common law.</p> <p>4. Government Lands — Contracts Concerning— Unless foibidden by positive law, contracts made by actual settlers on government lands, concerning their possessory rights and the title to be acquired Irom the United States, are valid as between the parties to the contract.</p>

<p>1. Federal Causes — Practice.—In matters of practice in Federal; criminal causes, the code of criminal procedure of the Territory governs, so far as the same is applicable and not in conflict with some* Federal stat- te on the same subject.</p> <p>2. Change of Venue — From Judge. — There is no provision in the criminal procedure act authorizing the venue to be changed from one county to another, in a criminal cause, on account of the bias or prejudice of the presiding judge.</p> <p>3. Organic Act — Assignment of Judges. — The organic act, §9, pro-vides, that the Supreme Court of the Territory shall consist of a Chief Justice and two Associate Justices, and that said Territory shall be divided into three Judicial districts,.and a district court shall be held in* each county in said district by one of the Justices of the Supreme Court, at such place and time as may be prescribed by law, and each Judge, after assignment, shall reside in the district to which he is assigned; and that the Supreme Court shall define saidjudicial districts, and shall fix the times and places, at each county-seat, in each-district where court shall be held, and designate the Judge who shall preside therein. Held¡ that, after the order of assignment, the Judge-is required to reside in the district to which he is assigned, and is vested with no judicial power, as a district Judge, outside of his district, and the legislature has no power to confer it on him.</p> <p>4. District Courts — Powers of Judges. — The district courts are creatures of the Federal Congress, and derive their powers and authority-from the laws of the United States; and the act of the legislature giving one Judge power to call another from his district, and requiiing him to go into another district on the order of the presiding Judge, as contemplated in the code of criminal procedure, is not in harmony with the laws of Congress, and is void. '</p> <p>5. Indictment — When Set Aside. — An indictment may be set aside by the court on the motion of the defendant, first, when it is not found, indoised, presented or filed as prescribed by the criminal procedure-act; second, when the names of the witnesses examined before, the grand jury are not inserted at the foot of the indictment, or indorsed thereon;//¿m/,when aperson is permitted to be present during the session of the grand jury, while a vote on the finding is being taken. A molio i to quash the indictment cannot be entertained for any of the causes for which an indictment may be set aside, and there is no error m overruling such moti'on.</p> <p>6. Indictment — Plea in Abatement. — Irregularities in selecting and impanelling the grand jury cannot be attacked by plea in abatement. The criminal code of procedure makes ample provision for taking advantage of all irregu.arilies in the selection of the grand jury by a challenge at the proper time; and this procedure governs in the trial of Federal cases, and is the only manner in which the panel of the grand jury may be attacked.</p> <p>7. Indictment for Perjury — Stijjiciency.—The indictment alleged that the defendant was sworn as a witness in a perjury case; that the perjury case was on trial in the district court of Oklahoma county.; that the matters he testified to were material to the issues in that cause; that he was sworn by the deputy district clerk of the court, who was authorised to administer said oath; that he testified as such witness. The testimony is then set out specifically, and followed by the proper averments of the falsity of the testimony given, and that the defendant knew it to be false, and did not believe it to be true* Ife/d, that the indictment was Sufficient on demurrer.</p> <p>8. Time to Pi.ead — Waiver of Right. — If a defendant fails to require time before moving to set aside the indictment and demurring thereto,he waives his right to further time; and it was too late to demand it after his motion to quash, demurrer and plea in abatement had been overruled.</p> <p>9. Materiality of False Testimony — Proof of Same. — When the materiality of the false testimony is not apparent from the facts pleaded, it becomes necessary, on the trial of the person charged with the perjury, for the prosecution to show what the issues were in the former case, and wherein the matters testified to were material to those issues. The materiality of such matter must be established by evidence, the same as any other ingredient of the crime, and.cannoi be left to inference.</p> <p>10. Immaterial Testimony — Perjury.—If a witness, be examined in chief, and give no evide7ice material to the issue, no assignment of peijury can be made on his cross-examination, as to the matters testified to in chief, on the ground that such cross-examination was material as affecting his credibility. In such case the credibility of the witr ess is wholly immaterial and without influence on the result of the trial.</p>

<p> Appeal trom the District Court of Oklahoma Coimty, lion. John G. Clark, Judge. </p>

<p> Appeal from the District Court of Oklahoma County, Hun. John G. Clark, Judge. </p>

<p>1. Guarantor — Liability of. — In a complaint against a guarantor of a promissory note it is not necessary to allege diligence on the part of the payee to make collection from the maker of the note; and a complaint failing to allege such diligence is not bad on demurrer.</p> <p>2. Same — Insolvency of Maker. — Nor is it necessary to allege the insolvency of the maker, or that an effort had been made to collect the note from the payor.</p> <p>3. Same — When Liable. — The guarantor of a promissory note is liable at once on the maturity of the note, if such note be not paid by the maker. The fact that the note is not paid at maturity fixes the liability of the guarantor.</p> <p>4. Motion for New Triai.— When Reviewed. — Unless the bill of exceptions is shown on its face to contain all of the evidence, this court will not review the action of the court below in overruling the motion for a new trial because the verdict is not sustained by the evidence.</p>

<p>1. Appeal. — Interlocutory Order. — No appeal will lie from an interlocutory order, or decree, making division of real estate and granting a mandatory injunction, made at chambers and in vacation; and an appeal from such order was properly dismissed on motion.</p>

<p>1. Legislative Act — Want of Power. — So much of Art. i, Chap. 3, R. S. of Oklahoma, as provides for the collection, by an inspector, from the owner, vendor, or person in charge, of not more than three cents for every head of horses, mules, or cattle, and not less than two cents for each head of sheep leaving the county, and not more than five cents for each head of horses, mules, sheep, or cattle that shall enter the county,is void, as the legislature had no power to enact it.</p> <p>2. No Cause OF Action — Judgment by Default. — A complaint which states no cause of action will not support a judgment by default; and such judgment will be rendered in the appellate court. If the complaint states no cause of action, the objection is fatal at every stage of the proceedings.</p>

<p>1. Probate Judge. — Authority to Take Evidence. — Art. 2, Chap. 2, Stat. of Oklahoma, which authorizes the probate judge, on a commission issued from the local land office, to take the evidence of witnesses to be used in cases pending in such land office, was ratified by Act of congress and is valid; and tlie crime of perjury, as defined in § 5392, R. S. of the United States, may be committed by false swearing before such probate judge.</p> <p>2. Examination of Juror. — Perjury.—Perjury may be committed by a juror in his examination on his voir dire, touching his competency as such juror, if he swears falsely as to having formed and expressed an opinion as to the guilt or innocence of the defendant on trial in the case in which he is called as a juror.</p> <p>3. Perjury. — Against what Law. — If a juror, called and sworn on his voir dire, in a prosecution for perjury on the Federal side of the district court, swears falsely touching his competency as such juror, his offence is perjury against the laws of the United Slates; and he may be prosecuted under § 5392, R. S. of the United States.</p>

<p>1. Appeal— Final Order. — An order of the district court, allowing and approving a claim, reported to that court by the commission appointed to audit claims against Guthrie, East Guthrie, West Guthrie, and Capitol Hill, is a iinal order from which an appeal will lie to this, court.</p>

<p>1. Cherokee Nation.— Title to Cherokee Outlet. — The Cherokee Nation holds the lands in the Cherokee Outlet by the same title as they hold Ihe lands ceded and granted to them lor a permanent home, that is, the treaties of 1828, 1833 and 1835, and the Patent of 1838; but their estate in the lands in the Cherokee Outlet is a base, qualified or determinable lee, with the qualification annexed to the use.</p> <p>2. Cherokee Outlet. — By what Title Held. — The qualification annexed to a base, qualified or determinable fee may be either one of two kinds: It may be a qualification which is attached to the use oí the land itself, so that the estate is held to be granted for that use and purpose only, and on the cessation of the use the estate expires; or it may be one which is concerned with the happening of a more strictly collateral event, leaving the use of the estate free for any pulpóse, but limiting its existence only by the event contemplated. The estate of the Cherokee Nation in the Cherokee Outlet is of the first class.</p> <p>3. Same — Lands, How Granted, — The lands in the Cherokee Outlet were ceded and granted to the Cherokee Nation as an outlet, and for the purposes ol an outlet only, and not for residence and cultivation; and, in such case, the law annexes the qualification, or condition, that the estate shall continue in the Cherokee Nation only so long as the lands are used as an outlet, and no longer; and when the Cherokee Nation ceases to use the land as an outlet, such cesser of the use determines their estate, and the lands revert to the United Stales,</p> <p>4. Same.— Wrongful Use of Lands. — The lands having been ceded and granted as an outlet, they cannot be lawfully used for any other purpose, either by the Cherokee Nation or persons claiming by li • cense or lease under the Cherokee Nation; avd the subjection of the lands to any other use is wrongful, and a breach of the qualification,. or condition, annexed to the estate, and works a termination of th'e estate, and the lands revert to the United States.</p> <p>5. Cherokee Nation. — Right to Use Lands. — The Cherokee Nation has no right to use the lands for the purpose of operating a stone quarry therein, and selling and shipping the rock, and could give the the complainants, by license, no greater right than the Cherokee Nation itself has; and the operating of the stone quarry by the complainants is wrongful, and a court of equity will not protect them by injunction in such wrongful act.</p> <p>5. Lands Not Used —Cesser of Estate. — If the Cherokee Nation has ceased to use the lands as an outlet, such cesser has terminated their estate, and the lands have reverted to the United States. But whether there has been such cesser is a political rather than a judicial question, and should be settled by congress and the chief executive of the nation.</p>

I11 the District Court of Kingfisher County, Oklahoma Territory, sitting with the powers and jurisdic- ’ tion of the District and Circuit Courts of the United States.