Volume 10 — Oklahoma Reports

<p>1. Bill of Exceptions — Time of Filing. Under Code Civil Froc. ch. 70, art. 24, section 5, providing that a bill of exceptions must be presented -within the time allowed by the judge, a bill tiled a month after the time appointed by the judge will not be considered.</p> <p>2. Forcible Entry and Detainer — Pleading. Under- St. ch. 71, art. 10, section 4, providing.that in forcible entry and detainer the complaint shall set forth either an unlawful and forcible entry and detention, or an unlawful detention, the facts constituting such unlawful entry or detention must be set out.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Oklahoma County; before J. B. Keaton, District Judge.</p> <p>STATEMENT OP.THE CASE.</p> <p>This was an action for malicious prosecution brought by Fansler against Ten Cate in the district court of Oklahoma county, because of an alleged malicious prosecution theretofore begun by Ten Cate and one H. C. Renard against the defendant in error.</p> <p>The petition averred that on the 21st day of June, 1895, the defendants had conspired to extort money from the. plaintiff in payment of-a debt what had been owned jointly by the defendants, and that a mortgage on chattel property to secure the debt had been taken in the name of Ten Cate; that the debt had been paid off by the plaintiff, and that the defendants had promised to release the mortgage upon the record, but that they had, for the fraudulent purpose of cheating the plaintiff, neglected to release it as they had promised to do; and that, for the purpose of wilfully and maliciously oppressing and falsely imprisoning the plaintiff and to extort money, as aforesaid, that they had caused to be instituted before. Stephenson, a justice of the peace, a criminal prosecution. upon the complaint sworn to by the defendant, Ten Cate, which accused Fansler of ooncealing and removing mortgaged chattels: to-wit, horses described in the chattel mortgage referred to in the petition, without the consent of Ten Cate.</p> <p>That the information was endorsed by the county attorney of Oklahoma County, as follows:</p> <p>“I have examined the facts in this case and recommend a warrant be issued. J. L. Brown, county attorney.”</p> <p>Fansler further charged that at the time of the filing of the complaint, the defendants both knew that the claim had been paid on the 10th day of November, 1891,' and had remained unsatisfied of record by the defendant, Ten Cate, for the fraudulent purpose charged; that the defendants knew that the charges contained in the complaint were untrue; that the defendant, Ten Cate, caused a warrant to be issued on the said false complaint, and caused the arrest of the plaintiff, who was held under arrest from the 21st day of June, 1895, to the 9th day of July, 1895, when an examining trial was had, and that on said trial it was found by the justice that the mortgage debt had been fully paid off and satisfied by the plaintiff; that the complaint had been dismissed and the plaintiff discharged from said arrest and prosecution, and the costs taxed against Ten Cate, and that the said complaint, ar--rest and prosecution were malicious, and without probable cause.</p> <p>The plaintiff averred that by reason of the institution and carrying on of this malicious prosecution and arrest by the defendant, that he was deprived of his liberty and oppressed, degraded and brought into disrepute among his neighbors, and had suffered great mental trouble and anguish of mind and had been held under arrest and deprived of his liberty, and his good name and business standing had been injured and that he had been forced to pay out and expend large sums of money in securing his liberty and discharge from the said malicious arrest and prosecution, and that the plaintiff was kept from pursuing his business, and had sustained damages in the sum of five thousand dollars, for which he asked judgment.</p> <p>The defendants answered jointly, denying all the allegations of the plaintiff’s petition. Thereafter, before the beginning of the trial, the cause was dismissed as to Ren-ard, and the case tried to a jury.</p> <p>A verdict was returned, in which the issues were found for the plaintiff and the damages assessed at one thousand dollars. The following special interrogatories were submitted to the jury by the court, and the answers made which are appended thereto:</p> <p>“Ques. Did the assignment and transfer of the lease in question from the plaintiff to H. C. Renard constitute a payment and satisfaction of the note and mortgage executed by the said plaintiff to the deféndant herein, or, was said lease so assigned and transferred as an additional security for the payment of said note? Ans. The assignment and transfer of the lease in question did constitute a payment and satisfaction of the note and mortgage.'</p> <p>“Q. If you find for the plaintiff, state the amount of damages, if any, you allow him upon each of the elements of damages designated in the 13th instruction of the court: to-wit, 1: for the expenses incurred and time lost by plaintiff. A. ($75.00) Seventy-five dollars.</p> <p>“Q. 2. For injury to plaintiff’s character and reputation? A. ($325.00) Three hundred and twenty-five dollars.</p> <p>“Q. For the shame, mortification and mental anguish suffered by plaintiff ? A. ($200.00) Two hundred dollars.</p> <p>“Q. 4. For punitive or exemplary damages ? A. ($400.00) Four hundred dollars.”</p> <p>A motion for a new trial was made, argued and overruled, and the case brought here upon numerous assignments of error, which are presented to a very limited and meager extent in the brief of the plaintiff in error.</p>

Error from, the District Court of Nolle County; before Bayard T. Hamer, District Judge. STATEMENT OE THE CASE. This is an action in injunction begun by May Dykes, plaintiff, against Benjamin L. Kirtley, defendant, in the district court of Noble county, for the purpose of obtaining possession of a part of a homestead.

<p> Error from the District Court of Woods County; before Jno. L. McAtee, District Judge. </p>

<p>Taxation — Injunction—Allegations. Where a party seeks to enjoin the collection of a tax which he claims is excessive and illegal, arising from either the action of the assessor or the board of equalization in raising the returned valuation thereof, it is not only necessary to allege in the petition, but it must be proved upon the trial, that the property was listed and returned for assessment at its true cash value, before a court of equity will interfere and enjoin the collection of the tax claimed to be excessive and void.</p> <p>(Syllabus by the Court.)</p>

<p>1. Appeal Bond. An action to recover for breach of a bond given to stay a judgment of the district court pending an appeal to the supreme court, is an action on contract, and the obligors are bound by the terms and conditions of the bond.</p> <p>2, Recitals op Appeal Bond — Effect of. The obligors upon an appeal or supersedeas bond are boundary the recitals in the bond, and where the bond recites that a* certain action was pending m district court between certain parties, and that a judgment was rendered in said cause, the obligors in such bond, in a suit thereon, are estopped from saying no such suit was pending or that no valid judgment was rendered therein.</p> <p>S Counter-claim — lefined. A counter-claim is a cause of action existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim, or connected with the subject of the action.</p> <p>4. Set-op* — Defined. A set-off is a cause of action arising upon contract or ascertained by the decision of a court, and can only be pleaded in an action founded on contract. It must be independent of and not connected with the contract made the foundation of the cause of action in the petition, and can only oe pleaded where therei is mutuality of parties. The cause of action sought to be pleaded as a set-off must exist in favor of all the defendants against the plaintiff.</p> <p>5. Use and Occupation — proof Concerning Rental. Where a party has obligated h'mself to pay another the value of the use and occupation of certain real property during a particular period, it is not reversible error to permit the plaintiff to show what the property actually rented for during such period. Such proof is not controlling as to the rental value, but is proper to be considered by tne jury under proper instructions by the court in determining the reasonable value of the use and occupation of the property.</p> <p>•6. Statute op Limitation — Cause of Actions Barred by. A causé ot action barred by the Statute of limitations cannot be pleaded as a set-off.</p> <p>7. Demurer to Petition in Action on a Supersedeas bond — ivo* Error fo. Overrule, When. It is not error to overrule a demurrer to a petition in an action on a supersqdeas bond, where the petition contains the necessary averments as to the execution of the bond, the pendency of the action, the taking of the appeal, the affirmance of the judgment by the supreme court, the recitals in the bond, and which then alleges the breach of the conditions of the bond and the damages sustained.</p> <p>8. Writ of Restitution — Sheriff’s Returns — Contradicting. While proof may not be admissible for the purpose of contradicting a sheriff's return on a writ of restitution, it is not error to admit evidetnce as to the manner in which the writ was executed, and to show that while the sheriff did technically give possession to the plaintiff, the defendants in fact retained actual possession and kept the plaintiff out after sheriff had made his return.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Canadian County • before John. L. McAtee, District Judge. </p>

<p>1. Board of County Commissioners — Judicial met Mlinisterial Acts.— The action of the board of county commissioners in ordering an election to determine the location of a county seat is a ministerial act, and not a judicial decision, from 'which an appeal lies to the district co-urt.</p> <p>2. Removal op County Seat. Section 14, Indian Appropriation Act, approved March 3, 1S93, providing lor the reservation by the secretary of the interior of certain lands for county seat purposes, and the action taken thereunder by the United States, is not such an exercise of authority over the subject as to render the enactment of the Territorial legislatura void, which grants the right to the people of the county to change the location of the county seat bv vote.</p> <p>(Syllabus by the Court.)</p>

Original Proceeding in Habeas Corpus, STATEMENT OF THE CASE. On April 5, 1899, the board of county commissioners of Grant county called a special election to be held on May 16, 1899, for the purpose of submitting to the voters of said county the question of changing or relocating the county seat now located at Pond Creek, in said county, under the provisions of ch. 23, of the Statutes of 1893.

Error from the District Court of Kingfisher County, before John C. Tarsney, District Judge.

Eainer, District Judge. This case is brought to this court to review a certain judgment and proceedings had in the district court, of Kay county, in an action in which the plaintiff in error was plaintiff, and the defendant in error was defendant.

Mrror from the District Court of Oldahoma County; before B. F. Bwwell, District Judge. STATEMENT OF THE CASE. The record in tbis case shows that on October 28, 1892, Joseph McMullen obtained a judgment against James M. McCornack in the district court of Oklahoma county, upon two promissory notes for $2,418.00, and costs of the action. On October 28, 1897, said judgment became dormant.

Error from the District Court of Garfield County; before Jno. L. MoAtee, District Judge. STATEMENT OF THE CASE. It appears from tbe record and the briefs of counsel, that on the second day of February, 1895, Hon A. Gillett made, executed and delivered to John Romig his promissory note for $700.00, payable two years after date, bearing interest at the rate of twelve per cent per annum, payable semi-annually in advance.

<p> Error from the District Court of Canadian County; before John C. Tarsncy, District Judge </p>

Error from the District Court of Garfield County; oe¡ure STATEMENT OP THE CASE. This case is brought here on error from Gar held county. The error assigned is that the district court of Gar field county, on the 5th day of December, 1899, made a final order in said cause, overruling a motion of defendant to retax the costs incurred in the probate court, from whence said cause had been appealed.

<p>Error from the District Court of Kay County j before Bayard' T. Hainer, District Judge.</p>

H. Burford, District Judge. STATEMENT OF THE CASE. • This is an action brought by the defendant in error against the plaintiff in error in the district court of the first judicial district, in the county of Logan and Territory of Oklahoma, for the recovery of certain real estate described in her certain petition, filed in said court February 3, 1898, which petition is in words and figures as follows, to-wit: “In the district court, first judicial district, Territory of…

<p>1, Taxation — Transient Property Act — Indian Reservation. Under Section 1 of the act of 1895 pertaining- to taxation of transient property and as reenacted in 1S97, which provides that, “when any personal property shall be located in any country in this Territory after the 1st day of March of any year, which shall acquire an actual situs therein before the 1st day of September, such property Is taxable therein for that year, and shall be assessed., and placed on the tax-roll, and a tax collected as provided by this act; .Provided, that this act shall not apply to live stock brought into this Territory after the 1st day of November and kept therein until the 1st day of April following for the express purpose of being grain-fed and prepared for market, sub.iect to the quarantine regulations.” Cattle brought into the Osage Indian Keservation, which was attached to Pawnee county for judicial and taxing purposes, between March 1st and September 1st of 18D8 for the purpose of grazing we're properly taxable in Pawnee county for that year, and the owners thereof who had not settled in that county could not have them relieved from taxation by filing an affidavit with the assessor to the effect that such cattle had been listed for taxation in the State of Texas for the same year and prior to the time that they were brought into Oklahoma. As to whether or not one who settles in a county of this Territory between March 1st and September 1st and brings property into the Territory with him, can be relieved from paying taxes on such property by tiling an affidavit that it had been previously listed for taxation in another state, we express no opinion.</p> <p>2. Injunction * Denied. When. Under the rule that he who seeks equity must do equity, a court will not enjoin a portion of a tax even though such portion is illegal, unless the petitioner tenders or offers in his petition to pay that portion of the tax which the court may find to be just and legal.</p> <p>(Syllabus by the Court.)</p>

<p>Probate Courts — Questions of Law and Fact — Appeal, To What, voi&t't Taken. All appeals from final judgments of probate courts shall be allowed and taken to the supreme court of the Territory of in the same manner as appeals are taken from the district court, and with like effect, when only questions of law are involved in the appeal, irrespective of the amount involved; but if one desires to appeal from a final judgment of a probate court and have questions of fact retried in the appellate court, then ho must appeal to the district court of the county in the same manner and form as appeals are taken from judgments of justices of the peace, without regard to the amount involved; and an apeal from a final judgment of a probate court which involves only a question of law cannot be taken to the district court of the county, but must be taken and prosecuted by petition in error, either by bills of exceptions and transcript, or case-made, to the supreme court of the Territory.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Pawnee County; Itfore A. G. C. Bierer, District Judge.</p> <p>STATEMENT OF THE CASE.</p> <p>This is an action brought by Coulter, as receiver of the Farmers and Citizens Bank upon a note for the sum of $500, dated May 16, 1895, payable twelve months after date, to the order of O. L. Berry, cashier, at the office of the Farmers and Citizens Bank; Pawnee, Oklahoma.</p> <p>The amended petition, upon which the case was tried, avered that Coulter had been apointed by the district court of Pawnee county to be receiver of the Farmers and Citizens Bank, in an action in which one Mandel was plaintiff, and the Farmers and Citizens Bank was defendant, and that the receiver had been directed by the district court to sue upon the notes and accounts in his hands as receiver, and that the note sued upon was one of the assets of the bank which had come into his possession as such receiver.</p> <p>Petrie set up in his answer as a defense, that the note sued upon was “accomodation” paper, for the benefit of a corporation then to be organized, in which C. L. Berry was to be cashier, and defendant was to be a stockholder, and that the note was without any other consideration, aud that the corporation was never organized as agreed upon.</p> <p>The action was begun in the probate court of Pawnee county, where Petrie had judgment, from which Coulter, as receiver, appealed to the district court of Pawnee county. The cause was tried by a jury, and- resulted in a verdict and judgment in favor of Coulter, the receiver.</p>

<p> Appeal from the District Court of Kingfisher County; before Jno. C. Tarsney, District Judge. </p>

<p>Accounting — May Referred. Under section 301 of our civil code, where it appears to the court from the pleadings that a determination of the cause involves an accounting and a settlement of partnership business, the court is authorized in referring the cause to a competent referee on its own motion, and without the consent or the Dart.ies.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the District Court of Gwfield County; before B. F. Bumoetl, District Judge. </p>

<p>Criminal Law — Information^-Veriflcation of, When Imnficient. A. verittcation on information and belief to a complaint in a criminal case is not sufficient to authorize a court to put the defendant upon trial for the offense charged therein. Such complaint should be sworn to positively or the facts upon which the warrant should issue ought to be presented to the court by affidavit or by competent evidence.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the District Court of Kay County; before Bay-ard T. Hainer, District Judge. </p>

<p>Habeas Corpus — Jurisdiction. The supreme court has no original Jurisdiction over prisoners sentenced from Oklahoma and confined in the Kansas state penitentiary, and a writ of habeas corpus will not issue to the warden of the penitentiary at JUanslng, Kansas, to inquire into the validity of a sentence of persons while confined in said nrison.</p> <p>(Syllabus by the Court.)</p>

<p>1. Bastardy, Jurisdiction in. Chapter 41, Statutes 1893, confers on probate courts jurisdiction in bastardy proceedings, and said power has been ratified by congress.</p> <p>Í, Bastardy, imprisonment Cannot Be imposed, a bastardy proceeding is special in character, and is in the nature of a civil proceeding; there is no authority given to impose imprisonment as part of the’ original judgment in such cases, in order , to compel the judgment debtor to secure the payment of the judgment by executing a bond.</p> <p>S. Habeas Corpus — Bastardy, A judgment debtor in a bastardy proceeding who is imprisoned pursuant to the original judgment that he stand committed to the county jail until he gives bond for the payment of the judgment, will be discharged on haoeas corpus,</p> <p>(Syllabus by the Court.)</p>

<p> Original Proceeding in Habeas Corpus. </p>

Error from the District Court of Kay County; before Bay-ard T. Hainer, District Judge. STATEMENT OF THE CASE. This action was brought in the district court of Kay county, on the 26th day of September, 1897, by the defendant in error, who was the plaintiff below, to recover the value of three thousand bushels of wheat, one hundred and fifty head of hogs, one frame store building and a frame house.

<p> Diror from the District Court of Logan County; before John H. Burford, District Judge. </p>

<p> Appeal'from the District Court of Kingfisher County j before John L. McAtee, District Judge. </p>

<p>1. Schools — First - Grade Certificate. Oklahoma Statutes, sec. 5820, Compiled Laws 1893, yhich reads: “No certificate shall Be of force except in the county in which it is issued; provided, that the county superintendent may endorse unexpired first grade certificates issued in other counties on payment of the fee of one dollar, which certificate shall thereby be valid in the county m which such endorsement is made for the nnexplred term of the certificate,” imposes an imperative duty on the county superintendent to. endorse proper certificates when presented to him, and such officer is vested with no arbitrary discretion in such cases.</p> <p>2. Power, Exercise Oblisatort, When. Where a power is given to public officers and the public interest or individual rights call'for its exercise, the language used, though permissive in form, is in fact peremptory. What they are empowered to do for a third person the law requires shall he done. The power is given, not for their benefit hut for his. The power is deposited as a remedy to those entitled to invoke its aid. In all such cases the intent of the legislature, which is the test, was not to devolve a mere discretion, hut to impose a positive and absolute duty.</p> <p>(Syllabus by the Court.)</p>

<p> :Appeal from the District Court of Pawnee County before Bayard T. Hainer, District Judge, </p>

<p>I. Transient Property — Taxation of. Cattle brought into this territory for grazing purposes between the dates of March 1st ana September 1st are subject to taxation under the Transient Property-Act.</p> <p>•z. Injunction Denied, When. One desiring to enjoin the collection of taxes must not only tender the taxes over which there is no dispute, but he must also offer in his petition to pay whatever taxes the court may find to be just.</p> <p>(Syllabus by the Court.)</p>

<p>*L Transient Property— Taxation of. Cattle brought into an Indian reservation attached to a county for judicial and taxing purposes, between March 1st and September 1st for the purpose of grazing, are properly taxable in such county for that year,</p> <p>2. Indian Reservation — When Part of (Jounty to Which Attached. An Indian reservation attached to a county for judicial and taxing pur-posee is in effect a part of the county to which it is attached, for such purposes.</p> <p>Z. Property of Non-Resident Liable For Taxes. All of the personal property of a non-resident within a county of this territory is liable'for the payment of all of the personal taxes assessed and levied against him in such county; and an officer holding a tax-warrant against such non-resident for delinquent taxes is not limited to a seizure and sale of the property which was assessed and on which the levy for such taxes was made, but may seize and sell any of the property of such non-resident which he may find in his county which is subject to execution, regardless 'of whether it is the same property that was assessed and on which the levy was made.</p> <p>3. Non-Resident — Effect of Listing Property m Another State. The» fact that a non-reident made out a list of the property which he owned in the territory and which was properly assessable in Pawnee county, and swore to such list before the assessor of pawnee ounty at a place in the state of Kansas, will not vitiate the assessment and levy made on such property.</p> <p>5. “Through Cattle” — Taxable When. An allegation in a petition that certain cattle on which taxes had been levied were "through cattle” is not sufficient to authorize the court to enjoin the collection of such taxes levied thereon when it appears from the face of the petition that the cattle were brought into the territory between March 1st and September 1st, lor grazing purposes.</p> <p>6. Injunction to Restrain Collection of Tax Denied, when, a court of equity will not entertain an application for an injunction to restrain the collection of taxes unless the petitioner otters in his petition to pay that part of the taxes which the court may find to be legal.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma County; before B. F. Burwell, District Judge. STATEMENT OP THE CASE. On tbe 19tb of April, 1897, William Butler and Maria Butler, plaintiffs in this action in the court below, filed their amended petition against Robert Higgins and S. A. Higgins, defendants therein.

<p>Evidence, [Reviewed, When — Transcript, Must Contain, What. Tins court will not undeitake to review the evidence in a case Drought here upon a transcript, certified by the clerk oí' the district court, that it “contains a true, full and correct copy of the petition, transcript, notice of appeal, journal entry of judgment and bill of exceptions, as the same appears on file and of record,” and which contains no statement in the record that it contains the evidence-, in the cause. And since the ass'grment of errors is or.e such as requires an examination of the evidence, the judgment will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>1. Contract — Uncertainty—Voi(l, When, Where one party makes a proposition to another, that, if he will find him a customer who will purchase or trade for a certain tract of land, he will pay for such sendees fifty or sixty dollars, and the proposition is accepted and the customer furnished, who trades for the land, the contract wm not he held void for uncertainty and indefiniteness.</p> <p>2. Contract — Optional—Obligatory. A contract may be optional with one party and obligatory on the other, or it may be obligatory at the election of one of the parties.</p> <p>3. Contract, Alternatives. Where one of the parties to a contract obligates himself to do one of two things, on the performance of certain services by the other, the one making such alternative promise has a right to elect which alternative he will perform, provided he makes such election before default; but if he fails to make such election in time, then the promisee may elect which alternatives he will accept.</p> <p>' Í. Same. Where the promisee elects to take the less valuable of two alternatives, the promisor Is in no position to complain.</p> <p>5. Verdict, Not Reviewed, AVhen. When controverted questions of fact are submitted to a jury and the evidence reasonably tenas to support the verdict, the appellate court will not disturb the verdict.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Gourt of Pottawatomie County, before B. F. Bumoell, District Judge. </p>

<p>L'axbs — Enjoining Collection. Upon the authority of 8Ireight el al. v. Durham, Treasurer, (This Volume, page 361,) the judgment of the district court is affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>Account, Verification of — Denial. By the terms of sec. 398G K©vised Statutes of Oklahoma, 1893, the correctness ot any account duly verified by the affidavit of the party, his agent or attorney shall be taken as true, unless the denial of the same be veriüeü by the affidavit of the party, his agent or attorney. The affidavit denying the correctness of an account, veritted ay required by statute, which is made by agent or attorney, must set forth the reasons why it is not made by the party himself, • and if it fails to set forth such reasons it is- insufficient under the law to question the correctness of the account.</p> <p>2. Supplies For Clerks of Courts . — “Necessary." The statutes ol Oklahoma give the power to boards of county commissioners to furnish necessary blank books, plats, blanks a*nd stationery for clerks of the district courts, and all books and stationery which tend to expedite or facilitate business in such courts are included in the term necessary, under this provision of the statute.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from the District Oourt of Kay Oounty• before Bay-ard T. Earner, District Jv,dge.</p>

<p> 'JJrror from the District Court of Pottawatomie County; "before B. F. Burwell, District Judge. </p>

<p> Error from the District Court of Garfield County; before Jno. L. McAtee, District Judge. </p>

<p>1. Auimony Pendente Lite — Order For. By sec. 4548, Statutes or Oklahoma, 1C93, after a petition has been tiled in an action for divorce and alimony or for alimony alone, the court or a judge thereof in vacation may make an order for the support of the wife during the pendency of the suit, and in doing so the court exercises tíisoretionarv powers, but it is not an arbitrary but a legal discretion which is reviewable on appeal.</p> <p>2. Same — -Ord'r for. The order of the- court making allowance for alimony .pcnñonic lite will not be disturbed in this court unless the record shows an abuse of discretion.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the District Court of Logan Countyj before ■John E. Burford, District Judge. </p>

F. BurweTl, District Judge. STATEMENT OF THE CASE. The defendant was tried at the March term, 1899, on an indictment containing seven counts, charging in as many different ways the same offense: that he secreted, embezzled or destroyed a package containing a registered letter that was being transmitted through the United States mails, and which had come into his possession in the regular course of his official duties as postmaster of Shawnee, Oklahoma Territory To this…

Tarsney, District Judge. STATEMENT OP THE CASE. This was an action begun in the district court of Kingfisher county, by Jacob Beard, plaintiff, against A. H. Schowalter, and Martin Gerber, defendants.

<p> Appeal from, the Prolate Court of Oklahoma County; before Asa Jones, Prolate Judge. </p>

<p>1. Gaming — Tin lawful, Where. Under Seo. 25 of the liquor laws of 1893 it is unlawful for any dealer in intoxicating liquors in the Territory to have, or permit, any gambling, game of chance, or gambling carried on, or to have or keep any gambling table or gaming devise of any kind in a room where intoxicating liquors are sold.</p> <p>2. Indictment — Good, When. Where an indictment follows the language of the statute creating the offense, and includes every material element of the crime charged, and the acts constituting such offense are stated in ordinary and concise language, and m ' such a manner as to enable a person of common understanding to know what is intended, it is all that is necessary to plead to constitute a good indictment.</p> <p>3. Same. Hence, an indictment drawn under sec. 25 of the liquor laws of 1893 which charges: "That C. B. Utsler, whose more full name is to the grand jurors unknown, on or about the 25th day of August, in the year of our Lord one thousand eight hundred and ninety-eight, in said county of Garfield and Territory of Oklahoma, did then and there unlawfully and wilfully, in a' room where intoxicating liquors were sold, have and permit gambling carried on by means of a certain gambling device called a pack of cards, adapted, used and designed for the purpose of playing games of chance for money and property, upon which said games of chance money and property were bet, won and lost. The said C. B. Utsler being than and there a dealer In intoxicating liquors, and then and there selling said liquors in said room, contrary to the form of the statute in such cases made and .provided, and against the peace and dignity of the Territory of Oklahoma." Held, to constitute a good indictment, and the objection to the introduction ' of testimony on the ground that the indictment is insufficient, was properly overruled by the trial court.</p> <p>4. Evidence — Proper~Qaming. Where a person is charged with permitting gambling In a room where intoxicating liquors are sold It Is proper and competent for the territory to ask a witness the following question: "Dctscnibe what you saw in the room in the way of furniture?" for the purpose of eliciting from the witness whether or not any gambling devices were in the room.</p> <p>5. Same. Where a person is on trial for permitting gambling to be carried on in a room where intoxicating liquors are sold, it is competent for the territory to show any specific acts of gambling during any rime u'ith~n three years next preceding the finding of me indictment, and it is not error for the nourt too overrule a motion interposed by the defendant to require the Territory to eleot upoo which of the different transactions it relied for conviction.</p> <p>U. Liquoxe-sele of-Gaming. The statute prohibits dealers in Intoxicating liquors to perwit gambling to be carried on in a room where intoxicating liquors are sold, and the fact that the place where the gambling was carried on was separated by a- partition containing an opening four or dye feet wide, without a door, from tae saloon proper where the liquor was sold, is hut a subterfuge to evade the law, and does not eimempt the party -from criminal re- - sponsibility. The manifest spirit and put-pose of tne statute being not only to suppress the evil of gambling, but also to wholly disconnect it from a room or plane where intoxinating liquors are sold.</p> <p>7. R~coi~n EXAM~NED-RU1e App'ied. The recoM to this case examin&i, and Held, That the evidence is sufficient to warrant the convictiOn of the defendant, and further Held: That no prejudicial error *a~ committed by the court either in the instructions given to the jury, or in refusing the instruct5ons offered on behalf of the defendant.</p> <p>(SyUdbus by the Court.)</p>

<p>1. The Term “Month” Defined. The term “month” when used in a statute, unless otherwise provided, means a calendar month, and not a period of 30 days, or a lunar month.</p> <p>2 Findings op Fact by The Interior Department. Findings of fact made by the secretary of the interior will be treated as conclusive in the absence of the record, or a copy thereof, from which such facts purport to have been found.</p> <p>3. Prior Settler — Corroboration of Contest, Object of — Homestead Application-Hearing Ordered, When. Where one claiming a right to a tract of government land by reason of prior settlement, files the proper land office, within three months after the date of his settlement, an application to enter the land, accompanied by an uncorroborated affidavit of contest, alleging in proper form that he is a prior settler on such tract under the rules of the department of the interior, it is the duty of the register and receiver to order a hearing between the entryman and the contestant to deteternnie the rights of priority between them. The object of the rule of the department of the. interior to the effect that all contests shall be corroborated, was promulgated for the purpose of showing' the bona fldes of such, contestant, and such corroboration is not necessary to confer jurisdiction upon such officers to hear such cause. Their jurisdiction is acquired by the issuance and service of notice of contest.</p> <p>4. Resulting Teust — Action Will Not Lie Nor, Wlieitr — Practice—Demurrer, Sustained, When. Where a court of equity can say that the lind-ings of fact made by the secretary of the interior in a contest case are reasonably supported by the evidence introduced by the opposing parties on the hearing of such contest, ana that the facts found support his conclusions of law, it will decline to entertain a bill by the losing party to declare a resulting trust, when such bill discloses the above state of facts, because it fails to state a cause of action, and a demurrer thereto on that ground should be sustained.</p> <p>{Syllabus by the Court.)</p>

Burford, District Judge. STATEMENT OF THE CASE. It appears from the record that H. C. St. John owned a tract of land consisting of about twenty-seven acres near Oklahoma City, upon which he resided with his two minor children at the time of his death, and that St. John at the time of his death left no surviving wife. On the dáy of his death the two small children were removed to a boarding house in Oklahoma City.

<p> Appeal from the District Court of Logan County; before Frank Dale, District Judge. </p>

Error from the District Court of Pottawatomie County, before B. F. Burwell, District Juclge. STATEMENT OF THE CASE Tlie plaintiff in error was indicted in tbe district court of Pottawatomie county on the 11th day of April, 1898, charged with the murdér of one John Blackwell, in Pottawatomie county, on February 22, 1898.

<p>1. Parol Contract Por Sale of Realty, Invalid. A parol contract for the sale of real estate is invalid and no action will lie for the recovery of damages for breach of' such a contract.</p> <p>2. Memorandum, Receipt Does Not Constitute, When. An ordinary receipt for a portion of the purchase money for real estate will not constitute such a memorandum as will satisfy the statute of frauds,' unless it shows on its face, or by reference to some other instrument, every material part of a valid contract on the sub-iect.</p> <p>3. Common Count, Must Show What. A common count for money paid out and expended at the instance or request of a third person and for his use, in order to withstand a demurrer, must aver sucn facts as will show either an express agreement or an implied obligation to pay the sum claimed, and should aver not only that the money was paid at tSe request of the defendant, but that it was paid for his use and benefit.</p> <p>4. Proof of Payment of Money, When Error to Admit. Where an action is brought for money paid out and expended for the úse of another, it is error to admit proof of items which are purely elements of damage for breach of an invalid contract, and that constitute losses sustained by tbe plaintiff instead of money actually paid out and expended.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Noble County; before Bay-ard T. Hainer, District Judge. STATEMENT OE THE CASE. This is an action of replevin, instituted in the district court of Noble county, on the 4th day of December, 1897, against the defendant, S. A. Akins.

<p> Error from the District Court of Kay County; before Bay ard T. Hainer, District Judge. </p>

<p>I. Mandamus — Lies 'When. Where an applicant files his petition tor license to sell intoxicating' liquors, and certain persons filer their remonstrance against the issuance of such license, and the board dismisses the remonstrance and grants the license, and the remonstrants duly appeal from such order to the district court, such remonstants have such special interest as will enable them to prosecute an action in mandamus to compel the county hoard to revoke a license issued within the time allowed for perfecting such appeal.</p> <p>2. Mandamus — Defendants. The holder of the license is neither a necessary or proper party defendant in such mandamus action.</p> <p>3. Mandamus — Appeal, Effect of. The fact that an appeal has been taken to the district court from the order of the county board granting a liquor license will not prevent a writ of mandamus from • issuing on a proper application directing the board to revoke such license pending appeal.</p> <p>4. County Commissioners — Powers—Acts—Void, When. By the Statutes of this Territory the board of county commissioners is prohibited from convening and transacting business before nine o’clock a. m. of any day, and where such board holds a session before eight o'clock a. m. and transacts business, the proceedings are void as to all such acts in matters where there are adverse parties to be affected thereby, and the board is acting in other than purely a corporate capacity.</p> <p>5. Duty — Delay Constitutes Refusal to Perform, When. Where an imperative duty is imposed upon -a public officer or inferior tribunal, and such officer or tribunal fails for an unreasonable time to perform such duty, such failure will be treated as a refusal to perform the same.</p> <p>6. Remonstrance — Duty of County Commissioners When Filed. Where a reimonstrance is duly filed objecting to the issuance of a liquor license, the board of county commissioners are bound to hear the evidence and determine the issues presented by the petition and remonstrance.</p> <p>7. Remonstrance — Overruled—License Issues, When. Where a remonstrance is overruled and license ordered to issue, and the remonstrants give notice of appeal to the district court, the license should. b€{ withheld for the statutory time for perfecting such appeal, and if appeal is perfected in time, no license can properly issue until the determination of such appeal.</p> <p>8. Mandamus — Proper Remedy, When. If a remonstrance is filed against the issuancé of a liquor license, and the board of county commissioners overrule the remonstrance and grant the license, and an appeal is perfected from such order within the time allowed by statute, any license which has issued should be recalled by the county board and revoked; and if the board falls or reluses to revoke such license pending such appeal, any remonstrator may prosecute his action in mandamus to compel the county board to convene and revoke such license.</p> <p>9. Same. Mandamus is the proper remedy to compel the county • board to revoke a liquor license which has been improperly issued or which) becomes revokable after the issuance.</p> <p>(Syllabus by the Court.)</p>

<p>1. Legislation — Locale-Defined. The word “local,” as a word of constitutional or statutory prohibition, signifies belonging or confined to a particular place, and relates only to a portion of the people of a state or their property. When applied to legislation it signifies such legislation as relates to only a portion of the territory or state, or a part of its people, or to a fraction of the property of its citizens.</p> <p>2. Legislation — Special—Defined. The word “special,” when used in a statute prohibiting special legisltion, relates to and distinguishes one section from others of a general class.</p> <p>3. School Districts — Act Creating — Validity. A legislative act which undertakes to appropriate portions of two school districts, lying in separate counties 'of the Territory, and to include the area thus designated in a single school district, by an act of the statute, apart from and which inlerfers with the general act of the Territory providing a general system of schools for the Territory, under which a general rule is adopted for the organization of all school districts in the Territory, is a “special” act of legislation.</p> <p>4. Same. An Act of the leg'slature declaring that certain sections of land taken from Oklahoma county, together with certain sections of land taken from Logan county, shall together constitute one school district at the town of Waterloo, is “local” and “special” legislation, and inasmuch as a general school system has oeen adopted for the Territory, making a general provision for the creation of school districts by the county superintendents of tne various counties, with the right of appeal on behalf of the parties residing in the several districts thereof, to the board of county commissioners and provid.'ng for the taxation of property for the benefit of the schools of thei several districts, is an interference with the “management of the common schools,” and is prohibited by the act of congress approved July 30, 1886, entitled “An Act to Prohibit the Passage of Local or Special Laws in the Territories of thy United States.”</p> <p>5. Same. An Act of the legislature creating a '‘school district at the station of Waterloo-, Oklahoma,” and that “the first election shall be held at Waterloo,” is prohibited by the said act of congress.</p> <p>(Syllabus by the Court.)</p>

Error from the District Oourt of Pottmoatomie County; before B. F. Burwell, District Judge. STATEMENT OF THE CASE. This was a proceeding in injunction brought in the district court of Pottawatomie county, to restrain the collection of taxes.

<p> Error from the District Court of Garfield County; before Jno. L. McAtee, District Judge. </p>

<p> Original Froeeeding m Mandamus. </p>

'Error from the District Court of Canadian County; before John C. Tarsney, District Judge. STATEMENT OF THE CASE. This suit was begun before a justice of the peace for Canadian county. The bill of particulars charged, that on the 22d day of January, 1894, the defendant carried away and converted to his own use three hundred and fifty bushels of oats, the property of the plaintiff, of the value of $87.50 which was due and unpaid.

Error from the District Court of Oklahoma County; before J. R. Keaton, District Judge. STATEMENT OF THE CASE. This is a suit brought to recover the sum of $5,000.00, the amount of a promissory note dated August 17, 1895, given by the defendant Williamson, to Mrs. M. I. Dowden, payable in a year, and assigned for value, as declared in the petition, on August 19, 1897, to Goodrich. The suit was begun September 23,1896.

<p> Error from the District Court of Kingfisher County, before C. F. Imoin, District Judge. </p>

jError from, the District Court of Payne County • before John E. Burford, District Judge. STATEMENT OF THE CASE. This was an action brought before a justice of the peace by the Chicago Building and Manufacturing company, to recover from Jones the amount of his subscription for the construction of a creamery. Jones applied for a change of venue, and thereupon the case was sent to the probate court, by the- justice of the peace.

<p> Original Proceeding in Habeas Corpus. </p> <p>STATEMENT OF THE CASE.</p> <p>This is an original proceeding in this court for a writ of habeas corpus. It appears from the petition, the return and the evidence submitted on behalf of the petitioners and the respondent that on November 19, 1900, Charles Loran Moore brought a certain action in the district court of Garfield county, against C. G. Epley, R. I. Boy-ington and J. H. Riggs, composing the board of county conimissioners of Garfield county, Oklahoma Territory, and Frank T. Hatter, clerk of said county, and ex-officio, the board of canvassers of election returns of said county, to compel them by mandamus to reconvene and to correctly canvass the returns of the votes of certain precincts of said county for the office of probate judge, on the ground that said canvassing board had wrongfully refused or neglected to canvass the returns, as shown by the official returns of the judges of election in certain precincts in said county. On the 20th of November, 1900, said cause came on for. hearing after due notice had been given to the respondents, and the court, after hearing the evidence and the argument of counsel on behalf of the relator and the respondent, granted a peremptory writ of mandamus, commanding the board of canvassers to reconvene on December 18, 1900, and to correctly canvass the votes as shown by the official returns of the election judges in precincts numbered five and twenty-nine, in said Garfield county, and make due return of said writ on December 22, 1900. On November 20, a motion for a new trial was filed by the respondents which was overruled by the court and exception reserved. The respondents thereupon prayed an appeal to the supreme court from the judgment of the district court granting the peremptory writ of mandamus, and also asked the court that supersedeas or stay be granted on the filing of a proper bond pending an appeal to the supreme court. The court granted the appeal but refused to stay the judgment.</p> <p>On December 17, 1900, the respondents filed their petition in error in this court. On December 17, 1900, an application was made by the respondents to the Don. Clinton F. Irwin, associate justice of the supreme court, to stay the judgment of the district court in said action pending the appeal in the supreme court, which order (omitting title) is as follows:</p> <p>“Now upon the application in the above entitled action for the stay of the order and judgment of the district court of Garfield county made in said action ordering and directing said plaintiffs in error-to reconvene as a canvassing board, and it appearing that said plaintiffs in error are entitled to said stay, it is hereby</p> <p>“Ordered that the order made in said action by the district court of Garfield county in said action, ordering and directing C. G. Epley, R. I. Boyington and J. H. Riggs, composing the board of county commissioners of Garfield county, Territory of Oklahoma, and Frank T. Hatter, county clerk of said county, ex-officio the board of canvassers of election returns of said county, to reconvene on the 18th day of December, 1900, and recanvass the votes for James K. Beauchamp and Charles Loran Moore for probate judge, be and the same is hereby stayed, and said defendant in error, Charles Loran Moore, to acquire no rights by reason of said order pending the appeal in the supreme court, upon plaintiffs in error executing a good and sufficient bond in the sum of two hundred ($200.00) dollars, payable to defendant in error: Conditioned for the payment of all costs and damages which defendant in error may sustain. Said bond to be approved by the clerk of the supreme court, and this order to be in full force and effect upon approval of said bond.</p> <p>“Done in chambers this 17th day of December, 1900.</p> <p>“CLINTON F. InwiN,</p> <p>“Associate Justice of the Supreme Court.</p> <p>“(seal.)</p> <p>“Attest: Benj. F. HegleR, Clk. Sup. Ct.”</p> <p>On the same day the clerk of the supreme court approved and filed the bond as directed in said order. Subsequently, upon application of the appellant, Charles Loran Moore, the bond was fixed in this court in the sum of fifteen hundred dollars, which was duly executed by the appellants, petitioners in this proceeding, and was approved and filed by the clerk of this court.</p> <p>On December 26, 19’00, an information was duly filed in the district court by Charles Loran Moore, plaintiff in the mandamus proceedings, praying that a citation issue against the defendants, petitioners here, to show cause why they should not be punished for contempt, on the ground that the said defendants had failed, neglected and refused to comply with a peremptory writ of mandamus issued in said cause. On the same day the district court issued a citation ordering each of said defendants to appear before the said district court and show cause why they failed to obey the peremptory writ of mandamus heretofore issued. On December 28,1900, the defendants in said action, petitioners here, appeared before the district court in obedience to the citation and filed the following answer, (omitting title):</p> <p>‘‘Comes now .0. Gr. Epley, R. I. Boyington, J. H. Riggs and Frank T. Hatter, and show to the court that the order of the court which is attached and made a part of the citation herein against them to show cause why they should not be adjudged guilty of contempt, in not performing the acts commanded in said order, wms served on them, but that prior to the date that they were ordered to perform the acts mentioned in said order a petition in error was filed by them, as plaintiffs in error in the supreme court of the Territory of Oklahoma, for the purpose of having said proceedings and judgment wherein said order was made, reviewed in the said supreme court, and that prior to the date at which they were commanded to perform the acts in said order, the judgment and order was stayed by Clifton F. Irwin, associate justice of the supreme court, a certified copy of which order is filed in the office of the district court, in said action, reference being had thereto, which certified copy, together with the certificate of the clerk of the supreme,, court in relation thereto, is made a part of this answer; that the only reason for failing to perform the commands of this court entered in said action and included in said order was on account of the fact that the same was stayed by the associate justice of the supreme court of Oklahoma Territory. And the further reason that they were prosecuting said action in good faith desiring to have said judgment and order reviewed by the supreme court of this Territory, and was not on account of any disrespect for this court or its orders, and was not with any intentions on tbeir part to disregard any orders made by this court.</p> <p>“Wherefore they ask to be discharged.</p> <p>“O. G. Eplex,</p> <p>“R. I. BoxiNgton,</p> <p>“J. H. Riggs,</p> <p>“FeaNK T. Hatter.”</p> <p>Said answer -was duly verified. On the same day to-wit, December 28, 1900, the plaintiff, Charles Loran Moore, filed a demurrer to the answer of the defendants, on the following grounds: First- — Because the facts stated there in do not constitute any defense; and, second —Because the order for stay of execution on which said defendants rely was granted without power or authority, and is null and void. On the same day the defendants and each of them, filed their written demand for a change of judge, which was refused by the court, to which the defendants at the time excepted. The court on the same day sustained the demurrer to the said answer. The court then proceeded to hear said cause. It appears from the testimony of the board of canvassers, relators in the ■mandamus proceeding and petitioner here, that they were called as witnesses on behalf of the plaintiff in the contempt proceeding and testified that on Tuesday, Decern-' ber 18, 1900, they appeared at Enid, for the purpose of reassembling and to recanvass the returns in obedience to the peremptory writ of mandamus issued by the district' court, but, at that time, they were served with an order issued by the Hon. Clinton F. Irwin, associate justice of the supreme court, staying all proceedings in the court below, pending the determination of the appeal in tüe supreme court, and for that reason the board of canvassers took no further action in the matter. The dis-trie't court held that the order of Associate Justice Irwin staying the judgment of the district court in said action was without jurisdiction and, therefore,' void, and that the said district court still had full jurisdiction to enforce its judgment and mandate|. The court adjudged the defendants guilty of contempt and fined each of them four hundred dollars and ordered them committed to the common jail of Garfield county, until said order of the court was obeyed and the costs paid. The petitioners now make application to this court to be discharged by habeas corpus.</p>

Error from the District Court of Pa/yne County; before John E. Burford, District Judge. STATEMENT OP THE CASE. This is an action commenced in the district court of Payne county, by Maggie Bell, against O. W. Annis, to recover damages for property sold by Mm, as sheriff, under an execution, issued out of the probate court of Payne county, in the case of the Territory of Oklahoma v. H. 0. Bell, on the charge of bastardy.

Error from the District Court of Kay County; before Bay-ard T. Hainer, District Judge. STATEMENT OE THE CASE.

<p>Contempt — Punishment. A judgment or order of the court that the defendant by committed to the county ja.il until he obeys said order, and until the further order of the court or judge thereof, upon a conviction for contempt in refusing to obey an order of the court requiring him to pay certain permanent alimony, is void for tha reason that the duration of sentence is indefinite and uncertain.</p> <p>(Syllabus by the Court.)</p>

Error from the Probate Court of Oklahoma County; before William P. Harper, Probate Judge. STATEMENT OF THE CASE. This was an action in the probate court of Oklahoma county, brought by the plaintiff in error.

Error from, the Probate Court of Noble uounty; before Ethan Allen, Probate Judge. STATEMENT OP THE CASE.

<p> Error from the Prohate Court of Blaine Countyj before W. E. Bowdre, Prohate Judge, </p> <p>STATEMENT OF THE CASE.</p> <p>This action was commenced in the probate court oi Blaine county by the defendant in error against the plaintiff in error, upon the first of a series of promissory notes given for a threshing machine and engine.</p> <p>The defendant answered that the machine was purchased under a written contract, the material parts of which are as follows; .</p> <p>“This machinery is purchased and soiu subject to the following express warranty and agreement, and none other, viz.: That said machinery is well made, of good materials, and, with proper management, capable of doing, well the work for which the machines respectively are made and sold.” * * *</p> <p>The defendant averred that the machinery in all parts failed to do well the work for which it was made and sold, and that, in pursuance of the terms of the contract of purchase, the defendant upon the instruction of the plaintiff, and according to the terms of the said contract, duly notified the plaintiff of such failure of the machine, and duly complied with all the provisions and directions of the plaintiff and plaintiff’s agents and experts, and rendered all necessary and possible and friendly assistance to the plaintiff in its attempt to adjust and correct the machine, and make it do well the work for which it was made and sold.</p> <p>That the machine could not be made by the plaintiff or defendant, separately or together, to do well the work for which it was made and sold, and that that fact was ascertained and admitted by the plaintiff, and the defendant returned the machinery to the plaintiff at his, the plaintiff’s, own request, and that the same was accepted, and that the plaintiff promised to send another machine to the defendant, but had refused and neglected to do so, and that the consideration for the notes had wholly failed.</p> <p>Upon trial, the execution of the note having been admitted, evidence was produced by Baker, to the effect that -the machine had received good management while it was in the possession of the defendant, that Baker had himself had twenty years experience in handling threshing machines, and was competent and -was assisted in endeavoring to make the machine run properly by experienced machine men and by several valuable experts, including Andrews, the agent of the plaintiff company, who had made the sale of the thresher and engine to'the defendant. Abundant testimony was produced showing that the machine was not capable of doing well the work for which it was made and sold; that the traction engine, a part of the consideration, “would not pull the separator on ordinary roads,” that on the first day on which the separator and thresher were used, it would not run, and that it would not do threshing; that the straw stacker would not work; that the machine would choke up, the straw carrier would not carry away the straw, the cylinder was out of plumb, belting not properly adjusted; that the machine would not separate the grain from the straw, and that no part of it ran properly or did its work well; that four hours were spent threshing fifty bushels of wheat; that three thousand, three hundred pounds of coal and a day and a half were spent in threshing 55Ü bushels of wheat; and that more than twice that amount of wheat should have been threshed in a single day, with the expenditure of a thousand pounds of coal. Much evidence was adduced to show that the machine was worthless, and cost more to run it, and was so- defective in its operation and inefficient in its work, that while it was earning $900 it cost $1,300 for hands and boarding, besides the freight and other expenses. Testimony was adduced to show that the defendant had notified the company by registered letter within the time named in the contract, and had also notified the local agent of the company, Fisher, at the nearest station where the company had an office. And that within five or six days after sending his first letter of notice to the company at Battle Creek, Michigan, their agent, Andrews, who had made the sale of the machine and engine to the defendant, came and took charge of the machine to repair it; that Andrews afterwards came back again, bringing with him an expert workman named Bradley, and together with him, worked at and experimented with the machine for some days, and finally Andrews said to the defendant: “Mr. Baker, this is our machine, and we cannot make it work, and it is our machine, and I will go to Hennessey and telegraph for a new machine right away,” and that he told Baker to come to Hennes-sey two days afterwards and get a new machine, and that Baker did go to Hennessey at the time, but found no machine there for him.</p> <p>Testimony was given to show that several supposed expert workmen in the employment of the company at different times for several weeks continued to work with the machine until it was thus finally taken off the defendant’s hands by the declaration of the man Andrews, from whom he had purchased it.</p> <p>Repeated notices were given to the company. The record is full of testimony that the machine furnished to the defendant was worthless. There is no evidence at all to contravene the proofs of the defendant’s capacity to manage a threshing machine and outfit. Upon the trial the probate judge directed the jury to bring in a verdict for the plaintiff. The jury disregarded the direction of the judge, and returned a verdict for the defendant, which, upon the motion of the plaintiff, the probate judge set aside, entering up judgment against the defendant for the amount of the note.</p>

<p>1. Private Property — Condemnation of — Notice. When private property is proposed to be taken for public use in proceedings in condemnation therefor, under the right of eminent domain, the owner is entitled to notice, in order that he may be present at the proceed.ngS and pr.otect his rights, and such notice is essential to the regularity of the proceedings in which, his property is taken for public use.</p> <p>2. Notice — Must Be Provided Por. When the legislature prescribes a mode by which private property may be taken for a public use, notice of the proceedings for condemnation must be provided for to be given to the party whose property is taken, or injuriously affected, in order that he may have an opportunity to be present and protect his rights, and in order to ascertain the proper measure of compensation to which he is entitled. If such notice is not provided for, the law is void.</p> <p>(Syllabus by the Court.)</p>

<p>Mandatory Injunction, Will Not Lib, When — Public Lana, (Jontest in Land Department. An action of mandatory injunction cannot be maintained by one to dispossess an adverse claimant for a tract of land on which both are residing, and for which eiach is contesting in the land department, on the ground of prior settlement, when the plaintiff has at the time 80 acres of such, land in hs uninterrupted possession. Under such circumstances, he must wait until the case is finally closed in the land department, and even then, if successful, he must bring an action at law, where the defendant can have a trial by jury.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Payne County; before John H. Burford, District Judge. </p> <p>STATEMENT of the case.</p> <p>This action was begun by the Chicago Building and Manufacturing Company, as plaintiff, before a justice of the peace, in Payne county. The bill of particulars averred that the defendant, with ñfty-one others, entered into a contract and agreement in writing, whereby the defendant and others agreed with the plaintiff for the construction and equipment of a butter and cheese factory at Stillwater, and in consideration thereof, and as his individual portion of the contract price of said factory, the defendant promised to pay to the plaintiff 1100.00; that the plaintiff erected the factory to comply with its agreement, but that the defendant had refused to make the payment contracted for by him.</p> <p>The agreement to which the defendant subscribed, provided that:</p> <p>“It is hereby understood that the first party will not be responsible for any pledges, promises or interpretations made by its agents or representatives that do not appear in this contract, as a final part thereof, either in print or in writing. It is agreed that one or more of these forms may be placed with representatives of both parties hereto, to be circulated for the purpose of obtaining subscriptions hereto, and these representatives shall be the agents for that special purpose only.” * *</p> <p>The defendant set up in his answer that at the time he affixed Ms name to the subscription list, there were only six subscribers thereto; that at that time the plaintiff was not bound to perform any act under the contract, and had not become so bound; that within a few days after the signing of the contract, he withdrew his subscription thereto and so notified the agent of the plaintiff and defendant, who had the said subscription list in charge, and that it was thereupon expressly understood, that the defendant’s name should be withdrawn and can-celled from the subscription list, and the defendant relieved of liability. A stipulation of facts, upon which the case was tried, had admitted these material aver-ments. The cause was tried upon appeal in the district court, which found for the defendant.</p>

<p>1. Damages — Replevin—Rtile for Determining. In. actions of replevin, where the property has been seized under the writ and delivered to the plaintiff, and it is found on the trial that the defendant was the owner and entitled to thei possession and return is awarded, the rule far determining value as a element of damages, is prescribed by section 2650, Statutes of Oklahoma, 1893.</p> <p>2. Same. In estimating damages, the value of property to the owner thereof deprived af its possession, is the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his, ' right to damages is founded as -would suffice, with reasonable diligence, for him to malte such a purchase.</p> <p>3. Same. In so far as the law as stated in the case of Wade v. Gould, 8 Okla., 690, is in conflict herewith, 'the' same is modified to conform to the law as herein stated.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Blaine Countyj before John L. McAtee, District Judge. </p>

<p>1. Change of Venue — Justice’s Court. A change of venue will not lie from a justice of the peace to a probate court or from a probate court to a justice of the peace in a civil action, even though the amount involved is within the jurisdiction of a justice of the peace.</p> <p>2. Jurisdiction — Special Appearance Not Warned tv a General Appearance, When. Where a court has no jurisdiction over the particular cause or of the person of the defendant, and the defendant appears specially for the purpose of calling the attention of the court to such irregularities, and the court thereupon overrules his motion to such jurisdiction, he may save his exception, file his answer and proceed to trial without waiving such error; and he may taire advantage of such error on appeal to a higher court.</p> <p>(Syllabus by the Court.)</p>

<p>1. Change of Venue — Justice's Court. A. change, of venue win not lie from a justice of the peace to a probate court or from a -probate court to a justice of the peace in .a civil action, even though the amount involved is within the jurisdiction of a justice of the peace.</p> <p>2. Jurisdiction — Special Appearance,Not Waived By a General. Appearance, When' Where a court has no jurisdiction over the part cuiar cause or of the person of the defendant, and the defendant appears specially for the purpose of calling the attention of the court to such .irregularities, and the court thereupon overruled his motion to such jurisdiction, he may save his exception, lile his answer and proceed to trial without waiving such error; and he may tahei advantage of such error on appeal to a higher court.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. STATEMENT OF THE CASE. This was an action brought by the plaintiff, George W. Conover, against the defendants Martin and Light to recover the sum of $595.00 for rent which the plaintiff claimed was due for the use of a certain pasture- located in the Kiowa and Comanche reservations.

<p> Error from the District Court of Payne County; before John jE. Bur ford, District Judge. </p>

Error from the District Court of Kay County; before Bay-ard T. Eaincr, District Judge. STATEMENT OF THE CASE.