Volume 11 — Oklahoma Reports

Error from the District Court of Logan County; before Jno. n. Burford, Trial Judge. STATEMENT OE FACT. Plaintiff in error brought this action in the court below to recover of defendants the value of a' certain lot of boots and shoes. According to the petition, in the year 1898, and prior thereto, one M. A. Clark was engaged in the grocery business in Guthrie, O. T., the business being managed by her husband, M. W. Clark.

<p>1. JUDGMENT — Not Disturbed, When — Instructions. Where a cause has been, tried to a jury, and the case-made and the record does not contain the instructions, the appellate court will presume that the trial court gave to the jury the law as applicable to the issues and evidence submitted, and if there is any state of facts reasonably deducible from the evidence introduced, which under any theory of law applicable to the issues and ^ facts will authorize the verdict and judgment, the judgment will not be disturbed.</p> <p>2. FRAUDULENT SALE — Who may Claim Title to Property. Where an insolvent and failing merchant makes a sale of his property for the purpose of hindering or delaying his creditors, no one but a purchaser for a valuable consideration, passed before notice of the fraud, can, as against attaching creditors, claim title to the property which has been fraudulently, disposed of.</p> <p>3. FRAUDULENT SALE — Innocent Purchaser. Where a party purchases from an insolvent and failing merchant a stock of goods, and the merchant makes such sale with intent to hinder or delay his creditors, and the punchaser thereof has no actual or construe-» tive notice of the fraud at the time of the purchase, but subsequently and before the payment of all the consideration of his purchase, lias notice thereof, he can only be protected to the extent of the money actually paid or the security or property actually . appropriated by way of payment before notice. If notice of the fraud is after the payment of part of the purchase money, the purchaser is only entitled to indemnity or reimbursement for the money paid or the security or property actually appropriated by the seller as payment. He is not to be regarded as a purchaser for a valuable consideration as to the purchase money unpaid.</p> <p>4. REPLEVIN, ACTION IN. The statutory action of replevin is sufficiently flexible to authorize a settlement of all the equities in the property in controversy as between the parties to the action.</p> <p>5. FRAUDULENT SALE — Innocent Purchaser — Recovery of Purchase Money. Where a failing merchant has sold his property for the purpose of hindering or delaying his creditors, and the purchaser receives notice of such fraud when only a portion of the purchase money has been paid, and before further payment, the creditors of the seller seize the property on attachment, and the purchaser re-plevins the property from the officer, who gives bond and retains possession, the judgment should be for a return of the property to the purchaser, or that he recover the amount that he paid on the purchase price prior to any notice of the fraud of the vendor. He is not entitled to the entire value unless it is less than the amount he actually paid before notice.</p> <p>C. FORMER OPINION VACATEO. The former opinion in this cause, reported in 8 Okla. 174, is set aside and vacated.</p> <p>(Syllabus by' the Court.)</p>

<p>Error from the District Court of Kingfisher County; before Clinton F. Irwin, Trial Judge.</p> <p>STATEMENT OE EACTS.</p> <p>This was a proceeding in injunction in which the petition was filed in the district court of Kingfisher county, and 'in which, in the absence of the presiding judge from the district, a restraining order was procured from the probate .judge of the county, restraining the defendant in error from ■selling the lands described in the petition under an execution then in his hands.</p> <p>Upon a motion of the defendant in error before the ■district court, to dissolve the temporary restraining order, •and upon a hearing, the motion was sustained, excepted to, and the case brought here for review thereupon.</p> <p>The petition charged that the defendant was threatening to sell the land described therein, under an execution purporting to have been issued upon a judgment rendered in an ■action in the district court, wherein Swofford Brothers Dry Goods company was plaintiff, and the plaintiff in error, the McLain -Land and Investment company, was defendant, and that the sheriff had advertised the lands for sale by virtue of an execution then in his hands, issued in the case of Swof-ford Brothers Dry Goods, (omitting the word'company,) v. McLain Land and Investment Company. The petition alleged that there never was any such cause pending in the district court of Kingfisher county as that in which the execution was pretended to be issued, to-wit: Swofford Brothers Dry Goods company against the McLain Land and Investment company, nor was any judgment ever rendered against the plaintiff in any such cause, and that there never was pending in the district court any action wherein “The-Swofford Brothers Dry Goods” was plaintiff and the McLain-Land and Investment company was defendant, nor was any judgment ever rendered in ay such ease agaist the plaintiff. The plaintiff further said that no judgment was ever rendered against the plaintiff, which was authorized by the pleadings-in any cause ever pending between said plaintiff and said Swofford Brothers Dry Goods company, and that if any such appears of record the same is wholly and absolutely void, for-want of jurisdiction to enter the said judgment in the court attempting or pretending to enter the same.</p> <p>The motion to dissolve the restraining order, upon-which the hearing was had below, asked the court to dissolve-the injunction in the cause, for the reason that the “same was improvidently and wrongfully granted,” and that “the-said plaintiff is not entitled to the relief prayed for in its-petition,” and that it “does not state facts sufficient in its-petition to constitute a cause of action against the defendant.”</p> <p>Upon the issues thus framed, the hearing was had before-the court, and the court rendered judgment that “being fully advised in the premises, finds that said motion ought to-be sustained, and said injunction dissolved.”</p>

<p>ATTACHMENT — Non-Resident Defendant. The plaintiff in a civil action for damages arising from tort, where the cause of action arose wholly in the limits of this territory, is entitled to an attachment when the defendant is a non-resident of the territory.</p> <p>(Syllabus by the Court.)</p>

<p>ATTACHMENT — Right to. The plaintiff in a civil action for the recovery of money may have an attachment upon the grounds set forth in the statute, and the fact that some specific relief is necessary, or that the action is one that formerly would have been-a suit in equity, will not defeat the right to an attachment, if the action is one in which, in addition to such specific relief, a money judgment may also he rendered.</p> <p>(Syllabus by the Court.)</p>

<p>1. ERRORS — Not Reviewed, When. Errors oecuring on the trial of a cause will not be reviewed in this court unless presented to the trial court on motion for new trial.</p> <p>2. EXCEPTIONS — How Presented to Trial Court. The eighth statutory cause for a new trial, viz: “Error of law oecuring at the trial and excepted to by the party making the application,” will, when embraced in the motion for new trial, present to trial court any: objection or exception properly made and saved during the progress of the trial.</p> <p>3. NEW TRIAL — Grounds for — How Presented to Supreme Court. An assignment of error in the appellate court, to the effect “that the court erred in overruling the motion for new trial” will present for the consideration of the supreme court every ground for new trial properly) embraced in said motion.</p> <p>4. INSTRUCTIONS — Reviewed When. This court will not review the instructions given on the trial of a cause, unless the instruction is excepted to at the trial, the exception made to appear of record, and the objection pointed out to the trial court on motion for new trial.</p> <p>5. VERDICT — Disturbed, When. This court will not disturb the verdict of a jury based upon conflicting and contradictory evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. ATTACHMENT — Suit on Forthcoming Bond — Exemption of Property, Litigated When. A judgment sustaining an attachment is: conclusive until reversed or vacated, and a defendant in an attachment suit cannot, when sued on a forthcoming bond, under which the property was returned to him, avail himself of the fact that the property attached was, at the time it was seized under the order of attachment, exemptjf the question was raised in the attachment suit, the judgment adverse to the attachment debtor is res juMcato, in a suit on the bond, and, if raised for the first time in an action, on the forthcoming bond, it comes too late.</p> <p>2. ADMISSION IN PLEADINGS — Binding, When. Where a party to an action makes solemn admission against his interest in a pleading, in the absence of mistakes on his part or on the part of his counsel who inserted them in such pleading, a court, in passing upon the sufficiency of a subsequent amended pleading filed by him, should take such admission into consideration and treat them as admitted facts in the case.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL WILL NOT LIE, WHEN. An appeal will not be entertained from a decree entered in a district court or other inferior court, in exact accordance with the mandate of this court, upon a prior - appeal. If such an appeal is taken this court will examine the decree entered and if it conforms to the mandate, dismiss the appeal with costs upon application of the adverse party.</p> <p>(Syllabus byf the Court.)</p>

<p>CITY COUNCIL — Employment of Attorney by — CItyi Warrants, Valid; When. The common council of a city of the first-class has the power, by ordinance, or resolution passed in open meeting by such body, held in the regular way, to employ an attorney to assist the city attorney in^ £.ny legal matters in which the city is-interested, and city warrants, regularly issued and delivered for such services, are legal and binding against such city.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the Probate Gourt of Ganadim County; before W. PL. Griggsby, Probate Judge.</p>

<p>¿HOMESTEAD ENTRY — Valld, When — Demurrer, Properly Sustained, When.* The undisputed tacts in this case show that Patterson entered Oklahoma about the 25th of February, 1889, and- remained therein until March 28, 1889; that during a portion of that period he was encamped in the vicinity of the land in controversy, and while there formed the intention of taking and entering a tract of land in that immediate neighborhood; that he was in said territory without license or authority to either enter or remain there, and that he left said territory on March 28, 1889, and remained outside of the borders until twelve o’clock noon, April 22, 1889. Held, that under the provisions of the act of congress of March 2, 1889, which among other things 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,” the plaintiff was disqualified from making a valid homestead ■entry and acquiring any title to said land, and that the court, therefore, properly sustained the demurrer to the petition on the ■ground that the plaintiff’s petition did not state facts sufficient to ■constitute a cause of action.</p> <p>(Syllabus by the Court.)</p>

JSrror from the District Qourt of Logan County; before Jno. U. Burford, Trial Judge. STATEMENT OE PACTS.

<p> Error from tlie District Court of Logan County; before Bayard' T. Rainer, Trial Judge. </p> <p>STATEMENT OE EACTS.</p> <p>The petition filed in this case on the 30th day of January,. 1900, in the district court of Logan county, stated that the plaintiff, the defendant in error here, was the owner and in possession of lots 19 and SO, in block 37, in the city of Guthrie, in that county, and that .the defendant was the owner and in possession of lot 21, in the same block, lying on the south side-of and adjoining lot 20; that lot 21 is vacant except that it has-some trees and vines and flowers npon it, and is at times used as a vegetable garden; that the lots of the plaintiff are occupied by his residence, but that on the 26th day of January, ¡1900, the defendant, with laborers, began to build on the south line of plaintiff’s lot No. 20 a high and tight board fence, and would, unless restrained by the court, build a board fence of from eight to fourteen feet in height, along the whole of the south line of lot 20.</p> <p>The plaintiff averred that no benefit could accrue to the defendant by the erection of such a fence; that it would cut off from the plaintiff’s house and yard, the natural circulation of air and access of light, and would injure and kill his grass vines and flowers, and that by obstructing the light and air, the heat within the plaintiff’s yard and house would be increased, making them less habitable and comfortable, and thus sickness would be increased and recovery endangered in this climate, and irreparable injury caused to the plaintiff, and that the act was inspired by malicious motives, and with intent to injure the plaintiff.</p> <p>The matter having been presented to Chief Justice Bur-ford, the presiding judge at his chambers in the city of Guthrie, a restraining order was granted on the 30th day of January to the effect that: “The defendant and her employes should abstain from any further construction of said board fence between or on the line of said lots 20 and 21 until further order' of the court.”</p> <p>On the 9th day of February thereafter, the defendant filed her motion to dissolve the injunction, and on the 16th day of February, the said motion was heard in open court, and overruled.</p> <p>Thereafter and on the 10th day of July, a motion was filed in the cause by the plaintiff, setting up the terms of the temporary injunction, and alleging that afterwards, and on the morning of July 4-, 1900, the defendant in violation of the letter, spirit and intent of the order, began, before five o’clock a. m., with a force of ten or twelve workmen and during'that day constructed upon the line between said lots 20 and 21 a .tight, high board fence of the height of fourteen feet and of the length of sixty feet; that said fence has a board lean-to roof and rough board sides, apparently making a shed structure, without foundation or floor, and that the necessary effect, and the effect intended by the defendant, was to injure the property of the plaintiff and his use and enjoyment thereof.</p> <p>The plaintiff moved for an order of attachment and citation against the defendant, for the imposition of a fine, and that she be required to immediately remove the said fence and leave it as it was at the time the temporary injunction issued in the ease, and that in default thereof, she should be committed to custody until she fully complied with the requirements, or be otherwise legally discharged.</p> <p>Thereafter, and on the 10th day of July, 1900, the presiding judge at his chambers in the city of Guthrie, upon a hearing upon the said application, ordered that the citation issue, and be made returnable, before the judge of the district court of Logan county, at his chambers in the city of Guthrie, on the 14th day of July, 1900, and then and there show cause why she should not be punished for a contempt of court, and to do whatsoever may be commanded of her.”</p> <p>Thereafter, and on the 14th day of July, the defendant in person appeared and moved the court to quash the citation for this defendant, “because tbe said judge has no authority or jurisdiction to hear or determine said matter or 'to adjudge the defendant in contempt of court,” and on the same day filed an affidavit in the cause, demanding a change of judge, alleging that the presiding judge of the district was prejudiced against her, and that she could not have a fair trial before him.</p> <p>Upon the same day she filed her answer to the motion, averring that she had at no time done or permitted any act to be done, in violation of the orders of the court, granting said injunction, and denying the allegations of the petition, and averred that she did build a structure on the line between lots ■20 and 21; it was not intendedas a fence, but was “a building to subserve a useful purpose in the use and enjoyment of her own property. And that it was not built in violation of the orders of the court made in the injunction order.”</p> <p>Thereupon, Associate Justice Hainer, of the Fourth judicial district, was assigned to hear all matters or causes pending in the court of the First judicial district, in .the absence of the presiding judge, and this case was heard upon the application of the plaintiff and the citation for alleged contempt, and the defendant having, on the 14th day of July, 1900, filed a written objection to the jurisdiction of the judge at chambers to hear and determine the matter, and the motion then being argued, the judge overruled said motion and objection to his jurisdiction as a judge in chambers, to hear and determine said matter. Thereupon the defendant having demanded the right of trial by jury, this application was also overruled, and the matter having then been presented upon the evidence and arguments of council, the court further found that the defendant had been guilty of a violation of the temporary injunction in force in the case, whereupon she was ordered to pay a fine of one dollar, together with the costs, and to remove the structure upon the party line between the lots in question within three days; and in default thereof, to be committed to close custody until the removal is made.</p> <p>The order appealed from was not the injunction, but was from the order of the judge by which the appellant was found to be in contempt for disobedience of the injunctional order of the court, by which she was fined one dollar and costs and “committed to close custody until the removal is made.”</p>

Error from the District Court of Oklahoma County; before Jno. H. Burford, Trial -Judge. STATEMENT OE FACTS . In this case, brought before a justice of the peace, the bill of particulars averred an indebtedness on account of work and labor performed.

Error from the Prolate Court of Canadian County; before W. H. Grigsby, Probate Judge. STATEMENT OP PACTS. This was an action commenced in the probate conrt of Canadian county, by the defendant in error, against the plaintiff in error, as a garnishee.

<p>Error from the District Court of Noble County; before B. T. Hainer, Trial Judge.</p>

<p> Appeal from the District Court of Kingfisher Countyj before Clinton F. Irwin, Trial Judge. </p>

<p>JUDGMENT — Not Reviewed, When, Under'rule six of this court, where the plaintiff in error has failed to file any brief, and the judgment of the district court appears to be regular, thi’s court will not search the record for errors, but will affirm the judgment,</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma County; before B. F. Bunvell, Trial Judge. STATEMENT OF FACTS. On tbe 7th day of February, 1898, Pettyjohn executed an assignment for the benefit of creditors, and thereafter undertook to effect a settlement with them, and for that purpose endeavored to secure a loan from various persons, but failed to do so.

<p>COUNTY COMMISSIONERS — Complaints as to Tax and Assessment Rolls. Our statute having vested the authority in the hoards of county commissioners of the various counties of the territory to hear complaints and to correct either upon the assessment rolls or upon the tax rolls of the county any double or erroneous assessment of property for taxation for any particular year, the remedy must be sought, in the first instance, 'before the tribunal, and the party aggrieved cannot invoke the powers and jurisdiction of a court of equity! when he has failed or neglected to present his cause of complaint to such tribunal created by the statute and authorized to hear the same and grant appropriate relief.</p> <p>(Syilabus by the Court.)</p>

<p>1. SEDUCTION — Character'of Prosecutrix. Under the statutes of Oklahoma the previous chaste character of the prosecutrix in a prosecution for seduction, is a material element of the offense, and must be alleged and proven by the territory. The usual presumption of chastity in favor of a female does not prevail in a charge for seduction under promise of marriage.</p> <p>2. SAME — Corroborative Proof. “Upon a trial for, having under promise of marriage, seduced and had illicit connection -with an unmarried female of previous chaste character, the defendant cannot be convicted upon the testimony of the person injured, unless she is corroborated by other evidence tending to connect the defendant "with the commission of the offense.” (Stat. 1893, Sec. B211.) Under this statute the female is only required to be corroborated as to the promise of marriage, and the illicit intercourse, and not as to being unmarried or of previous chaste character.</p> <p>3. VENUE — How Proved. Venue need not be proven by direct and positive testimony, but may be shown by such facts and circumstances as will support a reasonable and rational inference as to where the alleged act was committed.</p> <p>4. JUDICIAL NOTICE — Of What Taken. The courts will take judicial notice of the boundaries of the counties and the territory, and of the geographical location of iciti'es and towns within its jurisdiction, and the court judicially knows that a place about eight miles southwest of Lexington, is in Cleveland county, Oklahoma.</p> <p>5. VERDICT — Not Disturbed, When. This court will not disturb the verdict of a jury upon a controverted question of fact, where there is ample testimony both for and against the fact at issue.</p> <p>6. SEDUCTION — Competent Evidence. The actions, conduct, promises, attentions and letters of the accused to and towards the prose-cutrix after the date of the alleged seduction, are competent to be shown in evidence m actions for seduction, for the purpose of corroborating the testimony of the prosecutrix as to the promise of marriage.</p> <p>7. SAME — Competent Evidence. It is not error to permit the father of the prosecutrix, in a prosecution for seduction, to testify that the prisoner asked him for the prosecutrix at a time subsequent to the alleged illicit intercourse. Such evidence is competent for the purpose of corroborating the female as to the previous promise of marriage.</p> <p>8. SAME — Corroborative Evidence. The female in a prosecution for seduction is not required to be corroborated by direct and positive proof of facts independent of her testimony, but only as to such facts and circumstanoes as usually form the commitants of the main fact sought to be established, which facts should be sufficiently strong within themselves, and pertinent in their bearing on the case, to satisfy the jury of the truthfulness of the prosecutrix in her evidence on the principal facts.</p> <p>9. CUMULATIVE EVIDENCE — Not Ground for New Trial. It is not reversible error to overrule a motion for new trial based upon newly discovered evidence, where it appears that the new evidence sought to be used is cumulative.-</p> <p>10. ADDITIONAL EVIDENCE — When Introduced. It is within the discretion of the trial court to re-open a cause after the argument has commenced, and permit the prosecution to introduce additional evidence, and unless there has been a clear abuse of such discretion to the manifest prejudice of the defendant, the appellate court will not interfere.</p> <p>(Syllabus by the Court.)</p>

<p>JUDGMENT — Not Disturbed When. In a criminal cause where the prisoner appeals from a judgment of conviction and no briefs are filed, or argument presented, this court will make an examination of the indictment, instructions excepted to, and judgment, and if no error is apparent, will affirm the case.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadian County; before C. E. Irwin, Trial Judge. STATEMENT OE FACTS . Tbis was an action under cbap. 66, art. 24 of tbe Statutes of 1893, for tbe recovery of real property, lots 3 and 4 and .south, half of N. W. quarter of section 4, twp. 12, N. of R. '.7 West I. M., in Canadian county, under the homestead laws ■of the United States. The action was tried upon an amended answer and cross petition.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OP PACTS. This was an action brought by Edward R. Champlin and Grace A Staples against the Union Central life insurance company, a corporation, to release and discharge a certain note and real estate mortgage upon a certain tract of land in Logan county, Oklahoma, and to quiet the title thereto.

<p>Appeal from, the District Court of Logan County; before Jno. H. Burford, Trial Judge.</p>

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge. STATEMENT OP PACTS.

<p>1. LOCAL LAWS — Upheld When — Power of Legislature. In case of an organic inhibition against the enactment of a local law, where a general law can be made applicable, the legislature has the power to determine whether or not a general law is applicable, and the courts will not inquire whether such power has been right fully exercised, but will uphold local laws enacted in such cases.</p> <p>2. LEGISLATURE, POWER OF — Stock. The legislature has the power to provide for restraining stock from running at large in one portion of Oklahoma, and permitting it to 'run at large in other portions.</p> <p>3. ART. 2, CHAP. 2, STAT’S. 1893, VALID AS AMENDED. The provisions of article 3,' chapter 2, Statutes 1893, entitled “an act to regulate and restrain the running at large of domestic animals and to provide for fencing against them,” as amended by the act approved March 10, 1899, Session Laws 1899, pp. 58 and 59 are valid and not in conflict -with any constitutional or, organic restrictions.</p> <p>4. STOCK — May Run at Large, When. Stock is only permitted to run at large in the free range portion of the territory in those congressional townships and at such periods as all and the whole of the public school, college, public building and indemnity lands of su.ch township are held under lease as provided by law.</p> <p>5. PETITION FOR INJU NOTION — Must Allege, What. A petition which has for its purpose the obtaining of an injunction to restrain persons from- interfering with stock running at large in the free range portions of the territory, which fails to aver that all the public school, college, public building and indemnity lands are leased by the school land board in the congressional township where it is sought to have such injunction operate, is fatally defective, and it is not error to sustain a demurrer to such petition.</p> <p>6.RESTRAINING ORDER — Dissolved, When. A temporary restraining order which is so- broad in its terms as to prohibit a land owner from driving trespassing stock off his own premises, or from protecting his growing crops against trespassing animals, is unauthorized and should be dissolved on motion.</p> <p>7. FREE RANGE LAW — Trespass, Damages for. The law permitting stock to run at large in the free range territory, does not authorize persons in charge of stock to wilfully drive such stock upon the lands of another, nor to herd or hold stock upon the growing crops or unenclosed lands of another, and where such acts are wilfully done, the persons committing such acts will be liable in damages for any-injury caused thereby.</p> <p>8. FORCE MAY BE USED IN PREVENTING TRESPASS. Owners or occupants of lands under the homestead laws of the United States have the right to protect their lands and crops from the ravages of trespassing animals, and may lawfully1 guard their premises, and may resort to such force as is reasonably necessary to drive off any animals that may come thereon without their consent.</p> <p>9. FREE RANGE LAW — Purpose of. The purpose of the free range law is to permit owners of stock to graze such animals upon the public commons without being liable for damages where such ani’mals drift, stray or go upon the lands of others, without any volition of the persons in charge of such stock, but the law will not protect those who purposely drive or herd their stock upon the lands of others.</p> <p>10.STOCK — Damages for Injuring Trespassing. Owners or occupants of lands, in driving or keeping off' trespassing animals, may only resort to ordinary and reasonable means, and if they wantonly or purposely injure or damage such stock, they will be held liable for such acts.</p> <p>(Syllabus by the Court.)</p>

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

<p>Error from the District Court of Logan County; before Jno. ' H. Burford, Trial Judge.</p> <p>STATEMENT OE EACTS.</p> <p>The material facts in this case are as follows: In June, 1899, the plaintiff in error, defendant in the conrt below, being the head of a family, bought certain unimproved real estate, being the same involved in this action, situated in the city of Guthrie, Oklahoma territory, for the purpose, as he alleges, of making thereon a home for himself and family. In the same month he employed his co-defendant, Brickner, to build thereon a house; Brickner bought the materials therefor from the defendant in error, Houston; the' gross amount of such material was five hundred and seventy-six and 9-100 dollars ($576.09), of which all was paid except a balance of ninety and 31-100 dollars ($90.31), which remained unpaid at the commencement of this suit.</p> <p>The case was tried in the district court of Logan county,. Oklahoma, and a judgment rendered in favor of the plaintiff, and a decree giving a lien for the amount against the real estate described in the petition. Motion for a new trial was made and overruled, exceptions saved, and the case is-brought here for review.</p>

Error from the District Court of Logan County; before Jno. H. Bur ford, Trial Judge. STATEMENT OE FACTS. The complaint in this case was filed by John G. Miller et al., on the 23rd day of February, 1892, It is alleged that Drury L. Melone and Baker H. Melone, were partners, doing business as Melone Brothers, at Gutbrie, Oklahoma Territory.

<p> Error from the District Court of Oklahoma County; before Benj. F. Burwell, Trial Judge. </p>

<p>1. COMPLAINT — Objections to, Waived, When. The objection that a . criminal complaint i's verified on information and belief, is waived by pleading to the merits, or entering into a recognizance for appearance at a future day.</p> <p>2, VERIFICATION — Sufficient, When. A. verification on information and belief is sufficient for every purpose except merely the Issuing of the warrant for the arrest of the defendant, and the objection to such verification must be made by motion to quash the warrant before plea to the merits, or oth'er steps are taken which will operate as a waiver of such defect.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. </p>

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

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

<p>1. LIQUOR LICENSE — Remonstrance and Application Tried, How. Where a remonstrance is filed with the county clerk, protesting against the issuance of a liquor license, the application .and petition on the one side, and the remonstrance on the other, form an issue which is to be heard and determined by the board of county commissioners in the first instance, and an issue of fact in such case can only be heard on competent evidence, under the rules governing civil trials in courts of law.</p> <p>2. SAME — Remonstrance, Burden of Proof. In the trial of an application for liquor license, where a remonstrance has been filed, the burden is on the applicant to prove by competent evidence, all matters which it is, under the statute, incumbent on him to do or show in order to procure a license. Other causes set forth in the remonstrance, such as that the applicant has violated some provision of the liquor laws within a year, or that a previous license has been revoked, must be established by the remonstrants.</p> <p>3. SAME — Remonstrance—Averments. An averment in the protest or remonstrance, to the effect that the applicant is not a suitable person to be entrusted with the sale of intoxicating liquors, is, in the absence of a motion to make more specific and certain sufficient to question the character and standing of the petitioner, and require proof of him to show that he is a person of respectable character and standing.</p> <p>4. SAME — Character of Applicant., The character and standing of the applicant being a material fact to be shown in order to enable him to obtain license to retail liquors, specific acts of immorality or of criminality may be shown as matters proper for consideration in determining his character and standing.</p> <p>5. SAME — Evidence as to Violations of Statute by Applicant. Evidence tending to show that the applicant has previously violated some of the provisions of the statute relating to dealers in intoxicating liquors, though not sufficient to convict, him of a criminal offense, is competent for the purpose of determining whether he is a fit person to be entrusted with the sale of intoxicants.</p> <p>6 SAME — Whom Suitable Appplicants. It is the purpose of the law to place the sale of intoxicants in the hands of law abiding men of reputable standing and character. The privilege granted a retail dealer is in the nature of a personal trust, and an applicant who is unable to give his personal attention to the business, does not come within-the intent of the law.</p> <p>7. SAiVfE — Law Does not Limit Causes of Remonstrance. The law does not limit the causes for which a Protestant may remonstrate to those enumerated in the statute. There are other causes which, when properly alleged and proven, would be sufficient to defeat an applicant for license.</p> <p>.8. SAME — Remonstrance—Liberality. Considerable liberality should be allowed by the county board in stating reasons for remon-stance, and reasonable latitude given in the hearing, in order that, the facts may be fully developed, and the intent and purpose of the l'aw observed.</p> <p>9. SAME — Remonstrants, Who May be. The law does not prescribe the qualifications or residence of Protestants or remonstrants, but as the statute is domestic in its application and purposes, any person who is a resident of the territory, or a' non-resident who is a tax payer in the ward or township where the applicant proposes to sell liquor, is competent to protest or remonstrate against the granting of a license.</p> <p>HO. SAME — Granted When — Remonstrance, Trial of. On the hearing of a remonstrance against the granting of a liquor license, where it is alleged that the petition is not signed by a sufficient number of resident tax-payers, the county board are bound to hear the evidence, and cannot grant a license until it is made to appear by competent evidence that the requisite number of resident taxpayers have signed the petition. The burden is on the applicant to make such proof, and affidavits are not competent evidence on such issue. The fact must be established by record and oral testimony, so that the witness may be subjected to cross examination, and his interest, motives, knowledge and character fully inquired into.</p> <p>11. SAME — Notice. The law contemplates that the applicant for license shall select the newspapers and give his notice, and make proof both as to publication of the notices and the circulation of the papers. The practice which now prevails of having the county clerk give the notices by publication is not authorized by the statute. When it is alleged in the remonstrance that the notices have not been published in the two papers published in the county and having the largest circulation therein, the burden is on the applicant to prove such fact, and no question of good or bad faith enters into the matter. He must make his own selection, publish his notices, and take the risks, and the county hoard has no jurisdiction to grant a license until such proof i's furnished to the satisfaction of the board.</p> <p>12. SAME — Appeal. Where a license is granted over a protest and remonstrance, and the remonstrant appeals .to the district court within seasonable time, it is the duty of the county board to revoke the license pending the appear, and if they fail to dp so, after the appeal is perfected the district court should direct the board to annul the license.</p> <p>13. SAME — Remonstrance—Proof. The county board is peremptorily required to hear proof when a remonstrance is filed in time, and they have no power to ignore the remonstrance and grant the license without proof.</p> <p>14. SAME — Denied When — Liquor Law, Construed, How. The statute of 1890, as amended by the statute of 1893 and the Session Laws of 1897 as a whole, constitute the laws of the territory relating to the traffic in intoxicating liquor, and must be taken as a whole and construed together, and a violation of any of the provisions of said law within the space of a year, will- disqualify such person from obtaining license as a liquor dealer.</p> <p>(Syllabus by the Court.)</p>

<p>J. REPLEVIN, PET1TON IN — Demurrer. A petition in replevin to recover possession of chattels embraced in a chattel mortgage, for the purpos’e of enabling the mortgagee to enforce his lien, and which sets out the mortgage and shows by independent averments that the particular property sought to be recovered, fs not the property embraced in a prior chattel mortgage covering some of the property embraced in plaintiff’s mortgage, is not subject to the objection or demurrer that the petition does not show right of possession in the plaintiff.</p> <p>1. SEASONS — Judicial Notice of. The courts take judicial notice of the seasons, and the time of planting and harvesting annual crops, and know that a .crop of wheat -growing in April, 1898, is not the crop harvested in 1899.</p> <p>3. INSTRUCTIONS. The instructions of the court should clearly and intelligently set forth the l'aw as applicable to the issues and evidence submitted, without being conflicting, contradictory,, confusing or misleading.</p> <p>4. SAME — Not Error When. The giving of an instruction which states a correct proposition of law, but which has no application to the issues involved or proof, will not warrant a reversal of the judgment, unless it is apparent" that such instruction was calculated to mislead the jury.</p> <p>5. REPLEVIN — Defense. Under the general denial in replevin, the defendant may make any defense, which will defeat the plaintiff’s claim or right to possession as against the defendant, and under the code great liberality is allowed to such defenses.</p> <p>6 SAME — Chattel Mortgage. Where the plaintiff claims the right to possession of property by virtue of the lien created by a chattel mortgage, under the general denial the defendant is entitled to show that the mortgage was obtained by fraud or deception, and thus defeat the lien, and consequently the right of possession in the mortgage.</p> <p>(Syllabus by the court.)</p>

<p> Error from the Prolate Court of Oklahoma County; before J. P. Allen, Probate Judge. </p>

<p> Error from the District Court of Garfield County; before John L. McAiee, Trial Judge. </p>

<p> Error from ihe District Court of Canadian County; before C. F. Irwin, Trial Judge. </p>

<p> Error from the District Court of Noble County; before Bayard' T. Rainer, Trial Judge. </p>

<p>1. MOTIONS — Appeal—Bill of Exceptions. Motion's presented in the trial court, the rulings thereon and exceptions are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made.</p> <p>2. RECORD, WHAT CONSTITUTES — Bill of Exceptions. The record proper in a civil action consists of the petition, answer, reply, . demurrers, process, rulings, orders and judgment. And incorporating motions, affidavits or other papers into a transcript will not constitute them a part of the record, unless made so by a bill of exceptions.</p> <p>3. MOTIONS — Appeal—Bill of Exceptions. Motions and proceedings which are not part of the record proper, can only be presented for review by incorporating them into a case-made, or by preserving them by bill of exceptions and embracing them in the transcript.</p> <p>4. ERROR — Review of. The supreme court will not review alleged error of the tria.1 court, unless the error complained of is in some manner assigned for review by the petition in error. •</p> <p>5. SAME — REVIEW OF — Demurrer. A ruling of the court upon a a demurrer to the petition may be presented by a transcript, without bill of exceptions, or case-made, provided the ruling upon the demurrer is one of the assignments of error in the petition in error.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma County; before B. F. Bwrwell, Trial Judge. STATEMENT OE FACTS. This is an action commenced in the district court in and for Oklahoma county, Oklahoma territory, September 21, 1899, by Fannie Gilliland, plaintiff, against the Woodmen of the World, defendant.

Error from the District Court of Oklahoma, County; before\ C. F. Irwin, Trial Judge. STATEMENT OF FACTS. This action was begun in the district court of Oklahoma county by the defendants in error, who prayed for an injunction to restrain the collection of assessments for the construction of lateral sewers.

<p>1. ALIMONY PENDENTE LITE DEFINED. Alimony pendente Ute means not only a reasonable allowance for the support and maintenance of the wife during the pendency of the action, but it also 'includes court costs, reasonable attorney’s fees, and necessary expenses to enable her to prepare and conduct her case in an efficient manner.</p> <p>2. SAME — Application for — Notice. And the court or judge thereof in vacation is authorized to make a' reasonable allowance for such alimony pendente Ute upon application of the plaintiff, after the petition has been filed in an action for divorce, or for alimony-alone, and without notice of such application to the defendant, and the failure to give such notice is not a deprivation of property without due process of law.</p> <p>(Syllabus by the court.)</p>

Error from the District Court of Kingfisher County; before G. F. Irwin, Trial Judge: STATEMENT OE FACTS.

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

Error from ihe District Court of Kingfisher County; before C. E. Irwin, Trial Judge. STATEMENT OE FACTS. This is an action brought by The McLain Land and Investment company to recover possession of land from plaintiffs in error, J. J. Mattocks and A. J. Mattocks, his wife. The evidence showed that thé company was entitled to the relief sought for, unless it should be found that a tax deed taken by the wife, A. J. Mattocks, was valid.

<p> Error from the District Court of Payne County; before John E. BurfordTrial Judge. </p>

<p> Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. </p>

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

Error from the District Court of Nolle Countyj before Bayard T. Hainer, Trial Judge. STATEMENT OF FACTS.

Error from the District Court of Pottawatomie Countyj before Bayard T. Earner, Trial Judge. STATEMENT OE EACTS. On October 9, 1901, tlie plaintiff in this action filed and published a certificate stating the names and places of residence of the members of the partnership, the Choctaw Lumber company, provided for by sections 3539 and 3541 of the Statutes of 1893.

Error from the District Court of Canadian County; before Clinton F. Irwin, Trial Judge. STATEMENT OE FACTS. On May 4, 189 5, the plaintiff in error was engaged in the mercantile business at El Eeno where be was the owner of a large stock of goods consisting of hardware, tinware, agricultural implements, wagons, carriages, etc., and at that time was deeply involved in debt.

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judge. STATEMENT OE PACTS. This is an action commenced by defendant in error in the probate court of Kay county, Oklahoma territory, and is an action of forcible entry and detainer to recover the possession of the-southwest quarter, of section 30, township 26, north of range 1 east.

<p> Error from the Probate Court of Garfield County; before James K. Beauchamp, Probate Judge. </p> <p>STATEMENT OP PACTS.</p> <p>At the September term, 1900, the plaintiff brought suit against the defendants in the probate court of Garfield county, Oklahoma territory, on a certain promissory note executed by the defendants September 33, 1898, for the sum of one hundred and twenty-five dollars, with interest at ten per cent., due February 1, 1900. Defendants filed answer thereto admitting the execution of said note, but say as a matter of defense that said note was given to replace two notes formerly given by said defendants in payment of a corn harvesting machine. That said corn harvesting machine was purchased of Newell-& Ross, agents of plaintiff at Enid, O. T., and that said machine was warranted, and on trial did not comply with the terms of such warranty, and was returned to said agents. That at the time of giving the note in question the plaintiffs entered into another written guaranty, terms of which are as follows:</p> <p>“Enid, O. T., Dec. 1, 1898.</p> <p>“D. M. Osborne & Co. agree to fix corn harvester bought by Case & Humphrey before harvest of 1899, so they can use the three horse evener without side draft, and to do as good work as any machine.</p> <p>“(Signed.) D. M. Osborne & Co.</p> <p>“By W. H. Gibbs."</p> <p>And said defendants claim that such written guaranty was a part of the same transaction as the giving of the note in question, and that said written guaranty was never fulfilled, and by reason thereof the consideration of said note entirely failed, and for a further defense the defendants allege that in consequence of such failure on the part of the plaintiff to fulfill such written guaranty they have been damaged and sustained loss.</p> <p>To this answer the plaintiff files reply of general denial. On this issue a trial was had in the probate court before a jury, and a verdict rendered in favor of [he defendants, assessing their damage at thirty dollars and costs. Motion for a new trial was filed within the time allowed by law. Motion for new trial is as follows:</p> <p>“D. M. Osborne & Co., Plaintiff, vs. Case and Humphrey, Defendants.</p> <p> "Motion to Set Aside the Verdict of the Jury and to Grant a New Trial. </p> <p>“Comes now the plaintiff and moves the court to set aside the verdict of the jury and to grant a new trial, and for causes' states:</p> <p>“First: The verdict is against the preponderance of the evidence.</p> <p>“Second: The verdict is against the evidence.</p> <p>“Third: The verdict is against the law as given by the court.</p> <p>“Fourth: The verdict sounds in prejudice against the plaintiff.</p> <p>“Fifth: The verdict is not supported by the facts and is against the law.</p> <p>“Sixth: The court admitted improper and illegal evidence.</p> <p>“Seventh: The character of the case was changed alter much prejudicial and illegal evidence had gone to the jury, and the verdict thereby became and was prejudiced against the plaintiff.</p> <p>“Eighth: The jury disregarded the instructions of the court and found for the defendant, when their verdict should have been for the plaintiff.”</p> <p>Which motion was by the court overruled and exceptions saved by the plalintiff; to which verdict of the jury, and the action of the court in sustaining the same and rendering judgment thereon, plaintiff excepts and brings the ease here for review.</p>

A. Smith, Probate Judge. STATEMENT OE PACTS. This is an action commenced by plaintiff below against the defendant, in the probate court of Noble county, O. T., to recover a personal judgment on seven promissory notes for thirty-six dollars each, and one note for thirty-eight and 5-100 dollars, and to foreclose a chattel mortgage given to secure the payment of the notes. The only defense interposed was one questioning the jurisdiction.

Error from the District Court of Pawnee county; before Bayard T. Rainer, Trial Judge. STATEMENT OF FACTS. Action by J. 0. Comstock against Wm. L. Eagleton for false imprisonment. Judgment for defendant upon demurrer to petition, dismissing action, and for costs. Plaintiff here by petition in error for review. The fa&ts will more fully appear in the opinion.

<p> Error from the District Court of Payne County; before B. F. Burwell, Trial Judge. </p>

<p> Error from the District Court of Pawnee County; before Bayard T. Plainer, Trial Judge. </p>

<p>Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge.</p> <p>STATEMENT OF FACTS.</p> <p>This was an action brought in the district court of Logan county by McKennon, administrator, against the plaintiffs in error and others, upon certain administration bonds. The facts necessary for a determination of the case are that Pentecost and Murphy were appointed administrators of the estate of F. R. McKennon, deceased, in January, 1893. Thereafter Murphy was, at his own request, relieved from the administration, after which time Pentecost served as sole administrator.</p> <p>Thereafter on December 12, 1895, J. W. McNeal was, upon his application, released as surety upon Pentecost’s original administration bond, and Pentecost, under the direction of the court, filed a second administration bond, which was approved June 20, 1896, upon which the plaintiffs in error were, with others, sureties.</p> <p>Each of these administration bonds provided that: “Li the above bounden H. Pentecost shall faithfully execute the duties of the trust as such administrator, according to law, then this obligation to be null and void, otherwise to be and remain in full force and effect.”</p> <p>® Pentecost filed what purported to be his last annual report on February 27, 1897, which was not approved by the probate court. Thereafter, upon April 27, 1897, he was removed from his office, and the defendant in error, T. F. McKennon and C. E. Billingsley were appointed by the court to be special administrators of the estate to serve until an administrator could be appointed to succeed Pentecost.</p> <p>After his removal Pentecost was required by the court to file a supplementary report covering the period from the date of his last annual report to the date of his removal, and also covering the period up to the time when his supplementary report was filed, namely, June 23, 1897.</p> <p>Various hearings were had upon these reports, when, upon the 27th day of July, 1897, the probate court rendered a final judgment against Pentecost, in which it was recited that “the same being a day of the regular July term of said court, * * * this matter came on for hearing upon the special report of Harry W. Pentecost, late administrator of said estate, filed June 23, 1897, * * * and the court having heard the evidence and argument of counsel and being duly advised in the premises, finds the -following,” (and here thé court included in the judgment rendered an elaborate and itemized finding of facts), and the judgemnt concludes that, “It is therefore considered, ordered and adjudged by the court, that said Harry W. Pentecost, late administrator of said estate, is indebted to said estate in the sum of $2,403.33. And that said Pentecost now or should have in his hands said amount, belonging to said estate, and the said IT. W. Pentecost is hereby directed and ordered to forthwith pay over to .George E. Billingsley and T. E. McICennon, special administrators of said estate, the said sum of $2,403.33, as the money of said estate.”</p> <p>The special administrators thereafter demanded from Pentecost the amount of money thus found to be due by the probate court, and payment having been refused, two suits were brought in the district court, one against Pentecost and his sureties upon his first administration bond, and the other against the administrator and his special sureties upon the second administration bond. The petition in each case declared upon the judgment which had been found by the probate court against the defendant, Pentecost, and his sureties respectively, and by each of the petitions filed therein, averred additional liabilities upon various other items of account as due from Pentecost. Each of these cases was tried to the court without a jury, and by consent of the parties to the cause, were consolidated, and a common judg-. ment rendered in which the final judgment of the probate court was affirmed, and a judgment for $2,403.33 found to-be due, and the liability distributed so that the sureties upon the first administration bond, up to the time of McNeaFs release therefrom, were required to pay $1,759.06 and against' the remainder of the defendants, including the plaintiffs in error, for $644.27, with interest.</p> <p>Upon all other counts, the court rendered judgment against the plaintiffs, the defendants in error here, and in behalf of the defendants, the plaintiffs in error here. The defendants reserved no exceptions, and have taken no appeal.</p>

<p>1. ADMINISTRATOR’S BOND — Sureties. The sureties on an administrator’s bond are bound to the extent to which their principal is bound.</p> <p>2. SAME — Concluded When. The sureties upon an administrator’s bond are, in the absence of fraud, concluded by the decree of the probate court duly rendered upon a final settlement and accounting by their principal, as to the amount of the principal’s liability, although the sureties on the bond are not parties to the accounting.</p> <p>3. SAME — Collateral Attack. The sureties on an administrator’s bond Gannot attack collaterally a judgment of the probate court against the administrator upon a final settlement and accounting by their principal, for whose fidelity to his trust they have obligated themselves.</p> <p>4. SAME — Liability. As a general rule sureties on the bond of a public officer are not liable for any official delinquency or default of the principal occurring prior to the execution of the bond. But this general rule has no application to an administrator’s bond, because the purpose for which an administrator’s bond is given is entirely different. The term of office of a public officer is definite and certain, while an administrator has no fixed tenure of office. It is a continuous trust or employment from the date of his appointment until the close of the administration. The condition of an official bond is that the principal shall faithfuly perform the duties of the office to which he has been elected or appointed. The bond of an administrator is that he shall faithfully execute the duties of the trust according to law. Hence the sureties on an administrator’s bond,conditioned as the bonds were in this action, are liable for whatever is properly chargeable to the administrator in his official capacity, and it is not essential to prove that the funds or property so chargeable were actually on hand and intact at the time the second or additional bond was executed. If the moneys or prop-f erty are shown to have come to the hands of the administrator, in I his official capacity, and he has not properly disposed or accounted I for the same, he is bound to do so on a final settlement, and the sureties upon his bond, no matter when such bond was executed and approved, are held liable for the faithful performance and execution of such trust.</p> <p>5. SAME — Breach of. The refusal or neglect of an administrator to obey or comply with the final judgment of the probate court rendered against him constitutes a breach in his bond which provides that he “shall faithfully execute the duties of the trust, as such administrator, according to law,’’and renders him liable as well as the sureties thereon for the full amount of said judgment. (Syllabus by the court.)-</p>

<p> Error from the'District Court of Noble County; before John L. McAtee, Trial Judge. </p>

<p>1. JURISDICTION DEFINED. Where defendants voluntarily, appear and file a general demurrer to a petition and the cause is the kind of a cause triable in the court wherein the action is pending, although no summons was issued and served, the court has jurisdiction of the persons of such defendants, and of the cause of action, and has power to render any rightful judgment therein.</p> <p>2. RESULTING TRUST — Necessary Parties. In an action against townsite trustees appointed by the secretary of the interior under the act of congress of May 14, 1890, (26 Stat. at Large 109, Chap. 27,) and to whom patent has issued, to declare a resulting trust in favor of plaintiff who claims adversely to the townsite entry, even if such action would lie, the townsite lot claimants are necessary parties.</p> <p>3. PUBLIC LANDS — Resulting Trust. It is a universal rule that courts will not interfere with the action of the department of the interior in its disposition of the public lands, or decree to whom patent or deed shall issue. Townsite trustees appointed under the act of May 14, 1890, were officers or agents of the government, and the issuance of patent to them for a townsite, and the recording of the same, did not operate to divest the department of the interior of all of the control of the land embraced therein. The conveyance of a townsite to such trustees was for a particular use named by congress, and the courts had not, during their existence, the right to intercept the legal title in the hands of the government’s agents; and such trustees could not be adjudged by a court of equity to be trustees for the use and the benefit of one claiming adversely to the trust created by the act of congress, under which patent was issued to them; and a petition which discloses on its face that the trustees had not, at the commencement of the action, conveyed the title by deed, but still retained the same fails to state a cause of action ifor a resulting trust.</p> <p>(Syllabus by the Court.)</p>

<p>1. DEMURRER TO PETITION — Not Error to Overrule, When. It is not error to overrule a demurrer to a petition which, alleges that the defendant, at a certain time and place, wilfully and maliciously beat, bruised and wounded, the plaintiff with a stick or club, thereby-causing her great pain, suffering and mental anguish, to her damage in the sum of one thousand dollars.</p> <p>2. ASSAULT DAMAGES FOR — Married Woman. By the laws of Oklahoma, a married woman who is living with and performing the ordinary duties for her husband, may sue for and recover damages in her own name and right, for pain and suffering occasioned by an assault upon her person by a third party.</p> <p>3. VERDICT NOT DISTURBED WHEN. YVhere the evidence introduced on the trial reasonably tends to support the verdict of the jury and judgment of the court, this court will not disturb such verdict and judgment.</p> <p>4. JUDGMENT, EXCESSIVE, WHEN. This court cannot say that a judgment for $300 allowed as damages- for an assault with a heavy cane, which disabled one arm of the assaulted party for several weeks, and caused fever, pain and suffering, is so excessive as to require a new trial.</p> <p>(Syllabus by the court.)</p>

<p>Appeal from, the District Court of Kay County; before Bayard T. Rainer, Trial Judge.</p>

<p>1. RIOT — Number of Participants. By the provisions of the statutes of Oklahoma, three or more persons must act together in order to commit the crime of riot; a less number than three cannot commit such offense, but any one or more of those participating in the riot may be tried and convicted.</p> <p>2., SAME — Judgment on Verdict. When three are indicted for riot and one is tried separately and found guilty, judgment upon the verdict must be given against him,unless error has occurred for which a new trial should be granted.</p> <p>3. SAME. When one of three persons indicted for riot is tried separately', and convicted, he is concluded by the record in such case, and the subsequent acquittal of another of the joint defendants in a separate trial, will not entitle the one convicted to a new trial or a discharge.</p> <p>4. SAME. When one of three persons indicted for riot, has been tried separately and convicted, he is concluded by the record in such case and the subsequent acquittal of another of the joint defendants in a separate trial, will not entitle the one convicted to a new trial or a discharge.</p> <p>(Syllabus by the court)</p>

<p>1. CONTRACT IN WRITING — Effect of. The execution of a contract in -writing supersedes all the oral negotiations or stipu'ations concerning its matter which preceded or accompanied the execution of the instrument.</p> <p>2. CONTRACT — Parol Evidence — Not Admissible, When. Where the terms of a written contract are clear, plain, explicit and free from. all ambiguity parol testimony is not admissible to change or vary its terms:</p> <p>3. INSURANCE POLICY — Duty of Assured. An applicant for insurance who accepts a policy, the provisions of which are plain, clear ' and free from all ambiguity is chargeable with knowledge of its terms and legal effect. It is the duty of the assured to read and know the contents of the policy before he accepts it, and where he fails or neglects to do so he is estopped from denying knowledge of its terms and conditions unless he alleges and proves that he was induced not to read the policy by some trick or fraud of the other party.</p> <p>(Syllabus by the court.)</p>

Error from the District Court of Oklahoma Cquntyj before B. F. Burwell, Trial Judge! On rehearing. STATEMENT OE EACTS. This was an action brought by the T. M. Richardson Lumber company against The Liverpool, London and Globe Insurance companjr, to recover upon a fire insurance policy issued on December 7, 1896, for loss occasioned by fire June IS, 1897.

Error from the District Court of Woodward County; before John H. Burford, Trial Judge. STATEMENT OE EACTS. Action to recover the value of five cows and three calves, alleged to be of the value of $289. Trial by jury, and verdict for plaintiff for $145, and judgment on verdict for that amount. Motion for new trial was overruled, and the case is brought to this court for review.

<p>1. UNITED STATES HOMESTEAD — Descends to Whom. In case of the death of an entryman, the homestead held under the laws of the united States descends to the widow, if there be one, and not to the heirs generally.</p> <p>2. INJUNCTION — Does Not Lie, When. If property is wrongfully levied upon, the party interested must proceed in the court from which the execution issued to have the levy discharged, and can not obtain the desired relief by injunction in a separate action.</p> <p>3. SAME. Where an action was brought in Cleveland county, and a' summons was wrongfully issued to, and served upon, one oif the defendants in Canadian county, the defendant served in Canadian county cannot, after allowing the case to go by default, have the sheriff enjoined from selling property levied upon under an execution issued upon such judgment.</p> <p>‘1. MOTION — Adequate Remedy, When. A party claiming an interest in property levied upon under an execution has an adequate remedy at law, by way of motion, to have the property released from the levy.</p> <p>5. JUDGMENT — Cannot be Attacked by Injunction, When. When the judgment of a court of record contains a finding that due personal service was made upon the defendant, such judgment will be upheld, and the same cannot be attacked in an injunction proceeding.</p> <p>6. REMEDY. Section 4464 of the Statutes of 1893 provides an ample remedy for all matters complained of in this case.</p> <p>7. PARTY FAILING TO PRESENT DEFENSE — Equity Will Not Interfere. Equitable relief cannot be given where parties have negligently, or without cause, failed to present their defense to the court in which the action was brought.</p> <p>(Syllabus by the court.)</p>

Error from ihe District Court of Noble Countyj before Bay-ard T. Hainer, Trial Judge. STATEMENT OF FACTS. On December 12, 1899, tbe defendant in error commenced an action before E. W. Jones, a justice of tbe peace of the city of Perry, Noble county, against the plaintiff in error, and others. The trial day was December 18, at which time certain-parties appeared and certain motions were filed.

<p> Error from the Pawhusha District Courtj before Bayard T. Hainer, Trial Judge. </p>

<p>1. INDICTMENT — Wording. While it is essential that every material element of a crime shall be alleged in an indictment, it, is not necessary to use the exact language of the statute; words of equivalent import are sufficient.</p> <p>2. HOMICIDE — Murder, When. Homicide is murder, as defined by our Crimes and Punishment Act, when perpetrated without authority of law, and with a premeditated design to effect the death of the person killed, or any other human being.</p> <p>3. INDICTMENT — Sufficient, When. Hence an indictment which charges that the homicidal act was committed “wilfully, felon-iously, purposely, unlawfully and of his deliberate and premeditated malice and with a design to effect the death of” the deceased, is sufficient to charge the crime of murder.</p> <p>4. INSTRUCTIONS — Error, When. On a trial for murder it is not error for the court to charge the jury that the issue for them to determine from the evidence, under the instructions of the court, is the guilt or innocence of the defendant.</p> <p>5. VERDICT — Not Disturbed, When. It is the settled law of this court that where the evidence reasonably tends to sustain the verdict, and when the jury has been properly instructed as to the law, and a motion for new trial has been denied, and the verdict of the jury approved by the trial court, this court will not invade the province of the jury to weigh the evidence and disturb the verdict.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Greer County; lefore B. F. Burwell, Trial Judge.</p> <p>On rehearing.</p>

<p>ESTOPPED — Bank Draft. A bank which induces another bank to honor the draft of a third person so that he may pay a debt due his creditor cannot be heard to say that the maker of the draft did not owe his creditor the amount of the draft, even though the authority to honor the draft was limited to the amount due from the maker of the draft to his creditor, when the only person from whom the paying bank could ascertain the amount due was from the maker of the draft and his creditor, and they each represented that the amount of the draft was the amount of the debt.</p> <p>(Syllabus by the Court.)</p>

<p> Error from, the District Court vf Canadian Countyj before C. F. Irwin, Trial Judge. </p>

<p>CONTRACT FOR PERSONAL SERVICES — Who Not Liable for. ■Williams Brothers & Harrington were the owners of a herd of cattle and they employed one J. D. Dickson to herd and care for them at the stipulated price of $30.00 per month. When Dickson quit work there was due him the sum of $177.60. At the time the contract was made between Williams Bros. & Harrington, ,the Boston and Kansas City Cattle Loan Co. had a chattel mortgage on these cattle and the contract was made for the employment of Dickson with its knowledge, and it assented and agreed to the employment, but did not agree to pay for such services. Held, in a suit by Dickson against the Boston and Kansas City Cattle Loan Co. to recover for such wages that the defendant was not liable therefor, and also held that the plaintiff had no lien on the cattle covered by the chattel mortgage.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge. STATEMENT OF FACTS. This is an action in replevin, brought by the plaintiff in error against the defendant in error in the court below to recover a certain quantity of corn. A jury was waived, and the case was tried to the court.

Error from the District Court of Cleveland, County; before C F. Irwin, Trial Judge. STATEMENT OE FACTS. This is an action brought by the plaintiff in error against the defendant in error in Cleveland county.

<p>1. CRIMINAL PROCEDURE — Governs When — Ball In Manslaughter, "Where a'person committed an offense and was indicted during the period the Nebraska criminal procedure was in force in Oklahoma, and was convicted and sentenced after the adjournment of the first legislative assembly, and sought to take an appeal from such judgment, the Oklahoma criminal procedure, which took effect December 25, 1890, controlled and" governed the .proceedings on appeal, and after the judgment of conviction, and in case of manslaughter, bail was" allowable after conviction and pending appeal.</p> <p>2. POSITION, CHANGE OF — Not Allowable, When. Where one voluntarily assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he will not thereafter, because his interests have changed, be permitted to assume a contrary position to the prejudice of a party who acquiesced in the position formerly taken by him.</p> <p>3. REFEREE — Conclusions of Law. "Where.a court erroneously refers a case to a referee, where only questions of law are at issue, and. afterwards adopts the conclusions of law stated by the referee as its own, and renders its own judgment, the error is cured, and the exception must be to the ruling and judgment of the court.</p> <p>4. DEMURRER — Payment of Cost — Appeal. "Where a judgment is rendered sustaining a demurrer to a petition and for costs, the payment of the costs will not constitute such satisfaction of the judgment as will prevent the prosecution of an appeal to procure a reversal of the judgment sustaining the demurrer.</p> <p>5. CASE-MADE — Defined. The purpose of a case-made is to bring into a record for the appellate court, all the records, files, testimony, rulings, exceptions and proceedings in said cause in the trial court; but extrinsic matters constituting no part of the record or proceedings in the trial court cannot be incorporated into the case-made so as • to bring such matters before the appellate court.</p> <p>(Syllabus by the Court.)</p>

Error from ike District Couirt of Gandaian County; before G. F. Irwin, Trial Judge. STATEMENT OE EACTS. This is an action by MyTam S. Springs against Taylor P. Christy to quiet title to lots 8 and 9, in block 106, in the city of El Keno; trial and judgment for Springs; motion for a new trial overruled; Christy brings ease here by petition in error for review.

<p>NUNCUPATIVE WILL — Who Can Make. Under the laws of the Territory of Oklahoma, no one can make a nuncupative will, except those in actual military service in the field or those 'doing duty on shipboard at sea; and even those can only make a nun-cupative will when they are at the time in actual contemplation, fear or peril of death, or at the time are in expectation of immediate death from an injury received the same day. One who at the time is engaged in the pursuit of farming can not make a valid nuncupative will.</p> <p>(Syllabus by the Court.)</p>