Volume 12 — Oklahoma Reports

<p>FINAL ORDER — Practice. An order of the district court sustaining a petition in error, and reversing a judgment of the justice of the peace, and that the case be retained in the district court for trial and final judgment, and where there is no judgment rendered for costs, is not one of the orders of the district court from which error lies to the supreme court, until the final disposition of the action in the court below.</p> <p>(Syllabus by the Court.)</p>

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

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

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

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

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

<p> Error from the District Court of Kay County; before Bay-cui'd T. Earner, Trial Judge. </p>

Error from the District Court of Grant County; before John L. McAtee, Trial Judge. STATEMENT OE EAOTS.

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

<p>UNLAWFUL DETAINER — Will not Lie, When. Where two persons are contesting for a tract of government land on the ground of prior settlement and each party is in possession of eighty acres thereof, and the contest is closed, the entry of one canceled, and the other allowed to made homestead entry of the land, and subsequently the defeated entryman files a petition praying for department supervisory authority, and for a rehearing, and petitioner is granted a rehearing, and is given thirty days to file affidavits and brief as to why a rehearing should be granted, and the successful contestant is given the same time to file affidavits and brief as to why a rehearing should not be granted, all affidavits and briefs to be served on the opposite party, such order has the effect of reopening the contest for further consideration, and an action for unlawful detainer commenced by the contestant after the contest has -been originally closed and after the entry of his adversary had been canceled and his entry filed, but after the order was made by the secretary of the interior, on the petition for rehearing, directing each party to make their respective showing for and against such rehearing, and before the secretary had either allowed or denied such rehearing, is prematurely commenced, and should be dimissed at the cost of the party bringing such action. Unlawful detainer will not lie to remove an unsuccessful claimant from a tract of government land until the controversy between the parties is finally settled in the interior department.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Kay County; before Bay ard’T. Earner, Trial Judge </p>

<p>Error from the District Court of Kay County; before Bay-ard T. Earner, Trial Judge.</p> <p>STATEMENT OE FACTS.</p> <p>This action was brought by the defendant in error, plaintiff below, before a justice, of the peace, upon an injunction bond, the penalty of which was one hundred dollars. The ease was appealed to the district' court of Kay county, and there tried, resulting in a verdict for the defendant in error for the full amount of the penalty of the bond. The injunction bond was given in a former action between the same parties, and was conditioned, as required by law, “to pay to the injured party the damages he may sustain if it be finally decided that the injunction ought not to have been granted.”</p> <p>The parties to this case had formerly been contestants for a tract of government land, the result of the contest being in favor of the plaintiff in error and after he had secured his entry he brought the action in which the injunction undertaking was given, to dispossess the defendant in error from the land, which he claimed as a homestead, all these matters being set up in the pleadings. On May 2, 1899, a temporary order of injunction was issued in the case, as was the practice at that time, and thereafter subsequent temporary orders were issued, the undertaking having been made on the 12th day of June of the same year. The first temporary order made reduced the possession of the defendant in error to that portion of the land which she had in wheat, and the part surrounding her house, giving her a specified time to harvest the wheat, after which the plaintiff was to be given possession of all the land, except that part immediately surrounding the house of the defendant in error. On the 25th day of September a farther temporary order was made, allowing the defendant in error to remain in possession of three acres about her house, and requiring her to fence the same within fifteen days and she was enjoined from occupying 'any other portion of the land.</p> <p>On the 5th day of May, 1900, the cause came on for final trial, and, after hearing the matter, the court- held that it had no jurisdiction of the subject-matter involved in the suit; that the temporary restraining order should be vacated, and that the demurrer to the plaintiff’s petition, raising the question of jurisdiction, should be sustained, and entered judgment accordingly. The remainder of the facts appear in the opinion.</p>

Error from the District Court of Pottawatomie Countyj before Benj. F. Burwell, Trial Judge. STATEMENT OF FACTS. Action by John Taylor against James E. Silvis to recover on five promissory notes; jury trial; verdict for Taylor for $3,067; new trial denied, from which order denying a new trial, Sivils brings case here by petition in error for review.

<p>1. LARCENY — Punishable, Where. Larceny when committed on an Indian reservation ip the Territory of Oklahoma, is a crime punishable under the laws oí the Unltejl States, and the federal side of the district court having jurisdiction over such reservation is the proper forum in which to try and punish such offense.</p> <p>2. “INDIAN COUNTRY” DEFINED. The Osage Indian reservation in Oklahoma, is “Indian Country” within the meaning of the United States Statutes, section 445, which extends to the “Indian Country” the general laws of the United States as to the punishment of crimes committed in any place within the sole and exclusive jurisdiction of the United States, and as interpreted by Justice Brewer >'n the case of In re Wilson, 140 U. S. 575.</p> <p>3. DISTRICT COURT OF PAWNEE COUNTY — Jurisdiction. The district court of Pawnee county, sitting as a United States court, has power and jurisdiction to punish a white person for the crime of larceny committed on the Osage Indian reservation in Oklahoma.</p> <p>(Syllabus by the Court.)</p>

<p>1. NEW TRIAL — Entry Nunc Pro Tunc. Where a motion for new trial has been pending for several years, and there is no record, minute, memoranda or monument to indicate that such motion has ever been acted upon by the court, oral evidence alone will not be sufficient upon which to base an entry nunc pro tunc.</p> <p>2. SAME — Change of Judge. Where a motion for a new trial is filed, and the judge who tried the cause retires from the bench leaving such motion pending undisposed of, his successor will, ordinarily, grant a new trial, where the motion involves a review of the evi-> dence taken upon the trial, and the proceedings before the former judge, and the same has not been preserved by bill of exceptions or other record so the new judge can review the grounds for new trial.</p> <p>3. CLERK — Duties of — Journal Entries — Validity. The law makes it the duty of the clerk to record the judgments, orders and proceedings of the court, and when so entered upon the records or journal of the court, such records import absolute verity, and can only be changed or modified by the order of the court, and such records or journals need not be signed by the judge in order to give them validity.</p> <p>4. SAME — Destruction of Récords. The' practice of preparing and presenting journal entries to the judge for his signature, is only in aid of the clerk, and for his assistance in making up his journal and recording' the proceedings of the court, and where tlie clerk accepts and records an entry prepared by council on one side of the case, and which has not been approved by the judge or adverse counsel, such entry when so recorded becomes the judgment of the court, and in case of the destruction of the journal, such original entry when identified is a sufficient memoranda to authorize the court to direct the same entered of record to restore such judgment.</p> <p>5. COUNSEL — Duty of. It Is the duty of counsel to make timely . examinations of the journals of the court, and see that the records correctly recite the proceedings, -and if they have objections, to present the same to the court bys proper motion, and have tlhe records corrected or have omissions supplied.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of pawnee County; before Bay-ard T. Haimr, Trial Judge. </p>

<p>1 STREETS AND SIDEWALKS — Care of. A municipal corporation is bound by la-w to use ordinary care and diligence to keep its streets and sidewalks in a reasonably safe condition for public use in the orinary modes of traveling, and if it fails to do so it is liable for injuries sustained by reason of such negligence, provided, however, that the party injured exercises ordinary care to avoid the injury.</p> <p>2. ORDINARY CARE — Defined. Ordinary care, as applied to personal injury cases, means that degree of care and caution which might reasonably be expected from an ordinarily prudent person, under the circumstances surrounding the party at the time of the injury, and this is a question of fact for the jury to determine.</p> <p>3. STREETS AND SIDEWALKS — Notice of Defective Condition. As a general rule, notice to a city marshal of a town or city of the defective condition of a street or sidewalk is insufficient to charge the municipality with actual notice, but where the city marshal is instructed by the city council or board of trustees to look after the condition of the streets and sidewalks, and to repair them or cause them to be repaired, it is not error to admit testimony to show that such officer had actual notice of the condition of the sidewalk a short time before the accident occurred.</p> <p>4. SAME. The sufficiency of notice to fasten liability upon a city for a defective sidewalk is a question of fact to be determined by a jury under all the circumstances surrounding the particular case. It is not essential that the corporation sháll have actual notice. If the defective condition of the street or sidewalk has existed for such a period of time that by the exercise of ordinary care and diligence the city authorities could have repaired the defect and placed the street or sidewalk in a reasonably safe condition, and it fails to do so, then it is liable for any injuries that may be occasioned thereby by reason of such negligence, provided the injured party was in the exercise of ordinary care.</p> <p>(Syllabus by the Court.)</p>

<p>1. PRIVATE PROPERTY — Term Defined — When Appropriated for Public Use, Owner Entitled to Just Compensation. Article 5 of the amendment to the Constitution of the United States provides that: “Nor shall private property be taken for public use without just compensation.” “Property” within the meaning of this constitution-* al provision, includes not only real estate held in fee, but also easements, personal property, and every valuable interest which can be enjoyed and recognized as property; and if it is proposed to be appropriated for the public use in such a manner as to deprive the owner of the beneficial enjoyments thereof, or where such appropriation would cause serious impairment or deprivation of such property, then such deprivation would be an appropriation to “public use” and the owner is entitled, to just compensation.</p> <p>2. RIGHT OF EMINENT DOMAIN — How Exercised. Whenever it is proposed to appropriate private property for a public use, provision must be made for “just compensation” to the party proposed to be injured, and it must be made by “due process of law/'’ and if the statute of the territory makes provision for the appropriation of such property or the making of compensation therefor, the method of appropriation of such property provided for in the statutes must be 'pursued.</p> <p>3. PUBLIC DOMAIN — Act of Congress Granting Right of Way Upheld. The right to occupy and use the lands occupied by the plaintiff company is derived from an act of congress of July 4, 1884, entitled, “An Act to grant a right of way through the Indian Territory to the Southern Kansas Railway company, and for other purposes,” and provides: “That the Southern Kansas Railway company, a corporation created under and by virtue of the laws of the State of Kansas, be, and the same is, hereby invested and empowered with the right of locating, constructing, owning, operating and maintaining a railway line through the Indian Territory, with the right to construct, use and maintain such tracks, turnouts and sidings as such company may deem it to their interests to construct along and upon the right of way and depot grounds hereby granted. Section 2 — That a right of way one hundred feet in width through said Indian Territory is hereby granted for said main line and branch of the Southern Kansas Railway company, and a strip of land two hundred feet in width, with a length of three thousand feet, in addition to the right of way, is granted for stations for every ten miles of road. * * * *” Pursuant to this, ground turnouts and sidings have been constucted upon the right of way outside of the depot and station grounds especially provided for, together with such switching posts and other mechanical facilities as are necessary for the operation of the main tracks, turnouts and sidings. The plaintiff company is invested with the right and authorized to construct such turnouts and sidings upon the right of way throughout the Indian Territory, as well as upon such grounds as have been specially granted for the purpose of stations and depot grounds.</p> <p>4. PROPERTY — What Constitutes: These turnouts and sidings, together with the switches and other mechanical appliances for their necessary operation, constructed under and by virtue of the grant of authority in the act of congress, having required the -expenditure of money, constitute property.</p> <p>5. RIGHT OF WAY — Beneficiary Bound by Conditions Imposed by Act of Congress Granting Charter. The plaintiff in error is bound by the conditions and limitations contained in its charter, which it secured from congress. The power authorizing the proper authorities to lay out and extend roads and highways over and across the right of way of said railroad is conferred by section nine of said act, and is a condition coupled with the grant of right of way and the company having accepted said grant subject to such conditions, it is the duty oí such company, and it may be required by the proper authorities to open, construct and maintain, at its own expense, any road or highway crossings without condemnation proceedings, and without compensation or claim for damages,t whenever the same may be done witliout destroynig the use of the improvements made by the company for the purposes for which congress granted their right of way. The right of the public to cross the right of way, road beds, tracks, sidings, or other surface improvements, is not so inconsistent with the use granted to the railway company as to entitle the company to compensation or damages; such , inconveniences or burdens as are incident to the use of such crossings by the public, the company voluntarily assumes by the acceptance of the grant.</p> <p>6. HIGHWAY — Term Defined. The term highway is a general name for all kinds of public ways, including county and township roads, and streets and alleys in cities, towns and villages.</p> <p>7: APPROPRIATION OF PRIVATE PROPERTY — What Constitutes. The 'trial court specially found that the opening of First street for travel would necessitate the shortening of the side tracks and turnouts, and the rearrangement of all the sidetracks converging into First street. This, then, will, to the extent that the company is required to shorten its side tracks and turnouts, and the rearrangement of the same, be not only a serious impairment, but an actual destruction of such property rights. The use of the crossings for the public street will, therefore, to that extent, be inconsistent with the use to which the railway company has already appropriated its right of way within the terms of the grant, and to such an extent it would be an appropriation of private property for the public use without just compensation, and is forbidden by the Fifth amendment to the federal constitution, and was not contemplated by the conditions imposed in the grant by congress, and is inconsistent therewith. x</p> <p>8. RIGHT OF EMINENT DOMAIN — Condition Precedent. Upon the facts found by the court in this case, the city will TLot be authorized to open First street, until it has condemned, had appraised and paid for such improvements of the railroad company within said street as it will be found must necessarily be removed, in order to permit the public to use said highway or street crossing, in common and jointly with the railroad company.</p> <p>9. MEASURE OF DAMAGES — Rule Applied. The measure of damages in such proceedings is the value of the expense of removing such switch stands or other structures above the surface of the tracks as must be removed, and the expense of shortening or lengthening such of the side tracks as will necessarily have to be changed, so as to place the turnouts outside the limits of the traveled portion of such street when opened.</p> <p>(Syllabus by the Court.)</p>

<p>1, INDICTMENT — Motion to Set Aside May be Made When. Before a defendant in a criminal action is entitled to be heard in a proceeding to set aside an indictment, he must bring himself clearly within the provisions of the statute.</p> <p>.2 SAME — Proof in Support of Motion to Set Aside May be Made, When. To enable a defendant to make proof in support of his motion to set aside an indictment, it is necessary for him to file his application before the court, and he must allege the following facts: (1) That he is indicted in the district court (naming it); (2) He must set forth a copy of Ms motion to set aside the indictment; (3) and that he is acting in good faith.</p> <p>3. SAME — Not Error to Refuse to Hear Evidence, When. Hence, where an application fails to state these essential facts, it is not error to refuse to hear evidence in support of the motion to set aside the indictment.</p> <p>-4. INSTRUCTION — tnacurate Language — Not Grounds for Reversal, When. Whether in a given case there should be reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied, as upon the abstract accuracy of the instruction; hence, if it is apparent that the language of the instruction, though inaccurate, yet, when applied to the evidence before the jury it could not have misled the jury to believe that its duty was different from what it actually was, the inaccuracy can afford no reason for reversal.</p> <p>5. CIRCUMSTANTIAL EVIDENCE — When Will Warrant Conviction. Where circumstantial evidence alone, that is evidence constituting: a single chain, is relied upon by the prosecution for a conviction, each essential fact in the chain of circumstances must be found’ to he true by the jury, beyond a reasonable doubt, to warrant a conviction.</p> <p>6. EVIDENCE — Instruction—Not Reversible Error, When. On a trial for murder where there is an eye witness who testified to-the homicide, and the evidence relied upon by the prosecution for a conviction is not entirely circumstantial, it is not reversible error for the court to give the following instructions: “The law requires the jury to be satisfied of the defendant’s guilt, beyond' a reasonable doubt, in order to warrant a conviction, but does not require that you should be satisfied, beyond a reasonable doubt,, of each link in the chain of circumstances relied upon to establish the defendant’s guilt. It is sufficient if, taking the testimony all together you are satisfied, beyond a reasonable doubt, that the-defendant is guilty as charged in the indictment.”</p> <p>7. SAME — When the instructions of the court are considered alto- . gether, and as applied to the evidence in this case, it is not reversible error to refuse to give the following instructions: “If any one of the jury, after having considered all the evidence in this-case, and after having consulted his fellow jurymen, should entertain a reasonable doubt of the defendant’s guilt then the jury cannot find the defendant guilty.”</p> <p>8. NEW TRIAL — Refusal to Hear Arguments for Not Necessarily Reversible Error. The trial court should hear reasonable argument by counsel upon a motion for new trial, and especially in a criminal case where a party is charged with the grave crime of murder. However, the mere refusal of a court to hear argument on> a motion for a new trial does not necessarily constitute reversible error.</p> <p>9. SAME — When New Trial Will be Granted for Refusal to Hear Argument. Before this court will reverse a cause for the reason that the trial court declined to hear the argument in support of a motion for new trial, it must clearly appear that there was an abuse of discretion, and that the party was prejudiced thereby.</p> <p>10. JUDGMENT — Technical Errors In Criminal Case — When Cause for-Reversal. Our Statute provides that in an appeal in a criminal case, this court must give judgment without regard to technical errors or defects, or exceptions which do not affect the substantial rights of the parties. We think that this provision of our statute is applicable to this case. And hence for this court to hold that mere technical errors or defects, which do not-affect the substantial rights of the prisoner, are sufficient to reverse the cause, would, in our judgment, be a clear violation of not only the letter but the spirit of the statute.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. FORCIBLE ENTRY AND DETAINER — Proper Remedy to Dispossess Unsuccessful Homestead Claimant. Where the land department has finally determined the rights of adverse claimants to a tract of public land, the successful claimant who has the homestead entry, is entitled to the possession of the land, and forcible detainer is the proper remedy to invoke against one who refuses to surrender and forcibly withholds possession.</p> <p>Z. COURTS — Will Make Effective Decisions of Land Department, When. The courts will carry into effect the decisions of the officers of the land department, and protect the possessory rights of the successful litigant, so long as the title remains in the United States.</p> <p>3. TITLE — When Cannot be Determined. Title cannot be determined in this class of actions, nor will the courts permit an improper plea setting up title to divest them, of jurisdiction and deprive the claimant of the right to the remedy given him by statute.</p> <p>4. COURTS — Will Grant Speedy Relief. The courts of law cannot withhold relief from one entitled to it, in order to enable his adversary to construct the defenses for a prospective attack when favorable conditions shall arise.</p> <p>5. QUALIFICATIONS OF HOMESTEAD CLAIMANTS — Courts to Inquire Into, for What Purpose. It is settled by a long line of decisions that a court will not inquire into the qualifications of homestead claimants until after the title has passed from the United States, but before title has passed the courts will inquire into the status of parties as determined by the land department, sufficiently to determine and furnish protection for their posses-sory rights.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Kay County j before Bay-ard T. Rainer, Trial Judge.* </p>

<p>1. FORCIBLE ENTRY AND DETAINER — Notice. Where a party desiring to commence an action for unlawful and forcible detainer notifies the adverse party in writing, signed 'by himself as. “owner and homestead entryman,” to leave the premises, for the possession of which the action is about to be brought, which notice Was served by delivering a copy to the defendant, by a person authorized by the plaintiff, four clear days before the complaint was filed, Held, A sufficient compliance with section 4808, Statutes Oklahoma, 1893.</p> <p>2. SAME — Proper Remedy to Dispossess Unsuccessful Homestead Claimant Where adverse claimants are residing upon a tract of land, and each claiming the same as a homestead by virtue of,t pTior settlement, and the land tribunal makes a final adjudication in such cause, the successful party, who has the homestead entry. thereon, may maintain an action for forcible and unlawful detainer. against the unsuccessful party to obtain possession thereof, and which he refuses to surrender upon being given the -statutory, potice to quit.</p> <p>(Syllabus by the Court.)</p>

-Error from the District Gourt of Kay County; before Bay-ard T. HainerTrial Judge. STATEMENT OF PACTS.

Original Proceeding in Mandamus. One A. J. Yollers, was on October 24th, 1901, at the' first election held in the city of Lawton after it was proclaimed by the governor of the Territory of Oklahoma… Held: that Jacobs is entitled to continue in the discharge of such office,, and to receive the emoluments thereof until the anrmal election of 1903; and that the city has no power to elect another to such office until that time, and any election held for that purpose is void.

<p>1. MAYOR OF CITY OF THE FIRST CLASS SHOULD BE ELECTED, WHEN. Under section 544 of the Statutes of Oklahoma of 1893, and as amended by the act of March 12, 1897, one who is elected mayor of a city of the first class on October 24, 1901, is entitled to hold such office until the annual election in the spring of 1903, in the absence of a city ordinance providing for- the election of such officer annually, even though such mayor was elected under the provisions of section 541 of the Statutes of. 1893, which provides for the first election of officers of a city of the first class, and, after naming all of the city officers, further provides that they shall serve until the next annual election in said city, and until their successors are elected and qualified, notwithstanding the next annual election should be held on the first Tuesday in April, 1902. The expression: “Shall serve until the next annual election,” has reference only to those officers whose terms of office would expire at that time, and does not include all of the city officers. (Case of Wright v. Jacobs, this Volume, followed.)</p> <p>2. PLEADINGS — -Must State Cause of Action. In an original action in this court, where the respective parties submit the case on the pleadings, and such pleadings fail, under the rules of interpretation to show that the plaintiff is entitled to recover, judgment for dismissal and for costs will-be entered.</p> <p>(Syllabus by the Court.)</p>

<p>1. HOMESTEAD ENTRY — Law Governing. A homestead entry, valid upon its face, constitutes such an appropriation and withdrawal of the land as to segregate it from the public domain, and precludes it from subsequent homestead entry or settlement until, the original entry is canceled or declared" forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws of the United States.</p> <p>2. TRESPASSER ON LAND COVERED BY HOMESTEAD ENTRY— What Constitutes. One who makes settlement on a tract of land while it is covered by the homestead entry of another is a mere-intruder, a naked, unlawful trespasser; and no right either in law or equity can he founded thereon.</p> <p>(Syllabus by the Court.)</p>

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

¿Error from the District Qourt of Lincoln County; before John H. Burford, Trial Judge. Action by tbe Bank of Strond against tbe Southwestern ^Cotton Seed Oil Company and J. S. Bichardson, to recover tbe sum of $1,269.57, on open account. Verdict in favor of tbe plaintiff and against tbe Southwestern Cotton Seed Oil •Company, for $500.00.

<p> Error from the District Court of Washita Countyj before-Clinton'F. Irwin, Trial Judge. </p> <p>Tbe plaintiff in error, Jobn T. New, was indicted by a grand jury of the district court of Washita county, on the charge of murder, and tried and convicted at the May, 1901, term, and sentenced to imprisonment at hard labor in the-penitentiary for life. Exceptions were saved to certain rulings, a motion for a new trial filed and overruled, and-the case brought to this court for review.</p>

<p>RES ADJUDICATA. In replevin the right of possession of the property involved, is not res adjudicata unless that question is tried and passed upon with such certainty as that the issue is removed from the domain of doubt and uncertainty, and has become distinct and certain.</p> <p>(Syllabus by the Court.)</p>

<p>1. DE FACTO MUNICIPAL CORPORATIONS — Powers. Greer county, Texas, from the date of its organization as a county government in 1886, until it was transferred to Greer county, Oklahoma, by act of congress of May 4, 1896, was a de facto municipal corporation and its officers were de facto officers, invested with full power to create an indebtedness for lawful, corporate purposes, and to levy and collect taxes for the payment thereof.</p> <p>2. SAME — Successors Liable for Valid Debts. Where a municipal, or quasi municipal corporation is dissolved and a new corporation is created embracing the same territory and substantially the same people, and the same taxable property, and organized for the same general purposes, and holding by transfer, without consideration, the taxable property of the former, it is the successor of the old corporation, and is liable for its valid debts, in the absence of an express provision for their payment otherwise.</p> <p>a. SAME — Warrant Indebtedness — Can be Avoided, When. Where the warrant is issued by the officers of a municipal or quasi. municipal corporation, and the creditor accepts the same relying on the ordinary modes of taxation to pay said obligation, the municipality cannot be heard to say, on an action to enforce the payment thereof, that it is barred by the statute of limitations, without first pleading and proving that it has provided a fund for the payment of such indebtedness.</p> <p>4. SAME — Statute of Limitations Can be Pleaded, When. Hence a county cannot plead the statute of limitations to an action against it to enforce an obligation payable from a .particular fund, without first showing that it has provided such fund.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Payne County; before John H. B'urford, Trial Judge. </p>

Error from the District Court of Garfield Cowntyj before John L. McAtee, Trial Judge. Action for replevin by plaintiff in error against tbe defendant in error in the district conrt of Garfield county, to recover six hundred bushels of wheat of the value of $300, upon which plaintiffs claimed a mortgage lien.

<p> Error from the District Court of Noble County; before Bay-ard T. Earner, Trial Judge. </p>

<p>1. WILLS — Order of Probate Court Final, When. Where the probate-court, having- jurisdiction of the probate of a will, admits such will to probate, and such order and judgment become final, it cannot be attacked collaterally in the district court in a suit in ejectment brought by the heirs to dispossess the devisee under the-will of real estate devised to him by the terms of such will.</p> <p>2. SAME — Failure to Attach Attestation Clause of Witnesses, Not Invalidate. It is not necessary that the attestation clause of wit-nessess be attached to the will in order to make the will valid; in its absence it can be shown by competent evidence that the will', was attested as required by law. If the will was signed by witnesses, the absence of the attestation clause simply changes the-mode of proof that the will was witnessed as required by law.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County; before Bay-ard T. Hainer, Trial Judge.

<p>'1. PUBLIC FUNDS — Unauthorized Expenditure — Injunction Will Lie. The district court, sitting* as a court of equity, has the power'to enjoin public officers from misappropriating public funds, or expending public funds at an unauthorized place, or for unauthorized purposes.</p> <p>"2. SAME — County Attorney Proper Officer to Bring Action. The county attorney is the proper officer to bring an action properly triable within his county, on'behalf of the public, to prevent public officers from misappropriating public funds.</p> <p>.3. LEGISLATURE, ACTS OF — Powers Conferred Must be Exercised Within Time Prescribed. The act of the legislature of 1901, authorizing the governor to appoint a commission to locate a site for' the establishment of a Southwestern normal school, limited the time within which such committee was to be appointed, and an attempt to appoint a second committee after the limit had expired was unauthorized, and conferred no authority on the committee so appointed.</p> <p>■4. OFFICER — Power of Removal — Law Governing. Where an officer has the power to remove an appointee, and does not attempt to exercise such power by direct means, and the question of such removal depends solely upon the validity of the appointment of a successor, it will not be held that an invalid appointment of a successor operates as a removal of the prior incumbent.</p> <p>.5. LEGISLATURE, ACTS OF — Uuauthorized Committee — Acts Void. The time within which to appoint a committee to select a site for the Southwestern normal school had expired prior to the appointment of the committee which selected Granite as such site, and their appointment was unauthorized, and their acts void, and the territorial board of education cannot rightfully expend any of the public funds in procuring plans or specifications for, or in the erection of buildings, at such place.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County; before Bay-arid T.| Earner, Trial Judge. STATEMENT OE PACTS.

Error from- the District Oourt of Kay County; before Bay-ard T. Hamer, Trial Judge. STATEMENT OE FACTS.

'Error from, the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT QE EACTS. The plaintiff sued in the district court of Oklahoma .county to recoYer the northeast quarter of section Jive (5), township eleven. (11), north, range three (3) west, Indian Meridian, upon the assumption that the defendants hold in trust for him.

<p>1. OCCUPYING CLAIMANTS — Right of Trial by Jury to Assess Damages — Tax Deed — Ejectment—Procedure. George P. Uhl was the owner in fee simple of lot No. 12 in block No. 47, in the city of Stillwater, Payne county. He failed to pay taxes which had been legally assessed and levied against it, and which the county treasurer had been commanded to collect. The lot was sold at tax sale to one Mrs. Sarah Clark, who never recorded her deed. She sold the lot, by oral contract, to the defendant, W. T. Grissom, who paid the purchase price and went into the quiet possession thereof, and placed thereon valuable and lasting improvements, but never had any written contract with Mrs. Clark for the same. In an action in ejectment by Uhl against Grissom, and in which the judgment was rendered for Uhl on account of irregularities in the tax sale, it was correctly held that the occupying claimants law of 1893 gives to the defendant, Grissom, the right to recover pay for his improvements; but, although the law gives him the right to recover pay for such improvements, the procedure provided for assessing the v.alue of such improvements is unconstitutional and void for the reason that it denies a trial by jury in an action at law which involves more than twenty dollars. (Art. 7 of amendments to the constitution of the united States.) And the trial court, in assessing the value of the occupying claimant’s improvements, committed reversible error.</p> <p>2. SAME — Value of Improvements .Determined, How. The legislature in 1901, (Chap. 22, Sess. Raws of 1901), amended the procedure of 1893 in actions to assess the value of improvements made on land by occupying claimants, so as to give the parties a jury trial; and the amendment of 1901 also provides that all actions then pending in the courts of this territory, involving the rights of occupying claimants, shall be governed' by the provisions of that act. And, inasmuch as the defendant, at the time of the former trial, was, under the law, entitled to pay for his improvements, but could not recover simply because the legislature failed to provide for him a remedy, but have done so now, this case will be remanded with directions to proceed under the law as amended in 1901, and give to the parties, if either demands it, a jury trial.</p> <p>3. SAME — Can Recover for Improvements, When. "Where one is in the quiet and peaceable possession of real estate, and makes valuable and lasting improvements thereon, and subsequently buys the land at tax sale, and receives a tax deéd therefor, in an action of ejectment by the former owner against him, if the plaintiff .is successful, the holder of such tax deed is not entitled to pay for his improvements as an occupying claimant, the improvements having been made before he acquired any rights under the tax deed.</p> <p>(Syllabus by the Court.)</p>

<p>1. PROMISSORY NOTE — Statute of Limitations — Burden of Proof. Where an action is brought to recover on a promissory note, and,, without denying the execution of the note, the defendant pleads the statute of limitations, the burden is on the defendant to make a prima facie case.</p> <p>2. SAME — Evidence—Judgment. In such a case notwithstanding the burden is on the defendant, if the plaintiff introduces a note in evidence which shows upon its face that the action is barred by the statute of limitations: Held, That the defendant may rest his case on the evidence introduced by the plaintiff, and judgment, should be rendered in accordance with the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>REAL-ESTATE AGENT ENTITLED TO RECOVER, WHEN — Occupation Tax — Evidence. Where the evidence is conflicting but reasonably supports the verdict, this court will not disturb the finding of the jury. The city of Guthrie, by ordinance, required the real estate brokers to pay an occupation tax. One Carlisle paid such tax, until the nrayor and city council directed the city officers to collect no further taxes from such agents. He still offered to pay his tax, and the collecting officer declined to receive it. Subsequently, he sold a business lot in the city of Guthrie to one Wicks: Held, that he is entitled to recover his commission for-said sale; that the rule that one who fails to pay an occupation tax cannot recover for his services is enforced for the protection of the taxing power, and that power having refused to receive the tax, Wicks cannot interpose Carlisle’s failure to pay such tax to. defeat a recovery.</p> <p>(Syllabus by the Court.)</p>

<p>Error from- the District Court of Grant County; before John L. McAtee, Trial Judge.</p> <p>STATEMENT OE FACTS.</p> <p>On the 28th day of April, 1898, D. L. Cline filed his petition in the district court of Grant county, Oklahoma, against. J. D. Alexander and W. A; Bradford, Jr., L. E. Walker, and' J. A. S. Graves, co-partners, doing business under the firm name and style of W. A. Bradford, Jr., and Co., L. E.. Walker, as receiver of the Hutchinson and Southern railroad company, the Hutchinson and Southern railway company, a corporation, W. A. Bradford, Jr., L. E. Walker, and J. A. S. Graves. After several motions had been sustained and confessed to the petition, thereafter, on the 20th day of' February, 1899, plaintiff filed his second amended' petition, alleging an indebtedness against all the defendants and claiming judgment in the sum of $1,746.10, with interest atreven per cent, from March 1, 1898, against all the defendants. All of the defendants except J. D. Alexander filed an answer of general denial, and also filed an answer denying partnership. On the 18th day of December, 1899, this cause was by the district court of Grant -county referred to C. M. Keiger, as sole referee, to hear the evidence, and report his finding of fact and conclusions of law, at the next regular term of the court. Keiger, on the same day, towit, the 18th day of December, 1899, qualified as referee, and on the 15th, 16th and 17th, days of January, 1900, all of the parties appearing except J. D. Alexander, tbe evidence was introduced, and the case orally argued before the referee, and some time after that and prior to the May term, written briefs were filed by plaintiff and defendant, except Alexander. The next regular term of the court following the December term in Grant county, was held during the month of May, 1900. No report was made by the referee at that term. On the 17th day of December, 1900, the same being the first day of the December term, 1900, of the court of Grant county, the report of the referee was filed. The said report recommends that a judgment be rendered in favor of the plaintiff and against W. A. Bradford and Company, on plaintiff’s first cause of action, for $1,251.06, and on his tenth cause of action for $5.59', making a total of $1, 236.65, and finds in favor of all the other defendants, except Alexander. No extension of time for making the report of the referee was ever granted by the court, and the record does not show that any time was allowed by the referee to prepare exceptions to his report. On the 18th day of December, 1900, W. A. Bradford, Jr., and L. E. Walker, composing the firm of W. A. Bradford, Jr., & Co., filed their motion in writing for a new trial, which motion was by the court overruled, to which the defendants excepted. On the 19th day of December, 1900, C. M. Keiger, referee filed his motion to have the report of the referee confirmed, and on the same day plaintiff filed his motion to have the report confirmed, and also for judgment on the report. And on the 21st day of December 1900, the court overruled the motion of Bradford and Walker, and sustained the motions of the referee, and the plaintiff, and rendered judgment against W. A. Bradford and L. E. Walker, for $1,389.15, and costs. On the 22nd day of December, 1900, the plaintiffs in error, Bradford and Walker again filed a motion for a new trial, and on the same day filed a motion to vacate the judgment rendered on the 21st, and to strike the referee’s report from the files; this latter motion to vacate the judgment being the only motion in which any objection is raised to the time in which the referee had filed his report. Thereafter, and on the 6th day of April 1901, the motion of plaintiffs in error for a new trial, and the motion to vacate the judgment and to strike the report of the referee from the files, were presented to the court, and both overruled, to which the plaintiffs in error duly excepted, and assigned as error, and brought the ease here for review.</p>

<p> .Frror from the District Court of Oanadicm County; before Clinton F. Irwin, Trial Judge. </p>

Error from the District Court of Canadian County; before CL. F. Irwin, Trial Judge. Action brought in the probate court of Canadian county,, to recover the value of two ’cows and one horse killed by defendant’s train. The case was appealed to the district court, and from a judgment for the plaintiff-in the sum of $150 the-defendant appeals.

.Error from the District Court of Blaine County; before John L. McAtee, Trial Judge. STATEMENT OE PACTS.

<p> Error from the District Cowrt of Cleveland County; before ■ Clinton F. Irwin, Trial Judge. </p>

<p>1. FORCIBLE ENTRY AND DETAINER. Forcible entry and detainer is a proper remedy for a homestead entryman, whose rights have been finally determined, as against one whose claim to the land has been canceled by the land department. The right so determined carries with it the exclusive and undisturbed possession of the whole of the premises.</p> <p>B. SAME — Title Not Litigated. The action of forcible entry and de-tainer cannot be converted into an action to try the question of title to the premises by an answer to the complaint putting in issue such title. (Following McQuiston v. Walton, and Brown v. Hartshorn, this Volume.)</p> <p>(Syllabus by the Court.)</p>

<p>"1. CRIMINAL LAW — Murder. When there is no evidence tending- to establish that the defendant withdrew from the combat after the commencement thereof and before he fired the fatal shot, it is not error to omit to instruct the jury that, although the defendant was the original aggressor, still, if he, in good faith, withdrew from the fight and the deceased pursued him, and he fired the fatal shot, in self defense, he should be acquitted. TJnder such circumstances an instruction on defendant’s1 rights after retreat - should not be given.</p> <p>2. SAME — -Instruction. An erroneous instruction as to manslaughter in the first degree will not reverse a case, where the law as to murder is correctly stated, and the evidence justifies, and the jury finds the defendant guilty of murder, unless it can be reasonably inferred that such instruction, to some extent, influenced the verdict.</p> <p>3. COUNTY ATTORNEY — Deputy, Duties of. A deputy county attorney, as such, may perform any duty imposed upon the county attorney, and, in the trial of a murder case, may read the indictment to the jury and state the defendant’s plea.</p> <p>(Syllabus by the Court.)</p>

<p>Error from, the District Court of Logan County; before John H. Burford> Trial Judge.</p> <p>STATEMENT OF FACTS.</p> <p>This action was commenced on the 6th day of June, 1899, by the defendant in error, Timken Carriage Co., a corporation doing business in St. Louis, Mo., by filing in the district court of Logan county, a petition alleging their corporate capacity under the laws of'the state of Missouri, and that the}'' were engaged in the business of manufacturing buggies, carriages and other vehicles.</p> <p>That on the-day of April, 1898, the plaintiff and •defendant, A. A. Humphrey, made and entered into a certain agreement, whereby the said defendant bought of the plaintiff, and plaintiff sold to said defendant, certain merchandise and vehicles for the agreed price of $1,807.94; that the said defendant bought the same by written order, dated March 22, 1898, showing the description of articles and price thereof, and requested the plaintiff to ship said articles by freight as soon as practicable, and proposing to .make payment in four months from May 15, 1898. Copy of said order was attached and marked “Exhibit A.”</p> <p>That ’thereafter, on the 24th day of March, 1898, the defendant, B. E. Berkey, entered into an agreement with the plaintiff (in writing) whereby he also became indebted in said sum to the plaintiff for the articles of merchandise or-dered by the defendant Humphrey, which instrument in writing was attached to the petition, and marked “Exhibit B.”</p> <p>That the plaintiff duly accepted said order of Humphrey and agreement of Berkey* and thereafter said contract of sale of said articles became complete; and that in compliance therewith, the plaintiff delivered to Humphrey the goods mentioned in said order according to the terms thereof, by reason whereof said defendants Humphrey and Berkey became indebted to the plaintiff in the sum of $1,807.94, that ’$1,029.65 had been paid and that there was still due $778.29 with interest after September 1, 1898, for the recovery of which judgment was prayed.</p> <p>Exhibit “A” to said petition is as follows:</p> <p>“Timken Carriage Co., 2nd and Branch Streets, St. Louis, Mo.</p> <p>Ship via Frisco, Santa Fe to- ■ at once or as soon thereafter'as' practicable, the following .goods as described in your catalogue, on the following terms: ■Cash, less five per cent, in thiry days, or note or acceptance, ■payable four months from May 15, in funds par at St. Louis •or New York, without any expense to factory for carrying, •exchange or collection. No cancellations, agreements, conditions or stipulations, verbal or otherwise, save those mentioned in this contract, will be recognized.</p> <p>“The title to goods delivered under this contract -to remain in the names of the sellers until they shall have received the money for the same, and upon failure to make -such payment, the sellers shall repossess themselves, and take .away such goods. Should time be taken under terms of settlement of this or other contracts with us by the buyer, and he should become insolvent, or default payment, sellers shall have-the right to declare the whole amount of this or other ..sales, including all papers given, to be due and collectible. Payment or settlement to be made direct and not through .salesmen. (Here follows list of goods and prices.) Goods F. O. B. St. Louis, Mo. Shipped at consignee’s risk.</p> <p>“A.- A. HumphRey.</p> <p>Accepted, subject to approval of. Timken Carriage Co., F. A. Slusser, Salesman.”</p> <p>Exhibit “B” to said petition is as follows:</p> <p>"“Timken Carriage Co., Wholesale Carriage Manufacturers. Henry Timken, Prest., H. H. Timken, Sec & Treas. Our specialty Timken New Side Spring Vehicles. 2nd and Branch Sts., St. Louis, Mo.</p> <p>"“Timken Carriage Co., St. Louis, Mo., Mar. 24, 98.</p> <p>“Dear Sirs: Y herewith hold myself responsible for order given you by A. A. Humphrey, Guthrie, O. T., Mar. 22nd..</p> <p>“Yours truly, BeN F. Beekby.</p> <p>“Ship goods to A. A. Humphrey.”</p> <p>On the 20th of June, 1899, the defendant, Humphrey,, filed his separate answer to plaintiff’s petition in two paragraphs. The first was a general denial. The second alleged! that his co-defendant, Berkey, for five years or more had: been engaged in the business of selling buggies and agricultural implements at Guthrie, O. T., receiving, on different occasions merchandise from the plaintiff, which he sold at retail. That he, Humphrey, was engaged wholly in the real estate and insurance business in said city. That on the 22nd day of March, 1898, F. A. Slusser, agent and salesman of plaintiff, called on him at Guthrie, and represented to> him that the plaintiff desired to ship goods to Mr. Berkey,. who was considerably in debt; that the plaintiff did not propose to sell any goods to Mr. Berkey, or part with title to. goods that should be shipped to him, Berkey; that plaintiff was willing to trust Berkey to handle and dispose of' goods, but did not like to ship goods direct to Berkey, for-fear of getting involved in litigation with some of Berkey’s-ereditors in regard to the title of the goods.</p> <p>Said agent then proposed to Humphrey that if he would sign an order for such goods, the plaintiff would ship goods to. Guthrie in the name of Humphrey, and upon arrival he-should turn them over to Berkey as goods of the plaintiff, and plaintiff would arrange with Berkey for the sale and' payment of the same, that if Humphrey would sign such order he would not be considered or held liable to the plaintiff' thereon, and called plaintiff’s attention.to the fact that the; order retained title in the goods until the same were paid for. That upon snch representation said Humphrey was induced to sign said order.</p> <p>That after he, Humphrey, had signed said order, plaintiff without his knowledge made arrangements with Berkey for the sale of the goods, and prepared and sent to Berkey a statement to be signed, acknowledging Berkey’s personal responsibility and liability for said goods, which statement was signed by Berkey and forwarded to plaintiff.</p> <p>That defendant, Humphrey, after signing said order, had no farther dealings with plaintiff, and never saw said goods, and never received the same from plaintiff. That plaintiff shipped the goods to Guthrie in the name of Humphrey, but sent the bill of lading to Berkey, who without the knowledge of Humphrey, received and disposed of the same, and made payments therefor to plaintiff. That he, Humphrey, never received any benefit, advantage or consideration for signing said order, and had no knowledge of the shipment of said goods to Guthrie until long after they had been shipped and turned over to Berkey as aforesaid.</p> <p>The second count of said answer was demurred to by plaintiff, and demurrer was sustained. Afterward, on the 13th of .November, 1899, with leave of eo.urt, defendant,, Humphrey, filed his additional answer, setting forth in general the same facts stated in the first, and averred that he signed the written order for the specific purpose of enabling the plaintiff to sell and deliver the goods to Berkey; that the order was executed, not as a contract, but for the purpose aforesaid; that Berkey at the time was engaged in the imple-1 ment business, and bad become financially involved; that plaintiff, through its agent and traveling salesman, represented to him, Humphrey, that while it was willing to trust .Berkey to the disposition of the goods on commission, it feared that it might become involved with creditors of Berkey in regard to the title of its goods, and it was thereupon under-stood and agreed between said plaintiff, acting through its authorized agent and salesman, and defendant Humphrey, that -said order should be signed by him, Humphrey for the specific purpose of enabling plaintiff to deliver and sell said goods to said Berkey, and it was expressly agreed between said parties that said written order was not to have and had no effect as a contract between the parties, but merely as a writing for the specific purpose aforesaid.</p> <p>Said defendant Humphrey further answering, alleged that said written order was executed without consideration therefore, that none of the goods described were ever delivered to him by plaintiff or any other person, that he never received benefit, advantage or consideration for said order, and that the consideration purporting to be expressed had, totally and wholly failed. Afterwards, on the 15th day of November, 1900, the plaintiff filed its general denial to defendant Humphrey’s answer.</p> <p>Said cause was then tried to a jury, and one A. J. Corkins •vas first called as a witness on behalf of plaintiff, who testified that he was the agent of the Atchison, Topeka & Santa Fe railroad at Guthrie; that such goods were received there, and on April 25 delivered and receipted for upon payment of freight, the receipt signed A. A. Humphrey; that he thought the hand-writing thereto was that of Mr. Humphrey; •that he lmew Mr. Berkey’.s signature, that the cashier at the depot handled this transaction; that he did not see the receipt signed and knew nothing about it personally; that the only knowledge he had was what he gained from the papers; that he thought the receipt was signed by A. A. Humphrey, judging from the handwriting.</p> <p>Mr. Timken, of the carriage company, testified by deposition as follows:</p> <p>“About the 24th of March, 1898 we received through our Mr. Slusser an order for a ear load of vehicles. Said order was dated March 22, 1898, and was signed by A. A. Humphrey. Upon receiving the order I noticed that Berkey had not signed it, and inasmuch as our previous transactions had been wi.th those parties jointly, we desired them to be jointly Ha-bile in this order also. Therefore, on March 24, I wrote the defendant Berkey a letter, a copy of which letter is hereto attached and marked 'Exhibit E/ In reply to that letter, on April 1st, we received from defendant his obligation to be jointly liable with Mr. Humphrey, which paper is hele-to attached and marked 'Exhibit F/ (This is the same as •exhibit 'B5 to the petition.)</p> <p>“The order in question was duly filed by us April 18, 1898.”</p> <p>The evidence of Mr. Timken then showed the amount of payments which were made by Mr. Berkey, and the balance due. His testimony closes with the following:</p> <p>“Question. Please state who ostensibly conducted the business at Guthrie. Answer. Mr. Berkey.</p> <p>“Ques. How then, did Mr. Humphrey come to be inter■ested in the transaction so far as you are concerned? Ans. "We did not regard Mr. Berkey as a responsible person to whom to extend credit, because we had investigated his financial condition, through the mercantile agencies, and had found that, they did not give him any responsible rating. For these reasons we wanted some responsible person to become responsible for the bill. We investigated and found that Mr. Humphrey was responsible, and that we would be safe in giving him credit. This investigation was made at the beginning of our dealings with these defendants.</p> <p>“Ques. On whose credit' did you make the shipment?' Ans. On the credit of Mr. A. A. Humphrey. We would not have .shipped to Mr. Berkey on his sole credit."</p> <p>It was then shown on behalf of the plaintiff by testimony of Mr. B. F. Berkey, that alí of the goods had been disposed of to the .general public before suit brought.</p> <p>After presentation of a demurrer to the evidence by the defendant Humphrey, which was overruled by the court, Mr. B. F. Berkey was called as a witness for the defense, who,, after the introductory testimony in which he stated he knew Mr. Timken in March 1898, was asked:</p> <p>“Question. State whether or not at that time or any time-in the month of March, 1898, you purchased a bill of goods from the plaintiff through their agent Slusser? (Objected to-as incompetent, irrelevant and immaterial, and not the best evidence.)</p> <p>“By the court: Ts that in reference to the goods in controversy ?’</p> <p>“By Mr. Huston: ‘Yes sir/" (Which objection was by the court sustained, to which the defendant excepts.)</p> <p>Mr. Berkey then testified that he knew Mr. Slusser, that he knew when the order for goods was made out; that he saw it made out; that it was at his house; that Slusser and he were present; that he dictated the order, and he (Slusser) wrote it..</p> <p>"Question. Did you have any conversation with Mr. Slus-ser at that time about the matter of giving the order for goods? (Objected to. Objection sustained.)</p> <p>"Ques. Please state what, if anything you stated, to Mr. Slusser at that time concerning the matter of giving him an order? (Objected to. Objection sustained.)</p> <p>“Ques. State whether you saw the instrument signed by Mr. Humphrey. Ans. Yes sir. *</p> <p>"Ques. Please state what, if anything was said by plaintiff’s agent to induce Mr. Humphrey to sign it? (Objected to. Objection sustained.)</p> <p>“Ques. State what was said, if anything, between Slusser ■and Mr. Humphrey, as to any conditions upon which the order was signed, or for what purpose, if any, the order was-to be used, at or before Mr. Humphrey signed the same?” (Objected to. Objection sustained.)</p> <p>Mr. Berkey then testified that he received the goods described in the order; that he received the bill of lading for these goods; that he received it by letter from the Timken Co. in St. Louis, direct to him.</p> <p>That he took the bill of lading, and when the goods came went to the depot for them, showed the agent, the bill of lading as his authority for receiving them, and receipted for them, signing Mr. Humphrey’s name to the receipt and received them after paying freight on the same, and had the drayman take them to his place of business.</p> <p>“Question. State whether or not Mr. Humphrey ever received those goods or any portion of them, if you know?”’ (Objected to. Objection sustained.)</p> <p>Mr. Berkey then testified that he sold the goods to his customers, that he never gave any of them to Mr. Humphrey. That he collected the proceeds of sale, and never gave any of proceeds to Mr. Humphrey. That he paid plaintiffs what was paid for them. Mr. Berkey then testified further that after he and Slusser had made out the order for the goods, he, Slusser, went out to get Mr. Packer, and returned to Berkey’s house with Mr. Humphrey. Mr. Berkey was then again asked for the conversation between Humphrey and Slusser, and whether anything was said between them as to whether or not the order was to be a contract for the purchase of the goods by him, and also for what use the order, when signed was to be put to. All of which was by the court rejected.</p> <p>On cross examination, Mr. Berkey repeated that he got the goods, and stated that he did not know how soon M!r. Humphrey found out that he got them, but that he probably knew within thirty or sixty days.</p> <p>On re-direct examination, Mr. Berkey testified that the written obligations (exhibit “B” to petition) by which he agreed to become responsible for the shipment was made out in St. Louis by the Timken Co., and sent to him; that he signed it and sent it back adding, in his own hand writing the postscript which reads, “Ship goods to A. A. Humphrey.”</p> <p>The defendants then offered W. D. Packer, as a witness to prove the object of securing a signature other than Ber-key to the order and made the following tender of testimony by said Packer:</p> <p>“Counsel for the defendants on behalf of the defendant Humphrey, now offers to prove by this witness that shortly after the order sued on in this case was made out, and before the same was signed by the defendant, Humphrey, that the plaintiff's agent and salesman went to this witness at the business house and office of the defendant, Berkey, in the city of Guthrie, and stated to him that he had completed taking an order for goods from Mr. Berkey, but that Mr. Ber-key had said that- he couldn't give the order himself, for fear that his other creditors, the Keystone people, might jump onto their goods and attach them, and'if the order was made out in his name, that he, Slusser, had proposed -to Berkey to have Billy, meaning Mr. William Packer, this witness, sign the order; and we offer further to prove that Slusser, the agent' and traveling salesman of the plaintiff, then requested this witness to sign this order, and at the same time stating to him that he wasn't to be held liable for it, that it would be no contract at all as between the plaintiff in this case and the witness, but that it would be used only for the specific purpose of enabling them to sell these goods to Mr. Berkey."</p> <p>Offer objected to and 'by the court excluded.</p> <p>Mr. Packer testified that he was clerk for Mr. Berkey; that the bill of lading for the goods in question came, through the regular course of mails from the Timken Carriage Co., of St. Louis, to Mr. Berkey.</p> <p>The plaintiff in error was then offered as a witness in his own behalf, and admitted signing the order for purchase of the goods and'tendered his testimony as to the terms and conditions upon which he signed it, which tender was as .follows:</p> <p>“Here counsel for the defendants, in behalf of the defendant, Humphrey, offered to prove by the witness, Humphrey, that on the day that this order was given, and before it was given, the plaintiff, by their agent, Slusser, came to his real estate and insurance office in the city of Guthrie, and informed him that he had sold a car load of goods to the defendant B.' F. Berkey and that an order had been made out, but that Mr. Berkey had told him that he wasn’t in shape to give the order in his own name for the reason that he was somewhat involved with the Keystone people, other creditors of Berkey’s, and feared that the Keystone people might jump onto the goods of this plaintiff if they were sent to him in his own name, and that Mr. Slusser had suggested to Mr. Berkey that the matter might be remedied by having Billy Packer sign the order, and have the goods sent here to Guthrie in Billy Packer’s name; that he had seen Billy Packer and Billy did not want to do it, as he stayed right there with Berkey, and didn’t want to mix in it in that way, and that he, Slusser, then went to Humphrey and proceeded to explain the matter to Mr. Humphrey, this witness, and stated that if he would sign that order, that he wouldn’t be held liable for it at all, and that it should not be a contract at all so far as he was concerned, and that the only purpose of it was to enable the plaintiff in this case, the Timken Carriage Co.,, to sell this order of goods to Mr. B. F. Berkey; that upon such explanation this witness and defendant accompanied Mr. Slus-ser up to Berkey’s residence, where Berkey was then ill, and the matter was further talked over there with the same effect, and that upon that agreement, that if he, Humphrejr, would sign the order, that he should not be held liable, that it would be used only for the specific purpose of enabling the Timken Carriage Co., to sell and ship these goods to Berkey in order to protect them and Berkey from having those goods •attached by other creditors of Berkey, thereupon the defendant, Humphrey, relying upon those statements, signed said contract if the same was to be used for the specific purpose of ■ enabling the Timken Carriage Co. to sell tbe goods to B. F. .Berkey, and for no other purposed’</p> <p>Upon objection offered this tender of testimony was rejected by the court, and exceptions taken.</p> <p>■ Mr. Humphrey then testified that he never received the .goods, and was never notified of their shipment; that he -did not know for two weeks after Berkey got the goods that he, Berkey, had received them; that he did not authorize Ber-key to get them from the depot; that the freight receipt was not his, and that signature thereto was not his signature; that he did not write his name to it, or authorize any other person to write it. That he did not receive the goods or authorize anybody to receive them on his, behalf. , The court sustained objections to the following questions:</p> <p>“Question. State whether you received proceeds from the sale of any of these goods at any time?</p> <p>“Ques. State whether or not you ever received any benefit, advantage or consideration of any kind or character for or upon that order?”</p> <p>On cross examination Mr. Humphrey testified that there was no understanding at the time the order was signed that Berkey was to receive the goods, further than the understanding he had with Slusser that he was to sign the order for the goods for the purpose of helping Slusser, as agent of the Timken-Carriage Co., to sell a car load of buggies to Berkey, and on that occasion there was no understanding that Ber-key was to go and get the goods when they arrived. That there was nothing said between him and Slusser in regard to receiving the goods, that he knew he was not to receive them because Mr. Slusser told him they would ship the goods direct-tc Berkey in his, Humphrey’s name.</p> <p>The cross examination developed the fact that Humphrey expected Berkey to receive the goods, because he, Humphrey, had not purchased them, but had taken steps intended to-facilitate a purchase by Berkey.</p> <p>Upon re-direct examination there was another attempt to show that whatever expectation Mr. Humphrey had of Berkey’s receiving the goods was based upon the fact that he, Humphrey, had not agreed to the purchase of them, but that Berkey and the company had agreed upon terms between themselves.</p> <p>This* was held by the court incompetent as it sought to contradict the writing.</p> <p>The jury was then instructed by the court as follows,</p> <p>“By the Court: ‘Gentlemen of the jury, you have heard the evidence in this case, and in the judgment of the court there is no controverted issue of fact to be determined by the jury. It is the .view of the court that on the uncontroverted facts and under the issues in this ease, and under the law, that the plaintiff is entitled to recover the amount due for the shipment of buggies under the contract or order that has been introduced in evidence, and the court directs the jury to return a verdict for the' plaintiff for that sum, which I will indicate to you as soon as it is figured up.’ ” (To which instruction of the court, the defendant, Humphrey, excepts.)</p> <p>This was the only instruction given by the court.</p> <p>The jury returned a verdict for plaintiff in the sum of $893, upon which judgment was rendered in favor of plaintiff and against defendant, Humphrey, m said sum. On the next day motion for new trial was filed, on the grounds-that verdict and judgment were contrary to law, and not sustained by sufficient evidence, and other grounds specifying' error in admitting and rejecting testimony, and in peremptorily instructing the jury to return a verdict for plaintiff and against Mr. Humphrey for $893, or for any sum.</p> <p>Motion for a new trial was overruled, and exceptions taken; case was then brought to this court.</p> <p>Exhibit “E” referred to in testimony of Mr. Timken, 'is-as follows:</p> <p>"St. Louis, Mo., Mar. 24, ’98..</p> <p>“B. F. Berkey, Esq., Guthrie, Okla.</p> <p>“Dear Sir: We are in receipt of your order given Mr. Slusser, and signed by Mr. Humphrey. Mr. Slusser writes that you prefer it this way, and it is agreeable to us, providing you simply write us a letter that you are responsible for the account with Mr. Humphrey. We will make shipment to-Mr. H. and also bill it to him.</p> <p>“ Mr. Slusser advises that if we can get in -more work to-put in Hlondykes, crating all leather quarter tops low. On account of the arched axle work, will not be able to ship this ear as promptly as otherwise. We, like all other carriage-houses, have all and more than we can do, and we are liable to disappoint you a little on time -on this order. Business has never been as good as at present, that is as far as the volume-is concerned, and for that reason each buyer wants his goods promptly, which means that a factory must have a little more time in the rush of the season on the individual orders.</p> <p>“We will promise to do our best for you, and feel sure that you will find this ear of work an improvement over the two previous ears.</p> <p>“Thanking yon for the same, and trusting to hear from you promptly, beg to remain,</p> <p>“Yours truly,</p> <p>“TlMKEN CARRIAGE Co."</p> <p>September 26, Timken Carriage Co. wrote A. A. Humphrey as follows: ,</p> <p>“St. Louis, Mo., Sept. 26 ’98.</p> <p>“A. A. Humphrey, Esq., Guthrie, Okla.</p> <p>“Dear Sir: We have drawn on you at one day’s sight for $1,807.94 to pay for car of buggies shipped Apr. 18th, and which was sold on terms of 4 months net from May 1st; therefore as the account was due Sept. 15th we trust you will honor draft on presentation. At one day’s sight, it will give you three of grace, and in this trust it will not inconvenience you to pay it at the end of the fourth day.</p> <p>“Yours truly,</p> <p>“TimxeN Carriage Co."</p> <p>The above letter was answered as follows:</p> <p>“Guthrie, Okla., Sept. 28th, 1898.</p> <p>'“Timken Carriage Co., St. Louis, Mo.</p> <p>“Dear Sir: I am in receipt of yours of Sept. 26th, notifying me that you have drawn on me for buggies shipped April 15th. Of course you are aware how this matter is, and it. will be a great convenience to me if you will call that draft back and wait thirty or sixty days for this money. The larger part of those buggies were sold on time and the notes •are becoming due from the 1st of October up.</p> <p>“Hoping that you may see fit to extend this matter for thirty or sixty days, then the matter will be attended to promptly, I remain,</p> <p>“ Yours truly,</p> <p>“A. A. Humphrey."</p> <p>Which letter was replied to by Timken Carriage Co. as follows:</p> <p>“St. Louis, Mo., Sept. 30 ’98.</p> <p>“A. A. Humphrey, Esq., Guthrie, Okla.</p> <p>“Dear Sir: We are in receipt of yours of the 28th; also’ received letter from Mr. Berkey, and kindly refer you to our letter to him. In that letter we propose that he pay one-half now and the balance December 1st. We have explained our reasons why we cannot see our way clear to grant an extension’ on the whole of the account.</p> <p>“Yours truly,</p> <p>“TlMKEN CARRIAGE Co.”</p>

<p>HOMESTEAD — When Insolvent Debtor May Acquire. Where an insolvent debtor, a resident of this territory and the head of a family, purchases a certain house and lots for the use of herself and family as a home, and proceeds to occupy the same as such, which house and lots were purchased with non-exempt assets, the same being the proceeds of an insurance policy upon her husband’s life, and not property upon the faith and existence of which she has been given credit: Held, that the property is the homestead of the debtor, and exempt from levy and sale. And, in such a case, the fact that she directs the legal title to be conveyed to a third person, for the use and benefit of herself and family, does not change this rule.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>INSTRUCTION — Presumed Regular, When. Where the record does-not contain the evidence upon ■which the instructions were based, it will presumed that it was of such a nature and character as to warrant the trial court in giving the instructions, unless it appears that they would be erroneous upon the .issue joined and every state-of the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>"1. PETITION — Attorney’s Fee — Demurrer. Where a petition states a good cause of action for debt and foreclosure of mechanic's, lien, and, in addition thereto seeks to recover $40 attorney’s fees: Held, that although plaintiff is not entitled to recover an attorney’s fee, yet the allegation and prayer therefor does not render the petition so defective that the matter may be reached by general demurrer to the whole petition.</p> <p>12. MOTION TO SET ASIDE JUDGMENT — Not Error to Ovrrrule, When. It is not error for a trial court to overrule a motion to set aside a judgment on the ground that the defendant was taken by surprise because court convened at 9 o’clock a. m. instead of ;at 9:30, as his attorneys understood the time to be.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kiowa Countyj before John H. Burford, Trial Judge. .STATEMENT OF FACTS. The plaintiff in error was the city attorney of the city of Hobart, having been elected to that office in October, 1901. On February 11, 1902, be was removed from office by the mayor and council of the city of Hobart, upon charges of misconduct in office preferred against him.

Error from the District Court of Grant County; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. This was an action brought in the district court of Grant county by Sarah C. Bass against the heirs at law and next of kin of David W. Smith, deceased, to compel the conveyance of a certain tract of land to the plaintiff by virtue, of a certain oral agreement entered into between David W. Smith and the plaintiff in error on the-°day of October 1895.

<p> .Error from the District Court of Logan County; before John R. Burfordj Trial Judge. </p>

<p>COUNTY TREASURER — Term of Office Begins, When. The plaintiff was elected to the office of County Treasurer of Kiowa County at the November, 1902 election. Held: That, under section 1, article 5, chapter 11 of the Session Laws of 1899, his term of office does not begin until the first Monday in October, 1903.</p> <p>(Syllabus by the Court.)</p>

<p>1. FOREIGN JUDGMENT — Action Upon. An action on a foreign judgment must be brought within one year'from the time the action accrues thereon.</p> <p>2. STATUTE OF LIMITATIONS — When Begins to Run. An appeal from the final order and judgment of the district court to the ’ supreme court, in the absence of a supersedeas or stay bond, does not postpone or suspend the operation of the statute of limitations.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Woods County; before John L. Pancoast, Trial Judge. STATEMENT OE EACTS. This action was commenced in the district court of Woods •county by filing in the clerk’s office of said court on the 25th •day of June, 1902, a petition for injunction, and a summons was issued for defendants. At the time of filing the petition, and for some time afterwards, the probate judge of Woods county was absent from the county.

Error from the District OovJrt of Garfield Gounty; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. This action was commenced in the probate court of Garfield county, on February 26, 1901, wherein the defendants in error brought suit to recover judgment against the plaintiffs in error for the sum of $200.

Error from the District Court of Garfield County; before John L. Me Aten, Trial Judge. STATEMENT OF FACTS'. On September 4, 1894, the defendant in error, John Hudson, commenced this action in the probate court of Garfield county against N. Randolph, to recover two hundred seventy-five dollars, with interest at twelve per centum from May 15, 1894, upon a note executed by N. Randolph to J. H. Thomas, which note was in words and figures as follows: $275.00.

Error from the District Court of Logan County; before John H. Burford, Trial Judge. STATEMENT OE EACTS. This was an action brought by the plaintiff in error to condemn a right' of way over the northwest quarter of section 8, in township 15, north of range 3, west of Indian Meridian, in Logan county, Oklahoma Territory.

<p>Error from the District Cou,rt of Pottawatomie County; before Bayard T. Hainer, Trial Judge.</p> <p>STATEMENT OF FACTS'.</p> <p>This is an action in equity to declare a trust, and grows out of proceedings in the United States land office between the parties relative to their respective rights to make homestead entry to the south half of the southeast quarter of section eighteen, township ten north, range four east of the Indian Meridian, Pottawatomie county, Oklahoma.</p> <p>It appears from the record that plaintiff in error, Estes, made settlement upon the southeast quarter of section eighteen aforesaid on September 22, 1891, and on September 25,. 1891, made his homestead entry thereof in the United States land office at Oklahoma City. Thereafter the defendant in-error, Timmons, filed his contest affidavit against the entry of plaintiff, alleging priority of settlement thereon. In due-course of time this contest came on for trial before the land office officials, resulting in the finding, and decision by the register a;nd receiver that the defendant, Timmons, was entitled to enter the land by virtue of his priority of settlement, which decision of the land office was made and entered on the 21st day of May, 1894.</p> <p>Thereafter on the 26th day of September, 1894, plaintiff' in error, Estes, filed in said land office, his affidavit of con-' test against said Timmons’ homestead entry, alleging in substance that said Timmons was not qualified to make homestead entry of said premises for the reason that he had entered upon said lands and other parts of the territory opened to settlement, prior to 12 o’clock, noon, of the 22nd day of September, 1891, and subsequent to September 18, 1891, in violation of the laws and proclamation of the president opening said lands to settlement.</p> <p>It will thus be -seen that the issue to be tried in this-last contest was whether Timmons, the defendant in error,. had wrongfully entered upon said lands during the prohibited' period, and was therefore perpetrating a fraud upon the government in attempting to hold the same. This second contest between these parties also came on for hearing before the land office, and a large number of witnesses were examined therein. The result of this contest was a finding and decision by the register and receiver that said defendant, Tim-mons, did not so enter upon and occupy said lands and was-therefore qualified to make settlement and homestead entry of said tract. Both of these contests were carried to the-commissioner of the general land office and from him to the secretary of the interior, and the findings and decision of the-register and receiver were by each of these officers affirmed.</p> <p>Thereafter the plaintiff, Estes, filed his petition in this-cause, setting out all the evidence taken before the register and receiver in the last contest, wherein the right and qualification of defendant, Timmons, to make homestead entry of said lands, was the issue, and alleging that Timmons obtained the finding and decision of the land department by means of the false, fraudulent and perjured testimony so-given and accepted by the said register and receiver.</p> <p>To this petition defendant, Timmons, filed a general' demurrer, which, having been presented and argued in the court below was by that court sustained. From the order and judgment sustaining said demurrer plaintiff prosecutes this-appeal.</p>

<p>1. EQUITABLE ACTION — Error In Instructing Jury. In actions which 1 are purely equitable, the functions of the jury are only advisory to the court, and the court having adopted the verdict of the jury as his findings of fact, the instructions of the court to the jury are wholly immaterial, and error cannot be predicated thereon.</p> <p>2. QUESTIONS OF FACT. The rule in this court is, that where the evidence reasonably tends to support the finding of the district court or a jury in such court, this court will not disturb the finding.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGMENT — Excessive. The fact of a judgment being excessive does not render such judgment void; it is at most only voidable as to such excess.</p> <p>2. SUMMONS — Return.. A summons made returnable more than ten days from the date of its issue is not for this reason void, where the answer day is fixed in the summons at twenty days after the return day; and a judgment rendered thereon is not void, and cannot for such irregularity be enjoined.</p> <p>3. SAME — Endorsement on — Judgment—Void, When. A summons in an action for the recovery of money only should have endorsed thereon the amount for which judgment will be rendered if the defendant fails to appear. Summons without such endorsement is sufficient to give the court jurisdiction of the person and of the subject matter, and the judgment rendered thereon is not void, but is voidable only, and execution to enforce such judgment cannot be enjoined.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before John H. Burford, Trial Judge. STATEMENT OE PACTS. In this ease the plaintiff in error condemned a right of way for its railway over and across the land of the defendant in error. Defendant in error filed a demand for a jury trial, and the case was tried to a jury at the February term, 1901, of the district court of Logan county, resulting in a verdict in favor of the defendant, the land owner, for the sum of $1150.

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

Error from the District Court of Oklahoma, County; before• Benj. F. Burwell, Trial Judge. STATEMENT OE EACTS..

<p>1. CONTINUANCE — Law Governing. It is the settled law of this court that the granting- or refusing to grant a continuance of a cause, rests largely in the sound discretion of the trial court, and such ruling will not he disturbed by this court unless it clearly appears that there is an abuse of discretion.</p> <p>2. SAME — Absent Witness. Where a continuance of the cause is sought on the ground of absent witnesses the party applying for a continuance must clearly and concisely state the facts which he expects to prove by such absent witness, and its materiality must clearly appear. Mere conclusions of fact or of law do not satisfy the requirements of the statute. It- must further appear from the showing that the party has exercised due diligence, and that there is a probability of procuring’ the testimony of the witness within a reasonable time; and where the application for continuance is wanting in any of these essential matters, it is no’t error to refuse to grant a continuance.</p> <p>3. INSTRUCTION — Must Correctly State Law as Applied to Evidence. Instruction number two, requested by the defendants, was rightfully refused by the court, since it did not correctly state the law as applied to the evidence, and as a consequence would have misled the jury.</p> <p>4. SALE — Bona Fides Question of Fact. The bona tides of the salé or transfer in this case was a question of fact that was submitted to the jury under proper instructions of the court, and it is a well settled rule of this court that where the evidence reasonably sustains the findings of the jury, such finding will not be disturbed.1</p> <p>(Syllabus by the- Court.)</p>

Error from the District Court of Garfield County; before Jno. L. McAtee, Trial Judge. statement oe pacts. This was an action in replevin instituted in the district court of Garfield county by Martha Spencer, plaintiff, against the Farmers State bank and Frank Whetsell, defendants, wherein the plaintiff claims that she is the owner and entitled to the immediate possession of certain personal property described in her petition.

Error, from the District Court of Cleveland County; before Benj. F. Bur-well, Trial Judge. STATEMENT OE EACTS.

Error from the District Court of Noble Countyj before Bay-ard T. Ilainer, Trial Judge. STATEMENT OF PACTS. The case was commenced by the plaintiff in error in the-probate court of Noble county, Oklahoma Territory, on the-31st day of May, 1899, summons was issued and served on defendant in error, issues were joined, and the cause came on for bearing before the judge of said court, Feb. 19, 1901, and judgment rendered.

<p> Error from the District Court of Jogan Gouty; before John H. Bwrford, Trial Judge. </p>

<p> Error from the District Court of Kiowa County; before John E. Burford, Trial Judge. </p>

Error from the District Court of Grant County; before John' L. McAtee, Trial Judge. STATEMENT OE PACTS. Myrtle A. Racey, one of the defendants in error, on the-,2nd day of November, 1900, instituted in the district court of Grant county, Oklahoma Territory, an action for divorce against Clement L. Racey, 'the plaintiff in error.

<p>1. ATTACHMENT — What Affidavit Must Contain. In an attachment proceeding under the Statute of 1901 hy a landlord to recover rent of leased premises, the affidavit must conform to the provisions of that act. Proof in support thereof which shows the disposition of crops grown on leased premises more than thirty days prior to commencement of attachment proceedings, does not support an affidavit for attachment under said act.</p> <p>2. SAME — What Property May be Levied on. An affidavit for attachment under the Statute of 1901, hy a landlord, to recover for rent ' of leased premises, does not justify a levy on property other than crops growing or grown on the land.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the. District Court of Nolle County; before Bay-ard T. Hainer, Trial Judge. </p> <p>STATEMENT OF FACTS.</p> <p>On the 4th day of August, 1900, William B. McDonald, as administrator of the estate of William B. Megreedy, commenced this action in the district court of Noble county by filing his petition in which he alleges that William B. Me-greedy owned a lease of lands in the Ponca Indian reservation,, particularly describing said lands.</p> <p>That Megreedy in the year 1899, subleased said lands-to J. B. Macklin, and attaches a copy of the lease; that Mack-lin continued in the possession of said lands after the expiration of said lease, and planted said lands in corn and wheat; that under the terms of said lease Megreedy was entitled to-one-half the wheat when threshed; that, Sylvester Flitch claimed an interest,in said wheat; that defendants, Macklin and Flitch, refused on demand to deliver said wheat; that defendants are insolvent, and are selling the wheat, and prays-¡judgment against the defendants for the value of the wheat sold, for an injunction, for a receiver, and for judgment for one-half of the wheat remaining or its value.</p> <p>On August 4, 1900, an injunction was granted by the-probate judge of Noble county.</p> <p>On September 3, 1900, the defendants filed a motion to-dissolve the" injunction, and on the same day defendants filed their answer containing first a general denial, except admitting the sub-letting of the premises in 1899, as alleged irf the petition, and second, setting up the fact that the lands sub-leased were Indian lands, and held by Megreedy under an Indian lease approved by the Indian agent, the commissioner of Indian affairs, and the secretary of the interior, and that the sub-leasing had not been so approved; that said de-lendants were in possession of said premises under and by-virtue of a purchase of the lease of Megreedy from William E. McDonald, as his administrator, paying therefor the sum of' three hundred dollars, and the instalment of rent due on said7 lease from the estate of William R. Megreedy amounting to -$371; that said $371 was used by the administrator in dis•charging and paying the debts of the estate.</p> <p>On September 8, 1900, the court modified the injunction .so as to permit the wheat to be threshed and stored.</p> <p>On Sept. 13, 1900, plaintiff filed his reply, setting up that the' sale of said lease was never approved by the probate court; that he received the three hundred dollars; that the ■contract of sale was rescinded, and money repaid by being •deposited in the bank and notifying Flitch thereof.</p> <p>On the 26th day of February, 1901, the death of Sylvester .Flitch was suggested, and on application of the plaintiff, the ■cause was revived in the name of Dollie Flitch. A jury Toeing waived by all parties, the case came on to be heard by •the court. On the trial of the cause the defendants objected to the introduction of any evidence on the part of the plaintiff for the reason that the petition did not state facts sufficient to constitute a cause of action, which objection was overruled and exception reserved.</p> <p>On the trial the plaintiff offered in evidence the Indian leases tj the land described in the petition, which leases contained the following provision:</p> <p>“That he will not at any time during the period for which said land and premises are herein leased, assign, lease, -convey or transfer any Of his or their estate, interest or term, or any part thereof in the same, or the appurtenances thereto, or sub-let the same to any person or persons whomsoever, without the consent thereto of the party of the first part in writing, being first obtained, and the same approved by the secretary of the interior.”</p> <p>Tbe cause was tried on tbe 14th day of June, 1901, and on the following" day the court rendered judgment in favor of the defendant. Plaintiff filed motion for a new trial on the 18th day of June, 1901, and on the 29th day of the same month it was overruled by the court, to which judgment and the overruling of the motion for a new trial, exceptions were saved, and the cause is brought here for review.</p>

Error from the District Court of Olclahoma County; before John II. Burford, Trial Judge. STATEMENT OF PACTS. The facts upon which this action is based are substantially as follows: On October 9, 1897, D. 0.

Error from, the District Court of Garfield Countyj before John L. McAtee, Trial Judge. STATEMENT OE PACTS. On the 12th day of October, 1893, plaintiff in error Set-Tied upon the south half of southwest quarter of section 3, township 23, north, range 7 west I. M.-, in Garfield county. On the 8th day of December, 1893, the defendant in error filed in the land office at Enid his soldier’s declaratory statement for the entry of the southeast quarter of said .section 3.