Volume 15 — Oklahoma Reports

<p>1. USURY — What Constitutes. The law of this Territory prohibits the taking or contracting for any higher rate of interest than twelve per cent per annum, and makes it unlawful to deduct more than one year’s interest from the loan in advance, but it is not unlawful to compute the interest for the entire time the loan is to run, and contract to pay such sum in installments of such sums and at such times as the parties may by contract agree.</p> <p>2. ACTION ON NOTE — Demurrer to Answer. It is not error to sustain a demurrer to an answer which alleges no consideration for a note, and which pleads the special facts from which such conclusion is deduced, when from such specific facts it is apparent that such conclusion is erroneous, and that such note is based upon a sufficient consideration.</p> <p>3. APPEAL — Cross Errors. The defendant in error will not be heardupon cross errors assigned, unless he has saved exceptions to the matters complained of in the court below. Errors of the trial court not objected to and not called to the attention of the trial court, or excepted to, will be deemed as waived.</p> <p>(Syllabus by the Court.)</p>

<p>1. RAPE — Evidence—Corroboration of Prosecutrix. There is no statute in this Territory requiring the testimony of the prosecutrix in a trial for rape to he corroborated by the testimony of other witnesses, and a defendant charged may be convicted upon the uncorroborated evidence of the prosecutrix alone, provided such evidence satisfies the court and jury of the guilt of the defendant' beyond a reasonable doubt. Sowers v. The Territory, 8 Okla. 436, overruled.</p> <p>2. CRIMINAL PROCEDURE — General Rule Will Apply, When. Where the legislature has undertaken to regulate the procedure in criminal cases and determine the character and quantity of proof necessary to sustain a conviction in a class of cases relating to a general subject-matter, and has applied no special rule to one of such class, the general rule will apply, and the process of judicial ingrafting is not permissible.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma County; before, C. F. Invin, Trial Judge. STATEMENT OK EACTS. A brief bistory of tbis case in tbe land tribunal is as follows: On April 23, 1889, Ewers White made homestead entry number six on tbe southwest quarter of section twenty-seven, township twelve north, range three west, at the United States land office at Guthrie, Oklahoma. On April 24, 1889. Charlejr J. Blanchard made homestead application for the same tract of land.

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

<p> Error from, the District Court of Greer County; before Frank E. Gillette, Trial Judge. </p>

<p>CORPORATION — Effect of Appearance. A corporation by appearing- to a suit against it thereby admits its 'corporate existence.</p> <p>(Syllabus by the Court.)</p>

<p>1. CRIMINAL LAW — Evidence. Errors committed by a trial court during the progress of the trial of a criminal case will not avail the defendant where such errors were corrected before the case was finally submitted to the jury, and in such circumstances that the defendant could have taken advantage of his rights under the correct ruling; and if a defendant, after he learns that the court has discovered its error and corrected it, fails to take advantage of his rights thereunder when conditions were such that he could have done so, he will be deemed to have waived them.</p> <p>2. MISCONDUCT OF TRIAL JUDGE. Improper conduct will not he presumed on the part of a trial court, and a case will not be reversed on that ground unless such misconduct is affirmatively made to appear by the record itself, or other proper showing.</p> <p>3. NEWLY DISCOVERED EVIDENCE. A trial court is not compelled to grant a new trial on the ground of newly discovered evidence where the motion is supported by the affidavits of three witnesses, even though no counter showing is made by the Territory. The trial court has a right to consider the whole record of the trial as well as such affidavits, and it should consider the credibility of all of the witnesses and the bearing of the newly discovered evidence, even if true, upon the probable result of another trial; and its action on such matter will be reversed only when it clearly appears that the order is wrong.</p> <p>(Syllabus by the Court.)</p>

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

<p>Error from the District Court of Pottawatomie County; before B. P. Burwell Trial Judge.</p>

<p>APPEAL — Review—Motion for New Trial. Rulings of the trial court, made in the course of the trial, are not available as grounds of error in the supreme court, unless a motion for a new trial has been filed, and the overruling of such motion is assigned as error in this court.</p> <p>(Syllabus by the Court.)</p>

<p>ATTACHMENT — No Appeal, When. No appeal -will lie to the district court from an order of the probate court discharging: an attachment.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. COUNTIES — Construction of Court Houses and Jails. Section 2, of article 8, chapter 32, Laws of Oklahoma, 1897, relative to the construction of court houses and jails, is not repealed by chapter 11, Laws of 1903. The Laws of 1893, and article 8 of chapter 32, and article 1 of chapter 12, of the Laws of 1897, and chapter 11 of the Laws of 1903, eaclj provide additional plans to raise revenue for, and the construction of county buildings; neither was intended to take the place of the other.</p> <p>2. SAME — Present Indebtedness. A contract providing for the construction of a court house and jail, and the payment of an annual rental, under the provisions of section 2, of article 8, of chapter 32, of the Laws of 1897, and at the end of which time the title to be vested in the county, does not create a present indebtedness against the county in a sum equal to the aggregate amount of such rentals for the entire period of time for which ' the contract is to run.</p> <p>(Syllabus by the Court.)</p>

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

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

Error from the Frótate Court of Oklahoma County; before • William P. Harper, Trial Judge. STATEMENT OE FACTS. This is an action brought in the probate court of Oklahoma county on information filed in said court on the affidavit of Clifford Bailey, charging the defendants with the crime of carrying on and conducting games of gambling, in Oklahoma county, in the Territory of Oklahoma, on the 22nd day of December, 1903.

Error from the District Court of Logan County; before Jno. E. Burford, Trial Judge. STATEMENT OE EACTS. This was an. action commenced by Thomas Bathgate by filing a petition in the district court of Logan county, on the 15th day of August, 1902. His first.cause of action was upon a promissory note in the sum of $5,173.43, dated April 1st, 1899, due and payable April 1st, 1902, with interest at eight por cent per annum.

<p>1. CIVIL PROCEOURE — 'Forcible Entry and Detainer — 'Pleadings In an action in the probate court under the chapter on forcible entry and detainer, the defendant is not required to file any pleadings; the plaintiff, to entitle himself to.a judgment of restitution, must prove his case.</p> <p>2. SAME — Notice. A party desiring to commence an action of forcible entry and detainer should, at least three days before commencing his action notify the adverse party by a notice in writing, to leave the premises in dispute; and if he does not give such notice, he cannot maintain the action.</p> <p>3. SAME — Notice Must Be Affirmatively Shown. A plaintiff cannot maintain an action of forcible entry and detainer, if the three days’ notice to leave the premises, prescribed by section 5089, Wilson’s .Statutes 1903, is not given, and the plaintiff, to obtain judgment in such case, must affirmatively show the service of the notice.</p> <p>4. JUDGMENT — Irregularities—Binding Till Set Aside. Where a court has jurisdiction of the subject-matter of an action and of the parties, and the judgment rendered'is not in excess of the jurisdiction and powers of the court, errors and irregularities in the proceedings by which the judgment was obtained will not render the judgment void, but until vacated or set aside in a proper proceeding, it is valid and binding upon the parties.</p> <p>5. LAND CONTEST — Appealed to Secretary of the Interior. The fact that proceedings are instituted by the unsucessful contestant in a contest case before the land tribunal, asking the Secretary of the Interior to exercise his supervisory powers and reopen the case, does not preclude the court from taking jurisdiction in an action of forcible entry and detainer instituted by the successful contestant.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before John U. Bur ford, Trial Judge. STATEMENT OE FACTS. . This case comes to this court by petition in error and transcript from the Logan county district court. The plaintiff complains of an order of said court sustaining the demurrer to the petition of the plaintiff in error. The certificate of the clerk to said transcript, is as follows: “Territory of Oklahoma, County of Logan, ss.

<p>Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge.</p>

<p> Error from the Prolate Court of OTclahoma County; before William P. Harper, Trial Judge. o </p>

<p>Error from the District Court of Garfield County; before James K, Beauchamp, Trial Judge.</p>

<p>1. EVIDENCE — Sufficiency of. Where a jury find the evidence sufficient and return a verdict of guilty, and the trial court denies a motion for a new trial, the supreme court will not set aside such verdict, unless, assuming to be true all that is testified to, the presumption of innocence is not overcome.</p> <p>2. SAME — Admissibility of. In a trial for the offense of rape any evidence tending to corroborate the evidence of the complaining witness, or to show an assault and the manner of its commission at the time and place charged in the indictment, is admissible, even though it show an assault upon another person at the same time.</p> <p>3. SAME — Impeachment of Witness — Stenographer's Record. A witness may be impeached by showing that he has testified in another proceeding involving the same subject-matter, different from and inconsistent with his testimony sought to be impeached, and for such purpose the stenographer who took his testimoney on the for? mer occasion is a competent witness, and for the purpose of accuracy may refresh his memory from his long hand transcript of the evidence taken on such former occasion.</p> <p>4. SAjME — Carbon Copy of Stenographer’s Transcript. 'Where the stenographer’s short hand notes of testimony have been by him transcribed in long hand, and at the time of so doing he makes duplicate carbon copies of the same, such duplicate carbon copies are not copies in the sense in which the word “copy” is ordinarily used, and the use of such a carbon copy by a stenographer testifying, from wliich to refresh his memory, is not error.</p> <p>5. TRIAL — Conduct of Counsel. Where counsel for the Territory in the trial of a criminal cause gives expresión to inarticulate utterances expressive of contempt for an answer made by a witness, and' during the trial of such cause denominates a witness as a “smart aleck” and refers to documents offered in evidence as having been prepared by a “shyster” or "jack-leg", such conduct deserves the immediate rebuke of the trial court, but does not necessarily constitute reversible error.</p> <p>6. MEDICAL EXAMINATION. A medical examination of the prose-cutrix is not indispensible to warrant a conviction for the crime of rape.</p> <p>7. INSTRUCTIONS — Force and Resistance of Prosecutrix. It is not necessary for the court to instruct or caution the jury that “the charge of rape is easily made, hard to prove, and 'harder still to disprove.” The court instructed the jury that they must be satisfied beyond! a reasonable doubt “that the prosecuting witness resisted to her utmost capacity, and that her resistance was overcome by force -and violence.” That was all that was necessary.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Greer County; before James K. Beauchamp, Trial Judge. </p>

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

Error from the District Court of Canadian County; before C. F. Irwin Trial Judge. STATEMENT OF FACTS.

<p>ON REHEARING.</p> <p> Error from the Prolate Court of Greer County; before T. P. Clay, Trial Judge. </p>

<p>LANDLORD AND TENANT — Duty to Put Building in Condition Fit For Occupation. A landlord who rents the second story of a store building, in a store block, which is intended to be used by the lessee for printing and publishing a newspaper therein, in the absence of an agreement in the lease, is not bound to put the building in a condition fit for such occupation and repair all subsequent dilapidations thereof, as the property leased is not a building intended "for the occupation of human beings”, within tne meanings of sections 863 and 864, ’Wilson’s Statutes.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Dewey County; before J. L. Pancoast, Trial Judge.</p>

<p>Error from the District Court of Woodward County; before J. L. Pancoast, Trial Judge.</p>

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

<p> Error from the District Court of Blaine County; before James E. Beauchamp, Trial Judge. </p>

<p>1. INDICTMENT — Stealing Domestic Animals — Allegations. Section one of article two of chapter twenty of the session laws of 1895 provides: “That if any person shall steal any stallion, mare, colt, gelding etc. * * * * he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentary for a term of not less than one nor more than ten years.” Under this law an indictment need not allege the value of the animals stolen.</p> <p>2. EVIDENCE — Sufficient, when. Where the evidence is sufficient to support the verdict, ordinarily, this court will not reverse the case because the greater number of witnesses may have testified favorably to the defendant on the principal points in the case. The jury have a better opportunity to determine the credibility of the witnesses than have the judges of an appelate court.</p> <p>3. EVIDENCE — Questions by Trial Judge. A trial judge has a right to ask of any witness on his own motion such questions as will tend to elicit the truth, but they should be asked in a spirit of fairness and in such a way as will not tend to prejudice the jury against the rights of either the Territory or the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>1. BAIL — Powers of Courts and Clerks as to. Courts have inherent power to take bail or recognizance in a criminal case, but clerks have such power only when it is conferred upon them by statute.</p> <p>2. SAME — iCIerk. Our statute does not authorize the clerk of the district court to take bail in a criminal case, and hence a bail bond taken by him is void.</p> <p>(Syllabus by the Court.)</p>

<p>ON REHEARING</p> <p> Error from the Probate Court of Greer County; before T. P. Clay, Trial Judge. </p>

<p>1. MUNICIPAL OFFICERS — Presumption as to. Municipal officers are presumed to act within the scope of their powers until the contrary appears.</p> <p>2. MUNICIPAL WARRANT — Presumption as to — Burden of Proof. Municipal warrants, valid upon their face, are presumed to be issued for a lawful corporate purpose and the burden of proof in this case was upon the municipality to show that they were issued for a purpose concerning- which the municipality had no power to contract.</p> <p>(Syllabus by the Court.)</p>

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

<p>SCHOOL DISTRICTS, CREATION OF — Appeal to Board of County Commissioners — Rehearing Before Allowed, When — Injunction. Where a board of county commissioners have decided the right to create a new school district, under the statute which authorizes an appeal in such matters from the county superintendent to such board, it may, on motion of either party and for good cause, reconsider its former order at the same session or at the same term, unless the appeal has been granted or vested rights accrued under the first order; but such rehearing can in no event be had except upon notice, or a voluntary appearance by the adverse parties. In such matters the commissioners should act promptly and safeguard the right of appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. CHANCERY JURISDICTION — In Whom Vested. By the organic act, all chancery power is vested in the district and supreme courts, respectively, and the probate courts do not possess, and, cannot exercise, such powers.</p> <p>2. SAME — Appointment of Receivers. 'The appointment of a receiver is the exercise of chancery power, and such power cannot be con-: ferred upon, or exercised by, the probate courts.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Logan County; before, J. L. Pancoast, Trial Judge.</p>

<p>Error from the Prolate Court of Oklahoma County; before William P. TIarper, Trial Judge.</p>

<p>1. ‘INSTRUCTIONS — Wot Reviewed, When. Tbis court will not review the instructions of a trial court, where the record fails to show that any objections were made or exceptions taken to such instructions at the time they were given.</p> <p>2. NEW TRlAL-^rNewly Discovered Evidence. As a general rule, newly discovered evidence which merely tends to impeach or discredit a witness, is not suffiicient as a ground for a new trial.</p> <p>(Syllabus by the Court.)</p>

<p> iError from the District Com'i of Nolle County; before, Bayard T. Hamer, Trial Judge. </p> <p>STATEMENT OE FACTS.</p> <p>This action was commenced in the district court of Noble County on the 6th day of September, 1902, by Joseph Kosta-chek against May Eouth, formerly May Dykes, John Routh and W. E. Cooper, upon a note and mortgage executed by May Dykes, who afterwards married John Routh, to Levi E. Warren for $1250.00 and interest at the rate of seven per cent, per annum. The defendant, John Routh, was made a party to the action because he was the husband of May Routh, and W. E. Cooper was made a party because he was in possession of the land upon which the mortgage was executed. The defendants answered in said • action on the 4th day of November, 1902, and subsequently, on the 20th day of February, 1903, the defendants John Routh and May Routh filed an amended answer, in which amended answer it is admitted that the plaintiff, Joseph Kostachek, was the owner of the note sued upon, hut alleged that the same was transferred to him for the purpose of oppressing Mrs. Routh. In the answer it is alleged that the original note was-obtained by one S. D. Bailey from Mrs. Routh by fraud, and that Joseph Kostachek having purchased the note after maturity took it subject to this defense. To this answer the plaintiff filed a reply in the nature of a general denial.' The action was tried on the 22nd day of June, 1903, resulting in a judgment in favor of the plaintiff, Joseph Kostachek, and. against the defendant, May Routh, for the recovery of the amount of the note and interest, and against all of the defendants for a foreclosure of the mortgage.</p>

<p> Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. </p> <p>STATEMENT OP PACTS.</p> <p>This case originally arose in tbe probate court of Logan County, on an application by the defendant in error, Frances A. Eeaves, for letters of administration on the estate of H. II. Eeaves, deceased, as his wife, and objections thereto by Boberfc S. Eeaves, a brother of the deceased, on the grounds that she was not his wife. A decision was rendered by the probate court, granting letters of administration to Frances A. Eeaves. From that decision an appeal was taken to the district court. A jury was waived and the cause tried to the court. The decision of the probate court was affirmed, and letters of administration granted to Frances A. Eeaves. Motion for new trial was filed within the statutory time, overruled by the court, exceptions saved, and the cause is brought here for review.</p>

Error from the, District Court of Woods County; before J. L. Pancoast, Trial Judge. STATEMENT OR RAOTS.

Error from the District Court of Pottawatomie County; before B. F. Burwell, Trial Judge. STATEMENT OE FACTS. This is an action brought by petition in error to this court from the district court of Pottawatomie county, wherein at the February term, 1904, of said court held in and for said county, in the Territory of Oklahoma, W. A. Hensley was convicted of the crime of robbery, and sentenced to the penitentiary for a term of ten years.

Error from the District Goiurt of Lincoln County; before Jno. II. Burford, Trial Judge. STATEMENT OR TACTS. This was an action originally brought in the district court of Lincoln county by the Southwestern Cotton Seed Oil Company, defendant in error, against John S. Richardson and wife, plaintiffs in error, to foreclose a real estate mortgage.

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OF FACTS: This was an action brought by the plaintiff below, Mollie Carey, in the district court of Logan county, against the city of Guthrie, for personal injuries alleged to have been caused by a fall on defective sidewalks in said city on or about tbe 19th day of March, 1902.

Error from the District Court of Oklahoma, County; before B. F. Bunvellj Trial Judge. STATEMENT OE PACTS. This was an action brought in the district court of Oklahoma county to recover on a contractor’s bond, given pursuant to section 4539 of the General Statutes of 1893.

<p>Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.</p> <p>STATEMENT OR EACTS.</p> <p>Sarah M. Smith, defendant in error, sued in the court below to recover damages from the plaintiffs in error, Dun-bam & Ryan, for having falsely and fraudulently shown her certain lots in block 28, in Maywood addition, in Oklahoma City, as being lots which they had for sale as real estate agents, and belonging to J. M. Healy, and having fraudulently induced her to accept a deed to the corresponding lots in block 24, in the same addition, she believing that the deed described the lots which had been shown her. The answer of the defendants, while admitting the plantifFs representations, and admitting that the wrong lots were shown her, and that the deed covered other and different lots from those shown her, claim that they acted in good faith in showing the plaintiff the lots in block 28, and that they believed at that time that such lots were the ones belonging to Haley, and listed with them for sale, denying any fraudulent intent. To this a reply of general denial was filed. On this state of pleadings, the court rendered a judgment in favor of the plaintiff for $100.00, the difference between the market value of the lots deeded at the time of the sale, and the price paid for them by plaintiff. Motion for new trial was filed and overruled, and exceptions, and the case brought here for review.</p>

Error from the District Court of Lincoln County; before ■Jno H. Burford, Trial Judge. STATEMENT OE FACTS Tbis was an action begun by tbe defendant in error, Sarah Grace Bennett, on the 21st day of May, 1903, in the district court of Lincoln county, Oklahoma Territory, for divorce and alimony, against A. W. Bennett. On the 21st day. of July, 1903,.

<p>1. DOMESTIC ANIMALS—Larceny—Statutes. Sec. 1. art. 1, chap. 20, Session .Laws of Oklahoma, 1895, which provides, “that if any person shall steal any stallion, mare, colt, gelding ridgeling-, or any ass, genet or mule, or any bull, cow calf, steer, or stag he shall be guilty of a felony and on conviction thereof shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years” creates a distinct and separata offense from larceny as defined by the statute of Oklahoma, 1893. and does not make the stealing of the domestic animals named In such act grand larceny without regard to value.</p> <p>2. TRIALS — 'Presence of Defendant. ¡Where the record shows the presence of the defendant in a criminal case at a session of court it will be presumed that he continued to be present in court during the day, or until the first adjournment, unless the contrary is made to affirmatively appear.</p> <p>3. CONTIN'UAN'CES — Not Granted, When. Where an affidavit in a criminal case is filed by the defendant in support of his application for a continuance, and the affidavit gives the names of the defen-ant’s witnesses desired, and sets forth what he expects to prove by them, if the county attorney admits that the witnesses if present -would so testify, and the court orders that such affidavit may be used as a deposition in said 'cause, it is not error to overrule the motion for continuance.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIALS — Appeal—Motion for New Trial — ‘Evidence. Where the evidence submitted upon the trial of a criminal cause is not made a part of the record by bill of exceptions or case made, and at a succeeding- term of court after the rendition of judgment, a motion for new trial is presented, based upon the grounds of newly discovered evidence, and overruled by the trial court, and an appeal is taken from the order overruling- such motion, the evidence taken on the trial not having been offered or introduced upon the hearing of said motion, such evidence is no part of the record in said cause and being no part of the proceedings upon the motion for new trial, cannot be incorporated into a case made so as to make it a proper subject for consideration on review by the appellate court of the action of the trial court in overruling such motion.</p> <p>2. APPEALS' — Erroi—Presumption. The burden is on him who alleges error to show it affirmatively, and in the absence of such affirmative showing the appellate court will entertain every reasonable presumption in favor of the regularity and correctness of the action of the trial court.</p> <p>3. NEW TRIALS — Grounds for. New trials will not be granted upon the grounds of newly discovered evidence where the newly found evidence is cumulative, or for the purpose of impeachment, or only tends to affect the credibility of other witnesses; and where one relies upon newly discovered evidence for obtaining a new trial, he must affirmatively show- that such newly discovered evidence is of a character to entitle him to a new hearing.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge. STATEMENT O'E PACTS. This was an action brought to recover judgment upon a note given by W. L. Lile, the defendant in error, to the Enid Right of Way and Townsite Company, plaintiff in error. The consideration - of said note was the location of a railroad station and depot on the line of the Denver, Enid & Gulf Railroad, in Garfield county, Oklahoma Territory.

<p>Error from the District Court of Garfield County; before James IÍ. Beauchamp, Trial Judge.</p>

<p>1. EMINENT DOMAIN, RIGHTS U’NDER — Ejectment—School Board May Condemn Land -For School-House Site — Measure of Damages Buildings Not Considered, When. Where a school district takes possession of real estate for the purpose of erecting a school building thereon, and carries out such purpose by completing such building and occupying it for a public school, although the original entry and continued occupancy was wrongful ana unlawful, in the proceeding by the school board to condemn under a law enacted after the building had been erected, the owners are only entitled to be awarded the value of the land, and the value of the improvements made by the school board should not be taken into consideration, as they, in such circumstances, are not a part of the real-estate; and, where, prior to the commencement of the condemnation proceedings under which tne land was finally taken, the owners of the land recover a judgment against the school district for the possession of the land in an ejectment action, such judgment is not res judicata as to the improvements in an action to condemn the land for school purposes, the action to condemn having been begun before the possession was taken under the writ of ouster issued in the ejectment case.</p> <p>2. SAME — Injunction. Where a school board having the right to take land for school purposes under the laws of eminent domain are in possession of land which they unlawfully took and occupied, and erected a school .building thereon, and for the possession of which judgment was rendered against them and in favor of the owners of the land, in an ejectment suit, the district court may enjoin the service of a writ of ouster in such case, after the commencement and during the pendency of proceedings to condemn such land for a school house site, such order appearing to be necessary for the protection of the'building and in furtherance of justice.</p> <p>3. APPEALS — Briefs. It is the duty of an’ appellee, as well as the duty of an appellant to brief his case when brought here on appeal and, where he fails to do so and no reasonable excuse appears for such failure, this court, in its discretion, has the right to either consider the case on its merits or to deem error as being confessed and reverse the case or dismiss the cause which he represents, with out examining the case-made or transcript.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL — Dismissed, When, where a cause is brought to this court from an alleged judgment of conviction in a criminal cause and the record contains no copy of the judgment of the trial court or recital of what the judgment was, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. ‘PRACTICE — 'Petition—Motion to Strike Out. It is error for the court to sustain a motion to strike out certain portions of a petition unless such parts are statements of matter foreign to the cause and raise no issue proper to be raised in the case, and unless such motion is made by the party prejudiced thereby.</p> <p>2. SAME — Demurrer. Where the language of the petition is sufficiently explicit to raise an issue of fact upon which the pleader would be entitled to recover in the case, it is error to sustain a general demurrer to the petition.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL. — Evidence Not Reviewed, When. Where a verdict of conviction in a criminal cause is based upon conflicting evidence and there is competent evidence tending to support each material averment contained in the indictment, this court will not attempt to weigh such conflicting evidence or determine the credibility of the witnesses, nor set aside such verdict.</p> <p>2. SAME — Exceptions. Where erroneous rulings and decisions of the trial judge are not excepted to at the time and exceptions properly saved, such errors will be treated as waived by the party affected, and objections will not be considered for the first time in this court.</p> <p>3. SAME — Witnesses—Exceptions. Where the trial judge in the course of the trial of a criminal cause propounds such questions to a witness for the defendant as reflect upon his credibility, and then in the presence of the jury orders such witness under arrest, such action ordinarily constitutes reversible error. But where counsel for the defendant makes no objection to such examination, or order of arrest, and takes no exceptions to such action of the court, the error will be treated as waived by the defendant, and wii' not be available on appeal.</p> <p>4. SAME — instructions, Exceptions to. Where the charge to the jury consists of a series of specific instructions separately stated and numbered, a general exception to the entire charge will not be available if the charge as a whole states the law correctly.</p> <p>5 SAME — Instructions—'Duty of Counsel. Where a party desires the court, to give any particular instruction, or to more definitely or fully state any proposition embraced in the .charge, it is the duty of counsel 'to prepare and present to the court such desired instruction and request that it be given, and in the absence of such request, this court will not consider an objection that an instruction, correct as far as it goes, does not fully state the law, or that the court failed to instruct upon any given proposition, where the instructions generally cover the subject matter of the inquiry.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Creer County; before James K. Beauchamp, Trial Judge. </p>

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

<p>1. PETITIOiN — Cause of Action Stated, When. The facts stated in a petition will ’all be considered together, in determining whether or not any one or more of the counts or paragraphs of such petition states a good cause of action.</p> <p>.2. MORTGAGE — Parties to Foreclosure Guit — 'Heirs. The heir of an intestate is not a necessary party to a suit to foreclose a mortgage and is concluded by a decree of foreclosure and sale against the administrators of such intestate.</p> <p>(Syllabus by the Court.)</p>

<p>1. SPECIAL INTER-ROGATORIES — Refused, When. It is not error to refuse to submit to the jury a special interrogatory, when the ^interrogatories submitted cover every material point involved in the -case.</p> <p>2. SAME. The object of the statute is to elicit material facts, and not mere fragments, or items, of evidence; hence, interrogatories that are calculated to mislead, confuse, or harass the jury should not be submitted.</p> <p>3. WITNESSES — Examination of. Large discretion is lodged in .the trial court, -in respect to the examination of a witness by counsel and the court in its discretion, may arrest the examination of a witness, and the exercise of such discretion will not constitute reversible error, unless an abuse of such discretion manifestly appears.</p> <p>4. INSTRUCTIONS — Evidence. It is not error to refuse to give an instruction as to the rules governing positive and negative testimony, where the evidence does not warrant such an instruction.</p> <p>5. NEW TRIAL — Refused, When. It is not error for the trial court to refuse to grant a new trial on the ground of misconduct of the jury, where it appears that no prejudice could have resulted to the unsuccessful party.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Creer County; before T. P. Clay, Trial Judge. </p>

<p>Error from the Probate Court of Greer County; before T. P. Clay, Trial Judge. '</p>

<p>Error from the Probate Court of Greer County; before T. P. Clay, Trial Judge.</p>

<p> Error from the District Court of Woods County; before J. L. Pancoast, Trial Judge. </p>

<p>1. MANDAMUS — Pleadings Allowed In. "Where a good and sufficient alternative writ of mandamus has been issued and served, and no jurisdictional question is involved, it is the duty of the defendant to file his answer to such writ in the first instance, and as the answer, under the statute, is substituted for the return in the English courts and as the statute expressly prohibits any pleading except the alternative writ and the answer, the defendant should assign in his answer any legal reasons, as well as plead the facts, if any exist, on which he relies to defeat the issuance of the peremptory writ. And where a defendant files a motion to quash which is in the nature of a general demurrer, the court will treat such pleading as an answer admitting the facts recited in the alternative writ, and apply the law thereto.</p> <p>2. JUDGMENT AGAINST CITY OF FIRST CLASS — Execution. In the absence of statutory inhibition, an ordinary execution mav issue on a judgment against a city of the first class, and while on the ground of public policy, it cannot be levied on any of the general revenues of the city, either.before or after they are collected, or upon any property, either real or personal, which is reasonably necessary for governmental purposes, still if any property</p> <p>' can be found -which is not reasonably necessary for the public welfare, and which is held by the city as private property for its benefit, it may be levied upon and sold to satisfy such execution.</p> <p>3. SAME — Statute of Limitations. Under sec. 4837 of the Statutes of Oklahoma of 1893, which provides that “if execution shall not be sued out within five years from the date of any judgment that now is or may hereafter be rendered, in any court of record in this Territory, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, sucn judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor,” a judgment against a city of the first class becomes dormant after five years from the date of its rendition, unless the judgment creditor, within such time, cause execution to issue thereon.</p> <p>4. SAME. Where a judgment creditor fails to have execution issued within five years on a judgment against a city of the first class and aiso fails to revive such judgment within one year after it becomes dormant, it will be treated as barred by the statute of limitation, and the courts "will deny the aid of mandamus to compel payment or the same.</p> <p>5. SAME — Resolutions of City Council — Agreement of Creditors — Effect. An agreement between practically all of the judgment creditors of a city, that such a city shall pay such creditors in the order of priority of the date thereof, instead of paying such judgment creditor his pro rata share; and a resolution of a city council which refers to such agreement and orders the city treasurer to pay such judgments according to such contract, do not change the legal status of the city toward any of such creditors, nor do they excuse any judgment creditor from suing out an execution within 'five years of the date his judgment was rendered, or from securing a revivor of his judgment within one year after it became dormanc.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Jno. H. Bur ford, Trial Judge. . STATEMENT OE THE CASE. This is an action brought by Aaron Dillenbeck, defendant in error, plaintiff in the court below, to quiet title to lots five (5) six (6), seven (7) eight (8), and nine (9) in block forty-three (43) in Capitol Hill, Guthrie. His title to said lots is based on two tax deeds and by order of court subsequently obtained.

<p>REAL ESTATE — Taxes—'Grantor and Grantee. Under the statutes of this territory, lands or town lots are assessed to the owner thereof at their actual cash value on the first day of January of each year, and the owner on that day is liable for the tax of that year, and a grantor who sells real estate after that date, in the absence of an agreement to the contrary, is liable for the taxes on said real estate for said year.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTINUANCE — Affidavit for — Admitted. Where in the trial of a criminal cause an affidavit for continuance is presented on behalf of a defendant upon the ground that a witness whose testimony is material to defendant’s defense is absent notwithstanding due issue of process for his appearance, and the affidavit sets out what the absent witness would testify to if present, and the prosecution admit that if the absent witness were present he would so testify, and that the affidavit may be read in evidence as the deposition of the absent witness, it is not error for the district court to overrule the motion for a continuance, and proceed to the trial of the cause.</p> <p>2. MOTION FOR NEW TRIAL — Newly Discovered Evidence. A motion for a new trial on the ground of newly discovered evidence which through the exercise of due diligence counsel for the defendant were unable to discover before the trial, and which said evidence as shown by the motion was the testimony of a witness who had testified on behalf of the Territory on the trial of the cause and whose testimony might have been discovered by the use of ordinary diligence, is properly overruled by the trial court.</p> <p>(Syllabus by the Court.)</p>

<p>ASSIGNMENT O’F JUDGMENT — 'Passes What, where a proceeding is brought in one county to enjoin the sale of property levied upon under a judgment rendered in another county upon a promissory note, and plaintiff in the injunction suit appeals from an order dissolving a temporary injunction, and executes a supersedeas bond to the sheriff and judgment creditor jointly, and the appeal in the injunction case is affirmed: Held, that an assignment of the judgment rendered in the action on the promissory note, which does not purport in terms to assign anything other than the judgment, will only convey such rights as are vested in the assignor by virtue of that particular judgment, and will not operate to pass to the assignee a right of action on the stay bond given in the injunction proceeding.</p> <p>(Syllabus by the Court.)</p>

<p>1. CASE MADE — Assignments of Error Arising on Evidence, Not Considered, When. Assignments of error which necessitate a review or consideration of the evidence will not be considered by this court, unless the record affirmatively shows all the evidence taken upon the trial is included therein.</p> <p>2. CANCELLATION OF INSTRUMENTS — Proper, When — Remedy at Law. Where there is an entire want of consideration for a note and mortgage, and the mortgage as recorded constitutes a cloud upon the title to real property, and the facts proved tend to taint the transaction with fraud, Held, that such condition is sufficient occasion for invoking the equitable remedy of cancellation; and further, that under such circumstances, a court will exercise its equitable jurisdiction to order a surrender of the note, «and decree cancellation bf the mortgage, irrespective of any question of other remedies at law.</p> <p>(Syllabus by the Court )</p>

<p> Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge. </p>

<p>CASE MADE — Errors Arising on Evidence — Not Considered, When Where the record proper affirmatively shows that all the evidence taken on the trial is not incorporated therein, and the only attempt to cure omissions in the record is by statements in the petition in error, this court, following precedent, will decline to pass upon assignments of error arising wholly on the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. INJUNCTION — Not Issued, When. An injunction should not issue in a case at the suit of a party wherein it is shown by the allegations in his petition that he has a legal remedy which is adequate, and sufficient for the protection of his rights.</p> <p>2. SAME — Violation of Municipal Ordinances. A prosecution for violating a municipal ordinance will not be restrained because of the illegality of the ordinance, since that fact is available as a defense to the prosecution.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. APPEAL — Settling and Signing Case for Supreme Court. A case for the supreme court must be settled and signed by the judge trying the same, but need not be settled and signed in the district where the case is tried. A case settled and signed by the judge out of the district where the same was tried, but within the territory and within a district where he is then exercising judicial powers, is properly signed and settled.</p> <p>2. ERROR — Waiver. Failure to except to the overruling of a motion for a new trial is a waiver of error as to such ruling, and all alleged errors of law occuring at the trial for which a new trial might be granted. Following Vaughn Lumber Co., v. Missouri Lumber Co. 3 Okla. 174., also City of Atchison v. Byrnes, 22 Kans. 65.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Grant County; before James E. Beauchamp, Trial Judge.</p>

<p>APPEAL — Case IVIade — Evidence. Where a case made contains no recitation to the effect that all of the evidence submitted upon the trial is included therein, this court will not consider any question which requires for its determination a consideration of such evidence.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Garfield County; before James K. Beauchamp, Trial Judge..</p>

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

<p>Error from the District Court of Caddo County/ before Franlc E. Gillette, Trial Judge</p>

<p>1. EVIDBNICE — Possession of Recently Stolen Property — Presumption. The possession of recently stolen property unexplained, does not constitute presumption of guilt, but creates an inference of guilt which may be sufficient, with other criminating circumstances tending to connect the prisoner with the -larceny, to warrant a conviction.</p> <p>2. INSTRUCTIONS. While each instruction given should embrace one complete proposition of law, the court is not required to state the entire law relating to one subject in one instruction. And where the court attempts in an instruction to set out all the material elements constituting the crime, but omits one of them, and in another instruction specifically informs the jury that such element so omitted must be proved by the evidence to the satisfaction of the jury beyond a reasonable doubt before a conviction can be had, the two instructions together properly stating the law, no error is committed.</p> <p>(Syllabus by the Court.)</p>

<p>MUNICIPAL. COR'POiRATiuNS — Bonds and Warrants — Proceedings in the District Court. When bonds are issued by an incorporated town for the purpose of funding outstanding warrant indebtedness the warrants embraced within such bonds and for the payment of which said bonds are issued, become merged in said bonds and the payment of said warrants is necessarily postponed and suspended until the funds are realized from the sale of the bonds with -which to take them up. And the proceedings in the district court by which the validity of the warrants are determined and the amount and terms of the bonds approved and authorized, is in the nature -of a decree or judgment of the court. If the sale of the bonds should be unreasonably -delayed and the payment of the merged warrants unreasonably postponed, any interested party may maintain an action to set aside and vacate the proceedings by which the court authorized the bonding and to cancel the bonds; and until such such proceedings have been vacated and the issue of bonds canceled, no action can be maintained upon the merged warrants.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Kiowa County; before Frank 33. Gillette, Trial Judge.</p>

Error from the District Court of Woods County; before J. L. Pancoast, Trial Judge. STATEMENT OR FACTS. On April 35th, 1895 JohnR. Held: were such as furnished reasonable grounds in the minds of the officers of the said The Exchange Bank of Alva, that its security was liable to, and was being impaired and that there actually was danger of the security being impaired by the loss of the property, or a part thereof, described in said mortgage. “That on the said 15th day…

<p>1. DEPOSITIONS — Objections to. Objections or exceptions to the taking oí depositions, other than íor incompetency and irrelevancy, are waived, unless made and filed before the commencement of the trial.</p> <p>2. INSTRUCTIONS — Special Interrogatories. It is not error to decline to require the jury to answer special interrogatories submitted when they are not material to any fact necessarily involved in the finding of the general verdict.</p> <p>3. NEW TRIAL — 'Misconduct of Juror. It is not error for the trial court to refuse to grant a new trial on the ground of misconduct of one of the jurors, when it appears that no prejudice could have resulted to the unsuccessful party.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Jno. II. Burford, Trial Judge. STATEMENT OE EACTS.

<p>1. COMMON LAW N.OTE — 'Defenses. A non-negotiable note although transferred to an innocent purchaser before maturity and for a valuable consideration, is subject to all the legal defenses which might be interposed against the note in the hands of the original payee.</p> <p>2. SAME — Notice of Assignment. Where the makers of a non-negotiable note and interest coupons have neither actual nor constructive notice of the assignment of the note and coupons, or of the mortgage securing the same, proof of the payment of the note and coupons to the payee, in accordance with the terms and tenor of the note and mortgage, is a complete defense to an action upon the same.</p> <p>(Syllabus by the Court.)</p>

<p>NEW TRIAL — Should be Granted, When — Evidence—Court Must Approve Verdict. It is the duty of a trial court, where a motion for a new trial contains, as one of the grounds therefor, that the verdict is not supported by the evidence, to weigh the evidence and to either approve or disapprove the verdict, using its own reason and judgment in determining such matter; and if the verdict is such that its own mind refuses to concur in it, after due consideration, and the court honestly believes that tlie verdict should have been for the adverse party, it should grant a new trial.</p> <p>(Syllabus by the Court.)</p>

<p>BILL OF EXCEPTION'S ALLOWED, WHEN — Justices Court — iPrac-"tice — Appeal. A justice of the peace may allow, settle and sign a bill of exceptions in any case tried by him or in his court by a jury, without regard to the amount claimed by either party, and it is the duty of the district court to review the errors assigned in such bill of exceptions when presented by a proper transcript. Section 50&3 of Wilson’s Annotated Statutes of Oklahoma, which prohibits appeals in cases tried by a jury in a justice’s court, where the amount claimed by neither party exceeds twenty dollars, has no application to 'cases taken to the district court by bill of exceptions, but applies only where the party seeks to take his case to such court by appeal and have the issues of fact retried.</p> <p>OSyllabus by the Court.)</p>

<p>PRO'B'ATE CO'URTS — Real Estate — Execution. By section 1 of article 15 of the 'Statutes of Oklahoma of 1893 (which article was ratified by congress), which provides that probate courts shall not order or decree the sale or partition of real-estate, a sale of real estate made under an execution issued out of such court is absolutely void, and a sheriff’s deed to the purchaser conveys no title. And when the land has been condemned for railroad purposes, and the money paid into court, the original owner of the land (who was the judgment debtor in the suit in which the land was sold under such execution) will be entitled to the condemnation money.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL SHOULD BE DISMISSED, WHEN — Parties, under section 44'52 of the Statutes of Oklahoma of 1893, which provides that: “No proceeding for reversing, vacating or modifying judgments of final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of.” etc., every necessary party to the appeal must either make a general appearance within the year following the rendition of the judgment or entering of the final order appealed from, or summons must issue within such time and service thereof be had upon the defendants in error. Otherwise no appeal can be had</p> <p>2. SAME — Statute of Limitations. By the terms of section 3892 of ■the .Statutes of Oklahoma of 1893, an action is deemed to be commenced as to each defendant, at the date of the summons which is served on him; and where a plaintiff in error causes summons to issue on the last day within the year following the date of the final judgment appealed from, but fails to serve it on one of the necessary defendants in error, and also fails to secure service on him within sixty days after the issuance of the first summons (as provided in the same section) the appeal should be dismissed on the ground of defect of parties.</p> <p>3. SAME — Jurisdiction Not Conferred by Agreement. Where a party fails to commence an action in the supreme court to reverse, vacate or modify an order or judgment of the district court within one year after such judgment or order was made, the supreme court has no power to review such order or judgment, and jurisdiction to do so cannot be conferred by the agreement of the parties, or by the general appearance of the defendant in error after the expiration of such time.</p> <p>1. APPEAL — .Necessary 'Parties. One whose rights may be affected by a reversal or modification of a judgment appealed from, is a necessary party in the appellate court.</p> <p>(Syllabus by the Court.)</p>

<p>1. MORTGAGE — 'Decree of Foreclosure Not Error When. Where a note signed by the husband alone is secured by mortgage on the homestead, jointly executed by husband and wife, and the mortgage contains a recital to the effect that the debt secured thereby is a note signed by the wife in connection with her husband, but the evidence on the trial is sufficient to identify the note signed by the husband alone as the indebtedness actually secured by the mortgage, and as the note in contemplation of the wife when she signed the mortgage: Held, not error for the court to reform this mortgage and decree a foreclosure of the mortgage on the homestead.</p> <p>2. SAME — 'Identity of Indebtedness. In interpreting a clause in a mortgage describing the indebtedness secured thereby, the note actually secured should be construed -with it, and if true control the description of the indebtedness in the mortgage.</p> <p>3. SAM'E — Husband and Wife — Separate Consideration. A mortgage given by both husband and wife to secure a note upon sufficient consideration running to the husband alone is valid against the wife, without any consideration moving to her separately.</p> <p>4. SAME' — Homestead. While all transactions in which the joinder or assent of the wife is obtained in or to any disposition of the homestead will doubtless be scrutinized by the courts with jealous vigilance, yet this will not be carried to the extent of relieving her from the consequences of her own acts, which she clearly understands or should have understood.</p> <p>(Syllabus by the Court.)</p>

<p>1. HOMESTEAD — -Mechanic's Lien. It is necessary for one furnishing material for improvements on a homestead to contract therefor in writing with both husband and wife, if they are both living-not divorced, in order to obtain a mechanic’s lien on the homestead..</p> <p>2. SAME — Foreclosure Refused, When. Where no written contract, therefor is entered into with husband and wife by one furnishing-material for improvements on a homestead: Held, that no lien attaches to such homestead by reason of the 'filing of a mechanic's-, lien thereon, and a decree of foreclosure of such lien is properly-denied.</p> <p>(.Syllabus by the Court.)</p>

Error from the Probate Court of Caddo County; before M. N. Gish, Probate Judge. STATEMENT 0-E FACTS. Defendant in error brought an action of replevin against plaintiffs in error, in the probate court of Caddo County, to recover certain property. Judgment was rendered by default, against defendants below, after personal service.

Error from the District Court of Kiowa County; before F. F. Gillette, Trial Judge. STATEMENT OE EACTS. An action commenced by the defendant in error against plaintiffs in error in tlie district court of Kiowa county upon a forfeiture of recognizance; demurrer to the petition overruled; exceptions by plaintiffs in error; judgment for defendant in error; plaintiffs in error appeal and bring case here by petition in error and transcript.

<p>1. MANDAMUS' — Lies When. Where an applicant files his petition for license to sell intoxicating- liquors and certain persons file their remonstrance against the issuance of such license, and the board, after a hearing upon the remonstrance, grants the petition, and the remonstrants duly appeal from such order to the district court: Held, that mandamus will lie to compel said board tfo reconvene revoke a license issued pending appeal.</p> <p>2. SAME — -Affidavit of Attorney. An affidavit made by an attorney for the party applying for the writ, that the facts stated in the application .are within his personal knowledge, states a sufficient reason why the attorney makes it.</p> <p>3. SAME — 'Certificate of Officer. The words "Subscribed and sworn 'to before me” in the certificate of the officer before whom an affidavit is made are sufficient to comply with sec. 4317, Wilson’s statutes, requiring an affidavit to be “sworn to or affirmed” before the officer, and “signed in his presence.”</p> <p>(Syllabus by the Court.)</p>

<p>1. RECORD — .Presents no Error Arising Upon Evidence, When. Where a -record in this court in a case on appeal does not show that it contains all the evidence presented at the hearing below, it presents no error that can be reviewed by this court, arising upon a question of evidence.</p> <p>2. CERTIFICATE OF C-LER-K — Will not Supply Omission. A statement in a certificate of the clerk of the court in which the case -was tried, that the record contains all the evidence presented at the trial, is not sufficient to show that the record does contain all of.the evidence.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. MURDER — Manslaughter in the First Degree. Where the indictment charges the crime of murder, and the evidence shows the crime to have been.committed by lying .in wait and shooting the the deceased, and the defense is tlhat of an alibi, and no evidence is introduced on the trial by the defendant other than in support of his defense of alibi, and the testimony on behalf of the Territory shows a wilful and deliberate shooting, resulting in death, it is error in the instructions of the court to submit to the jury the question of the guilt or innocence of the defendant of the crime of manslaughter in tire first degree, included in such indictinent.</p> <p>2. EVIDEN-OE — Res Gestae. Where in the trial of a person charged with the crime of murder it is shown that he was shot from ambush by some person about 175 yards distant, and shortly after the shooting the deceased said to his brother who was present at the shooting: “Do you know who did this?” The brother answering stated: “One of them was Wili Regnier”; and the deceased replied: “Yes, and the other one was John Labrier.” Held, such conversation was inadmissable as res gestae.</p> <p>(Syllabus by the Court.)</p>

<p>NEGOTIABLE INSTRUMENTS — Defenses to — 'Parol Evidence. The George C. Richardson Machine Co. sold one Pease certain threshing machinery on time payment, receiving as collateral security the note of one Terwilliger, which was executed and delivered to said machine company upon the verbal promise of Pease to thresh grain for him in an amount equal to the value of the note. Pease failed to thresh T.erwilliger’s grain, and made default in his payment to the company: Held, that Terwilliger cannot because of Pease’s default to him escape his liability to the company.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Greer County'; before James K. Beauchamp, Trial Judge. </p>

<p>1. MUNICIPAL CORPORATIONS — Real Property — Streets and Alleys An ordinance of a town incorporated under the laws of this Territory, granting to a railroad corporation the right to use and occupy its streets and alleys, under the provisions of section 1035, Statutes 1S93, does not vacate such streets or alleys so as to allow the land to revert to the abutting lot owners.</p> <p>2. SAME — City Ordinance Construed. The ordinance of the town of Tonkawa involved in this case, held to be an ordinance granting to the Blackwell and Southern Railway Company, the right to use and occupy the alley in question under the provisions of section 1035 Statutes 1893, and not an ordinance vacating such alley so as to allow the land to revert to the abutting lot owners. .</p> <p>3 PRACTICE — Estoppel Must be Pleaded. An estoppel must be pleaded in order to enable a party £o avail himself of it on the trial and must be pleaded with particularity in order to constitute either a cause of action or defense.</p> <p>(Syllabus by the Court.)</p>

<p>1. PRACTICE — Case Made. The rules of the supreme court do nob require that a “case made” shall be indexed, but only that counsel for the plaintiff in error, shall number the pages of the petition in error and record, before filing the same.</p> <p>2. SAME — 'Methods of Appeal. The statutes of this Territory provide for two methods for bringing a case to the supreme court. There must be filed with the petition in error, a transcript of the proceedings in the court' below, or a “case made”.</p> <p>3. APPEALS — Demurrer to Petition — Exception. The record in this case examined, and found that exceptions to the ruling of the trial court in sustaining the demurrer to the petition were sufficiently saved to present the errors complained of to this court.</p> <p>4. JUDGMENTS — Set Aside When — 'New Trials. .Section 4760, Wilson’s Revised Statutes, 1903, authorizes the district courts to vacate their judgments and to grant a new trial, where fraud is practiced by the successful party in obtaining the judgment sought to bo vacated; and where a party is sued in the district court, waives service of summons, and has had full opportunity to make any proper defense in the action and is not prevented therefrom by any fraud practiced by the plaintiff, but neglects to appear and defend in such action, such negligence is no ground for setting aside a judgment or for granting a new trial.</p> <p>(Syllabus by the Court.)</p>