Volume 16 — Oklahoma Reports

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

<p> Error from the Probate Court of Caddo County; before M. N. Gish, Trial Judge. </p>

<p>PUBLIC LAN'DS — Homestead Entry — Entrant not Disqualified, When. One who was within the Chilocco reservation before the hour of 12 o’clock noon, central standard time, of September 16 1893, and made -the race from such reservation into that part of the Cherokee Outlet which was opened to settlement on that day, is not, by reason thereof, disqualified from settling upon and filing* a homestead entry upon a portion of said land.</p> <p>(Syllabus by the Court.)</p>

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

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

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

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

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

<p>1. PRACTICE — Jurisdiction of .Person, Waived When. Where one appears especially and objects to the jurisdiction of the court over his person, by reason of defective service of summons, and his objections are overruled, he may file his answer and proceed to trial and he will not be deemed to have entered a general appearance by reason thereof, if his objections are meritorious. Chicago Building & M’f’g. Co. v. Kirby 63 Pac. 966. 10 Okla. 730; Jones v. Chicago Building & M’f’g. Co., 10 Okla. 628. But where he in addition to defending against the action of a plaintiff, files a cross-petition and asks for affirmative relief against the plaintiff, he thereby submits his person to the jurisdiction of the court for all purposes of the entire action, and thereby estops himself from questioning the jurisdiction of the court in the first instance.</p> <p>2. JOINT OW.NBRS — Pleadings. Where three persons enter into a written contract for the purchase of personal property (each signing his individual name) with a third party, in the absence of an allegation in the pleadihg or proof to the contrary, they will be deemed to be joint owners.</p> <p>3. EVIDENCE — Not .Reviewed, When. When the evidence reasonably supports the verdict and judgment, this court will not weigh the evidence to determine as to whether or not the preponderance was for the other party.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Garfield County; before ■J. L. Pancoast, Trial Judge. STATEMENT OE PACTS. On the 10th day of February, 1903, The Sawyer and Austin Lumber Company, a foreign corporation, commenced its action in the district court of Garfield connty against the Champlain Lumber Company, a domestic corporation, to recover a balance of $1293.92 claimed on account for lumber sold and delivered by the plaintiff to the defendant.

<p>1. LAND DEPARTMENT- — -Findings Binding on Courts, When. The findings of the officers of the land department of the United States upon issue of fact involving the title to public lands, are conclusive upon the -courts, and in the absence of the pleadings in contest -cases the recitals in the decisions of the department officials will' be taken as conclusive as to what issues of fact were determined by the department.</p> <p>3. SAME — 'Policy. It is the settled law and policy of the interior department of the United States that a second contest will not be entertained against an entry of public land upon a charge which has been once investigated and decided by the department. The reasons for such policy are founded upon sound principle, and should -not be overturned by the -courts.</p> <p>3. SAME — Courts will not Interfere, When. The allowance of an application to contest a final entry of public land is by a rule of the general land office, vested exclusively in the discretion of the commissioner of the general land office, and the courts will not interfere with the exercise of such discretion unless there has been su-ch an abuse of discretion as to amount practically to a denial of a clear right.</p> <p>(-Syllabus by the Court.)</p>

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

<p>1. REAL PROPERTY — Action to Quiet Title — Costs—Disclaimer. Where a defendant in an action to quiet title to real estate desires to be discharged without costs, he must file an absolute and unqualified disclaimer to any title or interest in the land which is the subject matter of the action.</p> <p>2. APPEAL — Evidence Not Reviewed, When. Where a cause is tried to the court upon controverted questions of fact, and there is evidence upon each material issue which reasonably tends to support the finding of the court, such finding will no.t be disturbed upon the weight of the evidence.</p> <p>('Syllabus by the Court.)</p>

<p>PROMISSORY NiOTE — Registration—Acknowledgment—'Notice. A prom issory note or instrument in writing- evidencing the conditional sale of personal property, when executed in the manner such instruments are authorized to be executed, is entitled to be deposited and filed with the register of deeds, and need not be witnessed or acknowledged to entitle it to registration and to make it constructive notice when so filed.</p> <p>(Syllabus by the Court.)</p>

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

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

<p>1. CRIMINAL LAW — Evidence—'When Sufficient. In a 'criminal case, when the jury have found the defendant guilty this court will not reverse the judgment for want of evidence^ unless such evidence fails to* reasonably support the verdict.</p> <p>2. EVIDENCE — Exceptions—Considered, When. An objection to the admission of evidence, although erroneous, which does not affect the substantial rights of an appellant, will be disregarded by this court.</p> <p>3. SAME — Exceptions—Too Indefinite, When. Under the authority of Enid & Anadarko Railroad Company v. Wiley et a!., 14 Okla. 310, 78 Pac. ’96, an objection on the ground of incompetency and immateriality, without specifically stating the ground upon which the objection is founded, is too indefinite to present any Question of law and will be disregarded.</p> <p>4. APPEAL — Instructions—Exceptions. Though an instruction be erroneous, the case in which it was given will not be reversed unless an exception was saved to the giving thereof.</p> <p>5. INSTRUCTIONS — Party Estopped to Question, When. ‘Where a defendant’s counsel requested an instruction to be given, the defendant cannot complain, notwithstanding it incorrectly stated the law to his (possible) prejudice.</p> <p>(■Syllabus by the Court.)</p>

<p> Error from the District Court of Logan County; before Jno. EL. Burford, Trial Judge. </p> <p>STATEMENT OE EAOTS.</p> <p>This action was commenced in the district court of Logan County, by the defendant in error, W. B. Ward, May 5, 1900, against S. E. Pentecost, trustee, et dl, praying for foreclosure of a trust deed and sale of the property described in said trust deed to satisfy debt in the sum of $11,082.50.</p> <p>The petition avers the said deed of trust was executed by Grigsby Bros., a copartnership of Marion county, Texas, composed of D. J. and G. M. Grigsby, to S. E. Pentecost oi Guthrie, trustee, to secure an indebtedness of said partnership in the sum of $5000 to the National Bank of Jefferson, at Jefferson, Texas. That the note and trust deed had been sold and assigned by the National Bank of Jefferson cestui que trust to the plaintiff, W. B. Ward, before maturity; that the same was due and wholly unpaid, and that the sum of $11082.50 for principal, interest and penalty, was due thereon at the time of bringing the action. That the defendant Southern Pine Lumber Co., a corporation, the Southern Pine Lumber Co., a partnership, J. W. McNeal, Charles Griswold, Hattie P. DeBois, J. D. Elder, Wm. PI. Dungan, G. W. E. Chinn, and Mrs. G. W. E. Chinn claim to have .some interest in the property included in said trust deed, but that they were mere trespassers upon the property, and had no legal or equitable claim thereto: and unon information and belief plaintiff averred that the title or claim of the last above named defendants was based upon a sale of said property at an execution sale of the same by virtue of an execution issued out of the district court of Logan county, Oklahoma Territory, on a judgment, of said court, in cause No. 1524 therein, in favor of the American Exchange Bank, a corporation, of St. Louis, Mo., against T. L. L. Temple and Benjamin Whitaker, partners, as the Southern Pine Lumber Co., the Southern Pine Lumber Co., a corporation of Arkansas. D. J. Grigsby, G. M. Grigsby, and T. L. L. Temple, partners under the firm name and style of the Union Lumber Mills Co., which judgment bore date of March 2, 1895, sale being made thereon July 18, 1895.</p> <p>The petition further avers, that neither the plaintiff nor the National Bank of Jefferson, the cestui que trust, nor S. E. Pentecost, trustee, were made parties to said action No. 1524, and that neither the plaintiff nor defendant in said case No. 1524, had or has any interest whatever in the property sold to satisfy the judgment, and that this plaintiff at the time said suit was filed and at all times since has held the legal title to said property by virtue of said trust deed, which was of record in the several counties in which said property was situated; that the sheriff of the several counties who sold said property on said judgment in said action No. 1524, together with the plaintiff and defendants in said cause, and-the purchasers at said sale each had actual and constructive notice of the trust deed herein proceeded upon, and that plaintiff's title to said land was an unbroken chain. The plaintiff then avers that all proceedings had in said cause No. 1524 were null and void for want of notice to S. E. Pentecost, trustee, who was a resident of Guthrie, O. T., the cestui que trust named, or this plaintiff, and because no service was ever had, made or procured, upon or against any of the defendants in said action for the reason that the attempted service by publication was void.</p> <p>To the petition of plaintiff the defendant, The Southern Pine Lumber Co., T. L. L. Temple, G. W. E. Chinn and Mrs. G. W. E. Chinn, filed joint answer, admitting that Grigsby Bros, became indebted to the National Bank of Jefferson, Texas, and that a trust deed was executed to S. E. Pentecost, trustee, to secure such indebtedness, and that such trust deed covering the property involved in this action has never been discharged, but deny that the note of Grigsby Bros, to the National Bank of Jefferson, or the trust deed executed to S. E. Pentecost as trustee, was ever sold by the National Bank of Jefferson or its trustee for a valuable consideration to the plaintiff, W. B. Ward, and they further deny that a sale of said instruments were ever legally made and completed either before or after the maturity of said note, and deny the transfer in good faith of the said deed of trust for a valuable consideration, and deny any interest of the plaintiff Ward, either legal or equitable, in either said note or trust deed herein sought to be foreclosed, and deny that there is duo and unpaid on said note the sum of $5000, or any other sum and deny that there is any amount or claim due to the plaintiff or any other person from Grigsby Bros, by reason of the execution of said note to the National Bank of Jefferson, Texas, or on account of the deed of trust exécuted to S. E. Pentecost, trustee. And for affirmative answer to-the plaintiff’s petition, the defendants set out that said note has been fully satisfied by payments to parties holding the same as legal representatives of the Bank of Jefferson, and that said note and security having passed by delivery to the receiver of the National Bank of Jefferson, and in his hands compromised and paid off by Grigsby Bros, by the pat'ment of a sum less than its face value, and that upon such payment made by the said Grigsby Bros, said note was surrendered to them, and said deed of trust was assigned to them in blank after said note secured by said trust deed had been paid as aforesaid.</p> <p>The answer of defendants alleges that G. W. R. Chinn and Mrs. Chinn, through T. L. L: Temple, have a complete and perfect title to the Oklahoma City property mentioned in said trust deed , save and except tbe cloud existing by reason of said trust deed; and the Southern Pine Lumber Company have a perfect title to all of the property described in said trust deed situated in the city of Guthrie.</p> <p>The- defendant for further answer states that the American Exchange Bank brought in the district court of Logan county, O. T. an action No. Í524, the amended petition therein being filed on the 17th of December, 1894, against T. L. L. Temple and Benjamin Whitaker, partners, as the Southern Pine Lumber Co., a corporation of Arkansas, D. J. Grigsby, T. L. L. Temple and G. M. D. Grigsby, partners of the firm name and style of the ITnion Lumber Mills Co., and that judgment was entered in said cause March 2nd, 1895, and that this property was levied upon and sold on the 18th of July, 1895, and further alleges that said sale was made so as to dispose of all the interests held by D. T. Grigsby, G. M. D. Grigsbjr and T. L. L. Temple, partners under the firm name of the "Union Lumber Mills Co. The defendants then aver that only the naked legal title to said property remained in said trustee Pentecost, with no rights therein except his charges and costs which the defendants then tender into court. That the plaintiff had never been known to any of the parties to these transactions save to the Grigsby Bros., they holding after settlement, the note given to the Jefferson County Bank and trust deed assigned in blank, both of which had served their purpose and been satisfied save upon the record; and as defendants verily believe suit thereon was brought by the plaintiff at the solicitation of Grigsby Bros., in this action; that there being no legitimate lien against said property, by virtue of said trust deed, the same having been satisfied should be cancelled, and that the trustee Pentecost should be directed by the court to satisfy the same, and plaintiff’s petition be dismissed, and the property decreed to be in defendants, and for such further order as may quiet the title in the respective defendants.</p> <p>To the petition of the plaintiff, and by way of cross bill to the answer of the defendants, other than themselves, the defendants G. M. D. and D. J. Grigsby pleaded admitting that they made the note and trust deed sued on, and admitting the allegations of plaintiff’s petition that the note to secure which the trust deed had been executed, and the trust deed had never been paid, cancelled or released, and that Jive thousand dollars interest and attorney’s fees were due and unpaid thereon, and admitted that plaintiff W. B. Ward was the legal owner and holder of the note and trust deed, by assignment from the Jefferson National Bank of Jefferson, Texas, through H. E. Austen, receiver, who acted under orders of the comptroller of the currency, and the law governing national banks, and who had no other right or interest in said note. In response to the answer of defendants other than themselves and by way of cross bill, the defendants Grigsby and Grigsby allege and say that they each have been and are now Iona fide citizens of the state of Texas; that their interests in the property involved is the equity therein after satisfying the demands of the plaintiff upon the note and trust deed aforesaid ; that about July, 1891, the Union Lumber Mills Co., a copartnership composed of D. J. and G. M. D, Grigsby and T. L. L. Temple, and T. L. L. Temple personally, and the Southern Pine Lumber company, copartnership, made and delivered to the American Exchange Bank of St. Louis its obligation in writing, which obligation was not paid, and said bank brought suit thereon in the district court of Dallas county, Texas, and on tbe 9tb day of January, 1892, recovered judgment against each of the ob-ligors above named, upon which execution was issued February 7, 1892, which was by T. L. L. Temple, judgment debtor aforesaid, paid and satisfied in full; after the payment of which, without demand for accounting or contribution the said Temple, or the said Southern Pine Lumber Co., copart-nership, or as a corporation, without right or authority in fact or in law, in the name of the said American Exchange Bank of St. Louis, Mo., filed suit in the district court of Logan county, O. T., against T. L. L. Temple and Ben Whitaker, partners, as the Southern Pine Lumber' Co., the Southern Pine Lumber Company incorporated in Arkansas, and D. J. and G. M. D. Grigsby, and T. L. L. Temple, partners under the firm name of Union Lumber Mills Co., and caused attachment to be levied upon the property involved herein. That none of the defendants named in said suit, either individually or in their partnership or corporate capacity, made any appearance in said suit. On the 17th of December, 1894, an amended petition was filed in said causo, and on the 2nd day of March, 1895, judgment was rendered therein. This action was cause No. 1524 of the district court of Logan county, O. T. In July thereafter an amended judgment was entered in said cause, covering all the property involved in this action, under which said property was sold and the Southern Pine Lumber Co., either as a partnership or as a corporation, purchased the same at sheriff’s sale. The defendants Grigsby and Grigsby aver that they challenge the sufficiency and legality of each and all of the proceedings in said cause No. 1524, and by their answer intend to and do directly attack as null and void, not due process of law, and as an actual fraud upon them and a fraud and imposition upon the court, each and all proceedings had in said cause. Said judgment and proceedings are declared to be void because said Texas judgment was fully paid off and discharged when suit No. 1524 was brought. That it was brought in the name of the American Exchange Bank without the knowledge or, authority of said bank, was brought by said Temple individual^ or as the then sole owner of the Southern Pine Lumber Co., a copartnership, and was therefore the real beneficiary in said suit using the name of the American Exchange Bank as 'plaintiff without its knowledge or consent, to avoid appearing in the capacity of both plaintiff and defendant. That as to G. M. D. Grigsby, the judgment is without pleading and void. That the Southern Pine Lumber Company, a corporation of Arkansas, made defendant in suit No. 1524, was not organized until September, 1892 and was not therefore in any wise liable on the Texas judgment, and was a fictitious party to said action. That the item in suit No. 1524 showing an account for $294.5(5 was not included in or a part of the Texas judgment, and was as alleged an account owing by the Union Mills Lumber Co. to the Southern Pine Lumber Company. That the American Exchange Bank, plaintiff in said suit No. 1524 never was the owner of said account, and was without knowledge thereof, and never at any time authorized an action to recover therefor in its name, and the court was therefore without jurisdiction to issue any process or render any judgment therein, and that it was in fact an indebtedness arising wholly outside of the Territory of Oklahoma. That the service was by publication, was not made as required by law, .and defendants D. J. and G. M. D. Grigsby never had notice either actual or constructive of the pendency of said action No. 1524, and for that reason made default therein. That the writs of attachment issued after the 17th day of December, 1894, were issued without affidavits to support them, affidavits filed prior thereto, and prior to the 17th of December, 1894, having been set aside by order of the court when an amended petition was authorized to be filed. The service .by publication was void because the affidavit therefor did not show or allege that the defendants summoned thereby were non-residents of the Territory, or that with due diligence they could not be served therein. That the defendants Grigsby were able and would have paid T. L. L. Temple their pro rosto share of the Texas judgment had the fact of his payment been brought to their notice, but that the said Temple concealed the fact of such payment with the intent and purpose to cheat and defraud these defendants by the institution of said suit No. 1524, the bringing of which in the name of the American Exchange Bank of St. Louis, as well as the suing out of writs of attachment on behalf of a plaintiff which had no knowledge of the bringing of the action or interest in the subject matter thereof, was a fraud and im-imposition both upon these defendants and the court, and was further a fraud because said Texas judgment had been fuliy paid to the American Exchange Bank by one of the judgment debtors therein, and said judgment would thereafter support no action except for contribution between the several judgment debtors, and .that therefore all judgments, decrees or sales in said action 1524 were illegal and void; and the defendants Grigsby pray that the same may be declared void and of no force or effect, and that they be by order of the court held to. have a direct interest in said property, subject to the payment of the plaintiff’s note and deed of trust, and to the end that upon the payment of the said note and deed of trust their title in and to the property described therein shall be and remain unclouded by the judgment and proceedings in said cause No. 1524.</p> <p>The defendants Grigsby in addition to the allegation of the foregoing cross petition say that the indebtedness paid by Temple in paying the Texas judgment was a debt wholly due from him,-primarily. That the Union Mills Lumber Co. executed two notes to the American Exchange Bank, one for $884.90, which was endorsed by T. L. L. Temple, the other for double that sum was endorsed by Grigsbys, they receiving the proceeds of the one note they endorsed and Temple the other. That each took the proportion of money due them as partners in the Union Lumber Mills Co. That Grigsby paid their proportion, but that the amount Temple was primarily liable for went to judgment in Dallas, Texas, judgment here-inbefore referred to, which judgment was made the basis for the said action No. 1524. That if the debt sued on in No. 1524 is held to be just, they stand ready to pay such portion of the same as their interest in the Union Lumber Mills Company would represent. They further allege that T. L. L. Temple, acting as the Southern Pine Lumber Co. purchased the property at sheriff’s sale, and that because of his fraudulent acts in procuring the judgment upon which the property was sold, be should be decreed to hold in trust for these defendants Grigsby, to the extent of their interest before the sale, if in. the judgment of the court the title of said Temple by virtue of'such sale mav not be held void. That the title of defendants Chinn and Chinn is tainted with Temple’s fraudulent acts, and that they purchased from Temple with full know.1edge of the fraud and without paying a valuable consideration, and ask that the title of each one of the defendants claiming adversely to themselves be divested by decree of the court, and set aside as a cloud upon the title of the Grigsbys.</p> <p>To this cross complaint of Grigsbys a general denial was filed by the defendants Temple, Chinn and Chinn and the Southern Pine Lumber Co. A trial was had in the district court of Logan county, without a jury, resulting in a judgment and decree holding the title of defendants acquired by purchase at the sheriffs sale upon the execution to satisfy the judgment in case No. 1524, and all the proceedings in said case void, and decreeing the legal title to the property involved to be in the defendants Grigsby, and quieting the title in them; subject, however, to the lien of the plaintiff Ward, which is found to amount to $5797.00, which lien of the plaintiff Ward was foreclosed, and a sale of the property involved was ordered to satisfy said lien. The defendant Southern Pine Lumber Co., a corporation, and the Southern Pine Lumber Co., a copartnership, T. L. L. Temple individually, and G. Wi B. Chinn and Mrs. G. W. E. Chinn filed motions for new trial, which were by the court considered and overruled, and the said defendant moving for a new trial, now brings the case to this court for review upon error.</p> <p>The opinion of the court sufficiently shows all other and necessary facts to a complete understanding of the case.</p>

Error from the District Court of Lincoln Countyj before-■Jno. II. Bur ford, Trial Judge. STATEMENT O'E EACTS. This is an action for divorce and alimony commenced in the district court of Lincoln county, the petition therein being filed on the 21st day of May, 1903.

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

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

Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge. STATEMENT OP PACTS. This is an action of replevin commenced in the probate court of Canadian county to recover a cash register valued at one hundred and fifty dollars, the petition therein reading as follows: “Plaintiff alleges that at all times hereinafter mentioned it was a corporation duly organized and existing under the laws of the state of Ohio.

Error from- the District Court of Garfield County; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. This is an action to recover damages for an unlawful arrest and imprisonment brought against the city marshal of the city of Enid, and the sureties, on his official bond. Verdict and judgment for the plaintiff. Defendant appeals.

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

<p>Error irom the District Court of Kay County; before B. T. Iiainer, Trial Judge.</p>

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

<p>1. SCHOOL HOUSES — Removed, How — Statutes. A school house site, having once been selected and a school house built thereon in accordance with the provisions of the statutes, can only be changed and the school house removed from that location, by authority of the people of the district, expressed in the manner provided by the statutes.</p> <p>2. SAME — Vote not Required, When. Where the erection of a new school building is authorized by the people of the school district, and no change of the school house site has been made, the school district board is not required before erecting such a building to submit the question of the selection of a site to a vote of the people of the district.</p> <p>3. SAME — Change in School District — Effect. Under the statutes of this Territory, if the boundaries of a school district should be changed by detaching territory therefrom, such action would not necessarily require the selection of a new school house site, in case-the site previously selected should be more than one half mile from the center of the district remaining after such territory is detached, and does not l'equire that before a new school house can be erected, when necessary, upon the previously selected site that the question of the designation of the site shall be re-submitted to the people of the district.</p> <p>4. SAME — Gift of Site — Title Passes, When. The fact that the donor of a school house site 'had not executed a deed conveying the site to the school district until after bonds were voted for the erection of a new building- can make no material difference, the title passed to the school district upon the acceptance of his offer, and the delivery by him of, and the taking by the district of, possession, and using the site for the purpose for which it was donated.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDICTMENT — Number of Grand Jurors Necessary to Find. Under the provisions of section 5349, Wilson’s Statutes, an indictment cannot be found except by the concurrence of at least twelve grand jurors.</p> <p>2. SAME — Evidence before Grand Jury. By the-language contained in section 5399, Wilson’s Statutes. “When it is not found” is meant when not concurred in by at least twelve grand jurors, and has no reference to the kind or character of evidence received by the grand jury.</p> <p>3. SAME — Grounds for Setting Aside — Evidence. By the provisions the act of criminal procedure of this Territory, the rights of a defendant indicted are defined, and the causes for which he may attack the indictment, the manner in which the attack must be made and the time for making such attack are prescribed. The reception by the grand jury of hearsay or secondary evidence is not one of the grounds for which the indictment must be set aside upon motion.</p> <p>4. JURY — ’Challenge for Cause — Presumption. Under the provisions of the statutes of this Territory a challenge for cause for the reason of incompetency of a juror is a question to be tried by the trial court and in the absence of a complete record of the examination upon that question, the presumption is -that the ruling of the trial court was right.</p> <p>5. SAME — Method of Challenge. Under the provisions of the statutes of this Territory a party desiring to challenge a juror for causo must state the cause of his challenge, and unless the cause is stated the challenge may be disregarded by the court. It is not enough at the conclusion of the examination of the juror, to say, “I challenge the juror for cause.”</p> <p>6. SAME — Objections Waived, When. A known ground of disqualification of a juror before or during the progress of a trial is waived by withholding it or refusing or declining to raise the objection until after the verdict.</p> <p>7. EVIDENCE — What Proper. The ruling of the court excluding the testimony of the witness Sellers, as to the details of a fight between Sellers and the deceased, a short time before the homicide: Held, not to be reversible error.</p> <p>8. CRIMINAL TRIAL — Manslaughter—Instructions—What Proper. Where in a criminal action upon a charge of manslaughter in the first degree, the defendant admits firing the fatal shot, but seeks to justify on the grounds of necessary self defense, and that he fired the shot believ-ing that he was then in danger of losing his life or suffering great bodily harm. In order to justify an acquittal, the facts must be such that the jury in the light of all the facts and circumstances known to the defendant can'say that as a reasonable man he had grounds for such belief; and an instruction directing the jury that the defendant must have actually and in good faith have thought he was in danger of losing his life .or of suffering great bodily harm and that he had reason and cause for such belief, is not erroneous.</p> <p>:9. SAME — Language. The use of the language “Sound reason” “Honest belief,” in connection with the instructions given in this case, can only be understood to mean that the defendant must actually in good faith have thought he was in danger of losing his life or suffering great bodily harm, and that he had reason and cau^e for such belief.</p> <p>10. SAME. The instructions in plain and unambiguous language directed the jux*y as to whom the danger should appear.</p> <p>11 SAME — What Constitutes Proper Instruction. Where the jury are properly instructed that the killing was justifiable if in response to some overt act, it is not error to, in that connection, instruct, “That no man by his own lawless act can create a necessity for acting in self defense, and thereupon assault and injure or kill the person with whom he seeks the difficulty, axid then interpose as a defense ‘the plea of self defense. The plea of necessity is a shield only for those who are without fault in occasioning it and acting under it” where the evidexice warrants such axi instruction.</p> <p>12. SAME — 'Evidence. Where there is evidence that just before the homicide, the defendant, upon receiving inforxnation that the deceased was abusing him to his friends, went to his saloon, armed himself with the revolver with which he fired the fatal shot, and went to another saloon whei’e he xnet the deceased, accused him of abusing him to his friends, and after but a few words fired the fatal shot: Held, that under the circumstances the instruction was applicable to the facts.</p> <p>13. SAME. The instruction when taken in conxxection with the olhexf instruction given by the court in this case, could not be construed as assuming that the defendant created the necessity by his own lawless act to produce a fear that his life was in danger by deceased, and talcing advantage of the plea of self defense made it necessary to kill.</p> <p>14. SAME — Instructions as to Self Defense. Instruction numbered 13, copied in the opinion, directing the jury that the defendant had the right to proceed with defensive acts until he was in a position of safety, can not be construed, when taken as a whole, as saying that the defendant carried his acts of aggression further than he should have done.</p> <p>15. SAME — Special Instructions — Refused, When. It is not error for the court to refuse requests for special instructions even though such requests correctly state 'the law, where they are fully covered by the instructions given by the court, although different to some extent in the language used.</p> <p>16. SAME. Special instructions requested -in this case examined and held to be fully covered by the instructions given by the court.</p> <p>17. SAME — 'Method of Procedure. If upon the trial of a criminal case, special instructions are desired by the defendant, he is required by the provisions of the statutes of this Territory to present in writing to the court the instructions desired. The trial court can not be expected and is not required to instruct upon every possible question.</p> <p>18. INSTRUCTIONS — Omission of — Request by Defendant. It is not . error for the trial court to omit to instruct upon some particular branch of the case deemed advisable by the defendant upder his theory of the case, when he has not requested such instructions.</p> <p>19. SPECIAL INSTRUCTIONS — Refused, When. Instructions Nos. 1 and 2 were fully covered by the instructions given by the court, and the court is not required to repeat the instructions given because requested by the defendant.</p> <p>20. CRIMINAL TRIAL — Instructions—Confined to Evidence. Where in a criminal case the indictment charges, and the evidence for the prosecution shows the killing to have been manslaughter In the first degree, and -the defendant admits the killing, and the evidence upon .his part tends to show the killing to have been justifiable, it is only necessary that the instructions of the court shall cover the law of the case as shown by the evidence.</p> <p>21. SAME. On the trial of a criminal case, where the defendant is charged with the crime of manslaughter in the first degree, and t-he evidence of the prosecution tends to support the charge, and • there is no evidence tending to support the lower degrees of the crime, but the evidnee of the defendant tends to prove justifiable homicide, it is not necessary for' the court to instruct the jury upon the law of manslaughter in the second degree.</p> <p>22. SAME. The instructions should in all cases state the law applicable to the facts, and to all proper and reasonable deductions to be made therefrom, and fair interpretations thereof, and not to ■questions not presented or supported by the evidence.</p> <p>23. APPEAL — Judgment not Disturbed, When. Where, after an examination of the entire record, it appears that the defendant has had a fair and impartial trial, that no material error has been committed by the trial court, and the verdict is amply sustained by the evidence, this court will not disturb the verdict or judgment of the trial court.</p> <p>(Syllabus by the Court,)</p>

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

<p>Error from the District Court of Noble County; bcfo-ra Bayard T. Hainer, Trial Judge.</p>

<p> Error from the District Court of Logan County; before John H. Burford, Triad Judge. </p> <p>STATEMENT OR FACTS.</p> <p>Tbis is a proceeding instituted by the defendant in error in the district court of Logan county, to condemn lots three and four in block sixty three, East Guthrie, for a right of way and terminals for the defendant in error.</p> <p>At the time said condemnation proceedings were instituted, plaintiff was the owner and in the actual possession of lots 3, 4 and 5 in said block 63, and at that time and for several years prior thereto had been making use of said lots as and for the purpose of a lumber yard, in which business of retailing lumber, he was then and had been for several years engaged.</p> <p>Commissioners were duly appointed by the judge of the district court to appraise the damages to said lots 3 and 4 in said block 63 upon and across which the line of said railroad was projected, and on the 21st day of March, 1902, filed their report as to these two lots in the words and figures following, to wit;</p> <p>•'Value of land taken.$5,500.00</p> <p>“Value of improvements taken. 2,200.00</p> <p>“Moving Lumber . 250.00</p> <p>“Total . $7,950.00”'</p> <p>The commissioners in their said report also state “that the said The Choctaw, Oklahoma and Gulf Railroad Company has appropriated all of said described lots and tract of land, etc."</p> <p>To this award both parties excepted and demanded a trial by jury, and the cause was duly certified to the district court of said Logaii county for trial. At the March term, 1903, the cause came on for trial before a jury, and after the same had been concluded, and after the jury had deliberated upon their verdict, they returned into court and announced that they were unable to agree, and were therefore discharged. On the 21st of December, 1903, the cause again came regularly on for trial in said court before a jury, and during the course of this trial the following facts were developed, viz:</p> <p>Lot 5 in the same block lies immediately contiguous to lots 3 and 4 and was owned and being made use of by Blincoe in connection with his lumber yard, and as a part thereof. Also at the time of condemnation Blincoe had a large stock of lumber in the yard, and that the defendant in error immediately took possession of said lots 3 and 4 and the buildings and improvements thereon, removed the buildings and improvements, and excavated the ground to a considerable depth covering the whole of lots 3 and 4 and up to the line of lot 5, thereby making a retaining or supporting wall necessary to preserve the integrity of that lot. The action of the railroad company also made it necessary for Blincoe to remove the stock of lumber and other building material then on hand, from said lots 3 and 4. The evidence disclosed that from January, 1902, up to and after'the time these premises were condemned, there was a very marked increase or appreciation in the value of all real estate in the vicinity of the premises condemned.</p> <p>At the conclusion of the evidence the jury were permitted under the charge of a bailiff to view the premises and after their return into court were instructed by the court.</p> <p>The jury returned their verdict in the cause in the following form:</p> <p>“We, the jury in the above entitled cause, do upon our oaths, find the issues in favor of the defendant, and assess the amount of his recovery at the sum of seven thousand and five hundred dollars.”</p> <p>Ten special questions were also submitted to the jury among them the following:</p> <p>“Q. 1. What was the fair market value of the two lots of the defendant taken by the railroad company for right of way at the time of the condemnation ?</p> <p>“Ans. Six thousand five hundred dollars.</p> <p>“Q. 3. What was the value of lot 5 in block 63 at the time lots 3 and 4 were condemned by the plaintiff railway company ?</p> <p>“Ans. Twenty-five hundred.</p> <p>“Q. 9. What was the value of lot five immediately after the railroad company completed its excavation on lots 3 and 4 ?</p> <p>“Ans. Fifteen hundred dollars.”</p>

<p>1. REAL ESTATE BROKERAGE — Petition—When Sufficient. Where- • a petition properly alleges a contract of employment in relation to the sale of real estate, and avers facts showing a full performance of the broker’s duty to his employer, and the accomplishment of' all he undertook to do, under his contract: Held, a sufficient pleading as against demurrer, of a cause of action for compensation for-such services.</p> <p>2. SAM'E — ‘Duty of Broker. As a general rule, the entire duty of a broker employed to assist in the sale of property, is to find and introduce or report to his employer a person -who is willing and able to purchase at the price and upon the terms which the employer has designated, although this rule is to be applied as abridged or extended, in any specific case, by the terms of the contract of employment.</p> <p>3. SAME — Judgment on Pleadings — When Proper. Where the essential averments of a petition in an action for commission earned as real estate brokers, are the contract of employment and a full compliance with the terms thereof, and the answer, after a general denial, definitely recognizes the procurement of a purchaser by the-plaintiffs for the land in question, and an acceptance of the purchaser by the land owner, and discloses further the execution of a binding, valid, and enforceable contract of sale between the two- and an agreement to compensate the brokers in accordance with the terms of the contract of sale: Held, that in such case, a motion by plaintiffs for judgment on the pleadings was properly sustained, and the trial court committed no error in rendering judgment for the plaintiffs theireon.</p> <p>4. SAME — Right to Compensation — 'When not Defeated. Where a broker has fully performed his undertaking by producing a person ready, willing and able to purchase -his employer’s property at the price and upon the terms stipulated, and the land owner has accepted the purchaser so procured and entered into a binding and enforceable contract with him. the broker is entitled to his commission, and his right thereto is not defeated by the fact that the purchaser refuses to consummate the transaction because of a defect in the land owner’s title to the property, where knowledge of such defect was not communicated by the employer to the broker at the time of entering into the contract of employment with him.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Frótate Court of Caddo County; tefore M. N. Gish, Prohate Judge. </p>

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

<p> Error from the District Gourt of Garfield County; before O. F. Irwin, Trial Judge. </p>

<p>Error from the District Court of Cevcland Countyj before G. F. Irwin, Trial Judge.</p>

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

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

This is an original proceeding in mandamus, to require the auditor of this Territory to register certain bonds issued by the board of county commissioners of Oklahoma county.

Error from the District Court of Logan County; before Bayard T. Rainer, Trial Judge. STATEMENT OF FACTS.

Frror from, the District Court of Lincoln County; before John 11. Burford, Trial Judge. STATEMENT OE FACTS. This was an action tried in the district court of Lincoln county at the April term, 1904, before the Hon. John II. Burford, presiding judge.

Error from the District Court of Logan County; before John II. Burford, Trial Judge. STATEMENT OF FACTS. This was an action begun in the district court of Logan count}1', Oklahoma Territory on the 25th day of October, 1902 by the plaintiff against the defendant.

<p> Error from, the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. </p> <p>STATEMENT OF FACTS,</p> <p>This was an action commenced in the district court.of Oklahoma county, by the plaintiff, Myrtle Lukert, against the Oklahoma Gas & Electric Company, a corporation. In her petition the plaintiff alleges that on the 16th day of November, 1900, one George Lukert, husband of the plaintiff, was killed by the negligence of the defendant, the Oklahoma Gas & Electric Company; that no administrator, or executor, or other personal representative had ever been appointed to administer upon the estate of the said George Lukert; that about such time, and for a long time prior thereto, the above named defendant, the Oklahoma Gas & Electric Company, was a duly organized and existing corporation under and by virtue of the laws of the Territory of Oklahoma, and was at that time, and is-now, the owner of, and operating an electric light plant in said city of Oklahoma City, Oklahoma Territory, for the purpose of furnishing light, heat, and power to said city, and the inhabitants thereof, and was so operating said electric light plant for such purposes on the 15th and 16th of November, 1900. The plaintiff further says that for the purpose of distributing the electric currents for the purposes aforesaid, the said defendant had wires suspended upon poles extending through and along the streets and’ alleys of said city, and that .on said dates, the said defendant had wires suspended on poles extending along Chickasaw street, in front of the home of this plaintiff and her said husband.</p> <p>Plaintiff further says that on the same poles belonging to the said defendant, on which its wires were strung as aforesaid, and below the wires of said defendant, were the wires of the Pioneer Telephone Compan}', a corporation, owning and operating a telephone plant in said city of Oklahoma City, 'O. T., but plaintiff alleges that said wires of the telephone company were not charged with currents of electricity except when they came in contact with the wires of the defendant.</p> <p>Plaintiff further says that on the evening of the said 15th day of November, 1902, the said defendant negligently, and carelessly permitted its said wires, suspended on said poles on said Chickasaw street, and in close proximity to the home of this plaintiff and her said husband, to become out of repair, and at said time there was being transmitted over said wires of said defendant, strong, deadly, and dangerous currents of electricity; and that by reason thereof said wires became broken betwen the poles on which the same were suspended, and the ends thereof fell from the position where suspended, and came in contact with the wires of the said Pioneer Telephone Company, which were suspended on said noles below the wires of the said defendant as aforesaid, and by reason thereof the wires of the Pioneer Telephone Company became charged with a heavy, deadly, and dangerous current of electricity from the said wires of the defendant, and by reason thereof, the said wires of said telephone company were burned and became broken, and the broken ends together with the broken ends of the wires of said defendant, fell to the ground and remained in contact with broken wires of the said telephone company, and that said wires, so charged with electricity by said wires of the defendant, remained in said condition from said time until about seven thirty (7:30) o’clock on the morning of the 16th of November, 1902. That the said defendant, or its agents, had notice on the said evening of the 15th of November, 1902, of the broken and dangerous condition of their said wires along and near the home of the said plaintiff and her said husband; but that notwithstanding said notice, the said defendant negligently and carelessly permitted said wires to remain out of repair, and in said condition, and lying on the ground near said plaintiff’s house during said night until 7:30 o’clock next morning as aforesaid, and during all of which time said- wires were charged with strong, deadly and dangerous currents of electricity, and were dangerous for persons residing near or Having in that vicinity on account of the liability ol their coming in contact therewith.</p> <p>Plaintiff further say^s that on the morning of the said 16th day of November, 1902, and at about the hour of six (6) o’clock A. M. on said day, while said broken wires of said defendant and said telephone company, so charged with a strong, deadly and dangerous current of electricity, were still lying upon the ground near the home of this plaintiff and her said husband, the said George Lukert, husband of this plaintiff, he was called to go out of the front door of their home, and on to said Chickasaw street in said city; and while thus going in said street, and while in the exercise of due care and caution, and without any fault on his part came in contact with one of said broken wires, aforesaid, so charged with strong, dangerous and deadly currents of electricity aforesaid, and negligently left in said position by said defendant as aforesaid, and which current of electricity entered the person of the said George Lukert whereby and by means of which he was then and there instantly killed.</p> <p>Plaintiff further says that the death of the said George Lukert was caused by the negligence and gross carelessness of the agents, servants, and employees of the said defendant in leaving said broken wires, charged with said dangerous and deadly currents of electricity, in an exposed condition, where persons lawfully traveling upon said street might come in contact therewith. That by reason of the death of the said George Lukert, caused as aforesaid, this plaintiff has been damaged by said defendant, in the sum. of ten thousand dollars, and costs of this suit.</p> <p>To this petition the defendant filed an answer of general denial, and plaintiff filed a reply. Afterwards, by leave of court, the defendant filed an amended answer wherein said defendant admits: First, that one George Lukert was, on the 16th day of November, 1902, killed by coming in contact with the wires of the Pioneer Telephone Company, a corporation organized under the laws of the Territory of Oklahoma, and owning and operating a system of telephone wires in the said city of Oklahoma City. Defendant further admits that it, at the dates mentioned in the petition, was the owner of a line of poles and wires extending along Chickasaw street in the said city of Oklahoma City, and in front of the residence of said George Lukert, and that the telephone wires of the said Pioneer Telephone Company were strung upon the same line of poles with the wires of defendant; second, except as hereinbefore admitted, the defendant denies each and every material allegation contained in plaintiffs amended petition; third, defendant for a third defense states that the said George Lukert met his death by reason of his own negligence, and not by the negligence of this defendant; and fourth, for a further defense, defendant states that the death of the said George Lukert was caused by the negligence of the said George Lukert himself, in connection with the negligence of the said Pioneer Telephone Company, a corporation owning the line of telephone wires with which the said George Lukert came in contact, and from which he received the deadly charge of electricity. Wherefore defendant prays that the plaintiff take nothing bjr her said action, and that it recover its costs herein, to which the plaintiff filed a reply, (after entitling the case and court) as follows:</p> <p>“Now pomes the said plaintiff, and for a reply to the answer of the defendant, denies each and every allegation in the third and fourth paragraphs of said answer.”</p> <p>Upon the pleadings thus formed, and the issues thus raised, the case came on for trial on the 16th day of May, 1904, being one of the regular days of the regular term of said court, a jury was empaneled, the evidence heard, and the jury after being instructed by the court as to the law, returned a verdict in favor of the plaintiff, and assessed her damages at $6000.00, and also returned special answers to twenty-nine interrogatories propounded to them by the court. Thereafter, and on the 19th day of May, 1904, defendant filed its motion to set aside and vacate the general verdict, and render judgment for the defendant on the special findings m said cause. That 'afterwards and on the same day, to wit:The 19th day of May, 1904, the defendant filed its motion for a new trial in said cause, which motion to vacate the general verdict and for judgment on the special findings, was overruled by the court, and exceptions saved by the defendant. Motion for new trial was overruled by the court, and excepted to by the defendant, and the court pronounced judgment on the verdict, to 'which the defendant excepts, and brings the case here for review.</p>

<p>Error from the Probate Court of Comanche County; before 17. Hennessey, Trial Judge.</p>

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

<p> Error from the District Court of Oklahoma Countybefore Bayard T. Ilainer, Trial Judge. </p> <p>STATEMENT OF FACTS.</p> <p>In this case, the plaintiff in error, John Tlireadgill, was the purchaser at a receiver’s sale of certain propertjr formerly belonging to the Oklahoma Woolen Mills, of which Charles F. Colcord, the defendant in error, had been appointed receiver. The receiver’s sale was made under and by virtue of an order of the judge of the district court in and for Oklahoma county, the said order being made on the 18th day of May, 1904. The receiver caused the property ordered by the court to be sold to be advertised for sale in the Daily Oklahoman, and Times Journal, two daily newspapers of general circulation, published in Oklahoma county. The plaintiff in error, Threadgill, was a stockholder in the Oklahoma Woolen Mills, and was the plaintiff in the case in which the receiver was appointed. On the day of the receiver’s sale, Messrs. Grant & McAdams, as agents and attorneys for Threadgill, appeared at the sale and bid for the property the sum of twelve thousand dollars ($12,000.00) and this being the highest and best bid then offered, the master, or auctioneer appointed to conduct such sale, declared said property sold to the plaintiff, and immediately demanded of him the payment of the amount of his bid. The plaintiff asked for further time to examine the records as to the title, which was granted. Subsequently, Threadgill, the plaintiff, refused to perform the condition of his bid, and to take the property, claiming that the appointment of the receiver in the case) and the conduct of the sale was irregular, and not in accordance with the statute. On the 20th day of July, 1904, the plaintiff herein moved the court in the case in which the receiver had been appointed, to set aside the receiver’s sale. This motion the court denied and ordered that Threadgill pay into the hands of the clerk of the court the sum of twelve thousand dollars, the amount of his bid for said property, and that upon such payment, the receiver make, execute and deliver to Threadgill a deed conveying the property purchased by him at said sale. Upon said order being made by the court, the plaintiff Thread-■gill refused to comply with such order, whereupon the court ordered that the receiver of the Oklahoma Woolen Mills, Charles F. Colcord, commence an action against Threadgill to recover the amount of the bid. On the 12th of September, 1904, in accordance with the order made by the conrt in the case in which the receiver was appointed, an action was commenced in the district conrt of Oklahoma county by the receiver of the Oklahoma Woolen Mills against John Thread-gill, for the recovery of the amount of his bid, and a petition setting np the facts was filed herein to which petition the defendant filed-an answer, after which, plaintiff moved for judgment on the pleadings, which motion was granted by the court .and judgment rendered in favor of the receiver, and against the plaintiff in error, Threadgill, for the snm of twelve thous- and two hundred and seventy and 66)100 dollars (12,27o.66), being the amount of the bid on said property, together with seven per cent, interest thereon from the date of the sale. To which finding and judgment, plaintiff in error, Threadgill, excepted, and takes his appeal to this court, and brings the matter here for review.</p>

Error from, the District Court of'Pawnee County; before Bayard T. Hainer, Trial Judge. STATEMENT OE EACTS.

<p>Error from the Probate Court of Comanche County; before W. R. Hussey, Trial Judge.</p>

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

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

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT OE FACTS. The defendant in error, a practicing physician in Oklahoma City, Oklahoma Territory, on July 15, 1901, about five o’clock, P. M., entered plaintiff in error’s cafe for the purpose of procuring a lunch.

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

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT OR RACTS. This is an action begun in the district court of Oklahoma county, and tried at the September term, 1903. In the petition, the plaintiff asks to have set aside certain deeds executed by the plaintiff to the defendant, on the grounds of fraud, and Avant of mental capacity. To this petition the defendant files an answer which is practically a general denial.

Error from the District Court of Garfield County; before C. F. Irwin, Trial Judge. STATEMENT OE EAOTS.

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

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

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

<p>JURY — Influencing Action. Where In a motion for new trial in a criminal cause, charging misconduct of the jury in permitting a bailiff of the court to be present during its deliberations and taking part therein it is clearly shown that while the bailiff was in the jury room two or three times during the deliberations o£ the jury, but took no part in such deliberations and used no language or performed any act intended to influence them, or which might tend to influence them, and it is shown by the testimony of the jurors that the presence of the bailiff did not in any way influence them in finding their verdict; the wrongful presence of the bailiff in'the jury room, Heidi, to be immaterial error.</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 District Qourl of Comanche County; before B. F. Bunoell, Trial -Judge.</p>

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT OE EACTS. This was an action originally brought in the probate court of Oklahoma county, from which an appeal was taken by the plaintiff in error to the district court of Oklahoma county.

<p>1. HOMICIDE — Dying Declarations. In a criminal case, tile question of the competency of dying declarations offered In evidence is, in the first instance, a question of law for the court, and the court must pass upon the competency of such evidence as a question of law.</p> <p>2. SAME — Submission to Jury, Error, When. In the trial of a criminal case, the court’s failure or refusal to pass upon the question of the competency as evidence of dying declarations, and the submission of such declarations to the jury without first passing upon their competency, would be error.</p> <p>3. SAME — Instruction. Where in the trial of a criminal -case, the court as a matter of law passes upon the competency of dying declarations and finds that they are competent to be submitted to the jury, and they are submitted to the jury, it is not error for the court by an instruction, to again submit the question of the competency of such declarations to the jury for their 'consideration.</p> <p>(Syllabus by the Court.)</p>

Error from ihe District Court of Payne County; before Jno. H. Burford, Trial Judge. STATEMENT OR If ACTS. This is an action begun in the district court of Payne county, by the defendant in error, Jacob Swisher, against the city of Stillwater, plaintiff in error, in which the plaintiff alleges that the defendant is a city of the first class, located in Payne county, Oklahoma Territory.

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

<p> Error from the District Court of Kay County; before Bayard T. Earner, Trial Judge. </p> <p>STATEMENT OR FACTS.</p> <p>This Avas an action brought in the district court of Kay county, to try the title to tbe office of police judge of the city of Ponca City, a city of the first class. The plaintiff in error, J. C. McClelland, was the candidate on the Republican ticket for police judge, and A. PI. Erwin, AAras the Democratic candidate for said office. The election was held on the 7th day of April, 1903, and upon a canvass of the votes, the plaintiff in error and defendant in error were found to have an equal number of votes, to wit; Three hundred (300). Lots were drawn in which the defendant in error won, and a certificate of election was issued to him. The plaintiff thereupon commenced this action. C. L. Pinkham was appointed referee on the 8th day of October, 1904, and afterwards, in the same year, filed his report, finding that the plaintiff in error had received 297 votes, and the defendant in error had receiA'ed 299 votes, and recommended as his conclusion of law, that judgment be rendered for the defendant in error. Objections to the report of the referee were filed by the plaintiff in error, which objections were by the court overruled. The report of the referee was then approved by the court and judgment rendered thereon-for the defendant in error, declaring him police judge of Ponca City, and assessed the costs to the plaintiff in error. Motion for new trial was filed by the plaintiff in error, which was by the court overruled, exceptions saved, and the ease brought here for review.</p>

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

Error from ihe District Court of Garfield County; before Jamies K. Beauchamp, Trial Judge. STATEMENT OF FACTS. The plaintiff in error, Oliver F. Cameron, defendant below, was arrested on a warrant from the probate court of Garfield county, sworn out by one James Kershaw, sheriff of said county.

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

Error from the District Oourt of Payne County; before John H. Burford, Trial Dudge. STATEMENT OE FACTS. This action was commenced in the district court of Payne county, Oklahoma Territory, by W. H. Coyle, and II'. C. Guss, partners under the firm name and style of Coyle & Guss, against L. K. McGuffin, on a promise to pay two hundred and fifty dollars when the Atchison, Topeka & Santa Fe Railroad Company should build its road into the town of Cushing, Oklahoma Territory.