Volume 17 — Oklahoma Reports

<p>1. INDICTMENT- — Allegations—Phraseology. An indictment is sufficient which states the facts clearly and distinctly, in ordinary and concise language, without repetition, and which, construed under the ordinary rules of construction of the English language, would enable a person of common understanding to know what was meant, and to apprise the defendant of the[ exact nature of the offence with which he was charged, although the same does not contain all the phraseology and technical language ordinarily used in criminal pleading</p> <p>2. NEW TRIAL — Granted, When. Where a new trial is sought on the ground of newly discovered evidence, and where it is apparent that all reasonable diligence of which the subject is susceptible has been exercised by the defendant to procure the same, and where it is apparent that the evidence not only tends to discredit or impeach the prosecuting witness, but is such as might reasonably affect and probably would change the result of the trial, a new trial should be granted.</p> <p>3. EVIDENCE — Criminal Trial — What Competent, In a criminal prosecution for an alleged assault with intent to kill, where the defendant claims that he acted solely in self defense and to prevent a felony being committed upon him, and some evidence is introduced tending to show that such were the nature and character of his acts, it is then competent for the defendant, in corroboration of such evidence, and to show the state of the feelings existing between the defendant and the prosecuting witness at the time of the alleged assault, to introduce other evidence, tending to show that the person on whom the assault is alleged to have been made, had, a short time previous to said alleged assault, committed an assault upon the defendant with a deadly weapon, and attempted to do him bodily harm with said weapon, where the evidence in the case on trial tends to show that at the time of the alleged assault, the person assaulted had in his possession a weapon similar to that with which the previous assault was committed.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. CHEROKEE STRIP — President's Proclamation Construed. The strip of land referred to in the President’s proclamation of August 19, 1893, “one hundred feet in width around and immediately within the outer boundaries of the entire tract of country to be -opened for settlement” ran around and immediately within the outer boundaries of the body of lands opened for settlement, and not around the outer boundaries of the entire tract specified in the cession and relniquishment of the Cherokee Indians.</p> <p>2. SAME — Qualified Entryman. One who was within the Ponca Indian reservation before the hour of 12 o’clock noon (Central standard time) of September 16, 1893, and made the race from said 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 quarter section of land within the country then declared open to settlement.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Greer County; before James K. Beauchamp, Trial Judge. STATEMENT OF FACTS. This was an action commenced in the district court of Greer county by H. C. Sweet and others, against J. G. Bogard et al., for the cancellation of a deed to certain town lots in the city of Mangum, Greer county, and a certain contract made in connection therewith.

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

<p> Error from the Prolate Court of Washita County; before Bichard A. Billups, Trial Judge. </p>

Error'from the Probate Court of Washita County; before Richard A. Billups, Trial Judge. statement of facts. This was an action brought by the State Mutual Insurance Company against E. O. Clevenger, to recover on -a note executed by the defendant to the plaintiff on June 7, 1904. The note was given for premium on insurance against hail upon a growing crop of cotton.

<p>1. COUNTY DEPOSITORIES — Power and Duty of Commissioners. Under art. 2, chap. 11, Session Laws 1905, making provision for depositories for county funds, it is the duty of the board of county commissioners to designate certain banks within the county as depositories for money in the hands of the county treasurer, and to approve their bonds. When that is done, they have performed their full duty under the act, and have no power to specify what amount of money shall be deposited in any given bank.</p> <p>2. SAME — Duty and Power of Treasurer. Where depositories for county funds have been designated by the board of county commissioners, and the bonds thereof approved, it becomes the duty of the county treasurer to use these depositories for depositing the county funds therein. It is, however, within the discretion of the county treasurer to fix the amount to be placed in any given bank, subject, however, to the provision that he shall not deposit , an amount greater than, the capital stock of such bank, nor greater than the bond given as security.</p> <p>(Syllabus by the Court.)</p>

Mrror from the District Court of Woods County; before J. L. Pancoast, Trial Judge. STATEMENT OE FACTS. On tbe 16th day of December, 1903, the grand jury of Woods county returned into court an indictment charging Sabin Tucker with having sold, exchanged and delivered, to Pearl Mitchell and W. H. Scott, for a consideration, to-wit: Twenty-five dollars in money, of the value of twenty-five dollars, a forged and counterfeited check.

Error from the District Court of Payne County; before Jno. H. Burford, Trial Judge. STATEMENT OP PACTS.

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

Error from the Probate Court of Lincoln Countyj before-Fred A. Wagoner, Trial Judge. STATEMENT OE FACTS. Plaintiff in error was prosecuted in the probate court, by information filed on January 16, 1905, charging him with the crime of selling liquor without a license. When the case was called for trial the defendant demanded to be tried by a common law jury composed of twelve persons.

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

Error from the District Court of Grant County; before James K. Beauchamp; Trial Judge. STATEMENT OI? PACTS. This was an action for personal injuries brought in the district court of Grant county,' by John Stibbs, defendant in error, against The Chicago, Bock Island & Pacific Bailway Company, plaintiff in error. The facts, briefly stated, are that the plaintiff was a lawful passenger on the defendant's train, having purchased at Kansas City a ticket to Medford, Oklahoma.

Error from the District Court of Grant County; before James K. Beauchamp. Trial Judge. STATEMENT OE FACTS. This action was brought to recover on a promissory note in the probate court of Grant county, Oklahoma Territory, and from there appealed to the district court of said county.

<p>1. ATTACHMENT — Lien for Pasturing Cattle, Waived When. One who has a lien on cattle for pasturing them, under the terms of secs. 108 and 110 of-chap. 3 of Wilson’s Anno. Statutes of Oklahoma waives such lien by suing for the amount of the debt and causing the property covered by such lien to be attached in such suit, as the lien under the statute and the lien under the agreement are inconsistent, and cannot coexist in favor of the same person.</p> <p>2. SAME — Chattel Mortgage. The rights of a mortgagee to the possession of personal property covered thereby are superior to those of a sheriff who claims under a writ of attachment, sued out at the instance of another creditor of the mortgagor and levied on the property after the filing of the mortgage for record in the office of the register of deeds of the county, the attaching creditor not having paid off the mortgage or deposited the amount thereof as required by the statute.</p> <p>(Syllabus by the Court.)</p>

<p>HOMESTEAD — Cloud upon Title — Right to Remove. One who temporarily vacates a homestead owned in fee simple for the purpose of giving educational advantages to minor children, does not so abandoned the possession of the same as to forfeit his right to maintain an action to remove a cloud from the title, under the provisions and authority of section 589 of the code of civil procedure.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. CRIMINAL LAW — Bond—Sufficiency of Language. A bond given in a criminal case requiring the defendant to appear and answer to the charge of “obtaining property by means of false representations and pretenses” contains a sufficient description of the offense for which the defendant is required to answer.</p> <p>2. SAME. Incorrect recitals in an appearance bond as to the day of the month or year on which the court will convene, or the » defendant appear, when coupled with the condition for the . defendant to appear at the “next term,” will not invalidate the bond, or release the sureties thereon of their liability, but will be treated as mere surplusage.</p> <p>3. SAME. In a bond given in a criminal case it is not required that all the facts necessary to be stated in the indictment should be set forth with legal accuracy, or in the terms of the statute. It will be sufficient if it shows that the defendant was charged with the commission of a public offense. If the offense can be designated by a specific name it will be sufficient to state it; otherwise, it should contain a substantial description, so that the nature of the charge may appear for which the defendant is required to answer.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Greer County; before Jarrett Todd, Trial Judge. </p>

Error from the District Court of Oklahoma County j before B. F. Bwrwell, Trial Judge. STATEMENT OF FACTS.

<p>1. PRACTICE — Errors Waived, When. In an action on a promissory note, against an administrator, where a stipulation is entered into containing the recitation that "the claim of the plaintiff for the amount sued on, herein having been disallowed by the administrator of said estate, as well as by the probate court of Logan County, * * * this action to be tried as upon the issues made by the pleadings in this action the same as if ‘commenced originally’ against the administrator,” and the court, in admitting the stipulation, makes the statement that it would hold that the stipulation did not estop the defendant from offering evidence to show that the claim was not presented, which statement is excepted to, and thereupon, evidence is offered by plaintiff to show that said claim was presented to the administrator and rejected, and by the defendant in denial of such facts, and no objections are made to such evidence nor exceptions saved, and where no exceptions are saved to the instructions of the court, submitting to the jury the question of whether or not said claim was in fact presented; and acted upon: Held: That any error committed by the court in its announcement as to what its ruling would be when the evidence was in fact offered, will, under such circumstances, be deemed to be waived.</p> <p>2. TRIAL — Verdict—Issues Determined. Where two issues are submitted to a jury for their determination, and a special finding is returned as to one, in favor of the defendent, and a general verdict is also returned in favor of the defendant, this court cannot say that each of the issues submitted was not found by the jury in favor of the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGMENT AGAINST CITY OF FIRST CLASS — Execution. In the absence of statutory inhibition, an ordinary execution may 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 government purposes, still, if any property 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 an execution.</p> <p>2. SAME — Statute of Limitations, tinder section 4337 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, such 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, causes execution to issue thereon.</p> <p>3. SAME — Same—Mandamus. Where a judgment creditor fails to have execution issued within five years on a j'udgment against a city of the first class, and also 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 of the same.</p> <p>4. SAME — Same—Resolution of City Council. An agreement between practically all of the judgment creditors of a city, that such city shall pay such creditors in the order of priority of the date thereof, instead of paying such judgment creditors their pro rata shares, 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, do1 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 dormant.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court x>f Oklahoma Countyj before William P. Harper, Probate Judge </p> <p>STATEMENT 'OE EACTS.</p> <p>The original petition of plaintiff below substantially alleges that on or about the 1st day of June 1901, T. H. Harvey, pursuant to contract, was building a dwelling house in Maywood Addition to Oklahoma City for the defendant, G-. W. Limerick, and that the plaintiff entered into a contract with Harvey to furnish material and labor to paint and paper the house for $335.00, and that under that contract he performed five dollars ($5.00) worth of work, and that on or about June 25th, 1901, he learned that said Harvey was unable to pay for said labor and material, and refused to proceed any further under the terms of said contract; that on that day the defendant, G-. W. Limerick, came to said building and entered into a verbal contract with the plaintiff whereby he agreed and promised to pay him the sum of $330.00 for furnishing material- and labor to complete the painting and papering of said house, said amount to be due and payable upon its completion; and, that in pursuance thereof, he furnished material and labor, and completed said contract with Limerick on the 19th day of December, 1901; and that there became due and owing to him from the defendant upon that date the sum of $330.00.</p> <p>In his amended petition the plaintiff repleaded his allegations in reference to his contract with Harvey, his refusal to proceed thereunder, and his contract with the defendant, and negatived the allegation of the original petition that he had completed the contract, and as an excuse therefor, set up that the defendant failed to select the paper that was to be used in three of the rooms, and alleged that the material furnished, and labor performed under the contract with defendant, was worth $310.00, and for ’which sum he prayed judgment, with interest.</p> <p>For his answer, the defendant below, entered a general denial, admitted that the plaintiff entered into a contract with Harvey to furnish the material and labor for the painting and papering of said house and set up that the plaintiff sought to enforce payment thereunder by filing a subcontractor’s lien against the dwelling house; and thereafter, sought to foreclose the same, but because of defects therein, was compelled to dismiss his cross petition in that suit: and thereupon, brought this action against the defendant upon an entirely different contract from the one in which he had theretofore solemnly alleged to have furnished the material and performed the labor upon said house.</p> <p>The issues thus joined were submitted to trial by jury, resulting in a verdict and judgment for the plaintiff below, in the sum of $380.10, being the amount claimed with interest.</p> <p>A motion for new trial was overruled, exceptions saved, and case brought here by petition in error, and case made for review.</p>

Error from the District Court of Noble County; beforeBayard T. Hainer, Trial -Judge. STATEMENT OE EACTS. This was an action brought by the defendant in error on three promissory notes, _ and for the foreclosure of a real estate mortgage. Said notes being given as a part consideration for the purchase of a stock of merchandise located in the town of Morrison, Noble county, Oklahoma.

Error from the District Court of Kay County; before Bayard T. Kainer, Trial Judge. STATEMENT OE FACTS. Action by Jolin E. Weaver against Henry Kuchler and Amelia Kuchler to abate a nuisance. Plaintiff secured a temporary restraining order in the probate court, which upon a motion to dissolve in the district court was modified. Erom the order and judgment of modification, plaintiff appeals.

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

Beauchamp, Trial Judge. STATEMENT OR EACTS. This was an action brought by the defendant in error against the plaintiff in error to recover damages for injuries alleged to be the result of negligence and improper treatment of the defendant in error while under the care of the plaintiff in error, as a surgeon.

<p>1. NATIONAL BANK — Receivership—Claim Against — Priority of— How Determined'. One who deposits checks and drafts in a bank when it is in a failing condition, cannot secure a preference for the amount thereof over other creditors on the money in the bank at the time of its ^iiure without tracing the proceeds of such checks and drafts, and showing that such proceeds are included in such cash.</p> <p>2. SAME Where a bank is insolvent on the last two days that it transacts business, and receives deposits, andl it affirmatively appears from the evidence that there was found in the bank when it closed its doors, $20,000 in cash, and that $12,857’39 was deposited on the last day on which it received deposits, in an action for a preference by one who deposited on the day before the last on which it received deposits, his recovery of a preference will be limited to the cash on hand less the deposits of the last day; there being no attempt to trace the identical money deposited into any other assets of the bank.</p> <p>3. SAME — Presumption of Law. When a bank receives deposits of cash while insolvent, and fails without sufficient money on hand to pay back all of the deposits so received, the law will presume that the money was paid out by the bank in the order that it was received, and that the money on hand is the money of the last depositor, and so on back in the inverse order of the deposits as to time.</p> <p>4. SAME — Money of Territory. When moneys of the territory are deposited by the territorial secretary in a bank_that was insolvent, and it afterwards fails, and the territory is unable to trace the identical funds deposited, it should be confined to the general rules of law regarding presumptions of fact applied to other depositors; and when, under such rules, it is evident that the deposits of the last 'day on which the bank transacted business belong to other creditors, a preference will be denied the territory as to such deposits, even though no preference is claimed by those entitled thereto; and, under such circumstances it is immaterial whether or not the secretary had any authority for making such deposit.</p> <p>(Syllabus by the Court.)</p>

<p>1. NATIONAL BANK — Receivership—Claims against — ‘Priority of — How Determined. Where the secretary of the territorial board for leasing the school land of the territory without any authority deposited the money, cheeks and drafts received from the rents of such land in a national bank and the bank subsequently fails before the territory can be paid ahead of the other creditors of the bank it must be affirmatively prove by a preponderance of evidence that the particular moneys, checks and drafts so deposited, or .the proceeds thereof were turned over to the receiver of the bank, or that such deposits went to swell the assets or such bank.</p> <p>2. SAME Where a bank receives deposits while in a failing condition, and at the time it closes its doors it has on hand a sufficient amount of cash to pay such deposit, such payment will not be made ahead of others when the evidence on the particular trial affirmatively shows when measured by legal presumption, that such cash was deposited by the other creditors.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Pottawatomie County; before B. F. Burwell, Trial Judge. STATEMENT OF FACTS. This action was commenced ore May 2, 1905, in the district conrt of Pottawatomie county, Oklahoma, by the plaintiffs in error against the defendants in error, the purpose being to enjoin the execution of a certain lease contract by the Shawnee Compress Company, its officers and agents, to the Gulf Compress Company, defendants in error herein.

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

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

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

Error from the Prolate Court of Oklahoma County; lefore Wm. P. Harper, Trial Judge. STATEMENT OP PACTS.

<p>1. REAL PROPERTY — Sale of — Risk of Title. In the absence of fraud or warranty, the purchaser of real property takes the title at his own risk, and if he has not taken the precaution to secure himself by covenants, he has no remedy for his money even on a failure of title.</p> <p>2. GUARDIAN AND WARD — Lease of Ward’s Land — Presumption. "Where a guardian who has been duly and legally appointed by a competent court having jurisdiction of the subject, makes a lease of the premises of his ward, in the absence of proof to the contrary the court will presume that all necessary legal steps have been taken, and that the guardian has secured ail necessary orders to authorize him to make such lease, and the burden is upon the party attacking the validity of the lease to establish the facts necessary to show' its illegality.</p> <p>3. SAME — Same—Estoppel of Tenants. Where the lease is made and entered into under the laws of Arkansas, and where that law provides that “when any minor shall be the owner of any improved lands, it shall be the duty of the guardian of such minor, annually, to rent such land to the highest bidder, giving ten days’ previous public notice of the time and place for renting same." and where a party takes a lease of the lands of a minor, through the guardian of said minor, without the law as to the giving ol’ public notice, and as to the highest bidder being complied with, and then assigns said lease to a third party who enters into possession under said lease, and has actual, uninterrupted, peaceable possession, and receives the benefit of the leased premises, such third party cannot set up the invalidity of the lease as a defense to a note given in the consideration of the assignment of the lease.</p> <p>4. SAME — Same. In an action on a note given in consideration of an assignment of a lease, without warranty, in the absence of fraud the assignee cannot set up a defect of title. He stands like a purchaser under a Quit claim deed.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. PETITION — Demurrer—General. A petition wnich sets forth . a. cause of action upon a promissory note alleging; that it was executed on August 4, 1902, and fell due September 20, 1902, a copy of which was attached to the petition and reads; “On September 20th, we promise to pay” — the year of maturity being left out, is good as against a general demurrer.</p> <p>2. SAME — Under the requiremments of the Oklahoma statute that a demurrer shall specify distinctly the ground therefor, a question of defect of parties which is made a ground of demurrer, cannot be raised under a general demurrer alleging simply a want ■ of facts sufficient to state a cause of action.</p> <p>3. SUNDAY — CONTRACTS—Under the statutes of Oklahoma forbidding public traffic bn the first day of the week, a debt created for the sale of a domestic animal cannot be enforced, unless there is such a subsequent recognition of the indebtedness on a secular day as will amount to an acknowledgment of indebtedness, and a promise at that time, either express or implied, te pay.</p> <p>(Syllabus by the Court.)</p>

<p>1. MORTGAGE — Rights of Mortgagee — Purchase at Mortgage Sale. A mortgagee who enters into possession peaceably, as purchaser under foreclosure proceedings, cannot be dispossessed by the mortgagor or his grantees so long as the mortgage remains unsatisfied.</p> <p>2. SAME — Grantee of Such Purchaser. Under the facts in this case H., as the grantee of R., the purchaser at the foreclosure sale, ■ stands in the shoes of the mortgagee, and his right to relief must be measured and determined by the well-recognized principles of equity.</p> <p>3. DUE PROCESS OF LAW — Property Rights. No man shall be condemned in his rights of property, as well as his rights of person, without his day in court; that is, without being duly cited to answer respecting them, and being heard or having an opportunity of being h-eard thereon. •</p> <p>4. MORTGAGE — Title Passes Under, When. In this jurisdiction, a mortgage upon real estate creates only a lien In favor of tbe mortgagee, and neither the legal nor the equitable title passes to the mortgagee until after a valid foreclosure and sale thereunder.</p> <p>5. SAME — Rights of Mortgagors and Mortgagee. 'The rights of the mortgagee in possession are not adverse to the rights of the mortgagor or his grantee, so long as the relation of the mortgagor and mortgagee exists.</p> <p>-6. SAME — Same—Rents and Profits. H., as the grantee of the pur- . chaser at the foreclosure sale, stands in the shoes of the mortgagee, and must be treated as a mortgagee in possession and it is incumbent upon him to account for the rents and profits derived from the land from the time he was in possession thereof.</p> <p>7. SAME— Same — Application to Indebtedness. Appellant, or her grantees, have a right to have these rents and profits applied to the payment of the mortgage indebtedness, which includes not only the principal sum of the indebtedness, but all accruing interest, taxes, assessment, and other proper charges.</p> <p>8. SAME — Same—Credits to be Allowed1 Mortgagee in Possession. The mortgagee or his grantee in possession should be allowed and credited in his account with the cost of all ordinary, reasonably necessary repairs made to- the premises, and with all reasonable disbursements and expense necessary for the proper management and protection of the estate. And if any permanent improvements have been erected with the consent or acquiescence of the mortgagor, or his grantees, which increase the value of the estate, just and proper allowances should be made therefor.</p> <p>9. PLEADING AND PRACTICE— Transfer of Realty Pendente Lite. Rights of Purchaser. In a case of a transfer of real estate during the pendency of the litigation, the action may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.</p> <p>10. SAME — Necessary Parties in the Action. Under the facts of this case, appellant as well as R. and S. are not only proper but necessary parties to a full and complete determination of this action.</p> <p>(Syllabus by the Court.)</p>

Error from the District Qouri of Woods County; before J. L. Pancoast, Trial Judge. STATEMENT 'OF FACTS. This action was an action brought in the district court of Woods county by E. C. Edmisson against the Drumm-Elato Commission Company, for the wrongful conversion of 410 head of cattle, whereby the plaintiff claims he has sustained damages in the sum of $8,000.00.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STAT73MJENT of facts. This is an action wherein the defendant in error, Wm. N. Wilson, sfeeks to recover damages from the plaintiff in error, McCabe and Steen Construction Company, for injuries that he claims to have received while acting in the capacity of a locomotive fireman, for the said construction company.

<p> Error from the District Court of Pottawatomie County; before B. F. Burwell, Trial Judge. </p> <p>STATEMENT OE EACTS. '</p> <p>This was an action brought in the probate court of Pottawatomie county by W. B. Alexander against J. J. Culbertson and Emily Culbertson, to recover damages in the sum of live hundred dollars, alleged to have been sustained by reason of wrongfully obstructing the street immediately in front of his place of business, and which caused the water to dam up and accumulate in front of his store building, so as to greatly interfere with and injure his business.</p> <p>To this petition the defendants filed an answer, consisting of a general denial.</p> <p>The cause was submitted to the court, and the issues were found in favor of the plaintiff and against the defendants, and the damages assessed at $250.00, and judgment entered accordingly. Prom this judgment the defendants appealed to the district court, and there the cause was submitted to a jury and a verdict returned in favor of the plaintiff for one dollar and costs. On motion, the court granted the plaintiff a new trial. Thereupon, the cause was again submitted to a jury, verdict returned in favor of the plaintiff for $250.00 and judgment entered accordingly. Motion for new trial was filed by the defendants, overruled, exception saved, and the cause is brought here for review.</p>

Error from the District Court of Kay County; before Bayard T. Hairier, Trial -Judge. STATEMENT OF FACTS. This is an appeal from the district court of Kay county.

<p> Error from the District Court of Lincoln Countyj before John I-I. Bur ford. Trial Judge. </p>

<p>1. CASE MADE — Extending Time — Powers of Judge. The presiding judge of a district, either at chambers or while sitting as a court: or the judge who tried the case, if clothed with authority by assignment, while in the district, may extend the time in which to make and serve a case made.</p> <p>■2. PLEADING AND PRACTICE— Exhibits — General Demurrer. Where the instrument, which is the basis of the action, is attached, by copy, to the petition and made a part thereof, such copy should be made a part of the petition when construing the allegations thereof as against a general demurrer.</p> <p>■3. NEW TRIAL — Motion for — Necessary Precedent to Appeal. Where the appellant fails to assign, as error, the overruling of the motion for a new trial, in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.</p> <p>4. DEMURRER — General—Overruled, When. In replevin, by mortgagee petition held not subject to general demurrer, because it fails to allege condition broken in chattel mortgages, and that the notes were due, since the mortgages were attached to the petition and made a part thereof, and contained copies of the notes showing they were past due at the time the suit was instituted; also, the condition that upon default in payment of note, mortgagee was entitled to possession.</p> <p>(Syllabus by the Court.)</p>

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

<p>INDEMNITY COMPANY — Representations, What are. Where the president of a bank applies to a bonding company to make a bond indemnifying the bank against defalcations by one of its employes, and such 'bank president answers certain questions in writing at the request of the bonding company regarding the former conduct of such employe, such questions and answers will ordinarily be construed to be representations and not warranties;' but such answers must be given in good faith, as any material false representations will relieve the bonding company from liability.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Oourt of Logan County; before Jno. H. Burford, Trial Judge.</p> <p>STATEMENT OP PACTS</p> <p>This is an action brought in the district court of Logan county by the Richardson-Gay Oil Company against E. A. Ashton, as territorial.oil inspector, to restrain and enjoin the latter from inspecting two barrels of oil, or interfering with the sale thereof, on. the ground that the oil had been regularly inspected, and that no second inspection, was required, under the laws of Oklahoma. The ease was submitted to the court upon the following agreed statement of facts:</p> <p>“Comes now the parties hereto and agree upon a case containing the facts hereinafter set forth, upon which a controversy depends between said parties, and present a submission of the same to this court, which said facts as agreed upon by and between said parties are as follows, to-wit:</p> <p>“That said plaintiff is a corporation organized and existing under the laws of the state of Texas, with headquarters at Corsicana, Texas, and engaged in the refining and selling at wholesale the products of petroleum in Texas and the neighboring states and territories.</p> <p>“That plaintiff has complied with the laws of Oklahoma Territory concerning foreign corporations and has appointed one O. S. Burnett of Shawnee, Oklahoma, as its agent in said territory, who is duly authorized to accept service of process, and upon whom process of service may be made in any action, in which said corporation may be a party.</p> <p>“That the plaintiff maintains an agency and a warehouse at the town of Chickasha in the Indian Territory, and at which is stored its coal-oils and gasoline for prompt shipment to its customers in the vicinity of Chickasha.</p> <p>“That the plaintiff is engaged only in the wholesale trade, and has a number of customers in the towns and villages in Oklahoma, having close and convenient railroad connection with the said town of Chickasha, and also a number •of customers in small towns off of the railroad lines.</p> <p>“That on or about the 16th day of May, 1905, the plaintiff shipped sixty barrels of eoal-oil into and through the Territory of Oklahoma to be stored in its warehouse at Chickasha, and intended for shipment to its customers as aforesaid in the Territory of Oklahoma, and consumption of the same in the Territory of Oklahoma.</p> <p>“That the defendant is the duly appointed, qualified and acting territorial inspector of oils of the Territory of Oklahoma, and was such officer at all times herein mentioned, and now resides in the city of Guthrie, Logan county, Oklahoma Territory.</p> <p>“That on or about the said 16th day of May, 1905, the said territorial inspector of oils inspected, examined and tested said sixty barrels of oil belonging to plaintiff at Oklahoma City in Oklahoma Territory, and said barrels of oil met all the requirements specified by the statutes of the Territory of Oklahoma, and thereupon the said defendant issued to plaintiff his certificate certifying that said sixty barrels of oil had been by him inspected and approved, and said certificate also contained the actual test of said oil, and the said defendant also fixed his brand on each and every one of said barrels of coal oil, giving the actual test with the date of his official signature upon the same. That upon the making of said inspection by the defendant the plaintiff paid to him his fees as provided by law.</p> <p>“That after said sixty barrels of coal oil were inspected and approved as aforesaid, the same were forwarded to and placed in plaintiffs warehouse at said town of Chickasha for shipment to and consumption in the Territory of Oklahoma as aforesaid.</p> <p>“That on or about the-day of. June, 1905, the plaintiff shipped to one of its customers at Cement, Oklahoma, two barrels of said barrels of coal oil, which had been inspected and approved by said defendant as aforesaid, the said coal oil being the identical coal oil and in .the same identical barrels as when it was inspected by said defendant at Oklahoma City as aforesaid. But that said fact is not within the personal knowledge of said oil inspector or any of his deputies.</p> <p>“That the said defendant immediately forbade and prevented plaintiff under the penalty of a criminal prosecution from selling said two barrels of oil to its customers at Cement, Oklahoma, unless plaintiff should have said two barrels inspected over again by said defendant and defendant still demands the right to inspect said oil over again 'and to collect his fees therefor from said plaintiff, notwithstanding the fact that he had already inspected and approved and certified to the same, and branded the barrels as hereinbefore set forth. That said brands upon said barrels were and are plain and intact.</p> <p>"Wherefore, both parties pray that the court hear this case and determine whether or not the said defendant should be restrained and enjoined from inspecting said two barrels of oil again, or in interfering with plaintiff’s selling the same without a second inspection.</p> <p>“LAWRENCE & Huston,</p> <p>"Attorneys for Plaintiff.</p> <p>"P. C. SIMONS</p> <p>“Att’y General of Olda.”</p> <p>And upon this agreed statement the district court found the issues for the defendant, and against the plaintiff, and entered judgment for costs. From this judgment, the plaintiff appeals.</p>

Error from the District Court of .Custer County; before O. F. Irwin, Trial Judge. statement of facts. On July 5tli, 1901, O. J. Ewing and Hattie Ewing, his wife, executed and delivered to the Union Trust Company, one of the defendants in error, a real estate mortgage covering certain property in block 34 in the city of Weather-ford, Custer county, O. T., which mortgage was filed in the office of the register of deeds of said county on the 24th day of March, 1902.

<p>Error from the District Court of Nolle County; before, Bayard T. Rainer, Trial Judge.</p> <p>STATEMENT OF FACTS.</p> <p>On tbe 18th of July, 1902, the parties to this action entered into an agreement partly in writing and partly in parol the written part of which is in the following words:</p> <p>"FARMERS EXCHANGE BANK.</p> <p>“E. E. Fan Slyke, Pres. W. L. Atherton, Cash.</p> <p>"CERES, Orla. July 18, 1902.</p> <p>“This is to certify that J. P. Sullins has this day deposited with the Farmers Bank of Ceres, Oklahoma, $1600 to be paid to the grantors on their order, upon the presentation of a deed duly approved by the secretary of the interior or by the president of the United States, to the s. w. (1-4) quarter of section (7) seven, township twenty-three (23) range 1 east of the Indian Meridan.</p> <p>“Signed E. B. VaN Slyee,</p> <p>“President.”</p> <p>The circumstances under which the above certificate was executed and delivered were these: J. P. Sullins having ascertained that he could purchase the allotment of a deceased Indian for the sum of $1600, applied to Van Slyke, the president of the bank, to make arrangements for procuring the money "when needed, to pay for the land in case it should be awarded to him. upon the bid he was about to submit, and having furnished acceptable security, the above certificate was given him by the president of the bank.</p> <p>The securities furnished at the time of executing the above certificate, were two promissory notes, one given for the sum of $1000.00 and the other for the sum of $750.00 and a chattel mortgage securing the same, and this' action is brought to enforce payment of these notes and the foreclosure of the chattel mortgage.</p> <p>The defendants answered by a general denial, and second, by setting out an oral agreement, in which it is alleged that it was agreed between the parties at the time the said several writings were executed and delivered, that in the event- of defendant, John P. Sullins, not obtaining said Indian land, he was to return the said certificates, and the said plaintiff would thereupon cancel and return to him his said notes and chattel mortgage. The notes and mortgage bear date of July 18, 1902, and were due and payable six months after date. At the time of the execution and delivery of these various papers, the bank also issued and delivered to Sullins an ordinary deposit slip for $50.00 and entered a general credit on its books to him in that sum, separate and apart from the $1600.00 which last amount was to be drawn upon by Sullins only in the event that he obtained the land then in contemplation.</p> <p>Interest was computed upon the total amounts of credit given him, i. e., $1650.00 at the rate of 12 per cent per annum for six months, the interest being figured at $100.00 and this being added made the total of the notes and mortgage $1750.00.</p> <p>It further appears from the record that Sullins failed to obtain the land as contemplated, and therefore never drew any money out of the bank, and at no time made any use of the credits thus given him.</p> <p>As to just when Sullins notified the bank of his failure to obtain title to the land and that he would therefore not need the money thus contracted for, and also at what time he offered to return the certificate and deposit slip, are both matters upon which the evidence is conflicting.</p> <p>The plaintiff bank replied to the answer of defendant by a qualified general denial, and at the March, 1904, term of the court, the cause came on for trial before the court without a jury, and at its conclusion the court rendered judgment in favor of the bank and against plaintiff in error, Snllins, in the snm of $65.00 from which judgment the canse comes to this court by case made.</p>

Error from the District ■ Court of Beaver County; before J. L. Pancoast, Trial Judge. STATEMENT OF FACTS. ■This was an action brought in the district court of Bekver county by the defendant in error, Ered Taintor, plaintiff in the court below, against Robert A. Reiser, Ernest R. Wood, and the Stockgrowers National Bank of Ashland, Kansas.

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

Frror from the District Court of Kingfisher Countyj before C. F. Irwin, Trial Judge. STATEMENT OF FACTS. This action was brought on the 13th day of May, 1902, by the plaintiff in error, John E. Haffner, against the defendants in error, for the specific enforcement of an oral contract for the sale of real estate.

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

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

<p> Original Action in Mandamus. </p>

Error from Che District Court of Garfield Countyj before James K. Beauchamp Trial Judge. STATEMENT OF FACTS. Action bronglit in the district court of Garfield county for an accounting, and for the dissolution of a partnership composed of William H. Walker and Harry E. Walker, under the firm name and style of Walker Brothers. By agreement of parties, thé cause was referred to a referee to take the evidence and report his findings of fact and conclusions of law thereon.

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

<p>1. EVIDENCE' — Pároli—Admissible,—When—Sheriffs Return. Where the return of a sheriff that has served a summons on the defendants personally is ambiguous, and open to the construction that but one copy was delivered to both defendants, parol evidence is admissible to show that no service, in fact, was had on one of the defendants.</p> <p>2. SAME — Pleading and Practice — Motion to Set Aside Judgment. Where there is a direct proceeding, by motion in the cause, to set aside a judgment, by .one of the defendants in the action, at the same term of court at which the judgment is rendered, and the return of the officer is ambiguous, and open to the construction that but one writ was served on both defendants, and the evidence conclusively shows that no service was had upon such defendant, it is error to overrule the motion.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the Probate Court of Comanche County; before W. S'. Hussey, Trial Judge.</p> <p>STATEMENT OE EACTS.</p> <p>This is a proceeding in error from an order and judgment of tbe probate court of Comanche county, rendered on the 6th day of July, 1903, in which it was determined that the court had no jurisdiction to hear and determine the motion of the plaintiff in error to vacate and set aside a judgment rendered against him and in favor of Frank McMaster in said court on January 30, 1902.</p> <p>It appears from tbe record that on the 14th day of November, 1901, the City National Bank of Lawton, Oklahoma, brought an action in the probate court of Comanche county, Oklahoma, against the Peoples Bdnk of Edmond, Oklahoma, John M. Anglea, J. R. Keaton, G-. W. Childs, "Vergil Childs, and Frank McMaster, to recover the sum of five hundred dollars claimed to be due on a check dated November 1, 1901. It further appears that each of the defendants filed a verified answer to this petition, denying the execution of the check, and each and every material allegation contained in the petition; that on Januarjr 29, 1902, the defendant Frank McMaster moved the court to be allowed to amend the process, pleadings, and petition, and that he be substituted as plaintiff in the action. To this application for substitution, each of the other defendants at the time objected, which motions were overruled, and the motion to substitute McMaster as plaintiff was sustained.</p> <p>Thereupon McMaster filed three amended petitions, the first of which was against the Peoples Bank and Keaton; the second-was against J. R. Keaton alone; and the third was against the Peoples Bank of Edmond alone. In neither of these amended petitions was the plaintiff in error, John M. Anglea, made a party, defendant; nor was any relief asked as against him.</p> <p>Thereupon the Peoples Bank of Edmond,. John M. Anglea, and J. R. Keaton appeared specially, and moved to dismiss the several amended petitions filed by Frank McMaster, on the ground that the original plaintiff, the City National Bank of Lawton, had no interest in the controversy; and, second, on the ground that McMastePs cause of action was an entirely different action than was originally instituted. This motion was overruled, and on January 30 the court found the issues in favor of the plaintiff and against the defendants the Peoples Bank of Edmond, John M. Anglea and J. E. Heaton, and assessed the plaintiff’s recovery at $525 and costs.</p> <p>On November 28, 1902, a motion was made by the plaintiff in error to vacate and set aside the judgment above rendered on January 30, 1902, on the ground that he was not made a party defendant in either of the plaintiff’s amended petitions, and that at the time of the trial of the cause the plaintiff, Frank McMaster, stated that John M. Anglea was not made a party defendant to any of the amended petitions; and that the probate judge, in open court, in deciding the case, stated that no judgment would be rendered against the' plaintiff in error, John M. Anglea; and further, that no judgment against the said John M. Anglea was within the issues of said cause. This motion was overruled by the probate judge on July 6, 1903, on the ground that he had no jurisdiction to ' .ear and determine said motion to vacate said judgment; to which ruling and order of the court the plaintiff in error duly excepted, and brings the case here for review.</p>

<p>1. TRIAL — Referee—Finding of. under our statute, when a referee is to report the facts, the report has the same force and effect as a special verdict of a jury.</p> <p>'2.| SAME — Set Aside, When. Where a cause is reterred to a referee by and with the consent of the parties, to hear and determine the same, and to report his findings of fact and conclusions of law thereon, and such report is subsequently confirmed and approved by the court, the judgment will not be set aside as being against the evidence, although the evidence is conflicting, if there is sufficient evidence to sustain the findings of fact' upon which the judgment was rendered.</p> <p>3. SAME — Same—Evidence. The credibility of the witnesses and the probative force of the facts as to the mental capacity of the grant- or to excute a deed were for the determination of the referee and the trial court, and it appearing that there was legal and sufficient evidence to support the findings, they will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. INSTRUCTIONS — Exceptions—Appeal. In the absence of an ex- . ception or a request for more specific instructions, it will be presumed that the defendant was satisfied with the general charge given by the court.</p> <p>2. APPEAL — Technical Errors. On appeal to the supreme court technical errors or defects, and exceptions which do not effect the substantial rights of the accused, will be disregarded.</p> <p>(Syllabus by the Court.)</p>

<p>STEALING DOMESTIC ANIMALS — Circumstantial Evidence — Suffi clent, When. On a trial of one for stealing domestic animals, where a conviction is sought upon circumstantial evidence, such evidence must ho such as to exclude every reasonable hypothesis of innocence; and while this court will not ordinarily weigh the evidence, if there is sufficient evidence to reasonably support the verdict, it will not permit a verdict of conviction to stand in a criminal case when it is clearly against the great weight of the evidence, and rests upon circumstances which are reasonably consistent with innocence and form an unsatisfactory basis for a verdict of guilty.</p> <p>(Syllabus by the Court.)</p>

<p>DAMAGES — Action for — Municipal Corporations — Evidence. In an action against a municipal corporation for personal injuries, there is no 'presumption that the plaintiff or defendant is guilty of negligence, and in order to entitle the plaintiff to recover it is sufficient for him to show that the defendant was guilty of negligence, with nothing in the circumstances establishing contributory negligence on his part; and when such facts are proven it devolves upon the defendant to prove affirmatively, that the plaintiff was guilty of contributory negligence.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay Countyj before Bayard T. Haines Trial Judge. STATEMENT OF FACTS This is an action commenced by the defendant in error in the district conrt of Kay county to recover damages for personal injuries alleged to have occurred and been occasioned, by being thrown out of a buggy, in consequence of a defect in the street in the city of Newkirk, in said county.

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge. STATEMENT OE FACTS This action was brought in the district court of Oklahoma county by A. Ketcham against Della Limerick, D. E. Rice, Harry Harvey and William Rice, to recover the sum of $272.62, together with interest and costs, alleged to be due for lumber and material furnished for the construction of a residence, and for the foreclosure of a mechanic’s lien.

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

<p>1. PRACTICE — Motion to Strike from Files. Objection to a petition on the gound that it does not state facts sufficient to constitute a cause of action can be made only by demurrer, or by the objection to the introduction of evidence at the trial. It cannot be raised by motion to strike the petition from the files.</p> <p>2. REPLEVIN — Pleadings and Issues. In an action in replevin, where both an affidavit and a petition or bill of particulars are filed, the office of the affidavit ceases when the property is delivered and jurisdiction conferred, and the action thereafter proceeds upon the petition. The affidavit is not a part of the pleadings ill the district court, necessarily, and the facts set forth therein form no part of the issues triable there, ' unless such facts arc again set forth in the petition or other pleadings.</p> <p>3. SAME — Affidavit and Petition — Variance. In general there must be a substantial, though not a technical correspondence between the petition and the affidavit in replevin. Where, however, the property has been delivered under the affidavit, and jurisdiction conferred, the trial thereafter proceeds in the district court upon the issues raised -by the 'petition, and not those of the affidavit: and the question of a variance between the allegations of the affidavit as to the character of the ownership of plaintiff, and those of the petition, becomes immaterial.</p> <p>4. PRACTICE — Objections to Introduction of Evidence. An objection to the introduction of any evidence under a petition is good only when there is a total failure to allege in the petition some matter essential -to the relief sought, and is not good when the allegations are simply incomplete, indefinite or statements or conclusions of law.</p> <p>5. SAME — When the only objection made to a petition is by objection at the trial to the introduction of any evidence thereunder, its allegations will be liberally construed for the purpose of sustaining them; and when there is not a total failure of averment as to some essential matter, but the allegations are simply incomplete, indefinite, or statements of conclusions of law: Held: An objection to the introduction of any evidence is properly overruled.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadian Countyj before C. F. Irwin, Trial Judge. STATEMENT OF FACTS The plaintiff in error, plaintiff in the court below, commenced this action to recover the sum of $3500.00, a balance due upon an executed coutraet for the furuisbiug of oil mill, machinery.

<p>JURISDICTION — Special Appearance not Waived by General Appearance, When. Where a court acquires no jurisdiction over the person oí the defendant, by an attempted service of process, and the defendant appears specially for the purpose of challenging the jurisdiction of the court, and the court thereupon overrules his motion to such jurisdiction, the defendant may save his exception, file his answer and proceed to trial without waiving such error; and he may take advantage of such error on appeal to a higher court. Following Chicago Bldg. & Mfg. v. Pewthers 10 Okia. 724.</p> <p>(Syllabus by the Court.)</p>

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

Error from the District Court of Custer County; before C. F. Tnuin, Trial Judge. STATEMENT OE PACTS This was an action commenced in the district court of Custer county by E. A. Lilly against W. W. Smith, to recover the sum of $140, with interest and costs, alleged to be due on a promissory note executed on July 22, 1904.

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

<p> Error from the District Court of. Logan Gountyj before O. F. Irwin, Trial Judge. </p>

Error from the District Court of Comanche County; before Frank E. Gillette„ Trial Judge. STATEMENT OE FACTS This case arose in the district court of Comanche county, on the report of the Hon. R. J. Ray, who had been appointed referee by the court. This case was submitted to the referee upon an agreed statement of facts. The referee made his findings of fact and conclusions of law. The agreed statement of facts is as follows: “1.

<p>1. EVIDENCE — Replevin—Admissions. In an action of replevin, where the defendant bases his title and right of possession of the property upon the foreclosure of a chattel mortgage, the admissions, declarations, and statements of the mortgagor at a time subsequent to the execution of the mortgage are not admissible for the purpose of impeaching the mortgage or showing that the same was without consideration, or that he did not have the legal right to mortgage the same at the time of the execution of the mortgage and the admission of the testimony as to such statements, admissions, and declarations, over objection, is error.</p> <p>2. TRIAL — Remarks of Trial Judge. Observations of the court to counsel in the hearing of the jury, during the progress of the trial though open to criticism if of but slight importance and only possibly, not probably, injurious, will not be sufficient to warrant a reversal where the jury are properly instructed that they are the sole judges of the evidence.</p> <p>(Syllabus by the Court.)</p>

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

<p>PARTNERSHIP— Fictitious Firm Name— Statutes Construed A firm name showing the surname only of the partners is not a fictitious name, nor a designation not showing the names of the partners within the meaning of section 3901, of Wilson’s Statutes which provides that every partnership transacting business in the territory under a fictitious name, or a designation not showing the names of the persons interested, as partners, must file with the clerk of the district court of the county or sub-division in which its principal place of business is situated, a certificate, stating the names in- full of all the members of such partnership, and their places of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county and section 3903 which provides that in case of a failure of such filing and publication of the certificate, such partnership shall not maintain any action on account of any contract made or transaction had with such firm in any court or this territory.</p> <p>(Syllabus by the Court.)</p>

<p>1. NEW TRIAL — Granted, When. Trial courts are invested with a very large and extended discretion in the granting of new trials, and new trials ought to be granted whenever in the opinion of the trial court, the party asking for the new trial has not probably had a reasonably fair trial, and has not, in all probability obtained or received substantial justice, although it might be difficult in many instances for the trial court or the parties to state the grounds for such new trial upon paper so plainly that the supreme court could understand them as well as the trial court, and the parties themselves understood them.</p> <p>2. SAME — Same—Error, When. The supreme court will not reverse the order of the trial court granting a new trial, unless the supreme court can see, beyond all reasonable doubt, that the trial court has manifestly and materially erred with respect to some pure, simple and unmixed question of law, and that except for such error the ruling of the trial' court would not have been made as it was made, and that it ought not to have been so made.</p> <p>3. SAME — Same. As the granting of a neiw trial only places the par- . ties in a position to have the issues between them again submitted to a jury or court, the showing for reversal should be much stronger where the error assigned is the granting of a new trial, than where it is -the refusal.</p> <p>(Syllabus by the Court.)</p>