Volume 2 — Indian Territory Reports

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Action by J. H. Lockwood and another against J. M. Rudisill. Judgment for plaintiff. Defendant appeals.</p>

C. B. Kilgore, Judge. Action in ejectment. Judgment for defendant. Plaintiff appeals. This action was begun on the 15th day of April, 1896, in the United States court for the Southern district of the Indian Territory, at Purcell, for the recovery of a certain parcel or lot of land situated in the town of Purcell, Ind.

District. Wm. M. Springer, Judge. Action of unlawful detainer by Ben Hall against Geo. W. Case. Judgment for plaintiff. Defendant appeals.

<p>Original proceedings in habeas corpus brought by • Thomas French to release him from the operation of a judgment of the United States Court for the Northern District. Petition denied and prisoner remanded.</p> <p>The petitioner in this case, Thomas French, states that he is a citizen of the United States ; that he was arrested on a warrant issued by Robert L. McClure, United States commissioner for the Sixth commissioner’s district of the Northern district of the Indian Territory, and that said warrant was issued upon a complaint, filed before said commissioner, charging petitioner with the crime of malicious mischief, and charging that said crime was committed on the 10th day of July, 1897, in the Fourth commissioner’s district in said Northern district; that upon the trial before the commissioner the petitioner was convicted of said offense, from which judgment and conviction he appealed to the United States Court for the Northern district of the Indian Territory, at Vinita; that in said district court the petitioner was tried at the October, 1897, term (Hon. John E. Thomas, judge presiding,) upon a warrant issued in the case, and was convicted, and upon his motion he was granted a new trial; that at the January, 1898, term of said court, the complaint upon which the warrant was issued was so amended, by permission of the court, as to make the complaint charge the crime to have been committed in the Sixth commissioner’s district, and the petitioner, again being placed upon trial (the same judge presiding,) was convicted, and by the court adjudged to pay a fine of $100 and costs, and to stand committed until said fine and costs were paid, and to be imprisoned in the United States jail for 90 days; that upon this judgment and sentence he was committed to the United States jail at Muskogee, where he has remained until this time.</p>

<p>1. Husband, and Wife-Presumption as to Agency of Husband. It will</p> <p>be presumed that the husband acts as the agent of the wife when the wife accepts the benefits resulting from the ■ transactions of the husband. 2. Testimony</p> <p>of Husband to Establish Agency. ■ The</p> <p>husband is a competent witness to testify that he acted as the agent of his wife.. 3. Ratification</p> <p>by Wife of Act of Husband. ■ Plaintiff’s</p> <p>husband brought suit in his own name and that of his Retaxing Costs. wile. Defendant showed on cross-examination of the husband that he had no interest in the subject matter and by motion struck his name from the complaint. The suit then proceeded in the wife’s name alone. Held, This was a ratification of all the husband’s prior acts therein.</p> <p>Agency husband plied.</p> <p>Testimony oi husband to estabish.</p> <p>Amendment Ratification.</p>

Wm. M. Springer, Judge. The Miami Town Co. was allowed-an appeal by the clerk of the Court of Appeals, from a judgment in favor of James McNeill. Appellee moved to dismiss by reason of appellants failure to file record within 90 days.

Yancey Lewis, Judge. Action by Barbara White, for the use of R. P. Bowles, against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals. This is an action for damages commenced before a United States commissioner for the Central district of the Indian Territory by R. P. Bowles and Barbara White against the Missouri, Kansas & Texas Railway Company, the appellant and defendant below. .

<p>Petition by T. C. Walker, filed in the Court of Appeals praying a writ of certiorari to U. C. Wantland, clerk of the United States Court for the Southern District. Denied.</p> <p>This is an original action, brought in the United States court of appeals for the Indian Territory, by petition filed in this court, praying for a writ of certiorari to quash an alleged void judgment entered against the plaintiff in the United States Court for the Southern District of the Indian Territory, sitting at Purcell. Tbe judgment complained of was obtained under section 3957, Mansf. Dig. and tbe chapter entitled “Summary Judgments.” Plaintiff claims tbat he had no notice of such proceeding whatsoever, and that the said judgment is absolutely void, and that the records of the inferior court should be purged. The service was made by leaving a copy of the motion with a son of petitioner, over 16 years of age, at his place of residence. The petition for the writ of certiorari sets forth in detail and at length the proceedings of the court below, and all the facts upon which petitioner relies, and concludes as follows: “Wherefore, by reason of the facts aforesaid, and your petitioner having no other remedy adequate in the premises, he prays this honorable court that a writ of certiorari be issued therein, directed to the clerk of the United States Court for the Southern District of the Indian Territory, sitting at Purcell, commanding him to forthwith certify to this honorable court a true copy of the record of all the proceedings in said cause, and that this court inquire into all the proceedings herein, and the jurisdiction of said United States Court for the Southern District of the Indian Territory, sitting at Purcell, over the person of your petitioner, and on final determination quash the proceedings and judgment aforesaid.” The clerk issued the writ on the order of one of the judges of the court of appeals, and the entire record of the court below is now before this court.</p>

John R. Thomas, Judge. Suit for divorde by Henry N. White against Sallie J. White, a non-resident. The attorney for the non-resident defendant filed a demurrer to the jurisdiction of the court which was sustained. Plaintiff appeals.

¥m. M. Springer, Judge. Petition for habeas corpus on behalf of William Tiger. Judgment refusing petition. Petitioner appeals.

C. B. Kilgore, Judge. Action by William Hull against J. C. Bohart. Judgment for plaintiff. Defendant appeals. This is an appeal from a judgment rendered in the United States Court for the Southern district of the Indian Territory, at Purcell, in said district, against the appellant, J. C. Bohart, in favor of William Hull, appellee.

<p>1. Chattel Mortgage — Not an Assignment for Benefit of Creditors.</p> <p>A chattel mortgage upon all of a debtor’s property, with an understanding that the mortgagees were to take the property, sell it and prorate the proceeds upon their claim is not an assignment for the benefit of creditors.</p> <p>2. Mortgage — Parol Evidence as to the Intention of the Parties.</p> <p>Parol evidence to the effect that a mortgage was intended by the parties to operate as an absolute bill óf sale does not make of the mortgage an assignment for benefit of creditors.</p> <p>y. Right of Debtor to Prefer Creditor.</p> <p>A debtor may prefer one creditor to the exclusion of another by appropriating his property to pay the debt of the preferred creditor, if tbe debt is just and no more property is appropriated than is sufficient for that purpose, no matter if it takes all tbe debtors property.</p>

C. B. Kilgore, Judge. Action by Tyler & Simpson against Walsh & Anderson, in which Glave Goddard filed an interplea, claiming certain property wbicb had been attached by plaintiffs. Judgment for plaintiffs. Defendants and interpleader appeal.

Yancy Lewis, Judge. Action of attachment by Swofford Bros. Dry Goods Co. against Daniels & Stalcup, co-partners. W. A. Cox, interpleaded claiming the attached property under a deed of assignment. Judgment for plaintiff. Interpleader appeals.

C. B. Kilgore, Judge. Action by Kearney & Wyse against the Liverpool & London & Globe Insurance Company. Judgment for plaintiffs. Defendant appeals. This was a suit filed on July 15, 1895, in the United States Court for the Southern district of the Indian Territory, at Ryan, by Kearney & Wyse, a partnership composed of T. K. Kearney and J. W. Wyse, against the Liverpool & London & Globe Insurance Company, upon two fire insurance policies, aggregating the sum of $3,500.

<p>Appeal from the United States Court for the Southern District.</p> <p>C. B. Kilgore, Judge.</p> <p>Action of unlawful detainer by Charley Thomas and G. M. Wildeman against G. G. Anderson and J. H. Johnson, Judgment for plaintiffs. Defendants appeal.</p> <p>On the 21st day of August, 1896, the plaintiffs, Charley Thomas and G. M. Wileman, commenced an action of unlawful detainer against the defendants, G. G. Anderson and J. H. Johnson, by filing their complaint, and causing summons to be issued thereon. On the same day a writ of possession was issued, and the same was duly executed, and plaintiffs were put into possession of the premises. On September 9, 1896,plaintiffs filed their amended complaint, alleging that the plaintiff Charley Thomas leased to the defendant Anderson a certain tract of land for the term of two years, and that the lease to the same had expired; that the plaintiff Thomas leased to the plaintiff Wileman about 300 acres of this land off of the western side of the tract; that the defendant Anderson fenced off about 100 acres of the said 300 acres on the east side of the said tract; that the defendant Johnson came into possession of the said 100 acres of land as agent or subtenant of the defendant Anderson; that said land was in the possession of defendants at the commencement of the suit; that the plaintiffs were the owners of the said 100 acres of land, and were entitled to the immediate possession of the same; that plaintiffs had given defendants lawful notice to quit and deliver up to them the possession of said premises, but the defendants failed and refused to do so, but unlawfully detained the same from them. To this is added a prayer for writ of possession, for judgment for possession of the premises, and other equitable relief. Separate answers were filed by defendants, in which the allegations in the complaint were denied generally, and especially denying that the land and the premises described in the complaint were the same that they rented from the plaintiff Thomas, or any part of the same. On February 1, 1897, defendants filed their demurrer to plaintiffs ’ complaint. On the same day defendants filed their motion to strike out of the complaint the name of the party plaintiff Wileman. On the 3d day of February, 1897, the cause was submitted to a jury, and on the following day the jury rendered a verdict in favor of plaintiffs. Thereupon the trial court rendered judgment in favor of plaintiffs against defendants for the possession of the premises in controversy and all costs. On the 4th day of February, 1897, defendants filed their motion for a new trial, which was overruled by the court, to which ruling defendants excepted. On the 8th day of Februry, 1897, defendants filed their motion for appeal, and the same was allowed by the court.</p> <p>A subequent lessee, though by the terms of his leave with the original or common landlord, entitled to possession, cannot maintain unlawful detainer against the former tenant who unlawfully holds over. Mansf. Dig. § 3348; McCauley vs Hazlewood, 59 Fed. 877; Hardy vs Ketchum, 67 Fed. 282. In an action of unlawful detainer, a tenant may show that his landlord has parted with his title. Bettison vs Budd, 17 Ark. 546; Earle vs Hall, 31 Ark. 470.</p> <p>The action of unlawful detainer is a remedy for the benefit' of landlords, against tenants who hold ever after the expiration of their term, and may be maintained by the lessor, his heirs, or assign to whom the land passes. Johnson vs West, 41 Ark. 535; Cortch vs Robinson, 31 Ark. 596; Burton vs Rohrbeck, 30 Minn. 393.</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>C. B. Kilgore, Judge.</p> <p>Action by Fred L. Waite and others against the Gulf, Colorado & Santa Fe Railroad company. Judgment for defendant. Plaintiff appeals.</p>

C. B. Kilgore, Judge. Suit on promissory note by The Citizen Bank, a co-partnership, against Carey and Fitzpatrick. Judgment for for plaintiff for a part of its claim. Plaintiff appeals.

William M. Springer, Judge. Action of unlawful detainer by Daniel Sanders against William Thornton. Judgment for defendant. Plaintiff appeals.

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Suit in attachment by Barton Bros, against Carter & Ellison. H. E. Casey, assignee, interpleaded. Judgment for plaintiff sustaining attachment. Defendants and inter-pleader appeal.</p> <p>The appellants Carter & Ellison, on the 8th day of October, 1895, executed an assignment of their property to secure their creditors, including appellees, making H. E. Casey, appellant, their assignee. On the same day Barton Bros., appellees, brought suit'by attachment, and seized the property assigned. On the 28th day of February, 1896, appellants Carter & Ellison filed their motion to dissolve the attachment. COn the 5th day of March, 1896, appellees, Barton Bros., took a judgment final by default against appellants Carter & Ellison for the full amount of their claim, the court ordering an execution, in which order no mention was made of the attachment or motion to dissolve the same. On the 15th day of June 1897, Master in Chancery W. H. L. Campbell filed his report in the cause, sustaining the attachment, declaring the assignment invalid, and holding that appellant, H. E. Casey was a party intervener in the cause. On the 16th day of June, 1897, appellants filed exceptions to said report. On the 2nd day of February, 1898, the court confirmed the report of the master, and entered judgment, sustaining the attachment, declaring the assignment invalid; also declaring H. E. Casey a party intervener; and rendering judgment against the appellants for all costs in the cause. Appellants filed m otions for new trials, which being overruled, they prayed an appeal, which was granted by the court, and they brought this cause to this court on appeal.</p> <p>The law implies a reservation to the assignor of any surplus, after paying debts, and to provide for such reservation in the deed does not render it fraudulent. Huntley vs Kingman &Co., 152 U. S. 527; Leitch vs Hollister, 7 N. Y. 211; Bump on Fraudulent Conveyances, 404-406; Burrill on Assignments, (3rd Ed.) § 207, note 3; Estwick vs Caillant, 5 Term Reports 420; Hempstead vs Johnson, 18 Ark. 136; Floyd vs Smith, 9 Ohio St. 552; Hoffman et al vs Mockall, et al, 5 Ohio St. 135; Buck vs Burdette, 19 A. D. 439; Wilker vs Ferris, 4 A. D. 364; McReynolds vs Dedman, 47 Ark. 347; Collier vs Davies, 47 Ark. 367.</p> <p>An implied reservation of the surplus, as well as an express one will avoid a deed of assignment, Malcolm vs Hodges, 8 Md. 418; Wolf vs Gray, 53 Ark. 75; M., K. & T. Ry. Co. vs Fuller, 72 Fed. 467; 18 C. C. A. 641; Lawrence vs Morton, 15 Fed. 853; Goddard vs Hopgood, 63 A. D. 272; Truett vs Collier, 74 A. D. 764; 2 Kent Com. 534.</p>

States court for the Northern district. John R. Thomas, Judge. Action by Addie Boudinot against W. P. Boudinot and others. Judgment dismissing the case. Plaintiff appeals. This cause was originally instituted in the Cherokee circuit court of the Tahlequah district, at the April term thereof, 1898.

Hosea Townsend, Judge. Action by the Chickasha Town Company against R. P. Tye. Judgment for plaintiff. Defendant appeals.

W. H. H. Clayton, Judge. Action in replevin by the George R. Barse Live Stock Commission Company against J. T. Adams. The court instructed a verdict for defendant, and entered judgment thereon. Plaintiff appeals.

<p>1. Chattel Mortgage — Construction—Assignment for Benefit of Creditors.</p> <p>A failing debtor conveyed by mortgage all of bis property, not exempt by law from execution, to four of bis creditors. He owed tbem about $1,500.00. Tbe value of the goods conveyed was $1,700.00. Tbe instrument reserved to tbe mortgagor any surplus that might remain after paying said indebtedness. Held, On its face tbe instrument constituted a mortgage and nota deed of assignment.</p> <p>2. Chattel Mortgage — Parol Evidence to Prove Intent of Parties.</p> <p>When one attacking a mortgage, as being an assignment for benefit of creditors, offers parol evidence to show that the mortgage was in fact, intended to operate as an assignment, tbe other side may introduce parol evidence as to tbe intent of tbe parties, in order to sustain tbe mortgage.</p>

John E. Thomas, Judgé. Action by the Ranney-Alton Mercantile Company against the Mineral Belt Construction Company and the Denison & Northern Railway Company. Judgment for plaintiff. Defendant, the Denison & Northern Railway Company appealed. Plaintiff moves to quash and set aside the supersedeas bond. This motion was made in the first instance to one of the judges of the court of appeals.

William M. Springer, Judge. Action by Tootle, Wheeler & Motter against W. V. Carey and others. Noyes, Norman & Co. and others filed interpleas. Judgment for plaintiffs. Interpleaders appeal.

Wm. H. H. Clayton, Judge. Suit by United States against Wm. Weeks and bondsmen on postmaster’s bond. Plaintiff demurred to defendant’s answer. Demurrer sustained. Defendant appeals. This was a suit brought in behalf of the United States against William F. Weeks and bondsmen on a postmaster’s bond executed by Weeks as postmaster at Hartshorne, Ind. T., and signed by John M. Grady as one of his sureties.

<p>Appeal from the United States court for the Southern district.</p> <p>C. B. Kilgore, Judge.</p> <p>Action by George W. Kirkland against the Purcell Mill & Elevator Company. Judgment for plaintiff. Defendant appeals.</p> <p>This was an action brought by the plaintiff below; ap-pellee here, to recover the sum of §25,000 damages for personal injuries sustained by him while in the employ of the defendant below, appellant here; which injuries, it is alleged, were caused by the negligence of the defendant because of the failure to provide for him proper implements, machinery, etc., with which to perform his work. We do not deem it necessary to set out the pleadings. • They contain the usual averments and denials found in this class of cases, and which, in this jurisdiction at least, have been reduced almost to a formula. The facts of the case, as shown by the proof admitted in the evidence at the trial, are that the plaintiff was employed by the defendant to paint a smoke stack attached to its mills, for the sum of $10; that this smoke stack was from 50 to 60 feet high; and that there was attached to it, suspended from the top, a wire rope used for the purpose, when necessary, of carrying persons from the bottom to the top. It had been there for about one year, but was only used occasionally. This fact was known to the plaintiff. There was proof to show that the defendant was to furnish the plaintiff with all the necessary implements, etc., but was not to erect any scaffolding or to arrange any of the appliances for ascending or decending during the progress of the work. The windlass and other things nec-cessary for the work, including the rope, were about the mill, subject to be u§ed by plaintiff. Previously he had been around the mill, had done some work there, and was somewhat familiar with the surroundings. Ho was a carpenter. On the day of the accident plaintiff and his son-in-law, John H. Graham, went to the mill for the purpose of doing the job, and told Mr. Trudgeon, who was defendant’s manager, and had charge of the mill, that he was ready to paint the stack. He was told by Mr. Trudgeon, who was at his office, to go down to the mill, and get whatever he wanted necessary for the work. He did so, and while fastening the rope to the windlass he discovered that a part of it, which had been lying near the exhaust pipe of the engine, was defective, caused by the escape of the steam. This part he cut off. In his testimony he says: “I cut off a • whole lot of it.” They then examined the balance of the rope, “clear round, from one end to the other”; and although they found some slightly rusted places on it, and a place where it was slightly cut from some cause, he came to the conclusion, he says, that it was “pretty sound — a pretty good rope.” Still, he says, he had some doubt about it, and asked Graham, his son-in-law, his opinion. Graham responded that he would not go up there on any rope. He (Kirkland) then went to the office to see Trudgeon, the manager, for the purpose, he says, of getting his opinion. As the conversation which took place at this time is very important in this case, we will state in the plaintiff’s own language: ‘ T told him I had come down to have him see about the rope. He says, ‘What rope. ’ I told him the rope at the top of the smoke stack. ‘Well,’he says, ‘what about that rope?’ I told him I just wanted his opinion about it— that is all; it was a little rusty. He says, “Was it rusted in two anywheres?’ and I told him, -‘No, it was not rusted in two anywheres.’ I told Mm I found a, few strands of wire that was broken, and a few that the wire was cut- — a strand looked like it had been cut on something, but it seemed to be good. He said that was a funny idea. I told him I didn’t know that it was, or something to that amount. He said that the rope was all right. He told me that it would not rust. I cut off the lower end of it and threw it away. He said it was galvanized steel wire; it would not rust. I spoke to him about getting a new rope. I said: ‘Mr. Trudgeon, why not get a new rope, and put it there. How long would it take?’He says, ‘It would not take a great while to get a new one. ’ Isays, ‘Why not get one, then? He says, ‘That might do.’ Well, I was about leaving, and started out. He told me that rope was insured for five years. While he was talking with regards to it he seemed to think I must be afraid of it, or something of the kind, so I got to believe I was suspicious myself. That was about all the conversation there was about it. ” This was about noon, and he concluded not to take the ascension until after dinner. Immediately after dinner they came back, and he made the ascension safely. Then he went to the blacksmith shop to get a hook repaired, came back, and made another ascension. Immediately afterwards, while making the third ascension — this time with the additional weight of some rope and a block and tackle, which he took up with him, the block and tackle weighing 75 pounds, and the rope not being weighed, but being about 100 feet long — when about half way up, the rope broke, and he fell upon the roof of the engine house, a distance of some 30 or 40 feet, receiving very severe injuries. The rope was afterwards examined, and it was found that at the place where it broke all of the wires, except five or six strands on the outside, were rusted off. Those on the outside had the same appearance of the rest of the rope. No defects could be seen, nor were they discovered on the examination made by plaintiff and Graham before the accident, when they used a knife to pry open the strands in a number of places, but always fonnd the wires bright and sound on the inside.</p> <p>A motion was filed to strike from the files the second amended complaint upon the ground that it was ‘ ‘wholly at variance with the other complaints previously filed in the case;” “that in the first petition, as first amended, plaintiff declared on a contract of general employment, and that the relation of master and servant existed between the plaintiff and the defendant, and that he was injured in the course of his employment as servant of the defendant, ”etc. ‘ ‘and in the second amended complaint plaintiff declares upon a separate and independent contract that he was to paint a certain smokestack for the sum of ten dollars,” etc. This motion was overruled, and exceptions duly saved. Thereupon a second motion was filed, to strike out the said inconsistent part of the second amended complaint, which was overruled, and exceptions saved. Defendant then filed a demurrer to the second amended complaint, setting up the same ground as that passed upon in the motion. This demurrer was overruled by the court, and exceptions saved. Thereupon a motion for continuance was filed, setting up that the said change in the pleading worked a surprise to it, which was overruled, and exceptions saved. When the case was called for trial, and after the plaintiff had announced himself ready, the defendant stated that it was not ready, and it was then agreed, in open court, that its counsel might state verbally the grounds upon which he relied for a continuance, and after the trial reduce them to writing in the shape of a motion for continuance, and file the paper in the case. The grounds were stated, and the court overruled the motion, which was duly excepted to. The motion, as afterwards filed, set up the fact that there had been two depositions taken of parties who were present at the time the rope was examined by the plaintiff and Graham. That at several places the strands of said wire rope were rusted entirely off. That after plaintiff had come back from seeing Trudgeon he told them he (Trudgeon) had said that “it is funny that the wire rope is rusted; it can’t rust; it is guarantied for five years. ” They then tested the rope by hanging a weight as heavy as three men to it. Afterwards they examined it further, before it was used by them. The witness then told plaintiff that he had seen such ropes used in Oregon in the mines with half the strands rusted, and that this rope would sustain a weight five times more than they would want to carry by it. That these depositions were lost, but counsel for defendant were not aware of it until the case was called for trial. That if the fact of their loss had been known to them they would have procured others to have been taken. That, upon inquiry since, counsel had learned that they had not been seen by any one since the Ardmore fire. That the testimony was material, etc. This paper was sworn to by J. W. Hooker, Esq., one of the defendant’s counsel in the case. Mr. R. N. Coffee, one of the counsel for plaintiff, filed a controverting affidavit against the motion for continuance, in which he stated that, at the time Mr. Hooker made his verbal motion, he admitted that the depositions of the witnesses had been destroyed in the Ardmore fire, in April, 1895, more than one year before, and that that fact was known to counsel for defendant; that one of the witnesses lived within the jurisdiction of the court, and could have been reached by subpoena; that facts alleged in the motion as having been testified to by these witnesses were different from those as stated in the depositions. Judge Kilgore, who presided at the trial, in a note over his signature, embodied in the bill of exceptions, sustains the recollection of Mr. Coffee as to the fact that defendant’s counsel were aware of the fact that the papers had been burned more than a year before at the Ardmore fire, and that no effort had been made to retake or substitute them. There were no exceptions saved to the charge of the court.</p> <p>Among the instructions asked for by the defendant was the following: “You are instructed that by the term ‘contributory negligence’ is meant the want of ordinary or reasonable care upon the part of the person injured, which concurred with the negligence of the defendant in causing the injury.” This instruction was refused, and exception saved. Verdict for plaintiff for $12,500. Motion for new trial filed, overruled, and exception saved. Judgment for plaintiff for amount of verdict. Appeal prayed for and granted.</p>

C. B. Kilgore, Judge. Action by J. W. Childers against N. R. Sparks and another. Judgment for plaintiff. Defendants appeal. This a suit commenced on the 17th day of April, 1895, in the United States court for the Southern district of the Indian Territory, at Chickasha. The complaint states the cause of action, as follows: In the United States Court in the Indian Territory, Southern Judicial Division. J. W. Childers vs N. R. Sparks and J. L. Sparks. Action at Law.

William H. H. Clayton, Judge. Replevin by the George E. Barse Live-Stock Commission Company and others against J. D. Surratt. The court directed a verdict for defendant. From a judgment entered thereon plaintiff company appeals.

Yancey Lewis, Judge. Action in attachment by Noyes, Norman & Co. against N. B. Guy. J. F. Neel filed an interplea claiming the property as assignee. Judgment for interpleader. Plaintiff appeals. On December 12, 1895, plaintiffs filed their complaint against N. B. Guy, defendant, and sued out an attachment, which was levied upon a general stock of merchandise; as the property of said N. B. Guy.

<p>Appeal from the United States court for the Southern district.</p> <p>C. B. Kilgore, Judge.</p> <p>Action by the J. S. Merrill Drug Company against R. C. Littell, defendant, and T. T. Pace, garnishee. Judgment for plaintiff against the garnishee. Garnishee appeals.</p> <p>On January 23,1896, the J. S. Merrill Drug Company filed a suit before Arthur Walcott, United States commissioner at Ardmore, against R. C. Littell, upon an open account for goods, wares, and merchandise sold him. On the same day an affidavit was filed alleging that the defendant had sold, conveyed, and otherwise disposed of his property with the fraudulent intent to hinder and delay his creditors, together with an attachment bond, as required by the statutes regulating procedure in attachment suits. On the same day, also, the plaintiff filed an application in court, praying that T. T. Pace be summoned as garnishee to answer as the law requires. On February 6th, T. T. Pace filed his answer as garnishee, denying that he had any goods, chattels, moneys, credits, or effects in his hands or possession belonging to the defendant, Littell, at the time he was summoned as garnishee. The case was tried before the United States commissoner on the 11th day of February, 1896, the trial resulting in a verdict for the plaintiff against the defendant, Littell, for $40.70 and the costs of the suit, and also a judgment requiring the garnishee, Pace, to pay into court an amount sufficient to pay the judgement and the costs of the action. From this judgment the garnishee appealed to the United States court at Ardmore, and on April 21, 1897, the case came on for trial, both parties waiving a jury and submitting to the court all questions of law and fact. The court rendered a judgment,, reciting, among other things, the following: “It is considered, ordered, and adjudged that at the time of the service of the writ of garnishment on the garnishee, T. T. Pace, he had chattels, effects, and credits in his hands belonging to the said.R, C. Littell in the sum of $402, being an amount more than sufficient to satisfy plaintiff’s judgment herein, and all costs incurred in this action in the court below as well as in this court, and the said T. T. Pace is therefore directed to pay into this court the amount of the judgment against the defendant, R. C. Littell, in the commissioner's court, as shown by the transcript herein, together with'the costs of this court.” On August 19, 1897, a nunc pro tunc order was made sustaining the attachment sued out by the plaintiff against the defendant and against T. T. Pace as of the date when the originai judgment was rendered,’ to-wit, on April 21, 1897. On page 25 of the transcript the following appears: “After which the cause came on to be heard upon the merits and upon the issues joined between the parties to the suit, said issues consisting of the allegation of the plaintiff that the defendant, Littell, had disposed of his property with the fraudulent intent to hinder and delay his creditors, and the answer of the garnishee, T. T. Pace, that he had no goods* chattels, moneys, or effects in his hands or possession belonging to the defendant, R. C. Littell, at the time the garnishment was served on him, and the agreement was signed by counsel, above set out ” The agreement referred to roads as follows: “It is agreed by and between the plaintiff, J. S. Merrill Drug Co. and the garnishee, T. T. Pace, that at the time the writ of garnishment was served on said T. T. Pace, that he was in possession of a certain stock of drugs as as-signee of R. C. Littell; that said stock of drugs were of the value of $402.50; and that since said service he has sold said drugs for the sum of $405.00. The order of attachment and summons for T. T. Pace as garnishee were combined in one paper, and are in the ordinary form.” The plaintiff replied to the answer of the garnishee, and alleged that he held in his possession, at the time the garnishment was served on him, chattels, moneys, credits, and effects of the defendant of the value of about $400, conveyed to him under a fraudulent and void deed of assignment. Plaintiff attached a copy of this deed to its reply, and claimed that it was void on its face., The appeal in this case is taken by the garnishee, T. T. Pace.</p>

Wm. M. Springer, Judge. Blanchard & Woods and Quigg & Berringer instituted separate attachments against J. ft. Ingram. The two actions were consolidated and the Strahorn-Hutton-Evans Commission Co. filed an interplea. Judgment for interpleaders. Plaintiffs appeal.

Wm. H. H. Clayton, Judge. Suit in attachment by Shapleigh Hardware Co. against Perry Bros. Judgment for the costs and custodian’s fees was rendered against plaintiff and its sureties on the cost bond. Plaintiff and its bondsmen appeal.

<p>Appeal from the United States Court for the Central District.</p> <p>Wm. H. H. Clayton, Judge.</p> <p>Action on cost bond by George Brittain against the Shapleigh Hardware Co. and others. Judgment for the plaintiff. Defendant appeals.</p>

<p>Appeal from the United States Court for the Northern District.</p> <p>William M. Springer, Judge.</p> <p>Action by James Hart against W. F. Hiatt and others. Judgment sustaining defendant’s exceptions to a referee’s report. Plaintiff appeals.</p> <p>The facts involved in this controversy are sufficiently shown by the report of the special commissioner, G. B. Denison, and the exceptions thereto, which are as follows, to-wit:</p> <p>Report of Special Commissioner.</p> <p>“Heretofore, by agreemment of counsel for the respective parties plaintiff and defendant in the above entitled action, the court referred certain questions arising in said action to the undersigned as referee or special commissioner, and thereafter an agreement was entered into by said counsel, reduced to writing, and signed. It is as follows: ‘By agreement of counsel, the above-entitled causes are by order of the court this day referred to G. B. Denison, as special commissioner to take proof and report the facts and the law upon all motions thus far arising therein; also on the application for the sale of the attached property, and to report the facts and the law upon the motions separately to quash the three supersedeas therein. ’ The agreement is returned to be filed contemporaneous with this report. By consent of all parties, the testimony offered was taken sten-ographieally by Myra Young, notary public, and extends over three hundred typewritten folios, and occupied a number of hours on several different occasions. An examination of the pleading discloses the following: June 17, 1896. C. W. Mitchell, as receiver of an insolvent bank in Kansas, brought action in this court, against W. F. Hiatt and S. E. Hiatt, upon a certain promissory note. . Proper steps were taken to secure an order of attachment, and it was levied on June 20, 1896, upon property consisting of agricultural implements, cows, heifers, calves, horses, colts, crop of oats, and the crop of growing wheat upon 873 acres. July 13, 1896, W. F. Hiatt gave notice of his intention to file a schedule of his property, and claim his exemptions, with the clerk of the court. Such schedule was filed, and, proving defective, another notice was given, and a schedule of property and claim of-exemptions were filed with the clerk, July 20, 1896, to which plaintiff filed an answer the same day. July 21, 1896, the clerk issued a supersedeas, including, in the enumeration of the property for which he allowed supersedeas, ‘one undivided third interest in two car loads of wheat, loaded on side track at Talala, I. T., valued at 35c per bushel, — $107.80; one undivided third interest in twenty-five stacks of wheat in the field.’ July 21st, defendant W. F. Hiatt moved to quash the return of the marshal, because it included property claimed as exempt. Then in the order named, at different dates, were filed affidavits of Lena S. Graves, E. Z. Hiatt, and Arthur Hiatt, for portions of the property levied upon; the interpleas of those parties, that of E. Z. Hiatt claiming the ownership, among other proper-erty, of ‘one undivided third interest in two car loads of wheat, loaded on side track at Talala, I. T.; one undivided third interest in twenty-five stacks of wheat in field’; answer of W. F. Hiatt; motion of defendant W. F. Hiatt to compel marshal fo turn over property; motion of plaintiff for order of sale of attached property; affidavit of plaintiff for judgment on pleading; controverting affidavit of W. F. Hiatt; motion of S. E. Hiatt to dismiss as to her, because she was feme covert at time of making note; answer of plaintiff to interpleas; motion of plaintiff to quash supersedeas; answer of S. E. Hiatt. On June 17, 1896, James Hart commenced his action in this court against W. F. Hiatt, S. E. Hiatt, and E. Z. Hiatt, upon their promissory note, and procured an order of attachment, which was by the marshal levied upon the same property as the order of attachment in the case of S. W. Mitchell vs. W. F. Hiatt and S. E. Hiatt, the levy being made subject to the levy in that case, and being made upon the property as the joint property of W. F. Hiatt and S. E. Hiatt. The same steps, and in the same chronological order, were had in this case as No. 339; and, in addition thereto, E. Z. Hiatt filed his claim of exemptions, in which he claimed an undivided third of the wheat. I heard the testimony of the various witnesses, and have carefully read it since, and report as follows:</p> <p>“I find from the weight of the testimony: First. That W. F. Hiatt, E. Z. Hiatt, and Arthur Hiatt have been, for several years prior to the levy of the attachment in these cases, engaged in the business of raising wheat, and contributing to the business, and sharing the losses and profits, and that the same relation between them existed at the time the attachments went into the hands of the marshal, and were levied. Second. I find that the property levied upon by the marshal in these cases was property which had been contributed by one or the other of W. F. Hiatt, E. Z. Hiatt, and Arthur Hiatt, to the joint enterprise they were engaged in at the time they so engaged in it, or that it was the increase or product thereof, and particularly that the crop of wheat levied upon was the result of such joint enterprise. Third. I find that there was a partnership existing of which W. F. Hiatt and E. Z. Hiatt were members, each having an equal one-third interest in said partnership. Fourth. I find as a matter of law that, when partnership property is levied upon under an attachment, the defendant in the attachment has not the right to claim his exemptions, whether the debt sued upon be one against the partnership or against the individual sued. Fifth. I find that the schedule of property and claim of exemptions made by W. F. Hiatt in case No. 339 (C. W. Mitchell, Receiver, etc., vs. W. F. Hiatt and S. E. Hiatt), with, what is shown to have been presented to the clerk of this court on the hearing thereon, was not sufficient to authorize the issuance of the supersedeas, and that, therefore, the motion made by plaintiff to quash such supersedeas should be granted. Sixth. I find that the schedule and claim, of exemptions made by W. F. Hiatt in No. 340 (James Hart vs. W. F. Hiatt, S. E. Hiatt, and E. Z. Hiatt), with what is shown to have been presented to the clerk of this court on the hearing thereon, was not sufficient to authorize the issuance of the supersedeas, and that, therefore, the motion made by plaintiff to quash such supersedeas should be granted. Seventh. I find that the schedule of exemption made by E. Z. Hiatt in No. 340( James Hart vs. W. F. Hiatt, S. E. Hiatt, and E. Z. Hiatt), with what is shown to have been presented to the clerk of this court on the hearing thereon, was not sufficient to authorize the issuance of the supersedeas, and that, therefore, the motion made (by) the plaintiff to quash such supersedeas should be. granted. Eighth. I find that the motion in each case made by the defendant to quash the return of the marshal, because his return shows a levy upon property claimed as exempt, should be denied. Ninth I find that the motion made by W. F. Hiatt, in No. 339, and by W. F. Hiatt and E. Z, Hiatt, in No. 340, to compel the marshal to turn over the property for which supersedeas was issued, should be denied.</p> <p>“In making these findings I have not attempted to pass upon each specific article in each of the schedules and claim of exemptions. It may be that there are some articles of property in one or more of them that are distinctly in • dividual property, and as to which the right of exemption exists in the claimant. It would seem, as to such articles, if any there are, counsel can agree. I have reached the conclusion that if the bulk of the property that was claimed was allowed by the clerk, and a supersedeas issued, when in fact and law it was not exempt, the issuance of the super-sedeas would be erroneous, even though some articles were exempt. The counsel for defendant having notified me, soon after the submission, that the property for which an order of sale was asked by plaintiff had been bonded, I do not report upon the motion for such order, further than to say I find the testimony upon that question was sufficient to have authorized an order of sale for the live stock. Original papers which were offered in evidence, copies 'of which are attached to the testimony, I, by agreement of counsel, hold for safe-keeping, subject to the inspection of the parties and order of the court. It was stipulated by the counsel that the evidence should be taken in shorthand, and transcribed under my order and direction. This was done; and I hereto attach the bill of Myra Youug for the services rendered under that stipulation, showing the number of hours engaged in taking the testimony, and the number of folios, and the amount charged therefor, at the usual rates, amounting to forty-two dollars ($42); and I 'respectfully recommend that the bill be allowed and ordered paid by the parties, in such proportion as the court may deem proper, and taxed as costs in the case. All of which is respectfully submitted, “G-. B. Denison, Special Commissioner.”</p> <p>Exceptions to report of Special Commissioner:</p> <p>“The defendant excepts to the third finding of fact, because the same finds that a partnership existed, when in fact the proof shows that the relation between the parties was that of tenants in common. Defendants except to the fourth finding, because the commissioner finds that, as a matter of law, the defendant could not claim exemption in partnership property when the debt sued on was an individual one — the defendant insisting, first, that the relation of the parties under the facts proven was not a partnership; second, that, if a partnership, it was a nontrading partnership, without debts or liabilities of any kind, owning no property, except such as was readily susceptible of division; third, that the debt sued on was the debt, not of the partnership, but one of the individuals; if therefore, the property was such as to be liable to attachment for the individual debt, it could certainly be exempt by the individual. Defendant excepts to the 5th, 6th, 7th, 8th and 9th findings, for the reasons above set forth, and asks that the report of the special commissioner be overruled and set aside. ”</p> <p>The court sustained the exceptions of the defendants to the report of the special commissioner, whereupon plaintiff requested the court for special findings of fact on the interrogatories filed, Nos. 1 to 20, and further asked the court to make special declarations of law in writing as the conclusions of law of the court on the facts found, and asked specially for six declarations of law, all of which the court refused, and entered judgment sustaining the exceptions. The plaintiff moved for a new trial, which was overruled by the court, and plaintiff appealed to this court.</p> <p>The members of, a firm are neither severally nor jointly entitled to exemptions out of partnership property. State, ex rel vs Spencer, 64 Mo. 355; Richardson vs Adler, et al, 46 Ark. 43; Pond vs Kimball, 101 Mass. 105; in re Handlin, 3 Dill. 290; Bonsall vs Conley, 44 Penn. St. 447; Guptil vs McFee, 9 Kas. 30. And this is true even after dissolution of the partnership. State vs Day 29 N. E. 436; Wills vs Downs 38 Ill. App. 269; Trowbridge vs Cross, 117 Ill. 109; Finger-buth vs Lochman, 37 Ill. App. 489.</p> <p>Appellees were tenants in common. If not tenants in common, they were a non-trading partnership and entitled to their exemptions. Thompson on Homesteads and Exemptions, sec. 210; Newton vs Howe, 29 Wis. 531.</p>

William M. Springer, Judge. Action by William McFadden & Son against John R. Blocker and others. Evans-Snyder-Buel Company, mortgagee filed an interplea, Judgment for interpleaders. Plaintiffs appeal. The appellants, on the 17th day of June, 1896, brought suit against John R. Blocker et al. in the United States court for'the Northern district of the Indian Territory upon a judgment theretofore obtained in the state of Texas.

William M. Springer, Judge. Action by Tom Campbell against C. W. Garrett and others. Judgment for plaintiff. Defendants appeal. On December 4, 1893, the appellants executed the following instrument: “200. Muscogee, I. T., Dec. 4, 1893. On or before one year after date, we promise to pay to the order of W. H. Moore two hundred 'dollars, for value received, with interest at the rate of 10 per cent, per annum from maturity, payable at Muscogee, Ind. Ter.

WHjLiam M. Springes, Judge. Replevin by Harry McCain against John B. Webb. Judgment for plaintiff. Defendant appeals.

<p>Appeal from the United States Court for the Southern District.</p> <p>Constantine B. Kilgore, Judge.</p> <p>Action by Ed. P. Ingle against S. S. Case and others. On sustaining demurrers to separate answers of defendants, judgment was rendered in favor of plaintiff to defendants S. S. Case and W. H. Walker only. Defendants appeal.</p> <p>The appellee, Ed. P. Ingle, brought this suit against the appellants, S. S. Case and W. H. Walker, as makers, and R. Y. Mangum, as indorser, of a promissory note for the sum of $500, dated September 6, 1894, payable to R. Y. Mangum, or. order, on or before the 1st day of September, 1896, and bearing interest after maturity at the rate of 10 per cent, per annum until paid, and indorsed in blank by R. Y. Mangum; and also to forclose the mortgage which had been executed by the makers of the note upon the entire newspaper plant of the Purcell Register. The appellants Case and Walker answered, denying that the plaintiff was the bona fide holder of the note sued upon for a valuable consideration, or that he had become possessed of ’the note in the usual course, and alleged and charged that the plaintiff had obtained possession of the note by fraud and misrepresentation, and denied that the note had been transferred by the original payee to the plaintiff, or that he had any interest in it, and alleged that it was the property of the original payee, that they had paid him in full, and that the mortgage securing the note had been satisfied of record by the original payee, and delivered up to them. The appellant R. Y. Mangum answered, admitting that he had transferred the note to plaintiff, alleging that he had done so as part of the consideration for the sale to him by the plaintiff of the newspaper plant known as the Norman Transcript, of Norman, Okl. T., and alleging that the plaintiff had falsely represented to him that said Norman Transcript was doing a lucrative and paying business, when in fact it was not. The appellee demurred to' tlie answer of-Case and Walker, and also to the answer of R. Y. Mangum, and these demurrers were both sustained by the trial court, and, the appellants refusing to amend or plead further, a judgment was rendered in favor of the appellee and against the appellants Case and Walker for the amount of the note sued upon, and for foreclosure of the mortgage; but a judgment was not rendered against the appellant R. Y. Mangum, nor was the case disposed of so far as he was concerned, either by judgment against him upon the sustaining of the demurrer to his answer or dismissing of the case as to him.</p>

' Wm. M. Springer, Judge. Action by L. B. Bell against George A. Eddy and H. C. Cross as receivers of the Missouri, Kansas & Texas Railway Co. Judgment for defendants dismissing cause. Plaintiff appeals.

Wm. M.. Springer, Judge. Action by H. H. Clark against tlio Gulf, Colorado & Santa Fe Railway Company for the value of about 90 acres of land alleged to have been washed away and destroyed by the South Canadian river, such damage being caused by the building by defendant of certain dykes in the channel of the river, which changed the direction of the current of the river and caused it to flow against the land of the plaintiff thus causing it to be eroded and washed away.

Constantine B. Kilgore, Judge, Action by N. B. Woolsey against T. P. Brown. Judgment for plaintiff. Defendant appeals. Held: had expired, and that the appellant, T. P. Browm, unlawfully detained the possession of the premises, to his damage in the sum of $500, and prayed the judgment of the court against the appellant for the possession of the premises and $500 damages.

<p>Appeal from the United States Court for the Northern District.</p> <p>Wm. M. Springer, Judge.</p> <p>Action by J. R. Hastings against Felix Whitmer and others. Judgment in favor of defendants sustaining demurrers, Plaintiff appeals.</p> <p>This was an action in ejectment brought by the plaintiff and appellant, J. R. Hastings, against the defendants and appellees, to recover “the possession of an improvement on the public domain of the Cherokee nation, consisting of about one hundred acres inclosed and improved land, with house and appurtenances thereon, located on Coal creek, near the crossing of the St. Louis & San Francisco Railway, in Cooweescoowee district, Cherokee nation,’ and for the sum of $1,000, claimed as damages for the unlawful detention of said premises The plaintiff and appellant, J. R. Hastings, claiming title to said improvements by virtue of a sale under writ of execution by Ed. Adair, sheriff of Cooweescoowee district, in the case of Melissa A. Dawson, as plaintiff, against W. A. Dawson, as defendant. Melissa A, Dawson brought suit for a divorce in the district court of Delaware district, Cherokee nation, against W. A. Dawson, and in that cause a decree was entered dissolving the marital relations between her, the said Melissa A. Dawson, and the said defendant, W. A. Dawson, and judgment was also rendered in said action in favor of the plaintiff, Melissa A. Dawson, and against the defendant, W. A. Dawson, in the sum of $1,500 for alimony. Upon this judgment there was issued a writ of execution, which was delivered to the sheriff of Cooweescoowee district, and under this writ the said sheriff levied upon the improvements above described, and sold the same at public sale to J. H. Aiken and E. C. Boudinot, who afterwards transferred whatever right they had to these improvements to one W. W. Hastings, and the plaintiff and appellant in this cause claims title under a conveyance executed by the said W. W. Hastings. The plaintiff's amended, complaint in this cause sets out Ms title as above, and he also attached to his amended complaint the records of the Cherokee court in the suit of Melissa A. Dawson against W. A. Dawson. The defendants and ap-pellees appeared by their counsel, and demurred to the plaintiff’s complaint, alleging that his said amended complaint did not state facts sufficient to constitute a cause of action, nor did it state facts sufficient to entitle the plaintiff to the relief prayed for in his action. The defendant Dawson also excepted to the documentary evidence attached to the plaintiff’s complaint, and demurred to the evidence of plaintiff’s title as shown by the writings and documents attached to the plaintiff’s amended complaint. The court below sustained defendant’s demurrer to plaintiff’s amended complaint, and also his exceptions to the documentary evidence attached to the plaintiff’s amended comidaint and his demurrer to the evidence of plaintiff’s title, and, the plaintiff refusing to plead further or to amend his complaint, judgment was rendered in favor of the defendants and against the plaintiff, dismissing this cause, with.costs. An appeal was prayed in the court below, and granted.</p>

¥m, M. Springer, Judge. Action by J. M. Lewis and O. W. Mabry against J. I. Richardson. There was a judgment for less than the relief demanded. Plaintiffs appeal. This is an action by the appellants against the appel-lee upon two promissory notes for the sum of $250 each and interest. The appellee answered, admitting the execution and deliver of the notes sued upon, but alleged that the consideration for their execution and delivery had failed.

William M. Springer, Judge. Action by attachment by Reynolds, Davis & Co. against C. E. Willey and another, in which Herbert Kneeland inter-pleaded for the property attached. From a judgment for plaintiffs, defendants and interpleader appeal. G. E. Willey and O. W. Willey were merchants doing business under the firm name of C. E. Willey & Son at Ft.

Wm. M. Springer, Judge. In an action by J. M. Robinson & Co. against J. C.. Belt, C. M. King interpleaded, seeking to recover the value of property attached and sold by Robinson & Co., which had been conveyed to King, as assignee for benefit of creditors, by Belt. From an adverse judgment, Robinson & Co. appeal. John C. Belt, a resident of Arkansas, and a licensed trader at Eufaula, Ind.

<p> 1. Assignment for Benefit of Creditor. </p> <p>The assignment by a debtor to a trustee of all claims under insurance policies, to collect said policies and create a fund for the payment of certain designated debts of the debtor constitute an assignment for the benefit of creditors.</p> <p>2. Assignee for Benefit of Creditors — Capacity to Sue.</p> <p>An assignee for the benefit of creditors who fails to*give bond as provided by law has no legal capacity to sue as such assignee.</p>

William M. Springer, Judge. Action by James Chandler against Samuel M. Rutherford and others. Judgment for defendants. Plaintiff appeals.

¥m. M. Springer, Judge. Action by the Mutual Reserve Fund Life Association against James G. Mehlin. Judgment for plaintiff. Defendant-appeals. The questions at issue in this case arise on the pleadings, and judgment of the lower court thereon.

William M. Springer, Judge. Action by Georgia C. Elliott and others against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiffs. Defendant appeals.

<p>Appeal from the United States Court for the Southern District.</p> <p>Constantine B. Kilgore, Judge.</p> <p>Action for unlawful detainer by J. C. Pybos and others against Mary E. McLaughlin and another. Judgment in favor of defendant. Plaintiffs appeal.</p> <p>On January 9, 1895, A. C. Marys instituted unlawful detainer proceeding against George W. McLaughlin, Sam McLaughlin, and others, for the possession of about 125 acres of land in the Chickasaw Nation, executed bond, with J. C. Pybos and others as surety, and took possession of the property. Prior to the trial, the death of George W. McLaughlin being suggested, the court ordered that his widow, Mary E. McLaughlin, be made a party defendant. Afterwards Mary E. and Sam McLaughlin filed separate answers, admitting that they had leased the land described by plaintiff, — the one about 75 acres, and the other about 46 acres, — alleging that they had paid the rent therefor, but that, under an agreement with the plaintiff, they were to make improvements on the premises, and were to retain possession until such improvements were paid for. The . other defendants answered, denying tenancy, and claiming no rights in the suit. A trial was had, resulting in a verdict for Mary E. McLaughlin for possession of 72 acres of land and $288 damages, and for Sam McLaughlin for 46 acres of land and $184 damages; and judgment was rendered against the plaintiff and his sureties for such damages, and restoring possession of the premises to the defendants named. On May 4, 1896, this judgment, in so far as it restored the premises to the possession of the defendants, was, by agreement of the defendants, by the court set aside. Afterwards, on May 9, 1896, the court, on its own motion, set aside the verdict of the jury awarding the defendant Sam McLaughlin $188 ■ damages, and ordered that he take nothing in the suit, and reduced the damages assessed in favor of-Mary E. McLaughlin to the sum of $108 and rendered judgment in her favor against the plaintiff A. G. Mays and his sureties for this amount. From this judgment an appeal is taken.</p>

Constantine B. Kilgore, Judge. Action by Kingman & Co. against Dau Warwick. Judgment for Plaintiffs. Defendant appeals.

Constantine B. Kilgore, Judge. Attachment by D. M. Farris against F. D. Baldwin in a United States commissioner’s court. Judgment for defendant. Plaintiff appealed to the district court, and from a judgment of that court for plaintiff, defendant and the surety on his forthcoming bond appeal.

Constantine B. Kilgore, Judge. Action by E. S. Burney against T. T. Morrow in United States commissioner’s court. Judgment for defendant. Plaintiff appealed to the district court. From a judgment of that court for plaintiff, defendant appeals.

<p> j. Exemption. </p> <p>To entitle a defendant to exemptions, lie must be a bona fide resident of the Indian Territory, and the action in which the exemptions are claimed, one to recover debt upon a contract.</p> <p>2. Receiver — Rents of Property — Who liable for.</p> <p>By agreement of the parties, land was taken out of the hands of a receiver and the plaintiff was placed in possession, agreeing to pay the wife of defendant a fixed rental therefor. Held, That plaintiff, personally, became liable for the rent of the property and it was error to give judgment against the receiver therefor.</p>

Yancey Lewis, Judge. Thomas J. Dansby was convicted .of larceny. He moved an arrest of judgment. The motion was overruled, and he appeals. This is a prosecution commenced by the return of an indictment November 19, 1895, against the appellant, charging him with the larceney of two cows of the value of $18, alleged to have been taken with the intent to steal, on the 10th day of April, 1895, from Charles Colbert, in the Central district of the Indian Territory.

Constantine B. Kilgore, Judge. Action by Josie Bolton and others against the Gulf, Colorado & Santa Fe Railway Company. Judgdment for plaintiff. Defendant appeals.

William M. Springer, Judge. The defendant, Louis Cohn, was indicted for selling malt liquors in the Indian Territory. There was a verdict of acquittal. The plaintiff appeals.

<p>Ejectment — Statute of Limitations — Suspension by Death — Minors.</p> <p>When the statute of Limitations has been set in motion during the life time of the ancestor, his death will not suspend it, even as against minor heirs.</p>

Yancy Lewis, Judge. Action by J. H. Nail against McKee Robinson and another. Judgment for plaintiff. Defendancs appeal. This was an action of ejectment brought by the appel-lee, J. H. Nail, against McKee Robinson and P. H. Rogers, appellants, to recover possession of a certain lot, with the improvements thereon, situated in the town of Caddo, in the Central district of the Indian Territory.

William M. Springer, Judge. Action in equity by James McNeil against the Miami Town Company for specific performance of contract to convey real estate. Judgment for plaintiff. Defendant appeals.

W. M. Springer, Judge. Action by H. A. and N, L. Shear against J. J. Mc-Alester as U. S. Marshal, for conversion. Judgment for defendant. Plaintiffs appeal.

<p>1. Review — Bill of Exception — Motion for New Trial.</p> <p>Whenever it is necessary to preserve by a bill of exceptions the ruling of the trial court to secure a review thereof on appeal, it is necessary that a motion for a new trial be made in the court below.</p> <p>2. Motion for New Trial — ■ What is Not.</p> <p>A motion “to set aside the order or judgment of the court therein, withdrawing said case from the jury and dismissing said case” is not a motion for a new trial under Mansf. Dig. \ 5151 so as to give this court jurisdiction on appeal.</p>

Hosea Townsend, Judge. Suit by J. N. McKee against George W. McMillan and another. Decree for plaintiff. Defendants appeal.

William H. H. Clayton, Judge. Action by B, W. Zachary against the St. Louis & San Francisco Railroad Company to recover for the killing of plaintiff’s stock. Judgment for plaintiff. Defendant appeals. On the 14th day of September, 1898, appellee, Zachary, filed a complaint in writing in the United States Court at Cameron, Ind.

W¡ M. Springer, Judge. Action by Hibbard Bros, against S. S. Sanger, Jr. Judgment for plaintiffs. Defendant appeals.

<p>/. Execution — Quashing—Appeal—Final Judgment.</p> <p>An order sustaining a motion to quash an execution is such a final judgment as will support an appeal.</p> <p>2. Record — Error—Motion for a New Trial Unnecessary.</p> <p>Error of law which appears on the record, without the aid of a bill of exceptions is reviewable without making a motion .for a new trial.</p> <p>?. Bill of Exceptions — Insufficient.</p> <p>The bill of exceptions in this case is insufficient of itself to present any error in the questions passed upon by the court below.</p> <p>‡. Review— When Bill of Exceptions Unnecessary.</p> <p>When a motion for a new trial is unnecessary a bill of exceptions is not required to secure a review of the error complained of.</p> <p>Keview. MG-tlon for new trial. When not necessary</p> <p>Bill of exceptions. Insufficient.</p> <p>^henlifot0116' neC6ssary'</p>

John R. Thomas, Judge. Action, by Belle Rush and others against Johnson Thompson and others to recover possession of certain real estate. Judgment sustaining demurrer to the complaint. Plaintiffs appeal. This case was brought to recover a town lot, and improvements thereon, in the town of Tahlequah, Cherokee Nation.

W. M. Springer, Judge. Action by the Independence Produce Company against E. A. Parker. Judgment for plaintiff. Defendant appeals. This case was tried to the court on an agreed statement of facts, which are as follows: That the B. P. Coombs Commission Company, on the 15th day of September, 1898, recovered in the mayor’s court of the incorporated town of Nowata, Ind. T., a judgment against W. J. Davis, a merchant in the town of Nowata, Ind.

Wm. M. Springer, Judge. Motion to confirm appointment of L. A. Keys as ad-| minis fcrator of David M. Delk, deceased, and to approve his I bond, was granted over the protest of Lizzie Delk, or| Wilkinson. She appeals. On October 8, 1896, motion, was filed in the United! States district court at Vinita to confirm the appointment-! ment of L. A. Keys as administrator of the estate of David!

<p>i. Murder — United States Law Governs.</p> <p>By the act of March 1,1895 the United States statute concerning the crime of murder, is in force in the Indian Territory both as to the degree and penalty, and not the statute of Arkansas.</p> <p>?. Murder — Penalty under United States Statute.</p> <p>I 5359 Rev. St. U. S. applying to the crime of murder, fixes only one degree of murder and only one penalty, that of death. ■</p> <p>3. Murder — Degree—Instruction.</p> <p>On a prosecution of murder under l 5339 Rev. St. U. S., it is not error to refuse to charge the jury that they must find in what degree the defendant is guilty of murder.</p> <p>4. Indictment — Murder—Several Counts charging same offense — Conviction on one, a conviction on all.</p> <p>There were two counts in the indictment, the first charged defendant with killing deceased with a gun; the second charged him with killing him with a pistol. Upon the first trial defendant was convicted upon the second count. The verdict in this conyiction was set aside and on the next trial the defendant was convicted upon the first count. Held, That the two counts charged the same offense. That a convic'ion upon either count was tantamount to a conviction on the other, and that failure to convict, or to make mention of the first count on the first trial was not an acquittal on that count and defendant could he convicted upon the first count on second trial.</p> <p>j. Indictment — Killing with gun sustained by proof that killing was with pistol, or other like weapon.</p> <p>An indictment charging a killing to have been done with a gun is sustained by proof that the killing was done with a pistol, shot gun, rifle, musket, or any kindred weapon.</p> <p>6. Indictment — -Several counts — Surplusage.</p> <p>Under an indictment the first count of which charged the killing to have been done with a gun, the second to have been done with a pistol, the second count will be held to be surplus-age.</p> <p>7. Indictment — Several'counts charging distinct offense — Conviction on one, acquittal as to others.</p> <p>If an indictment contains more than one count charging different offenses, and defendant is found guilty as to one, and the verdict is silent as to the others, he will be held to be acquitted upon those counts concerning which, the verdict is silent, and a plea of former jeopardy will be sustained.</p> <p>8. Indictment — Separately Stating the same Crime— Verdict.</p> <p>When an indictment, consisting of several counts, is founded upon a single transaction the verdict is a unit, and a verdict upon one of the counts is equivelant to a verdict upon all, and if a new trial is granted on defendants motion the case is open for retrial upon the counts upon which he was acquitted, as well as those upon which he was convicted.</p> <p>p. Instruction as to accessory — Harmless error where proof undisputed that defendant a principal.</p> <p>It is error to give an instruction relating to an accessory though it stated the law correctly, when the indictment does not charge the defendant as being an accessory to the crime, hut in as much as the proof was uncontradicted that defendant was present and if guilty at all was guilty as a principal, the jurory could not be mislead by it, and it will be held harmless error.</p> <p>io. Instructions — Review—Exceptions must be specific.</p> <p>The attention of the court should be directed specifically and directly to that part of the charge, which is complained of as error and if this is not done the objections will not be considered on appeal.</p> <p>V Murder V U. S. statute governs.</p> <p>’CgOM</p> <p>Indictment. Surplusage.</p> <p>Ver-§?™1"3,</p> <p>indictment. When verdict °n one count Terdlctona.u</p> <p>Instruction as to accessory. Error</p> <p>Instruction. Exception, to must be-specific.</p>

John E. Thomas, Judge. Appellant, Claud E Helms, -was indicted, arraigned, tried, and convicted of murder, without capital punishment. Motions for a new trial and in arrest of judgment were filed and overruled, and judgment and sentence Entered. Bill of exceptions were filed, and the case brought to this court.

W. M. Springer, Judge. Attachment by Breedlove & Lang against George Nipper. Interpleader by Mrs. A. J. Dennie. Judgment in favor of interpleader. Plaintiffs appeal. On July 4, 1893, at the suit of appellants, an attachment was levied upon personal property of the appraised value of $3,215, alleged to belong to one George Nipper.

C. B. Kiegore, Judge. Action by Richard McLish and Lee Cruce against Charles Durie for unlawful detainer of a certain lot. Judgment for plaintiffs. . Defendant appeals. This is an action by appellees against appellant for unlawful detainer of a certain lot in the town of Ardmore.

<p>Appeal from the United States Court from the Northern District.</p> <p>W. M. Sprinser, Judge.</p> <p>Suit by Joseph Hunt against John B. Webb, Decree for plaintiff. Defendant appeals.</p> <p>The report of the master in this case sufficiently pre - sents the facts of the case, and the defendant’s exceptions to the findings of the master present the questions of law upon those findings, submitted to the court. The report and exceptions are as follows, to-wit:</p> <p>“(1) That the plaintiff is a citizen of the Cherokee Nation, and the defendant á citizen of the United States, and that both parties reside and may be found within this district. That on July 1, 1892, one William 0. Meyers executed a mortgage to the Whitman Agricultural Company to secure an indebtedness of $450. The said mortgage was given upon one steam hay press and two mules. That on July 18, 1892, the said Meyers madé a mortgage to the plaintiff, under the firm name of Joseph Hunt & Co., to secure an indebtedness of $350, and that said mortgage was given upon one 10 horse power engine and the steam hay press which had been before that time mortgaged to the Whitman Agricultural Company. That all of said property was at that time located within this district. That the first mortgage was duly filed on September 24, 1892, in the office of the clerk of the United States court at Muskogee, and that the second mortgage was recorded in said office on October 22, 1892. That in December, 1892, the defendant herein bought the two mules included in the Whitman mortgage from the said Meyers, paying him $170 for them. That both of said mortgages above described were on record at the time of the purchase of the mules, and the defendant was charged with constructive notice of the existence of the mortgage upon the mules, though he testified at that time he did not have actual notice thereof. That a short time thereafter, the defendant learning of the existence of the mortgage. upon the two mules he had bought (the said Meyers having left the country), he ^bought the said mortgage and the note given with the same by the said Meyers from the Whitman Agricultural Company; paying therefor $ 176.15, the amount then due upon the same. That the said defendant afterwards sold the two mules at private sale; selling one for $90, and the other for something near the same amount. That on November 8, 1893, the defendant foreclosed the Whitman mortgage upon the hay press, and sold the same at public sale, and bought it himself for $50, with which amount he credited the Whitman note, though the credit does not appear to be entered upon the note. That the hay press was not appraised as required by law prior to the said mortgage sale. That,. after the defendant bought in the said hay press, he kept it until June or July; 1894, when it was sold at private sale for $300; but the parties who bought it paid to defendant $80, and then turned back the press to the defendant in default of payment for the same; and that afterwards defendant baled 300 tons of hay with said press, and that baling hay was reasonably worth the sum of 20 cents' per ton for the use of the press. That the said press is still in possession of the defendant, and has not been damaged more than $50 worth by use and natural depreciation. That the plaintiff herein, who has been acting as sales agent for the Whitman Agricultural Company, was an indorser upon the note of Meyers which was purchased by the defendant herein; the same representing the balance due the Whitman Company from Meyers. • That the plaintiff instituted a suit against the defendant herein at Muskogee, seeking to replevy the hay press, and subject it to sale for the satisfaction of the said second mortgage in his favor, as above set out, but said suit was decided in favor of this defendant. That on July 20, 1894, three appraisers were appointed by T. J. Crooks, U. S. commissioner at Vinita, at the instance of Joseph Hunt, the plaintiff hei’e-in, to appraise the said traction engine included in the mortgage given by Meyers to Hunt, and on that day appraised the said engine at $150: and that on July 21, 1894, the said engine was sold at public sale at Vinita, in pursuance of the conditions of the said mortgage, and the same was sold for the sum of $101, from which, after deducting $6.25, the expense of foreclosing the mortgage, the plaintiff credited the balance, $94.75, upon the $350 debt due him from said William C. Meyers. That there is a balance due plaintiff of $325.55, with interest at 10 per cent, from July 21, 1894, and that the said Meyers being absent from the territory, and having left no property here, there is no means by which the plaintiff can obtain satisfaction for this debt, unless the property herein be subjected to the payment of the same. That the plaintiff, prior to the sale of the said hay press under the mortgage of the Whitman Agricultural Company, notified the defendant to look to the two mules included in that mortgage for the satisfaction of that debt which had been transferred to him, leaving the hay press free from the lien of that mortgage, and liable to the satisfaction of plaintiff’s second mortgage thereon; but defendant refused to do so, claiming that as he had bought the mules at private sale from Meyers, and had afterwards bought the Whitman debt, the title to the mules had vested absolutely in himself, and that he could not be forced to subject them to the payment of the Whitman debt, in order to favor the plaintiff. (2) If the mules had not been sold to the defendant, and the Whitman debt had been about to be foreclosed, I am of the opinion that the plaintiff herein could have compelled the Whitman Agricultural Company to resort to the mules first to satisfy the debt, leaving the hay press as nearly free as possible to the satisfaction of plaintiff’s debt. Now, then, when the defendant bought the mules, the recording of the mortgage upon them is sufficient to charge him with constructive notice of the mortgage, and the fact that the defendant subsequently acquired the Whitman note and mortgage does not better his condition as purchaser of the mules with notice of the lien upon them; and therefore I am of the opinion that the defendant should be required to apply the value of the mules, which is shown by his testimony to be at least $170, to the satisfaction of this Whitman debt. Then, too, his owu testimony shows that he has received from this hay press $860 in cash, and has baled 300 tons of hay, worth 20 cents a ton for baling, making a total of $140 realized by the defendant from the hay press, and being largely in excess of the amount due upon the Whitman note, after crediting same with $170, the value of the mules. The defendant’s contention that the fact that the plaintiff was an indorser upon the Whitman note would operate against him in his attempt to marshal the assets involved herein, it seems to me, is not well taken, for the reason that the plaintiff, as surety upon that note, would be entitled to have all of the property mortgaged subjected to the payment of the Whitman debt before any action could be taken toward forcing him, as surety, to pay the same. So, therefore, I leave this view of the case out of consideration. I am of the opinion that the defendant is in no better position in this matter from having received an assignment of the Whitman debt after his purchase of the two mules than if he, an entire stranger to the whole transaction, had bought these mules. He is interested in this matter in two capacities, —one as a purchaser of property upon which there was a valid recorded mortgage, and the other as the assignee of a mortgage and note secured in part by the same property. Under the well-known doctrine of equity which regards that which should be done as already done, I am of the opinion that the court must treat this matter as if the mules had been subjected by Webb to the payment or part payment of the Whitman debt, just as if no other right of his as purchaser hereof had intervened. (3) There is an additional question which arises in regard to the mortgage sale of the hay press by Webb, in this: Under section 4763, Mansf. Dig. (section 3074, Ind. T. Ann. St.' 1899), it is provided that appraisement of property may be waived only in mortgages to secure money loaned; and in the four sections preceding that one it is provided that property shall be appraised prior to a sale under a mortgage and shall not sell for less than two-thirds of its appraised value, and that, in case it shall not sell for two-thirds of its appraised value, another offering may be made in sixty days thereafter, at which offering sale shall be to the highest bidder, without reference to the appraisement. The testimony shows that the defendant did not have the hay press appraised prior to offering it for sale under the mortgage, and consequently I am of the opinion that. the sale which was made was voidable as against parties interested. (4) That there was due upon the Whitman mortgage at the time it was assigned to this defendant, $176.15, and that after applying $170, the value of the said mules, thereto, there'was a balance of only $6.15 due to this defendant, to cover which, his testimony shows, he has received, in money and use, $140 from said hay press. Wherefore, the premises considered, I am of the opinion that the prayer of plaintiff should be granted, that the hay press should be ordered to be sold under the mortgage of Meyers in favor of the plaintiff, and that plaintiff should have judgment against the defendant for so much of said $140 derived by defendant from this hay press as would remain after deducting the $6.15, the balance due upon the Whitman debt, with interest thereon from the date when this debt was assigned to the defendant; and I therefore recommend, that the court will so order. I also ask that I be allowed a reasonable fee for my services as master herein. ”</p> <p>The defendant below (appellant here) filed 11 exceptions to the master’s findings, as follows: “(1) That he does not find that the plaintiff, Hunt, was present at the sale of the hay press made by Webb, and at such sale gave notice to all parties that he owned the press, and that, if any one bought it, they would, have a lawsuit. The defendant excepts to the conclusions of law as made by the master in chancery in this case, and avers that said conclusions are not supported by the facts in this case. (2) We deny the master’s conclusion of law that the defendant, Webb, occupies the same position as to the plaintiff in this case as did the Whitman Agricultural Company; that Webb had no more or superior rights than did the Whitman Agricultural Company, though, he bought the mules from William Mey-erS, and paid value for them. (3) That we except to that part of the master’s report that charges the defendant with constructive notice of the Hunt mortgage, or notice that Hunt was in a condition that he might marshal assets in the hands of the Whitman Agricultural Company. (4) The defendant excepts to the conclusions of the master, in that he holds that the defendant was subject to the Whitman Agricultural Company’s mortgage in the same respect after he bought and had it assigned as before he purchased it, in reference to his rights respecting the mules purchased of Meyers. (5)' The defendant excepts to the finding of the master that he should apply the proceeds of the mules upon the note bought from the Whitman Agricultural Company. (6) The defendant excepts to the finding of the master in this: that the defendant shall pay the plaintiff the amount realized on sale of hay press, when the same was returned back as good as when sold. (7) The defendant excepts to the finding of the master, in that the fact of plaintiff being an indorser' of the note does not prevent him from having the mules marshaled in'this case. (8) The defendant excepts to the finding of the master in this: that he holds that the defendant is in no better condition after buying the Whitman Agricultural Company’s note than if he had been a stranger to the purchase of the mules. (9) The defendant excepts to the finding of the master in this case, in that he seeks to apply the rule of equity, ‘that equity considers that as done which should be done,’ to the facts in this case, in so much that the defendant would be considered as having applied the proceeds of the mules to the payment of the Whitman Agricultural Company’s note. (10) The defendant excepts to, the finding of the master in this: that the sale was not made according to the provisions of the statute of Arkansas. (11) The defendant excepts to the conclusion of the master, and to his recommendation as to what the court should order in the case; that said conclusions are not warranted by the facts in the case; and asks the court to find that this is not a case for marshaling of assets, and that this case be dismissed at plaintiff’s costs. ’ ’ The court overruled the defendant’s exceptions to the findings and report of the master, and confirmed the same, and rendered a decree for plaintiff; and defendant appealed to this court.</p>

Willtam M. Springer, Judge. Action by Joseph Paul against the German-American Insurance Company. Judgment for plaintiff. Defendant appeals.

William M. Sprihger, Judge. Action by H. A. Truskett against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendent appeals.

William H. H. Clayton, Judge. Action by John Eddy and another against the South McAlester Electric Light & Power Company to recover a balance alleged to be due on their contract to erect a building for defendant. Judgment for plaintiffs. Defendant appeals. During the spring of 1897 the appellees (plaintiffs below) built for appellant (defendant below), under a written contract, a stone building in the town of South Mc-Alester, designed for an electric light plant.

W. M. Springer, Judge. Replevin by A. D. Neeley against F. M. Smith. Judgment of the district court sustaining a judgment of the commissioner in favor of plaintiff. Defendant appeals. On the 7th day of June, 1895, affidavit in replevin was filed before Robert L. McClure, United States commissioner for the Northern district of the Indian Territory, at Yinita, by the plaintiff below, the appellee here, against the defendant below, the appellant here.

H. Clayton, Judge. Action by Robert P. De Graffenried against J. W. Wallace and others. Judgment for defendants. Plaintiff appeals. This action was brought February 23, 1898, in the Northern district, at Wagoner, Ind. T. Answer was filed March 18, 1898, and on March 24, 1898, on petition of plaintiff, the venue was changed to the Central district, at South McAlester.

W. M. Springer, Judge. A1 Jennings was convicted, of an assault with intent to kill, and appealed. At the May, 1898, term of the United States court for the Northern district of the Indian Territory, sitting at Muskogee, the defendant, A1 Jennings, was tried and convicted on a charge of assault with intent to kill, upon the person of one James Franklin Ledbetter.