Volume 2 — Oklahoma Reports

Error from the Probate Court of Cleveland County. Action in replevin, by John H. DeBerry against George Smith as sheriff, brought in the probate court of Cleveland county, to recover certain specific articles of personal property. Judgment rendered in court below for the plaintiff. Prom .this judgment, the defendant appeals.

<p>x. A court of law or equity will not interfere to determine the question of title to public lands until the" adverse claims have been finally determined by the Land Department.</p> <p>2. A complaint to set aside an award of townsite trustees, to public lands, which does not show that the cause has been finally determined in the Land Department, fails to state a cause of action.</p>

<p>i Bill of Exceptions — It is an invariable rule that where a bill of exceptions is filed after the close of the term at which judgment was rendered, it must show, affirmatively, on its face, that it was presented within the time allowed.</p> <p>2. Same — It may be stated as a general rule, that while parol evidence is competent, it is not of itself, unaided by any other notes, minute or memorial, sufficient to authorize a nunc jbro tunc order; it may be competent, and yet insufficient.</p>

Error from District Court of Oklahoma County. Complaint by E. W. Stone and others against J. C. Dean for the cancellation of defendant’s license to practice as an attorney at law. There was judgment for plaintiffs, and defendant appeals.

<p>1. Final Judgment — Enforcement Outside of the Court’s furisdiction — Injunction—A cause is finally disposed of when final judgment is rendered, and the collection of the judgment is no part of the duty of the .court. Judgments are not self-executory; the levy upon and sale of property to satisfy an execution are ministerial acts of the officers designated for such purposes.</p> <p>2. Judgments in civil actions rendered in the United States court of Indian Territory cannot be enforced by execution in Oklahoma, and the United States marshal of said territory has no authority to sell real estate in Oklahoma on an execution issued from said court. The execution and acts of the marshal are void in Oklahoma, and may be enjoined by the district court of Oklahoma.</p> <p>3. Proceedings to enjoin the acts of an officer beyond his territorial jurisdiction, or the sale of property on an execution without the jurisdiction of the court rendering the judgment, are not an interference with the officers or process of a court.</p> <p>4. Judgments rendered in the Indian Territory are only evidences of debt in this territory, and must be reduced to judgment in our courts and collected under our laws.</p>

<p>1. In an injunction proceedings brought to restrain an adverse party from interfering with the possession of a homestead claimant, the courts will inquire into the status of parties far enough to determine whether or not the parties claiming possession have, under the laws of congress, a right as settlers upon the land.</p> <p>2. A person settling upon lands segregated from the public domain by a homestead entry, is a mere trespasser.</p> <p>3. No settlement right can be obtained upon a homestead by the purchase of the improvements of another.</p> <p>4. A right to occupy a tract of land under the homestead laws of the United States as a settler must be based, either upon a homestead filing, or a settlement made within three months prior to an adverse filing.</p> <p>5. A settlement made upon land covered by an existing entry, confers no right whatever where such entry is cancelled as a result of a contest for a preference right.</p> <p>6. Where a temporary restraining order is granted in favor of a party, who has no right under the law to the occupancy of land, and, upon final hearing, such fact is- made to appear, held, not error for the trial court to dissolve such order.</p> <p>7. While the jurisdiction of a court of equity by way of mandatory injunction is rarely exercised, yet it is too well established to admit of a doubt.</p> <p>8. The courts have the right to deal with the question of possession as between settlers upon the public domain.</p> <p>9. When it is ascertained that a person claiming the right to the use and occupancy of a tract of land, the title to which is still in the United States, is, under the laws of Congress, a mere trespasser. It is the duty of the courts having jurisdiction to give the proper party the possession of the land upon which the trespass is committed.</p> <p>10.If it be found that a person asserting a claim to public land is a mere trespasser, it is the duty of the courts to issue a mandatory injunction, restraining him from the further unlawful occupancy of the land.</p> <p>ix. Where a mandatory injunction is issued, the court may compel an obedience to such order.</p>

<p>i. Where an officer, taking depositions, fails to show in his certificate that the same were taken at the place named in the notice, and where it further appears that the adverse party was not present when such depositions were taken, held: That the trial court erred in overruling a motion to suppress such depositions.</p>

This is an agreed case originally submitted in this court asking 'that a peremptory writ of mandamus may issue commanding the defendant to proceed to list for taxation certain property in Spring Creek township, Logan county, Oklahoma Territory.

<p>1. Mandamus — Title lo Office — Mandamus will not lie to try the title to a public office.</p> <p>2. Mandamus — Public Offi.ce — It may be stated as a general rule in an action in mandamus that where a relator shows a ffi-ima facie title to a public office, he is entitled to the aid of mandamus to obtain possession of the books, records, insignia, paraphernalia and official belongings of such office; and in granting the writ, the court will not go behind such showing and try the title thereto.</p> <p>3. Office — Removal—Conunission—When an incumbent of a public office is removed by the governor, acting under statutory authority giving him such power, and a successor is thereupon appointed and commissioned and duly qualified as required by law, the court, in determining who is entitled to the books, records, insignia, paraphernalia and official belongings of such office, will not go behind the last commission of the governor and try the title to such office.</p> <p>4. Same — The relator is not entitled to the aid of mandamus to obtain possession of funds in the hands of the territorial treasurer, when it appears that such relator has been removed by the governor and a subsequent commission has been lawfully issued for the same office to another, for the reason that in seeking to avoid the later commission, the relator necessarily puts in issue the title to the office, which cannot be tried by mandamus; -and in the face of the later commission, the relator being unable to show a f'ima facie title to such office, the writ must be denied.</p>

<p>x. Where the defendant below was, on the 7th day of November, 1892, duly sentenced, upon a conviction had prior thereto, and upon the same day filed his motion for a new trial, and the same is overruled, and an appeal prayed for and allowed on said day, and the transcript of the record and case made is not filed in the supreme court until the 4th day of December, 1893, no notice of appeal being filed prior to said date, held: That under section 4, article 16, Procedure Criminal, Laws of Oklahoma, the appeal will not lie.</p>

<p>1. Alleged errors o£ the trial court will not be reviewed on appeal unless presented to the trial court for review by motion'for new trial, except that the sufficiency of the charge to constitute a public offense, or the jurisdiction of the court, may be questioned for the first time in this court.</p> <p>2. Errors committed by the trial court will not be reviewed on appeal unless presented to the trial court for review by motion for new trial, unless they go to the sufficiency of the charge to constitute a public offense or jurisdiction of the court.</p> <p>3. Under ^ 5392 R. S. U. S. the crime of perjury is committed by a person who, having taken an oath before a register or receiver, testifies falsely touching a material matter in issue.</p> <p>4. The register or receiver of a United States land office is authorized to administer oaths in contest proceedings.</p> <p>5. The rules and regulations established by the heads of executive departments, with the approval of the president, in execution of, or supplementary to, but not in conflict with, statutes defining their powers or conferring rights upon others, have the force and effect of laws.</p> <p>6. The court will take judicial knowledge of the fact that the land described in the indictment is within the Oklahoma City land district, and that the register and receiver of the land office for such district have jurisdiction over any proceeding or contest having for its object and purpose the cancellation of a homestead entry for said land.</p> <p>7. An allegation in an indictment that, "In the United States land office, at Oklahoma City, in said county, of which said office, John H. Burford was then and there register, and John C. Delaney was then and there receiver, a certain land contest and cause was pending and then and there came on to be tried,” is equivalent to an allegation that the contest came on to be heard in the land office before the register and receiver.</p> <p>8. The provision of the territorial statute providing for a change of judge is not in harmony with our Organic Act, and no change of judge can be had in either a federal or territorial criminal case.</p> <p>9. It is not error for a trial court to overrule an application for a change of venue from the county where the affidavits presented in support of such motion do not set forth the facts, which in the opinion of tho witness would operate to prevent a fair trial in tbe county in which the indictment is found.</p> <p>10. Presumptions are in favor of the regularity and correctness of the proceedings and rulings of the court below, and this court will presume, in the absence of part of the instructions given, that the instructions as given covered all the questions of law necessary to inform the jury on every question involved in the trial of the cause, and that they embrace all the questions presented in the instructions refused.</p> <p>11. The courts take judicial knowledge of the rules and regulations of the general land office, and such rules need not be pleaded or proven.</p> <p>12. Rulings complained of must be made apparent by the record presented to this court, and the abstract must embrace enough of the record to fully present all the alleged errors.</p>

<p>1. In an indictment for perjury, charged to have been committed before a United States land office, it is not necessary to set forth in the indictment the grounds upon which the contest is based.</p> <p>2. This court will take judicial knowledge of the fact that the register and receiver has jurisdiction to hear a contest wherein one party seeks to have the homestead entry of another cancelled.</p> <p>3. Register's and receivers have power to administer oaths in contest cases tried before them</p> <p>4. It was not error for the court below to instruct the jury that the indictment was brought under §5392 R. S., U. S.</p> <p>5. Upon a trial of an offense against the laws of the United States, the grand jury must be summoned from the county in which the offense is committed.</p> <p>6. At the beginning of the term, the court is convened for federal and territorial business and is in session for both purposes until the same finally adjourns for the term.</p> <p>7. The materiality of the testimony upon which perjury is assigned is a question of law for the court.</p> <p>8. An application for a new trial, and affidavits filed in support thereof, cannot be considered by this court, where the record shows that the same have never been presented to the trial court.</p>

<p>i Perjury — Indictment—To constitute perjury as defined by § 5392, Revised Statutes of the United States, it is sufficient if the indictment charges that the false oath was taken before an officer duly authorized under the laws of the United States to administer oaths.</p>

<p> Petition for Rehearing. </p>

<p>i. This case being in all respects identical-with the case of Clay Peters vs. United States, the judgment of the lower court is affirmed.</p>

<p> Error from Payne County. </p>

<p>i. Under the statutes of Oklahoma requiring that prosecutions for adultery can only be commenced and carried on by his or her own husband, or wife, as the case may be, or by the husband or wife of the other party to the crime. Held: That such prosecution cannot be commenced and carried on by a woman after she has obtained a decree of divorcement from the party charged to have committed the crime.</p>

<p> Error from Oklahoma County. </p>

Error from Oklahoma County. Tbe opinion states tlie material facts. Prom a conviction at the February term, 1894, of the district court of Oklahoma county, the defendant, John Milligan, appeals.

<p>1. Section 15, art. 3, chap. 73, laws of 1893, repeals §50, art. 59, chap. 25, of the Crimes Act, relating to the disposition of fines, forfeitures and pecuniary penalties.</p> <p>2. All monies collected from fines, forfeitures and penalties under the provisions of the Crimes Act, constitute a county school fund and must, when collected by the county treasurer, be placed in such fund.</p>

<p>r. The district court has power to make an order which grants to an adverse homestead claimant the right to remain inside a wire fence erected by a person who claims the land by virtue of a settlement made prior to the filing of an entry by such adverse claimant.</p> <p>2. Where two parties are claiming the right to reside upon a homestead, one by virtue of settlement, the other by reason of a filing in the United States land office, each party has a right to reside upon and occupy the land until the land department has determined to whom the land belongs.</p> <p>3. In an injunction proceeding the district court may make any order which, in the judgment of such court, may be necessary to give effect to the homestead laws of congress pending the final determination of the contest proceedings in the land department.</p>

<p> Error from Payne Gounty. </p>

<p> Error from Oklahoma, County. </p>

<p>i. An act of the territorial legislature which regulates the order of receipt and transmission of telegraphic messages, and prescribes a penalty for its violation, but which does not attempt to regulate the delivery of messages outside the territory, or of messages sent from without the territory, is not in conflict with the constitutional pro vision giving to congress the right to regulate commerce between the states and territories.</p> <p>2. Paragraph 543, of the Oklahoma Statutes of 1890, imposing a penalty of fifty dollars upon carriers of messages for certain breaches of duty, does not apply to a failure to deliver a message, but only applies to the failure to receive or transmit messages in the order presented. It is a penal statute and must be strictly construed.</p> <p>3. The sendee of a telegraphic message can not maintain an action against a telegraph company for neglect, delay or. non-delivery of a message in the absence of a showing that it was sent by his agent or was sent for his benefit, and that the carrier had actual or constructive notice that it was so sent for the benefit of the sendee</p> <p>4. The terms, "carelessly, wrongfully and negligently, failed and neglected” to deliver a message, used in a complaint, import ordinary and simple negligence, and nothing more.</p> <p>5. Damages for mental pain and suffering alone, occasioned by the negligence of a telegraph company in failing to deliver a message announcing the death of a relative, can not be recovered.</p>

<p>1. A rule of the secretary of the interior, which requires a contestant before townsite trustees, appointed under act of May 14, 1890, to deposit thirty-two dollars with the treasurer of the board before a cause will be heard, is authorized by the law, is a reasonable rule, and a contestant or claimant failing to comply with the rule cannot invoke the aid of a court of equity.</p> <p>2. Jurisdiction is the power to hear and determine the subject matter in controversy between parties to a suit; to adjust or exercise any judicial power over them.</p> <p>3. A court of equity has no power to hear and determine any question affecting the title to public lands until the land départment has determined the matter, and the title has passed from the government. But after the title has passed to private parties, a court of equity will convert the holder of the legal title into a trustee to the true owner, if in equity and good conscience, and by the laws of congress and rules of the department thereunder, it ought to have gone to another.</p> <p>4. One claiming the aid of a court of equity to set aside the finding of townsite trustees, must allege every fact that is necessary to prove to entitle him to a conveyance in the first instance, and must show that he was defeated by the misapplication of the law or the fraud, mistake or misconduct of his adversary, and he can not plead his own laches, misfortune or neglect as an excuse for failure to comply with the law.</p> <p>5. Townsite trustees, appointed under act of May 14, 1890, bear the the same relation to the disposition of town lots that registers and receivers do to the disposal of public lands, and their decisions on questions of fact are conclusive and will not be inquired into, except on appeal to the proper departmental officers. A court of equity will only interfere to prevent injustice from being done, after final judgment, by reason of fraud, accident, mistake or misapplication of the law.</p> <p>6. Objection to the jurisdiction of the court which goes to the power of the court over the subject matter may be raised at any stage of the proceedings.</p> <p>7. A court of equity has no jurisdiction when it is apparent from the petition that the plaintiff had a remedy at law and failed to avail himself of it, and shows no good excuse for such failure, and wherein it also appears that he was not entitled to the relief prayed for.</p>

<p>1. Section 17, of the act of congress, approved March 3, 1891, 26 Stat. Large, 1026, modifies §2387, R. S. TJ. S.; repudiates the act of Oklahoma legislature, approved December 2, 1890, Ok. Stat. 1893, p. 1145, and adopts the statutes of Kansas determining the jurisdiction of probate judges in townsite matters and prescribing the regulations for executing such trust.</p> <p>2. The only laws in Oklahoma regulating the duties of probate judges in townsite matters are the laws of the United States and the state of Kansas.</p> <p>3. Commissioners appointed by a probate judge to survey and plat town-sites, set apart the lots to occupants and assess the expenses against the several lots, have nothing to do with collecting the costs of such proceedings, and are not authorized to make any rule requiring a deposit from applicants for, or occupants of, lots and all such rules or demands are void and may be ignored by lot claimants.</p> <p>4. Such commissioners are not authorized to swear witnesses, or sit as a court and hear contests, but it is their duty from actual observation and such proof as claimants may submit to them, to determine who were bona fide occupants of lots at the date of the entry of the town-site, and report said proceedings to the probate judge.</p> <p>5. Filing certificates issued by the probate judge prior to entry of land are -without authority; have no legal force, and persons accepting them do so at their own peril, and must suffer the result of their own stupidity.</p> <p>6. A petition which shows that the plaintiff is qualified to enter public lands; that he has actually settled upon, occupied and improved a town lot from the day it was subject to settlement to the date of bringing suit; that he filed his application with the townsite commissioners for a deed; that he was the only occupant of the lot; that he tendered all fees and assessments, and that the commissioners refused to hear his claim because he refused to deposit twenty-five dollars with them as security for costs, and that the lot was wrongfully deeded to another, and offers to reimburse the defendant for all assessments and costs paid by him, presents a case for equitable interference.</p> <p>7. A person who makes a motion for a new trial, and bases it on alleged causes, is not entitled to a new trial, as of right, on such motion.</p>

<p> Original Proceeding in Mandamus. </p> <p>Action instituted by G. W Johnson, sheriff of O county, vs. Evan B. Cameron, as auditor of the Territory of Oklahoma.</p>

Original Proceeding in Mandamus. The opinion of the court was delivered by Scott, J.: On the 23d day of February, 1894, Evan D. Cameron, as superintendent of public instruction and ex-officio auditor of the Territory of Oklahoma, filed his petition and affidavit for a writ of mandamus against J. H. Parker, in this court, praying that an alternative writ issue, commanding said defendant, J. II.

Error from District Court of Cleveland County. On the 21st day of November, 1891, Thomas E. Berry and A. A. Berry, partners, doing business, as Berry Bros., in the town of Norman, filed their complaint in replevin in the probate court of Cleveland county, to recover possession of a stock of confectionery, taken by George Smith, as sheriff of said county, under and by authority of a writ of attachment, sued out of the probate court by plaintiff, in the case of W. A. Mounts é…

Action in replevin, by Thomas E. Berry and another, against George Smith, as sheriff. -Judgment for defendant in lower court. Plaintiff appeals. Affirmed. On motion for re-hearing.

<p> M)-ror from the District Court of Kingfisher County. </p> <p>Action on promissory note and foreclosure of mortgage. Judgment for plaintiff. Defendants appeal.</p>

Motion for Re-hearing. Action on a promissory note by the Panic of Kingfisher vs. Prior P. Smith, et al. Judgment for plaintiff. Defendants appeal. Appeal dismissed on motion for re-hearing.

<p>1. Courts — Presumption—It is the general rule that all reasonable presumptions and intendments will be made in favor of the proceedings of a trial court.</p> <p>2. New Trial — Motion for — Admonition of Jury — If the court has failed to admonish the jury upon adjournments, as required by law, a motion fer a new trial, on that ground, should allege such failure, and the motion for new trial should be supported by competent evidence showing that fact.</p> <p>3. Trial — Defendant, Presence of — After a careful reading of the record, held: That it shows affirmatively the presence of the defendant at every step of the trial, and that all the proceedings of the trial court were regular.</p>

Error from the District Court of Canadian County. Attachment. Complaint filed Juty 17, 1891, by The Houghton & Upp Mercantile company against Dymont & Lane and Ridge Whitlock. Judgment for plaintiffs. Ridge Whitlock moves the court to set aside judg- ment against him.

Original Proceeding in Habeas Corpus. On the 1st day of January, 1894, John Dossett filed his petition for a writ of habeas corpus. He was tried on an indictment, returned by the grand jury of Logan county into the district court, for the crime of murder. His trial commenced on the 18th day of August, 1893, aud continued from day to day until the 28th day of August, 1893, the court sitting with the powers of a United States district and circuit court.

Error from the Probate Court of Kingñsher County. Action in replevin by M. S. Purdy against B. W. Burchett. Judgment for Purdy for return of property and damages in the sum of $50. The facts are stated in the opinion. Defendant brings error.

Error From the District Court of 0 County. E. M. Carnahan instituted attachment proceedings in the district court of 0 county, on the 18th day of January, A. D., 1894, against A. Gustine, A. Gustine & Co. and E. Gustine. Defendants filed a motion to dissolve the attachment.

Error from the District Coicrt of Logan County. Indictment by the grand jury of Logan county at the March, 1894, term of the district court, for false pretenses. Defendant found guilty. Sentenced two years. Brings case to this court on appeal.

Error from the District Court of Canadian County. Action for personal injury. Held: in common with every other court, that the mere fact that a person attempts to travel a highway, after notice that it is out of repair, is not necessarily negligence; that this depends upon circumstances. (Cases cited.) “But none of these cases were altogether analogous, in their facts, to the present one.

<p>i Habeas Corpus — Writ—By Whom Issued — A writ of habeas corpus may be issued by a judge of the district court, or by any judge of the supreme court, or by order of any judge of the supreme court, by the clerk thereof, or it may be issued by order of the district court or the supreme court, by the clerk thereof</p> <p>2. Habeas Corpus — -Writ—When a Process of the Supreme Court— When a writ of habeas corpus is issued by the clerk of the supreme court, by order of any of the judges, it is then the process of the supreme court, and the supreme court may recall the same and arrest an order made in the case, and remand the prisoner.</p> <p>3. Habeas Corpus— Writ— Contempt— When May Not Discharge from Imprisonment — Section 699, chapter 66, page 881, general section 4578, of the laws of Oklahoma, 1893, provides: “No court or judge shall inquire into the legality of any judgment or process, whereby the party is in custody, or discharge him when the term of commitment has not expired in either of the cases following: * * Third: For any contempt of any court, officer or body having authority to commit; *. Held: A judge of the supreme court may not release a petitioner who is held in custody under a commitment issued upon a judgment holding him guilty of a contempt of the district court.</p>

<p>1. Criminal Actions — Justice Court — Jurisdiction—Justices of the peace in this territory have no jurisdiction to try and determine actions of misdemeanor, except in cases where justices of the peace are specifically given jurisdiction of the offense; and this jurisdiction not having been specifically given, a justice of the peace has no jurisdiction to try and determine a cause arising under §§ i, 13 and 14 of art. 54, ch. 25, of the Oklahoma Statutes of 1893.</p> <p>2. Criminal Actions — Probate Court— Jurisdiction — Probate courts have no jurisdiction to try and determine criminal a'ctions upon complaint and without information, except in those cases where such jurisdiction is specifically given to justices of the peace.</p> <p>3. Criminal Actions — Trial by Jicry of Six Men in Justices' Court Lawful — A law of the legislature of this territory which provides that cases which the justice court has power to hear and determine may be tried before a jury of six men, and'where it gives the defendant the right of appeal to the district court where he may be tried by a jury of twelve men, is not unconstitutional.</p>

<p> Error from the District Court of Beaver County. </p> <p>An appeal is brought here from the action of the judge of the district court of the Second judicial district, at chambers, granting a writ of prohibition against Carter Tracy, probate judge of Beaver county, prohibiting him from further considering an action brought by George H. Healy against O. J. Loof-bourrow, as treasurer, Prank D. Healy, as sheriff, and the board of county commissioners of the county of Beaver, Oklahoma Territory, to restrain the collection of certain taxes.</p>

<p>1. School District— Capacity to Sue— A school district has such an interest in the subject matter, and capacity to sue, in an action brought to restrain the county clerk from taking from the tax roll of such school district, property -which properly belongs to such school district for taxation.</p> <p>2. Power of School Board — To Attach Adjoining and Adjacent :Territory — Under an act of the legislature which provides that territory outside of the limits of the city, but adjoining thereto, may be attached to such city for school purposes upon application to the board of education of said city, by a majority of the electors of such adjacent territory, it is not necessary that the lands attached, as described by the survey, should lie next to or contiguous to the city limits, but lands -which lie adjacent to the city limits but join and are a part of the entire body of lands which are attached to such city for school purposes, may be attached.</p>

Error from the District Gourt of Canadian Gounty. Action of ejectment, broug'ht by Hamlin W. Sawyer against James D. Hurst, to recover the possession of a a tract of school land leased by plaintiff, and for damages.

<p>i. Usurious Interest — May be Recovered. Back — The provision of our statute, regulating usury, which provides: “when a greater rate of interest has been paid than twelve per cent, per annum, the person paying it, or his personal representative, may recover the excess from the person taking it, or his personal representative, in an action in the proper court," is not contrary to public policy, but is valid and authorizes the recovery back of usurious interest paid, in excess of twelve per cent, per annum, the maximum legal rate.</p>

<p>1. Practice in the Supreme Court — Errors Assisted Waived— Where errors are assigned in the petition in error but are not mentioned in the argument or brief of counsel and are not relied upon in the argument or brief for the reversal of the judgment complained of, they will be deemed waived and abandoned and will not be regarded by the supreme court.</p> <p>2. A General Finding of Fact Sufficient — A general finding includes a finding of all the necessary facts to constitute the claim of the party in whose behalf the decree is rendered.</p> <p>3. Presumption as to Issues — Pleadings Not Brought Uj> With Record, s — Where the pleadings upon which the cause was tried in the court below are not brought up with and made a part of the record, we must presume that the issues were such as upon which the court could render the judgment which it did.</p> <p>4. Divorce Law — Alimony—Priority of Liens — Under the divorce law of this territory, adopted by the legislature in 1890, the court in rendering a decree for alimony, having the parties and the property before the court, might render a decree granting the plaintiff alimony and adjudging that the same be a prior lien to that of a chattel mortgage given by the husband to one of the defendants before the court, upon the personal property of the husband, in fraud of the rights of the wife.</p>

Error from the District Goxort of Kingfisher County. STATEMENT OF THE CASE. This action was commenced in the district court of Kingfisher county, by B. V. Cummins against Robinson and Gibson, a co-partnership under the firm name of the Commercial bank.

Error from the District Court of Oklahoma, County. STATEMENT OF THE CASE.

<p>1. Criminal Law — Indictment Arot Objectionable for Duflicity — An indictment which charges that the defendant unlawfully attempted to commit a violent injury upon the person of the prosecuting witness, and then proceeds to state facts constituting the crime of assault with a deadly weapon with intent to kill, is not objectionable for duplicity, the words referring to an attempt not being sufficient to charge a criminal attempt under the statute may be disregarded as surplusage.</p> <p>2. Same — Self Defense — Instruction Sufficient — The court instructed the jury that if one of the defendants shot the prosecuting witness while he was in the act of sticking a hatchet,into the head of the other defendant, the brother of the defendant making the assault, the assaulting defendant honestly believing that his brother would lose his life or receive great bodily injury unless he committed the act constituting the alleged assault. Held: That this was sufficient, and it was unnecessary to give an instruction to the effect that it was the duty of one of the defendants to defend his brother from injury.</p> <p>3. Instructions — Evidence Not in Record — Instrtictions on the Evidence Not Reviewed — This court will not review the action of the district court in giving or refusing to give instructions upon particular matters in evidence where the evidence is not made a part of the record on appeal.</p> <p>4. Same — Reasonable Doubt — Unnecessary Repetition — It is unnecessary for the trial court to give a special instruction upon the question of reasonable doubt when the court has given a proper definition of a reasonable doubt in its general charge to the jury.</p> <p>5. Same — Instruction That Jury Should Consider the Interest of the Defendant, Proper — An instruction of the court which charged the jury, among other things, that they should take into consideration the fact that the defendants were interested parties, in determining the weight that should be given to their testimony, was not improper.</p> <p>6. Self Defense — Right to Prevent Deadly Assault Ufon One's Brother — An instruction to the jury to the effect that if such acts were being done by the person assaulted as would lead the assailant to honestly believe that his brother would receive his death or great bodily injury from the person assaulted unless the assailant committed the shooting complained of, then the assailant would be justified in shooting to defend his brother, contains nothing of which the defendant can complain.</p> <p>7. Indictment — Felonious Assault — What Included Within — An assault with intent to do bodily harm without justifiable or excusable cause is included in the charge laid in an indictment of assault with intent to kill, and under our statute which provides that the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment the defendant may be found guilty of the lesser offense of an assault with intent to do bodily harm.</p> <p>8. Instructions — Not Necessary to Include Lesser Offense — It is not error for the court to fail to instruct the jury that the defendant may be found guilty of a lesser offense included within the indictment and which it is not shown that the evidence tends to prove.</p> <p>g. County Attorney — Improper Statements in Argumejil — It is not error for the trial court to refuse to grant a new trial on account of improper language used in the closing argument by the prosecuting attorney where the language could not necessarily prejudice the defendant, when the trial court directed the jury to disregard such statements.</p> <p>10. Separation of Jurymen — Where new trial was asked in the court below on the ground that one of the jurymen separated a short distance from his fellows, and wherein there was conflicting evidence upon the question of the separation, and the court refused a new trial. Held: We will not disturb this finding.</p>

<p>x. Replevin Bond — StaUitory Provisions a Part of the Bond — Where a statutory bond is given in a replevin action, the provisions of the statute enter into and become a part of the bond.</p> <p>2, Same — Suit Prematurely Brought — Where an action is brought on a replevin bond, given by a plaintiff in a replevin action, and which was to the effect that the plaintiff shall duly prosecute his action and pay all costs and damages which may be awarded against him, and where the statute concerning such bond provided, “No suit shall be instituted on the undertaking * * * before an execution, issued on a judgment in favor of the defendant in the action, shall have been returned that sufficient property whereon to levy and make the amount of such judgment cannot be found in the county,” and where the action was brought after the failure on the part of the plaintiff to duly prosecute his replevin action, but before any judgment was rendered against the plaintiff in the replevin action for damages. Held:' That an action does not lie on such bond until execution is returned unsatisfied upon a judgment for damages in favor of the defendant in such replevin action. .</p>

Error from the Probate Court of Canadian County. STATEMENT OP THE CASE. Plaintiff in error, on May 22, 1893, executed and delivered to defendant in error his promissory note for $355.75, due in fifteen days from date, but upon the payment of interest’ in advance, extensions were made up to February 7, 1894.

<p> Error from the Probate Court of Kingfisher County. </p>

<p>1. If oue is induced by a trick, or a fraud, to give up the possession of his property, and the possession has been for a special purpose, as for security that he will perform his part of a contract, and if, in so surrendering the possession, he still meant to retain the right of property in himself until the full performance of the contract by those with whom he dealt, and the property is appropriated and converted to their own use, by those to whom the possession was thus given, such appropriation and conversion will be larceny.</p> <p>2. If fraud is used in getting possession of property, which possession is not accompanied with the ownership thereof, and the property is afterward converted to his own use by him who has thus acquired possession the fraud will supply the place of trespass in the taking of the possession of the property, and the conversion will be felonious.</p> <p>3. When conspiracy is alleged, while it is important that evidence shall first be given of such conspiracy, yet, upon the undertaking by him who charges the conspiracy that such conspiracy will be shown, and it appears to be necessary and important first to introduce conversations had and" acts done by any one or more of the alleged conspirators in the absence of the rest, that course will be permitted in the discretion of the court.</p> <p>4 The loss of instructions, given by the court to the jury, after the trial and before the case is made up for the supreme court upon appeal, is not ground for reversal.</p>

Original Proceeding in Habeas Corpus. Original action filed in the supreme court for'writ of habeas corpus January 22, 1894, by Matthew McOlaskey, held by the sheriff of Payne comity, Oklahoma Territory.

<p>1. Where public lands are settled upon for townsite purposes, one who improves a lot by erecting a building thereon for purposes of trade, business or residence, is an occupant, as contemplated by act of congress approved May 4, 1890, relating to townsites in Oklahoma, and is entitled to a conveyance from the townsite trustees, although he may have never personally resided upon said lot or in the town or territory, in the absence of any superior right.</p> <p>2. A person who goes into possession of a town lot upon public lands as a tenant of one who has improved the lot by erecting a building thereon, will not be heard to assert a claim adverse to his landlord by reason of occupancy, settlement or improvement until he shall have vacated the premises and surrendered possession to his landlord.</p> <p>3. The doctrine of estoppel applies between landlord and tenant and does not depend upon the validity of the landlord’s title.</p> <p>4. When a married woman rents a house and lot and enters into possession of it with her husband, who resides with her, and he does not at once dissent and repudiate the contract, the lease inures to his benefit and he becomes the tenant of the lessor.</p> <p>5. The interest in a town lot on public lands, acquired by occupancy, may be transferred and conveyed, and the grantee will succeed to all the rights of the occupant as against one who holds as a tenant of the grantor.</p> <p>6. The question of permitting a defendant to plead after default is discretionary with the trial court, and its action will not be reversed unless it appears that such discretion has been abused to the manifest injury of the party complaining.</p>

<p>1. Disbarment Proceedings — Suspension of Attorney — Appeal—An appeal lies to the supreme court, from an order of the district court, suspending an attorney from practice, pending a trial on information for his disbarment.</p> <p>2. Same — Opportunity lo he Heard — A defendant in a disbarment proceeding is not entitled to twenty days’ time, the time allowed to answer the ordinary summons under the code, but may be cited to appear and answer withiD any time that gives him a reasonable opportunity to be heard.</p> <p>3. Same — Change of Venue — The provision of § 3, of ch. 5, of the act of congress, approved December 21, 1893, which authorizes the supreme court or the chief justice to designate any judge to try a particular case, or cases, in any district, when the judge of said district is biased or prejudiced in the case, does not take away from a party his right of change of venue, under § 3930 of the Statutes of Oklahoma, of 1893, and his application for such change of venue cannot be refused on the ground that his proper remedy would be an application for a change of judge.</p>

<p>1. County Attorney — Eligibility — An attorney at law who is suspended from the practice of law in the district court of a county in which he has been elected county attorney, is not eligible to enter upon the performance of the duties of such office so long as the order of suspension remains in full force and not reversed.</p> <p>2. Statutes — Constructio7i of — Reason and Intention — That which is within the reason, purpose and intention of a statute is as much a part of it as if it were within the letter of the legislative act.</p>

<p>1. Criminal Law — Murder Case — Bail Pending Appeal — Under an act of the legislature of this territory, approved February 2, 1895, a defendant who has been convicted of murder and sentenced to life imprisonment is not entitled to bail pending appeal.</p> <p>2. Statute — Repeal of— Effect on Proceedings Pending — Where a remedy depends purely upon a statute giving the same, the repeal of the law pending an action puts an end to the right even as to a pending proceeding.</p>

<p>1. Under the civil procedure, Oklahoma statutes, 1890, the court con-troled the time of filing pleadings, and the making of issues, and under said code it was error to render judgment as of a default on the sustaining of a demurrer to the answer and cross complaint in the absence of defendant and his counsel without giving an opportunity to amend or plead over — no rule or order having been entered setting said matter for a day certain.</p> <p>2. Under code, civil procedure, 1890, a motion for a new trial was filed in time, if filed during the term at which the judgment was rendered.</p>

<p> Error from the District Court of Pottaioatomie County. </p>

<p> Error from the District Court of Logan County. </p>

<p>1. When evidence has been produced below upon all points included in the findings of fact made by the trial court, if such evidence reasonably tends to support the findings, such findings of fact will not be disturbed in this court; and the rule upon this subject is the same when a case is submitted to the court below, without a jury, as when a jury is empaneled to try the cause.</p> <p>2. Under the fourth subdivision of § 5136, of the revised statutes of the United States, which provides that such national banking association shall have power "to sue and be sued; complain and defend in any court of law and equity, as fully as natural persons,” such national banking associations have full power to employ attorneys to complain or to defend.such suits in any court of law or equity; and such ■employment, including the agreement for compensation, may be made by the president of such bank Such employment by the president is a sufficient authorization and employment, and the bank will be bound thereby. The power to complain and defend is not limited to suits in which the bank may be successful; nor is the right of the attorney to recover limited by the character of the questions which may arise in the case.</p>

<p>1. Statute foe Levy of Taxes Mandatory but not Prohibitory— Section 5627 of the Statutes of Oklahoma of 1893, which provides that on the third Monday in July, of each year, boards of county commissioners must levy the necessary taxes for that year, and that they may levy the same at any time after that day, if the statement from the territorial board of equalization has not been received, but that such levy must not be postponed for more than ten days, and that the commissioners must levy the taxes as directed by law, is mandatory in the requirement that the commissioners must levy the taxes as provided, but does not prohibit the levying of the taxes after the expiration of the time, if they are not levied within the time, and a taxpayer may not enjoin the collection of taxes merely because they were levied a few days late.</p> <p>2. Territorial Taxes— When County Commissioners Shall Levy— The county commissioners are only required to make a levy for territorial taxes when the territorial auditor has not transmitted to the • county clerk of the county a statement of the territorial taxes levied by the territorial board of equalization ten days after the third Monday in July, and an allegation that no levy of the territorial taxes was made by the board of county commissioners, without any charge that the territorial board of equalization and auditor had failed to do their duties under the law, does not state a cause of action.</p>