Volume 29 — Oklahoma Reports

Error from District Court, Craig County; T. L. Brown, Judge. Action by IT. S. Hill and J. L. Courtney against R. P. Hawkins. Judgment for defendant before a justice, and plaintiffs appeal to the district court. From an order dismissing- the appeal, plaintiffs bring error.

<p> Error from District Court, Pottawatomie County; W. M. Engart, Judge pro tern. </p> <p>Action between Tee Smith and Stephen -J. Harrod. Eron' the j udgment, Smith brings error.</p>

<p> Error from District Court, Osage County; John J. Shea, Judge. </p> <p>Action between Herbert C. Burt and N. A. Thompson. .From the judgment before a justice, an appeal was taken to the district court to reverse the judgment of that court, and Burt brings error.</p>

<p> Error from Creek County Court; Josiah G. Davis, Judge. </p> <p>Action by S. A. James against Max Meyer. Judgment for plaintiff before a justice was affirmed in the county court, and defendant brings error.</p>

<p>APPEAL AND ERROR — Jurisdiction—Case-Made—Making—Settlement —Notice. No jurisdiction is conferred on tliis court to review errors sought to be presented by a purported case-made, where the same discloses that it was not settled within three days after the date .of judgment or order appealed from, nor within a lawfully extended time, and there is no evidence that the ease-made was ever served upon the defendants in error or their counsel, nor that notice of the time and place of settlement was ever given, nor amendments suggested, nor that the parties were present, nor any showing made that these requirements were waived.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pushmataha County; Malcolm E. Rosser, Judge. </p> <p>Action between Charles E. Douglas and the Clayton Town-site Company, From the judgment, Douglas brings error.</p>

<p> Error -from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by R. T. Dallas against R. W. Pitchford. Judgment for defendant, and plaintiff brings error.</p>

<p> Brror from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by the Stanford Furniture Company against R. W.. Pitchford.- Judgment for defendant, and plaintiff brings error..</p>

<p> Error from Okmulgee County Court; M. M. Alexander, Judge. </p> <p>Action by Hugh Henry against George Hadley. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action by C. Hardin against J. W. Saxon. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Rogers County; T. L. Brown, Judge. Action by Joseph Riley and the United Oil Company against the Willard Oil Company. From an order appointing a receiver for the defendant, it brings error.

<p>Error from District Court, Muskogee County; G. A. Brown, Judge.</p> <p>Action by P. L. Burlingame against O. E. Parks. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CUSTOMS AND USAGES — Pleading—Necessity. As a general rule, a local custom or usage or a custom or usage applying to a special or particular class of business may not be made the basis of recovery in an action, unless such custom or usage is pleaded by the party relying on it; and the exclusion of evidence to establish such usage or custom, in the absence of its having been pleaded, is not error.</p> <p>2. APPEAL AND ERROR — Review—Insufficiency of Evidence. On appeal this court will not consider and weigh conflicting evidence; and, where there is evidence reasonably tending to support the verdict of the jury, the same will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>BROKERS — Action on Special Contract — Recovery on Quantum Meruit. Where plaintiff, a real estate agent, brings an action for commission alleged to have been earned on the sale of land and relies upon a special contract, he cannot recover upon quantum meruit, and it is error to admit evidence establishing the same and to instruct the jury that it may return a verdict in a sum customary for services shown to have been rendered.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Osage County; John J. Shea, Judge. </p> <p>Action by the State, on relation of Plenry H. Montgomery, against the State Election, Board and others. Judgment for defendants, and relator brings error.</p>

<p>Error from Osage County Court; C. B. Bennett,, Judge.</p> <p>Action by IT. G. Ezell against the Midland Valley Railroad' Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action by W. E. MaHarry against J. M. Eatman. Judgment for plaintiff, and lie brings error. Cross-petition by defendant. This is an action of ejectment brought by the plaintiff in error W. F. MaHarry against the defendant in error J. M. Eat-man, in the district court of Garvin county, March 7, 1910, to recover the possession of a certain tract of land situated in said county.

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by T. C. Whitely and others against the St. Louis, El Reno & Western Railway Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>REFORMATION OF INSTRUMENTS — Executory Land Contract. When, through mistake or accident, from an executory written contract or instrument, founded upon a valid consideration, for the sale of real estate, there was omitted matter intended to have been included, it may be reformed, and its specific performance decreed.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Flag Stations. A petition was filed for the establishment and maintenance of a depot and agent at W. This was denied by the Commission. An appeal was prosecuted therefrom. Held, that the same should be granted to the extent of requiring the erection and maintenance of a spur or switch at which one train each way each day should be stopped on flag for the embarking and disembarking of passengers and the delivering of prepaid freight and .receiving of shipments, where the freight was permitted to be paid at the point of destination.</p> <p>(Syllabus by the Court.)</p> <p>Hayes and Kane, JJ., dissenting. ,</p>

<p>Action for the disbarment of Robert F. Blair.</p>

<p>1. BANKRUPTCY — Discharge—Collateral Attack. A discharge in bankruptcy, until set aside or reversed in a direct proceeding, is conclusive upon all parties to the proceedings, and cannot be attacked collaterally.</p> <p>2. BANKRUPTCY — Jurisdiction—When Attaches. For jurisdictional purposes, bankruptcy proceedings are commenced by the filing of the original petition.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Courts Carter County; S. H. Russell, Judge.</p> <p>Action by Tom Robinson against the Ardmore Oil & Milling Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Johnston County; A. T. West, Judge. </p> <p>Action by E. W. Skillern and others against T. C. Jameson and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Brro'r from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by Haidee W. Latham against the Commercial National Bank. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Courts Grady County; Frank M. Bailey, Judge. </p> <p>Action by William A. Welch, Jr., against George W. Eadd. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Okmulgee County; John Caruthers, Judge. </p> <p>Action by James Charles Inman against Elisha Sherrill and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Suit by Clara Neukirchner against Z. T. Bottoms and others. Decree for plaintiff, and defendant Bottoms brings error.</p>

<p>1. • APPEAL AND ERROR — Review:—Discretion, of Court — Setting' Aside Judgment. A ease having been regularly assigned for trial and being duly reached on call, the defendant failing to appear either by counsel or otherwise, the plaintiff appearing, the cause was regularly submitted and judgment rendered thereon. Within due time defendant’s counsel filed a motion to set aside the judgment, setting up facts that in law would excuse him for failing to appear. These facts were controverted, both by oral evidence and affidavits, on the hearing of said motion. The court found against the defendant and overruled said motion. Held, that the court having found against said defendant and exercising his discretion denied said motion, his action will not be disturbed on review here, unless it appears that he abused such discretion.</p> <p>2. INSURANCE — Construction of Fire Policy' — Damages—Loss by Theft. Damages resulting from efforts made in good faith to save property from a fire, by breakage, removal, water, or from loss by theft consequent thereto, are within the loss covered by a policy against damage by fire.</p> <p>(a) The loss by theft must be one of the consequences of the fire.</p> <p>(b) If the loss by theft be expressly excluded by a stipulation in the policy, there can be no recovery for sueh item.</p> <p>3. APPEAL AND ERROR — Modification of Judgment. Where it appears'from the pleadings and the record that an item has been included in the judgment, which is separable, the cause will not be remanded, but as modified judgment will be rendered here.</p> <p>4. JURY — Waiver—Failure of Party to Appear. A certain cause having been assigned and regularly reached on call for trial, the plaintiff appearing, but the defendant failing to appear, constituted a waiver of trial by jury by said defendant; and, the plaintiff having waived of record a jury trial, said cause was properly triable by the court.</p> <p>(Syllabus by the Court.)</p>

<p>INSURANCE POLICY. Same as the syllabus in-Farmers’ & Merchants’ Insurance Company v. J. J. Cuff (No. 837), ante, 116 Pac. 435, heretofore decided on this date.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action by J. J. Cuff against the German-American Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Original action for disbarment of E. M. Carter.</p>

<p> Error from District Court, Washington County; John J. Shea, Judge. </p> <p>Action by Birdie Holland, a minor, by Noah S. Holland, her «guardian, against Eliza Beaver. From a judgment sustaining a demurrer to the petition, plaintiff brings error.</p>

<p> Error from Jefferson County Court; Cham Jones, Judge. </p> <p>Action between J. C. Hartsell and Bob Edwards and A. W. Atwood. From the judgment, Hartsell brings error.</p>

<p>INDIANS — Minor Male Ward — Effect of Marriage on Guardianship. The marriage of a minor male ward, member of the Cherokee Tribe of Indians, of less than one-half Indian blood, does not of itself terminate his guardianship as to his allotment, nor abate the jurisdiction of the county court, and a guardian under such jurisdiction has authority to make a sale of said minor’s allotted lands.</p> <p>(Syllabus by the Court.)</p> <p>Williams and Hayes, JJ., dissenting.</p>

<p>■•Error from District Court, Comanche County; J. T. Johnson„ Judge.</p> <p>Action by Dora Stovall against A. J Stovall. Decree for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Muskogee County; G. A. Brown,' Judge. </p> <p>Action by W. E. Seaver against E. R. Rulison. Judgment for defendant ,and plaintiff brings error.</p>

Brror from Kiowa County Court; J. W. Mansell, Judge. Action by W. M. Barnes and John E. Williams, co-partners doing business as Barnes & Co., against I. G. Manis. Verdict for defendant before a justice, and appeal by plaintiffs was dismissed in the county court, and they bring error.

<p> Error from Wagoner County Court; W. T. Drake, Judge. </p> <p>Action between J. W. Simmons and B. E. Lauffer. From the judgment, Simmons brings error.</p>

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action of J. O. Slankard against the City of Shawnee and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. LANDLORD AND TENANT — Pleading—Bill of Particulars — Demurrer. Where, in an action of forcible entry and detainer brought on a written lease contract for failure to pay the rent provided for therein, it was made to appear that under the contract attached to the bill of particulars plaintiff agreed to furnish certain trees for defendant to plant, and occupation, failure to pay rent, and the statutory notice to quit being duly pleaded, a demurrer to the same will not be sustained because of plaintiff's failure to allege his full compliance with his contract where it is not pleaded nor made to appear that defendants' duty.to pay rent was in any wise contingent.upon the furnishing of the trees.</p> <p>2. PLEADING- — -Demurrer—Bill of Particulars. A-demurrer to a bill of particulars on the ground that there is another action pending between the same parties for the same cause of action should be overruled where it is not made to appear that such fact appears on the face of the pleadings.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Presumptions. Error, to secure reversal, must be shown on appeal. It is never presumed.</p> <p>2. APPEAL AND ERROR — Review—Conflicting Evidence. When controverted questions of fact are submitted to a jury on instructions which are not assailed, and the evidence adduced is conflicting and contradictory, but there is competent evidence reasonably tending to support every material allegation necessary to uphold the verdict, and the trial court renders jridgment in accordance therewith, and a new trial is refused, this court will not disturb the verdict of the jury and the judgment of the court on the weight of such conflicting evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. TELEGRAPHS AND TELEPHONES — Failure to Deliver Message —Damages. Plaintiff's husband, for her use and benefit, January 25, 1908, delivered to the agent of tRe plaintiff in error at Greenwood, Ark., a telegram directed to Ris brother at Haileyville, Okla., reading, "Josie will be there to-night.” This message was sent pursuant to an arrangement previously entered into between them that the addressee would on notice meet the said Josie, who was the wife of the sender. The agent was informed of this arrangement and that plaintiff was about to be confined, and that he was sending her to his brother’s house for that purpose; that it was a message of great importance, and should be rushed through; that Haileyville was a strange town to her, and that his wife would arrive between 11 and 12 o’clock that night, and that no hacks met thq trains at that hour; and that she would have with her a heavy suit case and a two year old child. The train was belated, and plaintiff arrived between 2 and 3 o’clock in the morning. The telegram was not delivered, and plaintiff, finding herself alone, accepted the assistance of an acquaintance for a part of the way in endeavoring to find her intended stopping place, and while walking, carrying the suit case, and taking care of her child, she was ruptured internally in such a way as to cause labor pains, which continued for eight days, resulting in a dry birth with intense agony and suffering, and resulting in local impairment. Held, that the damages suffered were within the Hadley v. Baxen-dale rule, and were proximately caused by the neglect of the company to deliver the message, and that a recovery of $2,000 was not excessive.</p> <p>2. STATUTES — Foreign Statutes — Pleading and Proof. Where reliance is had to support either a claim or a defense upon the laws of some other state, the same must be pleaded and proved in order to be rendered available, and, where this is not done, the presumption obtains that they are the same as the laws of this state.</p> <p>(Syllabus by the Court.)</p>

<p>Action by the State, on the relation of John E. Wells, for writ of mandamus against M. E. Cline.</p>

Error from District Court, Comanche County; J. T. Johnson, Judge. Quo warranto by the State, on the relation of J. A. Eain, county attorney, against J. E. Armstrong and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Cherokee'County; John H. Pitchford, Judge. </p> <p>Action by P M. Lutz against the Tahleqüah Water Company. Judgment for defendant, and plaintiff brings error.</p>

<p>NEW TRIAL — Appeal and. Error — Dismissal. The failure to file a motion for a new trial within three days from the rendition of the verdict or decision, or within the term at which the same was rendered, may be excused by showing that the party was unavoidably prevented from so doing; and where the trial court has taken up and considered such motion and found that such unavoidable casualty existed, but denied the motion on the ground that the trial in said court was without error, a motion in this court to dismiss the appeal on the ground that the questions in the record could not be reviewed without the proper filing of a motion for a new trial in the lower court, and that such had not been done in due time, will be denied.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washington County; T. L. Brown, Judge. </p> <p>Action by Robert B. Ross and Fannie D. Ross against J. G. Wright and James Day. Judgment for defendants, and plaintiffs bring error.</p>

<p> Mrror from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action between George M. King and another and Ed I-Iock-aday & Co. From the judgment, King and another bring error.</p>

Error from Pontotoc County Court; Joel Terrell„ judge. Action by the Fidelity Mutual Life Insurance Company against C. C. Hargis and others. Judgment for plaintiff, and defendants bring error.

Action by Ed. J. Coyle and another against the St. Louis & San Francisco Railroad Company and the Missouri, Kansas & Texas Railway Company. From an order of the Corporation Commission adjudging the St. Louis & San Francisco Railroad Company guilty of contempt, it appeals, making the Missouri, Kansas & Texas Railway Compan)'- an appellee. On motion of the Missouri, Kansas & Texas Railway Company to dismiss.

Error from District Court} Oklahoma County; Geo. W. Clark, Judge. Action by Abner B. Brown, as trustee of Ezra S. McLean and as executor of Pamelia E. Wilson, against Roscoe S. Hill-man, Alice B. Beach, and J. W. Webb and R. L. Robards, executors of the estate of Roscoe S. Hillman. Judgment for defendants, and plaintiff brings error.

<p>Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p> <p>Action by E. D. Reasor against Pottawatomie County. Judgment for plaintiff, and defendant brings error.</p>

<p>1. TRIAL — Instructions—Irrelevant Issues. It is error to instruct on an irrelevant issue, not raised by the pleadings, when such instruction is calculated to mislead the jury.</p> <p>2. SALES — Implied Warranty. An implied warranty that an article will be fit for a particular purpose may be inferred from a contract to make or supply it to accomplish that specific pirpose, because the accomplishment of the purpose is the essence of the undertaking. But no such warranty arises out of the contract 'to make or supply a specific, described, or definite article, although the manufacturer or dealer knows that the vendee buys it to accomplish a specific purpose, because the essence of this contract is the furnishing of the specific article, and not the accomplishment ,of the purpose.</p> <p>3. SALES — Action for Price — Recoupment—Breach, of Warranty. Where upon the sale of a fire engine the vendor warrants that ‘1 all material and workmanship is warranted to be of the best, and we agree to replace at our expense any defect in material or workmanship that may develop within two years,” the vendee may, upon being sued for the purchase price, retain the engine and set up its damages for breach of warranty by way of recoupment, without giving the vendor notice of defects in material or workmanship, or an opportunity to replace the same.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Oklahoma County Court; Sam Hooker, Judge. </p> <p>Action by C. D. Hesler and J. G. Hesler, partners, against P. A. Coldron. Judgment for defendant, and plaintiffs bring error.</p>

<p> Error from Johnston County Court; Nick Wolfe, Judge. </p> <p>Action by N. E. Roberts against the American National Bank of Tishomingo. Judgment for plaintiff, and defendant brings error.</p>

Brror from Superior Court, Logan County; J. M. Sandlin, Judge. Action by Elizabeth B. McNeal against Fred W. Ritterbusch, treasurer of Logan county, and others. From an order dissolving a temporary injunction, plaintiff brings error.

<p> Mrror from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Arthur Walcott and others against J. H. Dennes and others, directors of school district. Judgment for defendants. Plaintiffs bring error.</p>

<p>APPEAL AND ERROR — Review—Scope—Failure to Move for New Trial. Where the plaintiff waived all errors of law, if any, committed on the trial, by failing to file a motion for a new trial, and there is no error apparent on the face of the record, there is nothing presented to this court for review.</p> <p>(Syllabus by the Court.)</p>

<p>Error from McClain County Court; E. E. Glaseo, Judge.</p> <p>Action by G. W. Giles against A. D. Latimer. Judgment for plaintiff, and defendant brings error.</p>

<p>MECHANICS’ LIENS — Lien Statement — “Material Furnished.” Where the last item of charge hut one of an itemized account and lien statement filed by a subcontractor, pursuant to Snyder’s Comp. Laws of Okla. 1909, secs. 6151-6153, was for material furnished and actually used in the construction of the building, and the last item of charge was for material not actually so used, held, that the latter material was not “furnished” within the contemplation of the statute, and that the statutory 60 days within which to file said lien statement began to run from the date of said last item hut one, and, having run at the time of the filing of said statement, no lien was fastened upon the property.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pittsburg County; Preslie B. Cole, Judge. </p> <p>Action by John Woods against R. I. Bond and others. From a judgment of dismissal and denial of a motion to reinstate the cause, plaintiff brings error.</p>

Error from Kiowa County Court; I. IV. Mansell, Judge. Actions by the Southern Trading Company against George R. Ray. Actions were consolidated, judgment rendered, for plaintiff, and Ray brings error.

Error from District Court, Payne County; L. M. Poe,. Judge. Action by the Farmers’ Mill & Elevator Company against C. K. Lewis. Judgment for defendant before a justice. On appeal to the district court, the cause was dismissed, and plaintiff brings error.

Error from District Court, Seminole County; A. T. West; Judge. Action by Samuel Bailey against the Exchange Bank of We-woka and others. From an order granting a new trial and refusing to vacate same, defendants bring error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Mandamus by the State, on relation of Whit M. Grant and others, against Dan V. Lackey and others to compel the surrender of the books, records, funds, and other property of the city, claimed to be held by them in an official capacity. Judgment for relators, and respondents bring error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Suit by the American Baptist Plome Mission Society against Quentin Garrett and others. Judgment for plaintiff, and Garrett brings error.</p>

<p> Jftrror from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Ejectment by Azelda Cyr against Dora-Walker, Lula Walker, Minnie Walker, Charles Walker, Melvin Walker, and E. C. Nichols and E. W. Miller, as executors of the estate of James Walker, deceased. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Greer County; G. A. Brown, Judge.</p> <p>Action by D. D. Tilley against Frank M. Overton, County Treasurer. From an order vacating a temporary injunction, plaintiff brings error.</p>

<p>Error •from District CourtJ Muskogee County; Malcolm E. Rosser, Judge.</p> <p>Action by the First Bank of Hoffman against Henry Harrison. Judgment for defendant, and plaintiff brings error.</p>

<p> JJrror from District Court, Murray County; R. McMillan, Judge. </p> <p>Action by R. Marlow and others against School District No. 4, Murray County, and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from District Court, Muskogee County; John H. King, . Judge. </p> <p>Action between the Boynton Land, Mining & Investment Company and Charles F. Runyan. From an order denying a new trial, the Investment Company brings error. On motion to dismiss.</p>

<p>EJECTMENT — New Trial as of Eight — Effect of Statehood. Under the laws in force in the Indian Territory at the time of the erection of the state, the losing party in an ejectment suit was not entitled as a matter of right to a second trial.</p> <p>(a) As to ejectment actions pending in the United States courts in the Indian Territory at the time of the admission of the state, and afterwards transferred to and finally determined in a state district court, the losing party as a matter of right was not entitled to a second trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Wagoner County; I. H. King, Judge. </p> <p>Action between Hugh McDonald and others and Charles Wilson. From the judgment, McDonald and others bring error.</p>

<p> Error from Washington County Court; H. H. Montgomery, Special Judge. </p> <p>Action by Charles Lavine against J. D. Cox. Judgment for plaintiff, and defendant brings error.</p>

Error from Kiowa County Court; J. W. Mansell, Judge. Action by PI. C. Wey and others against the City Bank of I-Iobart and others. Judgment for defendants, and plaintiffs bring error.

<p>1. APPEAL AND ERROR — Objections Below — Necessity—Pleadings. Neither any motion having been made for judgment on the pleadings nor any objection to the introduction of evidence on the ground that the answer did not state facts sufficient to constitute a defense, but issue being joined by reply, and evidence received and the cause determined and final judgment rendered thereon in the lower court, the sufficiency of the answer will not be permitted to be raised for the first time on review in this court.</p> <p>(a) The pleadings here, under such circumstances, will be presumed to have been amended, if necessary, to conform to the evidence.</p> <p>2. APPEAL AND ERROR — Trial—Review of Conflicting Evidence —Findings. Same as that in Bretcb Brothers v. Winston & Son, 28 Olda. 625, 115 Pac. 795.</p> <p>(Syllabus by the Court.)</p>

<p>. Error from District Court, Woodward County; R. H. Lóofbour-rozv, Judge.</p> <p>. Action by the M. Rumley Company against Millie P. Her-ron. From a judgment for plaintiff, the defendant brings error.</p>

<p> Error from McCurtain County Court; T. J. Barnes, Judge. </p> <p>Action by Winnie Colbert against B. Gibson. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Muskogee County Court; W. C. Jackson, Judge. </p> <p>Action by the Inter-Ocean Newspaper Company against J. G. Diamond and G. M. Swanson. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court„ Garvin County; R. McMillan, Judge. </p> <p>Action by Billy Keel and Lizzie Keel against Ed Good and Jeff Gabbert. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by Milo E. Lawrence against Katie M. Estes and the unknown heirs of Julius.M. Estes, deceased. Judgment for defendants, and plaintiff brings error.

<p>RAILROADS — Train Service — Interstate Commerce. Reversed on the authority of St. L. & S. F. R. Co. v. Reynolds et al., 26 Okla. 804, 110 Pae. 668.</p> <p>(Syllabus by the Court.)</p>

<p>1. INNKEEPERS — Liability—Goods of Commercial Traveler. Where property is brought to a hotel for the purpose of sale or show, such as the goods of commercial travelers, the law does not hold an innkeeper to his strict liability, but only to the exercise of ordinary care and answerable for negligence.</p> <p>2. INNKEEPERS — Negligence—Question for Jury. Where, from the facts shown by the evidence, reasonable men might draw different conclusions respecting the question of negligence, it must be submitted to the court or jury trying the cause.</p> <p>(Syllabus by the Court.)'</p>

<p> Error from District Court, Pittsburg County; Preslie B. Cote, Judge. </p> <p>Action between the National Refrigerator & Butchers’ Supply Company and John Elsing. From an order granting a new trial, the Supply Company brings error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Mandamus by J. T. AVelch against R. M. Edwards and others, composing the Board of Trustees of Et'. Gibson. AVrit issued, and defendants bring error.</p>

<p> Error from District Cotirt, Comanche County; J. T. Johnson, Judge. </p> <p>Action by H. Handverker against S. Epstein. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Muskogee County Court; W. C. Jackson, Judge.</p> <p>Action by A. L. Damerson against J. K. McClaren. Judgment for defendant, and plaintiff brings error.</p>

<p>1. LANDLORD AND TENANT — Lease—Construction—Covenant for Quiet Enjoyment. The following clause in a lease of real estate1 construed to be a covenant for quiet enjoyment: “The said party of the first part (the lessor) agrees that during the term of this lease to defend the party of the second part in peaceable possession of said premises. In case the party of the second part should be molested, the party of the first part and the party of the second part choose a man each to arbitrate the difference. Should they disagree they choose a third man, and the decision of the three be final without remark.”</p> <p>2. SAME — Action for Breach of Covenant — Mere Intruders. To sustain an action for the breach of a covenant for quiet enjoyment in a lease, it is necessary for the plaintiff to show that he has been prevented from taking possession of the leased premises, or that his quiet enjoyment has been hindered or disturbed by the lessor, or some person deriving their right or title through him, or from a paramount title; a hindrance or disturbance by a mere intruder is not sufficient.</p> <p>(Syllabus by the Court.)</p>

<p>1. STATUTES — Law of States — Necessity of Pleading and Proving. In order to take advantage of a law of a sister state, it must be pleaded and proven;' otherwise it will be presumed to be the same as the law of the state of the forum on the same subject.</p> <p>2. CARRIERS — Loss of Freight — Limitation of Liability. Under the law in force in Oklahoma prior to statehood, a provision in a shipping contract limiting, in consideration of a reduction in freight charges, the liability of a carrier for household goods lost in transit to a stipulated sum was lawful and enforceable.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Tulsa County; L. M. Poe, Judge.</p> <p>Action by L. FI. Johnson and wife against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>COUKTS — Transfer of Causes — Probate Matters — Jurisdiction. Under section 1, c. 16, art. 3, Sess. Laws 1907-08, the county court of Bryan county had the power to make an order transferring a probate cause to the domicile of the minor in Ohoctaw county on a petition filed more than 60 days after the passage and approval of said act.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by James M. Brooks against the E. Van Winkle Gin & Machine Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal from the Corporation Commission.</p>

<p>INDIANS — Mortgage toy Allotteei — Validity. A mortgage toy an allottee' of his lands, exclusive of his homestead, in the Creek Nation, executed and delivered before the expiration of five years from the date of the approval of the Supplemental Creek Agreement, which was proclaimed toy the President on August 8, 1902, (32: Stat. 2021; Act June 30, 1902, c. 1323, 32 Stat. 503), but subsequent to Act Cong. April 21, 1904, c. 1402, sec. 1, 33 Stat. 204, the restrictions against the allottee's alienation of such land having been removed by the Secretary of the Interior under said Act April 21, 1904, is a valid and subsisting security, and may be enforced.</p> <p>(Syllabus by the Court.)</p>

<p> Brror from District Court, Logan County; D. M. Tibbetts, Judge-Pro Tempore. </p> <p>Action by Rettie Skinner and W. J. Skinner against William Scott and wife. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. EVIDENCE — Parol Evidence Affecting Writing — Incomplete Writing. While a written contract cannot be contradicted by parol evidence, it is permissible, where the writing does not purport to set out' the entire contract, to show by parol other stipulations, not inconsistent with those expressed. Where a contract rests partly in parol, that part which is in writing is not to be contradicted by parol evidence.</p> <p>2. APPEAL AND ERROR — Review—Prejudicial Effect of Error. Parol evidence having been received over objection, which contradicted the written instrument, and which from the record we cannot say did not influence the finding of the jury against plaintiff in error, held, reversible error.</p> <p>3. APPEAL AND ÉRROR — Brief—Setting Out Instructions. Where a party complains on account of instructions given, but fails to set out in totidem verbis in his brief separately the portions to which he objects or may save objections, the same will not be reviewed on appeal here.</p> <p>(Syllabus by the Court.)</p>

<p>1. ACTION — Grounds—Injury Without Wrong. A railway company operating within the scope of its power, has the right to the use of its property and the lawful enjoyment thereof, and if, in the enjoyment of this right, a loss occurs to another, it is a wrong for which there is no liability.</p> <p>2. WATERS AND WATER COURSES — Natural Water Course— Liability for Pollution. A railway corporation which erects a roundhouse upon its own land, and in connection therewitn constructs facilities for bathing its employees and washing its engines, is not liable in damages to persons residing along a natural water course for injuries arising from a stagnant pool upon said water course, formed by the water used by said corporation, and other water naturally flowing into said course gathering in a depression on the land of a third person about four blocks from the place the water from the roundhouse empties into the water course, if said railway corporation was free from negligence or malice, and used due care in the erection and use of such facilities.</p> <p>(Syllabus by the Court.)</p>

<p>BOWER — Right to Bower — Beed Executed Before Marriage — Suit to Reform. Where an unmarried man, in that portion of the state formerly known as Indian Territory, prior to statehood, made and delivered, a deed purporting to convey a certain tract of land, but which, by and through the mutual mistake of the parties, failed to correctly describe the land sold, and after the marriage of the said grantor suit is brought for reformation of the said deed, and to quiet the title in the grantee, the wife of the grantor is not entitled to judgment allowing her dower in the land. .</p> <p>(Syllabus by the Court.)</p>

<p>1. CAEEIEES — “Baggage”—Definition. Under the laws of the territory of Oklahoma, as continued in force by section 2 of the Schedule to the Constitution, “baggage” which the common carrier of persons must receive and transxiort without charge, except for an excess of weight, means only such ’ articles as are intended for the use of the passenger whilst traveling, or for his personal equipment.</p> <p>2. CAEEIEES — Injury to Household Goods or Wearing Apparel — ■ Measure of Damages. As to household goods or' wearing apparel, the measure of damages is the difference in their actual value just jsrior to and subsequent to the injury, and not the difference in the market value of similar goods at such time at the nearest place where such market obtains.</p> <p>3. PAETIES — Joinder of Parties — .Separate Interests — Damages to Property. Where two or more persons have a separate interest in property and sustain a separate damage thereto, they must sue separately, and cannot join in the same action, even though their several injuries were caused by the same act.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Final Order — Vacating Default Judgment. An order vacating and setting aside a judgment by default, for the purpose of permitting the parties against whom the judgment was rendered to answer and defend, is not a final order, but is interlocutory, from which no appeal lies to the Supreme Court.</p> <p>(Syllabus by the Court.)</p>

<p>«SCHOOLS AND SCHOOL DISTRICTS -r Separate Schools — Maintenance — Statutes. The act of March 6, 1901, entitled “An Act providing for the establishment and maintenance of separate schools for the white and colored children and for other purposes,” was continued in force in the state by section 2 of the Schedule to the Constitution, (a) By said act, under section 9, article 10, of the Constitution, a tax may be levied by the board of county commissioners of Logan county, not to exceed two mills, for the support and maintenance of separate schools.</p> <p>(Syllabus by the Court.)</p>

<p>ON Rehearing.</p> <p>Action by James A. Powers and A. H. Brown against B. F. Van Dyke and Rose Molinari. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Paul B. Macoughtry against C. C. Ayers. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie County; W. N. Maben, Judge. </p> <p>Action between the First National Bank of Shawnee and the Oklahoma National Bank of Shawnee. From the judgment the former brings error.</p>

Appeal from the State Corporation Commission. . Action by E. IT. Westenhaver and others and the State of Oklahoma against the Pioneer Telephone & Telegraph Company. Judgment for plaintiffs, and defendant appeals.

<p>INDIANS — Lands — Allotment — Contracts — Town Sites. Plaintiff brought action of ejectment to recover ‘possession of certain lots in an addition to the town of H., in the Creek Nation, deraigning title through an allotment duly and regularly made by a Creek freedman, selected June 21, 1901, and for which patent was after-wards issued. Defendant answered, setting up facts from which it appeared that the land embraced in the allotment was on the 14th day of November, 1898, included within the corporate limits of the said town of H., and that one B., defendant’s grantor, had, prior to 1900, secured the possessory right of the Creek citizens then lawfully in possession of the same and had improved the same by erecting a dwelling and placing other improvements thereon; that thereafter, and on November 17, 1901, the town site of 'H. was segregated and approved by the proper authorities, from which was excluded the improved lots in controversy; that, thereafter, and in the spring of 1902, defendant purchased the property and possession of the said B., and is claiming title to and attempting to hold and occupy the same thereunder. To this answer plaintiff filed a demurrer, which was by the trial court sustained. Held, not error.</p> <p>(Syllabus by the Court.)</p>

<p>1. DISMISSAL AND NONSUIT — Payment of Costs. Under section 5919, Compiled Laws of Oklahoma 1909, an action may not be dismissed without an order of court, except on the payment of the costs accrued.</p> <p>2. COSTS — Stipulations as to Judgment — Enforcement. Where the parties stipulate for the settlement of an action, providing that each shall pay his own costs, the court does not thereby lose jurisdiction thereof, but may retain the same, award and tax costs, and render judgment therefor in accordance with the terms of the stipulation.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by A. F. Ross, administrator of the estate of W. W. Hampton, against J. C. Hampton. On the death of Ross, James A. Culberson was substituted as administrator, Judgment for plaintiff, and defendant -brings error.

<p>1. HABEAS CORPUS — Burden of Proof — Want of Jurisdiction.' In habeas corpus, if the process is valid on its face,, it will.be deemed prima facie legal, and the prisoner assumes the burden of impeaching its validity by showing a want of jurisdiction.</p> <p>2. LARCENY — Intent—Taking of Estray. To constitute- larceny of an estray, animus furandi must exist at the time defendant first took possession of the animal.</p> <p>3. LARCENY — Plea of Not Guilty — Issues—Burden of Proof. The plea of not guilty puts in issue the averment in the indictment of the place where the larceny was committed, also the animus fu-randi, and imposes on the prosecution the necessity of proving the locus delicti and the animus furandi.</p> <p>4. HABEAS CORPUS — -Venue—Impeachment of Finding. Where, on a plea of not guilty to an indictment for larceny, the jury found the defendant guilty as charged in the indictment, and, in effect, that the prisoner committed the offense within the jurisdiction of the court, as alleged, he cannot impeach the finding on habeas corpus by showing that the place where the offense was committed is without the jurisdiction of the court.</p> <p>. (Syllabus by the Court.)</p>

Error from District Court, Logan County; A. H. Huston, Judge. Submission of controversy by C. R. Havinghorst, City Treasurer of Guthrie, against Fred W. Ritterbusch, County Treasurer of Logan County. Judgment for plaintiff, and defendant brings error. This is a proceeding instituted in the court below upon an agreed statement of facts, for the submission of a controversy, under the provisions of section 4717 of Wilson’s Rev. & Ann. Statutes.

<p>1. TAXATION — Equalization—Appeal—Eight. An appeal lies to (.lie courts from the action of equalization boards in assessing property.</p> <p>2. TAXATION — State Board Equalization — Issues on Appeal. Under Laws 1910, e. 87, § 1, on appeal from the State Board of Equalization to the Supreme Court, the issues are confined to those presented to the Board of Equalization.</p> <p>3. SAME — Trial De Novo. Laws 1910, c. 87, § 1. provides that no matter shall be reviewed on appeal from the State Board of Equalization to the Supreme Court which was not presented to the board. Held that, on appeal to the Supreme Court from an assessment of the property of a telegraph company by the State Board of Equalization, there being no provision for certifying up the evidence taken by the board, the issues heard before the board are triable de novo, and the evidence may be introduced by both parties; it not being confined to that before the State Board.-</p>

<p>Brror •from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p> <p>Action between James R. Brashear and Lula M. Brashear.</p>

<p>Brror from Superior Court, Pottawatomie Coimty; George C. Abernathy, Judge.</p> <p>Action between James R. Brashear and Lula M. Brashear.</p>

Error from District Court, Woodward County; R. H. Loof-bourrow, Judge. Action by John Raynor against the City of Woodward and others. From an order granting a temporary injunction, defendants bring error.

Error from District Court, Logan County; A. H. Huston, Judge. Application by the State, on the relation of the Board of Education of Oklahoma City, for a peremptory writ of mandamus to Charles West, Attorney General, and Ex Officio Bond Commissioner. Judgment for defendant, and the State brings error.

Error from the United States Court for the Western District of the Indian Territory, sitting at Tulsa; William R. Lawrence, Judge. Action by Henry Morrison and another against A. E. Blackburn. From a judgment for plaintiffs, defendant brings error. Defendants in error brought this action in the United States Court for the Western District of the Indian Territory prior to the admission of the state to cancel a certain deed.

<p>HAILROADS — Establishment of Highway Crossings — Authority of Corporation Commission — Writ of Prohibition. The jurisdiction to open public highways and crossings over railway rights of way is vested in the local authorities and not in the Corporation Commission of the state; and, where no highway or crossing has been lawfully established and opened over the right of way of a railroad, the said Commission has no jurisdiction to determine the character of the crossing to be provided, and require -its installation, and, where in such a case it makes an order requiring a specific kind of crossing, jurisdiction is vested in this court to issue a writ of prohibition to prevent its enforcement.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROAD CROSSINGS. Syllabus same as in the case of St. Louis & San Francisco Ry. Co. v. Love! et al., ante, 118 Pac. 259.</p> <p>(Syllabus by the Court.)</p>

<p>JUDGMENT — Petition to Set Aside — Newly Discovered Evidence — Demurrer. In a proceeding brought to set aside a judgment and to secure a new trial on the ground of newly discovered evidence, it is not error to sustain a demurrer to plaintiff’s petition, in which there is an absence of any showing of diligence, or where the alleged evidence would be incompetent, or where the facts were within the knowledge of the plaintiff at the time of the trial.</p> <p>(Syllabus by the Court.)</p>

<p>1. MUNICIPAL CORPORATIONS — Sewerage Construction Contracts —Relations of Parties. The contract provided that the construction of the sewer system should be carried on and prosecuted during weather suitable, as the city's engineer might determine, the same to cease during such intervals as said engineer should deem advisable; that said engineer might, at any time, change form or plans, grade or sections, elevation or location of any parts thereof, and if such' changes increased the amount of work, material, or both, same was to be paid for pro rata at the bid price, and if it decreased the cost, deduction to be made in proportion; ■ that all lines, grade stakes, reference points and other location details were to be furnished by the city's engineer, the same to be carefully observed and preserved; that if the mayor and council saw fit they might submit to the contractor orders, directions, and instructions for the carrying out of said contract, which should be by him obeyed; that the mayor and council should have full authority over said work, or they might delegate same to an engineer; that said work should be commenced and carried on from point to point as designated by said engineer, who, in connection with the mayor and council, should have general supervision thereof in person, or by properly appointed inspectors; that if, at any time, any one employed by the contractor appeared to such inspector to neglect or refuse to obey orders, or to be incompetent, unfaithful, disorderly, or failed to show proper interest in his'work, the contractor, on request of such inspector, should discharge such party and not re-employ him. Held, that the construction company is not an independent contractor.</p> <p>(a). MASTER AND SERVANT1 — Sewerage Construction Contracts— Relation of Employees to City. The relation of master and servant existed between the employees of said construction company and the city of Shawnee.</p> <p>2. NEGLIGENCE — Sewerage Construction Contracts — Assignment-Injuries to Employee — Liability of Assignor. The city of Shawnee let a contract to C. T. D. for the construction and installing of a sewerage system, without any restrictions against the assignment thereof. C. T. D. assigned the same to a construction company; in the work of the construction of said system an employee of said Construction company was injured on account of the negligence of said company in not furnishing him a safe place to work. Held, that said contract was assignable, and as to the employees of said company who were injured solely on account of the negligence of the company as to said employee, which negligence did not grow out of the violation of a public duty, that said O. T. D. Co. was not liable therefor.</p> <p>3. APPEAL AND ERROR — Continuance—Discretion of Court. After the closing- of the evidence, plaintiff was permitted to amend his pdeadings. The defendants then moved for a continuance on the ground of surprise and the reasonable necessity of the introduction of additional evidence thereon, without specifically setting out the names of the witnesses or the evidence that could probably be produced on another trial, or setting out facts so as to excuse them from specifying the names of the witnesses and the substance of such evidence. Held, that the denial of this motion does not appear to be an abuse of discretion.</p> <p>4. APPEAL AND EREOE — -Amendment of Pleadings — Discretion. , During the trial the plaintiff offered evidence as to the expenses incurred during his illness, growing out of the alleged injury, for medical attention, medicines, etc. The same was objected to on the ground that such issue was not raised by the pleadings. The pleadings were then permitted to be so amended, when the evidence was admitted. Held, under the record, not to be an abuse of discretion.</p> <p>(a). TRIAL — Instructions on Damages — Evidence to Justify. The evidence admitted was to the effect that the plaintiff, during his illness occasioned by said injuries, was attended by four physicians, but neither the number of times of such attendance nor the reasonable value thereof was proved. Held, error to instruct the jury that, if they found the issues in favor of the plaintiff, in assessing the damages they might take into consideration the expense incurred for medical attention, etc., as a part of the recoverable damages.</p> <p>5. PLEADING — Amendment During Trial. The permitting of the amendment of plaintiff’s petition, under the facts in the record, held not to be error.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Roger Mills County; G. A. Brown, Judge. Action by Walker Huff and W. T. Bonner against E. E. Coffey, with summons in garnishment against the First National Bank of Elk City. Judgment for plaintiffs, and garnishee brings error.

From an order of the Corporation Commission in favor of J. W. Sutton and others, against the St. Louis & San Francisca Railroad Company, the railroad company appeals. On rehearing. On rehearing.

<p>1. RAILROADS — Interurban Companies — Corporate Powers. A corporation formed under the general laws of the state, in pursuance of section 1408, Compiled Laws of Oklahoma 1909, with the power to use electricity for the propulsion of its cars - and rolling stock, in addition to the powers exercised by railroad corporations generally, may, with the consent of .the authorities of any city or town in the state of Oklahoma located upon or along its lines, construct a system of street railways upon such streets and upon such terms and conditions as' may be agreed upon between such corporations and such city or town, and may-also accept lighting contracts with such cities or towns, to supply the said cities or towns or the inhabitants thereof with light or electric current for power, or such railways or such corporation may also acquire by purchase or consolidation plants, franchises, coptracts, good will, and other property of any existing l( street railway or lighting company, as provided by section 1409, Compiled Laws of Oklahoma 1909.</p> <p>2. CORPORATIONS — Charters—-Measure of Powers. The charter of a corporation, read in connection with the general laws applicable to it, is the measure of its p'owers.</p> <p>3. MUNICIPAL CORPORATIONS — Franchises — Amendment — Submission to Popular Vote. Section 5a, article 18, of the Constitution, which provides: "No municipal corporation shall ever grant, extend, or renew a franchise, wi.thout the approval of a majority of the qualified electors residing within its corporate limits, who shall vote thereon at a general or special election; and the legislative body of any such corporation may submit any such matter for approval or disapproval to such electors at any general municipal election, or call a special election for such purpose at any time upon thirty days' notice; and no franchise shall be granted, extended, or renewed for a longer term than twenty-five years,” applies to an original franchise or to a renewal or extension of the period for which a grant has been made, and does not apply to a mere extension or enlargement of the facilities which the franchise holder employs in exercising a power previously granted.</p> <p>4. STREET RAILROADS — Franchises — Amendment—Constitutional Restrictions. The amendment of a section of an ordinance granting a franchise passed by the city council of a city of the first class by providing that an electric street railway may extend its tracks generally throughout the city and use the streets thereof’ for that purpose notwithstanding the original franchise named certain streets which might be used for that purpose, is not repugnant to that part of section 5a, article 18, of the Constitution which provides that “no franchise shall be granted, extended or renewed for' a longer term than twenty-five years.”</p> <p>5. INJUNCTION — Street Railroads — Eminent Domain — Damages to Abutting Lots. Persons owning lots abutting upon the streets of a city of the first class, upon which an electric street railway company is about to lay its tracks with the consent of the city, are not entitled to a writ of injunction to restrain the progress of such work upon the ground that the consequential damages accruing to said lot owners by the additional servitude laid upon the street have not been first ascertained and paid.'</p> <p>(Syllabus by the Court.)</p>

<p>1. DAMAGES — Elements—Breach of Building Contract. Where a clause of a building contract which provides that under certain circumstances the owner shall be at liberty to terminate the employment of the contractor and take possession of the building for the purpose of completing it, is violated by the owner by terminating the employment of the contractor and entering into possession without right, the primary damage, where the contractor elects to go for damages for breach of contract, is the amount which he has been induced to expend on the faith of the contract, including a fair allowance for his own time and services, and if he chooses to claim for anticipated profits, he may do so, subject to the rules of law as to the character of profits which may be thus claimed.</p> <p>2. SAME — Action of Contractor — -Evidence—Books. In an action by the contractor to recover damages from the owner upon the above theory, the contractor’s books of original entries would be admissible and competent evidence to prove the work done and material furnished and the value thereof.</p> <p>S. EVIDENCE — Admissibility of Books. To justify the admission of a party’s books of account on his own behalf, it is incumbent upon him to show by proper evidence that the record of the transactions is a faithful and honest one.</p> <p>4. SAME — Verification by Bookkeeper. Entries in a book of accounts kept by a bookkeeper employed for that purpose must be verified by the bookkeeper, if alive and accessible.</p> <p>5. SAME — Admissibility of Ledgers. A ledger is a book of accounts in which are collected and arranged, each under its appropriate head, the various transactions scattered throughout the party’s journal or day book, and is therefore not a book of original entries within the rule.</p> <p>6. DAMAGES — Anticipated Profits — Evidence. Under the circumstances of this case, the breach of.the original contract will not entitle the plaintiff to recover as anticipated profits the gains and profits of subcontracts entered into by him as preparatory and subsidiary to the fulfillment of the principal contract.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Noble County; W. M. Bozvles, Judge.</p> <p>Action by the Perry Water, Light & Ice Company against the City of Perry. Judgment for defendant, and plaintiff brings error.-</p>

<p> Error from District Court, Bryan County; Robt. Crockett, Judge. </p> <p>Action by Ben Ceaphus against the Phoenix Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kay County; W. M. Bowles, ludge. </p> <p>Action by J. W. Lynch against A. S. Perryman. Judgment for defendant, and plaintiff brings error.</p>

<p>1. HIGHWAYS — Taxation — Use of Funds — Official Duties and Powers. Under section 1 of an'act approved March 7, 1903 (Sess. Laws 1903, p. 240; sec. 7867, Comp. Laws 1909), the board of county commissioners may levy a general road and bridge tax on all taxable property in such county, and such fund when collected may be used in the discretion of such board in the building of roads and bridges in any portion of such county.</p> <p>(a) Such fund may be expended by such board for the purpose of purchasing road machinery fo be used by the township officers in the construction and repairing of roads.</p> <p>(b) Such machinery remains the property of the county, to be used by the township board for such purposes, with the consent of the board of county commissioners.</p> <p>2. APPEAL AND EEEOE — Presumption—Burden to Show Error. Error must affirmatively appear to have been committed in the exclusion of evidence in the trial court- before a reversal on such ground may be had in this court.</p> <p>(a) Certified copies of the records of G-. county, relating to the transaction on which the action was based, having been offered in evidence by the plaintiff in error. the defendant in error objected, on the ground that the same was not properly authenticated, but such alleged copies, including the authentication, are not .made a part of the record before this court. Held, that, in the absence of copies of such alleged certificate, this court cannot determine whether error was committed, and in that event no reversible ground is shown.</p> <p>(b) Evidence excluded will not operate as reversible error unless it affirmatively appears to have been material under. the issues framed.</p> <p>3. TRIAL — Instructions—Refusal—Covered by General Charge. The refused instructions, insofar as they correctly state the law, being covered by the general instructions, the plaintiff in error is not entitled to complain on review in this court.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the Corporation Commission. </p> <p>Proceedings by the State against the Missouri, Oklahoma & Gulf Railway Company and others to compel operation of a joint depot. From an order of the Corporation Commission, requiring such a depot, the mentioned defendant appeals.</p>

<p>1. COUNTIES — County Seat Elections — Illegal Ballots — Counted as “Votes Cast.’’ That part of the aet of April 17, 1908 (section 12), providing that “every person desiring to vote at such special election, after having passed the challengers . . . and being admitted into the room shall, before being given a ballot, permit the clerks to fill out an affidavit and ■ . .'shall subscribe and swear to said affidavit before said election commissioner, after which he shall be given a ticket ...” construed with an act approved May 29, 1908, S. B. 23, art. 7, see. 5, Sess. Laws of Okla. 1907-8, is mandatory. And where the election inspector on the morning of the election placed said blank affidavits, part of the election supplies, in the hands of third persons who, with the knowledge of, and without objection from, the election officials, were permitted by each voter to fill out for and hand him one of said blank affidavits at a table 100 feet from the polls, as he passed thereby on his way to vote, and which, in the room, after passing the challengers and before being given a ticket, he signed and swore to before the special election commissioner, with knowledge of the contents, after which he was given a ticket and then and there voted — held that said ballot is illegal and canftot be counted for any town as a candidate for the eounty seat at such election, but may be counted for the purpose of determining the total number of votes cast at such election, and the required majority for the removal of the eounty seat.</p> <p>2- * SAME — Effect of Discrediting Returns — Burden of Proof. Where the prima facie character of the returns of a precinct is destroyed, the election therein does not necessarily become a nullity, but the burden of proof then shifts and makes it necessary that the side claiming any benefit from the votes shall prove them. It is only where no proof is offered, and the frauds are of such a character that the correct vote cannot be determined that the returns of the precinct will be rejected.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kingfisher County; A. H. Huston, Judge. </p>

<p>Original .proceeding in mandamus, by P. J. Yeager against D. C. Shelton and others.</p>

<p>1. CHATTEL MORTGAGES — Filing—Renewal Affidavit — Tíme. A renewal affidavit filed January 15, 1907, pursuant to Mans. Dig. sec. 4751, is filed within 30 days next before the expiration of one year from the filing of a chattel mortgage filed on January 15, 1906, pursuant to the preceding section.</p> <p>2. CHATTEL MORTGAGES — Description of Property — Sufficiency. A description in a chattel mortgage, which is sufficient to put a third person upon inquiry which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good-</p> <p>3. SAME — Potential Existence of Property. Where, on January 14, 1906, the mortgagor, living on the W. H. farm, executed a chattel mortgage, which was duly filed for record, on "all of 50 or more acres of'cotton and all of 15 or more acres of corn to be planted, grown, and cultivated by me or any one working for or under me during the year 1906, on farm of W. H. (describing it) or on any other farm for the year 1906”; also on "the entire product of the above or any other farm cultivated by me during 1906, 1907, and each succeeding year” until the debt thereby secured was paid; and afterwards held over during the year 1907 and raised the crop attached — held, that said description was sufficient as against a subsequent mortgagee of the same property.</p> <p>(Syllabus by the Court.)</p>

<p>REPLEVIN — Evidence—Sufficiency. Evidence examined and held that the court erred in overruling a demurrer thereto.</p> <p>(Syllabus by the Court.)</p>

<p>1. FORCIBLE ENTRY AND DETAINER — Dispute of Title — Jurisdiction. In forcible detainer before a justice of the peace the introduction by defendant of evidence, in effect, that plaintiff’s grantor, at the time of the execution of the deed under which plaintiff claims possession, was a minor, where the evidence relative thereto is conflicting, is not sufficient to oust the court of jurisdiction to try the right of possession.</p> <p>2. APPEAL AND ERROR — Review—Assignment of Error — Necessity. Where the appellant fails to assign as error the overruling of a motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.</p> <p>(Syllabus by the Court-)</p>

<p> Error from Muskogee County Court; W. M. Jackson, Judge. </p> <p>Action between J. J. Barrett and Fred Effenberg. From the judgment, Barrett brings error.</p>

<p> Hrror from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action between T. J. Hudson and Wade Lapsley and another. From the judgment, Hudson brings error.</p>

<p> Mrror from District Court,, Muskogee County; John H. King, Judge. </p> <p>Action between the Bank of Taft and William Thompson and Walter Dills. From the judgment, the Bank of Taft brings error.</p>

<p>Error from Superior Court, Pittsburg County; P. D. Brewer, Judge.</p> <p>Action by the Cleveland Trinidad Paving Company- against J. I. Woods, Comity Treasurer. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to Pile Briefs. Same as that in Leavitt et al. v. Commercial National Bank, 26 Okla. 164, 109 Pac. 71.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Hypothetical 'Cases. Abstract or hypothetical cases, disconnected from the granting of actual relief, or from the determination of which no particular result can follow other than the awarding of ’ the costs of the appeal, will not be decided by this court.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Affirmance—Failure of Plaintiff in Error to Pile Abstract. The plaintiff in error having failed to comply with rule 25 (20 Okla. xii, 95 Pac. viii), which provides that "the brief of the plaintiff in error in all cases except felonies shall contain an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statements from the record as are necessary to a full understanding of the questions presented to this court for decision, so that no examination of the record .itself need be made in this court,” but the defendant in error in his brief having made a counter abstract, no reply being made thereto by the plaintiff in error, under the abstract as made- by the defendant in error ■ no error being shown, the judgment of the lower court will be affirmed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Craig County; T. L. Brown, Judge. Action by Alma Eay. Reinhardt, by her next friend, Mary A. Reinhardt, against Albert Whitmire and others. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Same as that in Leavitt et al. v. Commercial National Bank, 26 Okla. 164, 109 Pac. 71.</p> <p>(Syllabus by the Court.)</p>

Petition of A. J. Ranger and others before Corporation Commission for requiring the St. Louis & San Francisco Railroad Company to stop at a certain flag station. From the order of the Corporation Commission, the railroad company appeals.

<p> Error from Superior Court, Muskogee County; Farrar L. Mc~ Cain, Judge. </p> <p>Action between the Board of Commissioners of Muskogee County and Charles E. Hart. From the judgment, the Board of Commissioners brings error.</p>

<p>APPEAL AND ERROR — Transcript—Sufficiency. Same as that in Wade et al v. Mitchell, 14 Olda. 168, 79 Pac. 95.</p> <p>(Syllabus by the Court-)</p>

<p>1. APPEAL AND ERROR— Record — “Case-Made.” “A 'case-made,’ otherwise called a 'case settled,’ or a ‘case agreed upon,’ or, more frequently, a ‘ease,’ is a statutory method of preparing a ‘record’ for appellate review. It is a written statement of the facts in a case, agreed to by the parties, and duly authenticated by the judge who tried the case, and submitted to an appellate court for the purpose of obtaining a review of the alleged errors of law occurring in the proceedings of the court below, as shown in the record thus presented. ’ ’</p> <p>2. APPEAL AND ERROR — Record—Case-Made—-Settlement—Notice. It is essential that all parties to an action be present or have proper notice of the presentation of the ease-made for settlement, in order that they may suggest amendments or present objections to the case-made as thus presented for settlement.</p> <p>3. SAME. A joint judgment being rendered against T. and M. for the possession of a certain tract of land and the costs of the trial, T. was allowed 90 days in which r,o prepare and serve a case-made, 10 days for the suggesting of amendments; same to be settled upon 5 days notice by either party- No extension was either asked or granted to the codefendant, M. After the expiration of 3 days from the time of the entering of the judgment, the case-made was presented for settlement, but without any notice to M.( Neither were any amendments suggested nor the right to suggest same . waived by M., or any one for him. Held, that notice to M. was essential, and also that as the prescribed 3 days had expired, and no extension of time had been granted to M., no valid case-made could then be settled, for said M.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissents.</p>

<p> Error -from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action by B. F. Smith against John E. Playnes and others. Judgment for plaintiff, and defendants bring error.</p>

<p>JUDGES — Case-Made—Authority of Judge to Sign — Serving Case-Made. Where a judge from one district is Appointed or designated by the Chief Justice of the Supreme Court to hold a term of court in another district, and presides at the trial of a cause, he may, after . the expiration of the term he was appointed to hold, sign and settle the case-made in the state outside of the district in which the cause was tried.</p> <p>(a.) The time for making and serving the case-made having been • . extended to August 28, 1910, with ten days thereafter to suggest amendments, the ' case-made to be settled on five days notice by either party, said ease-made having been served on August 27, 1910, and on September 3, 1910, the right to suggest amendments having been waived, on September 12, 1910, said- ease-made, after five days due notice, was settled by sueh judge. Held, that under sueh state of facts as appear in this record he was authorized to settle the same.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Lincoln County; J. B. A. Robertson, Judge. Action between J. E. Rea, County Clerk, and the State on the relation of the Board of County Commissioners of Lincoln County and others. From the judgment, the County Clerk brings error.

<p>1- APPEAL AND ERROR — Review—Harmless Error — Admission of Evidence. The evidence of T. that he delivered the box of jewels-to the assistant cashier of the bank being positive and unequivocal and uncontradieted, the admission of incompetent evidence tending to corroborate such witness on that point, being merely cumulative, and there being no contradictory evidence offered on that, issue, will not operate as reversible error.</p> <p>2. DESCENT AND DISTRIBUTION — Rights of Heirs — Right of Action, for Personalty. Under the laws existing in the Indian Territory at the time of the erection of the state (Mansf. Dig. see. 2522 [Ind. T. Ann. St- 1899, see. 1820]), the personal estate not. disposed of nor otherwise limited by marriage settlement, when a person dies intestate, descends to be distributed in parcenary to-his or her kindred, male and female, subject to the payment of his or her debts, etc.</p> <p>(a) There being no outstanding debts against such estate, and neither letters of administration applied for nor granted, the heirs may maintain an action to recover such personalty.</p> <p>3. APPEAL AND ERROR — Instructions—Requests—Necessity. An instruction that "it is the duty of the bank to employ fit men, both in ability and integrity1', for the discharge of their duties,”' is not reversible error; the court not being requested to charge as to what degree of care should be exercised in making such employment.</p> <p>4. • BANKS AND BANKING — Special Deposits — Liability for Loss-A national bank received a certain lot of diamonds on special deposit, it being the custom of such bank to take such special deposits from its customers, which was known and acquiesced in by the directors. The diamonds were lost through the gross negligence of the employees of the bank. Held, that the bank was liable for the value of said diamonds.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Okmulgee County; John Caruthers, Judge. Action by the Belleview Gas & Oil Company and others against the Frank Oil Company. Judgment for plaintiffs, and defendant brings error.

<p>APPEAL AND ERROR — Record.—Delay in Filing — Dismissal. Appeal dismissed, upon the ground that the petition in error and case-made were not filed in the Supreme Court within the time limited by law.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Briefs — Sufficiency — Dismissal. Where the plaintiff in error does not comply with that part of rule 25 of the Supreme Court (20 Okla. xii; 95 Pac. viii) which provides, "The brief of plaintiff in error in all cases except felonies shall contain an abstract or abridgment of the transcript, setting forth the material parts of the pleadings, proceedings, facts and documents upon which he relies, together with such other statéments from the record as are necessary to a full understanding of the questions presented to this court for decision, so that no' examination of the record itself need be made in this court,” his appeal will be dismissed. . ,,.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the Atchison, Topeka & Santa Ee Railway Company for writ of prohibition to J. E. Love and others, members of the Corporation Commission, and the Corporation Commission.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Action by Lizbeath Jacobs against the City of Perry. From an order granting a new trial after verdict for plaintiff, she brings error.

Error from District Court, Washington County; John J. Shea, Judge. Action by D. pi. Wilson, as guardian, against Asa D. Morton and others. Judgment for defendants, and plaintiff brings error.

<p> Error from Pontotoc County Court; Joel Terrell, Judge. </p> <p>Action by the Commonwealth National Bank against S. P. Steward. Judgment for plaintiff. Defendant brings error.</p>

<p> Error from Osage County Court; C. T. Bennett, Judge. </p> <p>Action between George E. Tinker and others and the Mc-Eaughlin-Farrar Company. From the judgment, Tinker and others bring error.</p>

<p>1. PARTIES — Misjoinder—Demurrer. Under the Code of this state, misjoinder of parties is not ground for demurrer.</p> <p>2. APPEAL AND ERROR —Review — Harmless Error — Prejudicial Effect. By section 4344 of Wilson’s Rev. & Ann. St. 1903, this court is required to disregard all errors and defects in the pleadings and 'proceedings of an action that do not affect the substantial rights of the adverse party.</p> <p>3. MUNICIPAL CORPORATIONS — Torts—Nuisance in Alley — Petition. In an action against a city and a private person for damages resulting from a nuisance in an alley, plaintiff alleges as her cause of action that defendant permitted the nuisance to be constructed and maintained in the alley; and that "the defendants and each of them failed, neglected, and refused to abate such nuisance when notified to do so.’’ Held, that the petition sufficiently alleges notice to the city of the existence of the nuisance, and negligence on its part thereafter in removing same, to be good against'a demurrer.</p> <p>(Syllabus by the Court.) -</p>

<p>1. HOMESTEAD — Alienation by Husband Alone. Homesteads, being unknown at common law, exist only by statutory'or constitutional provision.</p> <p>(a) In the absence of some statutory provision limiting the right of the husband to alienate or encumber the homestead, he may sell or encumber the same without the joinder or consent of his spouse, and such alienation or encumbrance, made without her consent, is valid and binding.</p> <p>2. SAME — Mortgage by Husband — Foreclosure — Rights of Wife. Under the laws existing in Oklahoma Territory on June 13, 1901, the title to the homestead being in the husband, he having mortgaged the same without being joined by his wife, his rights in such homestead were concluded thereby.</p> <p>(a) Foreclosure proceedings having been instituted by the mortgagee, to which the wife was made a party, by answering and setting up her rights therein, such mortgage could thereby be avoided as to such rights, and foreclosure decreed only against the rights of the husband and subject to all homestead rights of the wife as long as they should exist.</p> <p>(Syllabus by the Court.)</p>

<p>1. REPLEVIN — Scope of Action — Rights Determinable. The statutory action of replevin is sufficiently flexible to authorize both legal and equitable rights to be determined in such actions.</p> <p>(a) It is the policy of the code, in so far as possible, to settle all the equities in the property which is the subject of controversy in one action.</p> <p>2. SAME — Pleading—Scope of General Denial. — Under general denial in replevin, the defendant may make any defense which will defeat plaintiff’s claim or right to possession as against the defendant, and under the code great liberality is allowed such defenses.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kiowa County; G. A. Brown, Judge. </p> <p>Action by the Farmers and Merchants National Bank against F. B. Hoyt and others. Fróm the judgment, plaintiff brings error.</p>

<p>1. RAILROADS — Establishment of Depot — Order of Corporation Commission. Evidence examined, and held sufficient to establish the reasonableness and justness of the order appealed from.</p> <p>2. RAILROADS — “Station”—“Depot.” The word “station.” as used in section 26, art 9, Const., means a place where railroad trains regularly come to a stand for the convenience of passengers, and talking in freight; and the word “depot” in the same section means a building for the accommodation and protection of railway passengers or freight.</p> <p>3. RAILROADS — Duties—Maintenance of Depots. Under section 26, art 9, Const., it is the duty of each and every railway company within the state to provide and maintain adequate, comfortable, and clean depots at its several stations for the comfort and accommodation of the traveling public, and suitable, freight depots or buildings for the receiving, handling, storing and delivering 'of all freight handled by such roads.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Muskogee County; John H. King, Judge.</p> <p>Action by Thomas J. Way, Irvin Blanchard, and Delia Squires, a minor, by W. S. Grout, guardian, against Pompey Bar-nett and Thomas Davis, a minor, by Eddie Davis, guardian. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Washington County; T. L. Brown, Judge. Action between E. B. Huston and others and John C. Cob-leigh. From the judgment, Huston and others bring error.

<p>Error from District Court, Garfield County; M. C. Garber, Judge.</p> <p>Action by Frances E. Mclntire against the Chicago, Rock Island and Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Jefferson County; Frank M. Bailey, Judge.</p> <p>Action by W. P. Harper against E-. J. Kelly and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Superior Court, Logan County; J. M. Sandlin, Judge. </p> <p>Action by America Pearson against the City of Guthrie. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Caddo County; G. A. Brown, Judge. </p> <p>Action by Orange Roads against Bert R. Smith, constable. Judgment for plaintiff, and defendant brings error.'</p>

<p>APPEAL AND ERROR — Settlement of Controversy — Dismissal. Where, prior to the determination of a proceeding in error in this court, it is made to appear by defendant in error that the controversy has been settled and determined, and the showing thereof which has been duly 'served is úndenied by plaintiff in error, the proceeding will be dismissed.</p> <p>(Syllabus by the Court.)'</p>

<p>1. CHATTEL MORTGAGES — Priorities—Notice. One who takes a conveyance, absolute or conditional, which recites that it is second or subordinate to some other mortgage or lien, is not the purchaser of the entire thing conveyed thereby; he purchases only the surplus or residuum after satisfying the other incum-brances, and is estopped to deny the existence of the prior mortgage or the validity of the lien, although it be not acknowledged, recorded, or filed as required by the statutes.</p> <p>2. CONVERSION — Set-Off to Action Sounding in Tort — Claim on Implied Contract, A claim or demand on an implied contract is not allowable to a defendant as a set-off in an action brought by a plaintiff sounding in tort for the conversion of goods by the defendant.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review — Harmonizing General Verdict and Special Findings. Where the general verdict of a jury and the special findings of fact on interrogatories can be harmonized and made to agree by taking into consideration the entire record and construing the same liberally for that' purpose, it is the duty of the court to so harmonize them; and it is authorized to disturb the general verdict in those eases only where upon no reasonable hypothesis, under the pleadings and the evidence, they can be harmonized.</p> <p>(Syllabus by the Court.)</p>

<p>1. ANIMALS — Damages by Cattle to Crops — Liability. Under see. 1013, Stat. Ind. Ter. 1899 (Mans. Dig. see 1670), persons who, directly or indirectly, wilfully allowed cattle to be turned loose in any enclosure where crops were growing, or had been cultivated and not gathered, without the consent of all persons owning and cultivating su'eh'crops,' were denounced'as guilty of-a misdemeanor,. and in, a case where such facts, were shown, all who participated therein were liable for; all damages occasioned thereby. ' - ' '</p> <p>2. DAMAGES — Measure of — Continuing Tort. The rule that a party aggrieved by .a trespass will not be allowed to recover damages resulting from his neglect to employ the' obvious and ordinary means of preventing or' lessening them, is simply one ’of good faith and fair dealing; but .whenever one’s right to his property is wilfully or criminally invaded by a continuing tort, and injury arises therefrom, he may recover'any damages sustained by reason of such invasion, and is. .not bound under such circumstances to do any act to relieve the tortfeasors of the ordinary consequences of their wrongs, and this is-especially true where the trespassers have profited by their tort.</p> <p>(Syllabus by the Court.)</p>

<p>1. DEDICATION — When Perfected — Streets and Alleys. When lots are sold with reference to a recorded plat, a dedication of the streets and alleys as laid out in such plat is deemed perfect without any affirmative official or other action on the part of the municipality or public.</p> <p>2. NUISANCE — Obstructions to Streets and Alleys — Private Right of Action to Abate. Plaintiff is the owner and occupant of certain lots on a public street and alley which are the only means of communication with the outside world. Defendant, by a fence and gates, enclosed said lots, along with all the streets and alleys leading thereto, completely obstructing plaintiff’s free access to the outside world. Held, that the said obstructions constitute a public nuisance, but plaintiff is entitled to maintain an action to abate them on the ground that they are specially injurious to her.</p> <p>3. SAME — Prescription—Estoppel. Where a party is specially injured by a public nuisance and brings an action to abate the same, no lapse of time will either legalize the same or estop the injured party from bringing an action to effect its abatement.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McClain County; R. McMillan,, Judge. </p> <p>Action by J. M. Parnell against E. J. O’Shea and others. Garnishment against the Canadian Valley Construction Company. Interplea by W.- J. Terry. Judgment for plaintiff, and Terry brings error.</p>

Error from McClain County Court; E. E. Glaseo, Judge. Action by Lou Z. Rutherford against the Atchison, Topeka & Santa Fe and the Oklahoma Central Railway Companies. Judgment for plaintiff, and the former railway company brings error.

<p> Error from District Court, Murray County; R. McMillan, Judge. </p> <p>Action by W. D. Covington against S. P. Price and Josiah Gibson. Judgment for plaintiff, and Price brings error.</p>

<p>CARRIERS — Initial Carrier — Duty of Delivery — Termination of Liability. If a common carrier accepts freight for a place beyond Ms usual route, he must, unless he stipulates otherwise, deliver it at the end of his route in that direction to some other competent carrier carrying to the place of address, or connected with those who thus carry, and his liability ceases upon his making such delivery.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Payne County; L. M. Poe, Judge. Action by the Stillwater Advance Printing & Publishing Company against the Board of Commissioners of Payne County. Judgment for defendants, and plaintiff brings error. On the 21st day of July, 1908, plaintiff in error filed with the county clerk of Payne county its claim against said county for .the publication of the delinquent tax list of that county for the year 1903.