Volume 3 — Indian Territory Reports

Hosea Townsend, Judge. Action by Tyler & Simpson against W. R. Fox and others. Judgment for plaintiffs. Defendants appeal. This suit was originally brought in the United States Commissioner’s court at Purcell, in the Southern District of the Indian Territory, and was appealed to the United States Court for the Southern District of the Indian Territory, sitting at Purcell, where it was tried as anew.

<p>Citizenship — Court Records — Judicial Notice.</p> <p>The United States Court in the Indian Territory will take judicial notice that one claiming to be a citizen of the Cherokee Nation made application to the Dawes Commission to be enrolled as a citizen thereof. That the Commission passed upon his case and rejected his application, and that claimant thereupon appealed to the United States Court, which also rejected his application. That he thereupon appealed to the Supreme Court of the United States where his appeal is now pending undisposed of.</p>

States Court for the Southern District. Hose a Townsend, Judge. Action by Mary Jane Kimberlin against the commission to the Five Civilized Tribes for a writ of mandamus to compel it to enroll her as a person intermarried in the Chickasaw Nation. Judgment sustaining a demurrer to the complaint. The relator appeals.

Appeal .from the United States Court for the Southern District. Hosea Townsend, Judge. Charles S. Bias was convicted of murder and he appeals. At the March, 1898, term of the United States court for the Southern district oí the Indian Territory, at Pauls Valley, the appellant was indicted for the crime of murder of one Gus Wright. The indictment alleges that the killing was done with a knife in the hands of the defendant. The wound was located on the neck of the deceased.

William H. H. Clayton, Judge. 'Action by Scott Nicholas against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for plaintiff. Defendant appeals. This suit was brought by Scott Nicholas against the Choctaw, Oklahoma & Gulf Railroad Company to recover damages alleged to have been received while in the employ of said company as a coal miner in a mine operated by the defendant in the town of Alderson, Choctaw Nation.

<p>1. Evidence — Hypothetical Question— Who May Answer.</p> <p>Answers of physicians, as experts, to a hypothetical question as to the effect of a described nuisance on the comfort and health of persons residing in the immediate vicinity, are not inadmissible in an action for damages on account of Illness claimed to have been caused by defendant maintaining such nuisance, because put to physicians other than those in attendance on plaintiff’s family.</p> <p>2. Verdict — Special Findings — Discretionary.</p> <p>Under Mansfield’s Digest, Sec. 5142 (Ind. Ter. Stat. Sec. 3347). it is wholly within the discretion of the jury and court to make special findings of fact on which the amount of the verdict is based, instead of finding a general verdict for damages; and the court’s refusal to require such findings fs not reversible error.</p> <p>3. Instructions — Must be Considered as a Whole — Damages.</p> <p>If all the instructions considered together fairly present the law of the case, a party may not complain that its rights and interests were not properly presented to the jury. And in an action for damages on account of the maintenance of a nuisance, the instructions are proper if, when fairly construed, they charge the jury to consider only damage resulting from the wrongful acts of the defendant, and disregard any damage resulting from other causes.</p> <p>4. Nuisance — Special Damages Recoverable — Inference of Damage.</p> <p>Special damages, either direct or consequential, entitle one to whom such accrue, to recovery, although the nuisance from which such damage results, is a public nuisance; and when the nuisance is proved, the law infers damages therefrom.</p> <p>5. Nuisance — Acts Constituting.</p> <p>To negligently construct a sewer, to carry off filth and foul water from a hotel, of insufficient size and improper level, and to permit the tiling to he exposed and broken near the surface of the ground, and the contents to be thrown upon adjoining property and in front of and around the same, causing discomfort, inconvenience and illness to persons residing thereon, is to maintain a nuisance.</p> <p>6. Pleading — Results Actionable Per Se.</p> <p>A complaint which charges that certain acts of the defendant in maintaing a nuisance, resulted in the discomfort, inconvenience and illness of plaintiff and his family, charges results which are actionable per se.</p> <p>7. Damages — Services of Child — Parent’s Right of Recovery for Loss.</p> <p>A parent is entitled to the services of his children, and can recover for any injury resulting in loss of such services.</p> <p>8. Damages— Wife’s Services — Medical Expenses.</p> <p>One may recover for the loss of a wife’s services and society, and for expenses incurred for medical services to wife and children, occasioned by illness resulting from a nuisance created or maintained by another.</p>

B. Kilgore, Judge. Action by D. A. Young against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff. Defendant appeals.

Hose a Townsend, Judge. Action by David Mayes and another against Wade Hampton. Judgment for plaintiffs. Defendant appeals. In August, 1892, the appellees, being in possession of a certain tract of land in the Chickasaw Nation, entered into a contract withthe appellant, whereby they were to transfer and deliver to him said land, valued at $2,700, in exchange for certain personal property valued at the same amount.

William H. H. Clayton, Judge. Action by W. M. Hynes and others against the Shapard Grocery Company and another. Judgment for plaintiffs. Defendants appeal. In April, 1897, a suit was filed in the commissioner’s court at South McAlester, in which the Shapard Grocery Company was plaintiff, and Joe Cottraux et al. were defendants. An attachment was issued, and levied upon certain goods belonging to Joe Cottraux, and also upon the goods claimed in this suit.

<p>i. Railroads — D'amage by Fire — Evidence.</p> <p>In an action for damage caused by a fire claimed to have originated from sparks escaping from a particular engine, fully identified, at a particular time, evidence that other engines of defendant emitted sparks on other occasions, is incompetent.</p> <p>2. Depositions — Exceptions—When Made.</p> <p>No exception to depositions, other than to the competency of witnesses or testimony can be considered unless filed before the commencement of the trial, under Mansf. Dig. Sec. 2955 (Ind. Ter. Stat. 2070) even though, by mistake of the clerk, the depositions were filed with the wrong case.</p>

Hosea Townsend, Judge. ■ Action by the Ranney-Alton Mercantile Company against the Denison & Northern Railway Company and another to establish and foreclose a lien for supplies furnished in the construction of the first-named defendant’s road. Judgment for plaintiff. Defendant, railway company, appeals.

W. M. Springer, Judge. Action by T. J. Carlisle and another against James J. McAlester and others. , Judgment for defendants Plaintiffs appeal.

C. B. Kilgore, Judge. , Suit by Francis H. Crow, as special administrator of the estate of A. L. Crow, deceased, against W. F. Robberson and others. Decree for plaintiff. Defendants appeal. Having examined with some care the entire record' in this case, we think the findings of the master, which are in part found on pages 101 to 104 of the transcript of the record, give, with some slight exceptions, a fair and concise statement of the material facts presented by the record.

William H. H. Clayton, Judge. Action by H. W. Adams and others against the Atoka Coal & Mining Company.1 Judgment for plaintiffs. Defendants bring error.

W. M. Springer, Judge. Action by Alexander M. Bogy against J. M. Daugherty and others. Judgment for plaintiff. Defendants appeal.

<p>i. Lidian Lands — Mineral Royalties — “ Curtis Bill. ”</p> <p>Act of Cong. June 28, 1898, (30 Stat. 495) known as the “Curtis Bill,” did not affect the rights of individual citizens of the Choctaw and Chickasaw Nations to mineral royalties earned and payable when the act wns passed, nor destroy their right of action for enforcing same. (On the authority of and adopting opinion in Atoka Coal & Mining Co. vs. Adams, 3 Ind. Ter. Rep.)</p>

<p>Appeal from the United States court for the Northern District.</p> <p>William M. Springer, Judge.</p> <p>Action by W. P. H. McFadden and another against John Tt. Blocker and another. The Evans-Snyder-Buel Company intervenes. Judgment for defendants. Plaintiffs appeal.</p>

<p>Appeal from the United States court for the Northern district.</p> <p>John R. Thomas, Judge.</p> <p>Action by N. B. Maxey and others against J. George Wright, United States Indian inspector, and others. From an order sustaining a demurrer to the complaint, plaintiffs appeal.</p>

William-M. Springer, Judge. Attachment by the Smith-McCord Dry Goods Company against S. M. Perry and others. Judgment for defendants. Plaintiff appeals.

William M. Springer, Judge. Action by Hiram Quigley against Green Stephens and Georgie Stephens. Judgment for defendants. Plaintiff appeals. On the 12th day of September, 1895, Hiram Quigley, the appellant, entered into a contract of lease in the Greek Nation with Green Stephens and his wife, Georgie Stephens, the appellees, who are Greek citizens.

William M. Springer, Judge. Action by Andrew Hicks and others against- Thomas J. Hunt and another. Judgment for plaintiffs. Defendants appeal. This is an action for forcible entry brought by appellees against appellants in the court below to recover possesion of land in the Cherokee Nation. The facts seem to be that the appellants prior to 1892 located on the public domain of the Cherokee Nation, and fenced and improved about 40 acres of land.

<p>Appeal from the United States court for the Southern district.</p> <p>John R. Thomas, Judge.</p> <p>William R. Watkins was convicted of murder. He appeals.</p> <p>On the 12th day of October, 1896, the grand jury for the United States court for the Southern district of the Indian Territory, sitting at Ardmore, returned into said court an indictment against the appellant, charging him with the murder of one Wyatt Williams. Upon the indictment the defendant was convicted of murder, and sentenced to be hanged. The case was appealed to this court, and the judgment was reversed, and the cause remanded for a new trial. Thereafter a change of venue was duly ordered, and the case transferred to Pauls Valley. During the March, 1898, term of the court at Pauls Valley, for some reason not appearing in the record, but presumably because of some defect or supposed defect in the indictment, the case was referred to the grand jury at that coui’t, which said jury afterwards returned into court a true bill of indictment against the defendant, charging him with the murder of Wyatt Williams under the same state of facts and circumstances as alleged in the original indictment. To this indictment there was filed á plea in abatement, setting up the above facts. The plea was overruled by the court, and exceptions duly saved. The' trial then proceeded on the last indictment, resulting in a verdict of ‘ ‘Guilty, without capital punishment.” Motion for new trial was filed, overruled, and exceptions saved. The defendant was sentenced to imprisonment for life and the cause was regularly appealed to this court. Many exceptions were taken to the admissibility of evidence and the charge of the court; those relied upon appearing in the assignments of error, which were duly filed. The facts of the killing necessary for a full understanding of the points raised appear in'the opinion.</p>

District. William M. Springer, Judge. Action by R. P. Bowles against G. J.Waitman. Judgment in favor of plaintiff. Defendant appeals. This action was commenced on the 27th day of August, 1894, before S. M. Rutherford, United States commissioner fprthe Second judicial division of the United States Court, Indian Territory. The plaintiff sues for a balance of $90.00 due on an account for $166.77.

William M. Springer, Judge. Action by J. Foster & Co., against J. J. McAlester, and others. Judgment for defendants. Plaintiffs appeal. The plaintiffs below, appellants here, brought this action against the defendants below, appellees here, on April 5, 1895, to recover $4,000.00 as damages, alleging that plaintiffs were the owners and in possession of a stock of goods at Wagoner, Ind.

John E. Thomas, Judge. Action by Thomas E. Tootle against Charles McClellan on a note. From an order nunc pro tunc dismissing plaintiff’s case without prejudice, defendant appeals. On the 15th day of February, 1897, the plaintiff below, appellee here, filed his suit at law, asking judgment against defendant below, appellant here, for balance due on a promissory note.

William M. Springer, Judge. Action by the Springfield Grocery Company against R. W. Thomas, John L. Thomas, Joe E. Thomas and Sallie E. Walker, to set aside a trust deed executed by defendant R. W. Thomas, as in fraud of his creditors. Judgment sustaining a demurrer to the complaint. Plaintiff appeals.

Hosea Townsend, Judge. Action of ejectment b,y Katie Turner, in her own right, and as next friend for her daughter, Hattie Belle Samuels, against J. F. Hardeman, T. E. Hardeman, Sam Daube and Munzesheimer & Daube. Judgment for the plaintiffs. Defendants appeal.

Springer, Judge. Action by Francis M. Crowell against Andy Tynon and wife. From a judgment for plaintiff, defendants appeal.

William M. Springeb, Judge. Action by J. L. W. Williams against the Kansas City, Pittsburg & Gulf Railroad Company to recover damages resulting from overflow of water. Judgment in favor of the plaintiff. Defendant appeals.

<p>Appeal from the United States Court for the Northern District:</p> <p>William M. Springer, Judge;</p> <p>Action by King Bros, against Walter A. Mayes on promissory note for $265.50, premium on policy of insurance on the life of appellee. Judgment for defendant. Plaintiffs appeal.</p>

<p>1. Indian Lands — Creek Leases — Exclusive as to Citizen’§ Farms Within Boundaries Thereof.</p> <p>Plaintiffs held a lease, executed in accordance with laws of the Creek Nation, covering certain tracts of land as a “border pasture”; before its expiration the same was renewed for an additional term. Before the expiration of the first lease, the defendant entered upon the leased tract, under a contract with a Creek citizen, for the purpose of taking up and occupying a portion of same as a farm of the Creek citizen. Also before the expiration of the original lease, but after the entry of the defendant, the Creek Council passed an act (Laws Creek Nation, Ed. 1893, p. 120) making it unlawful for any citizen to make or improve farms within the limits of these “border pastures.” Held, That even before the last cited act of the Creek Nation, under the authority of the law of that nation providing for the execution of leases of “border pastures, ” all of the unoccupied land embraced within the boundaries of the original lease were excluded from settlement by Creek Indians during the term of the lease; and it is immaterial whether the second lease is considered a new lease or a renewal of the first.</p> <p>2. Unlawful Detainer— Validity of Creek Leases — Evidence of Consent of Occupants.</p> <p>In an action of unlawful detainer, plaintiff claimed under a lease made in accordance with the laws of the Creek Nation (Laws Creek Nation, Ed. 1893, p. 120) which provides: “Any citizen or company of citizens of this nation shall have the right to build pastures larger than one mile square along the border of this nation, by securing the consent of all the citizens who may be residing within such proposed enclosure, or who may be residing within one-half mile outside and from such enclosure.” Defendant claimed to have been residing within the limits of this leased tract when same was made, but the testimony is silent as to whether or not his consent had been given. Held, That as the lease was executed by proper authorities, lessees had taken possession thereunder before defendant attempted to assert any adverse rights, and the lease itself recited that the statute had been complied with, there was a prima facie case made by plaintiffs by the introduction of the lease in this form; and the burden of proof shifted to defendant to affirmatively show that his consent had not been given. And by his failure in this the case of plaintiff, already made out, was not disturbed.</p>

John R. Thomas, Judge. Action by Nan Splitnose against W. M. Gulager. Judgment in favor of plaintiff. Defendant appeals.

William M. Springer, Judge. Action by the Simmons Clothing Company against W. T. Davis. Judgment for defendant. Plaintiff appeals. This action was commenced on the 9th day of March, 1898. Plaintiff alleged that the defendant was indebted to it in the sum of $638 upon an account, for merchandise sold and delivered to him, which was past due and unpaid, and asked judgment.

<p>1. Attachment — Disposition of Attached, Property and Proceeds — Intervention— Who May File and When.</p> <p>Mansf. Dig. Secs. 334 and 335 (Ind. Ter. Stat. Secs. 356, 357) require that the proceeds arising from sales of attached property shall be kept by the sheriff (marshal) and, if judgment be rendered for the defendant, the attachment shall be discharged and the property or its proceeds returned to him. Mansf. Dig. Sec. 347 (Ind. Ter. Stat. Sec. 369) provides for the disposition of the property when the judgment is for the plaintiff. Under these statutes the court had no authority to order the proceeds of property of the defendant attached by the plaintiff, paid over to the plaintiff before the determination of the question of the ownership of the property; and the intervener was in time with his plea of intervention when Hied before the determination of this question, although the proceeds had been, in fact, turned over to the plaintiff. And the plea in abatement interposed by plaintiff upon this ground was properly overruled.</p> <p>2. Attachment — Measure of Damages when, Wrongful — Instructions.</p> <p>In an action wherein a stock of goods was seized by plaintiff under writ of attachment against the defendant, and same were found to be the property of the intervener, but because of the sale and disposition of the proceeds, could not be turned over to the intervener, the measure of damages he would be entitled to recover, is the value of the property at the time it was seized, with six per cent, interest to the date of the trial; and . an instruction that intervener was entitled to recover as damages the amount he would have obtained for the goods in the ordinary course of business in which he was engaged at the time, and that the jury might consider whether he was selling them to customers as they came in or disposing of them at auction, and that the fact that a particular merchant would not have paid this or that amount for them for the purpose of wholesaling or speculation, did not measure plaintiff's damages, was improper, although in addition the court also practically announced the true rule, for it was confusing and misleading.</p>

<p>1. Mechanics Liens — Foreclosure—Complaint—Sufficiency of Allegations of Residence, and Citizenship.</p> <p>In a complaint, in an action to foreclose a mechanics lien it was alleged “that plaintiff, W. of S., Indian Territory states defendant of same place”; and that “plaintiff filed with the clerk of this court, in the Northern judicial district, wherein said property is all situated” etc., and further states that he has a lien “on building and appurtenances now situate” on certain lots “in the town ot S., Indian Ter., both then and now owned and occupied by said defendant”. Held, that the conplaint sufficiently states the residence of the defendant and the location of the property, to confer jurisdiction of same on the U. S. court for the Northern Judicial District.</p> <p>2. Mechanics Liens — Improvements on Indian Lands — Rights of One ' Indian to Foreclose on Building of A nother.</p> <p>The Act. of Cong, May 2, 1890, extending over and putting in force in the Indian Territory, Chapter 96, Mansf. Dig., known as the “Mechanics Lien Law (Ohapt. 44, Ind. Ter. Stat) further provides “that executions upon judgments in any other than, indian courts shall not be valid for the sale or conveyance of title to improvements made upon lands owned by an Indian nation, etc. ” Defendant, in an action to foreclose a mechanics lien had only a possessory interest in the premises sought to be taken and sold, the title being in the Indian Nation. Held, that the “special fieri facias” provided in Mansf. Dig. Sec. 4417 (Ind. Ter. Stat. 2884) is not included in the inhibition against “executions” contained in the Act of Cong, referred to, and a decree of foreclosure and sale would reach the interest o f defendant in the improvements; for otherwise, no mechanics lien could be enforced in the Indian Territory, and to so construe the statute would render it nugatory,</p>

William M. Springer, Judge. Action by Rose Pryor against Sam T. Davis. Judgment in favor of plaintiff. Defendant appeals. The plaintiff brought this suit to recover damages for a breach of promise of marriage.

William M. Springer, Judge. Suit by Emma Hanks, as administratrix of John L. McCoy, against William H. Hendricks and others, to establish a lien, for services rendered by deceased to the Old-Settler Cherokees, on funds received from the government by defendants. Judgment in favor of defendants. Plaintiff appeals. On February 17, 1898, the appellant.

<p>Appeal from the United States court for the Northern district.</p> <p>William M. Springer, Judge.</p> <p>Ejectment by Sarah C. Alston against Fred Hockett and others. Judgment in favor of plaintiff. Defendants appeal.</p> <p>This is an action of ejectment commenced on the 19th day of February, 1898. The plaintiff alleges that she is a citizen of the Cherokee Nation or Tribe of Indians, and that she is the owner and entitled to the possession of the improvements in controversy; that the land upon which the improvement is situated is the property of the Cherokee Nation; “that on the 30th day of August, 1897, said improvement was sold to this plaintiff by J. C. Ward, sheriff of Cooweescoowee district of the Cherokee Nation of the Indian Territory, under an act of the national council of the Cherokee Nation approved September 30, 1895, as an intruder improvement”; that said sheriff delivered to plaintiff a certificate of purchase as follows: “Wagoner, I. T., August 30,1897. Sold to Sarah Carlton Alston the following described intruder improvements, know as ‘Fred Hockett Farm, ’ about three and one-half miles northeastof Wagoner, I. T.: One framehouse 16x32, stables, and other outer buildings; about 100 acres in cultivation, — for the sum of eight hundred and ninety-five ($895 00) dollars. First installment paid, — one hundred and forty-nine ($149.20) dollars. Sold under an act of the national council approved September 30th, 1895. J. C. Ward, Sheriff Cooweescoowee District, Cherokee Nation, by J. W. Leach, Deputy.” Plaintiff further alleges that defendants are in the unlawful possession of said land; that plaintiff has the lawful title, and has been legally entitled to the possession since August 30, 1897; that plaintiff has demanded' possession from the defendants, which they have refused to surrender. Plaintiff asks judgment for possession and damages. On the 15th day of September, 1898, defendants filed an answer to plaintiff’s complaint. They admit that plaintiff is a citizen of the Cherokee Nation or Tribe of Indians, but deny that the plaintiff is the owner and entitled to the possession of the improvement in controversy. They admit that the land upon which the improvements are situated is the property of the Cherokee Nation. They deny that a sale was made on the 30th day of August, 1897, of the land and improvements in controversy by J. C. Ward, sheriff of Cooweescoowee district, Cherokee Nation, by which defendants were deprived of their good and lawful title to their said land and improvements, and their legal right to the possession of the same against a pretended claim of the plaintiff and of all other persons claiming or to claim. They allege that the act of the national council of the Cherokee Nation approved September 30, 1895, under which the sale was made, was null and void because it contravened the constitution of the Cherokee Nation, and was in conflict with the terms of the treaties between the Cherokee Nation of Indians and the government of the United States, and further say that, if said act was a good and valid law, its provisions were not complied with by the said Ward, sheriff: that said pretended sale of said improvements was null and void, for the same was not made in conformity with the provisions of said law. They further allege that, even if said enactment of the national council was in all respects valid, the same was in no way applicable to the defendants, as they were in no proper sense intruders in the Cherokee Nation, but were, as they aver and insist, bona fide citizens thereof, according to law. Deny that they are in the unlawful possession, or that they have damaged the plaintiff. On December 10, 1898, the defendants filed an amendment to their answer. They deny that plaintiff was entitled to the possession of the land and improvements at the commencement of this action. State that the defendants Fred Hockett and Agnes Hockett purchased a part of said property from W. H. Marsh, and that said Marsh located said premises, which was at the time of said location a part of the public domain of the Cherokee Nation, and that said Marsh was a citizen of the Cherokee Nation or Tribe of Indians, and had a right to locate and segregate from the public domain said property. They state that about the 3d of September, 1898, defendants Fred Hockett and his wife, Agnes G. Hockett, purchased the remainder of said improvements from R. C. Parks, who had previously purchased the same from said W. H. Marsh. Say further that they have no knowledge or information sufficient to form a belief as to whether said improvements were sold to said plaintiff by Ward, sheriff of Cooweescoowee district, or not, under the act approved September 30, 1895. State that since purchasing said premises they have made valuable improvements thereon, and that at the time of said purchase, and ever since then, defendant Agnes G. Hockett believed, and still believes, that she was a member of the Cherokee Tribe or Nation of Indians, and entitled to all the privileges and property rights of citizens of said nation; that said nation deny her right to citizenship and that her right to citizenship was presented to the Dawes commission; and that said commission, after hearing said cause, rendered its judgment against her; that thereupon she appealed to the district court for the Northern district; who, after hearing the cause rendered its judgment against her; that sbe appealed from said judgment to the supreme court of the United States, where she alleges the cause is now pending. They allege that at the time they put the improvements upon said property they believed the defendant Agnes G. Hockett was a citizen of said nation, and that she would be éntitled to her allotment in said nation. Defendants therefore claim that they are entitled to the possession of said premises until the 31st day of December, 1898, and until the supreme court of the United States shall pass upon the right of the defendant Agnes G. Hockett to citizenship in said nation. On the 13th day of December, 1898, the said cause was tried to a jury. At the conclusion of the evidence, plaintiff moved the court to instruct the jury to return a verdict for the plaintiff for the possession of the land ip controversy, and for the rental value of said place for the year 1898; and defendants, by attorney, moved the court to instruct the jury to return a verdict for the defendants, which motion of the defendants was by the court overruled, to which defendants excepted.' The motion of plaintiff, on being heard, and by the court being fully understood, was sustained by the court, to which the defendants excepted. The jury, having, heard the evidence and the instruction of the court, returned the following verdict: ‘ ‘We, the jury, find that the plaintiff is the owner and entitled to the possession of the premises in controversy, and assess her damages at fifty dollars. W. L. Corathers, Foreman. ” On the 14th day of December, 1898, the defendants filed their motion for a new trial, and on the same day the court overruled said motion, and defendants appeal to this court.</p>

<p>1. Pleadings — Complaint—Objections to Sufficiency Waived by Answering.</p> <p>Defendants, after their demurrer to the original complaint was overruled, then moved to require the plaintiffs to make their complaint more definite and certain, and after amendment in this respect, filed their answer. Held, that by answering the amended complaint without objection, defendants waived their right to object to its sufficiency, after verdict rendered.</p> <p>2. Indian Lands — Ejectment—Sufficiency of Complaint.</p> <p>Where a complaint, in an action of ejectment to recover possession of lands which were part of the Cherokee Nation, reduced to possession by plaintiffs, by reason of their improvements, under the Cherokee laws, alleged these facts and further that defendants lived on the lands by sufferance of plaintiffs and now refused to deliver possession of same, it stated facts sufficient to constitute a cause of action.</p> <p>3. Contract with Deceased — not Admissible in Action by Administrator.</p> <p>Where, in an action brought by plaintiff as Administrator of estate of one S. deceased, defendant sought to prove a verbal contract made between himself and the deceased, during his lifetime, his testimony was properly excluded by the court, under Mansf. Dig. Sec. 2857 (Ind. Ter. Stat. Sec. 1972) which provides that in actions by or against administrators neither party shall be allowed to testify against the other as to any transactions with or statements of the intestate unless called to testify thereto by the opposite party.</p> <p>4. Statute of Frauds — Invoked Only by Parhes or Privies.</p> <p>Certain of the plaintiffs derived their interest in the premises in controversy from a transfer to them by the deceased, whose administrator joined in thv suit, during his lifetime. It was proper for these plaintiffs to establish this sale by their verbal testimony, for the Cherokee laws do not require such transfers to be in writing, and as the administrator was not contesting this plaintiff’s rights, but joined in the action, asserting a joint possessory right, defendant not being a party or privy to this contract cannot invoke the statute of frauds and have same excluded because not in writing.</p> <p>5. Cherokee Laws— Widow Has the Title Until Delivery by Administrator.</p> <p>The court below properly excluded evidence of a contract made by defendants with the widow of the deceased, one of the plaintiffs, because the contract sought to be proved was not in writing, and related to an occupancy of lands for more than a year; and also because the widow could have no title to or control over the property of her deceased husband until«the administrator had recovered the possession thereof, and delivered same to the widow, under Comp. Laws Cherokee Nation, Sec. 493 and 504, which provides that every administrator shall assume all the relations of the deceased person upon whose estate he may have obtained letters and shall prosecute and defend all suits at law instituted on behalf of or against the deceased; and shall, in the administration, turn over all property to the surviving parent for the use of the family.</p> <p>6. Parties — All Persons Interested in Action are Proper.</p> <p>Under Mansf. Dig. Sec. 4039 (Ind. Ter. Stat. Sec. 3144) which provides that “all persons having an interest in the subject of an action, and in obtaining the relief demanded, may be joined as plaintiffs, the widow of the deceased, and a joint owner were both proper parties to a suit brought by the administrator of the deceased to recover possession of the land owned by them jointly.</p> <p>7. Ejectment — Tenants Cannot Deny Landlord’s Title.</p> <p>An instruction was proper which directed the jury that if the defendants, while in possession of the lands in controversy under a lease agreement with an Indian citizen then deceased, denied the title of the administrator of such deceased when he demanded possession of the lands and set up an independent title in themselves, they forfeited all rights to the possession of said lands.</p> <p>8. Cherokee Laws — Quarter Mile Limit Adjacent to Lmprovement.</p> <p>Where an administrator brought suit to recover the possession of certain lands, claiming to be entitled to the possession thereof by virtue of certain improvements made by the intestate within the one-quarter mile limit as provided in the Cherokee laws, and the evidence shows that the intestate sold the original improvement but afterward made another improvement within the required limit, and in the sale of the former reserved the right to the quarter-mile limit, the contention that the right to possession of the surrounding quarter-mile limit was abandoned by the first sale, is without merit, and constitutes no defense to the action by the administrator.</p> <p>p. Verbal Contract of Lease — Excluded by Statute of Frauds.</p> <p>Defendants sought to base a defense to an aci ion to recover possession of lands held by them, upon a verbal contract with the deceased owner of said lands, by which defendants were to retain possession of same for a period of years. Held, such contract could not be proven, being expressly excluded by the statute of frauds, Mansf. Dig. Sec. 3311 (Ind. Ter. Stat. Sec. 2305).</p> <p>70. Complaint — Failure to Plead Cherokee statutes — Sufficient.</p> <p>Plaintiff claimed possession of certain lands in the Cherokee Nation under rights given by the Cherokee statutes. In his complaint such statutes were not plead, nor were they proved on the trial. Held, that under Mansf. Dig. Sec. 5083 (Ind. Ter. Stat. Sec. 3288) which provides that the court must, in every stage of the action, disregard any error or defect in the proceedings which does not affect the substantial rights of the adverse party, and that no judgment shall be reversed or affected by reason of such error or defect, the defect in the complaint, if any, was cured by the evidence and the verdict, and as no substantial right of defendant was affected adversely thereby, the judgment should not be reversed.</p>

States court for the Northern district. John R. Thomas, Judge. Action by Elmira Scott and another against J. E. Campbell, as guardian of Elmira Scott and Lucy Reed. Judgment for plaintiffs. Defendant appeals. On May 9, 1898, this action was brought by Elmira Scott, and Elmira Scott as guardian for Lucy Reed, against J. E. Campbell, guardian of the minor heirs of Luman Reed, deceased.

William M. Springer, Judge. Action of slander by W. M. Collier and J. N. Collier against J. E. Brooks. Judgment in favor of plaintiff, J. N. Collier. Defendant appeals. This was originally, an action for slander brought by appellee W. M. Collier agaist the appellant, J. E. Brooks, in the United States court for the Northern district of the Indian Territory, at the December term, 1897; Hon. William M. Springer, judge presiding.

<p>Appeal from the United States Court for the Northern District.</p> <p>William M. Springer, Judge.</p> <p>Action by the Cherokee Nation and Claude Shelton against J. S. Hargrove and others. Judgment for plaintiffs. Defendants appeal.</p> <p>This is an action brought by the appellees, the Cherokee Nation and Claude Shelton, against the appellants, defendants in the court below, under the third section of the act of congress entitled “An act for the protection of the people of the Indian Territory, and for other purposes.” 30 Stat. 495 (Ind T. Ann. St. 1899, §§ 57q-57z20).</p> <p>The complaint is as follows: “Come the above-named plaintiffs, and for cause of action against the defendants, state: That the said plaintiff the Cherokee Nation is the owner of the lands within its limits, which it holds in com.mon for all its members. That the said plaintiff Claude Shelton is a Cherokee Indian by blood, and a recognized member of the Cherokee Nation or tribe of Indians. That the following described tract of land, and the improvements thereon, known as the “J. S. Hargrove Place, ” to-wit: Three hundred and twenty acres of land, more or less, situated in Coo-wee-scoo-wee district, Cherokee Nation, Indian Territory, about twenty miles northwest of Vinita, Indian Territory, under fence; two hundred and twenty-five acres, more or less, in cultivation; balance in grass land; and bounded on the north by the Tuck Saunders place, known as the ‘Studebaker Place’; on the east by the public domain of the Cherokee Nation and Mrs. Gray; on the south by the Beecher Chamberlin place; on the east by the Beecher Chamberlin place, known as the ‘Jim Fleming farm,’ — is upon the public domain of the Cherokee Nation. That the said defendants, J. S. Hargrove, Nancy Hargrove, Alice Studebaker, and Moses Studebaker, are residents of the Northern district of the Indian Territory, and reside nearer to Viniia than any other place of holding court within the Northern district of the Indian Territory. That the said defendants last above named are white people, and not members of the Cherokee tribe of Indians, or any other tribe of Indians in the Indian Territory. That the said defendant Nancy Hargrove claims the rights of citizenship in the Cherokee Nation. That the said J. S. Hargrove is her husband, the said Alice Studebaker her daughter, and the said Moses Studebaker husband of the said Alice Studebaker. That the claim of the said Nancy Hargrove for citizenship in the Cherokee Nation has been disallowed by the commission to the Five Civilized Tribes, known as the ‘Dawes Commission,’ and the United States Court for the Northern District of the Indian Territory, and said decisions have become final. That the said defendants hold and claim the premises hereinabove described unlawfully, as members of the Cherokee tribe of Indians, and that their citizenship in said tribe is denied by said nation and tribe. That the said defendants still continue to hold and claim said lands and improvements, notwithstanding the objection of said tribe. That the said plaintiff Claude Shelton is a married man, the father of one child living, and that himself, wife and child are entitled to their allotment from the public domain of the Cherokee nation, by virtue of their being members of said tribe. That the said plaintiff Claude Shelton desires to acquire the lands above described, and hold the same for himself, wife, and child, as provided by law. That he caused notice to be served on the defendants herein thirty days before the commencement of this suit, demanding that they quit and (deliver up possession of the premises to him, by virtue of his membership in the Cherokee tribe of Indians aforesaid. That said notice was served on the defendant J. S Hargrove, under the name of G-. F. Hargrove, but was intended for said defendant J. S. Hargrove. Plaintiffs further state that the rental value of the said lands above described for the year 1899 is five hundred dollars ($500.00), and that the said plaintiffs are damaged in that sum by the unlawful detention and holding of said lands by the said defendants. Wherefore plaintiffs pray judgment against said defendants, and all persons claiming through, by, or under them, for the possession of the premises above described; that all claim or right of said defendants to said premises be declared void and of no effect; that a writ of possession be issued by- this court, commanding the removal of these defendants, and all persons claiming by, through, or under them, .from' said premises; that the said plaintiffs have and recover of said defendants the sum of five hundred dollars ($500) damages for the unlawful detention of said premises; and for all proper relief. ”</p> <p>To the complaint a demurrer was filed on the grounds, “(1) that there is a defect of parties plaintiff; (2) that the complaint does not state facts sufficient to constitute a cause of action.” The demurrer was overruled, and exceptions duly saved.</p> <p>Thereupon the defendants J. S. Hargrove and Nancy B. Hargrove filed the following answer: “Now come the above-named defendants, J. S. Hargrove and Nancy B. Hargrove, by their attorneys, R. H. Landrum and M. M. Edmiston, and for their answer to plaintiffs’ complaint say: That at the time of the commencement of the above-entitled cause they, the said defendants, did not hold, and were not in possession of, the land sued for, and since the filing of said suit they have not been, and are not now, in possession, either in person or by representative. That previous to the commencement of the above-entitled suit one S. H. Conklin, a Cherokee Indian citizen, served notice on defendants demanding possession of said premises, and brought suit therefor in this court some 30 days or more prior to the filing of the petition in the above entitled cause; whereupon these defendants moved from said premises, and said Conklin took possession thereof, and now holds the same as a Cherokee citizen. That the Cherokee Nation at no time served notice on the defendants to quit possession of the land sued for, and at the time the plaintiff Claude Shelton served notice on defendants to, quit possession of said premises these defendants were not on said lands sued for and described in plaintiffs complaint, or in possession thereof, have not since held and do not hold said lands, and the plaintiffs herein ought not to recover in this action. Wherefore defendants pray that this cause be dismissed as to them, and that they be discharged, with their costs.”</p> <p>And the defendants Alice Studebaker and Moses Studebaker filed the following answer: “Now come the defendants Alice Studebaker and Moses Studebaker, and for answer to plaintiffs complaint say that they have no interest in premises sued for, either severally or jointly; that they were not in possession of the premises, or any part thereof, at the commencement of this action, or at any other time, and are not now in possession. Wherefore these defendants, Alice Studebaker and Moses Studebaker, pray that the suit be dismissed as to them, and that they be discharged, with their costs, ”</p> <p>Upon the filing of these answers, the plaintiffs moved for judgment upon the pleadings, which motion, after argument, was sustained by the court, and judgment entered against defendants for possession of the premises and the costs of suit, and execution and a writ of possession were ordered. Exceptions were saved, and an appeal to this court duly taken. No motion for a new trial was made nor bill of exceptions filed.</p>

<p>Appeal from the United States court for the Northern district.</p> <p>William M. Springer, Judge.</p> <p>Action by James A. Harris against Robert Kennedy and Katie Kennedy. Judgment for plaintiff. Defendants appeal from order denying a new trial.</p> <p>The transcript in the case discloses the following facts: On the 31st day of August, 1895, James Oates sold to Robert Kennedy and Katie M. Kennedy, his wife, a certain lot or parcel of land in the town of Wagoner, and on the same day Robert Kennedy and Katie M. Kennedy, his wife, executed to James Gates a mortgage on said premises to secure the purchase price of said lot or parcel of land. Kennedy and his wife made default in the payment of the mortgage, and on the 16th day of November, 1897, James Gates advertised and sold the property to the highest bidders, G. D. Sleeper and James A. Harris. Sleeper afterwards transferred his right in the premises to the appellee, James A. Harris, and on the 3d day of November, 1898, the appellee (the plaintiff below) commenced his suit in the United States Court for the Northern District of the Indian Territory, sitting at Wagoner, for the possession of said premises. On the 17th day of November, 1898, being one of the regular days of the November term of said court, a judgment was entered against the defendants on default, and judgment was rendered in favor of the plaintiff for the possession of the premises and for costs. On the 28th day of November, 1898, a writ of restitution and execution for costs was issued, and by virtue of said writ the plaintiff below was placed in possession of said lot. On the 7th day of December, 1898, the defendants below filed notice of, and a motion for, a new trial. The motion for a new trial is as follows:</p> <p>‘ ‘In the United States Court for the Northern District, Indian Territory, at Wagoner. James A. Harris, Plaintiff vs Robert Kennedy and Katie Kennedy, Defendants. Motion for a New Trial, to Arrest and Set Aside Judgment, and to Quash Writ of Possession. Comes the above-named defendants, and move the court to arrest and set aside the judgment herein, and grant a new trial, for the following reasons: (1) Because the complaint on which said judgment is founded does not state facts sufficient to constitute a cause of action; (2) for surprise which ordinary prudence could not have guarded against; (3) that the judgment is not sustained by sufficient evidence; (4) that the judgment is contrary to law; (8) because the plaintiff herein is not the real party in interest; (9) because it is against right and justice; (10) because Katie Kennedy, herein mentioned, is a married woman, and was before and at the time when the cause of this action originated, and has no dowable interest in the subject-matter in the controversy herein, and is only a party in name, and therefore asks that as ' to her especially the judgment be set aside and held for naught, and plaintiff ordered pay all relating to her. Robert Kennedy. Katie Kennedy.”</p> <p>Indorsed: “James A. Harris, Plaintiff, vs Robert Kennedy and Katie Kennedy, Dfts.”</p> <p>In support of said motion, the defendants filed the following affidavits:</p> <p>“In the United States Court for the Northern District, Indian Territory, at Wagoner. James A. Harris, Plaintiff, vs Robert Kennedy & Katie Kennedy, Defendants. Affidavit. Mrs. Mary Williford states that she is the mother of Katie Kennedy, herein mentioned, and about twelve months ago she telegraphed to Mr. Bledsow, who then lived at-, I. T., and who had been recommended to her as a lawyer of ability and integrity, to come and investigate the sale of the land which constitutes the controversy now pending between the above-named plaintiff and defendants, and in response to said telegram the aforesaid Bledsow came, and, after investigating the matter, reported to her that the matter was settled, and if the parties herein should receive notice from any one relating to the controversy herein to ignore it, for it would be for a bluff only. Mary Williford.</p> <p>‘ ‘Subscribed and sworn to before me this the 7th day of December, 1898. Edward L. Moore, Notary Public. [Seal.] My com. ex. Nov. 21,1902.”</p> <p>Indorsed: “167. Affidavit of Mary Williford. Piled in open court Dec. 7, 1898. James A. Winston, Clerk.”</p> <p>“In the United States Court for the Northern District, Indian Territory, at Wagoner. James A. Harris, Plaintiff, vs Robert Kennedy & Katie Kennedy, Defendants. Affidavit. Katie Kennedy states that she is one of the defendants in the above-entitled cause, and is the wife of Robert Kennedy, herein mentioned, and was at the time the mortgage that is filed by the plaintiff herein, and made a part of his complaint, was executed to James Gates by Robert Kennedy; that the summons that was issued in the above-entitled cause was served on her, but she did not inform her husband, Robert Kennedy, one of the above defendants, of the service of the aforesaid summons, for the reason that Mr. Bledsow, whom the aforesaid Robert Kennedy employed about twelve months ago to investigate the sale made at that time by James Gates by virtue of the power contained in said mortgage, and after the said Bledsow investigated the sale, told her that he had- the matter forever settled, and should any of the parties serve any papers on her thereafter to ignore them, for che service would be for a bluff only; and, believing that Bledsow understood his business, she decided it wrould be useless to inform Robert Kennedy of the aforesaid service, for the reason that it would tend to lead him into trouble with the parties, as well as create domestic unhappiness. Katie Kennedy.</p> <p>‘.‘Subscribed and sworn to before me this the 6th day of December, 1898. Edward L. Moore, Notary Public. [Seal.] My com. ex. Nov. 21, 1902.”</p> <p>Indorsed: “166. Affdt. of Katie Kennedy. Piled in open court, Dec. 7, 1898. Jas. A. Winston, Clerk. ”</p> <p>‘ ‘In the United States Court for the Northern District, Indian Territory, at Wagoner. James A. Harris, Plaintiff, vs Robert Kennedy & Katie Kennedy, Defendants. Affidavit. Robert Kennedy states that he is one of the above-named defendants; that about twelve months ago he employed one Bledsow, who was recommended to him as being a lawyer of ability and integrity, to investigate the sale made by James Gates by virtue of a power of sale contained in the mortgage, in which he (Kennedy) was grantor, and James Gates was grantee, for which investigation he paid Bledsow ten dollars in cash, and, after he had made the investigation, he (Bledsow) told him that he had the matter forever settled, and if the parties served any more papers on him to ignore the service; that notice was served on him a short time after the mortgage sale, commanding him to vacate and deliver possession to the aforesaid Gates, which notice is hereto attached, and made a part of this affidavit; that he refused to give Gates possession, and Gates made no further attempt to take possession; that the consideration of the mortgage which he (Robert Kennedy) executed and delivered to Gates, and which mortgage is the same filed by plaintiff herein and made a part of his complaint, was not for borrowed money, but the amount- mentioned as the consideration of the aforesaid mortgage is the price that he (Kennedy) was to pay Gates for the premises therein described; that said premises had no improvements on them at the time of purchase whatever; that he (Kennedy) has erected a house and made other improvements on said premises of the value of not less than two hundred dollars; that he has made thirty dollars’ worth of improvements on the said premises within the last five months, believing at the time that he was making the improvements he had an unincumbered title to the premises; that he never received any information concerning the service of the summons on his wife, Katie Kennedy, issued in the above entitled-cause, until the evening the marshal ordered him to deliver possession to James A. Harris, the above-named plaintiff; that James A. Harris told him that he purchased the property from Gates on the contingency that Gates would give him quiet and peaceable pos session, and placed the purchase price in the First National Bank of Wagoner, I. T., to be paid to Gates whenever Gates should give him quiet and peaceable possession, and not before. Robert Kennedy.</p> <p>‘ ‘Sworn to and subscribed before me this the 6th day of December, 1898. Edward L. Moore, Notary Public [Seal.] My com. ex. Nov. 21, 1902.”</p> <p>On the same day (December 7, 1898) the motion for a new trial was overruled, and exceptions saved by defendants, and on the 8th day of December, 1898, an appeal was granted to this court.</p> <p>Counsel for appellants assign the following as errors in the case: “The court erred in refusing to set aside the default, and also to arrest the judgment, for the following reasons: (1) On the grounds of surprise, because he had no notice of the suit. (2) Because the appellee .is not the real party in interest; the title does not vest in appellee until he can get quiet and peaceable possession. (3) The judgment was not sustained by sufficient evidence. (4) The court should have set aside the default as to Katie Kennedy because she is and was a married 'woman at the time the mortgage was executed. She has not such legal existence as will authorize a personal liability. (5) The court erred in not arresting the judgment because the complaint does not state facts sufficient to constitute a cause of action, for the reason that it 'does not state that the property sold for two-thirds of its appraised value, as required by Mansf. Dig. §§ 4759-4761 (Ind. T. Ann. St. 1899, § § 3070-3072). Neither does it state that the sole consideration was for money loaned to appellant, as required by Mansf. Dig. § 4763 (Ind. T. Ann. St. 1899, § 3074).”</p>

John R. Thomas, Judge. Proceedings in bankruptcy by Grayson Bros. Appeal from an order refusing final discharge till petitioners should turn over certain property. G. W. Grayson and Samuel Grayson are Creek Indians by blood, and were doing business at Eufaula, an incorporated town in the Creek Nation, under the firm name and style of Grayson Bros. On the 16th day of February, 1899, they filed their petition in the United States Court at Muskogee, Ind.

<p>/. Appeal — Bill of Exceptions Must Include Motion for New Trial</p> <p>Mansf. Dig. Sec. 1310 (Ind. Ter. Stat. Sec. 812) provides that a judgment shall not be reversed,on appeal for an error which can be corrected on motion in the inferior courts until such motion has been made there and overruled. Under this statute errors assigned for the consideration of the appellate court will not be considered unless presented in motion for new trial in court below, and then made a part of the record by bill of exceptions.</p>

<p>Appeal from the United States court for the Central district.</p> <p>Yancy Lewis, Judge.</p> <p>Action by S. B. Penn & Co. against Lem Butler and another. Judgment in favor of the plaintiffs. Defendants appeal.</p> <p>This action is on a promissory note alleged to have been executed by appellants to appellee, dated May 16, 1896 for the sum of $150, with 10 per cent, interest. The action was begun in the United States commissioner’s court, Central district, Durant division, where, same was tried to a jury, which found a verdict for defendants, appellants. So far as the record discloses, no judgment was rendered in the commissioner’s court on the verdict, but, assuming that proper judgment was entered, it would only have been for costs against the plaintiffs. Plaintiffs appealed the case to the United States court for the Central district of the Indian Territory, sitting at Atoka, in which court the' case was again tried to a jury, and in which court, under exceptions of appellants. the jury were instructed to return a verdict in fav- or of plaintiffs, appellees here, and against defendants, appellants here, in the sum of $150, which verdict was returned accordingly. Appellants filed motion for new trial, which was overruled by the court under exceptions of appellants. The court thereupon pronounced its judgment on the verdict in favor of appellees and against appellants in the sum of $150 and for interest and costs. From this judgment appellants prayed and were allowed an appeal.</p>

William M. Springer, Judge. Action by J. W. Wallace against A. E. Carder and others. Judgment in favor of plaintiff;. Defendants appeal.

William M. Springer, Judge. Action by C. C. McDonald and others against A. W. Rutherford and others. Judgment for plaintiffs. Defendants appeal.

William M Springer, Judge. Action by Thomas G. Singleton against William E. Gentry. Judgment for plaintiff. Defendant appeals. This is an action in the nature of the common-law action of trover to recover the value of 56 head of cattle which the plaintiff alleged the defendant wrongfully took and converted to his own use.

<p>/. Municipal Corporations — Powers Regarding Erection of Buildings Within Fire Limits — Ultra Vires.</p> <p>An ordinance was passed by the council of a municipal corporation within the Indian Territory prohibiting the erection of wooden buildings of a certain height and -width within the established fire-limits of said city. Mansf. Dig. Sec. 152 (Ind. Ter. Stat. Sec. 522), extended over and put in force in the Indian Territory, gives such corporations power to regulate the building of houses; make regulations for the purpose of guarding against accidents by fire, and prohibit the erection of any building “more than ten feet high, unless of brick”, etc. Held, That the city has no power to adopt an ordinance prohibiting the erection of wooden buildings “not exceeding ten feet square,” such action of the corporation being ultra vires.</p>

C. B. Kilgore, Judge. Action by Ed. P. Ingle against S. S. Case and another. Judgment in favor of plaintiff. Defendants appeal. Reversed, appeal.

District. Hosea Townsend, Judge. Action by Minnie Thomas and another against Morris Sass and J. D. Crawford, doing business under the firm name of Sass & Crawford. Judgment for plaintiffs. Defendants appeal. This is an action of unlawful detainer on the part of Minnie Thomas and another, as plaintiffs, against Sass & Crawford, a firm composed of Morris Sass and J. D. Crawford, as defendants, to recover a certain tract or parcel of land situated in the town of Ardmore, Ind.

Bill by .Morris Sass and J. D. Crawford, doing business under the firm name of Sass & Crawford, against Minnie Thomas and another, for an injunction. From a decree granting the same, defendants appeal.

<p>/. Habeas Corpus — Divorce Decree — Collateral Attack.</p> <p>Where a decree of divorce awards the custody of a child to one of the parties to the divorce proceedings, the proper method to secure a different disposition of the custody of the child is by application for a modification of the decree, and not by habeas corpus proceedings; for the divorce decree canno t be thus collaterally attacked.</p>

W. H. H. Clayton, Judge. Action by J. I. Campell against J. E. Arnold. Judgment for plaintiff. Defendant appeals. On June 9, 1900, the plaintiff below filed his amended complaint in an action previously instituted by him against the defendant below in the United States Court for the Indian Territory at South McAlester, Ind.

John R. Thomas, Judge. Action by Bessie B. Shrimsher against J. L. Newton and others. Judgment for a portion only of the relief claimed. Plaintiff appeals. On the 2d day of February, 1900, plaintiff filed her complaint, alleging: That she and defendant are all Cherokee Indians, and that defendants Newton, Mitchell and Ward, on the 24th day of January, 1899, made, executed, and delivered to her their certain promissory note as follows: “$600.00.

Hosea Townsend, Judge. Action by Evans Hill against B. P. Rogers and others. Demurrer to defendants’ answer sustained. Defendants appeal. This is an action of unlawful detainer by Evans Hill, a citizen of the Chickasaw Nation, as plaintiff, against B. F. Rogers and others, citizens of the United States.

<p>Appeal from the United States Court for the Southern District.</p> <p>Hose a Townsend, Judge.</p> <p>Action by Mrs. A. E. Watkins against Taylor Potts and others. Judgment for plaintiff. Defendants appeal.</p>

Hosea Townsend, Judge. Action by John Stephenson against the Osage Coal & Mining Company. Judgment for defendant. Plaintiff appeals. In this case John Stephenson, the plaintiff below and appellant, sued the defendant below and appellee, the Osage Coal & Mining Company, for damages alleged by plaintiff to have been sustained by him through the carelessness and negligence of' appellee.

William M. Springer, Judge. Action by Katy Martin, for herself and her two minor children and others, against Charles Merrill, defendant, and John Weaver, intervener. Judgment for plaintiffs. Defendant and intervener appeal. On January 18, 1896, appellee Kate Martin, for herself and as next friend for her two minor children, filed a suit in ejectment against the appellant Charles Merrill to recover possession of the premises named in the complaint.

W. M. Springer, Judge. Replevin by J. A. Harris against F. S. Castleberry. Judgment for defendant. Plaintiff appeals. This was an action of replevin, brought in the United States commissioner’s court at Wagoner, Ind.

<p>Appeal from the United States Court for the Northern District</p> <p>John R. Thomas, Judge.</p> <p>Bill by Fred E. Turner against Clarence W. Turner, as executor of the last will and testament of JohnE. Turner, deceased, and others, for a construction of th§ will. Decree for defenndants. Plaintiff appeals.</p> <p>On the 4th day of November, 1898, John E. Turner, of Muskogee, Ind. T., executed his last will and testament. He died on the 10th day of December, 1898, leaving Julia A. Turner, his widow, and Clarence W. Turner, Fred E. Turner, and Effie J. Kirkwood, his children, him surviving. Clarence W. Turner was appointed executor of the will, and qualified as such. Provision was made in the will for the widow, but she refused to take under the terms of the will, and elected to take dower in the estate. The will contained numerous specific legacies, bequests and devises, and contentions arose between the widow and Fred E. Turner, on the one hand, and Clarence W. Turner, as executor, upon the other hand, as to the true construction of said will and the rights of the parties thereunder, especially in view of the fact that the widow had renounced her dower. To determine these matters, on the 18th of January, 1899, Julia A. Turner and FredE. Turner brought a bill in equity against Clarence W. Turner, as executor, and the other devisees and legatees under the will, for a construction of the same, and for other purposes set forth in the bill. The defendant Clarence W. Turner filed separate answer, taking issue with all the contentions of the plaintiffs. All the other parties in interest appeared either personally or through guardians . ad litem for the minor beneficiaries. The case was submitted upon the complaint and answer, and judgment rendered on the 23d of May, 1900. The only question here presented is the construction to be placed upon the following clause of the will of John E. Turner: “Fourth. I give, devise, and bequeath to my son Fred E. Turner during the remainder of his natural life, my two-story store building, together with the basement and adjoining buildings, in the town of Tulsa, ■Indian Territory, being the property recently purchased by me from Lynch Mercantile Company; also a stock of general merchandise of the value of ten thousand dollars, the same to be kept up to that amount, or the money in lieu thereof loaned out, and only the interest used. Said Fred E. Turner shall collect the rents from said building, and out of the rents keep the building in good repair, and shall be entitled to all the profits of the mercantile business, or the interest on the money, as the case may be, and all the rents after paying for the repairs, as long as he lives; but upon his death said stock of merchandise and said buildings shall be sold and converted into money, and the same divided among my several grandchildren now living, as above named, and paid to them as above provided for.” The court held as follows in regard to said clause of the will: “(3) The court further finds that said Fred E. Turner is entitled to a life estate only in the property bequeathed to him under said will, and that the same should be preserved for the benefit of the remaindermen mentioned in said will.” To this finding of the court Fred E. Turner duly excepted, and appeals to this court.</p>

Joseph A. Gill, Judge. Proceedings by Morris Frazee, as guardian, in the matter of the guardianship of Taylor Crutchfield. From an order requiring Josie Crutchfield, as guardian, to pay a certain sum of money to Morris Frazee as guardian, Josie Crutchfield appeals.

Hosea Townsend, Judge. Action by W. B. Woolsey against George Jackson. Judgment for defendant. Plaintiff appeals. This was an action of unlawful detainer, brought by the appellant, plantiif below, on January 13, 1899, against appellee, defendant below, for 500 acres of land,, which he claimed that he had leased to appellee lor the term of eight years, beginning January 1, 1891, and ending December 31, 1898.

John R. Thomas, Judge. Action by the United States, on the relation of Isperhecher, against Richard Forsythe. Judgment for plaintiff. Defendant appeals. This is an action brought by the United States, through the information of one Isperhecher, against the defendant, Bichard Forsythe, under section 2117, Rev. St. U. S. (section 4327, Ind. T. Ann.

<p>r. Criminal Law — Murder—Evidence—Explanatory of Flight of Defendant.</p> <p>In a prosecution for murder the state proved that the defendant left the country immediately after the killing, which was admitted but claimed ro have been done in self-defense. Held, that it was error to exclude testimony of witnesses called by the defendant to show that his flight was taken upon the advise of his friends, aDd to escape anticipated danger from friends of deceased.</p> <p>2. Murder — Instructions.</p> <p>Where the defendant in a trialfor murder pleads self-defense and requests an instruction governing the law of self-defense and includes therein a statement concerning death resulting from the use of a weapon, not ordinarily deadly, and by accident or inadvertence, it is not error for the court to omit from his charge to the jury the incorrect statement of the principle of accidental killing.</p> <p>y. Self-defense — Instructions.</p> <p>It is error, in a prosecution for murder, the defendant claiming self-defense, to instruct the jury that “two persons cannot engage in mortal combat and each be acting in self-defense.” It is *a question for the jury whether defendant was acting under the law of ssif-defense at time of homicide, regardless of whether the deceased was in the same attitude.</p> <p>4- Murder — Improper Argument,</p> <p>In a trial for murder there was evidence introduced, some for purposes of contradiction of defendant’s witnesses, and some without objection, tending to show that the defendant had been arrested, charged with stealing cattle, had resisted deputy marshals and was a fugitive from justice at the time of the homicide. One of the counsel for the government in his argument to the jury referred to the defendant as a cattle-thief and a dare-devil who resisted officers, and the court, upon the objection of defendant’s counsel and motion to-exclude the statement from the jury, merely directed counsel to “remain in the record” but failed to admonish the jury that they should not consider such remarks and to exclude same. Held, that this was error, and the motion should have been granted and the jury admonished to disregard such remarks, for there was no competent evidence of such facts, and the defendant was thereby prevented from having an impartial trial.</p>

<p>/. Assignments for Benefit of Creditors— Validity.</p> <p>A deed of assignment to the defendant directed him to sell the property assigned at public auction within J20 days after the execution of his bond; and also provided that the assignee should in executing the trust be “governed in all things by the laws regulating assignments for the benefit of creditors now in force in the Indian Territory.” Held, that the latter-provision cured the illegality of the former directions of sale, and the assignment was valid.</p> <p>r. Master's Reports — Based on Conflicting Evidence — Not Disturbed.</p> <p>Where a master’s report was, in some particulars, based upon conflicting and unsatisfactory evidence, it will not be disturbed on appeal when confirmed by court below, for his findings are to he regarded as the finding of a properly instructed jury.</p>

Hosea Townsend, Judge. Action by the Evans-Smith Drug Company against U. S. Allender. Judgment for plaintiff. Defendant ap-. peals.

William EL EE. Clayton, Judge. Action, by Minnie Kilpatrick and others against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for defendant. Plaintiffs appeal. This was an action brought by the appellants (plaintiffs below) against the appellee (defendant below) for damages for the killing of R. E. Kilpatrick, husband of the plaintiff Minnie Kilpatrick.

<p>Appeal from the United States court for the Northern district.</p> <p>Joseph A. Gill, Judge.</p> <p>Action by P. G. Browning against G. W. Franklin. Judgment for plaintiff. Defendant appeals.</p> <p>The appellee (plaintiff below) alleged that the appellant (defendant below) was indebted to him on April 27, 1895, in the sum of $480, and that on that day the defendant transferred to plaintiff two promissory notes in satisfaction of said indebtedness, and “absolutely guaranteed” the payment of the same. Said notes were as follows:</p> <p>“380.00 Vinita, I. T., April 1st, 1895. Threemonths after date I promise to pay to the order of G. W. Franklin the sum of three hundred and eighty dollars, value received for wintering cattle branded NS. Cattle wintered by G. W. Franklin to stand good for the payment of this note, and is to be paid out of the first shipment of said cattle, and to bear 10 per cent, interest from due. N. Skinner. ”</p> <p>This note is indorsed as follows: “Pay to the order of P. G. Browning. Demand and notice waived. G. W. Franklin.”</p> <p>“$100.00 Vinita, I. T., April 1st, 1895. One day after date I promise to pay to the order of G. W. Franklin the sum of one hundred dollars, value received for wintering cattle branded NS. Cattle wintered by G. W. Franklin are to stand good for the payment of this note, and is to be paid out of the first shipment of said cattle, if not paid before that time, and is to bear 10 per cent, from date. N. Skinner. ’ ’</p> <p>This note is endorsed as follows: “Pay to the order of P. G. Browning. Demand and notice waived. G. W. Franklin. ”</p> <p>There was a credit of $65 on one note, and plaintiff prayed judgment for'$550.53, balance of principal and interest on said two notes. Defendant filed answer, and admitted that he was indebted to plaintiff as alleged on April 27, 1895, and that he transferred to the plaintiff the two promissory notes in satisfaction of said indebtedness, but denies that he “guaranteed absolutely” the payment of said notes, except as appears indorsed thereon, and that he was indebted to plaintiff in the sum of $550.53, or any other sum. Defendant alleges: That Skinner at the making of' said notes was solvent, and that said notes were given for wintering about two hundred head of NS cattle, of which said brand there were about two thousand head, worth about $50,000. Said cattle were at that time in the Cherokee Nation, and said notes were intended to, and did, secure to the defendant a lien on all of said NS cattle for the payment of said debt therein expressed. That said notes were indorsed by defendant to plaintiff with the understanding and agreement that plaintiff would protect and enforce said lien, and collect the amount of said notes when due out of said cattle, and subject them to the payment of said debt. That when said notes became due said cattle had not been removed from the Cherokee Nation, but. plaintiff, disregarding defendant’s right, and in violation of his agreement and of defendant’s request to enforce said lien, wholly refused and neglected so to do, but permitted Skinner to ship said cattle out of the country, and said lien to be lost since which time Skinner has become insolvent, “all of which on part of the plaintijf constitutes in law and in fact a fraud upon said security and the rights of this defendant and a bar to his recovery in this cause. ’ ’ Defendant asks that his answer be taken as cross complaint, and case transferred to equity docket, and should court be of opinion that said lien was collateral to said debt, and was lost by plaintiff’s negligence, it will order said notes canceled. On October 12, 1898, on motion of defendant before Judge Thomas, the casó was transferred to equity docket. On the 12th day of February, 1900, before Judge Gill, “this cause coming on to be heard, by agreement of parties hereto all the pleadings and motions heretofore filed in this cause are withdrawn, except the complaint, and plaintiff’s demurrer to answer and cross complaint filed March 1!, 1899.” The demurrer to answer was as follows1: (1) That it does not state facts sufficient to constitute a defense to the complaint; (2) that it does not show that defendant is entitled to equit able relief. On February 16, 1900, before Judge Gill, “this cause came on to be heard upon the plaintiff’s demurrer heretofore filed to the defendant’s answer, filed as an answer .and cross complaint; and, the questions of law arising thereon being heard, it is adjudged by the court that said answer and cross complaint is insufficient, and that the demurrer thereto be sustained; and, • the defendant refusing to plead further, it is adjudged that said answer and cross complaint be dismissed, and that plaintiff have and recover of and from defendant the sum of $612, with interest from this date until paid at the rate of ten per centum per annum. To the sustaining of said demurrer, defendant, by his attorney, then and there excepted, and prayed an appeal, which was granted by the court. ”</p>

<p>1. Deeds — Parol Evidence.</p> <p>Parol evidence is admissible to specifically ascertain and identify lands described in general terms, in a written deed of conveyance; and when, by such parol evidence, the description of the subject matter of the instrument is made specific, then the instrument will not be held void for uncertainty.</p> <p>2. Evidence — Ex Parte Affidavits Attached to Pleadings, Inadmissible.</p> <p>In an action for the recovery of possession of land exparte affidavits attached to a bill for injunction in former suit concerning same land, by strangers to the present suit, are inadmissible as evidence.</p> <p>y. Evidence — Orders in Another Sutt Inadmissible Unless Pleaded in Bar.</p> <p>In an action to recover possession of land, orders of court made in an injunction suit concerning the same tract of land, are inadmissible in evidence, when such orders are not pleaded in bar in the present action.</p> <p>4. Evidence — Statements in Absence of Parties, Inadmissible.</p> <p>Statements made by plaintiff’s grantor that she signed instrument of conveyance to defendant’s grantor, are inadmissible in a suit by plaintiff to recover possession of land from defendant, when such statements were not made in plaintiff’s presence.</p> <p>5. Evidence — Deed of Conveyance Subsequent to Gift, Inadmissible.</p> <p>Defendant, in an action to recover possession of certain lands from him, cannot introduce in evidence a deed of conveyance of plaintiff’s grantor executed subsequent to a gift by such party to plaintiff, under which plaintiff had immediately taken possession.</p> <p>6. Verdict — Value of Improvements Allowed only after Peaceable Possession.</p> <p>In an action to recover possession of lands, the court directed a verdict for the plaintiff and instructed the jury to give plaintiff, in their verdict, the buildings and improvements erected on the land by defendant. Held, that in view of the established testimony showing that there was a continual quarrel over the possession of the land, the defendant’s possession was not such a peaceable one as entitled him to an allowance for hisjimprovements.</p> <p>7. Statute of Limitations — Non-suit—New Action Within One Year.</p> <p>A suit for the recovery of possession of property is not barred by the statute of limitations though more than five years has elapsed since the cause of action accrued, and five years being the statutory period of limitation for such actions, when a suit was first brought within the five years, and a non-suit taken, and the present action begun within one year thereafter, under Mansf. Dig. Sec. 4497 (Ind. T. Stat. Sec. 2964.)</p>

Hosea Townsend, Judge. Action by Theo. Fitzpatrick against J. P. Ellis. Judgment in favor of plaintiff. Defendant appeals, This is an action of unlawful detainer brought on the 7th day of July, 1898, for the possession of lot No. 3 in block No. 46, situated in the town of Chickasaw, in the Indian Territory.

William M. Springer, Judge. Trespass by Grant Lochner against Martha- Garborina and others. Judgment in favor of defendants. Plaintiff appeals.

W. H. H. Clayton, Judge. Action by Frank Sittle against C. E. Jett, in which the Missouri, Kansas & Texas Kailway Company is served as garnishee, and impleads Brown, Stalcup & Co. Judgment in favor of plaintiff. Defendants Jett and Brown, Stalcup & Co. appeal. Motion to dismiss appeal.

<p>Appeal from the United States court for the Northern district.</p> <p>John R. Thomas, Judge.</p> <p>Replevin by Caesar Simon against C. C. Aubrey' Judgment in favor of plaintiff. Defendant appeals.</p> <p>This was a suit in replevin, brought by plaintiff, Aubrey, against defendant, Simon, before a United States commissioner for the Northern district for the recovery of three head of heifer cattle of the value of $20 per head, and $40 damages. The commissioner found the issues in favor of plaintiff for the three head of cattle sued for or their value, and defendant appealed to the United States court at Muskogee. During the progress of the trial on appeal the court permitted plaintiff ’ to amend his cause of action by adding the increase of said heifers or cows, four in number. The jury returned the following verdict: “We, the jury, * * * find the issues for the plaintiff, and assess the value of the three cows at $25 each, the value of the two three-year olds at $25 each, the value of the two yearlings $10 each, and assess the plaintiff’s damages at interest at six per cent, per annum from February 5, 1897, at $87.” Thereupon the plaintiff offered to remit a part of the value of increase of cattle sued for and allowed him, and the verdict was amended accordingly, reducing the damages to $82.18, to which defendant excepted. Defendant filed motion for new trial and in arrest of judgment. Same was overruled, and defendant excepted. On October 23, 1899, the court rendered the following judgment: “Now, on this day this cause coming on to be heard upon a motion for a new trial herein filed, and the court being fully advised, doth overrule the same, to which the defendant excepts. Whereupon, the plaintiff having asked leave of the court during the progress of the trial to amend his complaint by making it allege that the heifers (now cows) sued for herein were of the value of $25 each, and that he had been damaged in the sum of $120, said complaint was by the court ordered so amended, and agreed to by the defendant. * * * It is considered * * * that the plaintiff have and recover of and from the defendant the cows sued for, and, if not to be restored, from the defendant and Coody Johnson and Jacob Harrison, sureties on his appeal bond, their value, $75, or $25 for each of said cows not restored, together with the sum of $82.18, his damages, together with all costs laid out and expended; and that execution issue therefor.”</p>

W. H. H. Clayton, Judge. Action by Ed. D. Sittel against Allen Wright and another. Judgment in -favor of defendants. Plaintiff appeals. The plaintiff below (appellant here) on the 22nd day of April, 1898, brought his suit against defendants, Allen Wright and O. D. Argo, appellees here, alleging he was the owner and entitled to the possession of one residence lot and the improvements thereon in the town of South Mc-Alester, Ind.

W. H. H. Clayton, Judge. Action by George Sibley against John T. Miller. Judgment for defendant on demurrer to plaintiff’s complaint. Plaintiff appeals. This was an action brought upon two judgments recovered against the appellee by the appellant in the circuit court for Lonoke county, in the state of Arkansas, rendered on the 2d day of January, 1882, and upon a revivor of each of said judgments had on the 6th and 10th days of July, 1891, respectively.

<p>1. Negligence — Carrier—Injury to Passenger — Evidence.</p> <p>An action was brought by a passenger against a railroad company for injuries to his arm which was struck by a cattle chute while the train was passing, and negligence of the company in permitting this chute to be so near the track, was alleged as tbe cause of the accident. Plaintiff testified that he did not think his arm projected, because he had several times after the accident experimented to discover its exact position when injured. Two witnesses testified that his arm projected from the window, and neither the window frame nor side of car was scratched by the chute. Held, that plaintiff failed to show by sufficient evidence to permit a favorable verdict of the jury to stand, the negligence of the company, and it was error to refuse a peremptory instruction to the jury to find for the defendant.</p> <p>2. Negligence — ■Injury to Passenger — Instructions.</p> <p>When the question before a jury in an action by a passenger for injuries occurring to him while riding on defendant’s railway train, was whether the injury was occasioned solely by the negligence of the company or was contributed to by the plaintiff, it was error to charge'the jury that “the controversy in this case seems to be as to the position of the arm of the plaintiff at the time of the injury.” But this erroneous instruction was cured by other instructions fully defining negligence and contributory negligence.</p> <p>3. Negligence — Carriers—Instructions.</p> <p>It is not error, in an action by a passenger against a railway company for personal injuries, to refuse an instruction to the effect that the defendant can avail itself of any contributory acts of negligence on the part of plaintiff whether established by the evidence of plaintiff or defendant, where the jury was fully instructed as to contributory negligence, and that they are to consider the whole testimony in that respect, where testimony had been introduced by both plaintiff and defendant.</p> <p>4. Negligence — Carrier—Personal Injuries — Evidence.</p> <p>In an action by a deputy marshal, a passenger, against a railway company for personal injuries, it was not error to permit plaintiff’s counsel to ask plaintiff what he would have made on the trip if he had not been injured, and what his fees would have been had he not been prevented, by his injury, from completing his trip. But when his answer to such questions was unresponsive and not sufficiently clear for the jury to determine its meaning, the same should he stricken out, on motion.</p>

, Appeal from the United States court for the Northern district. JohnR. Thomas and William M. Springer, Judges. Action by Ella P. McAllaster against R. C. Edgerton and others.

John R. Thomas, Judge. Action by Napoleon B. Moore, plaintiff, and the Creek Nation, intervener, against Dwight W. Tuttle and others. Judgment in favor of plaintiff and intervener. Defendants appeal. The plaintiff below (appellee here), on the 25th day of August, 1900, filed his complaint against the defendants below (appellants here) in the Northern district, Ind.

C. B. Kilgore, Judge. Action by W. S. Thacker and another against C. H. Stone and others. Judgment in favor of plaintiffs. Defendants appeal.

<p>Appeal from the United States court for the Northern district.</p> <p>William M. Springer, Judge.</p> <p>Action by Patrick J. Byrne, assignee of Grayson Bros., against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals.</p> <p>The original complaint was filed February 24, 1898, by Grayson Bros., plaintiffs, against the Missouri, Kansas & Texas Railway Company, defendant. Afterwards, and on the 11th day of December, 1895, Grayson Bros, made an assignment for the benefit of creditors to Patrick J. Byrne, as assignee, who was substituted as plaintiffby order of court. It appears from the record that several complaints had been filed in this case, to which objection had been taken, but that the case was tried upon the fourth amended complaint, which was itself amended, and the answer of defendant to the fourth amended complaint as amend ed. The plaintiff below and appellee here alleged, for a first cause of action, that on the 20th day of December, 1892, the defendant was engaged in shipping cattle, and kept and maintained at Eufaula, Ind. T., “pens and yards for the purpose of receiving cattle intended for shipment over the line of railway of said defendant, and on the date above mentioned, with the knowledge and consent and direction of said railway company, the assignors of the plaintiff caused to be driven, and, with due care on their part, to be placed in said pens or yards, one hundred and fifty head of cattle, for the purpose of being shipped over the line of railway 0f said defendant> and the said railway company had so carelessly and negligently constructed and cared for the said pens or yards, of which carelessness and negligence the assignors of this plaintiff had no notice or knowledge, that the said pens or yards were insufficient and unsafe for the purpose of yarding cattle, and during the night of said day, without any fault on the part of the assignors of this plaintiff, the said cattle escaped from said pens or yards and ran at large, and, without any fault on the part of the assignors of this plaintiff, ” 19 head so escaping were run over by defendant’s train and killed; that 40 head were lost, and the value thereof was $25 per head; that said assignors were put to $100 expense in rounding up the balance, and that 91 head were damaged by so running at large to the amount of $2.50 per head. For a second cause of action plaintiff alleged: “Said cattle, without any fault on the part of the assignors of this plaintiff or either of them, and without the knowledge of the assignors of this plaintiff or either of them, the said cattle went at large, and, without any fault on the part of the assignors of this plaintiff or either of them, said cattle went upon and along the railway track of the said defendant, at or near the said station of Eufaula, in said Northern district, and, while said cattle were so at large and so upon and along said railway track, the servants and employees of the said defendant so carelessly and negligently managed and operated a locomotive engine and train of cars running upon its said line of railway that when near the said station the said locomotive engine and train of cars ran into, against, and over a large number of said cattle, and killed of them nineteen head thereof, of the value of twenty-five dollars ($25.00) per head.” That by reason of said carelessness and negligence the assignors of plaintiff were damaged in the sum of $1,802.50. The defendant below, the appellant here, filed its answer, specifically denying each and every material allegation of plaintiff’s complaint. The case was tried before a jury, who returned a verdict for plaintiff upon both counts of the complaint; Under first count, for injury to the cattle recovered; for 37 head never recovered, but not killed by train; and for time and expense in gathering cattle, — total $743. And under second count, for 19 head killed by the train, amounting to $475. Total amount of verdict, $1,218. Motion for new trial was made by defendant, which was overruled by the court, judgment was entered upon the verdict, and the'defendant appealed to this court</p>

States Court for the Central District. W. H, H. Clayton, Judge. Action by Frank C. Garner against Victor Bonham. Judgment for defendant. Plaintiff appeals. This is an action of forcible entry and detainer, commenced by Frank C. Garner against Victor Bonham, for the possession of certain property located in the town of Coal-gate, in the Central district of the Indian Territory.

Yancey Lewis, Judge. Action by' Swift & Co. against N. B. Guy. G. S. Russell intervener. Judgment for intervener. Plaintiff appeals. The appeal in this case is taken by Swift & Co. (plaintiff below, a corporation created under the laws of the state ■of Missouri) from the judgment in favor of appellee. Russell, rendered September 22, 1897.

William M. Springer, Judge. Action by A. A. Green, Jr., against M. L. Minter. Judgment for plaintiff. Defendant appeals. This was a suit upon a judgment rendered in Texas by a justice of the peace on April 5, 1894, for $166.50.

<p>/. Assignmetit for Benefit of Creditors — Partial.</p> <p>An assignment for benefit of creditors which conveys a certain store house and “also all the goods, wares and merchandise of every class, character and description then contained in said building; also all fixtures and apparatus used in carrying on said business, together with, all and singular, the rights, members and appurtenances thereto belonging’’ does not constitute a general assignment when it is shown that there were notes and accounts due the assignors aggregating about $20,000; for the language employed in the deed is not sufficiently broad to cover these notes and accounts. Such an assignment is a partial one.</p> <p>2. Assignment — Withholding Property.</p> <p>An assignment for creditors purporting to convey property which is withheld by the assignor is fraudulent and void; but where an assignment is partial the withholding by the assignor of certain property not contained in the deed of assignment, does not invalidate the conveyance, where all property described therein was delivered to the assignee.</p> <p>3. Assignment — Place of Filing Inventory, and Bond.</p> <p>Under Mansf. Dig. Sec. 305, an assignee is required to file inventory and bond “in the office of the clerk of the court exercising equity jurisdiction.” Inventory and bond of assignee was filed at Ardmore. The property conveyed was in the town of Chickasha. There is but one Clerk for the Southern District of Indian 1 erritory, and he resides and has his office at Ardmore. Sec. 5550 Mansf. Dig. establishes the recorder’s office at the seat of justice, and Sec. 5558 requires the recorder, who is the clerk, to record all instruments concerning lands or chattels for record. Held, that the inventory and bond covering property in the said district was properly filed at Ardmore, the .seat of the court for said district.</p> <p> 4. Assignment--Appointment of Assignee as Receiver. </p> <p>The attaching creditors agreed to the appointment of the Assignee as Receiver before his inventory and bond as assignee was completed. The assignee as receiver executed a b.ond as such. Held, that this receiver’s bond supejseded and did entirely away with the necessity for filing an inventory or bond as assignee at any point.</p> <p>5. Assignee, who is Intervener, Not Proper Receiver — Objection Waived by Agreement.</p> <p>Where the assignee is a claimant for the assigned property as an interpleader in the case, he is not a proper person to be made receiver thereof, under Mansf. Dig. Sec, 5290. But where no objection was made at the time of appointment or after until the trust was wholly executed and the proceeds in hands of the court for disposition, and the appointment was made by agreement of the parties, his acts will not be disturbed.</p>

<p>1. Appeal — Dismissal—Extension of Time..</p> <p>Under Mansf. Dig. Sec. 1271, the court is authorized to extend the time for filing the record in the appellate court, on appeal, although the statutory period of 90 days has already expired and motion has been made to dismiss the appeal because of such failure.</p> <p>2. Improvements on Indian Lands — Sale of — Homestead not Subject to Sale.</p> <p>Under Sec. 31, of Act of Cong, of May 2, 1890 (26 Stat. 95) which provides for the sale of improvements on real estate in the Indian Territory, owned by an adopted citizen of an Indian tribe or a person not a citizen thereof, after the return of nulla bona upon an execution sued out upon a judgment against such person, it is error for a court to order the sale of certain improvements on real estate of the judgment debtor, without an inquiry having been made as to whether or not such improvements-constituted the debtor’s homestead.</p> <p>3. Improvements on Indian Lands — Sale of — Only Indian Citizens May Purchase.</p> <p>And under such statute, which also provides that if any such improvements are sold, under such proceedings, only citizens of the tribe in which said property is situated may become purchasers thereof, it is error for the court to decree the sale of such improvements without limiting the right of purchase to citizens of the tribe within whose territory the said improvements are situated.</p>