Volume 33 — Oklahoma Reports

<p>1. BILLS AND NOTES — Indorsement — Sufficiency. An indorsement on the hack of a nonnegotiable promissory note, which reads: “For value received I hereby guarantee the payment of the within note at maturity, or at any time thereafter, with interest at the rate of - per cent, per annum until paid. Waiving demand, notice of nonpayment and protest, as collateral ’ ’■ — signed by the payee, is sufficient to pass the title to the paper.</p> <p>2. PLEDGES — -Assignment of Note as Collateral — Action by Pledgee. Where the payee of a nonnegotiable promissory note assigns it to'a third party as security for a loan, and pays the loan pending suit on the collateral, the holder may nevertheless recover on the collateral' note from the maker, unless the latter is thereby deprived of some equity which he may have had against the payee.</p> <p>(Syllabus by the Court.)</p>

<p>1. BANKS AND BANKING — Trust Funds — Application to Debt to the Bank. A depositor, having an account with a bank in which he deposited trust funds, drew his check as trustee thereon to pay his private debt to the banker. The banker, with knowledge of the trust, concurred with the depositor in the appropriation by the depositor of the trust in order to pay an individual claim held against him by the bank. Held, that the bank acquires no title to said funds as against the true owner.</p> <p>2. TRUSTS — Mingling Trust Funds. If a party mixes trust funds with his own, the whole will be treated as trust property, except so far as he may be able to distinguish what is his. This doctrine applies to money deposited in banks.</p> <p>S. SAME — Misapplication. Where a person holding money in a fiduciary capacity pays or transfers it to a bank with notice of his relation to it, for a purpose foreign to the trust, the bank cannot hold the money as against the true owner. (a) An action to recover same will lie in favor of the true owner as against the party to whom the trust fund was transferred contrary to the trust.</p> <p>i. CLERKS OF COURTS — Custody of Funds — Trust—What Constitutes. A United States Court clerk receiving moneys by virtue of his office holds the same in trust.</p> <p>5. COURTS — Decisions—Controlling Effect. As to cases pending in the territorial courts in Indian Territory and Oklahoma Territory at the time of the erection of the* state, the decisions of the Supreme Court of the United States are controlling.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court„ Oklahoma County; George W. Clark, Judge.</p> <p>Action by James Whitaker and others against C. G. Jones, as Mayor of Oklahoma City, and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by Fannie Curry and others against E. E. McDaniel and others . Judgment for defendants, and plaintiffs bring error.

Error from District Court, Rogers County; T. L. Brown, Judge. Action by John E. Harris, a minor, by J. B. Rutherford, guardian, against Elzira Lynch, a minor, by guardian. Judgment for plaintiff, and defendant brings error. This case originated in the district court of Rogers county. The original plaintiff was John F. Harris, a minor, by John B. Rutherford, his guardian, who is now the defendant in error, but will hereafter be called plaintiff.

Error from District Court,, Rogers County; T. L. Brown, Judge. Action by William B. Harris, a minor, by J. B. Rutherford, guardian, against Elzira Lynch, a minor, by Moses Riley, guardian. Judgment for plaintiff, and defendant brings error.

Error from Carter County Court; L. S. Dolman! Special Judge. Action by Ardmore Lodge No. 9, I. O. O. F., by Henry Kim-ball and others, trustees, against K. W. Dawson and others. Ver'dict for plaintiff, and from an order granting a new trial it brings error.

<p>1. COURTS — Jurisdiction — Title to Real Property. The district, courts of the state have jurisdiction of actions in ejectment and of actions to remove cloud from title; and the county courts of the state have no jurisdiction of such actions, for the reason that they call into question or dispute title to real estate.</p> <p>2. INDIANS — Jurisdiction—Title to Real Property. Prior to the admission of the state, the will of a deceased Indian was duly probated and executed by the executor in the Indian Territory, and all the debts of the estate paid. There was but one beneficiary under the will. Held, that a district court of the state has jurisdiction of an action in ejectment to recover possession of or of a suit to remove cloud from title to the allotted lands of deceased,, brought by the heirs at law of deceased against the beneficiary under the will claiming title to said lands under the will, in which action the heirs contend, first, that the will of deceased does not devise the land in controversy; and, secondly, if it attempted to devise it, it was not within the power of deceased to devise-said lands.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Muskogee County Court; W. C. Jackson, Judge. </p> <p>Action by A. T. Ingram against the Bank of Commerce. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Haskell County; Malcolm E. Rosser, Judge. </p> <p>Action between May Barnett and J. W. Frederick and others. From the judgment, May Barnett brings error.</p>

Error from District Court, Nowata County; T. L. Brown, Judge. Action by Fred S. Rowe and others against Fred D. Bailey and others. Judgment for plaintiffs, and defendants bring error.

<p> Brror from Bilis County Court; A. B. Williams, Judge. </p> <p>Action by B. E. Shouse against M. A.. Awad. From a judgment of the county court reversing a judgment of the justice of the peace for defendant, he brings error.</p>

<p>1. PLEADING — Allegations in General — Surplusage. Where the facts constituting the pleader's cause of action are fully set out in Ms petition, and are followed by a formal statement of his conclusions drawn from the facts stated, such conclusions, if erroneous, may be disregarded as surplusage.</p> <p>2. FIXTURES — Annexation to Realty — Intention. Chattels may be annexed to the real estate and still retain the character of personal property. Of the various circumstances which may determine whether, in any case, this character is or is not retained, the intention with which they are annexed is one; and if the intention is that they shall not by annexation become a part of the freehold, as a general rule, they will not.</p> <p>3. SAME — Seller and Buyer of Chattels — Eights of Third Parties. Certain brick manufacturing machinery was sold upon a written agreement between the parties that the title thereto should not pass to the vendee until the purchase price was fully paid; that the title thereto should not be affected by the delivery and erection thereof; that if default should be made in the payment of the purchase money the vendor should have the right to enter upion the premises, "wherever said machinery may be found and take possession thereof.” In an action of replevin to recover possession of said machinery for nonpayment of purchase price, the evidence reasonably tended to show that the machinery was annexed to certain real estate belonging to the vendee, according to the terms of the contract, and that the mode of annexation was such that the removal thereof would not take away or destroy that which was essential to the support of the buildings, foundation, or walls, or other parts of the real estate to which it was attached, and that it would not destroy or of necessity impair the machinery itself. Held, that the agreement between the original vendor and vendee, fully expressing their distinct purpose that the annexation of the machinery should not make it part of the real estate, was sufficient to that effect, without any concurring intention on the part of a third person, who subsequently purchased the land from the purchaser of the machinery.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Waiver of Objections — Departure. Although the allegations of a reply may constitute a departure, yet the question of such departure cannot be taken advantage of by demurrer or objection to the introduction of evidence. The defendant, having failed to move to strike the reply on such ground, and going to trial on the issues thus framed, waived such defect.</p> <p>2. TRUSTS — Express Trusts — Validity of Oral Trust. A pleading that is sufficient to withstand a demurrer under the statute of frauds is also sufficient under the statute of uses and trusts (section 7267, Comp. Laws 1909; section 4186, St. Okla. 1890).</p> <p>3. PLEADING — Demurrer—Admissions. Although a demurrer admits the facts of a petition, the agreement being in parol, the • defendant is entitled to the benefit of the statute of frauds, unless the part performance, which is set out therein to avoid its operation, is of a character to have that legal effect. The demurrer admits the parol agreement, and insists that it is not such a parol agreement as will avoid the operation of the statute, and deprive ■ the defendant of the benefit of it as a defense.</p> <p>4. SAME — Demurrer—Admissions. A defendant may answer and admit a parol agreement, but if, at the same time, he insists on the protection of the statute, no decree can be made against him merely on the ground of the admission of the agreement. A demurrer is, in effect, the same as an answer which admits the parol agreement, but claims the benfit of the statute. It admits the agreement, but denies the right of the complainant to enforce it.</p> <p>5. SAME. If the petition alleges 'such a part performance as will take the agreement out of the statute, the demurrer is such an admission of the part performance as will preclude the defendant from the benefit of the statute. The petition must state the facts whieh are relied upon as part- performance. When the facts are admitted by the demurrer, the court must determine whether the facts relied upon constitute a part performance.</p> <p>6. SPECIFIC PERFORMANCE — Frauds, Statute of — Operation of Statute — Performance by Plaintiff — Validity of Parol Trust. 33. C., the wife of W. C., held one-half of a certain 80 acres of land in trust for him. W. C. and his daughter, M. P. (plaintiff in error), agreed in parol with E. C., who was the stepmother of M. P., that the said W. C. should convey the other half of said 80 acres of land to E. C.; that M. P. should contribute and assist in the support of said W. C. and E. C. during their natural lives; that E. C. should have the use and rents and profits from said land during her natural life, and at her death M. P. should own the same, and that E. C. would execute in due time the proper instrument to effectuate the intention. E. C. died without executing a will or deed to that effect; in fact, executed no will or instrument whatever in favor of any one relative to said land. M. P. executed or completed her part of the contract by making contributions toward the support of her father and stepmother. Held, that M. P. may sustain a suit in equity upon such parol agreement after such performance for a specific performance of the contract against the other heirs.</p> <p>(a) The complete performance of said contract on the part •of the party seeking to avail herself of its benefits took the case out of the operation of the statute of frauds.</p> <p>(b) Such a performance as would take the case out of the operation of the statute of frauds would also take it out of the inhibitions of "the statutes of uses and trusts. (Section 7267, Comp. Laws 1909; section 4186, St. Okla. 1890.)</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Annie M. Jamieson against the Classen Company and others. Verdict for plaintiff. From an order granting a new trial, plaintiff brings error.

<p>APPEAL AND ERROR — Review—Grounds of New Trial. On an action brought to recover on a foreign judgment, the court denied defendants the right to amend their answer by pleading the statute of limitations and on a trial rendered judgment against them. On reconsidering the case on the presentation of a motion for a new trial, the court granted the same without assigning any reason therefor. The presumption obtains in this court that judgments and orders of trial courts are correct; and where discretion is exercised, except where the abuse thereof is affirmatively shown, the same will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Greer County; G. A. Brown, Judge. </p> <p>Action by C. P. Hamilton and H. Mathewson against the Oklahoma Trading Company and the El Reno Wholesale Grocery Company. Judgment for defendants, and plaintiffs bring error.</p>

Error from Noble County Court; H. E. St. Clair, -Judge. Action by the Hercules Buggy Company against A. C. Blinde. Judgment for defendant, and plaintiff brings error. Reversed and remanded, with instructions.

<p>OIL AND GAS LEASE. Same as that in Cedric Duff et al. v. Harwood Keaton et al., post, 124 Pae. 291.</p> <p>(Syllabus by the Oourt.)</p>

Error from District Court, Okmulgee County; W. E. Barnum, Judge. Action by Cedric Duff, a minor, by his mother, Evaline Duff, as next friend, and by the latter in her own right, against Har-wood Keaton, guardian, and another. Judgment for defendants, and plaintiffs bring error.

<p> Appeal from Ordef of Corporation Commission. </p> <p>Appeal by the Atchison, Topeka & Santa Fe Railwaj^ Company from an order of the Corporation Commission in proceedings by Thatcher & Sons.</p>

<p> Error from Superior Court,-Logan County; S. S. Lawrence, Judge. </p> <p>Action by A. G. Copeland against Frank Olsmith, Mayor of the City of Guthrie, and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Remand—Procedure—Second Appeal. Where a cause is reversed and remanded by the Supreme Court with directions to proceed in accordance with the decision of the appellate court, and the court below proceeds in substantial conformity with such direction, its action will not be considered on a second appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. COUNTIES — Indebtedness—Limitations. The limitation imposed upon county indebtedness by section 1 of chapter 16, Sess. Laws 1895, Ter. of Oklahoma (section 1683, Comp. Laws 1909), includes debts and liabilities incurred and fixed by operation of law as well as those arising fi'om express contracts.</p> <p>2. SAME. Section 26 of article 10, p. 150, ‘Williams’ Ann. Const. Okla., fixes a limitation upon the authority of the Legislature and other agencies of the state to allow the counties, cities, and other subdivisions of the state to become indebted and is not a limitation upon the authority of the Legislature to fix a limit within the bounds therein determined, hence section 1 of chapter 16, Sess. Laws 1895 (section 1683, Comp. Laws 1909), is not repugnant thereto and was brought over and became a valid statute of this state under and by virtue of the terms of the Enabling Act and the Schedule to the Constitution.</p> <p>3. MANDAMUS — Proceedings—Accrual of Cause of Action. The issue to be tried and determined in mandamus is that raised by the writ and answer, and the nonexistence of a cause of action when a suit is brought is a fatal defect which cannot be cured by the accrual of a cause while the suit is pending.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Logan County'; A. H. H list on, Judge. </p> <p>Action by Felix Adler for mandamus to Tom Jenkins. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Dismissal—Grounds. A proceeding in ■ error, brought to this court 'on a case-made, where it does not appear from the record or otherwise that tlie defendant was present, either personally or by counsel, at the settlement, or that notice of the time thereof was served, or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.</p> <p>2. SAME — Effect of Appearance. The entering of a general appearance by the defendant in error in a proceeding in error in this court does not waive the right to object to the sufficiency of the case-made, where it is shown that neither the defendant in error nor his counsel waived, or were given notice of, the time and place of the signing and settling of the same, when no amendments are suggested.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Record—Scope and Contents — Petition for Removal. A petition and bond for removal, having been duly incorporated in a valid ease-made, thereby becomes a part of the appeal record without a bill of exceptions.</p> <p>2. . REMOVAL OF CAUSES — Proceedings—Effect of Application. The question presented to the trial court when a petition for removal is filed, accompanied by proper bond, is one of law arising on the sufficiency of the petition, and, where the question of the right of removal arises out of the facts averred, the same cannot be tried in the state court; for jurisdiction to hear and determine this question is vested exclusively in the federal court to which removal is sought.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by J. W. Graham and others against Love joy, Russell & James. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. STATES — Action Against. Suits against officers of a state as representing the state in action and liability, and in which the ■ state, although not a party to the record, is the real party against which relief is sought, and in which a judgment for plaintiff, although nominally against defendant as an individual, could operate to control the action of the state or subject it to liability, are suits against the state.</p> <p>2. SAME. A proceeding in mandamus brought for the purpose of requiring the auditing and allowance of a disputed claim for rent growing out of a private contract between the state and parties owning property occupied by state officials, is an action brought against the state, and cannot be maintained except with its consent.</p> <p>(Syllabus by the Court.)</p>

<p>Original ■ action in mandamus by C. F. McKee and others-against R. P. De Graffenreid and others.</p>

<p>Application by the State, on relation of M. Ikard, for writ of prohibition to Stilwell H. Russell, Judge of the District Court.</p>

<p>INDIANS — Indian Lands — Allotment. By reason of section 22 of an act of Congress, approved July 1, 1902 (chapter 1375, 32 IT. S. St. at L. p. 716; 1 Kappler’s Indian Affairs, Laws and Treaties, p. 789), the Commissioner' to the Five Civilized Tribes, upon motion made before him, and the Secretary of the Interior, on appeal from an order of said Commissioner, have power at any time before the issuance of patent to art allottee of the Cherokee tribe of Indians, upon notice to such allottee and after hearing, to cancel and set aside a judgment of the Commissioner in a contest awarding to the allottee as contestant the lands allotted to him, when such judgment was procured without service of notice of contest upon the contestee, and without an opportunity given to the contestee to be heard, but upon a false and fraudulent affidavit made by the contestant or one acting for him, showing that such service had been made.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Tulsa County; L. M. Poe, Judge. Action by the State, on the relation of M. E. Trapp and others, against Alice S. McGannon, administratrix. From the judgment, defendant brings error.

<p> Appeal from Order of Corporation Commission. </p> <p>Appeal by the Atchison, Topeka & Santa Fe Railway Company from an order of the Corporation Commission in proceedings commenced by J. F. McFadden.</p>

<p>1. CARRIERS — Contract of Shipment — Limitations. A shipper of live stock cannot, in the absence of fraud by the carrier, avoid limitations of the carrier's liability contained in the bill of lading or shipping contract by showing that he executed the contract hurriedly, or without due care, or 'that .he was ignorant of its contents, or failed to read the same.</p> <p>2; SAME. By the laws in foree in the territory of Oklahoma prior to statehood, a- provision in a live stock contract or bill of lading to the effect that, as a condition precedent to a recovery for. any damages by such contract, the shipper will give notice in writing of the claim therefor to some general officer or the nearest sta-' tion agent of the carrier of to the agent at destination or to some' general officer of the delivering line before such stock is re-, moved from the point of shipment or from the place of .destination, and before such stock is mingled with other stock, such notice to be served within one day after the delivery of such stock at destination, was valid.</p> <p>3. SAME — Live Stock Shipment — Notice of Injury. Where, from the nature of the injury alleged and proved to have been inflicted upon the cattle, it must have been apparent at once upon their arrival ' at destination that they were seriously damaged and that there was nothing to prevent the shipper from making the necessary claim and giving the railroad company an opportunity to examine the live stock within the time and in the manner limited in the shipping contract, the question of the reasonableness of such a provision is a question of law for the court.</p> <p>4. SAME — Limitation of Liability — Waiver of Stipulations. A stipulation limiting the liability of the carrier or fixing the time and manner of giving notice or presenting claims may be waived by the carrier impliedly, by. conduct, as well as expressly.</p> <p>5. SAME — -Notice of Damage — Waiver. Where there is evidence tending to show that the freight claim agent of a common carrier receives a claim for damages to a shipment of live stock after the time limited by a clause of the shipping contract requiring notice, which has not been complied with by the shipper, has expired, treats it as pending and then rejects it on other grounds, the question of whether the carrier intends to waive the notice clause as a defense is a question of fact for the jury.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Wagoner County; John. H. King, Judge. Action by Foil M. Brady against William Sizemore and others. Judgment for defendants, and plaintiff brings error.' Reversed and remanded, with directions.

Proceedings before the Corporation Commission by B. C. Wadlington and others against Lewis T. Hine, sole owner of the Purcell-Lexington Telephone Company. From the order of the Commission, Hine appeals.

<p>1. JUSTICES OF THE PEACE — Procedure — Judgment — Appeal Bond. Where the justice fails to render judgment on or before the fourth day after the close of the trial, contrary to Wilson's Rev. & Ann. St. 1903, sec. 5039, held error, but that the same could not affect the right of plaintiff to perfect his appeal therefrom by filing his appeal bond in the county court within ten days from the date of the judgment when rendered.</p> <p>2. APPEAL AND ERROR — Pleading—Amendment to Conform to Evidence. Where, in a suit to recover for a partial loss on a hail insurance policy, plaintiff pleads performance of all conditions precedent to a recovery and defendant specifically denies the same, as provided by Comp. Laws 1909, sec. 5662, and where, on trial in the county court, without pleading the same, plaintiff, over objection, makes ineffectual effort to prove a waiver of one of said conditions, and where, pending proof of waiver, defendant introduces in evidence facts sufficient to constitute a waiver, held, that plaintiff’s petition is amended so'as to conform to the facts thus proved, thus putting in issue a waiver based upon those facts, with sufficient evidence to send that issue to the jury.</p> <p>3. INSURANCE — Proofs of Loss — Waiver. Where in attempting to comply with a clause in an insurance policy, in effect providing that the insured shall within 60 days after loss make proof of same to the insurance company, and that a failure so to do within that time shall cause a forfeiture of any claim under such policy, and where plaintiff, within that time, furnished defendant certain affidavits intended as such proof, but which was not a substantial compliance with the terms of the policy, but was fatally defective, held, that said stipulation is waived where defendant received and retained said proofs without .specific objection to any defects therein.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Johnston County; A. T. West, Judge. </p> <p>'Action by L. V. Mullen against N. H. Simmons and others. Judgment for plaintiff, and defendants bring error.</p>

<p>MASTER AND SERVANT — Injuries to Servant — Existence of Relation. One who, at the request of a conductor in charge of a freight train, an emergency existing reasonably requiring such assistance, temporarily assists in the work of the carrier in the unloading of a safe from'one of its cars, the regular crew not being reasonably able to unload same, is, for the time being, the servant of the defendant and entitled to the same protection as any other servant.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Oklahoma County; Geo. W. Cla/i'k, Judge. Action by J. W. Willoughby, receiver, against J. C. Robb. Judgment for plaintiff, writ of garnishment issued against J. R. Bailey and Bailey brings error.

<p> Error from District Court, Johnston County; A. T. West Judge. </p> <p>Action between Rual E. Taylor and Allie Parker and others. From the judgment, Taylor brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Case-Made—Service on Adverse Party. The syllabus in American National Bank of McAlester v. Mergenthaler Linotype Co., 31 Okla. 533, 122 Pae. 507, is made the syllabus here.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washita County; James R. Tolbert, Judge. </p> <p>Injunction by J. H. Felkner against W. F. Winningham and others. From an order dissolving the injunction, plaintiff brings error.</p>

<p> Error from Greer County Court; Charles H. Eagin, Judge. </p> <p>Action by IT. D. Henry and others against the Board of County Commissioners of Greer County. Judgment for plaintiffs, and defendant brings error.</p>

<p>Application by Tom Anderson for writ of habeas corpus. Denied.</p>

<p>Petition by Joe Lightle for a writ of habeas corpus.</p>

<p>FORMER DECISION CONTROLLING. Same as that in Ex parte Tom Anderson, ante, 124 Pae. 980.</p> <p>(Syllabus by the Court.)</p>

<p>CONSTITUTIONAL LAW — Enactment—Initiative—“Will.” The word “will,” as used in section 1 of an act approved March 18, 1911 (Sess. Laws 1910-11, e. 107), entitled “An aet amending section 2, art. 1, chapter 66 of the Session Laws of 1910,” and providing ‘ ‘ any citizen of the state may, within ten days, by written notice to the Secretary of State and to the party or parties who filed such petition, protest against the same, at which time he will hear testimony and arguments for and against the sufficiency of such petition,” means “shall” and is mandatory, and, being addressed to a public official, excludes the idea of discretion.</p> <p>(Syllabus by the Court.)</p>

<p>FORMER DECISION CONTROLLING. Same as that in Ex parte Tom Anderson, ante, 124 Pae. 980.</p> <p>(Syllabus by the Court.)</p>

<p>1. PROCESS — Service l>y Publication — Sufficiency of Affidavit. An affidavit filed for the purpose of obtaining service by publication in which it is stated the defendant is a nonresident of the state of Oklahoma, and is a resident of the state of Indiana, without showing that service could not have been had upon the defendant within the state of Oklahoma, is insufficient to support service by publication.</p> <p>2. PLEADING — Motions—Judgment on Pleading's. Where the material averments of plaintiff’s petition are denied by the answer of the defendant and facts pleaded showing the same to be untrue, it is error to render judgment for plaintiff on the pleadings..</p> <p>(Syllabus by the Court.)</p>

<p>PARTNERSHIP — Fictitious Name — Publication — Action. Paragraphs 3901, 3903, Wilson’s Rev. & Ann. St. 1903 (sections 5023, 5025, Comp. Laws 1909), providing that a partnership transacting business in this state under a fictitious name shall file a certificate with the clerk of the district court stating the names of the members of the partnership in full, and publish the same for four consecutive weeks, and that persons doing business as a partnership contrary to the provisions thereof shall not maintain any action on account of any contracts made or contracts had in their name in any court in this state until they have first filed their certificate and made the publication required, is mandatory, and must be complied with literally, and the publication required must be had before any such action can be brought or maintained in the courts.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by the Lynde-Bowman-Darby Company against J. L. Huff. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by Emma Verde against Louis Baumle. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EJECTMENT — Recovery for Improvements. A judgment for the value of improvements made by an unsuccessful defendant in an action in the nature of ejectment cannot be allowed in that action, but recovery, if had at all, must be had under the provisions of sections 596-602 (sections 4794-4800) art. 25, c. 66, Wilson’s Eev. & Ann, St. 1903; sections 6128-6134, Comp. Laws 1909.</p> <p>2. SAME — Procedure. Application for the benefit of this act may be made by claimant on a return of the mandate of the Supreme Court in the action of ejectment.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissenting.</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by the Thomas Gin-Compress Company against N. V. Bilby. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Washington County; John J. Shea, Judge. </p> <p>Action by W. A. Letson against Olive A. Buffalo. Judgment for plaintiff. Defendant brings error.</p>

<p>1. CORPORATIONS — Actions—Pleading. An answer setting up a pilea in bar to an action on a promissory note, which alleges, in substance, that plaintiff was a corporation incorporated under the laws in force in the Indian Territory prior to statehood, and was doing business at the time of the admission of Oklahoma into the union, and so continued to do business to the time of the filing of the action, and that it had not complied with the Constitution and laws of the state of Oklahoma in reference to corporations doing business in the said state at the time the transaction in suit took place nor at the time of the filing of the action thereon, is not effective as a plea in bar to such action on transactions had by the said corporation, under the provisions of section 43, article 9, par. 260, Williams’ Ann. Const. Okla., and a demurrer to such plea is properly sustained.</p> <p>2. COVENANTS — Construction—Title to Realty. A covenant in a deed holding lands described therein to the grantee, his heirs, and assigns in fee simple forever, and an agreement that grantor is lawfully seised in fee of the premises, is an assurance to the purchaser that the vendor has the very estate in quality and quantity which it purports to convey. Such a covenant imports an indefeasible estate and exacts a perfect title, which is not limited by a special warranty, unless the language of the deed taken all together clearly shows that it was the intent of the parties to give a special and limited warranty of title, as, except in such eases, a special warranty in a deed does not have the effect of controlling a precedent general covenant.</p> <p>3. SAME — Breach—Warranty of Title. Where a grantor under general covenants of title sells and conveys land to a grantee of which it has no title, breach of the covenant occurs when made and notes given for the purchase price are without consideration, and where defended against on this ground, are unenforceable. Nor is this rule affected by the fact that both parties knew of the lack of title.</p> <p>4. VENDOR AND PURCHASER — Remedies of Purchaser — Recovery of Money Paid. Where on a trial of an aetion to recover unpaid purchase money for lands conveyed under deed of general warranty, the title to which has wholly failed, the obligors plead such failure of consideration and tender a reconveyance, they are entitled to recover in such action any portion of the consideration paid, under the doctrine that money may be recovered by the owner from another wherever in equity and good conscience the latter has no right to retain it.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pawnee County; L. M. Poe, Judge. Action by S. M. Woodard and others against John Stro-snider, County Superintendent, and others. Judgment for de-r fendants, and plaintiffs bring error.

Error from District Court, Okfuskee County; John Caruthers, Judge. ' Action by S. M. Wilson against the St. Louis & San Francisco Railroad Company and the Ft. Smith & Western Railroad Company. Judgment for plaintiff against the Ft. Smith & Western Railroad Company, and in favor of the other defendant, and the Ft. Smith & Western Ra-ilroad Company brings error.

Error from District Court, Caddo County; J. T. Johnson, Judge. Action between Clyde Thompson and others and R. P. Rear-ick. From the judgment, Thompson and others bring error.

Error from District Court, Muskogee County; R. P. de Graff enried, Judge. Claim of Charles Schaffer against the Board of County Commissioners of Muskogee County. From a judgment of the district court on appeal from an order disallowing the claim in part, the plaintiff brings error.

Error from District Court, Creek County; Wade S. Stanfield, Judge. Mandamus, on the relation of Holmes Davidson and another, against L. O. Shannon and others. Judgment for relators, and defendants bring error.

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action between William H. Ludwig and John D. Benedict. From the judgment, Ludwig brings error.</p>

<p> Error from District Court, Canadian Cotmty; Jno. J. Carney, Judge. </p> <p>Action between Hester Craig and C. O. Greer, sheriff, and others. From the judgment, Hester Craig brings error.</p>

<p>1. CRIMINAL LAW — Judgment—Correction. Where a defendant is tried, convicted, and sentenced to imprisonment, but, by the error of the clerk, the judgment is not entered on the records of ■the Court, the error may be corrected at any time by an order nunc pro tunc. Following Ex parte Lydia Howland, 3 Okla. Or. 142, 104 Pae. 927, Ann. Cas. 1912A, 840.</p> <p>2. SAME — Execution of Sentence — Imprisonment. The prisoner having been formally convicted, and not having served his sentence, and the judgment of conviction not being stayed as provided .by law, he may be apprehended as on escape and placed in custody on the unexecuted judgment.</p> <p>(a) Expiration of time, without imprisonment, is in no sense an execution of the sentence. Following Ex parte John Eldridge, 3 Okla. Cr. 499, 106 Pac. 980, 27 L. E. A. (N. S.) 625, 139 Am. St. Eep. 967.</p> <p>(Syllabus by the Court.)</p>

<p>1. FRAUDS, STATUTE OF — Contracts Relating to Real Property-Effect of Performance. The owner of a building leased same to a corporation for a period of three years at a stipulated rental of $75 per month. The lessee, after the expiration of about one year, by parol agreement, assigned the lease. The assignee took possession of the demised premises, paid the purchase price for the lease, and performed the covenants thereof by paying for a time the monthly rentals to the lessor, as provided in the lease contract; but, before the expiration of the lease, the assignee abandoned the premises and refused to pay the rents for the unexpired term. Held, that the assignment of the lease was in violation of the statute of frauds, and void (section 1089, Comp. Laws 1909), but that the acts of the assignee relieved it from the operation of the statute, and that the assignee was liable to the lessor for the full term of the lease.</p> <p>2. LANDLORD AND TENANT — Assignment of Lease — Liability of Assignee. The assignee of a lease is liable to the lessor by reason of privity of estate for rents on the demised premises, so long as the privity of estate continues.</p> <p>3. SAME. An assignee cannot, by mere abandonment of possession of the premises, without an assignment of the lease, avoid liability for rents.</p> <p>(Syllabus by the Court.)</p>

Error from Okmulgee County Court; M. M. Alexander, Judge. Action by the International Bank of Bristow against Council Long and another, and Plenry Bowser intervenes. Judgment for intervener, and plaintiff brings error.

<p> Error from Major County Court; O. M. Evans, Judge. </p> <p>Action by the Bank of Fairview against B. F. Martin and another. Judgment for defendants, and plaintiff brings error.</p>

<p>.SCHOOLS AND SCHOOL DISTRICTS — Alterations—Apportionment of Liability. Where part of the territory of one school district is annexed to another, unless some provision is made by law respecting the property and existing liabilities, the property within the detached territory belongs to the municipality to which it is attached; and each is responsible for the debts contracted by it prior to the change.</p> <p>(Syllabus by the Court.)</p>

<p>1. BROKERS — Authority—Acting for Both Parties. A sale of real estate from which a substantial advantage has been derived cannot be sustained when he who actively promoted it acted as the ostensible agent for the vendor, when in reality he was the secret agent of the purchaser, unless it appears that the principal after full knowledge of all the facts confirmed the acts of the agent.</p> <p>2. SAME — Unauthorized Acts — Ratification — Evidence. Evidence ' examined, and held sufficient to support the finding of the court below as to the scope of the agency, and that there was no confirmation by the principal after full knowledge of all the facts.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Adair County; John H. Pitchford, Judge. </p> <p>Action by A. C. McKee against George Ferguson. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Review—Ruling on Motion for New Trial. An order sustaining a motion for a new trial will not be reversed by the Supreme Court, unless it can be seen beyond a reasonable doubt that the trial court has manifestly erred as to an unmixed question of law.</p> <p>(Syllabus by the Court.)</p>

<p>SHERIFFS AND CONSTABLES — Liability—Amercement. Section 5997, Comp. Laws 1909, which provides for the amercement of sheriffs, is imperative in its terms, and grants no discretion to the court. When a sheriff fails to. make return of a writ of execution as required by statute, it is the duty of the court to amerce him, whether his omission results from willful wrong or mere neglect, and whether such omission has resulted in actual injury or not.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—Burden of Showing Error. In the Supreme Court error must be affirmatively shown ■ and where this is not done the judgment of the court below will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Tillman County Court; T. E. Campbell, Judge. </p> <p>Action by Parker, McConnell & Co., against W. A. Richardson and another. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from Craig County Court; N. J. Gubser, Judge. </p> <p>Action by the Cherokee National Bank against the Union Trust Company. Judgment for defendant, and plaintiff brings, error.</p>

<p> Srror from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by the W. H. Ashley Silk Company against the Oklahoma Eire Insurance Company. Demurrer to petition sustained, and plaintiff brings error. Reversed and remanded, with directions.</p>

<p>SHERIFFS AND CONSTABLES — Action on Bond — Parties. The state is a proper party plaintiff in an action upon the official bond of a sheriff to recover the penalties prescribed by sections 3371, 3372, and 3373, Comp. Laws 1909.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action between William Banks and A. D. Clark. From the judgment, Banks brings error.</p>

<p>1. BRIDGES — Construction by Counties — Statutory Provisions. In measuring the distance between the proposed location of a bridge to the nearest bridge on the same stream, to determine whether the proposed location is not nearer than six miles to the nearest bridge, as is required by section 7881, Comp. Laws 1909, the statute contemplates and requires that said measurement shall be upon a straight line between said points.</p> <p>2. SAME — Authority of County Commissioners. Under section 6 of an act of the Legislature of 1903 entitled ' ‘ An act authorizing the construction of bridges” (Sess. Laws 1903, p. 246), as amended by section 3 of an act of the Legislature approved March 10, 1905 (Sess. Laws 1905, p. 354), where the bridge-to be constructed is more than 200 feet in length, and crosses a stream that is the boundary line between two townships, the board of county commissioners is authorized to contract for the construction of such bridge only when the adjoining townships have offered and agree with the county to pay each one-half of one-fourth of the cost of construction of said bridge; and the board of county commissioners is without power, under said statute, to contract for the construction of such a bridge where the adjoining townships have offered to pay only one-third of one-fourth of the cost of the construction of said bridge, and an incorporated town in one of said townships offers to pay one-third of one-fourth of such cost.</p> <p>3. COUNTIES — Remedies of Taxpayers — Existence of Remedy at Law. A resident taxpayer may invoke the aid of a court of equity to enjoin the carrying out by a board of county commissioners of a void contract for the construction of a bridge, to be paid for in -part by” taxes levied upon the taxpayers of the county, although such taxpayers may have had the right of appeal to the district court from the order of the board of county commissioners, ordering the construction of such bridge.</p> <p>(Syllabus by the Court.)</p>

Error -from Superior Court, Pottatvatomie County; C. H. Ennis, Hedge pro tem. Action between the City of 'Shawnee and the State Publishing Company and others. From the judgment, the City brings error.

<p>APPEAL AND ERROR — Record—Case-Made—Time for Making and Serving. An order extending tlie time for making and serving a ease-made, made after the expiration of the time therefore fixed by order of the court or trial judge, is void.</p> <p>(a) A "ease-made” made and served within the time fixed by such void order is a nullity and cannot be considered as a ease-made by this court.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the State Corporation Commission. </p> <p>Appeal by the United States Express Company from an order of the Corporation Commission, requiring. the company to establish and maintain an uptown office in the town of Hobart for the transaction of its business.</p>

<p> Appeal from the State Corporation Commission. </p> <p>Appeal by the Atchison, Topeka & Santa Ee Railway Company from an order of the Corporation Commission.</p>

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Proceedings by the State against D. W. Poor. From a judgment for defendant upon a demurrer to the evidence, the state brings error.</p>

<p> Error from Jackson County Court; B. N. Woodson, Judge. </p> <p>Action between Neil P. Anderson and others and B. W. Mc-Mahan and others. From the judgment, Anderson and others bring error.</p>

<p>1. RAILROADS — Regulation—Orders of Corporation Commission — Review. On appeal from an order assessing a penalty under section 19, art. 9, Williams’ Ann. Const., Okla., against a railway company for an alleged violation of an order of the Corporation Commission, the Supreme Court has jurisdiction to pass upon the power of the Commission to make the order violated, and whether it is reasonable and just, notwithstanding such an order is not appealable when made.</p> <p>2. SAME — Interference With Interstate Commerce — Statutory Provisions. Order No. 148 of the Corporation Commission is not viola-tive of the commerce clause of the federal Constitution, and was not superseded by the act of Congress of May 6, 1910, e. 208, 36 St. at L. 350 (U. S. Comp. St. Supp. 1911, p. 1329).</p> <p>3. SAME — Orders of Corporation Commission. As construed by the Corporation Commission, it cannot be said that Order No. 14S is unreasonable or unjust.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Custer County; J. W. Lawter, Judge. Proceedings by the State, on the relation of Cliff Caldwell, for writ of prohibition to C. E. Vaughn and others, as the County Election Board of Custer County. From a judgment sustaining a demurrer to the petition, the relator brings error.

Error - from Superior Court, Garfield County; Dan Huett, Judge. Application by L. F. Worrell for writ of prohibition to the board of county commissioners of Garfield county. From a certificate granting the writ, the commissioners bring error.

<p> Brror from District Court, Oklahoma Coimty; Geo. W. Clark, Judge. </p> <p>Application by the City of Lawton for mandamus to Chas. West, ex-officio Bond Commissioner. Judgment for defendant; and plaintiff brings error.</p>

Error from District Court, Woodward County; R. H. Eoofbourrow, Judge. Action by J. Rawdon and Maggie T. Rawdon, his wife, against L. D. West and John R. Russell, copartners. Judgment for plaintiffs, and defendants bring error.

<p>1. APPEAL AND ERROR — Determination and Disposition of Cause —Effect of Death of Parties. Where, after an appeal is perfected in this court, one of the parties dies before submission of the cause, a judgment rendered after submission of the cause without revivor and without the court’s attention being called to the death of the party is not absolutely, void, but voidable.</p> <p>2. SAME — Vacation of Judgment. By reason of sections 6094 and 6101, Comp. Laws 1909, made by section 6102 to apply to this court, in so far as their provisions are applicable to its final judgments and orders, this court is authorized, upon proceeding begun within three years after judgment is rendered, to set aside and vacate a judgment for death of one of the parties before judgment.</p> <p>3. SAME. Said statutes confer power upon this court to vacate after the term at which it is rendered a judgment for death of one of the parties before the cause was submitted, but they do not make it mandatory upon the court to do so; and where judgment is rendered after death of defendant in error, affirming the judgment of the trial court, the attention of this court never having been called to his death, a motion of the plaintiff in error to vacate, filed approximately one and .one-half years after judgment is rendered, will not be sustained, where it does not appear that plaintiff in error’s petition states a cause for reversal, or that he was in any way prejudiced by the judgment being rendered without notice to the court of defendant in error’s death and without revivor of the action.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by John D. Ewing against Amos A. Ewing and wife. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Seminole County; Robt. M. Rainey Judge. </p> <p>Action by the Heliker-Jarvis Seminole Company against .Peter Lincoln and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Adair County; J. H. Pitchford, Judge. Action by Walter S. Whitmire and others against M. E. Trapp, Secretary of the State Board of Equalization, and others. Judgment for defendants, and plaintiffs bring error.

Error from Pittsburg County Court; R. W. Higgins, Judge. Action by G. C. Cochran and C. W. Cochran, doing business as the Cochran Grocery Company, against A. E. Jones & Co. Judgment for plaintiffs, and defendant brings error.

<p> Error from Bryan County Court; Chas. A. Phillips, Judge. </p> <p>Action by W. J. Moon against the Des Moines Insurance Company of Des Moines, Iowa. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Bryan County Coun; Chas. A. Phillips, Judge. </p> <p>Action by J. W. Moon against the Cosmopolitan Fire Insurance Company of New York. Judgment for plaintiff, and. defendant brings error.</p>

<p> Error from District Court, Nowata County; T. L. Brown, Judge. </p> <p>Action by the Farmers’ Supply Company against B. J. Sco-ville and wife and. W. J. Powell and others to enforce a mechanic’s lien. From the judgment finding defendants Scoville and wife indebted to certain of the other parties to the action, B. J. Scoville and wife bring error.</p>

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by Josie M. MeKain against Joseph W. McNeal. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — Towns—Extension of Boundaries. Lands adjoining an incorporated town which have been laid off and platted do not thereby become annexed thereto and form, a part thereof, unless the trustees by resolution of their board extend the boundary of such town so as to include such lands, as provided by section 873, Comp. Laws 1909.</p> <p>2. HOMESTEAD — Extent—Lands Outside Municipality. Such lands, are subject to section 1, art. 12, Williams ’ Ann. Const. Okla., which provides: “The homestead of any family in this state, not within any city, town or village, shall consist of'not more than one hundred and sixty acres of land, which may be in one or more parcels, to be selected by the owner. * * *’1</p> <p>(Syllabus by the Court.)</p>

<p>FORCIBLE ENTRY AND DETAINER — When Maintainable. Under the statutes of this state, in the absence of the relation of landlord and tenant, a person who has never been in possession of the premises in controversy cannot maintain an action of forcible entry and detainer against one in possession under color of title.</p> <p>(Syllabus by the Court.)</p>

Error from- District Court, Creek County; W. L. Barnum, Judge. Action between F. W. Turner and others and Mary Huff-stetler. From the judgment Turner and others bring error.

<p> Error from District Court, Okmulgee County; W. L. Barnum, Judge. </p> <p>Action by Katy Richardson and James Richardson against George C. Beidleman and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from District Court, Okmulgee County; W. L. Barnum, Judge. </p> <p>Action by Katie Richardson and James Richardson against George C. Beidleman and others. Decree for defendants, and plaintiffs bring error.</p>

Error from District Court,, Sequoyah County; J. H. Pitchford, Judge. Remonstrance by W. L. Curtis and others against the issuance of bonds by the Board of County Commissioners of Se-quoyah County. From a judgment overruling the remonstrance, the remonstrants bring error.

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action by the Bartlesville Gas & Oil Company against Robert L. Henry and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Case-Made—Delay in Service. A purported ease-made, which is not served within three days after the judgment or order appealed from is entered, or within an extension of time duly allowed, is a nullity, and cannot be considered by this court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washita County; Jas. R. Tolbert, Judge. </p> <p>Action between the St. Louis & San Francisco Railroad Company and W. E. Rickey, doing business as the Casebeer Grain Company. From the judgment, the Railroad Company brings error.</p>

<p> Error from District Court, Kingfisher County; James B. Cullison, Judge. </p> <p>Action between Lulu B. Edson and others and R. C. Herod, administrator, and others. From the judgment, Edson and others bring error.</p>

<p>Original action by the Incorporated Town of Bristow against the City of Sapulpa to contest a county seat election.</p>

<p>1. COUNTIES — County Seat Elections — Bribery. An offer of the mayor and city council of a city that is a candidate for designation as a permanent county seat at an election for that purpose to lease to the county for courthouse and jail purposes for a period of ten years the city's city hall at a rental of $10 per year, when the rental value of said property is $3,000 per year, which is made to induce voters to vote for said city at the election, constitutes, by reason of section 7, art. 17, of the Constitution, bribery.</p> <p>2. SAME — Effect on Election. Where the municipal authorities of a city which is a candidate at a county seat election for the seleetion of a permanent county seat of a county, for the purpose of influencing votes in favor of said city, offer the use of its city hall to the county for courthouse and jail purposes for a period of ten years for $100, when the rental value thereof for said period of time is $30,000, and such offer is circulated throughout the county by the supporters of said city by circulars, handbills, and newspapers; and a large number of the voters in different parts of the county become intereste'd therein and visit the city at their own expense, or at the expense of its supporters, and inspected the building; and it is shown that said proposition was urged throughout the campaign prominently as a reason why said city should be selected as the county seat; and where the supporters of said city by voluntary subscription raised a fund of more than $20,000, no record of the expenditure of which was kept; and it was intentionally handled by the disbursers thereof in such a manner that to whom it was expended and for what purposes expended could not be ■ ascertained from any record; and it could not be determined what part of it was spent legitimately and what part illegitimately; and it is shown that a large number of voters to wit, 61 in number, in different parts of the county, were bribed with part of said money to vote for said city, and that some of the election officers participated in said fund; and it is impracticable, if not impossible, on account of the way in which said money was handled, to determine the extent of its corrupt influence upon the electorate of the county; and where, by reason of the foregoing fraud and corruption, the result of the election is inextricably in doubt, and the will of the uncorrupted voters of the county cannot be ascertained from the returns of the election — said returns should be held for naught, and the burden held to be upon said city claiming to have been selected at such election as the permanent county seat to show such fact by evidence aliunde the returns.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Grady County Court; N. M. Williams, ludge. </p> <p>Action by J. E. Sparks, Tom Peery, and John Sacra, doing business under the firm name of Sparks, Peery & Sacra, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. RAILROADS — Operation—Injuries by Fire — Presumptions. Proof that property has been destroyed by sparks emitted by a passing locomotive creates a presumption of negligence on the part of the railroad company or its employees, either in the construction or handling of the locomotive, or in failing to keep it in proper repair.</p> <p>2. SAME — Question for Jury. Where it clearly appears that a fire was started on the right of way of a railroad by a passing, locomotive, which extended to and destroyed adjoining property, and the company, on the trial of an action against it, produces testimony, which was not directly contradicted, tending to show that the locomotive was properly constructed, equipped, inspected, and operated, held, that it was the province of the jury to determine whether the presumption of negligence, created by the starting of the fire, was overcome, since the jury had the right to weigh the testimony, and to determine whether the witnesses for the company were credible. Following McCullen v. Chicago & N. W. Ry. Co., 101 Fed. 66, 44 O. O. A. 365, 49 L. R. A. 642, and Great Northern Ry. Co. v. Coats, 115 Fed. 452, 53 C. G. A. 382.</p> <p>3. APPEAL AND ERROR — Review—Harmless Error. Errors committed by a court on a trial, which cause no prejudice, will not require a reversal of the judgment rendered on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>LANDLORD AND TENANT — Rent—Abandonment by Tenant. Where a tenant, a national bank, goes into voluntary liquidation under the national banking laws, and abandons leased premises before the expiration of the term of the lease, the landlord is not required to relet for the protection of the tenant, but may, at his election, suffer the premises to remain vacant and recover his rent for the remainder of the term by means of an action on the lease.</p> <p>(Syllabus by the Court.)</p> <p>Dunn, J., dissenting.</p>

Error from Superior Court, Logan County; J. M. Sandlin, Judge. Action by W. E. Haydon against C. N. Plaskell and others ■as Commissioners of the Land Office of the State of Oklahoma. Judgment for plaintiff, and defendants bring error.

<p>QUO WARRANTO — Parties—Commissioner of Insurance — Forfeiture of Charter. The Commissioner of Insurance, by virtue of article 6, sees. 1, 22, and 23, of the Constitution, is authorized to» bring suit in quo warranto in the district court to forfeit the charter of a corporation and oust it from doing business in the state, without, the intervention of the county attorney.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Custer County; J. W. Lawter, Judge. </p> <p>Action between H. H. Clark and D. A. Drake. Erom the judgment, Clark brings error.</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Mandamus by the State, on the relation of Kate Barnard, as Commissioner of Charities and Corrections, against J. W. Sullins and others, as the Board of County Commissioners of Okmulgee County. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; George W.-Clark, Judge. Proceedings by E. B. Cockrell, Bank Commissioner, to wind up the affairs of the Columbia Bank & Trust Company. On application of the Bank Commissioner for an order of sale, the United States Fidelity & Guaranty Company files a petition in intervention. From a judgment for intervener, the Bank Commissioner brings error.

<p>Error from District Court, Alfalfa County; M. C. Garber, Judge.</p> <p>Action by D. C. Warburton against R. H. Drennan, doing business as the R. H. Drennan Grain Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Lincoln County; Roy Hoffman, Judge. </p> <p>Action by Eugenia Davis against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. On motion to dismiss.</p>

<p>APPEAL AND ERROR — Settling Case-Made. Motion to dismiss overruled, on the authority of St. L. & S. F. R. Co. v. Davis, ante, 120 Pac. 562.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Okmulgee County; W. L. Barnum, Judge.</p> <p>Action by Ellen Hamilton against Bennie D. Plavercamp. Judgment for defendant, and plaintiff brings error.</p>

<p>1. STATUTES — Title of Act. Same as that in Jefferson v. Toomer, 28 Okla. 658, 115 Pac. 793.</p> <p>2. OFFICERS — Compensation —Fixing Salary — Constitutional Law. There being no provision of the statutes or the Constitution fixing the compensation for the several clerks of the district court prior to the passage of the act by the special or extraordinary session of the Legislature on March 19, 1910 (Sess. Laws 1910, e. 69, pp. 129, 139), the action of said Legislature in fixing the compensation of such officers is not in conflict with Const, art. 23, see. 10, forbidding the enactment of a law diminishing or increasing the emoluments or salary of a public officer after his election or appointment or during his term of office.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Oklahoma County; Edward Dezves Oldfield, Judge. Application by E. L. Persons for a peremptory writ of mandamus to C. C. Penn and others as the state election board of Oklahoma. ' From a judgment denying the application, the applicant brings error.

Error from District Court, Custer County; James R. Tolbert, Judge. Action by Laura Sorrell and another against E. A. Goss and others. Judgment for plaintiffs, and defendants bring error.

<p>1. APPEAL AND ERROR — Review—Insufficiency of Record. Plaintiff having waived all errors of law, if any, committed on the trial, by failing to file a motion for a new trial, and no error being apparent on the face of the record, or otherwise urged, nothing is presented to this court for review.</p> <p>2. SAME — Motion for New Trial. Plaintiff in error in his petition in error failing to assign as error the overruling of the motion for a new trial, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Payne County; A. H. Huston, Judge. </p> <p>Action by Ruth Gray, by J. T. Gray as next friend, against J. H. Connell, President of the Oklahoma Agricultural and Mechanical College of the State of Oklahoma, and another. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Review—Abstract Questions. The Supreme Court will not decide abstract or hypothetical cases, disconnected from the granting of actual relief, or from the determination of which no practical result can follow.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Final Judgment. Where, pursuant to sections 6094, 6095, Comp. Laws 1909 (sections 4760, 4761, Wilson’s Rev. & Ann. St. 1903), an order is made to set aside a judgment of the district court, said order is not final, and error therefrom will not lie.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by E. L. Cory against P. D. McConnell. Judgment for plaintiff, and defendant brings error.</p>

<p>1. ANIMALS — Quarantine—Infectious Diseases — Notice. That portion of section 7, art. 1, e. 3, p. 6, Sess. Laws 1907-08, providing that, after the Board of Agriculture had determined the quarantine lines, the president thereof should at once issue a proclamation setting forth the boundary and location thereof, and “have such proclamation printed and posted on each public road where same may cross such line, and at the courthouse in each county through which such line passes, and no further notice or publication shall be necessary,” was repealed by section 218, Comp. Laws 1909, which provided that the said board should “at the earliest practicable date publish once in no less than three newspapers of general circulation within the state, a notice of said proclamation and such publication shall be deemed full and sufficient legal notice of the proclamation of said board.”</p> <p>2. APPEAL AND ERROR — Review—Findings of Trial Court. Where an officer charged with the duty of selecting three newspapers of general circulation for the purpose of an official publication has acted, his selection will be presumed to be valid and the papers to fulfill the requirements of the statute, and where their sufficiency is questioned and a finding of the trial court supports the action of such officer, and the evidence seems reasonably to sustain the finding of such court, the same will not be disturbed on appeal.</p> <p>3. CONSTITUTIONAL LAW — Constitutionality of Act. The constitutionality of the criminal provisions of section 222, Comp. Laws 1909, cannot be raised by a party who is not being proceeded against thereunder, but against whom, action is taken by officers merely under those portions of the act compelling him to dip his cattle as provided for therein, or subjecting him to the cost and expenses of dipping the same where he refuses, and the service is rendered by the officers.</p> <p>4. ANIMALS — Infectious Diseases — Constitutional Law. Section 223, Comp. Laws 1909, is not unconstitutional for the reason either that the officers are authorized to act on the belief of the inspector of the Board of Agriculture or because authorized, on the refusal or failure to dip or otherwise treat cattle by one owning or caring for the same on premises believed to be infected, to take the cattle into custody and dip and treat the same, or for the reason that the costs and expenses are assessed to the owner and no preliminary notice and hearing is provided for before the same are made and the cattle held to cover them, as the owner has sufficient notice before the sale to give him opportunity to secure a hearing.</p> <p>(Syllabus by the Court.)</p>

<p>Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge.</p> <p>Action by P. W. Ostrander against R. A. Denny and L. E. Denny. Judgment for plaintiff against R. ■ A. Denny, and he brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action between Si Dunn and others and H. PI. Lewis. From the judgment, Si Dunn and others bring error.</p>

<p> Error' from Creek County Court; Warren H. Brown, Judge. </p> <p>Action between School District No. 18, Creek County,- and William Griffith and L. L. Dougan. From the judgment, the School District brings error.</p>

Error from District Court, Grady County; J. I. Carney, Assigned Judge. Action by J. Alexander Moore against R. H. Wilson, as President of the Board of Education of the State of Oklahoma, and others. From an order dissolving a temporary injunction, plaintiff brings error.

<p>APPEAL AND ERROR — Time of Taking Appeal. The right of appeal is governed by the law applicable thereto in force when the final judgment or order is rendered, and under chapter 18, p. 35, Sess. Laws 1910-11, proceedings in error in the Supreme Court must be , . brought within six months from the date of the rendition of the ,. judgment or order from which the appeal is sought to be taken.</p> <p>(Syllabus by the Court.)</p>

<p>BROKERS — Real Estate Agents — Right to Commission. When property has been listed for sale with different real estate agents, the agent who induces the seller and purchaser to enter into the contract is entitled to the commission, although another agent may have first brought the parties together.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Craig County Court; Theodore D. B. Frear, Judge. </p> <p>Action between P. J. Lawless and A. J. Pitehford, guardian. From the judgment, Lawless brings error.</p>

<p>1. BANKRUPTCY — Fraudulent Preferences — Knowledge of Creditor. Notice of facts which would incite a person of reasonable prudence to an inquiry under similar circumstances is notice of all the facts which a reasonably diligent inquiry would develop; and where the effect of a conveyance by an insolvent to a creditor, within four months prior to his bankruptcy, was to give such creditor a preference over other creditors, it will be conclusively presumed that it was so intended; and the conveyance is voidable if it is shown that the creditor • knew or had reasonable cause to believe such fact.</p> <p>2. ■ APPEAL AND ERROR — Review — Necessity of Cross-Petition. Alleged errors committed by the trial court, of which defendant in error complains, will not be considere'd, but held to be waived, where no cross-petition in error is filed.</p> <p>(Syllabus by the Court.)</p>

<p>l. COUNTIES — Indebtedness—Warrant. One of a series of ten warrants or certificates in the following form: 1 ‘ Number 2. Dollars.</p> <p>“$9,540.00.</p> <p>“Oklahoma Territory.</p> <p>“Mangum, Okla., July 21, 1905.</p> <p>“To the County Treasurer of Greer County, Oklahoma:</p> <p>‘ ‘ On the first day of July, 1907, pay to the order of L. If. Lee and A. O. Campbell nine thousand, five hundred .and forty ($9,540.00) dollars, without interest, to be paid out of and charged to the levy for the court fund.</p> <p>“This certificate evidences moneys due and payable at the date named therein for the erection of a courthouse for Greer county, Oklahoma Territory, ‘ on the rental plan, ’ under and by virtue of section two (2), article eight (8), chapter thirty-two (32) of Sess. Laws 1897 of Oklahoma Territory, and is for the payment of rents for a courthouse for said county for the year beginning July 1, 1907, and ending July 1, 1908, and is evidence of the sum that shall become due for such yearly rentals as provided by a certain contract in writing of even date herewith and is expressly subject to all the conditions of said contract.</p> <p>“This certificate not to be registered. J. J. Adams, Pro tern. Chairman Board of Commissioners, Greer County, Oklahoma Territory.</p> <p>“Attest: Floyd McNeill, County Clerk. [Seal.]1’</p> <p>Indorsed on back as follows: “Lee & Campbell, L. F. Lee and A. O. Campbell” — attached to,a rental contract, is payable, upon presentment to the county treasurer, without further auditing or demand, provided the terms of the contract therein described have been complied with, which is a judicial question.</p> <p>2. GUARANTY — Distinguished From Other Transaction — Assignment. Where such warrant is assigned to a bank by a partnership, composed of the individuals named on its face, which at the time of the assignment is admitted to be the owner and holder thereof, it will be presumed that the names of the individuals written across the back thereof were placed there for the purpose of assigning the warrant to the partnership, and that the name of the partnership was signed for the purpose of assigning it to the bank and not for the purpose of guaranteeing its payment.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Haskell County Court; A. L. Beckett* Judge. </p> <p>Action by W. A. Pugh against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings: error.</p>

<p>1. INSANE PERSONS — “Incompetent”—‘‘Mentally Incompetent” —‘ ‘ Incapable. ’ ’ The phrases ‘ ‘ incompetent, ” “ mentally incompetent,” and “incapable,” as used in article 15, c. 86, secs. 5485, 5486, Oomp. Laws 1909, mean any person who, though not insane, is, by reason of old age, disease, weakness of mind, or from any other cause, unable, unassisted, to properly manage and take care of himself or his property, and by reason thereof would be likely to be deceived or imposed upon by artful or designing persons.</p> <p>2. SAME — Guardian of Estate — Appointment. Under the provisions of sections 5485 and 5486, Oomp. Laws 1909, the county court alone is authorized to appoint a guardian of the estate of a person who is mentally incompetent to manage the same, although such person may be able to care for his person, whenever it appears that by reason thereof he would be likely to be deceived or imposed upon by artful or designing persons.</p> <p>(Syllabus by the Court.)</p>

<p>HABEAS CORPUS — Appellate Jurisdiction. An appeal does not lie to this court from an order in habeas corpus remanding a party held for extradition for a criminal offense.</p> <p>(Syllabus by the Court.)</p> <p>Williams, J., dissenting.</p>

<p> Error from District Court, Major County; M. C. Garber, Judge. </p> <p>Action between the Kansas City, Mexico & Orient Railway Company and William Brandt. From the judgment, the railway company brings error.</p>

<p> Error from District Court, Fourth District, of the Territory of Oklahoma., Sitting at Pawhuska, within and for the Osage Indian Reservation; Bayard T. Hainer, Judge. </p> <p>Action by the Hill Investment Company against Clement De Noya. Judgment for plaintiff, and defendant brings error.</p> <p>This is an action on a promissory -note originally brought in the territorial district court of Pawhuska by defendant in error against plaintiff in error. The facts upon which it is based are substantially as follows:</p> <p>For some time before the 29th day of September, 1900, one Johnson and one McLaughlin, doing business under the firm name of Johnson & McLaughlin, were licensed Indian traders on the Osage Indian reservation, with their principal place of business at the city of Pawhuska. On the 29th day of September, 1900, Clement De Noya, plaintiff in error, an Osage Indian, was indebted to said Johnson & McLaughlin on open account for goods, wares, and merchandise sold to him by said partnership in the sum of $447.88. On that date plaintiff in error executed and delivered to said partnership his promissoxy note due December 15, 1901, in settlement of his account. On or about June 1, 1901, Johnson & McLaughlin assigned and transferred said note to the Hill Investment Company, defendant in error, a corporation, of the state of Kansas. This action was instituted by defendant in erx-or on the 6th day of March, 1907. At that time, and at the time of the trial of the case in the lower court, which occun-ed on the 29th day of May, 1907, plaintiff in error was a resident of the city of Pawhuska, and resided with his family upon property purchased from the United States government under the provisions of the Osage townsite bill (Act March 3, 1905, c. 1479, 33 St. at L. 1061). The trial in the lower court resulted in judgment in favor of the defendant in error and against plaintiff in error for the sum of $575.05. From this judgment plaintiff in error appealed by proceeding in error to the Supreme Court of the territory, where the proceeding was pending at the time of the admission of the state, and is now before us for final disposition under the terms of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. at L. 267). Other facts important to the consideration of the proposition as involved in the appeal will be stated in the opinion.</p>

<p>WATERS AND WATER COURSES — Injunction—Irrigation System-Parties — Misjoinder. A petition for an injunction, the purpose of which is to restrain action by the state engineer and an applicant for water rights on a certain stream until a hydrographic survey could be made and the rights of all claimants determined, and which shows that petitioners had previous to the date of the filing of the application duly and lawfully appropriated to a beneficial use all of the waters of the said stream, but that no hydrographie survey nor judicial determination of their rights had ever been made, and which pleads that to allow the prayer of the applicant would be to destroy a long established irrigation system erected at a cost of $50,000, and that the applicant was not in good faith seeking such water rights for the purpose of putting the water applied for to a beneficial use, but merely for speculative purposes, states a -cause of action; nor is the said petition vulnerable to a charge of either misjoinder of parties or improper joinder of causes of action because there is joined therein all of the parties claiming a right in and to the water along with the state engineer, and the relief asked against the latter' is different from,that demanded against his codefendant, the purpose shown being to hold the entire matter in statu quo until a survey and adjudication could be made, as required by the statute.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Jackson County; Frank Mathews, Judge. </p> <p>Action by Sanford Gay and others against Reid Wallace and Ben Plennessey. Judgment for defendants, and plaintiffs bring error.</p>

<p>APPEAL AND ERROR — Necessary Parties — Dismissal. Same as that in Humphrey et al. v. Hunt, 9 Okla. 196, 59 Pac. 971.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Atoka County; A. T. West, Judge. </p> <p>■ Action by Warner & Jackson against the Citizens’ National Bank. Judgment for plaintiffs, and defendant bring error.</p>

<p>APPEAL AND ERROR — Review—Sufficiency of Evidence. Where the evidence reasonably tends to support the verdict, the judgment of the trial court will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Choctaw County; Robert M. Rainey, Judge. </p> <p>Action between Isham Williams and W. T. Hayeraft. From the judgment, Williams brings error.</p>

<p>APPEAL AND ERROR — Briefs—Sufficiency. This case follows that of Arkansas Valley National Bank v. Clark, 31 Okla. 413, 122 Pac. 135.</p> <p>(Syllabus by the Court.)</p>

<p>LIMITATION OF ACTIONS — Bona Fide Purchaser — Stolen Property. The statute of limitations (Mansf. Dig. sec. 4478, Ind. T. Ann. St. 1899, sec. 2945) as to personal- property stolen begins to run in favor of an innocent purchaser for value and against the true owner from the time the property is bought and taken possession of by the purchaser, and the bar falls when the same is by him held openly and notoriously for three years.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Sequoyah County; John PI. Pitchford, Judge. Action by Franklin Burrow, a minor, by his next friend, William H. Burrow, against the St. Louis, Iron Mountain & Southern Railway Co. Judgment for plaintiff, and defendant brings error.

<p> Brror froin District Court, Lincoln County; Chas. B. Wilson, Judge.. </p> <p>Action by Thomas J. West against J. W. Jewitt. Judgment for plaintiff, and defendant brings error.</p>

<p>CLERKS OF COURTS — Qualifications—Sex. A woman, otherwise quali- ■ fled, is eligible to hold the office of clerk of the district court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action by Benjamin E. Bruner and another against the Ft. Smith & Western Railroad Company. Judgment for defendant, and plaintiffs bring error.</p>

Brrór from District Court, Texas County; R. H. Loofbourrozv, Judge. Action by O. Marshall for mandamus to the State Election Board and others. From the judgment, defendants W. L. Roberts and others bring error.

Appeal from the State Corporation Commission. Appeal by the Pioneer Telephone & Telegraph Company from an order of the Corporation Commission imposing a fine for violation of a prior order of the Commission.

Error from District Court, Pontotoc County; A. T. West, Judge. Action by I. R. Tailor and J. R. Leaverette, a co-partnership, doing business under the firm name of Tailor & Leaverette, against F. L. Connor. Judgment for plaintiffs, and defendant brings error.

Proceeding by Mont R. Powell and others against the Oklahoma Railway Company for violation of an order of the Corporation Commission with reference to transferring passengers. Judgment for plaintiffs, and defendant appeals.

<p>1. QUIETING- TITLE — Habeas Corpus — Equitable Belief — Decree— Contempt. P. brought an action in the district court against D. and others to clear the title to certain land. Said court, having acquired jurisdiction of D. and of the subject-matter, ordered that said title be cleared, and that D. procure conveyance in favor of P. from L., a nonresident of the state, who was not a party to said proceedings. Held, that so much of said order as required D. to procure the conveyance from L. was in excess of its power.</p> <p>(a) Said court having adjudged D. to be in contempt for failure to comply with said command, and that he be imprisoned therefor, this court, upon a writ of habeas corpus, directs that he be discharged.</p> <p>2. COURTS — Supreme Court — Original Jurisdiction — Habeas Corpus. This court has original jurisdiction in all matters .of habeas corpus.</p> <p>(Syllabus by the Court.)</p>

Proceeding by the State against the Oklahoma Railway Company for violation of an order of the Corporation Commission. Judgment for plaintiff, and defendant appeals.

Proceedings by St. Joseph’s Parochial School and others against the Oklahoma Railway Company to enforce an order of the Corporation Commission requiring the railway company to issue tickets in quantities of twenty or more at one time to school children at the rate of two and one-half cents, a fare, good for transportation of such children at particular hours. Decree for plaintiffs, and defendant appeals.

Error from District Court„ Creek County; W. L. Barnum, Judge. Ejectment by Jennetta Ground and others against Ross B. Dingman and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from Superior Court, Oklahoma County; A. N. Munden, Judge. </p> <p>Action by C. W. Williams and wife against W. H. Phillips. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from Greer County Court; Jarrett Todd, Judge. </p> <p>Action by the Ardmore Wholesale Grocery Company against J. J. Baker & Co. and the Farmers’ National Bank. 'Verdict for plaintiff, and the Farmers’ National Bank brings error.</p>

The Corporation Commission having directed the Wichita Falls & Northwestern Railway Company to either build a station at Willow or move the depot from Moravia to Willow, on complaint of J. W. Miller and others, T. J. Wharton and others appeal.

<p>1. WITNESSES — Competency—Knowledge—Value. To lay a foun'dation for ,tke admission of evidence as to the value of millinery goods, kept for sale in stores, it is sufficient to show that the witness’ knowledge was that of a dealer in such goods and also by getting prices of such goods at the time she made the purchase of the lot in controversy. The weight of the opinion then given is for the jury.</p> <p>2. TRIAL — Instructions—Request. Where an instruction is correct as far as it goes, and it is urged by a party that under his theory of the case additional instructions should have been given, a reversal will not be had unless a supplemental instruction is requested by such contendant embodying such theory.</p> <p>{Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; D. A. Richardson, Assigned Ridge. </p> <p>Action by the State National Bank of Memphis, Tenn., against William W. Bierce. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Delazvare County; John H. Pitchford, Judge. Mandamus by the County of Delaware, on the relation of W. E. Carver and Tom Dial, county commissioners, to George W. Hogan, sheriff of Delaware county, and others. From a judgment refusing the writ, relators bring error.

<p> Error from District CourtJ Oklahoma County; W. R. Taylor, ludge. </p> <p>Application by the State to determine the existence, character, and amount of the legal outstanding indebtedness of the State, and to issue funding bonds therefor. From a decree sustaining</p> <p>protests, petitioners bring error.</p>

<p>1. INDIANS — Lands—Conveyance—“Allottees.” The word “allot-tees,” as used in Act April 21, 1904, e. 1402, 33 St. at L. 204, refers to the parties to whom an allotment is made, and not to their heirs; and where the allottee under the said act would have been authorized to alienate his land, had he lived, the same, on his death, was alienable by his heirs, without reference to their blood.</p> <p>2. SAME — Homestead. B., a white man, duly enrolled as a member of the Oreek Tribe of Indians, received his allotment, for which a certificate was duly issued, and died intestate, and without issue, in the fore part of the year 1900. Thereafter patent conveying. the said allotment, homestead and surplus, was duly issued to his heirs. Held, that the homestead quality did not attach, and if any restrictions existed on alienation of any of said land they were removed by Act Cong. April 21, 1904, e. 1402, 33 St. at L. 204; and the heirs were thereafter authorized to sell and convey the same.</p> <p>(Syllabus by the Court.)</p>