Volume 35 — Oklahoma Reports

<p>1. COUNTIES — County Commissioners — Fees. Tbe county commissioners, after the close of the session of the Legislature of Oklahoma Territory in 1901 (Sess. Laws 1901, c. 21), were not entitled to compensation of $1.50 per day as overseers of the poor.</p> <p>2. SAME — Expenses—Reimbursement. A commissioner being authorized by the board of commissioners of his county to superintend the laying out or surveying of a road whilst engaged in such business, and being duly authorized thereto, paid in cash out of his personal fund the sum of $5 to a chain bearer, who carried the chain in the survey of such road in said commissioner’s district, said sum of $5 being a reasonable compensation for such work. Said commissioner thereafter charged to and collected from his county the sum' of $5 as a reimbursement of said amount as expended by him. Held, that it was permissible for the board of county commissioners to reimburse him in said amount.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—Refusal of New Trial. Where controverted questions of fact are submitted to a jury, and the evidence adduced is conflicting and contradictory, but there is competent evidence reasonably tending to support every material averment necessary to uphold the verdict, and the trial court in its instructions to the jury fully and fairly states the issues and Axes the burden thereon as the same are presented by the pleadings and evidence, and a verdict is rendered which, from all the facts, appears to meet the requirements of justice, which is approved by the trial court, and judgment is rendered in accordance therewith, this court will not reverse the order of the trial court denying a motion for a new trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Pawnee County Court; H. T. Conley, Judge. </p> <p>Action between N. R. Duffield and M. F. Ingraham. From the judgment, Duffield brings error.</p>

<p>1. CARRIERS — Freight—Delay in Delivery. In an action against a common carrier for negligent delay in the carriage and delivery of machinery intended for use, .the proper measure of damages, in the absence of special notice, is the usable or rentable value of the machinery during the period of delay, together with such reasonable expenses as may be incurred by plaintiff in searching for, recovering, or in endeavoring to secure delivery.</p> <p>2. SAME — Damages. On the trial of an action for damages alleged to have been caused by negligent delay in the delivery of certain well machinery, plaintiff, without notice that employees’ wages would be lost in the event of delay in delivery, was permitted to recover for the same. Held, error.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the State Board of Equalisation. </p> <p>Appeal by J. W. McNeal from the State Board of Equalization.</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action’ by Wesley Kelley against E. Reynolds. Judgment for defendant before a justice was appealed to the county court, and on denial of a motion for a new trial, plaintiff brings error.

<p>VENUE — Transitory Actions. Where an action is brought to recover damages occasioned by an alleged conspiracy on the part of defendants to deny plaintiffs the right to use certain land for pasture for cattle, and no judgment or relief is asked as to the real estate, the same involves damages to personal property, and is therefore transitory.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Application by S. D. Cahill and others for writ of mandamus to D. G. Goree and others, composing the Okmulgee County Election Board. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Grady County; Prank M. Bailey, Judge. Action by James Fitzpatrick and others against Lee May and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Application by the American National Bank and others for a writ of mandamus to Lee Cruce, Governor, and others. Judgment for plaintiffs, and defendants bring error.

<p>1. CONSTITUTIONAL LAW — Amendment of Constitution — Submis- , sion to Electors — Appeal From Secretary of State. The appeal from a decision of the Secretary of State to the Supreme Court under the provisions of chapter 107, Sess. Laws 1910-11, p. 235, is a transference of the proceeding to this court for a trial de novo, and it has jurisdiction to hear and determine the same.</p> <p>2. SAME. Under the provisions of chapter 107, Sess. Laws 1910-11, p. 235, an appeal being taken, this court secures jurisdiction of the Secretary of State by virtue of the notice served as provided for therein, and, on finding an initiative or referendum petition sufficient, it may by its own mandate compel said officer to comply with statutory requirements.</p> <p>3. SAME — Initiative or Referendum — Evidence. The names attached to an initiative or referendum petition regularly filed in the office of the Secretary of State, sufficient in number and for the purpose of having the question therein contained submitted at an election, are presumed to be the signatures of legally qualified citizens and electors of the state, and that the post offices and places of residence given therein are correct, and to defeat the submission of said question, the burden is on the one protesting, to produce evidence sufficient to overcome this presumption, and the mere fact that of letters addressed to all the signers of the said petition at post offices given thereon, above ten per cent. were returned to the writer undelivered, or that the circulators of the petition in their affidavits attached thereto set forth more than one county as the residence of the signers of some of the different pamphlets, or that they failed or neglected in a number of instances to legibly write or typewrite the names of the signers of the said petitions on the back thereof, will not be held sufficient, in the absence of other proof, to overcome such presumption and establish that the signers of the said petition were not at the time they signed the same citizens and legal voters of the state.</p> <p>(Syllabus by the Court.)</p>

<p>1. LIBEL AND SLANDER — Privileged Communications — Malice. In the absence of anything showing malice, one is not guilty of libel who sends to the Department of Justice for use before a Senate committee an affidavit containing criminatory matter against one who has preferred charges against the qualification and fitness of another for office who has been thereto appointed by the President and whose name by him has been sent to the Senate for confirmation, pending which and before said committee said charges are being investigated, and that, too, although the testimony therein contained is not pertinent to the subject of inquiry before the committee.</p> <p>2. SAME — Qualified Privilege — Question for Court. Evidence examined, and held, that the court did not err in holding the communication a qualified privilege and in taking the question of malice away from the jury.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Pottawatomie Cotmty; Geo. C. Abernathy, Judge. </p> <p>Action by C. O. Noble against Charles Fox and others. Judgment for defendants, and plaintiff brings error.</p>

<p>BILLS AND NOTES — Delivery—Conditions. A promissory note may be delivered by the maker to the payee upon condition, or as an escrow.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Morris- Rentie and others against Harriet P. McCoy and others. Judgment for defendants, and plaintiffs bring error.

Complaint by Theodore Filson and others against the Chicago, Rock Island & Pacific Railway Company and others, before the Corporation Commission. From an order of the Commission, the Railway Company and others appeal.

Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge. ‘ Action by the State, on the relation of R. A. Woolridge, against the Board of Education of the City of Oklahoma City and others. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Okfuskee County; John Carruthers, Judge.</p> <p>Action by Henry C. Jones and Malissa Jones against Luther A. Nye. Judgment for plaintiffs, and defendant brings error.</p>

<p> Brror from District Court, Cleveland County; R. McMillan, Judge. </p> <p>Action by Andrew Kingkade against the Continental Casualty Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Bert G. Wood against the Herman Construction Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Caddo--County; Frank M. Bailey, Judge. </p> <p>Action by N.ellie Argo against the City of Anadarko. Judgment for plaintiff, and defendant brings error.</p>

<p>1. WITNESSES — Knowledge—Testimony From Writing. In an action by a shipper against the initial carrier for loss of a quantity of potatoes out of a car-load shipment that had to pass over a line of a connecting carrier in order to reach its destination, it was error to permit a witness who had no knowledge of the weight of the ear when delivered to the connecting carrier, or when delivered to the consignee, and who had never been in the employment of the connecting carrier, and had been in no way connected with the execution of a purported waybill of the connecting carrier for said car of potatoes, to testify what the car of potatoes weighed when it was received by the connecting carrier, as shown by said purported waybill.</p> <p>2. CARRIERS — Connecting Carriers — Loss of Freight — Extent of Liability. The shipment was made from a point in the Indian Territory to Chicago prior to the passage of act of Congress of June 29, 1906, e. 3591, sec. 7, 34 St. at L. 593 (U. S. Comp. St. Supp. 1911, p. 1304). Held that, in the absence of any agreement constituting the carriers partners or joint undertakers, and in the absence of any special agreement by the initial carrier assuming liability for the shipment over the entire route, the initial carrier was liable only for the loss or injury occurring on its own line.</p> <p>3. SAME — -Presumption of Liability. When, upon the shipment’s being delivered, it was found that a part thereof had been lost, the presumption is that such loss occurred on the line of the delivering carrier; and there is no presumption that the loss occurred while the goods were in the hands of the initial carrier.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Mayor’s Court — Appeal.- The mayor’s court of incorporated towns and cities of the Indian Territory was not continued in existence upon admission of the state into the Union; and an appeal attempted to be perfected from a judgment rendered in one of such courts before statehood by filing before the mayor of the town' after the admission of the state an affidavit for appeal as prescribed by the statutes in force in the Indian Territory before the admission of the sjfcate was void, for the reason that the mayor was without jurisdiction or authority in the premises.</p> <p>(Syllabus by the Court.)</p>

<p>JUDGMENT — Vacation—Grounds. Where a judgment has been entered upon stipulation of the parties to a proceeding, the court having jurisdiction, not only of the subject-matter, but also of the parties, and power to enter the judgment, the same will not thereafter, at the same term at which it was rendered, be set aside without a showing that some injustice has been done to the party against whom the judgment was rendered.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Review—Scope—Assignments Not Supported by Authority. Assignments of error presented by counsel in their brief or oral argument, if unsupported by authority, will not be noticed by the court, unless it is apparent without further research that they are well taken.</p> <p>2. CONTINUANCE — Grounds — Absence of Witness — Incompetent Evidence. A motion for a continuance based upon the absence of a witness is properly overruled where the affidavit supporting the motion shows that the facts it is alleged the witness would prove if present would be incompetent for the purpose offered.</p> <p>3. GUARDIAN AND WARD — Guardian’s Account — -Settlement—Impeachment by Guardian. A guardian will not be permitted to testify in a manner to impeach the final settlement of his guardianship accounts, regularly made by the county court.</p> <p>4. SAME — Guardian’s Bond — Sureties — Final Settlement — Conclusiveness. Sureties on a guardian’s bond are, in the absence of fraud, concluded by the decree of the county court, duly entered on a hearing on an accounting, or final settlement, as to the amount of the principal’s liability, .although the sureties are not parties to the accounting.</p> <p>5. PLEADING — Answer—Effect. Where a pleading styled an answer contains an allegation to the effect that the petition does not state facts sufficient to constitute a cause of action, coupled with allegations of facts constituting a defense, and thereafter a general denial by way of a reply is filed thereto, it was not error for the court below to disregard the allegations attacking the petition and require the parties to proceed to trial, when the case was reached for that purpose, upon the issues of faet joined by the petition, answer, and reply.</p> <p>6. GUARDIAN AND WARD — Settlement of Accounts — Revocation of Letters. It is within the province of the county court to require guardians to settle the accounts of their wards, even after the letters of guardianship have been revoked.</p> <p>7. SAME — Guardian’s Bond — Action by Minor. A minor by his legal guardian may maintain an action on the official bond of a former guardian, although the bond, which was executed prior to statehood, was made payable to the United States of America.</p> <p>8. JUDGES — Disqualification—Interest. Section 2012, Oomp. Laws 1909, which provides that "no judge of any court of record shall set in any cause or proceeding in which he may be interested, or in the result of which he may be interested,” does not preclude a county judge from acting in the matter of the settlement of a guardian’s accounts whose letters of guardianship have been revoked because he acted as attorney for the guardian in the . matter of his appointment.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Rogers County Court; John Q. Adams, Judge pro tem. </p> <p>Action by the Lidecker Tool Company against J. W. Coghill, Constable. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Record—Equity Oases. Under the practice in force in the Indian Territory prior to the erection of the state in equity cases, all papers properly filed in the ease became on appeal a part of the record to be included in the transcript. Neither was any motion for a new trial necessary nor a bill of exceptions, except where oral testimony had been used and not taken down and filed as depositions.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Cherokee County; John H. Pitchford, Judge. Action by the St. Louis & San Francisco Railroad Company against J. P. Thompson, county treasurer of Cherokee county, and others. Judgment for defendants, and plaintiff brings error.

<p>CHAMPERTY AND MAINTENANCE — Deed by Party Out of Possession. By reason of section 2215, Comp. Laws 1909, a deed conveying real estate, executed by a grantor at a time when he was not in possession of the conveyed premises, is void as between the grantee and a person who was at the time of the conveyance in adverse possession of the conveyed premises; and this rple applies where the grantor is an allottee of the Chickasaw and Choctaw Tribes of Indians upon whose power to alienate his allotment the restrictions have been removed prior to the time of the execution of the deed, and where the person in possession originally obtained possession and claims title to the conveyed premises by virtue of a void deed executed by the allottee before the removal of restrictions upon his power to alienate his allotted lands.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Woods County; R. H. Loofbourrow, Judge. </p> <p>Action between R. N. McConnell and the Security State Bank and others. From the judgment, McConnell brings error.</p>

<p>AFFIRMANCE ON AUTHORITY OF PRIOR OPINION. Affirmed on the authority of the Title Guaranty & Surety Co. v. Wm. Raymond Slinker, a Minor, by His Legal Guardian, A. Neely, ante, 128 Pae. 696.</p> <p>(Syllabus by the Court.)</p>

In the matter of the assessment of the property of the Osage & Oklahoma Gas Company for taxation by the State Board of Equalization. From an order making such assessment, the Gas Company appeals. From report of referee assessing cash value of the Company’s property, the state moves to dismiss.

<p>1. GUARDIAN AND WARD — Contracts—Confirmation by Court— Necessity. By sections 3506, 3509, and 3511 of Mansf. Dig. of Ark. 1884 (sections 2402, 2405, and 2407, Ind. Ter. Ann. St. 1899), all leases of minors’ lands for a term of years by the' guardian (not made by virtue of sections 3498 and 3500, Mansf. Dig.; sections 2394 and 2396, Ind. Ter. Ann. St.) are required to be reported by him and confirmed by the court. In the absence of such report and confirmation, no right under the lease passes to the purchaser; but where a guardian made application to the court, setting up the facts showing that the ward’s real estate should be leased for - investment, and that L. offered to take the lease for a certain period under specified terms, and prayed for an order of court directing him to enter into such lease with the said D. under said terms, and the .court granted the order prayed for by the guardian and directed the guardian to execute the lease to L., held, that such order constituted a confirmation of the lease, and, if irregular, such irregularity would not vitiate the lease on collateral attack. Poliowing Spade v. Mórton et a-L, 28 Okla. 384, 114 Pac. 724.</p> <p>2. INDIANS — Lands—Lease by Guardian. Leases of allotments of Indian minors in the Pive Civilized Tribes confirmed and approved by the trial court in that jurisdiction since April 26, 1906, are not subject to the approval or disapproval of the Secretary of the Interior; but the orders of the court confirming and approving them are final.</p> <p>3.' APPEAL AND ERROR — Review—Questions of Pact — Trial by Court. Where a case is tried by a lower court without a jury, and special findings of fact are made, based partly upon oral testimony, such findings, as a rule, are conclusive upon any disputed and doubtful questions of fact.</p> <p>4. GUARDIAN AND WARD — Lands of Ward — Lease'—Statutory Provisions. Mansf. Dig. see. 3502 (section 2398, Ind. Ter. Ann. St. 1899), as in force in the Indian. Territory, empowered the United States eourts in the Indian Territory, sitting as probate courts, to authorize the guardian to lease the lands of a minor according to the best interests of the ward, subject to the approval of the court; and sections 3509, 3510, and 3511 of said digest (sections 2405, 2406, and 2407, Ind. Ter. Ann. St. 1899) authorize the probate court to lease for purposes of reinvestment or putting proceeds on interest. Held'that, while at common law all leases by a guardian to extend beyond the term of the guardianship were voidable, a lease of a minor's land pursuant to an order of the probate court was valid, though it extended beyond minority. Following Beauchamp v. Bertig, 90 Ark. 351, 119 S. W. 75, 23 L. R. A. (N. S.) 659.</p> <p>(a) The United States courts in the Indian Territory, sitting as courts of chancery, had authority to approve such leases extending beyond the minority of the ward.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Affirmance—Failure to Prosecute. Judgment was rendered in the court below against a party for a certain sum, and a proceeding in error instituted in this court, which such party fails to prosecute. Said judgment having been superseded, on motion, the same will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Muskogee County; L. J. Roach,, Special Judge. </p> <p>Action by the Chestnutt-Gibbons Grocer Company against Cass M. Bradley and O. Durant. Judgment for plaintiff,’ and defendants bring error.</p>

Application by the St. Louis & San Francisco Railroad Company for a writ of prohibition against the Corporation Commission of the state and J. E. Eove and others as members thereof.

<p>1. WORDS AND PHRASES — “Issue.” In its legal sense as used in statutes and wills and deeds and other instruments, “issue” means descendants; lineal descendants; offspring.</p> <p>2. DESCENT AND DISTRIBUTION — “Issue” — Child by First Marriage. S., who had been twice married, died, leaving a widow, a child, the fruit of the first marriage, and an estate, the greater portion of which was acquired by the joint industry of the decedent and the wife by a second marriage during their coverture. Held, that the child of the first wife constituted “issue” within the meaning of the term as used in the second proviso of section 8985, Comp. Laws 1909, which reads: “Provided, in all cases where the property is acquired by the joint industry of husband and wife during coverture, and there is no issue, the whole estate to go to the survivor, at whose death if any of-the said property remain, one-half of such property shall go to the heirs of the husband and one-half to the heirs of the wife, according to the right of representation.”</p> <p>(Syllabus by the Court.)</p>

<p>1. ESTOPPEL — Equitable Estoppel — Grounds. A person may waive a right by conduct or acts which indicate an intention to relinquish it, or by such failure to insist upon it that the party is estopped to afterwards set it up against his adversary.</p> <p>2. INDIANS — Departmental Lease — Assignment — Consent of Lessor. A departmental oil and gas lease was executed by a citizen of the Cherokee Nation to S., who thereafter assigned the same with the approval of the Secretary of the Interior, but without the consent of the lessor, to the Signal Oil Company, who immediately entered into possession of the leased premises and in due time, after the expenditure of a considerable sum of money, developed a producing gas well. The lessor was duly notified of the assignment of said lease and the approval thereof by the Secretary of the Interior and thereafter, for a period of several years, accepted without question the rentals and royalties due her by the terms of said lease. Held, that the lessor by her conduct waived her rights under the clause of the lease which provides: “And it is mutually understood and agreed that no sub-lease, assignment or transfer of this lease, or of any interest therein or thereunder, can be directly or indirectly made without the written consent thereto of the lessor and the Secretary of the Interior first had and obtained, and any such assignment or transfer made or attempted without such consent shall be void. ’ ’</p> <p>3. MINES AND MINERALS — Leases—Registration. The recordation laws of the state of Arkansas extended to and put in force in the Indian Territory do -not require the assignment of an oil and gas lease executed by a citizen of the Cherokee Nation prior to statehood to be recorded in order to give it validity.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by the Armour Packing Company and others against the United States Construction Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. CONSTITDTIONAL LAW — Due Process of Law — Judicial Hearing. Chapter 52, Comp. Laws 1909, providing for the commitment of insane persons by a board known as “commissioners of insanity” to the insane hospital or asylum maintained by the state, does not violate the provisions of the due process clause of either the state or federal Constitution, since said chapter provides: “All persons confined as insane shall be entitled to the benefit of the writ of habeas corpus, and the question of insanity shall be decided at the hearing, and if the judge or court shall decide that the person is insane, such decision shall ;be no bar to the issuing of the writ the second time whenever it shall be alleged that such person has been restored to reason.”</p> <p>(a) The detention of such insane inmate except under proceedings by virtue of a valid statute can be justified on the ground alone that it is best for the care of such inmate or that it would be dangerous for her to be at large.</p> <p>2. HABEAS COBPUS — Insane Persons — Discharge. For the purpose of the hearing, it being admitted that the person was not only at the time of commitment but is also now insane, whose release from the asylum was sought solely on the ground that the statute under which she was held was void, such party is not entitled, as a matter of right, to bo discharged upon that ground alone.</p> <p>3. JUEY — Eight to Jury Trial. The right of trial by jury declared inviolate by section 19, art. 2, of the Constitution, except as modified by it, means the right as it existed in the territory of Oklahoma at the time of the adoption of the Constitution.</p> <p>4. SAME — Insane Persons. The law in force in the territory of Oklahoma at the time of the admission of the state did not give persons, charged with being insane for the purpose of being committed to an insane hospital or asylum of the state, a right of trial by jury on the issue as to insanity.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Pittsburg County; ■ Preslie B. Cole} Judge. Action by W. M. Walker, a minor, by J. R. Walker, his next friend, against the Pierce Coal Company and another. Judgment for defendants, and from an order vacating the same they bring error.

<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 relief can follow.</p> <p>(Syllabus by the Court.)</p>

<p> Brror from Dewey County Court; Harry H. Smith, Judge. </p> <p>Action between Emily Abbott ánd Clay Rodgers. From the judgment, Abbott brings error.</p>

<p>TIME — Sundays—Exclusion—Appeal. The judgment sought to be reviewed was rendered on December 30, 1911; the motion for new trial being filed and overruled on the same day. The proceeding in error was commenced on July 1, 1912. The 30th day or June, 1912, fell on Sunday. The six months in which a proceeding for reviewing said judgment may be commenced in this court expired on that day, which must be excluded. The proceeding being commenced on July 1, 1912, was within time.</p> <p>(Syllabus by the Court.)</p>

<p>DISCHARGE OP INSANE PERSONS. Same as that in Ex parte Azillah Amanda Dagley, ante, 128 Pac. 699.</p> <p>(Syllabus by the Court.)</p>

<p>1. TOWNSHIPS — Bonds—Validity. Section 1, c. 99 (Sess. Laws, 1910-11, p. 211), does not authorize a township through which a stream flows to issue bonds to bridge said stream at some point within the township, although such stream forms part of the boundary of the county in which such township lies.</p> <p>2. SAME. Said statute authorizes the township to issue bonds for the construction of the bridge across a river or stream only when such river or stream forms the boundary of said township, and also the boundary of the county in whieh said township lies, and the bridge is to be constructed across the stream where it constitutes the common boundary of the township and county.</p> <p>(Syllabus by the Court.)</p>

<p>1. GUARDIAN AND WARD — Sale of Minor’s Land — Jurisdiction of County Court. A -county court, having acquired jurisdiction of the person and estate of a minor, may order the sale of the land of said minor lying and situated in another county of the state.</p> <p>(a) Said court may also confirm said sale and order a guardian’s deed to be made in obedience to the order of sale.</p> <p>'2. APPEAL AND ERROR — Review — Findings of Court. Where there is a conflict in the evidence on an issue, a finding thereon made by the lower court will not be disturbed on review in this court.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Summons. A petition in error filed in tMs court within the six months allowed by the statute, where neither waiver of issuance and service of summons in error is had, nor a praecipe f.or the same is filed, and summons issued thereon, nor general appearance made, within .such statutory period, must on motion be dismissed.</p> <p>(Syllabus, by the Court.)</p>

<p> Error from District Court, Jackson County; Frank Matthews, Judge. </p> <p>Action between W. H. Buchanan and W. J. Loving and J. H. Loving. From the judgment, Buchanan brings error.</p>

<p> Brror from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Action between Howard C. Park and M. F. Merrill and others. From the judgment, Park brings error.</p>

<p> Appeal from Corporation Commission. </p> <p>Appeal by the Western Union Telegraph Company from an order of the Corporation Commission after hearing on complaint by G. T. Ralls, City Attorney of Coalgate.</p>

<p> Error from Garvin County Court; W. B. M. Mitchell, Judge. </p> <p>Action by W. T. Hart against Joe Sanders and others. Judgment for plaintiff, and defendants bring error.</p>

Proceeding by the State 'for the adoption and promulgation of certain grain rates, from which the Chicago, Rock Island & Pacific Railway Company and others appeal.

Proceeding by the State for the adoption and promulgation of certain freight rates on oil, from which order the Chicago, Rock Island & Pacific Railway Company and others appeal.

■ Proceeding by the State Corporation Commission for the establishment and. promulgation of railroad rates on agricultural implements. From an order fixing a schedule of rates, the Chicago; Rock Island & Pacific Railway Company and others appeal.

Proceeding by the State Corporation Commission for the establishment and promulgation of railroad rates on coal. From an order fixing the rates, the Chicago, Rock Island & Pacific Railway Company and others appeal.

Proceeding by the State Corporation Commission for the establishment and promulgation of rates for the transportation of street and building materials. From an order fixing the rates, the Chicago, Rock Island & Pacific Railway Company and others appeal.

<p>Application of Frank L. Warren for writ of mandamus to John Caruthers, District Judge.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Suit by Lee Lindsey and Lila D. Lindsey, his wife, against the Galbreath Gas Company. Judgment for plaintiffs, and defendant brings error.

<p>1. BILLS AND NOTES — Rights and Liabilities on Transfer — Bona Pide Purchasers. The indorsee of a negotiable promissory note for value and before maturity from another who is the apparent owner obtains a good title, and, in order to defeat his recovery thereon against the maker, defendant must not only plead faets and circumstances that would cause one of ordinary prudence to suspect that the person from whom he obtained it had no interest in it, but must go further and plead that the indorsee had actual notice thereof.</p> <p>2. SAME — Actions—Pleading. In an action by an indorsee on a note, the plea of defendants held not to show that the indorser had no title to the note, or that the indorsee had notice that he had no title.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Oklahoma County; A. N. Munden; Judge. Action by Wallace R. Goldie against W. T. Cord.er. From an order granting a new trial after verdict for plaintiff, he brings error.

<p>PLEADING — Objections and. Waiver — Irrelevancy and Redundancy. Irrelevancy and redundancy contained in a pleading is waived by failing to - move to strike it in the trial court.</p> <p>(Syllabus by the Court.)</p>

Frror from Seminole County Court; T. S. Cobb, Judge. Forcible entry and detainer by R. I. Aldridge against John W. Seals and another. Judgment for plaintiff, and defendant Seals brings error. Crump, Skinner & Fowler and 7. Ross Bailey, ,fpr-defendant in error.

<p>INDIANS — Lease by Allottee — Conditional Approval — New Proposal— Failure of Contract — Cancellation.' An oil and gas lease executed by an Indian landlord to a corporation tenant, subject to the approval of the Secretary of the Interior, was approved, conditioned upon the lessee and its sureties executing certain documents containing conditions and terms which the lessee rejected. Held, that such conditional approval was a new proposal, which, when not accepted by the lessee, resulted in a failure of contract, and delay of action on the part of the lessee did not result in creating one.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Custer County; J. W. Lawter, Judge. </p> <p>Action between M. L. Holcombe and the Lawyers’ Co-Operative Publishing Company. From the judgment, M. L. Holcombe brings error.</p>

<p> Error from District Court, Mayes County; T. L. Brown, Judge. </p> <p>Action by C. S. Wortman and R. W. Canfield against I. P. Bledsoe. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. PUBLIC LANDS — Town Sites — Rights of Prior Occupant. When a town site is entered by the probate judge under sections 2387 and 2388, Revised Statutes (TJ. S. Comp. St. 1901, pp. 1457, 1458), and the town-site laws of the state of Kansas extended to and put in force in Oklahoma by the act of March 3, 1891 (26 St. at L. 1026, c. 543 [U. S. Comp. St. 1901, p. 1617]), he takes the title in trust for the benefit of the occupants; and when a lot is continuously in the actual possession and occupancy of one party, who is shown to be a prior settler thereon, he is not deprived of his right thereto by an award of the town-site commissioners and a subsequent deed from the probate judge to another party.</p> <p>2. SAME — Findings of Commissioners — Review. The town-site commissioners appointed by the probate judge are not judicial officers, and their findings are not conclusive, but only advisory; and a court may, on a proper showing, re-examine the questions passed on by them.</p> <p>(Syllabus by the Court.)</p>

<p>BILLS AND NOTES — Conditional Delivery. A promissory note may be delivered conditionally, and tbis may be aceomplisbed by delivery to tbe payee himself, with proper instructions in relation to tbe condition.</p> <p>(Syllabus by tbe Court.)</p>

<p>1. PUBLIC LANDS — Town. Sites — Reservation for County Seats. The devolution of title to lots on town sites in the Cheyenne and Arapaho country reserved for eounty-seat purposes by the Secretary of the Interior is governed by sections 2387 and 2388, Revised Statutes of the United States (U. S. Comp. St. 1901, pp. 1457, 1458), and the town-site laws of the state of Kansas, as modified by the aet of Congress of March 3, 1891, c. 543, see. 17, 20 St. at L. 1026.</p> <p>2. STATUTES — Interpretation—Construction by Officers. The construction placed on statutes or constitutional provisions by officers in the discharge of their duties, either at or near the time of the enactment, which has been long acquiesced in, is a just medium for its judicial interpretation.</p> <p>3. PUBLIC LANDS — Town Sites — Reservation for Municipal Purposes. The authority to reserve not to exceed one-half section of land in each county in the Cheyenne and Arapaho country for county-seat purposes, conferred upon the Secretary of the Interior by section 17 of the act of March 3, 1891, c. 543, 26 St. at L. 1026, embraced the power to set aside for public purposes such lots or parcels of ground situated upon such town site as, in the judgment of the Secretary, would be necessary for the municipal needs and conveniences of a eounty-seat town.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Cherokee County; John H. Pitchford, Judge. Mandamus by Joe Moren against Virgil Nichols and others, constituting the Election Board of Cherokee County. Decree for defendants, and petitioner brings error.

Error from District Court, McClain County; R. McMillan, Judge. Action by F. J. Carroll, for the use of the Union National Bank, against J. W. Hocker. Judgment for plaintiff, and defendant brings error.

<p>ELECTIONS — Contests—Brand—Evidence. One who seeks to have an election declared void and set aside upon the ground that by irregularities and fraudulent misconduct of the election officers in some precincts persons were prevented from voting must allege and prove that sueh persons were qualified voters, and that the number thereof was sufficient that if they had voted and had cast their vote for the next highest candidate the result of the election would have been changed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter County; W. L. Barnum, Assigned Judge. Action by J. T. Orr against the City of Ardmore. Judgment for plaintiff, and defendant brings error.

Error from District Court, Bryan County; A. H. Ferguson, Judge. Quo warranto by the State on relation of J. T. McIntosh, county attorney, against T. J. Perkins, counsel of the city of Durant. Judgment for defendant, and plaintiff brings error.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Enoch H. Hughes and others against Carson H. Garrelts and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from District Court, McCurtain County; D. A. Richardson,. Judge. </p> <p>Action by Leslie Coombs and L. D. Owsley against Betsy Cook, nee Durant., Judgment for defendant, and plaintiffs bring error.</p>

<p> Error from District Court, Muskogee County; John H, King,, Judge. </p> <p>Action by Barbara Reed against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>'EXEMPTIONS — Piano—“Household and Kitchen Furniture. A piano comes within the term of “household and kitchen furniture,” as the same is used in our personalty exemption statute (section 3346, Comp. Laws 1909; Sess. Laws 1905, p. 255).</p> <p>(Syllabus by the Court.)</p>

<p> Brror from District Court, Bilis County; G. A. Brown, Judge. </p> <p>Action between Benjamin M. Flathers and Emily J. Flathers. From the judgment, Benjamin M. Flathers brings error.</p>

<p>1. INFANTS — Actions to Protect Real Estate — Services of Attorney —“Necessaries.” Where suit was brought in the name of a minor, who was under the age of eighteen years, by direction of her next friend, to protect the infant’s title to certain real estate, he’d, that counsel could not recover in an action at law against the minor for services in such suit.</p> <p>(a) Such services are not regarded as necessaries, and may be avoided by the infant, even under express promise.</p> <p>2. SAME — Disaffirmance of Contract. The disaffirmance of a contract made by an infant nullifies it, and renders it void ab initio; and the parties are returned to the same condition as if the contract had never been made.</p> <p>(a) After the infant has disaffirmed the contract, any one may take advantage of such disaffirmance.</p> <p>S. SAME — Avoidance of Contract. An infant may avoid his act or contract by different means, according to the nature of the act and the circumstances of the case.</p> <p>(a) Any act showing unequivocally a renunciation of, or a disposition not to abide by the contract made during minority is sufficient to avoid it.</p> <p>4. APPEAL AND ERROR — Sufficiency of Petition — Errors Apparent of Record. Upon a petition in error to reverse a judgment by-default, such defects in the petition as could have been taken advantage of under general demurrer may be brought under review; and, if the allegations of the petition are insufficient to sustain the judgment, the same will be reversed.</p> <p>(a) Where an error is apparent on the judgment roll or record of the trial court, the same will be considered on review here, although no exception was taken thereto.</p> <p>(Syllabus by the Court.)</p>

<p>1. DEEDS — Definition. A deed is defined to be a written instrument . containing a contract or agreement, which has been delivered by the party to be bound, and accepted by the obligee or covenantee.</p> <p>2. SAME — Validity—Delivery—Acceptance. To constitute a valid deed, not only must there have been an intention on the part of the grantors to deliver, but the grantee must accept the same in person, or by some one whom he has authorized to accept for him, or whose conduct he subsequently ratifies.</p> <p>3. HOMESTEAD — Deed—Delivery Without Consent of Wife — Effect. Where husband and wife sign a deed to the homestead of the family under an agreement that the same shall not be delivered to the grantee named therein, and the husband, without the consent of the wife, delivers the deed to the' grantee, who has notice of the agreement, the deed may be avoided by the wife after the death of her husband.</p> <p>(Syllabus by the Court.)</p>

<p>Action by Alex Fisher for writ of mandamus against Ross F. Loekridge, county judge for Pottawatomie County.</p>

<p> Erroi' from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Action by Oscar Perry and others against D. L. Hoblit. From the judgment, Perry and others bring error. Dismissed.</p>

<p>CHATTEL MORTGAGES — Replevin—Evidence—Defense. In a replevin action for the recovery of possession of certain chattels by virtue of a mortgage, the answer not disclosing a complete defense to the mortgage debt but only a partial failure of consideration, judgment was properly entered in favor of the plaintiff against the defendant.</p> <p>(Syllabus by the Court.)'</p>

<p>Error from District Court, Comanche County; I. T. Johnson, Judge.</p> <p>Action between Uriah Murphy and G. F. Fitch. From the judgment, Uriah Murphy brings error.</p>

<p> Error from Grady County Court; N. M. Williams, Judge. </p> <p>Action by L. D. Stone against A. P. Tate. Judgment for plaintiff,. and defendant brings error.</p>

Error from Greer County Court; J arret Todd, Judge. Action by the State, on the relation of H. D. Henry, county attorney, against T. H. Knight and others. Judgment for relator, and defendants bring error.

<p>1. REMOVAL OF CAUSES — Increase or Ad Damnum. Where plaintiff amends his petition, increasing the -amount sued for so as to constitute a removable cause to the proper federal court, the right to remove is thereby given, and, if the defendant by proper ■application in due time avails itself of that right, it cannot be denied.</p> <p>(a) Where the defendant, resident of another state, regularly and strictly in accordance with Act Cong. Sept. 24, 1789, e. 20, 1 St. at L. 73, known as the “Judiciary Act,’ as amended by . Act March 3, 1887, c. 373, 24 St. at L. 552, and by Act. Aug. 13, 1888, c. 866, 25 St. at L. 433 (U.- S. Comp. St. 1901, p. 508), files his petition in the state court for the removal of the cause to the United States Circuit Court, and a sufficient bond, which is offered for the approval of the state court, the said court is ipso facto ousted of jurisdiction; and whether an order for removal is granted or denied by the state court, all further proceedings therein are coram non judice and void.</p> <p>2. REMOVAL OF CAUSES — Actions Under Employer’s Liability Act. Act April 5, 1910, e. 143, 36 St. at L: 291 (U. S. Comp. St. Supp. 1911, p. 1324), amending section 6 of the Employer’s Liability Act (Act April 22, 1908, c. 149, 35 St. at L. 66 [U. S. Comp. St. Supp. 1909, p. 1173]), so as to provide that the jurisdiction of the courts of the United States under said act shall be concurrent with that of the courts of the several states, and no case arising thereunder and brought in any state court of competent jurisdiction shall be removed to any court of the United States, has no application to actions brought prior to the amendment.</p> <p>(Syllabus by the Court.)</p>

Error from Comanche County Court; James H. Wolz'erton, Judge. Action between P. L. St. Clair and August Plufnagle and others. From a judgment of the court below, P. L. St. Clair brings error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by the Deming Investment Company against the Bruner Oil Company and the Payne Oil Company. Judgment for defendants, and plaintiff brings error.

<p> Error from District Cowrt, Oklahoma County; George W. Clark, Judge. </p> <p>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 Southern Surety Company filed a petition -in intervention. From a judgment for intervener, the Bank Commissioner brings error.</p>

Frro-r from District Court, Okmulgee County; W. L. Barnum, Judge. Action by Chapman Fife and Gibson Fife, by their guardian, against William D. Cornelous and others. From the judgment, Chapman Fife and Gibson Fife bring error.

<p>BANKS AND BANKING' — State Banks — Guaranty Fund. — Insolvency. Reversed and remanded upon the authority of Columbia Bank & Trust Co. v. United States Fidelity & Guaranty Co., 33 Okla. 535, 126 Pae. 556.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Grady County; Will,, Linn, Judge. Action between Jacob Lorenson and another and J. H. Conrad & Co. From a judgment in favor of the latter, the former bring error.

<p>OFFICERS — Change of Salary. The judgment of the court below is affirmed upon the authority of Board, of County Com’rs v. Henry, 33 Okla. 210, 126 Pae. 761.</p> <p>(Syllabus by the Court.)</p>

<p>1. MUNICIPAL CORPORATIONS — Local Improvements — Assessments. The provisions of section 6 of the Organic Act of the territory of Oklahoma, providing that all property subject to taxation shall bo taxed in proportion to its value, does not apply to assessments made against lots for the purpose of covering the cost of local improvements.</p> <p>2. SAME- — Constitutional Law — Due Process of Law. A statute that authorizes the trustees of an incorporated town, after notice to abutting property owners to construct sidewalks and guttering in front of their property and upon failure of such property owners to construct same, to construct such improvements and assess the cost thereof to the abutting property upon a frontage basis and to issue a tax warrant for the actual cost of labor and material obtained at the market price and used for such improvements, and making such tax warrant a lien against the property therein described, does not take property without due process of law and should not, upon that ground, be declared invalid.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by Martin Schechiñger against E. M. Gault and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by Tomo Gvozdanovic against R. E. Rader, Sheriff, and others. Mary Gvozdanovic, the wife of plaintiff, was thereafter substituted in his place. Judgment for plaintiff, and defendants bring error.</p>

<p>FRAUDS, STATUTE OF — Sale of Chattels — Delivery. A delivery and acceptance, at any subsequent time, of any part of the goods or chattels which are the subject of an oral agreement and within the statute of frauds takes the contract out of the statute of frauds and makes valid the entire contract.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Creek County; W. L- Barnum, Judge. </p> <p>Action by J. B. Summers against I. K. Berry and Mrs. L. H. McClung. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Kay County; C. L. Pinkham, Jtidge. </p> <p>Action by Joe Coughlin against Reuben E. Moore. Judgment for plaintiff, and defendant brings error.</p>

Action by Lita Billy against the Unknown Heirs of D. T. Gray, deceased, and others; Benjamin Einley intervener. Judgment for plaintiff and intervener, and plaintiff brings error.

<p>1. BANKS AND BANKING — Collections—Duties of Bank. It is the duty of a bank, which receives commercial paper for collection or other service in connection therewith, to do all reasonable acts necessary to secure its payment and secure the liability thereon of' the parties thereto, and if it fails in this duty, and thereby causes loss to its principal, .it becomes liable for such loss.</p> <p>2. SALES — Transfer of Title — Bill of Lading. Where a merchant draws a draft for a part of the purchase price of goods consigned to a customer with notes and mortgage to be executed by him for the balance, and transmits the same, with bill of lading attached, to a bank with instructions to collect the draft and have notes and mortgage executed before delivering the bill of lading, this will be held sufficient evidence of consignor’s intention to reserve the title and right of possession until the draft is paid and the papers executed.</p> <p>3. BANKS AND BANKING — Collections—Negligence—Measure of Damages. The measure of damages which a principal is entitled to recover of a collecting bank which has been negligent is the actual loss which he has suffered, which prima facie is the amount of the claim which has been placed with said bank for collection, if there is a reasonable probability that the entire debt would have been collected except for the bank’s negligence, and the burden is on the defendant to reduce it.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Atoka County; Robert M. Rainey, Judge. Action between Jesse W. Phillips and others and D. C. Koog-ler. From the judgment, Phillips and others bring error.

<p> Error from Oklahoma County Court; John W. Hayson, Judge. </p> <p>Action between J. H. Schollmeyer and Jacob Van Buskirk. From the judgment, Schollmeyer brings error.</p>

<p>1. COUNTIES — 'Levy of Taxes — Validity—Injunction. The excise board of a county, without a petition as provided for by statute, made a levy to be used for the purpose of eradicating cattle ticks therein. The said county was located partly above and partly below the quarantine line established by the State Board of Agriculture. Plaintiff, a taxpayer, brought action to enjoin said -board from allowing claims and the county- treasurer from paying warrants drawn on such fund, on the ground that under section 2, e. 115, p. 255, Sess, Laws 1910-11, a levy on all taxable property in the county is subject to taxation for this purpose only when petitioned for by a majority of the voters thereof or of any municipal township, and the court refused to grant the injunction. Held, error; that the levy was without authority of law’and was void.</p> <p>2. STATUTES — Construction—Levy of ■■ Tax. Where a statute _ imposing a tax is susceptible of two constructions, and the legislative intent is in doubt, the doubt should, as a rule, be resolved in favor of the taxpayer.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by the Yale Theater Company against the City of Lawton and others. Judgment for defendants, and plaintiff brings error.

<p>1. JURY — Appeal from Drain Commissioners — Trial by Jury. A landowner, who appeals from the decision of the board of commissioners upon his exceptions to the action of the viewers, on the ground that they had assessed his land too much, pursuant to Comp. Laws 1909, sec. 3057, is not entitled to a trial by jury upon that issue in the district court.</p> <p>2. DRAINS — Appeal—Burden of Proof. A landowner, who excepts to the action of the viewers upon the third ground set forth in section 3057, Comp. Laws 1909, or upon the ground that his land was assessed too much, on trial of his appeal in the district court, has the burden of that issue.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Settlement of Case-Made — Dismissal. A proceeding in error brought to this court on a case-made, where it does not appear from the record or otherwise that the defendant in error 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>(Syllabus by the Court.)</p>

<p>GAS — -Supply to Private Consumers- — -Regulation of Charges. Section 18, art. 9, of the Constitution does not confer upon the Corporation Commission jurisdiction and power to prescribe the rates and charges for service to be rendered by a gas company furnishing gas within the limits of a city under franchise from the.city, and that, too, whether the city has authority conferred upon it by Comp. Laws .1909, sec. 693, to regulate the charges therefor or not. Neither is such jurisdiction conferred by Comp. Laws 1909, sec. 8812.</p> <p>(Syllabus by the Court.)</p>

<p>CARRIERS — Pares—Order of Corporation Commission. Appellant's evidence examined, and held sufficient to overcome the prima facie ' presumption of the reasonableness, justness, .and correctness of the order appealed from.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Settlement of Case-Made — Dismissal. A proceeding in error brought to this court on a case-made, where it • does not appear from the record or otherwise that the defendant in error 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>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Case-Made—Failure to File. The case-made, or a copy thereof, not having been filed with the papers in the case in the court below, is a nullity, and cannot be considered in this court for the purpose of reviewing matters complained of in the trial court.</p> <p>(Syllabus by the Court.)</p>

<p> Error •from Creek County Court; Josiah G. Davis, Judge. </p> <p>Action by Elizabeth Maples and others against William Smythe. Judgment for defendant, and plaintiffs bring error.</p>

<p>Error from Caddo County Court; B. F. Holding, Judge.</p> <p>Action by Earnest C. Corey against Roy Butler. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Washita County Court; L. R. Shean, Judge. </p> <p>Action by C. H. Nickel against C. A. Brochers. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Noble County Court; L. B. Robinson, Judge. </p> <p>Action by Harry M. Robinson against the City of Perry. Judgment for defendant, and plaintiff brings error.</p>

<p>INDIANS — Lands—Homestead—Alienation. P., a freedman member of the Creek Tribe of Indians who had selected an allotment, died in the month of June, 1902. On March 26, 1904, there were delivered to his heirs two deeds for his said allotment, denominating portions of it as homestead and surplus. On September 13, 1905, the mother, as heir of the said decedent, executed a deed to the said allotment, homestead and surplus. Held, that the homestead character never attached to any portion of the said allotment, and under and by virtue of the terms of the act of April 21, 1904 (33 St. at L. 189), the restrictions, if any existed, were removed' for its alienation by the heirs of the deceased.</p> <p>(Syllabus by the Court.)</p>

<p>1.‘ TAXATION — Levy—Specification of Purpose. Section 19, article 10, of the Constitution (Williams’ Ann. Const., see. 284), which requires that every act of the Legislature levying a tax shall specify distinctly the purpose for which the tax is levied, is mandatory, and an act levying an annually recurring tax, which does not specify the purpose for which the tax is levied, is void.</p> <p>2. SAME — -Validity of Statute — Graduated Land Tax. The act of May 26, 1908 (Sess. Laws 1907-08, p. 725; Comp. Laws 1909, secs. 7738-7742), providing for a graduated tax on land holdings, is in conflict with section 19, article 10 of the Constitution, because it fails to specify the purpose for which the tax is levied.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by J. L. Hughes against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff. From order of the court granting a new trial, plaintiff brings error.

<p>1. PLEADING — Exhibits—Effect. It is not good practice, unless so required by statute, to make a mere exhibit a part of the petition.</p> <p>(a) It is better to make a direct statement of the facts in the order in which they occur; this being the orderly method a good pleader will observe.</p> <p>. (b) However, when an exhibit is made a part of the petition, although not required by statute, and the other allegations in said petition,- when taken in connection with the contents of the exhibit, state a cause of action, reference may be had to such exhibit, in order to determine whether a cause of action has been stated to such an extent as to withstand a general demurrer.</p> <p>(c) Though an instrument may not be required by statute to be attached as an exhibit, yet if it is attached as a part thereof, and its execution is alleged in the petition, and its substance therein pleaded, so far as necessary and applicable to the cause of action sued on, and its execution is not denied under oath, on the trial its execution will be taken as admitted.</p> <p>2. SAME — Motions—Judgment on Pleading. When, under the allegations of the petition and the admissions in the answer, the . plaintiff is entitled to judgment on the pleadings, it is error to deny a motion for such purpose.</p> <p>3. SAME. When, under the pleadings, it is averred that L., by a clause in a deed executed prior to Act of April 26, 1906, c. 1876, see. 19, 34 IT. S. St. at L. 144, and before the restrictions were removed from the allotment of the grantor, it was stipulated that said grantor agreed "to execute a good and sufficient deed of conveyance to said defendant for said eighty acres of land when his restrictions upon the power to alienate said land were removed," and said, written contract is attached to the petition as a part thereof, and its execution is not denied, and it is further averred that after removal of restrictions said L. executed to S. a deed to said 80 acres of land, pursuant to said stipulation, said deed, as to said 80 acres of land, is void; and judgment to that extent should have been entered on the pleadings, upon motion, in favor of L.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. In the matter of the submission of the agreed case on the issuance of bonds by the City of Guthrie. From a judgment directing the approval of the issuance, the Bond Commissioner brings error.

<p>ESTOPPEL — By Deed — Rights Subsequently Acquired. Where R. sold and conveyed to B. by warranty deed a town lot to which he had no title, and thereafter acquired by warranty deed from H. a perfect title thereto, held that the same inured eo instante to the benefit of his grantee, and that the lien of a judgment, rendered and entered against the grantor prior to the first deed, did not attach to the land.</p> <p>(Syllabus by the -Court.)</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by M. T. Sexsmith against H. E. Chappell. Erom the judgment, Sexsmith brings error.</p>

<p>APPEAL AND ERROR — Review—Briefs—Requisites—Dismissal. When plaintiff in error in his brief fails to comply with rule 25 (20 Okla. xii, 95 Pac. viii) of this court, his appeal may be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kiowa County; J. R. Tolbert, Judge. </p> <p>Action by the Farmers’ & Merchants’ National Bank of Hobart, Oklahoma, against School District No. 56, Kiowa County. Judgment for defendant, and plaintiff brings error.</p>

<p>In the matter of proceedings to disbar E. I. Saddler. Recommendations of a referee that a demurrer to the petition should be sustained.</p>

<p>1. PLEADING — Motion to Make More Definite and Certain — Time— ■ Extension of Time “to Plead.” A motion to make more definite and certain, which is provided for by section 5659, Comp. Laws 1909, may be made at any time within the period allowed to answer or demur by section 564-5, Comp. Laws 1909, and if the defendant obtains an extension of time in which “to plead,” he does not thereby waive the right to make such motion within the time so extended.</p> <p>2. JUDGMENT- — -Pleadings—Undisposed of Motion. Where a motion to make a petition more definite and certain, not frivolous, has been filed by a party within the time to plead, and is pending undisposed of and not waived, a judgment upon the pleadings against the defendant cannot be taken.</p> <p>(Syllabus by the Court.)</p> <p>Hayes, C. J. dissenting.</p>

<p>INDIANS — Indian Lands — Mining Lease — Disaffirmance—-Removal of Restrictions. An allottee of the Cherokee Tribe of Indians prior to the removal of his restrictions executed a mining lease upon his allotment subject to the approval of the Secretary of the Interior. After the lease had been submitted and while pending before the Secretary of the Interior, lessor's restrictions on alienation of his lands were removed, and he then protested against the approval of the lease, which was denied and the lease approved. On suit brought to cancel the same as a cloud upon the title to the land involved, it was held by the trial court that the lease was invalid. Held, error.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissenting.</p>

Error from District Court, Mayes County; T. L. Brown, Judge. Action bj' Thomas C. Thomas and others against Bettie Hampton and another. Judgment for plaintiffs, and defendants bring error.

<p>1. CARRIERS — Corporation Commission — Contempt Proceedings — Pleading — Jury Trial. In a proceeding in contempt for the punishment of a corporation for the violation of an order of the Corporation Commission, pursuant to Act May • 29, 1908, Sess. Laws Oída. 1907-08, p. 228, verification of the information filed with the commission is waived by answering to the merits. Held, further, that in such proceeding the contemnor is not entitled to ■a trial by jury.</p> <p>2. SAME — Appeal from Orders of Commission — Presumption. Evidence examined, and held that the prima facie ¿resumption of reasonableness and justness attending the order of the commission fining a¿Dpellant for violating rule 6 of order No. 168 requiring carriers to begin the forward movement of freight towards its destination within 24 hours after the bill of lading is signed, has not been overcome.</p> <p>. (Syllabus by the Court.)</p>

Error from District Court, Texas County; R. H. Loofbourroiv„ Judge. Action by J. D. Conwill against W. H. Eldridge. Judgment for defendant, and plaintiff brings error. Plaintiff in error brought this action in the court below to recover the sum of $1,117.74 upon two certain promissory notes made and executed to plaintiff in error by defendant in error.

Error from District Court, Noble County; W. L. Barnum, Judge. Action by Territory of Oklahoma, on relation of Henry S. Johnston, County Attorney, and others, against J. P. Woolsey and others. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court„ Seminole County; Robt. M. Rainey, Judge.</p> <p>Action by the Seminole Townsite Company against the Town of Seminole and the members of its Board of Trustees and Clerk to enjoin the enforcement of an ordinance providing for the construction of sidewalks in front of various lots owned by plaintiff in a certain town. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Seminole County; Robt. M. Rainey, Judge. Action by the Seminole Townsite Company against the Town of Seminole and others. Judgment for defendants, and plaintiff brings error.

<p> Error from Beckham County Court; John C. Hendrix, Judge. </p> <p>Action by the Spaulding Manufacturing Company against J. L. Lowe. Judgment for defendant, and plaintiff brings error.</p>

<p>1. TOWNSHIPS — Levy of Taxes — Township Board — Budget. Comp. Laws 1909, sees. 7624-7626, 8730-8735, construed, and held to require the township board of directors to make out an estimate of the amount of money necessary to defray the township expenses during the ensuing year; the same to be attested and filed with the clerk of the county to enable the county commissioners to proceed with the levy.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — School Tax — Estimate of Expenditures. Constitution, art. 10, see. 19, Comp. Laws 1909, secs. 8056, 8093, 8117, construed, and held to require the local legislative body of the school district to distribute the tax voted at the annual school meeting of the district in payment of an estimate of the expenditures authorized to be incurred by Comp. Laws 1909, sec. 8056, and thus show for what purpose the tax was levied, and certify the same to the district clerk.</p> <p>3. MUNICIPAL CORPORATIONS — Incorporated Town Tax — Levy— —Collection. Constitution, art. 10, see. 19, construed, and held to require the board of trustees of an incorporated town, in assessing annual taxes pursuant to Comp. Laws 1909, sec. 847, and in order to specify distinctly the purpose for which said tax is levied, by resolution or order, to adopt an estimate of expenditures and fix a tax levy to raise it and certify the same to the county commissioners, to be by them levied and collected as other taxes.</p> <p>4. TAXATION — Excessive Levy — Collection—Injunction. Where, in certain school districts, towns, and townships, a tax of a certain number of mills, for the purpose of paying their respective estimates of expenses for the ensuing year, was levied when a lesser levy would be more than sufficient to raise the amount necessary to pay said estimates, and where the lesser has been paid, and where the county treasurer and the sheriff are threatening to collect from plaintiff the balance, held that said balance is excessive and illegal, and tnat it was error to refuse to restrain its collection.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by the Tonkawa National Bank- against Maud K. Aldrich Dyson and others. Judgment for defendants,'and plaintiff brings error.</p>

Error from District Court, Nobl'e County; W. M. Bowles, Judge. Suit by the Perry Public Library Association and others against James Lobsitz and others. Judgment for defendants, and plaintiffs bring error.

<p>1. BROKERS — Compensation—Performance of Contract. A real estate agent authorized to sell land for another for a stated price for a certain compensation has earned his commission when he produces a purchaser ready, willing, and financially able to purchase the land upon the terms and conditions agreed upon.</p> <p>2. APPEAL AND ERROR — Review — Amendments Regarded as Made. Where, in an action for his commission on a sale of land, plaintiff declares upon an express contract to pay him five per cent, therefor, and evidence is introduced without' objection in effect that such commission is usual and customary, held, that the pleading is presumed to be amended so as to conform to -the proof, that an instruction submitting to the jury the question of what is a reasonable commission is proper, and that the same having been'found to be five per cent, will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Supreme Court — Tax Proceedings — Appeal from Judgment Affirming County Treasurer’s Order Assessing Omitted Property. Appeal dismissed for. want of jurisdiction, on the authority of State et al. v. Cawthorn’s Estate, 31 Okla. 560, 122 Pac. 522.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Hughes County Court; P. W. Gardner, Judge. </p> <p>Action by N. V. Bilby against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by D. W. McClellan against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Proceeding by J. B. A. Robertson for the allowance of his account as attorney for a drainage district in Lincoln County. A motion for a judgment on the pleadings by Robertson having been denied, the Board of County Commissioners brings error, and Robertson alleges cross-errors.

Assessment of the property of the Western Union Telegraph Company for the fiscal years ending June 30, 1911, and June 30, 1912, respectively. From the assessment levied by the State Board of Equalization, the Telegraph Company appeals.

Error from Woods County Court; Wm. Bickel, Judge. Action between Ike Smith and the Alva State Bank. From a judgment in favor of the latter, the former brings error.

Error from Superior Court, Oklahoma County; . Edzvard Dezves Oldfield, Judge. Action by H. S. Plurst and others against Agnes P. Wheeler. Judgment for the latter, and the former bring error.

<p>APPEAL AND EB.UOB, — Parties'—Joinder—Service. On appeal all parties to the judgment which it is sought to reverse whose interests will be affected by a reversal of the judgment must either join in the prosecution of an appeal, or be made parties defendant and be brought into this court by service of summons, where they do not voluntarily appear.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Writ of Error — -Filing—Time. By reason of chapter 18, p. 35, Sess. Laws 1910-11, this court is without ‘jurisdiction to entertain an appeal commenced in this court more than six months after the rendition of the judgment or final order complained of.</p> <p>2. SAME- — Perfecting Appeal — Time. The time within which to perfect an appeal under said statute dates from the rendition of the judgment or order appealed from, and not from the entry thereof.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Time fox Taking Proceedings — Dismissal. The judgment sought to be reversed was rendered April 5, 1912. Proceedings in error to review the same were commenced in this court October 21, 1912, and not within six months after the rendition of said judgment, as required by an act approved February 14, 1911 (Laws 1910-11, c. 18). On motion, the cause is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court; Muskogee County; R. P. de Graffenried, Judge. </p> <p>Action by 'Eddie Escoe, by Bert E. Nussbaum, his legal guardian, against Drury H. Middleton and others. From the judgment, the defendants Middleton bring error.</p>

Error from District Court, Atoka County; Robt. M. Rainey, Judge. Action between Henry J. Bond, as Treasurer of Atoka County, and the Board of County Commissioners of such county, and Pete Watson and another. From a judgment in favor of the latter, the former bring error.

Error from District Court, Seminole County; Tom D. McKeozm, Judge. Action between Frank Honley and another and the First National Bank of Holdenville. From the judgment, Honley and another bring error.

<p> Error from District Court, Kingfisher County; James B. Cullison, Judge. </p> <p>Action by First National Bank of Hennessey, Oklahoma, against A. M. Harding. From an order discharging a garnishee, plaintiff brings error.</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action between the Indian Land & Trust Company and others and R. W. Widner. From the judgment, the Indian Land & Trust Company and others bring error.

Error from District Court, Okmulgee County; Wade S■ Stanfield, Judge. ■ Action by the State, on the relation of the County Attorney, against W. J. Cook and A. Z. English, administrators of the estate of F. B. Severs, deceased, and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Osage County; John J. Shea, Judge. Action by Kate Giraud against the Town of Fairfax. Judgment for plaintiff, new trial denied, and defendant brings error.

<p>1. NEGLIGENCE — Pleading—Contributory Negligence — Admissions. In an aetion for personal injuries, where defendant denies generally, and alleges contributory negligence, the latter allegation is not an implied admission of negligence, rendering proof of negligence unnecessary, and limiting the issues to that of contributory negligence.</p> <p>2. MASTER AND SERVANT- — -Injuries to Servant — Evidence. Where, in a suit for personal injuries sustained in a collision by plaintiff’s intestate while an engineer on defendant’s train, deceased was under orders to run from C. to L., which he did, and while running, under slow speed on the main track to the station at L. collided, in a dense fog, with a switch engine making up another train due to leave an hour and a half before, held, .the pleadings raising the issue, that it was error for the court to exclude testimony offered to prove a custom, in effect, that the rule requiring deceased to take the side track under said order-had been abandoned by being habitually disobeyed and disregarded by him with knowledge of the defendant.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the State Corporation Commission. </p> <p>Proceeding by the State and others against the Midland Valley Railroad Company. From the judgment, the railroad appeals.</p>

<p>1. CLERKS OF COURTS — “County Office.” The office of clerk of the superior court is a county office.</p> <p>2. SAME — Term of Office — Repeal of Statute. Section 8 of the Act of March 6, 1909 (sections 1965-1976, Comp. Laws 1909; chapter 14, art. 7, Sess. Laws. 1909), in so far as it affects the term of the clerk of the superior court, is repealed by section 19 of the Act of March 19, 1910 (chapter 69, Sess. Laws 1910 [Ex. Sess.] pp. 129, 143).</p> <p>3. SAME — Election. The laws in force in this state at the time of the holding of the election for county officers in November, 1912, provided for the election of the clerk of the superior court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Logan County; A. H, Huston, Judge. </p> <p>Application by H. L. Jamieson for writ of prohibition against the State Board of Medical Examiners. Writ denied, and plaintiff brings error.</p>

<p>Error from District Court, Okfuskee County; John Caruthers, Judge.</p> <p>Action by W. H. Ebey, as receiver of the Citizens’ Bank & Trust Company, against M. W. Krause. Judgment for defendant, and plaintiff brings error.</p>

<p>1. NAMES — Right of Person, to Change Name. Although the custom is universal for all male persons to bear the name of their parents, there is nothing in the law prohibiting a man from taking another name, if he so desires; nor is there any penalty or punishment for so doing.</p> <p>2. SAME — Effect Upon Contracts. A contract or obligation may be entered into by a person by any name he may choose to assume. The law only looks to the identity of the individual, and when, that is clearly established the act, when free from fraud, will be binding.</p> <p>3. APPEAL AND ERROR — Findings of Court — Weight and Effect. A cause having been tried to a court without a jury, a general finding by said court in favor of one of the parties will be given, upon appeal, the same weight and effect as the verdict of a jury.</p> <p>(Syllabus by the Court.)</p>

<p> Brror from District Court, Alfalfa County; M. C. Garber, Judge. </p> <p>Action by Phillip Gerber against Anscelmo Jack. Judgment for plaintiff, and defendant brings error.</p>

Error from Swanson County Court; Frank P. Cease, Judge. Action between D. M. Carter, trading under the firm and style of Manitou Hardware & Implement Company, and R. J. Belt and others. From the judgment, Carter brings error.

<p> .Error from District Court, Grady County; J. T. Johnson, Judge. </p> <p>Action by E. Dowclen against J. B. Appleby and others. Judgment for plaintiff, and certain defendants bring error.</p>

<p> Appeal from State Board of Equalization. </p> <p>Report of Referee confirmed.</p>

<p> Appeal from State Board of Equalization. </p> <p>Report of Referee confirmed.</p>

Error from District Court, Garfield County; James W. Steen, Judge. Action by the board oí commissioners of Garfield county against Daniel Huett and H. G. McKeever. Judgment for defendants, and plaintiff brings error.

Error from District Court, Muskogee County; R. C. Allen, Judge. Action between T. A. Barnett, guardian, and others and the Blaekstone Coal & Milling Company. From the judgment, Barnett and others bring error.

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by the First National Bank of Temple against R. L. Brown and L. O. Montgomery, as partners. Judgment for plaintiff, and defendant bi'ings error.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Proceeding by the board of education of the city of Perry for issuance of funding bonds. From the judgment, certain judgment creditors bring error.

<p>1. ATTORNEY AND CLIENT — Disbarment—Verification of Charges. In disbarment proceedings instituted by the State Bar Commission by the order and direction of the Supreme Court, no verification of the specification of charges is necessary, under section 267, Comp. Laws 1909.</p> <p>2. SAME — Determination of Sufficiency. The sufficiency of the verification must be determined by an inspection of it, and the evidence of affiant cannot be taken for the purpose of showing that he had no personal knowledge as to the charges.</p> <p>3. ‘ CONSTITUTIONAL LAW — Jury—Right to Practice Law — Vested Right — Jury Trial. The right to practice law is not a vested right, but a mere privilege, and an action to disbar an attorney under section 267, Comp. Laws 1909, is a civil proceeding, and the accused is not entitled to a trial by a- jury as a matter of right.</p> <p>4. ATTORNEY AND CLIENT — Disbarment — Grounds — Attack on Court. The obligation which attorneys assume when they are admitted to the bar is not simply to be obedient to the Constitution and laws, but to maintain at all times the respect due the courts of justice and judicial officers. This obligation is not discharged by merely observing the rules of courteous demeanor in open court, but includes abstaining, out of court, from insulting language and offensive conduct toward the judges personally for their judicial acts. An attorney may criticise the courts so long as his criticisms are made in good faith and in respectful language, but the printing and publication of a pamphlet falsely, purposely, and maliciously attacking the integrity of the courts and the judges thereof, designed to willfully, purposely and maliciously misrepresent the courts and the judges thereof and bring them into disrepute and lessen the respect due them, violates his duties and obligations as an attorney and counselor at law, for which he may be disbarred.</p> <p>5. SAME — Pleading as Evidence. Under section 266, Comp. Laws 1909, an attorney cannot be suspended or disbarred for the filing of any pleading or exhibit in the courts of this state, but a petition, with a pamphlet attached thereto as an exhibit, falsely and maliciously attacking the courts of this state and the judges thereof, may be considered as evidence upon the question of the attorney's moral and mental fitness to practice law.</p> <p>6. SAME — Jurisdiction. The Supreme Court, having exclusive jurisdiction to admit attorneys to practice law, has, independent of statutory authority, the inherent power to disbar attorneys for misconduct.</p> <p>(Syllabus by the Court.)</p> <p>Burford and Hubbell, Special Judges, dissenting.</p>

<p>1. RAPE — Civil Liability of Perpetrator. Rage of a female gives her a cause of action for damages against the perpetrator.</p> <p>2. SAME — Definition of Crime. Rape, as defined by the second subdivision of section 2353, Comp. Laws 1909, is an act of sexual intercourse accomplished with a female, not the wife of the perpetrator, where the female is over the age of sixteen years and under the age of eighteen, and of previous chaste and virtuous character.</p> <p>3. SAME — Action for Damages — Defenses—Consent of Female. To show that such a female consented to the act or acts of sexual intercourse will not constitute a defense to a civil action to recover- damages for an assault upon her committed in such manner and under such circumstances as to constitute rape.</p> <p>4. APPEAL AND ERROR — Theory of Case — Consistency on Appeal. The cause was submitted below upon the theory that in order for the plaintiff to maintain her cause of action, it was necessary to satisfy the jury that if the defendant had sexual intercourse with her it was accompanied with intent on his part to effect that purpose in defiance of all resistance and without her consent.. Held, that on appeal it must be reviewed upon the same theory.</p> <p>5. RAPE — Civil Liability — Sufficiency of Evidence. Evidence examined, and held sufficient to authorize the submission of the cause to the jury, and to sustain the verdict rendered thereon.</p> <p>6. SAME — Admissibility of Evidence — Offspring as Exhibit. In an action for damages for rape, a child two 'and a half years of age, alleged to be the fruit of the illicit intercourse, may be exhibited to the jury by the plaintiff for the purpose of establishing the facts of birth and of prior unlawful intercourse.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action by the Lodwick Lumber Company and the Atlanta Lumber Company against the E.' A. Butt Lumber Company, composed of E. A. Butt and I. A. Lewis. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court, Bryan County; Jas. R. Armstrong„ Judge.</p> <p>Action by Charles W. Mandler against Josephine Starks and others. Judgment for defendants, and plaintiff brings erorr.</p>