Volume 36 — Oklahoma Reports

<p> Error from District■ Court, Pottawatomie County; J. B. A. Robertson, Judge. </p> <p>Action by A. H. Watson against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>LIFE ESTATES — Mining Lease — Interest of Life Tenants. Where the owners of a life estate and the owners of the remainder join in an oil and gas mining lease, and the lessee develops the lease and produces oil, the life tenants are entitled either to have the royalties invested and to receive the income therefrom, or to receive such a proportion of the royalty as will amount to the present value of an annuity for the life expectancy of the life tenant equal to the interest on the royalties at 6 per cent.</p> <p>(Syllabus by Bosser, C.)</p>

<p>1. CARRIERS — Delay in Freight — Liability for Damages. Where a railroad company, by oral agreement of its agent, promises to furnish cars at a certain time, and on account of its failure so to do the freight fails to connect with a train on a connecting carrier) and the freight is damaged by the delay, the company is liable for actual damages caused by the delay.</p> <p>2. APPEAL AND ERROR — Harmless Error — Evidence. Where the evidence showed that a railroad company, by oral agreement of its agent, promised to furnish cars to receive cattle at a certain time, and failed to do so and failed to transport them with reasonable dispatch after it actually received them, a judgment will not be reversed because the plaintiff was permitted to testify that he received a written bill of lading after the cattle had started to their destination.</p> <p>3. JUSTICES OF THE PEACE — Pleading—Amendment. Where a bill of particulars, in an action brought in a justice court, alleged that a railroad company agreed in writing to' furnish ears in which cattle could be shipped at a certain hour, and the proof showed such" contract was oral, the bill of particulars will be considered as amended to conform to the proof.</p> <p>4. CARRIERS — Injuries to Live Stock — Damages — Excessiveness. "Where the evidence showed plaintiff's damage only slightly, if at all, exceeded $90, a verdict for $175 is excessive.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from Osage County Court; C. T. Bennett, Judge. </p> <p>Action by J. D. Adkins against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. RAILROADS — Injury to Animals on Track — Evidence of Damages. Evidence examined, and held sufficient to show a negligent killing of the animals by the railroad company; also, that there was sufficient competent evidence of market value.</p> <p>2. TRIAL — Exceptions to Charge — Time of Taking. After the instructions have been read to the jury, the arguments of counsel made, and the cause finally submitted to the- jury for decision, objections and exceptions to the charge of the court come too late.</p> <p>(Syllabus by Brewer, C.)</p>

<p>RAILROADS — Killing Stock — Evidence. Under the law in force in Indian Territory prior to statehood, where the evidence shows that three animals were killed by -the defendant’s train at the same place on different dates, where the track is straight in both directions from the scene of tho killing for miles, and the circumstances are shown to be such that a reasonable inference of negligence upon the part of defendant arises therefrom, and no one saw the killing except defendant’s servants, and defendant fails to introduce evidence solely in its possession, a judgment for the value of the animals will not be reversed.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>1. APPEAL AND ERROR — Review—Refusal of New Trial. This cause was set regularly for trial on the 13th. On that date when called, one of defendants’ attorneys was not present, and the court was asked to pass the ease over because of an alleged verbal understanding between plaintiff and the absent attorney so to do. This was refused and the cause went to trial. In the motion for a new trial, the alleged verbal agreement, to pass the case, was set up as one of the grounds therefor. On this point the court heard the testimony of the witnesses and ruled against the motion. The evidence was in conflict. Held, that a reversal will not be ordered, where there is evidence reasonably tending to support the ruling of the court.</p> <p>2. SAME — Instructions. Rule 25 of this court (20 Okla. xii, 95 Pac. viii), among other things, provides: “Where a party complains of instruction given or refused, he shall set out in totidem verbis in his brief separately the portions to which he objects or may save exceptions.’’ Held, that where this rule has not been observed the instructions will not be examined by this court in search of error.</p> <p>3. SAME — Discretion of Court. The question of the mere order, in which proof is introduced at a trial, rests very much within the sound discretion of the trial court; and unless it clearly appears that this discretion has been abused, to the injury of the complaining party, a reversal will not be ordered on this ground.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by F. O. Harris and Z. D. Harris, his wife, against W. J. Arthur. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. WATERS AND WATER COURSES — Injuries by Flowage — “Extraordinary Flood.” An extraordinary flood is one of those unexpected visitations whose coming is not foreseen by the natural course of nature, and whose magnitude and destructiveness could not have been anticipated, and prevented by the exercise o'f ordinary foresight.</p> <p>2. SAME — ’“Ordinary Flood.” An ordinary flood is one, the repetition of which, though at uncertain intervals, might by the exercise of .ordinary diligence in investigating the character and habits . of the stream have been anticipated.</p> <p>3. NEGLIGENCE — Elements—Act of God. A defendant is not liable for damage resulting solely from an act' of God; but if the defendant’s negligence is a present contributing proximate cause, which, commingled with the act of God, produces the injury, then defendant is liable notwithstanding the act of God.</p> <p>4. WATERS AND WATER COURSES — Injuries from Flowage — Question for Jury. In a suit for damage from a flood, where the defense is that the flood was so unusual and unprecedented as to amount, in law, to an act of God, thus relieving the defendant of all liability, the question should be submitted to the jury under proper instructions from the court, where the evidence is such that in weighing it the minds of reasonable men might fairly differ on the question as to whether the flood was so unusual and unprecedented that its extent and resulting effects could not have been reasonably anticipated and provided against by an ordinarily careful person in defendant’s situation.</p> <p>5. ESTOPPEL — Negligence. In a suit for flood damage resulting from a negligent construction or maintenance of a bridge and embankment across a stream and the adjacent' low lands, the fact that plaintiff as a subcontractor put in place part of the dirt embankment does not operate as an estoppel against him in a suit based upon negligent construction and maintenance, where it is not shown that he possessed any knowledge, experience, or skill in engineering, or as to the suitableness or sufficiency of sueh construction, but merely worked under the direction and specifications of defendant’s engineers.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Choctaw County; Jas. R. Armstrong, Judge. </p> <p>Action by Frank PI. Mayne against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Brror from Oklahoma County Court: Sam Hooker, Judge. Action by S. E. Dunbar against Fred Young. From an order vacating a judgment for defendant, and granting a new trial, defendant brings error.

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Haskins & Sells against Oklahoma City to recover $13,211.28 for auditing the city’s books and accounts. Judgment for defendant, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Reference—Findings of Fact — Correction by Trial Court. The authority of a trial court to correct findings of fact by a referee is confined to cases where the authority is given, by stipulation of imrties, to cases which, under section 5811, Comp. Laws 1909, may be referred without the consent of the parties, and to equitable actions where the parties have consented to the reference; but where it appears that a referee was appointed and made a report containing findings of fact, and that the court, after examining the evidence, set his findings aside and made different findings, it will be presumed that the court had authority to. take such action, unless it affirmatively appears that the court was, not authorized in any of the ways above stated.</p> <p>2. SAME — Review—-Weight of Evidence — Bill of Exceptions. Where the evidence is not preserved by ease-made or bill of exceptions, no question can be considered in this court which depends upon the weight of the evidence.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from District-Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by Mrs. E. P. Eonville against the Metropolitan Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Robert P. de Graffenried against Peggie AVoodward and others. From judgment for plaintiff, defendants bring error.</p>

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by J. Smiley against R. Harris and others for injunction and damages. Judgment for plaintiff,, and defendants bring error.</p>

<p>EXPLOSIVES — Personal Injuries — Proximate Cause — Intervening Acts. A railway company, in extending its lines, was compelled to use ' large quantities of blasting powder in' tke excavation of a cut. A small quantity of powder, from a spoonful to a pint, was by tke workmen left in each powder can, which cans were thereafter thrown aside, some on, and some off, the company’s right of way. J., ■ a boy past fourteen years of age, residing with his father.near the cut, while trespassing on.the company’s right of way, discovered the small quantities of powder left in the various ’ cast aside powder cans, and by dint of perseverance, covering ' a period of fire or six weeks, removed the same, until he had secured about one-half a canful, which he secreted, first near the • railway cut, and later in a can back of Ms father’s house. His ■ father and mother, discovering- his possession of the powder, remonstrated with him to leave it alone, but did not take it away from him. The powder had been in the can back of his father’s house for three weeks, when P., a boy of thirteen years of age, came to visit J. They took a quantity of powder in their pockets and went down to a nearby creek, where, placing the powder on the ground, and in. attempting to explode it, P. was severely injured by a premature explosion. It was shown that J. knew what powder was, had handled it and exploded it before without injury. In an action by P. against the railway company for damages, held, that the action of the railway company in permitting the cans with small quantities of powder therein to be left on its right of way where J. could gather the powder therefrom was not the proximate cause of the injury to P.; nor were the negligent acts of J. or those of his father, or his mother, or of P., such concurrent or contemporaneous acts of negligence as would make the company liable, but that they were the independent acts of intelligent, responsible human beings, of such degree and character as would break the chain of sequence and thereby insulate the company’s original negligence to such an extent as would make it the remote and not the proximate cause of the injury.</p> <p>(Syllabus by Eobertson, C.)</p>

Error from Superior Court, Pittsburg County; P. D. Brezver, Judge. Action by the United Mine Workers of America and others against R. M. Brooks and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from Wagoner County Court; Win. W. Gresham, Special Judge. </p> <p>Action by James L. Dyer against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>JUSTICES OF THE PEACE — Appeal—Answer. When a ease has been tried without a written answer by the defendant, it is not necessary for the defendant, on appeal to the county court, to file an answer, under section 6388 of Comp. Laws 1909.</p> <p>(Syllabus by Ames, C.)</p>

<p>1. DVATERS AND WATER COURSES — Railroad Construction — Over-sowing Lands. If a railroad company so constructs its roadbed and ditches as to divert surface water from its usual and ordinary course, and by its embankment, ditches, or artificial channels causes such-water to be conveyed to a particular place, and thereby to overflow the land of another proprietor which, before the construction of such road, ditches, or channels, did not overflow, the company will be liable to such proprietor for the injury.</p> <p>2. APPEAL AND ERROR — Review-—-Verdict. Where a question of fact is submitted to a jury upon issues joined by the pleadings, and there is evidence reasonably tending to support the verdict, the same will not be disturbed in this court on appeal.</p> <p>3. EVIDENCE — Opinion Evidence — Value of Growing Crops.- Same as third paragraph of syllabus in Chicago, R. I. & P. Ry. Co. v. Johnson, 25 Okla. 760, 3 07 Pac. 662, 27 L. R. A. (N. S.) 879.</p> <p>4. ’ SAME- — Photographs—Admissibility. Photographs, duly verified, are admissible in evidence as aids to the jury in arriving at an understanding- of the evidence, or of the situation or condition or location of objects or premises, material and relevant to the issues.</p> <p>5. SAME — Weight. The weight to be given to such photographs by the jury is not of conclusive effect as a matter of law, but depends upon the skill, accuracy, and manner in which taken, and they are to be considered under the same tests as other evidence.</p> <p>6. SAME — Admissibility. The fact that the photographs were, .taken at a time one and two years after the dates of the respective injuries does not render them incompetent, where offered only for the purpose of showing the topography of the affected country and other permanent conditions, as distinguished from those of a transient or temporary character.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. APPEAL AND ERROR — Time of Serving Case-Made — Extension. The time for instituting proceedings in error in the Supreme Court to review the judgment of a trial court is not extended by the filing of a motion for new trial, where the action complained of, and embraced in such ' motion, was in rendering judgment on a motion for judgment on the pleadings.</p> <p>2. SAME — Settling Case-Made — Effect of Motion for New Trial. Where a motion for a new trial is unauthorized and unnecessary for the review of the matters complained of by plaintiff in error, an order of the trial court, made after three days from the time the order sought to be reviewed is entered, but-within three days after the motion for a new trial, filed in time, had been overruled, is invalid to extend the time for settling the case-made.</p> <p>(Syllabus by Bobertson, C.)</p>

<p> Error from Pontotoc County Court; W. G. Currie, Special Judge. </p> <p>Action by W. R. Riddle against W. W. Hill. Judgment for plaintiff, and defendant brings error.</p>

<p>INSURANCE — Premium Notes — Liability of Maker. A written application for insurance stipulated that the insurance company should be bound upon reeeipt and approval of the application by the company’s general agents at a city named. The application was approved on the day of its reeeipt; but the policy issued.in pursuance of the application, though properly mailed, was not received by the insured for several weeks, and until after a loss on the property insured had been sustained. Held, that by the terms of the application the contract of insurance became binding from the date of the receipt and approval of the application by. the agents named; and that the maker of the premium note was liable to the payees thereof, without regard to the delay in' the' delivery of the policy.</p> <p>(Syllabus by Sharp, 0.)</p>

Error from District Court, Osage. County; John J. Shea, Judge. Held: detained, and restrained of his liberty; against his will, to the great humiliation, pain, and damage of said plaintiff, in the sum of $2,500;” and that, by reason of said wrongful arrest and false imprisonment, plaintiff was detained and prevented from continuing his journey upon said train to Tulsa, according to the terms of said…

Brror from Oklahoma County Court; Sam Ho'oker; Judge. Action by the T. S. Reed Grocery Company against the Lion Store Mercantile Company. From a judgment for defendant on its cross-petition, plaintiff brings error. Eugene Miller, trustee in bankruptcy of the Lion Store Mercantile Company, is substituted as defendant in error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by D. F. Sawyer against Ida-Ware.' and otters to quiet title to real estate purchased by plaintiff at a foreclosure sale. Judgment for plaintiff against Ida Ware and for minor defendants against plaintiff, and plaintiff brings error.

<p> Error, from Beaver County Court; R. El Dickson, Judge. </p> <p>Action by B. F. Foulds against Clem M. Hubbard. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by G. C. Graham against W. A. Yates and George Long. Judgment for plaintiff for less than the amount claimed, and he brings error.</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action by the State against Eighty-Nine Casks of Beer and the Pabst Brewing Company. Judgment for the return of the beer, and the State brings error.

<p>1. APPEAL AND ERROR — .Review—Discretion of Trial Court. A motion to make more definite and certain is addressed largely to the discretion of the court; and its ruling thereon will not be reversed, except for the abuse of such discretion that results prejudicially to the complaining party.</p> <p>2. MUNICIPAL CORPORATIONS — Sewers — Overflowing Lands— Action for Damages. In an action against a city for damages, the petition charged that the plaintiff was the owner of a certain crop growing on lands located along the line of defendant’s sewer connecting the city with a nearby river; that defendant was negligent in the construction and maintenance of said sewer, and in permitting surface water to flow through it, and to be discharged upon plaintiff’s said crops, thereby, destroying them, to plaintiff’s damage in a given sum; that the claim had been properly presented to the city for allowance, and by its city council disallowed, prior to the bringing of the action. Held, to state a cause of action good as against a general demurrer.</p> <p>3. SAME. It is an actionable wrong for a municipal corporation to negligently construct or maintain, a sewer, whereby surface waters are diverted, and by artificial means collected in a body and discharged upon growing crops of a private individual, to his detriment.</p> <p>4. APPEAL AND ERROR — Review—Findings of Court. Where the case is tried by a court, without the intervention of a jury, upon controverted questions of fací, and there is evidence reasonably tending to support its findings, such findings will not be disturbed on the weight of the evidence.</p> <p>(Syllabus by Sharp, C.)</p>

Error from District Court, Logan County; A. H. Hu,ston, Judge. Action by the State, on relation of Charles West, Attorney General, against Eon M. Frame and others, constituting the State Board of Affairs. Judgment for defendants, and plaintiff brings error.

<p>1. PLEADING — Amendments. Same as paragraph 1 of the syllabus in Trower v. Roberts, 30 Olda. 215, 120 Pac. 617.</p> <p>2. APPEAL AND ERROR — Pleading—Review—Burden of Showing Prejudice. Same as paragraph 2 of the syllabus in Oífutt v. Wagoner, 30 Olda. 458, 120 Pac. 1018.</p> <p>5. SAME — Review—Harmless Error. Same as paragraph 4 of the syllabus in Chicago, R. I. & P. Ry. Co. v. Bankers’ National Bank, 32 Olda. 290, 122 Pae. 499.</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from Atoka County Court; J. H. Rinebaugh, Judge. </p> <p>Action by Samuel Gordon & Company against the Farmers’' Trading .Company. Judgment for defendant, and plaintiff brings-error.</p>

<p>1. • PRINCIPAL AND SURETY — Action on Bond — Parties. Under section 5571 of Gomp. Laws 1909, permitting persons severally liable upon the same obligation or instrument to be sued, either together or separately, at the option of the plaintiff, the plaintiff may bring suit against one of the sureties on a construction bond, without joining the principal and the other sureties.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — Contracts—Bonds—Statute. Under sections 6164 and 6165, Comp. Laws 1909, which re- , quire public officers, upon entering into contracts, to take bonds running to “the state of Oklahoma,” requiring the contractor to pay for all labor and material in the building, and permitting suit on the bond to be brought by any one who furnishes labor or material, a bond which runs to the trustees of the school district, instead of the state of Oklahoma, is a valid compliance with the statute.</p> <p>(Syllabus by Ames, O.)</p>

<p> Error from District Court, Okmulgee County; W. L.. Barnum, Judge. </p> <p>Action by C. D. Webster against the Webster Refining Company of Okmulgee. Judgment for defendant, and plaintiff brings error.</p>

Brror from District Court, Ottawa County; T. L. Brown, Judge. Action by J. T. Hukill and others against J. B. Tharp and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from Eove County Court; R. A. Kellar, Judge. </p> <p>Action by R. D. Earl against Charles Tyler and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Woodward County; R. H. Loofbourrow, Judge. Action by A. W. Anderson, as guardian of Edna Bird and another, against Samuel Muhr. From a judgment sustaining a demurrer to the petition, plaintiff brings error.

Brror from Bilis County Court; A. B. Williams, Judge. Proceedings in bastardy by the State, on the relation of C. B. Eeedy, County Attorney of Ellis County, against Nathan Cooper. .The jury returned a verdict of guilty, and the court charged the defendant with maintenance in the sum of $800, payable in annual installments, from which he brings error.

Error from Garfield County Court; James B. Cullison, Judge. Action by Charles D. Harlow against C. E. White. Judgment for defendant. From an order setting aside a judgment and granting a new trial, defendant brings error.

<p>BEAD BODIES — Burial—Liability for Expenses. Section 2388, Comp, Laws 1909, makes it the duty of certain persons, naming them, to bury the body of deceased relatives, dependents, or others, and further provides that, in case of failure of any person on whom this duty is east to perform the requirements of the law, then that duty shall devolve upon the person next specified, and, if all omit to act, it devolves upon the tenant, or if there be no tenant, then upon the owner of the premises upon which the body may be found. Held that, under the facts as disclosed by the record in this case, a coal company in whose mine certain miners lost their lives was liable for their burial expenses.</p> <p>(Syllabus by Eobertson, C.)</p>

<p>1. COUETS — Terms—Effect of Adjournment. Where a general term of court has been once regularly convened, on the day fixed by law, it can expire only by operation of law, or by an adjournment sine die; and where court has been so regularly convened, and has been adjourned to a day further on in the term, the failure of the judge, on account of siekness, to appear ancl hold a session on the day to which an adjournment has been taken, does not result in the loss or lapse of the term.</p> <p>2. SAME — Legality of Decision. A district court was regularly convened for general purposes, at the time and place fixed by order of the Supreme Court, and continued in session from the 30th of November until the 18th of December, when an adjourn- . ment was taken to the 21st of December, at which time the judge was unable, because of sickness, to appear and open and hold a session of court. On the 28th of December, a day within the limits of the term of court as fixed, the judge appeared and held a session of the court, trying a ease, previously assigned regularly for trial on that date. Held, that the court was legally constituted and that its proceedings and judgments are valid.</p> <p>3. CARRIERS — Carriage Of Live Stock — Limitation of Liability— Waiver. A stipulation in a contract for the shipment of live stock 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>4. SAME — Actions—Questions for Jury. 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 provision of the shipping contract requiring notice, which has not been complied with by the shipper, has expired, treats it as a pending claim, and rejects it on other grounds, the question of whether it was the intention of the carrier to waive the notice clause as a defense is a question of fact to be submitted to the jury.</p> <p>5. SAME — Limitation by Contract. The clause in a contract for the shipment of live stock, limiting the time within which an action for damage to stock shipped thereunder may be brought to a period of six months after the cause of action has accrued, is invalid and will not be enforced.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. INSURANCE — Actions on Policy — Conditions Precedent. The provisions of an insurance policy that the ascertainment or estimate of loss shall be made by the insured and the company, or, if they differ, then by appraisers, "and the amount of loss or damage having been thus determined, the sum for which this • company is liable pursuant to this policy shall be payable sixty days after due notice, ascertainment, estimate and satisfactory proof of the loss has been received by this company, in accordance with the terms of this policy. * •* * In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers together shall then estimate and appraise the loss, stating separately sound value and damage, and failing to agree shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraisers respectively selected by them, and shall bear equally the expenses of the appraisal and umpire. This company shall not be held to have waived any provision or condition of this policy, or any forfeiture thereof, by any requirement, act, or -proceeding on its part relating to the appraisal or to any examination herein provided for; and the loss shall not become payable until sixty days after the notice, ascertainment, estimate and satisfactory proof of the loss herein required have been received by this company, including an award by appraisers when appraisal has been required” — do not make it a condition precedent to bringing suit on a policy that the insured shall procure an award, or make a demand upon the insurer to have the property appraised.</p> <p>2. SAME — -Amount of Liability — Appraisal. Under such a provision in the policy, it is the duty of the party desiring an appraisal to make a demand upon the other party to join in having the property appraised.</p> <p>3. PLEADING — Waiver of Errors — Pleading Over. The petition, in an action on an insurance policy, failed to show that the plaintiff had performed the conditions precedent to an action on the policy. The defendant filed a demurrer, which was overruled. The defendant then filed an answer, which alleged that the plaintiff had failed to comply with certain provisions of the policy, which were set out specifically in the answer. Held, that by .pleading over and undertaking to point out the conditions with whieh the plaintiff had failed to comply, and the manner of their breach, the defendant waived the grounds of its demurrer.</p> <p>4. SAME — Reply—Departure. Where, in an action on an insurance policy, the answer alleged that the insured had fraudulently misrepresented, in her proof of loss, the value of the property destroyed, this allegation was sufficiently put in issue by a general denial; and a further allegation in the reply that after the loss defendant offered to pay the policy in full if plaintiff would surrender ■ another policy which she held in a different company, and that it did not return to her the proof of loss she had made, or ask for any additional proof, or claim that the proof furnished was false and fraudulent, and that it had thereby waived all the conditions of the policy, and was estopped to rely upon them, or any part of them, was surplusage, and did not constitute a material departure from the issues as raised by the petition and answer. (Syllabus by Rosser, C.)</p>

<p>PRINCIPAL AND SURETY — Release of Surety — Alteration of Contract. In an action against a surety on a bond for the faithful performance of a building contract, where it appears that the contract had been materially altered after the execution of the contract and bond, and without the knowledge or consent of the surety, the surety is discharged from liability.</p> <p>(Syllabus by Harrison, 0.)</p>

Error from District Court, Grady County; F. F. Riddle, Judge. Action by M. Weaver and others against the City of Chick•asha and another. Judgment for defendants, and plaintiffs bring ■error.

<p> Error from Choctaw County Court; W. T. Glenn, Judge. </p> <p>Action by C. L. Webb against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error Prom District Court, Washington County; John J. Shea, Judge. </p> <p>Action by Nannie E. Brown and others against R. O. Trent •and others to quiet title to land. From a judgment sustaining a •demurrer to the petition, plaintiffs bring error.</p>

Error from District Court, Tulsa County L. M. Poe, Judge. Action by the State, on the relation of Fred S. Caldwell, against G. C. Simmons and W. P. Miles. Judgment for plaintiff, and defendants bring error.

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

Error from District Court, Tulsa County; L. M. Poe, Judge, Action by W. T. Phillips against W. L. North and others, members of the Board of County Commissioners of Tulsa County. Judgment for defendants, and plaintiff brings error.

Error from District Court, Adair County; John H. Pitchford, Judge. Action by George D. McKee against K. G. Comfort and others, composing the Adair County Election Board. Judgment for defendants, and plaintiff brings error.

<p>1. JUSTICES OP THE PEACE — Jurisdiction—Nature of Action— Constitutional and Statutory Provisions. Section 18 of artible 7 of tlie Constitution of the state of Oklahoma provides that courts of justices of the peace shall have jurisdiction, concurrent with the eounty court, in civil cases where the amount involved does not exceed $200, exclusive of interest and costs. Section 12 of article 7, after conferring jurisdiction on eounty courts, provides that said courts shall not have jurisdiction “in actions for the specific performance of contracts for the sale of real estate, or in any matter wherein the title or boundaries of land may be in dispute or called in question.” Held: (1) That the court of the justice of the peace has jurisdiction of an action for damages for delay in making a conveyance of land. (2) That the provision of section 6277, Comp. Laws 1909, that justices of the peace shall not have jurisdiction in actions on contract for real estate, is, except as to actions for the specific performance of contracts for the sale of real estate, and as to matters wherein the title or .boundaries of land is in dispute or called in question, repugnant to sections 12 and 18 of article 7 quoted above, and was not extended in force in the state of Oklahoma by section 2 of the Schedule of the Constitution.</p> <p>2. EVIDENCE — Parol Evidence Affecting Writings — Sale of Land. Where a written agreement for the conveyance of land executed on the 17th day of September, 1907, specified no time within which the conveyance should be made, the law would require it to be made within a reasonable time, and evidence of a parol contemporaneous agreement to convey on or about the 10th of' October, 1907, following was not admissible.</p> <p>(Syllabus by Bosser, 0.)</p>

<p> Error from Canadian County Court; H. L. Fogg, Judge. </p> <p>Action by S. M. Hart against T. J. Stringer. Judgment for plaintiff, and defendant brings error.</p>

<p> Appeal from Washington County Court; A. T. Dumenil, Judge. </p> <p>Action by Joseph P. Govreau against W. B. Shaffer. Judgment for plaintiff, and defendant appeals.</p>

<p>1. APPEAL AND ERROR — Review—Sufficiency of the Evidence. In an action in replevin for recovery of property alleged to have been obtained by defendants through fraud, where the issues have been fairly submitted to the jury, and the verdict is fairly supported by the evidence, it will not be disturbed on appeal.</p> <p>2. NEW TRIAL — Grounds—Newly Discovered Evidence. A motion for new trial on the ground of newly discovered evidence should not be sustained, unless it reasonably appears from the motion • that the newly discovered evidence might change the result.</p> <p>(Syllabus by Harrison, 0.)</p>

<p>SALES — Action for Price — Misrepresentations of Seller’s Agent. An answer, in an action for the price of trees, which alleged that defendant stated to plaintiff’s agent, engaged in selling trees, that he wanted the trees to plant a tract of land, and that he did not know how much land there was in the tract, or how many trees it .would take to plant it, that plaintiff’s agent stated he had had experience in planting trees and could make the estimate, and that said agent measured, or pretended to measure, the ground, and informed defendant that it would take 5,000 trees to plant it, that relying on this statement he signed an order for 5,000 trees, and that in fact the tract was much smaller than estimated by the agent, and a much smaller number of trees was required, stated a good defense to the action; and when the allegations of the answer were supported by evidence reasonably tending to sustain them a verdict for the defendant should not be disturbed.</p> <p>(Syllabus by Eosser, O.)</p>

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by W. C. Langford against W. E. Bourland and others. 'From an order dissolving an injunction restraining plaintiff from taking possession of ,the land pending the suit, W. F. Botirland and certain others bring error.

<p> Brror from Superior Court, Pottazvatomie County; Geo. C. Abernathy, Judge. </p> <p>Action by Charles Freauff against the City of Shawnee. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by the State, on the relation of Ered S. Caldwell, against R. J. Allison and others. Judgment for plaintiff, and R. J. Allison brings error.

<p> Error from District Court, Alfalfa County; J. W. Steen, Judge. </p> <p>Aet-ion by the Central National Bank of St. Louis, Mo., against A. PI. Stout.and J. W. Pickerell. Judgment for defendants, and plaintiff brings error.</p>

Error from Rogers County Court; Archibald Bonds, Judge. Action by D. W. Lipe against E. A. Neilson and Ella M. Neilson to recover taxes assessed against real estate sold by defendants' to plaintiff. Judgment for plaintiff, and defendants bring error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by the State, on the relation of Fred S. Caldwell, against Dud Moore & Co. and Dud Moore. Judgment for the State, and defendants bring error.

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by the State, on the relation of'Ered S. Caldwell, against Margaret Plagler and others. From an order granting a temporary injunction, W. B. Green and C. H. Overton bring error.</p>

Error from District Court, Ottawa County; T. L. Brown, Judge. Suit by Frank G. Audrain and others against J. F. Weilep, county treasurer of Ottawa county, and others, to enjoin the levy and collection of taxes on allotted lands of plaintiff. Decree enjoining the levy or collection of taxes on homesteads, and defendants bring error.

<p>1. PLEADING — Petition—Demurrer. Where a petition states facts sufficient to constitute a cause of action, and such statement is sufficiently definite and certain to put the defendant on notice of what he is charged with, and to enable him to make his defense, the petition is good on demurrer.</p> <p>2. APPEAL AND ERROR — Review of Instructions — Necessity of Exceptions. This court will not review an instruction given by the trial court, unless the same was excepted’to at the time of the trial.</p> <p>3. SAME — Review of Evidence — Insufficient Record. Where complaint is made that the verdict is not supported by the evidence, and where it does not appear from the record that the case-made contains all the evidence, this court will not consider any question depending upon the facts for its determination.</p> <p>(Syllabus by Harrison, C.)</p>

<p>TROVER AND CONVERSION — When Action Maintainable. The director and clerk of a school district issued a warrant of the face value of $500 payable to plaintiff, for which he gave his cheek for $400, knowing that the check would be cashed and the money used. The. warrant was void because not issued for a purpose authorized by law. Held, that plaintiffs cannot recover the amount for which the chock was given in an action for the conversion thereof.</p> <p>(Syllabus by Rosser, C.)</p>

<p> Error from Coal County Court; R. W. Wells, Ridge. </p> <p>Action by Tom Reynolds against Jet Love. Judgment for plaintiff, and defendant brings error.</p>

<p>LIMITATION OP ACTIONS — Operation pf Statute — Acknowledgment or New Promise — Evidence. Evidence examined, and held insufficient to show such an "acknowledgment of an existing liability” or new promise in writing to pay same as will remove the bar of the statute of limitations.</p> <p>(Syllabus by Brower, 0.)</p>

<p>PARTNERSHIP — Dissolution—Evidence. Where it is admitted that a partnership had existed at one time, and the evidence showed that after the date when it was alleged the partnership was dis- ' solved the person who, it was claimed, retired from the partnership remained in the shop, doing the same kind of work, signed the firm name to cheeks, signed orders for goods in the name of the firm, shared in the profits and losses of the business, and that an advertisement was published in a newspaper in the firm name, and where no evidence is offered as to the details of the dissolution, a verdict' finding that one member of the firm was the sole owner of the stock and fixtures of the business was without evidence to support it.</p> <p>(Syllabus by Rosser, C.)</p>

Error from Pontotoc County Court; Conway O. Barton, Judge. Action by J. A. Pryor against Walter Sharrock and others in a justice’s court. Verdict for defendants, and plaintiff appeals, and from a judgment for plaintiff, defendants bring error.

<p>ATTACHMENT — Liability on Bond — Punitive Damages — “Compensatory Damages.” Punitive damages are not recoverable against tbe sureties in an ordinary attachment bond in a suit brought on the bond. The damages recoverable on such bond are compensatory in their nature, such as loss or depreciation in value of the attached property, interest, costs, and expenses, including, under our statute, reasonable attorney’s fees, and which are the proximate results of the attachment, when the order therefor has been wrongfully obtained.</p> <p>(Syllabus by Brewer, C.)</p>

<p>REPLEVIN — Proceedings for Taking Property — Affidavit and Bond. Under section 5687, Oomp. Laws 1909, should the plaintiff seek immediate possession of the property in question, he must resort to replevin proceedings, make the statutory affidavit and bond, and procure an order of delivery. . But the right to maintain an action to recover possession of specific personal property does not depend upon the taking out of an order of' delivery, at or after the commencement of the action.. It is an. ancillary order to be had at the option of the plaintiff upon the making of an affidavit and the giving of a statutory undertaking. But whether obtained or not the plaintiff is still entitled to a trial of the main issue.</p> <p>(Syllabus by Harrison, C.)</p>

Error from Grady County Court; N. M. Williams, Judge. Action by the Anheuser-Busch Brewing Association against C. T. Doss and others, associated as Chickasha Aeria, No. 131, Fraternal Order of Eagles. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Briefs—Failure to File. Where a cause has been assigned for submission and time for filing briefs has elapsed, and thereafter plaintiff in error files briefs without serving defendant in error with copy of same, in the absence of a stipulation or order of court to allow briefs filed out of time, the errors assigned will not be passed upon, and the appeal will be dismissed.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Osage County; John J. Shea, Judge. Action by W. C. Tucker, administrator of the estate of David Eronkier, deceased, against the McLaughlin-Earrar Company for rent. Judgment for defendant, and plaintiff brings error.

<p>1. INSURANCE — Action on Policies — Pleading. The court did not err in permitting plaintiff to introduce evidence under the pleadings, over defendant’s objection.</p> <p>2. EVIDENCE — Demonstrative Evidence — Personal Injuries. Ordinarily, where the question of a physical injury, its extent or permanency, is in issue, it is not error to permit the plaintiff to exhibit the injured part of the body to the jury.</p> <p>3. INSURANCE — Action on Policies — Admissibility of Evidence. In an action on a policy of insurance against accidents, wheie total and continuous inability to perform work for a period of 52 weeks was alleged as resulting from a broken shoulder, plaintiff was permitted to testify regarding the continued pain and suffering caused by the wound and resulting operations made necessary by it; and, further, that at the end of the period of indemnity his arm had not recovered so as to be of use, etc. Held, not error, as this evidence was competent on the question of continuous disability to work.</p> <p>4. * SAME — Notice of Accident — Evidence. Where an accident policy provided that in case of accident the insured should, within 15 days thereafter, give notice of the same to the insurance company at its office issuing the policy, held, that evidence that insured, within four or five days after the accident, wrote a letter to the company, at its issuing office, advising it of his injury, and that the company, on the nineteenth day after the injury, replied thereto, inclosing blanks and requests for detailed information, without mentioning the date it had received insured’s notice, and making no claim that it was not received within fifteen days, was sufficient evidence to warrant the jury in finding that notice had been given as required by the policy.</p> <p>5. SAME — Action on Policies — Sufficiency of Evidence. Evidence examined, and held to show that plaintiff had furnished the insurance company sufficient “affirmative proofs of loss of time” within 30 days after the termination of the period of its liability, as -required by the policy.</p> <p>6. TRIAL — Instruction—-Applicability to Evidence. In an aetion on an accident insurance policy, brought to recover for “continuous inability to engage in any occupation or labor, ’ ’ an instruction was given wherein, after advising the jury that before plaintiff could recover it must be shown that the injury caused total and continuous disability to engage in any labor or occupation, the court qualified this language by adding ‘ •' that, even though during the time he claimed to be totally and continuously disabled he did perform some trivial services,” such fact should not, of itself, be so construed “as to prevent plaintiff from recovering for all of said time, if you find from the evidence that he was at the time of said trivial services unable to have performed them. The test is, not whether the plaintiff did perform any services of any character, but whether the plaintiff was able to perform services of any sort or character. ’’ Held, that the instruction was justified under the evidence.</p> <p>7. INSURANCE — Accident Insurance — “Total Disability.’’ “Total disability,’’ under the provisions of an accident insurance policy, does not mean absolute physical inability on the part of the insured to transact any kind of business pertaining to his occupation. It exists, although the insured may be able to perform a few occasional or trivial acts relating thereto, if he is not able to do any substantial portion of the work connected with his occupation.</p> <p>8. SAME — Action on Policies — Issues and Proof. Where the petition on an accident policy alleged that affirmative proofs of loss of time had been furnished, evidence that plaintiff wrote to the company, claiming indemnity and asking for blanks if additional proof was required, and that the company answered, denying all liability and refusing blanks on which to make a mere formal proof, was not within the issues.</p> <p>9. TRIAL- — Evidence—Objections. In an action on an accident policy, a general objection to the admission of testimony as to a claim-by the insured and response denying all liability were not sufficient to raise the point that such evidence was not within the issues.</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR — Intervention — Necessary Parties to Writ. Where, in an action to set aside a judgment canceling a eonvey1 anee of certain land and quieting title in the prevailing party, a third party intervenes and alleges that he, in good faith, lent money to the prevailing party and took a mortgage on the land as security for the loan, without notice of any defect in the judgment quieting the title, and the plaintiff in the action replies to his petition of intervention and alleges that the mortgage includes other lands, and asks that the mortgagee be required to subject the other lands to his mortgage before subjecting the lands in controversy thereto, the mortgagee is a necessary party to an appeal from a judgment refusing to set aside the former judgment.</p> <p>(Syllabus by Rosser, 0.)</p>

<p>1. INDIANS — Lands—Allotments—Vacation. If the Commission to the Five Civilized Tribes, the Commissioner of Indian Affairs, or the Secretary of the Interior have been induced to award an allotment certificate to the wrong party by reason of an erroneous view of the law, or by a gross or fraudulent mistake of the facts, the rightful claimant may, in a court of equity, cause such decision to be avoided and charge the legal title to the lands in the hands of the allottee with his equitable right to it upon the ground that, upon the facts found, conceded, or established without dispute at the hearing, before the special tribunal, its officers fell into error as to the law applicable to the case, which caused them to refuse to have issued the patent to him and give it to another or through fraud or gross mistake it fell into a misapprehension of the facts proved before it, which had a like effect.</p> <p>2. SAME. Kecord examined, and held, that no such erroneous view of law was had and no gross or fraudulent mistake of the facts occurred in this case as would authorize this court to interfere with the decision and judgment of the Secretary of the Interior, the Commissioner o'f Indian Affairs, and the Commission to the Five Civilized Tribes.</p> <p>(Syllabus by Bobertson, C.)</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Suit by Achan Pappan and another against the Union Central Life Insurance Company for cancellation of a mortgage. Decree for plaintiffs, and defendant brings error.

<p>1. MASTER AND SERVANT — Injuries to Servant — Relation of Parties — “Independent Contractor.” An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer except as to the result of the work (quoting Words & Phrases, vol. 4, p. 3542).</p> <p>2. SAME. In determining whether the relation between a proprietor and one doing work for him is that of master and servant, or proprietor and independent contractor, while the court may take into consideration the manner of payment, whether by the day, week, month, etc., with a reservation of the right to discharge, or whether there was to be payment by the piece or entire job, yet the mode of payment is not a decisive test by which to determine the question. The test lies in. whether or not the contract reserves to the proprietor the power of control over the employee. The mere fact that the work being performed by an employee at the time he was injured was done by the piece or job, as by payment of a stated price per ton for shoveling coal into an engine tender, does not deprive him of the character of an employee, where he was a mere servant carrying out his employer's will and instructions.</p> <p>3. SAME. The employer's intention to retain the right of exercising control over a person performing work for him, and hence creating the relation of master and servant between the parties, will be inferred when it appears the employment was general, and not based on a contract to do a certain piece of work on certain specified terms in a particular manner and for a stipulated sum.</p> <p>4. SAME — Questions of Law or Fact. Where the contract of employment involved is in writing, the question of the relation created by it between the parties is ordinarily one of law for the court; but if the contract is oral, and the evidence as to its terms is conflicting, or where a written contract has been modified by the practice under it, the question should be submitted to the jury under proper instructions. But, although the contract may be oral, if there is no dispute as to its terms, or if but one inference can be drawn from the evidence, then the question of whether the relation is. that of employer and independent contractor, or that of master and servant, is for the court.</p> <p>5. SAME- — Care Required of Master. A master is under an obligation to take care that the premises in which, and the appliances and instrumentalities with which, he requires his servant to work shall be reasonably safe for the purposes intended.</p> <p>(Syllabus by Brewer, C.)</p>

Brror from District Court, Garfield County; M. C. Garber, Judge. Action by Chester A. Decker against the Enid Electric & 'Gas Company. Judgment for plaintiff, and defendant brings ■error. This action was begun April 3, 1909, in the district court of 'Garfield county, by Chester A. Decker against the Enid Electric & Gas Company, for damages caused by the explosion of an oil tank on the night of December 28, 1908.

Error from District Court, Carter County; S. H. Russell, Judge. Action by Mrs. L. M. Rodenhouse against the Rochester German Insurance Company of Rochester, N. Y. Judgment for plaintiff, and defendant brings error.

Error from District Court, Comanche County; J. T. Johnson, Judge. Actions by W. H. Quinette against the Phoenix Insurance' Company of Brooklyn, N. Y., by the same plaintiff against the-Mercantile Fire & Marine Insurance Company of Boston, and by the same plaintiff against the 'Queen Insurance Company of America. From judgments for plaintiff, defendants bring error.

<p> Error from Oklahoma County Court; Sam Hooker, Judge. </p> <p>Action by the Green Duck Company against Patterson & Hoffman. Judgment ’for defendants, and plaintiff brings error..</p>

<p>1. MINES AND MINERALS — Mining Lease — Assignment. Where a person knowing of lands upon which an oil and gas mining lease can be obtained, and knowing the price at which ho can obtain it, offers to sell it to another at a fixed sum, which offer is accepted by the other, and he then procures the lease, the transaetion is not one of ageney, and the person offering the lease occupies the position of an assignor of the lease, though the lease is made direct from the landowner to the person to whom he has offered to sell it.</p> <p>2. LANDLORD AND TENANT — Sale of Lease — Covenant for Quiet Enjoyment. Where a party prices a lease to another at a. fixed sum, without any agreement as to what covenants the lease should contain, the law will imply a covenant by him that the lease will be one under which the lessee can enter upon and hold the property during the term contained in the lease.</p> <p>3. SAME — Recovery of Price. Where a par.ty contracts to sell another a lease at a fixed sum, and procures the lease direct from the supposed allottee to the person with whom he contracts, he cannot recover the price, where there was at the time of the delivery of the lease a contest threatened, as to the lands described in the lease, which was afterwards instituted and in which the contestants prevailed, and in which the allotment of the lessor was canceled.</p> <p>(Syllabus by Rosser, 0.)</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. An action by Newton Avey and another against Frank R. Ziska and others. Judgment for plaintiffs, and defendant Ziska brings error. On August 8, 1906, Newton Avey and Mary E. Overholser brought suit in the district court of Oklahoma county against Frank R. Ziska and the unknown heirs and devisees of Frank R. Ziska, deceased.

<p>1. RAILROADS — Construction—Dangerous Premises — Death of Animals. Two horses died from having mired down in a borrow pit excavated by the railroad company that built the road and from which the defendant company purchased it. The borrow pit was more than 50 but within 100 feet of the railroad track, within plaintiff's field, but outside of the railroad fence, which was built on the 50-foot line. It contained water from a few inches * to nearly three feet in depth. There was no proof that the defendant company knew it was boggy. Held, that the defendant was not liable for the death of the horses.</p> <p>2. NUISANCE — Dangerous Premises — Liability of Purchaser — Abatement. Before a purchaser can be held liable for a nuisance created by his grantor, he must be notified of its existence and requested to abate it, or he must1 use it or take some active step to continue it.</p> <p>3. RAILROADS — Transfer—Torts of Original Company. Where an original constructing railroad company sold its line to defendant, it could not be presumed, in the absence of express proof, that the constructing company was only the agent of defendant for building purposes so as to render defendant liable for its torts.</p> <p>(Syllabus by Eosser, O.)</p>

Error from District Court, Washington County; John J. Shea, Judge. Action by H. G. Johnston and others, doing business as the American Well & Prospecting Company, against John D. Conrath and others. Judgment for plaintiffs, and defendant, George T. Conrath, brings error.

<p> Error from District Court,-Oklahoma County; George W. Clark, Judge. </p> <p>Action by C. M. Baker against Haswell & Taylor. Judgment for defendants, and plaintiff brings error.</p>

<p>1. PLEADING — Judgment on Pleadings — Carriage of Live Stock— Actions for Injuries. Plaintiff sued for damages done to a shipment of race horses, alleging shipment to have been made under a definite verbal contract, charging gross negligence and praying for full amount of damages. Defendant answered by general denial and by pleading a written contract which limited its liability to the value therein named, and by the further allegation that the written contract was the only one made between the parties. Plaintiff’s-reply was in effect an unverified general denial of new matter. Held, the overruling of defendant’s motion for judgment on the pleadings because of the unverified reply was not error. The issues whether the shipment was made under a verbal agreement and whether defendant was guilty of gross negligence, were joined by defendant’s general denial, and plaintiff had the right to have such issues determined and was entitled to any evidence relevant, competent, and material to a determination of same, regardless of the written contract, and regardless of the fact that a determination of such issues had the effect of rendering the provisions of the written contract not binding.</p> <p>2. CARRIERS — Carriage of Live Stock — Notice of Injury. Where a shipment of live stock consists of race horses shipped . for the purpose of being entered in certain races, and the carrier has notice of the class to which the stock belongs and the purpose for which it is shipped, and the agent of the carrier at the destination of the shipment is notified that some of the stock had been injured, and such agent goes to -the stables where such injured stock is kept and sees same and has ample opportunities to ascertain the extent of the injuries, held, this is a substantial compliance with the provisions of the shipping contract requiring notice of injury to be given before the stock is removed or slaughtered or mingled with other stock.</p> <p>3. SAME — Contracts. Where a shipment of live stock is made under a verbal contract, and where every move made, every step taken toward a shipment, up to and including a complete consignment and surrender of control by the shipper, the starting in transit of the shipment, and the assumption of liability for negligence by the carrier, is all under and pursuant to such parol agreement, and after this a printed shipping contract is presented to the shipper to sign, he has the right to assume that it embodies the terms of the verbal agreement, and the carrier will not be permitted to escape liabilities accruing to the shipper under the verbal agreement by reason of certain provisions in the written contract at variance with the parol contract, unless the shipper’s attention .has been called to such provisions and fair opportunity given him to assent to same.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Lincoln County. John J. Carney, Assigned Judge. Action by C. E. Robinson against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.

<p> ■Error from District Court, Tillman County; J. T. Johnson, Judge. </p> <p>Action by R. E. Gosnell against J. H. Prince. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Noble County; W. M. Bowles, Judge. </p> <p>Action by John A. -Hansen, guardian of Harry Saunders, a minor, against R. S. Steele and the United States Fidelity & Guaranty Company. Judgment for plaintiff, and defendant United States Fidelity & Guaranty Company brings error.</p>

<p> Urror from District Court, Pottawatomie County; Roy Hoffman, Judge. </p> <p>Action by E. W. Moore against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Action by John A. Hansen, as guardian of Rosa Little Crow, a minor, against R. S. Steele and others. Judgment for plaintiff, and the defendants United States Fidelity & Guaranty Company, American Surety Company, Lee Van Winkle, and Major Moberly, separately, bring error.

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Warner Bruner and Judy Bruner against William Adams and others. Judgment for plaintiffs, and John P. Hall, intervener, brings error.</p>

Error from District Court; Garvin County; R. McMillan, Judge. Action in conversion by M. A. Chitty against the American Trust Company and others. Judgment for plaintiff, and defendants bring error.

<p>1. INDIANS — Indian Lands — Osage Allotment — Alienation—-Restriction. By the fourth paragraph of section 2 of Act Gong. June 28, 1906, c. 3572, 34 St. at L. 539, known as the Osage Allotment Act, all laiids allotted to the members of the Osage Tribe were made inalienable for a period of 25 years from date of selection.</p> <p>2. SAME — Certificates of Competency • — • Effect. Under the provisions of paragraph 7 of seetion 2 of said act (Act June 28, 1906, c. 3572, 34 St. at L. 540), adult members of the Osage Tribe, to whom certificates of competency were issued by the Secretary of the Interior, could sell and convey, manage, control, and dispose of their surplus allotted lands, but could not sell the oil, gas, coal, or other mineral covered by said lands.</p> <p>3. SAME — Liens. Said last above provision of the act applies only to voluntary conveyances by the allottee, such as were effected by the personal will of the owner, and not to the creation of liens or transmissions of title by operation of law, unless arising out of the further provision, making the surplus lands subject to taxation.</p> <p>4. SAME — Surplus Lands — Judgment Lien. A judgment was rendered in the United States Court in the Indian Territory against an Osage Indian on the 1st day of December, 1903. July 30, ' 1909, the Secretary of the Interior approved a patent to said Indian’s surplus allotment of Osage Indian lands, and on the 30th day of October following issued to said allottee a certificate of competency as authorized by Osage Allotment Act June 28, 1906, e. 3572, 34 St. at L. 539. On the 29th day of January, 1910, a transcript of said Indian Territory judgment was filed with the clerk of the district court of Osage county, in which county the judgment debtor’s surplus lands were situated. Held, the the issuance of the certificate of competency did not remove the restrictions on alienation so as to subject said lands to a judgment lien.</p> <p>5. SAME — “Manage”—“Control”—To “Dispose of.” Osage Allotment~’Aet June 28, 1906, c. 3572, see. 2, par. 7, 34 St. at L. 540, authorizes the Secretary of the Interior to issue certificates of competency to allottees who shall then have the right to manage, control, and dispose of his or her lands the same as any citizen of the United States. Held,, that the word “manage,” as so used, means to have under control, under direction, to conduct, to guide, to administer, to treat, to handle, while “control” means to exercise restraining or governing influence over, to check, to counteract, to restrain, to regulate, to govern, to overpower, and “to dispose of” means to exercise finally one’s power of control over, to pass over into the control of some one else, as by selling, to alienate, to part with, relinquish or get rid of, and such words did not contemplate either a sale of underlying mineral or of the surplus lands by a judgment lien.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, Dezvey County; G. A. Brown, Judge. </p> <p>Action for damages and statutory penalty by H. D. McGuire, suing in the name of the State of Oklahoma, against S. A. Skelton, D. M. Wilson, Lewis Eerguson, and the Township of Trail, Dewey County. From a judgment sustaining a demurrer to plaintiff’s petition and dismissing plaintiff’s cause of action, plaintiff brings error.</p>

<p> Error from Seminole County Court; T. S. Cobb, Judge. </p> <p>Action by Sam Norton against Bob Davis and another. Ero-m a justice’s judgment in favor of plaintiff, defendants appealed to the county court, where the appeal was dismissed, and, from the order of dismissal, defendants bring error.</p>

<p>1. BILLS AND NOTES — "Bona Fide Holder.” The owner of a negotiable promissory note, who obtains it before maturity for a valuable consideration, without knowledge of any defect of title, and in good faith, holds it by a title valid against all the world.</p> <p>2. SAME — Suspicion as to Title. Suspicion of defect of title, or the knowledge of circumstances which would excite sueh suspicion in the mind of a prudent man, or of circumstances sufficient to put him upon inquiry,, will not defeat his title; that result can be produced only by bad faith on his part.</p> <p>3. SAME — Bona Fide Purchaser — Default in Interest. A negotiable promissory note is not dishonored by reason of a failure to pay interest prior to maturity of the principal, in the absence of a stipulation in the note to that effect; but the fact that interest is due and unpaid is a material circumstance bearing on the question of whether the purchaser acquired the note in good faith and without notice of prior equities or infirmities in the title. (Syllabus by Sharp, 0.)</p>

Error from District Court, Muskogee County; Charles Bagg, Judge. Action by Belle Mills, by her next friend, Eliza Mills, against M. Goble & Co., a partnership composed of Charles Goble and Merritt Goble. Erom a judgment in favor of plaintiff for $3,000, defendant brings error.

<p> Error from District Court, Osage County; John J. Shea, Judge. </p> <p>Action by ,H. G. Ezell against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; A. N. Munden, Judge. Action by Walter E. Duncan and Lela Duncan, doing business under the firm name and style of the Duncan Millinery Company, against P. M. Crone. From a judgment in favor of plaintiffs for $500, defendant brings error.

Error from District Court, Logan County; A. H. Hurston, Judge. Action by Nellie Warrenburg against G. W. Sloan and another to recover damages resulting to plaintiff for the alleged wrongful death of her husband, Louis G. Warrenburg, deceased. Judgment for plaintiff, and defendants bring error.

Error from Pontotoc County Court; Conway O. Barton,, Judge. Two cases were commenced in the justice court by the Security State Bank against J. E. Fussell. One was on a note for $150, and the other was on a note for $20 and an alleged balance of a note for $.286.50.

Error from District Court, Wagoner County; John H. King, Judge. Action by the City of Muskogee against O. D. Revell and others. Judgment for defendants, and from an order granting plaintiff’s motion for a new trial, defendants bring error.

<p>1. LIMITATION OP ACTIONS — Defenses. A proper defense, set-off, or counterclaim is not barred by the statute of limitations until the claim of the plaintiff is so barred. Comp. Daws 1909, see. 5635.</p> <p>2. CHATTEL MORTGAGES — Possession After Condition Broken— Sale — Conversion. "When a mortgagee, after default in some condition of the mortgage, takes possession of the mortgaged chattels, or sells them to another party, authorizing him to take possession of them, and he does so, and when this is done without any proper foreclosure of the mortgage, and when the chattels are detained from the mortgagors, the mortgagee is guilty of a conversion.</p> <p>3. APPEAL AND ERROR — Right to Allege Error — Verdict. A plaintiff who recovers the full amount sued for cannot complain because he might have recovered more if he had sued upon a different theory.</p> <p>(Syllabus by Ames, 0.)</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action by the Bancroft-Whitney Company against W. S. Mayfield, constable, and J. U. Elliott, deputy constable. Judgment for defendants, and plaintiff brings error.

<p>1. INDIANS — Wills — Disposition of Lands. A full-blood Creek Indian, who died ih March, 1900, could not dispose, by will, of lands subsequently allotted to his heirs.</p> <p>2. MAEBIAG-E — Presumptions. When a man and woman have been living together as husband and wife for many years, and it appears that at the time of marriage the former wife was still living, in the absence of further evidence on the subject, it will be presumed that there had been a lawful separation or a divorce between the husband and the former wife.</p> <p>(Syllabus by Ames, 0.)</p>

Error from District Court, Latimer Coiinty; Malcolm E. Rosser, hidge. Action by J. F. Hill against the Chicago, Rock Island & Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Bryan County; Summers Hardy, Judge. Action by the Oklahoma Presbyterian College for Girls and others against the Joplin Sash & Door Works. From a judgment for plaintiffs, defendant Joplin Sash & Door Works brings error.

<p>1. MORTGAGES — Sale of Land — Mortgage Debt — Liability of Purchaser. The mere purchase of the equity of redemption in mortgaged land does not make such purchaser liable personally for the payment of the mortgage debt. ■</p> <p>2. SAME. No personal obligation rests upon the purchaser of mortgaged land to pay the mortgage debt, unless by agreement he assumes its payment, or, by retaining the amount out of the purchase price, or otherwise, he clearly makes the debt his own.</p> <p>3. SAME — Foreclosure—Deficiency Judgment. Where the purchaser of mortgaged land has not assumed the payment of the mortgage debt, nor otherwise clearly made the debt his own, a personal or deficiency judgment cannot, ordinarily, be rendered against him in a suit on the debt, or to foreclose the mortgage.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Washington County; John J. Shea, Judge. </p> <p>Judicial settlement of the estate of Mary Washington, deceased. From an order denying the petition of Norman French, administrator, to sell certain real estate to pay debts on objection of George Washington and others, minor heirs of decedent, etc., he brings error.</p>

Error from District Court, Muskogee County; Earrar L■ McCain, Judge. Action by John T. Jaynes against J. W. Gilliland for a commission for the sale of real estate. Judgment for plaintiff, and defendant brings error.

Error from District Court, Choctaw County; James R. Armstrong, Judge. Action by the Board of Education of the City of Hugo against the National Surety Company for breach of a contractor’s bond. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial.

<p>RAILROADS — Killing Animals — Trial—Direction of Verdict. In an action against a railroad company for the negligent killing of stock, where the plaintiff’s right of recovery depends upon defendant’s negligence, and where there is no evidence tending to prove negligence, and no circumstance from which negligence might be reasonably inferred, it is the duty of the court to direct a verdict in favor of defendant.</p> <p>(Syllabus by Harrison, 0.)</p>

<p> Error from District Court, Noble County; Wm. M. Bowles, Judge. </p> <p>Action by Frank Hudson against Mathew M. Ely and others. From an order setting aside judgment for plaintiff, he brings error.</p> <p>On January 26, 1909, plaintiff in error, in the county court of Pawnee county, obtained a judgment against Mathew M. Ely, the Arkansas Valley & Western Railway Company, the Arkansas Valley Townsite Company, and PI. C. Planna. A transcript of this judgment was filed with the district clerk of Noble county, March 19, 1909, and on the 13th day of November thereafter execution was issued by the district clerk of said county. On the 9th - day of December of said year, the judgment debtor, Mathew M. Ely, filed in the district court of Noble county a motion seeking to have said judgment vacated and set aside on the ground that the judgment rendered was void because no sufficient service of summons had been had upon him. Afterwards and on the 21st day of December of said year, said defendant filed a motion to recall the execution for the reasons set forth and assigned in the motion to vacate the judgment. Upon the hearing of said motion the court set aside and vacated the judgment, from which order an appeal has been 'regularly prosecuted to this court.</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by the Kent & Purdy Paint Company against S. E-Hanson and another for a money judgment on account.. Judgment for plaintiff, and defendants bring error.

<p>1. PRINCIPAL AND AGENT — Authority of Agent — Instructions. F., as B'.’s agent, procured a loan for her. He sent a cheek for the proceeds to G., making it payable to the order of G. and B. The testimony was in conflict as to whether or not G. forged B.’s name to the check. The check was paid by the drawee bank and G. absconded with the money. There was also conflict in the. testimony as to whether G. was the agent of B. or F. The court so instructed the jury as to make the case turn upon the question of forgery, and not agency. Held, that this was error? as the question of agency was the controlling question in the case.</p> <p>2. SAME. Where loss is inflicted upon one of two innocent parties by the fraud and forgery of a third party, who is alleged by each party to be the agent of the other, the material question in the case is which one of the parties was he agent for, as his principal must bear the loss.</p> <p>3. WITNESSES — -Competency—Husband and Wife. Where a husband accompanies his wife to hear a conversation between her and a third person, particularly when this conversation is not with the adverse party and does not concern the vital issue in the case, the husband is not acting as the agent of his wife concerning the transaction in such a sense as to make him competent as a witness in a ease ‘ to which she is a party, within the meaning of section '5842, Comp. Laws 1909, making the husband and wife incompetent as witnesses for or against each other, “except concerning transactions in which one acted as agent for the other.”</p> <p>(Syllabus by Ames, C.)</p>

<p> Error from District Court, Woodward County; R. H. Eoofbourrow, Judge. </p> <p>Action by W. S. Wood against C. W. Stickle and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Action on Bond — When Maintainable. Neither an administrator, nor the sureties on his bond, may be sue.d for a breach of his administrator's bond until there has been a settlement or final accounting in the (probate) county court, and a decree entered therein, showing a balance due, or some other breach of the conditions of the bond, and a failure on the part of the administrator to. comply with the decree entered on the settlement or accounting.</p> <p>2. SAME — Inventory—Impeachment. The inventory is prima facie evidence of the extent and value of the estate which has come to the administrator's hands, but he may, in proper cases, show that, through inadvertence, ignorance, or mistake, property has been put into it which did not in fact belong there.</p> <p>3. SAME. As a general rule, an inventory may not be impeached by a collateral attack. The proper method of correcting it is by motion, after notice, in the court where the administration case is pending.</p> <p>(Syllabus, by Robertson, 0.)</p>

<p> Error from District Court, Jackson County; J. T. Johnson, Judge. </p> <p>Action by Mrs. J. E. Perry against the Western Union Telegraph Company, for damages. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Reversal — Failure to File Briefs. Where counsel for plaintiff in error, in conformity with the rules of this court, has prepared, served, and filed a brief, in which, with . other contentions, it is insisted that the judgment appealed from is contrary to law, and is not reasonably supported by the evidence, and there is no brief filed, and no reason given for its absence, on the part of the defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>(Syllabus by Robertsdn, 0.)</p>

<p> Error from District Court, Le Elore County; Malcolm E. Rosser, Judge. </p> <p>Action by A. E. Cowling against J. P. Plubbard. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Assignments of Error — Motion for New Trial —Denial. Where appellant fails to assign in his petition in error as error the overruling of a motion for a new trial, no question that seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such cannot be reviewed. Meyer v. James, 29 Okla. 7, 115 Pae. 1016.</p> <p>(Syllabus by Robertson, O.)</p>

Error from Superior Court, Oklahoma County; A. N. Mund-en, Judge.

<p> Error from District Court, Ottawa County; T. L. Brozm, Judge. </p> <p>Action by Paul Raddis against P. J. Lawless and John S. ■ Hale to recover money obtained, by deceit and fraud; Judgment for the plaintiff against Lawless, who brings error.</p> <p>Paul Raddis, defendant in error, alleges that on April 7, 1910, the plaintiff in error, P. J. Lawless, together with one John S. Hale, represented to said defendant in error that said Lawless had a tract of land for sale; that the same was free and clear of incumbrances; that he offered to loan defendant in error the sum of $1,000 on his promissory note, to be secured by a mortgage on the land, in order that defendant in error might be enabled to buy the same; that Lawless represented to him that the restrictions on the land (which was originally an Indian allotment) had been removed, and that he, Lawless, held the writings showing the removal of such restrictions; that all of said representations were false and untrue; that defendant in error, relying upon the statements of Lawless as being true, agreed to purchase the land, but, when the time came for transferring the same, he discovered that the deed thereto was to be executed by said John S. Hale, and not by Lawless; that at the time of executing the deed both the defendant Lawless, and his codefendant, Hale, told him that the title to the land was clear, and that they were willing to execute a warranty deed to the same, and that relying upon these representations so made by the defendant Lawless, and his codefendant, Hale, he paid defendant Piale the sum of $500 and executed his note and mortgage to Lawless for $1,000 to 'complete the payment on the land; that said note is negotiable, and that Hale is insolvent, and the deed so executed by Hale to the defendant did not convey a good title because of the fact that said land was an allotment of a full-blood Cherokee Indian, and-restricted by the laws of the United States, and which restrictions had not been removed and the same was therefore inalienable; that all of the representations and statements made by the said Lawless and his codefendant, Piale, to the defendant in error, concerning the title to said land, were false and untrue, and were known to be false and untrue at the time they were made, and were made with the specific intent to cheat and defraud the said defendant in error, who, relying thereon, was induced thereby to pay the money, and execute the note and mortgage, as aforesaid. Pie prayed that the note and mortgage be canceled, and that he be given judgment against Lawless in the sum of $500 for the money actually paid, and a further sum of $1,000 in casé the note and mortgage were not returned to him by Lawless, or surrendered to the court. To the allegations of his petition the defendant Lawless entered a general denial, and filed a counterclaim, alleging that prior to April, 1910, he had been requested by Hale to find a purchaser for the land described, that he knew nothing about the title to the land, and that Piale was to pay him $25 commission for selling the same, and at the solicitation of defendant in error he was induced to loan him the sum of $1,000 with which to purchase said land from Hale, and further alleging that the representations made by the defendant in error in his petition were false, and that he would not have loaned the $1,000 except for such false representations so made by the defendant in error, and prayed judgment against the defendant in error for $1,000, with interest at 8 per cent, per’ annum and for $500 as damages and $25 as commission, or a total of $1,525. Hale filed a separate answer, but made no further appearance in the case, and no judgment was rendered against him. Raddis filed a reply to the allegations of the answer and the counterclaim, and upon the issues thus joined trial was had to a jury, and a verdict was returned in favor of defendant in error and against Lawless in the sum of $1,500, with' interest at 6 per cent, from April 18, 1910, upon which verdict judgment was entered by the court. Raddis, at the time the court entered judgment, agreed to enter a remittitur in the sum of $1,000, providing Lawless would surrender the note that had been given him by Raddis, which Lawless refused to do. Raddis still offers to enter a remittitur in the Supreme Court in the sum of $1,000 if said note is surrendered to him by Lawless.</p>

Error from District Court, Washington County; ■ T. L. Brown, hidge. Action by J. T. Shipman, administrator, against Georgia A. Brown, nee Stokes, and the United States Fidelity & Guaranty Company. Judgment for defendants, and plaintiff brings error. In the year 1905, Georgia A. Brown, nee Stokes, was appointed administratrix of the estate of her deceased husband, James H. Stokes, by the United States Court for the Northern District of the Indian Territory.

Error from District Court, Ottazva County; T. L. Brown, Judge. Action by Wat-tah-noh-zhe and Francis Q. Goodeagle against James K. Moore to cancel a contract for the assignment of royalty, and to cancel a mining lease, etc. Judgment for defendant, and plaintiffs bring error.

<p> Error from Comanche County Court; J. H. Wolverton, Judge. </p> <p>Action by Joanna Graham against A. Sparlan. Judgment for defendant before a justice, and from an order of the county court dismissing her appeal, plaintiff brings error.</p>

<p> Error from Atoka County Court; J. H. Linebaugh, Judge. </p> <p>Action by Rhoda Coon and A. D. Coon against E. E. Adams and T. F. Horne. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. WITNESSES — Competency—Wife of Party. Defendant offered his wife as a witness in Ms own behalf, on the theory that the transaction about which she was to testify occurred prior to their marriage, and that the statute prohibiting a wife from testifying for or against her husband did not extend to transactions or communications prior to the marriage. She was not jointly interested in the action; nor was she the agent of her husband. Held, that she was incompetent as a witness.</p> <p>2. SAME. The competency of the wife as a witness depends upon the relationship at the time of the trial, when she is offered as a witness, and not as to whether she was the wife at the time the cause of action accrued, or the occurrence transpired, about which she is expected to testify.</p> <p>3. APPEAL AND ERROR — Conflicting Evidence — Review. Where the evidence on an issue of fact is conflicting, this court will not examine the same to determine where the weight lies but if there is any evidence reasonably tending to support the verdict the same will- not be disturbed on appeal.</p> <p>(Syllabus by Robertson, 0.)</p>

Error from Sequoyah County Court; W. N. Littlejohn, Judge. Action by George Schaffer against E. W. Troutwein. From an order of the county court dismissing an appeal from a justice of the peace, Schaffer brings error.

<p> Error from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action for damages by Hugh C. Radford against the Chicago, Rock Island & Pacific Railway Company. Erom a judgment in plaintiff’s favor, defendant brings error.</p>

<p>1. INFANTS — Actions Against Minors — Defenses. It is the duty of courts to guard with jealous care the rights of minors in actions brought against them. No presumption against an infant can be permitted, but, on the contrary, every presumption is indulged in' his favor, and a guardian ad litem must see to it that every question available in the defense of his ward is urged and acted upon by the court; and in case of the failure of the guardian ad litem to properly discharge his duty in that or any other respect it becomes the imperative duty of the court to protect the infant's rights.</p> <p>2. SAME — Service of Summons — Substituted' Service. Where the defendant is a minor under the age of fourteen years, service of summons must be upon him and upon his guardian or father, or, if neither of these can be found, then upon his mother or the person having the care and control of the infant, or with whom he lives; if neither of these can be found, or if the minor be more than fourteen years of age, service • on him alone will be sufficient.</p> <p>3. SAME' — Service of Process — Waiver. An infant cannot waive the . issuance and service of summons, nor can any person, not even his guardian, do so for him.</p> <p>4. SAME — Appointment of Guardian — Time—Service of Summons. A court cannot appoint a guardian ad litem for an infant until after service of summons has been made as required by statute.</p> <p>5. SAME — Return. Under Comp. Laws 1909, secs. 5598, 5611, relating to service of process, an officer's return of service on infant defendants failing to show whether they were over or under fourteen years of age, and reciting merely that summons was left at their usual place of abode, by leaving copies in the hand of C. D., who was a member of their family, did not show service.</p> <p>(Syllabus by Robertson, C.)</p>

Error from District Court, Jefferson County; Prank M. Bailey, Judge. Action by C. S- Gibson against W. C. Bolling, and another, as guardian of Theodore and Octavia Bolling, minors, to recover money alleged to be due for certain improvements on real estate belonging to the minors. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; John J. Carneyj Judge. Action by L’Amie Lake (nee Winslow) against Charles Winslow and another. From an order refusing leave to file an amended petition, and from a judgment dismissing the action ’as to defendant Grace A. Winslow, plaintiff brings error.

<p>1. RAILROADS — Killing Stock — Evidence. In tlie absence of proof that the place where the animals were killed by a railroad train was exempted from the provisions of the law prohibiting animals from running at large, it will be presumed that'they were so prohibited.</p> <p>2. SAME — Instructions. In an action against a railroad company to recover for live stock killed by its train at a place where the herd law is in force, it is error to instruct that it is the duty of the employees in charge of the train to keep a lookout for' the purpose of discovering animals on the track. In such cases it is the duty of such employees to exercise ordinary care to ’ avoid injuring them after they are discovered.</p> <p>(Syllabus by Eosser, C.)</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Lafayette Harrell, by his next friend, Alice L. Nicum, against the Peters Cartridge Company. From an order setting aside a judgment for. plaintiff, he brings error. This is an action for damages alleged to have been sus tained through the negligence of defendant at a shooting exhibition at which defendant was demonstrating the merits of its cartridges.

Error from District Court, Rogers County; T. L. Brown, Judge. Action by J. G. Rucker and E. M. Rucker, copartners, doing business as Rucker Bros., and E. M. Brown, against BrownBeane Company and others. Judgment for plaintiffs, and deT fendants bring error.

Error from District Court„ Rogers County; T. L. Brown, Judge. Action by J. G. Rucker and others against the Brown-Beane Company and another. Erom an order refusing to vacate a temporary injunction, defendants bring error.

<p>1. DEEDS — Conditions Subsequent — Performance. Evidence examined, and held sufficient to support a decree canceling a conditional deed of conveyance for failure upon the part of the grantee . to keep and perform the conditions named in the deed.</p> <p>2. EVIDENCE — Parol Evidence — Ambiguous Written Contract. If a written contract is ambiguous or obscure in its terms, so that the contractual intention of the parties cannot be understood from its inspection, extrinsic evidence of the. subject-matter of the contract, of the relation of the parties to each other, and of the facts and circumstances surrounding them at the time of its execution, may be received to aid the court in the proper interpretation of the instrument.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Proceeding by Colbert Gragg and another for the probate of the will of H. E. Baker, deceased, to which Arthur Nesbit filed objections. Erom a judgment in favor of proponents, objector brings error.

<p> Error from District Court,; Pottawatomie County; W. N. Maben, Judge. </p> <p>Action by J. F. Ashlock against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EJECTMENT — Title to Maintain. At common law, in an action of ejectment, the plaintiff seeking to recover lands occupied by another must recover upon the strength of his own title, rather than upon the weakness of the title of his adversary.</p> <p>2. SAME — Equitable Title. Under section 6122, Oomp. Laws 1909, an equitable title will 'support an action in ejectment.</p> <p>3. SAME — Evidence. Evidence examined, and it is held that it fails to show title, either legal or equitable, in plaintiff, and that the finding of the court on the evidence in favor of defendant was correct.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Grady County; Prank M. Bailey, Judge. </p> <p>Action by R. L. Brown against Georgiana Benbow and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Tillman County; J. T. Johnson, Judge. </p> <p>Action by J. A. Traver against the Frederick Cotton Oil & Manufacturing Company. Judgment for plaintiff, and defendant brings error.</p> <p>This action was begun in the district court of Tillman county, December, 1909-, by J. A. Traver against the Frederick Cotton Oil & Manufacturing Company upon a petition where it was alleged in substance that on October 2, 1909, the plaintiff was engaged as a common laborer in defendant’s employ; that as such he was under the direction and control of one P. L. Burkes, a vice principal of defendant; that a part of his duties, as designated by said vice principal, was to look after the pulleys and belts used in running the machinery and to adjust the belts and keep them in place on such pulleys; that such belts and pulleys were defective, in that the belts were loose and frequently slipped off and became detached from the pulleys, thus necessitating frequent adjustments, in order to keep the machinery running; that plaintiff was directed by the vice principal to keep such belts adjusted and in running order; that on the date of the injury the belts slipped off and became detached from the pulleys with such frequency the vice principal directed defendant to apply a certain preparation called “belt dressing,’’ for the purpose of preventing their slipping off; that such belt dressing was an adhesive, sticky substance, the nature of which was known to the vice principal, but not known to plaintiff; that the pulleys and belts in question were up close to the roof of the mill building, some 25 feet above the ground; that, in order to adjust same it was necessary to climb a ladder and from there step onto a six by six on which he was compelled to stand while adjusting the belts; that the belts had to be adjusted from the opposite side of the pulley from where plaintiff stood; that it was necessary to balance himself on this six by six on which he was compelled to stand and reach over the pulley to adjust the belt; that in the adjustment of such belts it was necessary to hold same in position with his hands for some moments after the machinery started in order to prevent the belt from again dropping off, owing to its being so loose that the pulley would turn some moments before taking hold of the belt, and starting the machinery; that he had been in such employment about five days only, and was wholly inexperienced in this character of work; that after applying the belt dressing as directed by the vice principal, not knowing but what it would yet be necessary to hold the belt in place with his hand until- the pulleys began-taking hold of same, he adjusted the belt with the dressing on it, intending to hold same as he had theretofore done, and that the instant the pulley came in contact with the dressing, the machinery started, catching his hand, and drawing him under the machinery, causing the injury sued for. He alleged that such injuries were the result of defendant’s negligence in failing to provide a safe place on which to stand while adjusting the belts and in directing plaintiff to apply the belt dressing under such conditions, and further alleged that the dangers incident to the use of the belt dressing under such conditions were wholly unknown to him, he being inexperienced, but were, well known to the vice principal who had directed him to use same.</p> <p>Defendant answered by general denial and by a plea of contributory negligence. Plaintiff replied, denying the new matter in the answer, and, upon the issues thus joined, the cause was tried at the October term, 1910, resulting in a verdict and judgment in favor of plaintiff for the sum of $700. From this judgment the Cotton Oil Company appealed.</p>

Error from Tillman County .Court; T. E. Campbell, Judge. , Action by Samuel A. Dunham against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.

<p>1. FALSE IMPRISONMENT — Instruction. An instruction in an action for false imprisonment that, if the plaintiff was engaged in the retail liquor business at the time of Ms arrest, he had no such character as could be injured by arrest and imprisonment made by the defendant, as sheriff, if in such arrest and imprisonment the defendant was in good faith endeavoring to enforce the prohibitory law of the state, is error.</p> <p>2. SAME — Damages. If the arrest was unlawful, the jury would have the right to consider plaintiff’s occupation in estimating the damages.</p> <p>3. ARREST — Misdemeanor—Necessity of Warrant. An officer can arrest for a misdemeanor only when he has a warrant, or when the misdemeanor is committed in his presence.</p> <p>á. CRIMINAL LAW — Warrant—Validity. A warrant directing an officer to arrest any person he may find engaged in violating the law is void.</p> <p>5. ARREST — Warrant—Possession of Intoxicating Liquor. An officer may arrest without warrant any person he finds in the possession of intoxicating liquor, if the possession is for the purpose of violating any of the provisions of the prohibitory liquor law of the state.</p> <p>6. FALSE IMPRISONMENT — Punitive Damages. An officer making an illegal arrest is not liable for punitive damages, where he made the arrest in good faith, and without malice.</p> <p>7. SAME — Measure of Damages — Evidence. In an action for unlawful arrest, where the defense is that the defendant had possession of intoxicating liquor at the time of his arrest for the purpose of violating the prohibition law of the state, and the question of the good faith of the officer is“ also involved on the measure of damages, evidence of the circumstances leading up to the arrest is competent.</p> <p>(Syllabus by Rosser, 0..)</p>

<p> Error from District Court, Love County; S. H. Russell, Judge. </p> <p>Action by Georgia A. Cannedy against the Shawnee Mutual Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Logan County; J. M. Sandlin, Judge. Action by the United Brothers of Friendship of the Jurisdiction of Oklahoma against the National Grand Lodge of United Brothers of Friendship and Sisters of the Mysterious Ten. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; R. H. Loofbourrozv,, Assigned Judge. Action by the State, on the relation of Bred S. Caldwell, counsel to the Governor, against D. C. Stout, to recover a penalty for using certain premises in Oklahoma City for the purpose of unlawfully disposing of intoxicating liquors. Judgment for plaintiff for $500, and defendant brings error.

<p> Error from Carter County Court; W. D. Potter, Judge. </p> <p>Action by the Hargadine-McKittrick Dry Goods Company and others against C. V. Breedlove. Judgment for defendant, and plaintiffs bring error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by W. P. Pennington against the Merchants’ & Planters’ Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. CONTINUANCE — Grounds. Oh objection being made to the introduction of depositions because they had not been on file one clear day before the trial, it is not error for the court, upon its own motion, to continue the cause until the following day.</p> <p>2. APPEAL AND ERROR — Harmless Error — Remarks of Court. On such ruling being made, the court remarked, “You are not going to get that advantage; I can tell you that.” While this remark was improper, the cause will not be reversed on that account, unless we can see that it resulted in material prejudice to the plaintiffs.</p> <p>(Syllabus by Ames, 0.)</p>

<p>EVIDENCE — Opinion Evidence. Opinion evidence of a witness properly qualified is competent to prove the identity of a hog. (Syllabus by Ames, C.)</p>

Error from Marshall County Court; I. W. Ealkner, Judge. Action by Manley Lanham, a minor, by his guardian, Perry G. Lanham, against the Deming Investment Company for rent on an oil lease. Judgment for plaintiff, and defendant brings error.

Error from District Court, Murray County; ■ R. McMillan, J%idge. Action by J. E. Bailey against J. C. Lindsey, County Treasurer, to enjoin collection of taxes. Judgment for defendant, and plaintiff brings error.

<p> Error from District 'Court, Murray County; R. McMillan, Judge. </p> <p>Action by V. C. Wall against J. C. Lindsey, County Treasurer, to enjoin collection of taxes. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Muskogee County; John H. King, Judge. Action by R. C. Summers against A. J. Lee and Ralph Dresback. Abe Morrison intervened. Judgment for plaintiff, and defendants bring error. On death of plaintiff pending appeal E. IT. Summers and others were substituted for defendants in error.

<p>1. APPEAL AND ERROR, — Review—Questions of Fact. It is a well-settled rule of this court that where the evidence on a material fact, or controlling issue, is conflicting, this court will not review the same to ascertain where the weight lies; but, if there is evidence reasonably tending to support the finding, the same will not be disturbed by this court on appeal.</p> <p>2. EVIDENCE — Parol Evidence — Invalidity of Writing. It is competent to show by parol evidence that a contract was procured by fraud and misrepresentation, where such fraud and misrepresentation is pleaded and relied upon as a defense.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from District Court, Pittsburg County; Preslie B. Cole, Judge. </p> <p>Action by Mary O’Neil against the Pacific Mutual Life Insurance Company of California. Judgment for plaintiff, and defendant brings error.</p>

Error from Pottawatomie County Court; J. H. Woods, Judge. Action by the Oklahoma State Bank against Oliver Galbraith and another, and R. M. Galbraith intervenes. Judgment for plaintiff against defendants and against the interpleader sustaining an attachment of property claimed by him, and defendants and interpleader bring error.