Volume 4 — Indian Territory Reports

States Court for the Central District. William H. H. Clayton, Judge. Action of forcible detainer by Myrtle McNeeley and others against J. W. Casteel and others. Judgment in favor of plaintiffs. Defendants appeal.

Hosea Townsend, Judge. Action by the Gainesville National Bank against H. E. Sherwood and others. Judgment for plaintiff. Defendants appeal. This action was brought upon two certain promissory notes 'by the appellee (plaintiff below), which said notes were executed by appellants, H. E. Shekwood and Elswick Sherwood, defendants below, and delivered by them to Stevens & Hemming, and afterwards indorsed and transferred by them to the appellee.

<p>1. Telegraphs and Telephones — Franchises in Indian Territory — Interstate Commerce.</p> <p>The Act of the Creek Council granting an exclusive franchise within that Nation to a company for the construction of a telephone system, is in conflict with the interstate commerce clause of the U. S'. Constitution (Art. 1, Sec. 8) in so far as it relates to foreign or interstate business; but is constitutional and valid as to the franchise to operate such system locally within the limits of said nation.</p> <p>2. Municipal Corporations — Telephone Franchises — Interior Department.</p> <p>Prior to the passage of Act of Cong. March 3,1901 (31 Stat. 1083), municipal corporations could grant no valid franchise for construction and operation of a telephone system within g their corporate limits; nor could permission of the Interior Department accord any such rights.</p> <p>3.- Act of Cong. March 3, 1901 Construed — Constitutionality—Impairment of ' ■ Contracts.</p> <p>The act of Cong. Mar. 3, 1901, devested from Creek Nation and conferred upon the Secretary of Interior full control over all telegraph and telephone lines in the Indian Territory, whether local or interstate, and such act is constitutional, at least so far as it applies to all territory of the Creek Nation not actually occupied by lines of telephone, and did not impair any vested rights of a corporation having a franchise from the Creek Council which had not erected telephone lines in the city wherein the controversy over conflicting rights arose.</p> <p>4. Creek Nation — Injunction—Parties.</p> <p>Until the title to lands in cities and towns in the Creek Nation is devested from the 'Nation, any telephone company erecting lines within that Nation without complying with provisions of Act of Cong. March 3, 1901, is a trespasser upon the Nation’s lands, and the Nation is the proper party to seek and obtain an injunction in an equitable action.</p> <p>Injunction — Legislation Pending Appeal.</p> <p>The Court of Appeals will not reverse a decree refusing an injunction, however, erroneous, when, pending appeal, the right upon which plaintiff’s claim is founded has been taken away from him by legislative enactment.</p>

<p>1. Appeal — Assignment of Errors — Affirmance for Failure Of.</p> <p>On appeal the failure of appellant to specifically assign the errors complained of subjects the case to affirmance under Rule 10, subdiv. 2; but where specifications are supplied before the hearing and no motion for affirmance is made, the case will be fully heard.</p> <p>2. Cherokee Laws — Not Enforceable in U. S. Courts — Descent and Distribution</p> <p>The Act of Cong, June 28, 1898, (Curtis Bill)"prohibited the enforcement of the laws of the Cherokee Nation in the U. S. Courts in Indian Territory. After that date, the law of descents and distributions in force in the Indian Territory is that provided by Chapter 49, Mansfield’s Digest.</p> <p>3. Dower — Descents and Distributions.</p> <p>Where a husband died intestate leaving surviving him, his widow and his mother, his estate was inherited by his mother subject to the widow’s dower interest of one-third the personalty and realty, under Chap. 49, Mansf. Dig. and Secs. 2571 and 2591 Mansf. Dig. (Secs. 1859 and 1879, Ind. Ter. Stat.)</p>

W. M. Springer, Judge, Suit to foreclose a mortgage by F. M. Crowell and another against J. W. Young and others. Decree sustains a demurrer to complaint. Plaintiff appeal.

John R. Ti-iomas, Judge. Action by R. J. Blaylock against the incorporated town of Muskogee. Judgment in favor of defendant on sustaining a demurrer to plaintiff's complaint. Plaintiff appeals.

<p>Appeal from the United States Court for the Central District.</p> <p>W. H. H. Clayton, Judge.</p> <p>Action by W. C. Mitchell against E. M. Boyt. • Judgment in favor of the «plaintiff. Defendant appeals.</p> <p>On October 10, 1899, plaintiff below, W. C. Mitchell, brought suit against the defendant below, E. M. Boyt alleging that defendant was indebted to him in the sum of $150 for rent of plaintiff's farm during the year 1899, said farm being situated in the Central district; that said sum is the value of one-third of the corn and one-fourth of the cotton raised by defendant on said farm during the year 1899, which portion of said crop was by contract agreed to be paid to plaintiff as rent, and that defendant has produced on said farm during said year a crop of corn and cotton, a part of which is now on the. farm, and that plaintiff has a lien on said crop for his rent; that defendant has disposed of a portion of the crop so raised by him without the consent of his landlord, and plaintiff prays for a writ of attachment. Writ was issued, and the crops ’mentioned in the complaint taken possession of by the marshal, but were returned to defendant upon the filing of a cross bond by him. Defendant answered, denying each and every allegation of the complaint, and alleged that in December. 1899 (1898?) he rented said premises from one L. Moore, who had formerly rented same from J. J. Hallmark, for the year 189.9, and that said Moore afterwards sold an interest in the rental of said place to one Joe Parks. Defendant sets up fraud on the part of plaintiff in inducing him to make a rental contract with plaintiff, and that he paid the rent to his original landlord, Joe Parks. On June 12, 1900, the case was tried before a jury, who returned a verdict for the plaintiff for $46 rent, and in favor of defendant as to the attachment. Defendant filed a motion for new trial, same was overruled, and defendant appealed to this court.</p>

<p>1. Appeal — From U. S. Commissioners — Jurisdictional Amount.</p> <p>Act of Cong. March 1, 1895, is unconstitutional in so far as it prohibits appeals from U. S. Commissioners in Indian Territory in cases other than those wherein a judgment has been rendered for an amount exceeding $20.00, as it is in violation of Art. 7, Amend. U. S. Const., reversing Hardware Co. vs Brittain, 2 Ind. Ter. Rep. 242; Morrow vs Burney, 2 Ind. Ter. Rep., 440 and Butler vs Penn, 3 Ind. Ter. Rep. 505.</p> <p>2. Constitutional Law — Jury Trial.</p> <p>A trial before a jury, even of 12 men, in a Commissioner’s Court, is not a trial by jury in the sense of the Seventh Amendment to the Constitution of the U. S.</p>

John R. Thomas, Judge. Bill by Harry George against A. W. Robb, as executor of the estate of Sugar George, deceased, and others. Judgment in favor of defendants. Complainant appeals. This is a suit in equity, filed on July 20, 1900, in the United States Court at Muskogee, by Harry George, a citizen of the Creek Nation, against the beneficiaries under, and A. W. Bobb, as executor, of the estate of Sugar George, the father of appellant, also a citizen of the Creek Nation.

Hosea Townsend, Judge. “ Action by Mrs. H. L. Jennings against J. S. Kemp and others. Judgment in favor of plaintiff. Defendants appeal. Plaintiff below (appellee here) brought an action of unlawful detainer against the defendants below (appellants here), to recover the possession of a house and lot in the town of Wynnewood, Ind.

<p>1. Contracts — Parol Evidence — Privies.</p> <p>Parol testimony will not be admitted to vary the terms of a written contract in a suit between parties to the contract or their privies, but the rule does not apply to third parties.</p> <p>2. Evidence — Contradictory of Contract — Harmless Error.</p> <p>In an action upon one contract, certain evidence was sought to be adduced contradicting the terms of another written contract between one of the parties and third persons, where it was sought to make necessary an interpretation of plaintiff’s own contract, different from its written terms. Held, that although the testimony excluded should have been admitted, no reversible error was committed for plaintiff was conclusively bound by its own contract and the terms of the other were so clear and unambiguous that the attempted contradiction could have had no weight with the jury.</p> <p>3. Instructions — Modification Of.</p> <p>In an action upon a contract for furnishing piling, wherein recovery was sought on account of piling furnished by a third party, an instruction that if the jury believed the defendant had a contract with this third party for the furnishing of such piling, yet if the evidence showed that such piling was plaintiff’s and had been gotten out by this third party for plaintiff, then defendant is bound to pay plaintiff for same, was modified by adding “and this was known by defendant and acquiesced in by him.” Held, that error would have been committed had this modification not been added.</p> <p>4. Agency — Instructions—Based upon Evidence.</p> <p>In an action by plaintiff to recover for piling furnished, claiming under a contract therefor, and also claiming under a contract between defendant a third party, an instruction was given that if the jury believed'that such third party notified defendant that he was delivering- the piling for plaintiff, but the defendant refused to accept the piling as plaintiff’s but accepted it as the third party’s and so notified the third party, and if they believed that after this such third party acted as the agent of plaintiff and continued to furnish the piling for plaintiff, the plaintiff could not recover. Introduced in evidence in the case were letters written by plaintiff to defendant claiming to have furnished piling through this third party, and a desire to know if amounts were correct in order to settle with this third party. Held, that there was sufficient evidence on the question of agency to warrant t heinstruction.</p> <p>5. Verdict — Amount—Admissions.</p> <p>Defendant, in his answer, admitted a certain amount to be due plaintiff. The jury was properly instructed that if they found the issues for the defendant they should return a verdict for the plaintiff for the amount named in defendant’s answer.</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Action by Alzira Murray against John Fallon. Judgment for plaintiff. Defendant appeals.</p> <p>This was an action brought by Alzira Murray, as plaintiff, a member of the Chickasaw tribe of Indians, against John Fallon, a citizen of the United States, as defendant, for the recovery of certain lands occupied by said Fallon as the tenant of said Murray said complaint alleging that demand was made for the possession of said premises on January 7, 1898, after the term of the rental had expired, and praying for possession of said premises, and all costs, and general relief. The plaintiff, with this complaint, filed her affidavit for possession of said premises under section 3351, Mansf. Dig. Ark. (section 2285, Ind. T. Ann. St. 1899). The defendant, after the overruling of certain motions and demurrers, filed his answer in said cause, setting up two contracts of rental for said premises, and alleging that he was not holding the premises under the contract mentioned in plaintiff’s complaint, but under another and different contract. A demurrer was interposed to this answer, and overruled by the court, and the cause was tried to a jury, which jury disagreed, and were discharged; and thereafter it was tried a second time to another jury, and under certain instructions of the court said second jury found a verdict in favor of the plaintiff and against the defendant for recovery of the possession of said lands sued for, and for the sum of $525 for damages, and for costs. The defendant filed a motion for a new trial, which motion was overruled by the .court, and judgment entered upon the verdict of the jury in favor of the plaintiff for the recovery of the lands and for damages in the sum of $525 and costs. An appeal was taken, and the case is now before this court for review.</p>

Hosea Townsend, Judge. Action by I. E. Harmon against Joe Roff and others on a note. Judgment for plaintiff. Defendant Roff alone appeals. On February 16, 1897, appellee Harmon and appellant Roff matched a horse race in the Chickasaw Nation, Ind. T. Roff, for his wager, bet the note sued on, less'the credits then indorsed. Roff indorsed the note. The race was decided in Harmon’s favor.

<p>1. Indians — Old Settler Cherokee Funds — Claims Against Denied.</p> <p>Claims against the Old Settler Cherokee Funds denied because barred by statute of limitations, because equity will not enforce a stale claim, because of failure of presentation to and allowance by Indian Commissioner, and because the fund is appropriated for a specific purpose and may not be diverted, following and expressly affirming decision in case of Hanks vs Hendricks, 3 Ind. Ter. Rep., p. 415.</p>

<p>Appeal from the United States Court for the Northern District.</p> <p>Joseph A. Gill, Judge.</p> <p>Action by J. A. Leforce against Homer Andrews and others. Judgment for defendants. Plaintiff appeals.</p>

C. B. Kilgore, Judge. Action by W. J. Wallace against G. W. Bryson.' Judgment for plaintiff. Defendant appeals. This was a suit brought by W. J. Wallace, the plaintiff below, before M. M. Beavers, United States commissioner in and for the Southern district of the Indian Territory, at Chickasha, against G. W. Bryson, the appellant herein, on the 20th day of May, 1896, for $132, claimed to be due him for services rendered.

Joseph A. Gill, Judge. Action by Frank Daniels against J. W. Mansbridge and others. Judgment for defendants. Plaintiff appeals.

Joseph A. Gill, Judge. Action by Fred L. Kelly against Frank Churchill and others. Judgment for defendants. Plaintiff appeals.

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Hattie Wright was convicted of concealing the death of a child, and appeals.</p> <p>The appellant, Hattie Wright, was indicted and convicted for concealing the death of a bastard child. The indictment, among others, contains the following allegation: “And that the said Hattie Wright then and there unlawfully, willfully, and feloniously did endeavor privately to conceal the death of said child, that it might not come to light, by then and there unlawfully, feloniously, and secretly depositing the corpse of said child in the woods.” On the trial the defendant requested the court to charge the jury as follows: “In order to convict, the government must show that the child was concealed in the woods, and satisfy your minds of that fact beyond a reasonable doubt.” The instruction was refused, and exception saved. The only other exception in the record is that the court limited the time for argument to 20 minutes on a side, the defendant having been represented at the trial by two counsel.</p>

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

<p>1. Forcible Entry and Detainer — Judgment—Damages.</p> <p>In a case of forcible entry and detainer, where the plaintiff prevails, no damages can be recovered for the detention of the premises, except in cases where the defendant has given bond and retained possession of the premises, under Secs. 3361, 3362 Mansf. Dig. (Secs. 2295, 2296 Ind. Ter. Stat.)</p> <p>2. Appeal — Objections Waived.</p> <p>Where the defendant made no objection on trial of a forcible entry and detainer case, to evidence touching damages sustained by the plaintiff, though no bond was given by defendant retaining possession, and he himself requested an instruction to the jury on this point, he waives his objection and cannot be heard to complain of the allowance of such damages, on appeal.</p>

Hosea Townsend, Judge. Action by P. Archard against Ed. Farris. From a judgment of the United States Court for the Southern district, dismissing an appeal from a judgment of the commissioner’s court, plaintiff appeals.

<p>Appeal from the United States Court for the Northern District.</p> <p>Joseph A. Gill, Judge.</p> <p>Action by T. J. Bradley against M. S. Patterson. Judgment- for plaintiff. Defendant appeals.</p> <p>This was an action of debt, brought before the United States Commissioner for the Sixth commissioner’s district of the Northern district of the Indian Territory, at Vinita, by appellee against- appellant. Appellee alleged that appellant was indebted to him in the sum of $114.34 on contracts for threshing for the seasons of 1897 and 1898; that there was due for the season of 1898 the sum of $20.49, and for the season of 1897 tbe sum of $93.85; and that these sums, together with the interest, amounted to $126.30. The appellant, by his amended answer, admitted the contracts for threshing, but- alleged that for the season of 1898 the contract price ivas 2£ cents per bushel, instead of 3 cents, as set out by appellee, and as a counterclaim to the bill for 1897 interposed a claim for damages against the appellee for negligently and carelessly performing his contract of threshing, by which negligence the appellee set fire to and burned up about 1.000 bushels of appellant’s wheat, worth 70 cents per bushel; that, on account of the limited jurisdiction of the commissioner’s court, he asked leave to plead his damages to the extent of $100 against appellee’s claim for threshing in 1897 under section 4074, Mansf. Dig. (section 2754, Ind. T. Ann. St. 1899). To the counterclaim the appellee demurred. The commissioner overruled the demurrer, and there was a trial by jury, and judgment for appellee for $20.49. The appellee appealed from this judgment to the District Court, where the demurrer was sustained, and the appellant refused to plead further. The appellee then admitted appellant’s claim of 2£ cents per bushel on the contract for the year 1898, and judgment was entered for appellee in the sum of $111.87.</p>

Joseph A. Gill, Judge. Action by the Cherokee Nation against J. S. Hargrove and others. Judgment for plaintiff. Defendants appeal. On the 11th day of January, 1901, a mandate from the Court of Appeals was spread upon the records, and judgment entered in compliance with said mandate.

Gill, Judge. Replevin by Bertha Shockman against W. M. Hancock and others. Froih judgment for plaintiff, defendants appeal.

<p>On petition for rehearing.</p>

William H. H. Clayton, Judge. Action by G. W. Dukes and others against Edward Mc-Kenna and others to restrain the construction and maintenance of a toil bridge within the Indian Territory. Judgment for defendants.

Hosea Townsend, Judge. Action'for unlawful detainer by J. C. Washington against James Fraer. Judgment in favor of plaintiff. Defendant appeals. On January 1, 1898, Washington and Fraer entered into the following contract with reference to a certain lot described therein, namely: “Chickasaw Nation, Indian Territory, Pickens County.

Hosba Townsend, Judge. Action by Jim Watkins and others against Byron Hill. Judgment for plaintiffs. Defendant appeals. This is an action in unlawful detainer, by appellees against appellant, for the possession of 160 acres of land and all improvements situated thereon. The complaint alleges ownership, tenancy, and unlawful holding over after demand. The amended answer, after denying the tenancy, sets up an outstanding title in the defendant.

Wm. M. Springer, Judge. Action by B. D. Pennington against J. T. Richardson-Judgment for plaintiff. Defendant appeals.

<p>1. Forcible Entry and Detainer — Evidence of Title.</p> <p>In an action for the unlawful detainer of lands evidence seeking to show title to .such lands in the plaintiff is admissible to show his right to the possession and the extent thereof.</p> <p>2. Forcible Entry and Detainer — Instructions.</p> <p>Instructions, in an action of forcible entry and detainer based upon evidence of title in the plaintiff, are admissible when they properly limit the extent and effect to be given to such evidence by the jury.</p> <p>3. Evidence — Introduction of Part of Written Instrument Authorized Introduction of Whole.</p> <p>Where the defendant offers in evidence parts of a complaint in another suit between the same parties, the court properly on request of plaintiff, submitted the whole complaint to the jury.</p> <p>4. Forcible Entry and Detainer — Evidence Sufficient to Submit Case to Jury.</p> <p>In an action of forcible entry and detainer, the plaintiff’s evidence tended to show that he was the owner and in possession of the premises at the time the defendant entered, and that defendant armed himself and refused to vacate. Defendant’s testimony was in conflict with this. Held, that thereby an issue of fact was raised for determination by the jury.</p>

William H. H. Clayton, Judge. Action by Willie Patterson, by his next friend, W. H. Patterson, against the McAlester Coal & Mining Company, for personal injuries. Judgment for plaintiff. Defendant appeals.

<p>I. Rehearing — Not Granted by One Judge — Time of Filing Petition — Rules of Court.</p> <p>Sec. 1307, Mansf. Dig. (Sec. 809 Ind. Ter. Stat.) adopted and extended over the Indian Territory does not authorize the adoption of a rule of this court empowering' any one of the judges of the court of appeals to allow and order a rehearing. Such order can only be made by the whole court upon a petition filed therein within the time fixed by rule 12.</p>

States Court for the Northern District. Joseph A. Gill, Judge. Action by the United States, on the relation of Jennie A. Zane, against Alonzo Zane and another, to recover certain land. Judgment grants to the relator a portion only of the relief demanded. She appeals. On March 25, 1899, this action was commenced by the plaintiff (appellant here) by filing a complaint at law in the Northern district of Indian Territory, at Miami, against the defendants (appellees here).

<p>1. Negligence — Railroads—Killing Slock — Evidence.</p> <p>In an action against a railroad company for killing stock on the track plaintiff’s evidence only showed that the cattle were found near the track one morning, supposedly struck and killed during the night, at a point where the track was straight in each direction for a distance of over a quarter of a mile; while the defendant’s evidence showed that the engineer, keeping a close watch, while running at 40 miles an hour, saw the cattle about 200 feet ' ahead, that the train could not have been stopped in that distance and to'have slowed it down would have been dangerous to his passengers; Held, no sufficient evidence of negligence of the defendant and a verdict for defendant should have been directed.</p>

<p>Appeal from the United States Court for the Central District.</p> <p>Wm. H. H. Clayton, Judge.</p> <p>Charles Williams and another were convicted of larceny, and they appeal.</p>

<p>1. Unlawful Detainer — Citizenship Necessary to Jurisdiction — -Cannot be Urged by Tenant Against Landlord.</p> <p>In an action of unlawful detainer where it was necessary that plaintiff plead and prove Indian citizenship to establish his grantors title to the land, the failure to plead this fact cannot be urged by the defendant because of the relation of landlord and tenant existing between him and plaintiff.</p> <p>2. Unlawful Detainer — Evidence—Declarations.</p> <p>Declarations of an assignor or grantor as to title, are only admissible in evidence as against the grantee when, shown to have been made before the transfer. /</p> <p>3. Indian Lands — Right to Hold — Mississippi Choctaws.</p> <p>In an action of unlawful detainer, claims by the defendant that he had bought the lands from plaintiff’s grantor prior to plaintiff’s purchase thereof, could not avail him unless he also showed that he was a citizen of the Indian nation. Showing that he was a Mississippi Choctaw was not sufficient, for prior to 1898, Mississippi Choctaws, not then on the regular roll of the Choctaw Nation, could hold no lands iri the Choctaw Nation, but had, only, the right to go before the commission to Bive Civilized Tribes and make the necessary proof securing his enrollment, under Act of Congress June 28, 1898, Sec. -21 (30 Stat. 503) and Act of Cong. May 31, 1900 (31 Stat. 236).</p>

Hosea Townsend, Judge. Suit by B. F. Glover & Son and others against Theo. Fitzpatrick and others. Decree for defendant. Plaintiffs appeal. This is an equitable action brought by appellants, all judgment creditors of Carey & Fitzpatrick, against Theo. Fitzpatrick,Maria Fitzpatrick,and it. L. McDonald & Co., appellees, praying for the cancellation of a deed from Fitzpatrick and wife to John I. Me.

<p>1. U. S. Commissioners Courts — Number of Jury — Not Constitutional Trial by Jury.</p> <p>The jury in U. S. Commissioners Courts is impanelled under the law of Arkansas relating to justices of the peace and hence, it cameonsist of no more than twelve in number. Such a trial, however, is not a trial by jury in the sense of the 7th Amendment to U. S. Constitution.</p> <p>2. Right of Trial by Jury — Waiver of.</p> <p>A waiver of jury in a trial before a U. S. Commissioner is not a waiver of the party’s constitutional right to a trial by jury in the District Court, when the case is taken up on appeal, for trial de novo.</p> <p>3. Appeal — U. S. Commissioners Courts — Jurisdictional Amount.</p> <p>Act of Congress March 1, 1895, (28 Stat. 693) is unconstitutional in so far as it prohibits appeals from U. S. Commissioner’s Courts where the amount in controversy, exceeds $20.00, as denying the right by jury. Appeals are allowed, in all such cases of trial notwithstandingthe “amount of judgment” does not exceed $20.00.</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Action by John L. Bradley against the Hargadine-MeKitrick Dry Goods Company and another. Judgment for plaintiff. Defendants appeal.</p> <p>This was an action of replevin begun in the Southern District on February 8, 1901, by Bradley, as plaintiff, against the Hargadine-MeKitrick Dry Goods Company and J. J. McAlester, marshal of Indian Territory, as defendants. The complaint alleged that the plaintiff was entitled to the immediate possession of certain property described therein, which the defendants had possession of without right, and which they unlawfully detained. And plaintiff further represents that on the 14th day of December. 1893, William' Hull executed a mortgage or deed of trust on the property described, in favor of plaintiff, to'secure the payment of four certain promissory notes, aggregating $4,900; that said notes remain wholly unpaid; that such instrument was duly acknowledged, and on December' 18, 1893, duly filed for record in the United State's clerks office at Ardmore, Ind. Ter.; that thereafter the defendant the Hargadine-MeKitrick Dry Goods Company caused an execution to be issued, directing the defendant J. J. McAlester, United States marshal, to levy the same upon aforesaid property, and that said defendant McAlestef, acting thereon, took wrongful and forcible possession of all of said property, and advertised it for sale on the 4th of August, 1894, and sold the same, — claiming damage by reason of said wrongful taking in the sum of $500, and praying for judgment for all of said property and $500 damages. Defendants answer said complaint, and deny that the plaintiff is the owner of and entitled to the possession of the property described therein,. or any part thereof, and deny that the defendants unlawfully and wrongfully detain the same, or any part thereof, and allege that no demand was ever made upon McAlester, or any deputy of his, or anybody else in possession of said property. Defendants further answer, and allege that, at the institution of the suit, McAlester was in possession and holding said property under and by virtue of a writ of execution duly issued by the United .'States Court for the Southern District, Ind. Ter., in a case styled Hargadine-McKitrick Dry Goods Co. v. Hull and others; that said execution was valid, and said property, levied upon as the property of Hull, sold under said execution as such; and further allege and charge the fact to be that said property was not the property of Hull, but was the ¡iroperty of his wife, Sippie Hull, and was her property at the time the mortgage referred to in the complaint was .executed by the said Hull, and that said mortgage was executed without the knowledge and consent of said Sippie Hull; that said Sippie Hull ratified and confirmed the execution sale of said property; that one Sam Garvin purchased said property under said execution sale, and the title to said property passed to him; and that he has ever since been the owner thereof, unless he has disposed thereof. And the defendants say that the mortgage described in the complaint was fraudulent and void, as to the creditors of said William Hull, because that the mortgage referred to in said complaint was not the full and complete instrument and agreement made, and entered into between the said William Hull and the plaintiff in this action; that on, to wit, the 11th day of —’--, 189--, at the time said mortgage yvas executed, simultaneously "with the execution of said mortgage, and, as a part thereof, the said William Hull executed a power of attorney whereby he authorized and directed the said John L. Bradley to take immediate possession of a lot of sewing machine notes, and dispose of them immediately, for the purpose of raising a fund to pay the debt secured by said mortgage, and that said power of attorney and said mortgage together constituted an assignment of said property therein conveyed, but that, as an assignment of the same, was fraudulent and void, in this: that it does not provide for or contemplate that the said John L. Bradley shall execute the bond and file the inventory required by law, and permits and directs the said John L. Bradley, grantee therein, to take possession of the property therein conveyed without executing the bond and filing an inventory as required by law. Defendants further answer and allege the fact to be “that said mortgage is void and fraudulent in fact, for the reason that the same was executed and accepted by the said John L. Bradley with the effect and for the purpose of hindering and delaying the defendant the Hargadine-M clvitrick Dry Goods Company, and other creditors of the said William Hull.” And they further answer and say that said mortgage was without consideration, for the reason that it was executed to secure and save harmless the said John L. Bradley because he had become indorser on an antecedent and pre-existing debt, and that the notes to secure which the same was given had already been executed, and that no extension of time and no consideration whatever passed from the said William Hull or said fcfippie Hull, and that the property, was not worth the sum alleged in said complaint, but was worth much less than the sum alleged therein. The case was tried to a jury, who returned a verdict in favor of the plaintiff, John L. Bradley, for the property, and ascertaining its value, and judgment was pronounced upon said verdict. Motion for new trial was duly interposed by the defendants ,and overruled by the court, and the defendant the Hargadine-McKitrick Dry Goods Company, in the case below, prosecuted this appeal to this court.</p>

<p>1. Appeal — Record—Bill of Exceptions.</p> <p>Where matters of record proper only appear as a part of the bill of exceptions, same will not be considered and an appeal based upon such incomplete record, -must be dismissed.</p>

<p>Appeal from the United States Court for the Central District.</p> <p>William H. H. Clayton, Judge-</p> <p>Suit by Mary A. Hulsey against A. J. Barton. Decree for plaintiff. Defendant appeals. '</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>John R. Thomas, Judge.</p> <p>Charles Williams was convicted of murder and he appeals.</p> <p>On March 15, 1899, the grand jury returned into court at Paul’s Valley an indictment for murder against the defendant, Charles Williams, appellant here, together with Henry T. Bowie, and Frank Hunt. On December 6, 1900, defendant Williams, together with Bowie and Hunt, were arraigned, and each pleaded not guilty, and on the same day severance was demanded and granted, and defendant Williams was placed on trial before a jury, which, on December 11, 1900, reported that they could not agree and were discharged. On April 24, 1901, defendant Williams was again placed on trial before a jury, who, on April 26, 1901, returned the following verdict: “We, the jury, duly impaneled and sw'orn in the above entitled action do find from the law and the evidence the. within-named defendant, Charles Williams, guilty of manslaughter in the manner and form as charged in the within indictment. " Signed. A. P. Roberts, Foreman.”</p> <p>In the trial of the above-entitled case, during the argument of counsel to the jury, Moman Pruiet, Esq., of counsel for the government, used the following language: “Luke is before you as a peaceable man. The defendant is before you as a man who has been arrested so often that he cannot tell how often.” To which counsel for defendant objected, and moved the court to exclude this from the jury, upon the ground that the defendant had not put his character for peace in issue. The court overruled the motion of the defendant, and refused to exclude the language used, holding that the reputation of defendant, so far as he had put it in the case by his own testimony, was proper; to which ruling of the court the defendant at the time, excepted and still excepts.</p> <p>The court gave the following charge to the jury:</p> <p>“In this case the defendant, Charles Williams, stands charged by the indictment wdth, and is now on trial for, the crime of murder. Murder is defined by the law to be the unlawful killing of a human being then and there in the peace of the United States, with malice aforethought, either express or implied. Express malice is that deliberate intention of the mind unlawfully to take away the life of a human being, which is manifested by external circumstances, capable of proof. Malice, in general terms, may be defined to be the doing of a wrongful act intentionally, without just cause or excuse. As employed in the foregoing definition of murder, the term “malice’ includes in its meaning all those states of the mind under which the killing of a human being takes place without any cause, or extenuate the homicide. ‘Malice,’ as used in this incident, does not mean mere spite, ill will, or dislike, as it is ordinarily understood, but it means that condition of the mind which prompts one person to take the life of another without just cause or legal justification. There need be no appreciable space of time between the formation of the intention to kill and the killing. They may be as instantaneous as successive thoughts. It is only necessary that the act of killing be preceeded by the concurrence of the will, deliberation, and premeditation on the part of the slayer. Malice includes not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. It is not confined to ill will towards an individual, but is intended to denote an action arising from any wicked and corrupt motive. Malice may be inferred when any unlawful act is done with a wicked mind, when the fact is attended by such circumstances as evince a plain indication of a heart, regardless of social duty and fatally bent on mischief. Hence malice may be implied from any deliberate and unlawful act of one person against another, however sudden, if the unlawful act be of such a character as to show an abandoned and malignant disposition. Malice, in connection with the crime of killing, is but another name for a condition of a man’s heart and mind; and, as no one can loook into the heart or mind of another, and thus learn its condition, the only way to decide upon this condition at the time of the killing is to infer it from the surrounding facts. The presence or absence of this mental condition marks a boundary which separates the two crimes of murder and manslaughter. Malice shall be implied when no considerable provocation appears, and where all the circumstances manifest an abandoned and wicked disposition. The burden of proving each of the material allegations in the indictment rests upon the government. The defendant is presumed to be innocent of the crime charged, and that presumption abides with the defendant from the initiation of the case until it either be crystallized into a fact, or is overcome by evidence convincing your minds beyond a reasonable doubt of his guilt as charged in the indictment. The unlawful killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide devolves on the accused, unless by the proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide. If you believe beyond a reasonable doubt from the evidence that the defendant, Charles Williams, within the Southern District of the Indian Territory, at the time prior to the finding of the indictment in this case, to wit, on or 'about the 13th day of November, A. D. 1898, unlawfully, feloniously, willfully, and of his malice aforethought killed William J. Luke by shooting him with a bullet fired by defendant from a Colt’s 45-calibre revolving pistol, you should find the defendant guilty of murder. If you believe beyond a reasonable doubt, from the evidence, that the defendant, while armed with a deadly weapon, which he had concealed in his hip pocket, went to the room where Luke was engaged in a game of cards with several other parties; that he (the defendant) called attention to a matter which provoked and resulted in a hot quarrel between Luke and defendant; that while Luke was standing with his right hand on the back of a chair, and was pointing or gesticulating with his left hand towards defendant, who was standing some six feet away, but was not assaulting or attempting to assault the defendant, that the defendant a fter threateningly announcing his intention to kill Luke, drew his pistol, and unlawfully, feloniously and of his malice aforethought shot and killed Luke, — such killing would be murder. Although you may believe from the evidence that some time after Luke’s death a party of men went to where his body lay, and made an examination of the clothing of the deceased for the purpose of ascertaining whether or not there was a pistol or other weapon on his person and although you may believe from the evidence that upon said examination a loaded pistol was found in the pants pocket of deceased, still, if you believe from the evidence that after Luke was killed several parties went up to the room where his body lay, and changed the position of 'the body, and tied his hands across his breast, and that other parties had access to the room where the body lay, such facts, with the opportunities offered for placing a pistol in the pocket of the deceased after his death may be taken into consideration by you in determining whether or not deceased was armed at the timemf the killing. Although you may believe from the evidence that at the time of the killing deceased had a loaded pistol in his pocket, still, unless he made an assault upon defendant by either drawing or attempting to draw said pistol with the manifest or apparent intention of shooting him, such fact did not justify or excuse the shooting and killing of Luke by the defendant, and such fact cannot avail defendant by way of self-defense. If you believe from the evidence that the defendant did not start or provoke the quarrel with the deceased, but that the deceased began quarreling with the defendant without just cause; that deceased cursed defendant applying to him a foul epithet, and threatened to kill defendant; that deceased had a revolver in his pocket; that he arose from his seat, and put his right hand to his right pants pocket in a threatening manner, and attempted to draw his pistol for the purpose of shooting defendant —then and in that case the defendant had a lawful right to defend himself, even to the extent of taking the life of the deceased. In order to justify the defendant in taking the life of William Luke, it is not necessary for the jury to find that said William Luke did have a pistol in his pocket at the time of said killing, or that the defendant was then and there in actual danger of losing his life or of receiving serious bodily injury at the hands of said Luke; but it is sufficient in law to jijstify the defendant in taking the life of the said Luke if, from the words and acts of the said Luke at the time, the defendant had reasonable grounds to believe, and in good faith did believe, that the said Luke was then and there about to make an unlawful, deadly assault upon him, the said defendant; and in determining how this may be you must view the facts and circumstances of this case as they then reasonably appeared to the defendant.</p> <p>“Although you may believe from the evidence that at the time of the killing of Luke by the defendant both the defendant and Luke were engaged in the unlawful business of running a gaming house, and of gambling, and that each of them were violating the law by carrying concealed deadly weapons, these unlawful acts alone would not justify the defendant in taking the life of his partner in crime, since it is as much a violation of the law to kill a bad man as a good man. An assault is an unlawful attempt, coupled with a present ability, to inflict upon the person of another a bodily injury. The defense interposed in this case is self-defense; that is, that it was necessary for the defendant to take the life of the deceased to prevent his either losing his life or receiving great bodily harm. Self-defense, in proper cases, is the right of every person. It may be resorted to by any one who is violently assaulted by another in such a manner as to cause the person so assaulted in good faith to believe that he is in immediate danger of either being killed or of receiving great bodily harm from the assailant, and that the killing of the assailant, appears to be the only means of escaping death or great bodily harm. In ordinary cases of one person killing another in self-defense it must appear that the danger was so urgent and threatening that, in order to preserve his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, or apparently necessary; and it must also appear that the person killed was the assailant, or that the slayer in good faith endeavored to decline further combat before the mortal blow or injury was given. A bare fear of being killed or of receiving great bodily harm is not sufficient to justify a killing. It must appear that the circumstances were sufficient to excite the fear of a reasonable person similarly situated, and the defendant acting in good faith, and viewing the situation and circumstances from his standpoint, and that the party killing really acted under the influence of such fear, and not in a spirit of revenge. The law of self-defense is a law of necessity, pure and simple. It is not an offensive law, but defensive law. Before the defendant would be justified in killing the deceased, he must be in danger, or apparently in danger, as viewed from his standoint, of either losing his life or of receiving great bodily harm at the hands of the deceased at the place and at the instant when the fatal shot which took the life of deceased (Luke) was fired. Threats by the deceased against the life of the defendant," even though made in his hearing, would not by themselves justify the taking of his life by the defendant. Threats made by the deceased against the defendant are competent evidence to be considered by you in determining the condition of mind and motive of the deceased at the time of the killing; but, unless such threats were succeeded by some overt act, they would not justify homicide, or even simple assault. To justify the defendant in slaying the deceased, the deceased must, at the time of the fatal shot, have been making some overt demonstration which would have led a reasonable man similarly situated (and the defendant 'acting in good faith, and viewing the situation from his standpoint) to believe that his life was in imminent danger, or that he was in imminent danger of receiving great bodily injury. A party in the exercise of self-defense cannot use more force than appears to be necessary for his own protection, and if he exceeds the force apparently necessary to his own defense or safety he is guilty of either murder or manslaughter, as defined by these instructions, if the homicide results from his acts. If you believe from the evidence that the defendant willingly and voluntarily and without provocation on the part of the deceased entered into the difficulty at a time when he was not endangered by any acts of the deceased, he is cut off from the law of self-defense; for it is the law, where parties voluntarily enter into a mutual combat, in which one of the parties is slain, such slaying is murder.</p> <p>“If., upon consideration of the law and the evidence before you, you should conclude that the defendant is not guilty of murder, it is your duty next to consider whether or not, under the law and the evidence, he is guilty of the crime of manslaughter. Manslaughter is the unlawful killing of a human being without malice, express or implied, and' without deliberation. The killing of a human being in the heat of passion by or with a dangerous weapon, except where the killing is shown by the evidence to be either justifiable or excusable, is manslaughter. If you believe beyond a reasonable doubt from the evidence that the defendant, within the Southern District of the Indian Territory, on the 13th day of November, 1898, by means of firing a leaden bullet out of a Colt’s 45-caliber revolving pistol into the head and brain of William J. Luke, thereby killing the deceased; that said killing was not justified by law, or in necessary or apparently necessary self-defense, but was done in the heat of passion, and that said killing was doné without malice on the part of the defendant, — the crime would be manslaughter, and you should so find the defendant guilty. To extenuate an unlawful killing, and reduce it to manslaughter, two facts must concur: There must be at the time of the killing both passion and provocation. Provocation without passion will not extenuate, nor will passion merely without provocation reduce the unlawful killing from murder to manslaughter. You are instructed that what is or is not an overt act of violence — that is, what acts on the part of a person slain would justify the taking of his life— varies with the circumstances of each particular case. Under some circumstances a slight movement may justify instant action because of reasonable apprehension of danger; under 'other circumstances this would not be so; and it is for the jury passing upon the weight and effect of the evidence to determine how this may be. Where evidence has been admitted for the purpose of impeaching the testimony of a witness who has theretofore testified in the case, such impeaching testimony can only be considered by you for the purposes for which it was introduced; that is, for the purpose of impeaching the testimony of said witness, and not as original evidence, either in favor of the prosecution or of the defense. In considering such impeaching evidence, it is proper for you to consider it for the purpose o| determniing the weight you will give to the evidence of the witness whose testimony is sought to be impeached, and for no other purpose. You are the judges of the weight of the evidence and of the credibility of the witnesses. In determining the wreight you will give to the testimony of the several witnesses it is proper for you to take into consideration then’ appearance and manner of testifying while on the stand; their intelligence or lack of intelligence; their means of knowdedge of the matters about which they testify; their interest in the result of the suit; as to whether their story bears the marks of candor and truth, or to the contrary; as to whether it is reasonable or unreasonable; as to whether they, or either of them, have made other and contradictory statements at other times from those made upon’ the witness stand in this trial; as to whether the testimony of any witness has been contradicted upon any material matter in this case by other credible and unimpeached witness or witnesses; and, taking all these facts and circumstances into consideration, you should give to the testimony of each of the several witnesses such weight as you think it entitled to under all the cirucmstances of the case. In determining the question of the guilt or innocence of the defendant of the crime of either murder or manslaughter, you should consider all the facts and circumstances in proof before you, guided by these instructions in weighing and applying the testimony. Before you can find the defendant guilty of either murder or manslaughter, you must be satisfied by the evidence beyond a reasonable doubt of his guilt of either murder or manslaughter. Not every doubt which may arise in your minds is of necessity a reasonable doubt, but, in order to be a reasonable doubt, it must amount to a real doubt of the guilt of the defendant. It must be such a doubt as, if arising in the solution of one of the graver affairs of life, would cause a reasonable and prudent man to hesitate, and say: ‘I am not satisfied.’ In order to be a reasonable doubt, as applied in this case, it must be a substantial doubt of the defendant’s guilt, growing out of the contradictory, or unsatisfactory nature of the testimony, or a lack of testimony, which, after considering all the facts and circumstances in proof before you, causes you to hesitate, and say, ‘I am not satisfied of the guilt of the defendant.’ If you have on your mind such a reasonable doubt of the defendant’s guilt, then you should resolve that doubt in favor of the defendant and acquit him; but if, after considering all the facts and circumstances in proof before you, you can say that you feel morally certain of the guilt of the defendant as charged in the indictment, you are satisfied beyond a reasonable doubt, and should find the defendant guilty of murder or manslaughter, according to the law and evidence. You must try this case fairly and impartially, without fear, favor, or affection, and your verdict must be based upon the law and the evidence and not upon presumption, speculation, or suspicion. Do your duty faithfully according to the law as it is given you in this charge the evidence as you have heard it from the mouths of the witnesses, guided by the wisdom of a merciful God, and you will have performed your whole duty.”</p> <p>On May 1, 1901, defendant filed a motion for new trial, which, on May 9, 1901, was overruled by the court. “ Comes on now to be heard defendant’s motion for a new trial heretofore filed herein, and the court, after hearing said motion, and being fully advised in the premises, doth overrule said motion, to which action of the court defendant then and there in open court duly excepted, and prayed an appeal to the United States Court of Appeals for the Indian Territory, sitting at South McAlester; which said prayer is granted, and defendant, is allowed ninety (90) days within which to prepare and file his bill of exceptions. On this day, defendant being brought to the bar of the court in the custody of the marshal, it is the judgment, sentence and order of the court that said defendant, Chas. Williams, be, and he is hereby, sentenced to the United States penitentiary at Ft. Leavenworth, Kansas, for a period of ten (10) years, beginning from this date; that he pay to the United States of America a fine of one thousand dollars, and the cost of this prosecution; and that be stand committed until said fine and costs are paid. In the United States Court for the Southern District of the Indian Territory, sitting at Paul’s Valley, April, A. D. 1901, term.”</p>

<p>Appeal from the United States Court for the Northern District .</p> <p>Charles W. Raymond, Judge.</p> <p>Action by W. G. Bass against J. N. Ward. Judgment for plaintiff. Defendant appeals.</p> <p>On July 17, 1899, the plaintiff below (appellee here) filed his complaint against the defendant below (appellant here), and alleged that on or about the 28th day of February, 1898, he entered into a verbal contract with the defendant to sell a quantity of feed to the defendant, and to allow defendant to turn his cattle on the said feed on the ground of plaintiff. It was agreed that the plaintiff should build a three-wire fence between the ground where defendant’s cattle were to run and the rest of plaintiff’s farm, where plaintiff had a quantity of fodder and other feed, and that the defendant would keep a man with his cattle while in plaintiff’s field, to keep them from breaking over the said fence and eating and destroying plaintiff’s feed. Plaintiff states that he did put a three-wire fence, as agreed, and made such a fence as was agreed upon; that defendant turned a large number of cattle upon the ground where he was to turn them, where they remained eight dajrs without injury to plaintiff; that' after eight days “the defendant failed and neglected tokeep a man with the said cattle to keep them from breaking over the said fence into plaintiff’s feed; that the defendant, in violation of his agreement, wrongfully and negligently and willfully permitted his cattle — a large number of them — to break over into plaintiff’s field, where his fodder and other feed was, and to destroy it”; when the man in charge of.the defendant’s cattle knew of the foregoing fact, he failed and refused to drive them out; that, by reason of the failure and neglect of defendant to keep his cattle out of plaintiff’s feed, defendant’s cattle ate and destroyed 918 shocks of corn fodder belonging to plaintiff, to his damage in the sum of $642.60; that the same was destroyed in March, 1899; and plaintiff asks judgment for said amount, interest, and costs. On the 11th day of November, 1899, defendant filed his answer, and denied all the allegations of plaintiff’s complaint, and alleged that on February 20, 1899, he bought from plaintiff 124 tons of hay for $279, and 517 shocks of corn and fodder for $299.35, situated on the place of plaintiff; that it was agreed between them that defendant should turn his cattle in on said hay and fodder, and winter them there, “and that plaintiff should build such a fence to keep defendant’s cattle off of his other property as might be necessary, and that there was no contract or agreement that defendant should keep a man with the cattle to keep them off of plaintiff’s property, but it was expressly understood and agreed between them that, unless plaintiff should build such a fence as would keep said cattle off of plaintiff’s premisies, that any loss or damage that they might do should be sustained by plaintiff, and that this defendant should not be responsible for it,” — and prays judgment for costs. On May, 10 1900, defendant, by leave of the court, filed an amendment to his answer, and says that plaintiff agreed “to build a sufficient fence to keep defendant’s cattle in the field in which that part of the hay and corn fodder which was not in another part of plaintiff’s field was situated”; that “when said fence was completed it was wholly inadequate to hold said cattle and keep them out of plaintiff’s adjoining field, and defendant had to go to the expense of $5.65 to repair the fence and employ additional men to ride the lines and hold his cattle on the ground set apart for them.” Defendant alleges that plaintiff negligently and willfully permitted his own cattle and the cattle of others to get into the field of defendant and eat and destroy a large part of the feed purchased of plaintiff. Defendant further alleges that, by reason of plaintiff’s failure, “he was damaged to the extent of $1 per head by the frequent moving of them, and the loss of feed, for several days,” and asks damages against plaintiff for $1,000. On May 11, 1900, plaintiff filed a reply, and denies allegations of defendant in his amended answer. On December 13, 1901,' the case was tried before a jury, who returned the following verdict: “We, the jury, find the issues for the plaintiff, and assess his damages at $642. (Signed) S. L. Landers, Foreman.” And on the same day defendant filed a motion for new trial, which on January 18, 1902, was overruled by the court, to which defendant excepted, and judgment was rendered on said verdict, and defendant prays an appeal to this court.</p>

Joseph A. Gill, Judge. Action by Buster & Jones and others against J. Geo. Wright and others. Judgment for defendants. Plaintiffs appeal.

Wit. H. JH. Clayton, Judge. Action by W. H. Ansley and others against N. B. Ainsworth and others. Judgment for defendants. Plaintiffs appeal. The amended complaint in this action was filed March, 31 1899, by the plaintiffs below, appellants here, against the defendants below, appellees here, in which plaintiffs alleged that plaintiff W. H. Ansley is a Choctaw Indian by blood, and that plaintiffs M. H. Gleason and R. 0.

<p>1. Indian Laws — Courts Will not Take Judicial Notice.</p> <p>This court will not take judicial notice of the laws "of the several Indian nations, but same must be specifically pleaded; and a mere reference to same in a pleading will not suffice.</p> <p>2. Pleading — Reply—Failure to Strike from. Files, Error.</p> <p>Section 5043 (Ind. Ter. Stat. Sec. 3248) provides that no reply to. an answer shall be filed except upon the allegation of a counter-claim or set-off in the answer. Failure to strike out a reply improperly filed is reversible error, in view of the fact that the decision of the trial court was reached upon the consideration of matters only contained in the reply.</p>

Hosea Townsend, Judge. Action by Mollie Engleman and .others against Daniel Cable. Judgment for defendant. Plaintiffs appeal. This was an action of unlawful detainer begun in the United States court for the Southern District of the Indian Territory, at Ryan, by complaint filed July 16, 1900.

On rehearing. The plaintiff below (appellee here) commenced this suit on the 21st day of August, 1897, by filing his complaint at law in the United States Court at Muskogee, and alleged that on the 1st day of July, 1897, plaintiff was the owner of 56 head of steer cattle, from three to five years of age, which were branded as taken ’in book W. C. & B., and other bought brand; that said cattle were of the value of $1,800; that subsequently, and on the ---day of July, 1897,…

<p>Appeal from the United States Court for the Northern District.</p> <p>John R. Thomas, Judge.</p> <p>Action by the Orr & Lindsley Shoe Company and another against Alexander Frankenthal and others. Judgment for defendants. Plaintiffs appeal.</p> <p>This is an action for trespass, alleging that the plaintiffs were the owners of certain merchandise of the value of $1,868.24, and that the defendants, on December 16, 1889, in the Chickasaw Nation, wrongfully and unlawfully seized said merchandise and converted the same to their own use, to plaintiff's damage-. The defendant Needles answered that at the time of the alleged trespass he was United States marshal for the Indian Territory; that he received a writ of attachment in due form against one W. Scott Cook, directing him to attach and keep all-the property of said Cook in the Inidan Territory; that on December 16, 1889, he executed the writ by levying upon the property in controversy as the property of W. Scott Cook; and that said property was, at the time, in possession of said Cook, and defendant charges the same to have been the property of said W. Scott Cook. The case was tried to a jury before Hon. John R. Thomas,which resulted in a verdict and judgment for the defendants, the appellees, and after motion for new trial the case is now prosecuted by appeal to this court.</p> <p>This case has been tried heretofore, and taken through this court and to the United States court of appeals of the Eighth Circuit, and remanded by the latter court, and the present trial is by virtue of the remanding order of said court. Briefly stated, the evidence discloses the following facts: One W. Scott Cook, living at Fred, Ind. Ter., was in the retail merchandise business, and became indebted to plaintiffs (appellants) for merchandise sold by them to the amount of $1,868; that on November 30, 1889, he executed a bill of sale in favor of plaintiffs conveying to them merchandise in said store of the value of about $1,900; that plaintiffs, through their traveling salesman, dcseeetl the goods mentioned in the bill of sale, and inventoried the same, and separated the same from the residue of the vendor’s stock, but replaced them on the shelves and racks in the vendor’s store, and placed .the goods in charge of the vendor’s brother, one David F. Cook, empowering him to sell the same at retail, and account to them for the proceeds; that on December 16, 1889, defendant Needles, marshal for the Indian Territory, seized the goods in question under a writ of attachment issued against W. Scott Cook in favor of certain attaching creditors. The testimony as to whether notice of such sale was given before the levy by the marshall is conflicting, particularly upon the point as to whether or not the vendor had endeavored to dispose of the whole stock, instead of a portion thereof. The testimony shows that, after the marshal had taken possession of said stock of goods, and while they were in-his possession, and after he had received notice of • plaintiffs’ claim to part or all of the stock, they were destroyed by fire. In passing upon this case the United States circuit court of appeals, through Judge Thayer used the following language: “.In conclusion, it will not be out of place to say that the record shows that the controversy between the parties lies within a narrow compass, and that the trial should be carefully confined to the issues disclosed by the record. The plaintiffs rely for a recovery solely on the ground that certain goods were sold and delivered to them on November 30, 1889, for the sum of $1,868.24; then due to them from the vendor. They contend that the goods sold were selected, inventoried and set apart by those in the vendors’ store, and that the marshal had notice of these facts prior to the levy, but refused to recognize the transaction as a valid or consummated sale. The plaintiffs do not claim title to the goods in controversy-under or by virtue of any conveyance or mortgage, executed prior to November 30, 1889; and whether such prior mortgage or conveyance, if one was executed, was valid or otherwise, is an immaterial issue, so far as the case at bar is concerned. And the defendants, on the other hand, evidently rely for a defense upon the ground that, although a bill of sale, may have been executed at the time alleged, yet that there was no-selection of the goods intended to be sold, or separation of the same from the residue of the stock. They contend that they remain mixed with other goods of the plaintiffs of like kind and quality, and that the marshal made the levy in utter ignorance of the plaintiff’s rights under the alleged bill of sale. Whether the one or the other of-these contentions is well founded in fact is the question that should be submitted to a jury on a retrial of the case, and all extraneous issues should be excluded as far as possible.” Shoe Co. vs Needles, 15 C. C. A. 142, 67 Fed. 990. Appellants make nine assignments of error, which will be considered in the opinion.</p>

<p>1. Forcible' Entry and Detainer — Evidence—When Conflicting, Prevents Directed Verdict.</p> <p>In an action of forcible entry and detainer, where the evidence is conflicting upon material points, the jury must determine the weight to be given the evidence of each witness and a request for a peremptory instruction to find a verdict for plaintiS was properly refused.</p> <p>2. Verdict — Found on Conflicting Evidence, not Disturbed on Appeal.</p> <p>Where the evidence in an action of forcible entry and detainer is conflicting and the jury find, from all of the evidence, under proper instructions, that a defendant is entitled to possession of the premises, such verdict will not be disturbed by this court.</p> <p>3. Forcible Entry and Detainer — Instructions.</p> <p>In an action of forcible entry and detainer the plaintiff requested an instruction that if the jury believed the defendant entered the premises without consent of the plaintiff, then in possession of same, and afterward held possession by force, they should find for the plaintiff. This was refused and the court instructed the jury that the defendant had no right to enter by force and if he did so judgment must be for the plaintiff. Held, such refusal was no error as the same principle was embodied in the instruction given.</p> <p>4. Forcible Entry and Detainer- — Action for Tort — Actual Force Necessary.</p> <p>The action of forcible entry and detainer is one of tort and actual force must be shown in the original entry or subsequent possession-A peaceable, though unlawful, entry is not' sufficient.</p>

Hosea Townsend, Judge. Suit by William Biggs against J. H-. Colby. From an order sustaining a demurrer to the complaint, complainant appeals. Appellant and appellee both lived in Purcell, in the Southern District.

Joseph A. Gill, Judge. i;' Action by George W. Finley and others against Joseph Abner, defendant, and John Spicer, intervener. Judgment for defendant. Plaintiffs and intervener appeal.

<p>1. Appeal — Affidavits in Record hut not in Bill of Exceptions Stricken Out.</p> <p>In the trial below, affidavits were filed by plaintiff in response to a motion requiring her to give cost bond. These affidavits were embodied in record proper and not in Bill of Exceptions. A motion to strike them from the record must be sustained and the action of the court in overruling motion for cost bond considered without reference to such affidavits.</p> <p>2. Motion for Cost Bond — Verification—Proof Required — Dismissal of Action — Waiver.</p> <p>In an action wherein the complaint alleged the plaintiff to be a resident of Indian Territory, a motion was filed for a cost bond stating that since the commencement of the suit plaintiff is residing in Texas/ and is not a resident of Indian 'Territory. • This was sworn to by one of the attorneys for defendant. Held, that sueh"motion states only a conclusion, and this, though verified by affidavit, is not the proof the law requires, and the burden -on the defendant is not overcome in view of the statement in plaintiff's complaint. Held, also, that by failure to move to dismis the action for want of cost bond, the requirement of the statute as to cost.bond was waived.</p> <p>3. Demurrer — Refusal to Consider and Decide — Equivalent to Overruling</p> <p>The effect of the refusal of the court to hear and decide -the defendant’s demurrer is the same as if it was heard and overruled and no error is committed, if the demurrer should not have been sustained.</p> <p>4. Accident Insurance — Death—Notice and Proof.</p> <p>In an action to recover upon an insurance policy'covering indemnity for accident and death, containing in its provisions a requirement that immediate written notice must be given of accidents for which a claim is to be made and also that proof of death must be furnished within two months from time of death, the complaint alleged that death resulted in ninety days after the- accident and proofs of death were made to defendant company immediately after the death. Held, that the complaint was good as against demurrer.</p> <p>5. Accident Insurance — Notice—Waiver of.</p> <p>Notice of an accident to an insured was not given to the company until after death resulting from such accident, when proofs of death were furnished and claim made for payment. But the company had knowledge of the accident and made medical examination through their local physician, and his statement was used at the trial. An amended answer of defendant company contained no allegation of want of notice. Held, that if such notice were requisite, objection made, after withdrawing the pleadings for that purpose came too late and the action of defendant upon the knowledge it had and failure to refuse to pay for want of notice was a waiver of such notice.</p> <p>6. Accident Insurance — Cause of Death. — Instructions.</p> <p>In an action to recover upon an insurance policy which contained provisions that the company would only be liable if death resulted in ninety days from the accident or injuries received independently , of all other causes, and that same did not cover injuries fatal or otherwise resulting from any disease or bodily infirmity, the defense was that the 'death resulted from other causes than the accident alleged. Instructions reciting these provisions of the policy and requiring the jury to satisfy themselves before finding for plaintiff that the defendant was liable under the terms of the policy and that the burden of proof was upon the plaintiff, Held to fairly present the issues to the jury.</p>

<p>1. Appeal — Adding New Parties — Exceptions to, Preserved, by Motion to Strike Out their Pleadings.</p> <p>Where new parties are brought into an action by order of court without specific objection to such action, but motion is made to strike out the pleading filed by such new parties, and exception saved to the overruling of such motion, the question of the correctness of the court’s action in bringing in new parties is fully preserved from review by Appellate Court.</p> <p>2. Indian Lands — Unlawful Detainer — Indian Nations not Proper Parties.</p> <p>Act of Congress June 28, 1898, Section 2 (30 Stat. 495) provides that in the progress of anysuit in the U. S. Courts in Ind. Ter., it appears that the property of any tribe is affected, such tribe shall be made a party. Section 29 of said Act provides that where provisions of the Act and of the Atoka Agreement, incorporated therein, conflict, the terms of the Agreement shall prevail. The Atoka Agreement (Sec. 44 Curtis Bill) provides that the nations shall be made parties only when it appears that such tribes are interested in the subject matter of the controversy. Held, that in an action of unlawful detainer, which is only maintained by a landlord against a tenapt unlawfully holding over, the Nations have no such interest in the subject matter as entitles them to be made parties therein.</p> <p>.3. Indian Lands — Unlawful Detainer — Citizenship of Parties Immaterial.</p> <p>An action of unlawful detainer is founded upon a breach of contract and can only be maintained where the relation of landlord and tenant exists. In such cases, though involving right of possession of Indian lands, the citizenship of the parties is immaterial.</p>

Joseph A. Gill, Judge. Action to recover possession of land by John L. Miller and the Cherokee Nation against Henry Daniels and othérs. Judgment for plaintiffs. Defendants appeal. This action was instituted on December 27, 1899, by the plaintiffs (appellees here), against the defendants (appellants here) to recover the possession of a certain farm or improvement described.

Joseph A. Gill, Judge. Ejectment by P. Donohoo against I. J. Howard and others, in which the Cherokee Nation intervenes. Judgment dismissing the suit and striking out the plea of intervention. Plaintiff and intervener appeal.

<p>1. Appeal — Record—Must Contain all Evidence or Errors Relating Thereto not Considered.</p> <p>Where, on appeal the errors assigned' relate to the admission or exclusion of evidence, same will not be considered unless the record affirmatively shows that all evidence introduced at the trial is included therein.</p> <p>2. Appeal — Record—Sufficiency of Certificate.</p> <p>A statement or-certificate contained in a record, on appeal, which recites “This was all of the testimony introduced on the trial of this cause” does not sufficiently show that all evidence is contained in the record.</p> <p>3. Appeal — Record—Instructions—Motion for New Trial.</p> <p>Where, on appeal, errors assigned relate to the giving or refusal of instructions, same will not be considered where the record does not purport to contain all of the instructions given, and where no motion for new trial is made a part of the record by Bill of Exceptions;</p> <p>4. Appeal — Record—Right to Open and Close.</p> <p>An assignment of error based upon the refusal to allow the defendant to open and close will not be considered where no exception to such ruling was taken and preserved. And where, in an action on a note the defense denies the execution of the note and pleads other affirmative defenses, defendant is not entitled to open and close the argument, notwithstanding the court rules that burden of proof ,.is upon defendant to establish his affirmative defenses.</p> <p>-A Appeal — Record—Assignment of Error not Considered. where Ruling of Court not Shown.</p> <p>This court will not consider an assignment of error based on the overruling of a motion to quash a writ of garnishment, where the record does not disclose any ruling of the court thereon.</p> <p>6. Appeal — Record—Motion for new Trial — Bill of Exceptions.</p> <p>An assignment of error in overruling a motion for a new trial, when no motion for new trial is made a part of the record by bill of exceptions, is without merit.</p>

<p>1. Action — Dismissal of — Defective Affidavit — Unlawful Detainer.</p> <p>Sec. 5102 Mansf. Dig. (Ind. T. Stat. Sec. 3307) specifies four grounds upon which an action may be dismissed by the court. In all other cases, except upon dismissal by plaintiff, there must be a decision upon the merits. An action of unlawful detainer may not be dismissed by the court for want of a proper affidavit, this not being one of the grounds specified in the statute.</p> <p>2. Unlawful Detainei — Defective Affidavit — Procedure in Case of.</p> <p>In actions of unlawful detainer wherein the affidavit does not wholly comply with Sec. 3351 Mansf. Dig. (Sec. 2285 Ind. T. Stat.) leave to amend and cure the defect should be given or, if the complaint supported by affidavit is held good on demurrer, then a trial on the merits must be had under Sec. 5102 Mansf. Dig. (3307 Ind. T. Stat.) prohibiting the dismissal of an action for want of a proper affidavit, and under Sec. 5083 Mansf. Dig. (3288 Ind. T. Stat.) providing for the disregard of defects not affecting substantial rights of parties.</p>

Joseph A. Gill, Judge. Action by the Cherokee Nation against G. C. Brought and others. Judgement for plaintiff. Defendants appeal. This is an action of ejectment brought originally by one Andrew McAffrey against the appellants.

Hosea Townsend, Judge. Action by Hughes Bros. Manufacturing Company against' W. H. Reagan, defendant, and J. R. Lawrence, interpleader. Judgment for the interpleader. Plaintiff appeals.

Gill, C. J., dissenting, Appeal from the United States Court for the Northern District. John R. Thomas, Judge. „ ■ Petition for habeas corpus by John Dickson against the United States marshal for the- Northern District of the Indian Territory. From an order denying the writ, petitioner appeals. On November 4, 1899, a requisition was filed from the governor of Arkansas,' which is as follows: “State of Arkansas, Executive Department.

<p>1. Bankruf toy — Claims—Limitations—W aiver.</p> <p>Where a bankrupt includes in his schedule of creditors the names of certain parties, the defense of the statute of limitations as to the claims of sujh creditors is waived, and a motion to expunge these claims because barred by the statute, filed after the hearing before the referee, is in the nature of a motion for a new trial raising the question of the bar for the first time, and consequently it cannot be entertained.</p>

Hosea Townsend, Judge. Proceedings by Mays & Williams and another against Wade Hampton and others. From an adverse order, the latter parties appeal. The proceedings in this case were commenced by the bringing of a suit in the United States Court for the Southern District of the Indian Territory (Judge Townsend presiding) by the appellees Mays & Williams against the appellant Wade Hampton upon a promissory note of $1125, the purchase price of ah improvement on Indian lands.

Original petition for a mandamus by John C. Glenn-Tucker and others againstWilliam H. H. Clayton, as judge of the United States court for the Central district of the Indian Territory, to compel respondent to hear the cause of petitioners on their application for' enrollment as citizens of the Choctaw Nation. The plaintiffs made application to the Dawes commission for enrollment as Citizens of the Choctaw Nation.

Hosea Townsend, Judge. Application by A. B. Roff and others to be enrolled as members of the Chickasaw Nation. From an order refusing to retax costs, the Chickasaw Nation appeals. A. B. Roff, et al., applied to the Dawes Commission in 1896 to be enrolled as members of the ChiclcasawTribe of Indians.

Hosica Toavnhend, Judge. Application by Dorset Carter for writ of habeas corpus against J. W. Ellis, as captain United States Indian police. From an order denying the application, applicant appeals.

Hósea Townsend, Judge. E. C. Baker was indicted for returning to the Indian Territory after being remoAred therefrom, and from a judgment sustaining a demurrer to the indictment the United States appeals. This is a writ of error prosecuted by the United States to this court from the Southern District of Indian Territory. Appellee was indicted in said court, the indictment being as folloAvs: “Indictment for violation of section 2148.

Hosea Townsend, Judge. B. D. Starr was convicted of murder, and appeals. Defendant, appellant here, was convicted of murder without capital punishment, in the United States court for the Southern District of the Indian Territory, on the 10th day of April 1902.

District. Hosea Townsend, Judge. Bill by A. A. Robinson and another against U. S. Joines. Decree for plaintiffs. Defendant appeals. Action for injunction, begun in the United States Court for the Southern District of Indian Territory at Ryan. Complaint filed by A. A. Robinson and Lee Crenshaw, as plaintiffs, against Sherman Joines, defendant. The complaint in equity was filed February 25, 1902. To this complaint the defendant demurred, and at the same time filed an answer.

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>John Langford aiid Dave Langford were convicted of larceny. They appeal.</p>

On rehearing. The plaintiff below (appellee here) filed her complaint in the Northern District against the defendant below (appellant here) December 6, 1898, and alleged that Moses Nivens died in the year 1871; that the defendant is his widow, and that Emma Nivens and Jeff Nivens were the children of said Moses Nivens' and the defendant; that the plaintiff is the widow of Jeff Nivens; that Emma Nivens died in the year 1889, without issue, and that Jeff Nivens died in the…

John R. Thomas, Judge. Pink Bruner , was convicted of murder. He appeals. Lyman Mahardy, Pink Bruner and Ben Cage, as defendants, were jointly indicted, charged with.the murder of one G. H. Myers on the 5th day of May, 1900, in the Southern District of the Indian Territory, by shooting him with a pistol. The first count charges that Lyman Mahardy held the pistol which caused the death, and the second count charges that Ben Cage held the pistol which killed Myers.

Hosea Townsend, Judge. Action by George W. Works against W. N. Williams to recover possession of certain real property. Judgment for plaintiff. Defendant appeals. On January 23, 1901, the appellee, George W. Works, filed a paper in court entitled “Amended Complaint in Equity,” as follows: “Now comes the plaintiff and files this, his amended complaint, and, amending, says: That he is the owner and entitled to the immediate possession of the property hereinafter described.

Hoska Townsend, Judge. Action of unlawful detainer by J. H. Henderson against W. C. Rowe and others. Judgment for plaintiff. Defendants appeal.

Hosea Townsend, Judge. Action by Effie F. Gilliland against H. G. Turner and another. Judgment for plaintiff. Defendants appeal. This is an action of unlawful detainer. The complaint alleges that the plaintiff is a citizen of the Choctaw Nation by blood, and has been enrolled by the Commission to the Five Civilized Tribes. For her cause of action she avers that she is the owner of and entitled to the possession of the land sued for, which is situated in the Chickasaw Nation.

C. W. Raymond-, Judge. Action by J. A. Lawrence against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff. Defendant appeals. This is an action brought by appellee (plaintiff below) against the defendant railway company to recover damages for the negligent burning of 10 bales of cotton, caused by sparks i n itted by one of its engines. The cotton had been placed by the plaintiff for shipment on defendant's platform at Ft. Gibson, Cherokee Nation.

<p>1. Injunction — Premature Appeal — Dismissal.</p> <p>In a suit for an injunction restraining defendants from interfering with the possession of certain lands by plaintiff a master’s report was confirmed by the court, but no judgment was pronounced thereupon. Held, that this [order was merely an interlocutory finding and an appeal therefrom is premature and subject to dismissal.</p> <p>2. Injunction — Not Allowed to Settle Disputed Title.</p> <p>A court of equity will only enjoin interference with possession of premises when defendants are trespassers; and will not grant such injunction where defendants are in possession under claim of title and the plaintiff’s title is in dispute.</p>

Hosea Townsend, Judge. Action by Virginia C. James and others against G. M. D. Holford. Judgment for plaintiffs. Defendant appeals.

Court for the Southern District. Hosea Townsend, Judge. Rufus Binyon, convicted o’f murder. Appeals. Oil December 20, 1900, an indictment, was returned, against the appellant, charging him with the murder of one Mary Hawthorn, a child eight years of age.

Joseph A. Gill, Judge. Action by Mrs. Peter Clabber against Peter Ricknor. Judgment for plaintiff. Defendant appeals. This is an action of ejectment. The complaint is as follows: “Comes now the said plaintiff, and for her cause of action against the defendant alleges: That she, the said plaintiff, is a member of the Quapaw Tribe of Indians, and is entitled to own and hold real estate in the Quapaw reservation, Indian Territory.

<p>Appeal from the United States Court for the Northern District.</p> <p>James A. Gill, Judge.</p> <p>Action by R. B. Croan against William Greathouse. Judgment for plaintiff. Defendant appeals.</p> <p>This is an action by the appellee (plaintiff below) against the*"appellant (defendant below) to recover damages for injuries • received, as alleged in the complaint, by the “careless, reckless,. and negligent” pointing of a pistol at the body of plaintiff, and the “careless, reckless, and negligent” discharge of the same, inflicting certain serious wounds -upon his body. . The complaint is as follows: “That on or about the 29th day of December, 1899, near the town of Nowata, the said defendant • did then and there carelessly, recklessly, and negligently, point a.pistol or revolver at the ■ head and body of this plaintiff-which said revolver was then and there held in the hand of the defendant, and was then and there loaded with powder and lead, and that the defendant did then and there, with said pistol or revolver so held by the said defendant within one foot of the head and body of the plaintiff, negligently, carelessly, and recklessly discharge the said pistol or revolver at the head and body of this plaintiff, * * * did strike and enter the head of plaintiff. * *• * That by reason of the wounds thus carelessly, recklessly, and negligently, inflicted upon this plaintiff by the said defendant, as aforesaid, plaintiff permanently lost the use of his right eye, and a large quantity of brains. * * *”</p> <p>To this complaint the defendant filed the following amended answer: “Defendant denies that on or about the 29th day of December, 1899, he carelessly, recklessly, and negligently pointed a revolver at the head of the plaintiff, and that he then and there negligently, recklessly, and carelessly, discharged said revolver, thereby inflicting upon the said plaintiffs 'the injuries set forth in his complaint. * * * The above-named defendant, further answering the complaint of the said plaintiff, alleges that on or about the date mentioned in plaintiff's complaint the said plaintiff made a deadly assault upon this defendant with the stock of a large whip, at the same time threatening to kill him; that after the said plaintiff had struck at said defendant with said whip, at the same time, threatening to kill him and beat him with said whip, and when he was about to again strike him with said whip, the said defendant, in order to defend himself against such deadly assault, drew from his pocket his pistol, and struck the said plaintiff upon the head therewith; that when he, the said defendant, struck the said plaintiff with the pistol, the same was discharged, and inflicted upon the said plaintiff a wound; * * * that said defendant did not discharge said pistol, nor did he expect or intend that the same be discharged, but said defendant intended to repel said deadly assault by striking the said plaintiff as aforesaid, if , possible so to do. The-defendant, further answering, states that it is not true that he recklessly, carelessly, or negligently inflicted any injury whatever upon the plaintiff, but alleges the truth to be that in defending himself against the deadly assault of the said plaintiff the said defendant inflicted certain injuries upon the plaintiff/' etc.</p> <p>Upon these pleadings the case was tried, resulting in a verdict for $5,000 for plaintiff. A motion for' a new trial was filed, overruled, and the case regularly appealed to this court.</p>

Hosea Townsend, Judge. Ejectment by S. A. Clowdus and others against M. C. Reynolds and others. Judgment for plaintiffs. Defendants appeal. This is an action of ejectment brought by S. A. Clowdus and others against M. C. Reynolds and others.

Action by the United States against A. Simon and others. Judgment for plaintiff. Defendants appeal.

Hósea Townsend, Judge; , Action by Little & Smith against the Atchison, Topeka &' Sante Fe Railway Companjr and others. From an order quashing an execution on a commissioner’s judgment, plaintiffs appeal.

<p>Appeal from the United States Court for the' Central District.</p> <p>W. H. H. Clayton, Judge.</p> <p>Action by Harvey Phelps against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff. Defendant appeals.</p> <p>This case has heretofore been decided in this court, sustaining the action of the court below in dismissing the appeal, following the case of Luce vs Garrett 4 Ind. Ter. Rep. (64 S. W. 613), and we are now asked to rehear the case, and are of opinion that the case ought to be reheard and redecided.</p> <p>Statement of Case.</p> <p>On May 9, Í901, the transcript of the mayor of the town of Caddo, Ind. Ter. was filed in this case, which transcript contained the complaint of plaintiff and answer of the defendant, summons, subpoena for witnesses, venire of the jury,, verdict of the jury, judgments and proceedings before said mayor, and defendants’ affidavit and bond for appeal. The complaint alleged that on March 17, 1901, the defendant, or defendant’s employes, negligently and carelessly run over and killed one red heifer, the property of plaintiff, of the value of $18. Said heifer was negligently killed about one-half mile north of the station of the town of Caddo, and plaintiff asks judgment for $18 and costs. The answer denies all the allegations of the complaint, and says: “That-, if said animal of the plaintiff was killed, it was not through any negligence or carelessness on the part of this defendant, or any of its agents, servants, or employes, but that the killing was solely due to the carelessness and negligence of the said plaintiff.” The verdict in the transcript is as follows: “We, the jury impaneled and sworn in the above-styled case, find the issues in favor of the plaintiff, and assess his damages at $15.” Upon which verdict the said mayor rendered judgment against defendant, and defendant appealed to the district court of the'Central District. On September 11, 1901, in the district court, plaintiff moved to dismiss the said appeal as follows: “Motion to Dismiss. Comes now the plaintiff herein, Harvey Phelps, and moves the court to dismiss the appeal of the defendant, the Missouri, Kansas & Texas Railway Company, for the reason that the above-styled court has no jurisdiction of- the said appeal, the amount in controversy and the judgment therein being the amount of only $15.” On September 23, 1901, said motion to dismiss was sustained, from which decision of the court appeal was allowed and taken to this court.</p>

Hosea Townsend, Judge. - Certiorari by C. E. Franklin against W. °A. Bottoms and William Pfeiffer. Writ denied. Petitioner appeals. On October 17, 1899, appellee Bottoms (plaintiff below) filed his complaint against appellant, Franklin (defendant below), before appellee Pfeiffer, United States commissioner at Wynnewood.

Hosba Townsend, Judge. Action by D. A. Cobb against Joe Perry. Judgment foNplaintiff. Defendant appeals. The appellant, Perry, defendant below, was the owner of'a herd of cattle, and kept them in his pasture, which adjoined a farm of one Williams, both Perry and Williams being citizens ofjtheXChickasaw Nation. The places of Perry and Williams’ werejseparated by a division fence, which, by agreement between them, Williams undertook to keep in repair.

Wm. M. Springer, Judge. Action by Thomas W. Truskett against F. P. Bronaugh and others, and William S. Edwards against F. P. Bronaugh and others. Cases consolidated at the trial. Judgment for defendants in each ease. Plaintiffs appeal. These two cases, by agreement, were consolidated at the trial, and are brought up on one record. The plaintiffs in the court below are the appellants here.

<p>Appeal from the United States. Court for the Northern District.</p> <p>Wm. M. Springer, Judge.</p> <p>Suit by James C. Kerby and' another against William P. McClellan and another to subject certain property to the payment of a judgment against the defendants. Judgment approving a sale made by a receiver. Defendants appeal.</p> <p>After extended litigation, on May 25, 1895, mandate •of the United States Court of Appeals in the case of Pyeatt & Kerby vs William P. McClellan et al., 66 Fed. 843, 14 C. C. A. 140, was ordered spread upon the records of the United States* court in and for the Northern District, in favor of Pyeatt & Kerby and against William P. McClellan and Rachel McClellan, his wife, and directing and ordering the lower court to enter a decree not.inconsistent with the views expressed in the opinion of the former court; and in pursuance of said mandate, on July 20, 1895, the following order was made and entered of record in said court of the Northern District of Indian Territory:</p> <p>" “On this day, this cause coming onto be heard, and it appearing to the court that the mandate of the United States Circuit Court of Appeals for the 8th Circuit in this cause was filed and spread upon its record upon a former day of the present term thereof, from which mandate in said behalf it appears that the court has ordered and adjudged a reversal of the decree heretofore rendered in the above-entitled cause, and a dismissal of the bill herein, so far as it relates to the McClellan, place, and also for a decree in favor of Rachel McClellan for the possession of that place, and that all rents, issues, and profits of it that have been obtained by the receiver in this suit, with lawful interest thereon, be returned to the said Rachel McClellan which said McClellan place is more particularly described in said decree as follows: ‘One farm known as the Bill McClellan place, consisting of about six or seven hundred acres, situated about eight miles almost due north of Claremore, a station on the Kansas and Arkansas Valley Railway, and on the west and immediately along side of the Frisco Railroad about one-half mile from Sequoyah switch on said Frisco Railroad, Coo-wee-scoo-wee District of the Cherokee Nation and on which farm amongst other improvements is the residence occupied by the said Wm. P. McClellan and wife continuously ever since 1879, and up to the time and after the recovery of the judgment aforesaid, and one smokehouse, one large barn, and other improvements of large value, and on the same tract are situate three other tenement or farm houses, ,with outhouses and other improvements of great value, more particularly described in the complaint, all of which farm is under fence and most of it in cultivation’ — it is therefore considered, ordered, and adjudged that the bill of complaint herein be, and the same is hereby, dismissed so far as it relates to the said McClellan place, hereinbefore described.</p> <p>“And it appearing to the court from the report of the receiver herein, which was duly filed in this court on June 4, 1895, and that he has in his hands of the rents and profits of said place the sum of $663.18 in cash, and also corn on hand received as part of the rent, taken for and estimated to be worth $120, which corn is now penned on said McClellan home place as hereinbefore described, and also that he has on hand $550 in promissory notes, executed to him for rents on said place, all of which are held subject to the order of this court, it is therefore considered, ordered, and adjudged that the said receiver James A. Scott, turn over to the said Rachel McClellan, or her agent or attorney of record, the said $663.18, and also the corn aforesaid, estimated to be worth the sum of $120, and also the $550 in promissory notes aforesaid, and that he take receipts for said money, com and promissory notes, and file the same with the clerk of this court, upon the filing of which the clerk will enter a satisfaction on the record of the judgment to that extent.</p> <p>“And it further appearing from the report of said receiver that the said Rachel McClellan is entitled to recover interest on the money collected aforesaid, amounting in the aggregate to the sum of $47.38, it is therefore considered, ordered, and adjudged that the said Rachel McClellan have and recover of and from said Henry C. Pyeatt and James C. Kerby, the plaintiffs herein, the sum of $47.38, interest as aforesaid — to which rulings of the court the plaintiffs at the time excepted.</p> <p>'And it further appearing from the opinion and mandate aforesaid that the improvement known as the Prather place, and more particularly described in the original decree heretofore rendered herein as follows: 'One improvement known as the Dick Prather farm, consisting of about eight hundred acres, situate on the west side of a bend in the Verdigris river, all bottom land, and situate about'five miles due east of Talala station a station on the Kansas & Arkansas Valley Railway, in the Coo-wee-seoo-wee District of the Cherokee Nation, on which was situate, amongst other improvements, a house, barn, well, and orchard and other improvements, and at the south end another house, stable, and other improvements, all of which said farm is under rail and wire fence, and in good state of cultivation, and of good value, and is more particularly described in plaintiff’s complaint — was purchased with cattle which the said Henry C. Pyeatt and James C. Kerby had sold to the said Wm. P. McClellan and upon which they held a mortgage at the time said cattle were traded for said improvements to secure the very debt now evidenced by judgment in favor of said Henry C. Pyeatt and Jas. C. Kerby, and on which the bill of complaint in this ease is based, and that the said Wm. P. McClellan held said ’place at the time he conveyed the same to the said Rachel McClellan by deed executed on the 18th day of November, 1889, as the trusteeof the said cattle for said improvements without the consent of his said cestuis que trusts, and that said improvements stood charged with the same trusts as did the cattle themselves, and that said transfer by the said Wm. P. McClellan to the said Rachel McClellan was a conveyance of trust pooperty by the trustee without consideration and said conveyance left the improvements in her hand charged with-the same trust to which they were subjected while in the possession of her, husband, it is therefore considered, ordered, and adjudged that the deed executed by the said Wm. P. McClellan to the said Rachel McClellan bearing date November 18, 1889, in so far as the same purported to'convey improvements aforesaid, known as the Prather place, to the said Rachel McClellan, be, and the same is hereby, canceled and held for n'aught.</p> <p>“And it is further declared and decreed that the plaintiffs have the right to be paid the principal debt due them as set forth in the original complaint and the decree heretofore entered herein, with interest up to the time of this decree according to the terms hereof, and that the same ought to be and is hereby-decreed to be a charge on the improvements heretofore described as the Prather place.</p> <p>“And it appearing from the master’s said report herein that in addition to the' sum of $425.18 paid to Jno. H. Rogers, attorney of record for the said plaintiffs on December 29, 1893, and the sum of $170 paid to the said John H. Rogers on May 17, 1894, that he now has on hand in -rents derived' from said place the sum of $218.82, and also a note on account of rent for the current year for $620, all held subject to the order of this court, and the court being well and sufficiently advised, it is considered, ordered, and adjudged that the said report be, and the same is hereby, in all things confirmed and approved.</p> <p>“And it further appearing that the said improvement known as the Prather farm, under the opinion and mandate of the United States Circuit Court of Appeals for the 8th Circuit, still remains to be sold, and that this court by the opinion and mandate of said court is ordered to enter- a decree directing the sale of all of the improvements known as the Prather place to pay the debt to secure which the said cattle were mortgaged, it is therefore- considered, ordered, and adjudged that the said receiver, James A. Scott, receiver herein, now having in charge said place under the former order of this court, is hereby ordered, adjudged and directed to sell the said improvement known as the Prather farm, and hereinbefore more particularly described, at public auction, to the highest bidder, on a credit of 3 months, at the town of Claremore,-and between the hours of 9 o'clock a. m. and 3 o'clock p. m., taking bond and approved security for the purchase money, and retaining a lien on the premises therefor until the same is paid; that before selling the same he cause the same to be advertised in some newspaper published in the Cherokee Nation for three successive weeks, and by written or printed posters, in his discretion, stating therein the time, place, and- terms upon which said property is to be sold; and that he also proceed to collect the rents for the current year on said Prather place, and that he immediately thereafter report all his acts and doings in the premises to this court-for its confirmation and approval.</p> <p>“And it further appearing to the court from the report herein that the said James A. Scott has expended as said1 receiver in actual expenses the sum of $77.55, and that he has received no compensation whatever for his services as such receiver, it is therefore considered, ordered, and adjudged that he reimburse himself out of money now in his hands derived from the rent of the Prather farm in the sum of $77.55-, and that he be allowed the sum of $400 for his commission as receiver, said $400 to cover all his services as such receiver, including the advertisement and sale of the Prather farm, and the collection of rents on said place, and to be paid out of any moneys now in his hands, or which may hereafter come into his hands, from the rents or profits of the Prather farm.</p> <p>“It is further considered, ordered, and adjudged that the said plaintiffs, Henry C. Pyeatt and James C. Kerby pay their own cost in this court, and that defendants W. P. and Rachel McClellan pay their own cost in this court and in this behalf laid out and expended, and for which execution may issue against the respective parties if same be not paid in 20 days.</p> <p>“It is further considered,'ordered, and adjudged that the said Wm. P. McClellan and Rachel his wife, in conformity with the mandate of the United States Circuit Court of Appeals for the Eighth Circuit, have and recover of and from Henry C. Pyeatt and James C.;, Kerby the sum of $422.25, the same being the cost recovered by them on appeal of this case in the United States Circuit Court of Appeals for the Eighth Circuit.</p> <p>“To so much of the decree as provides for the subjection of the Prather place to the payment of anything more than the value of the cattle and interest for which the place was exchanged, and costs, the defendants except.</p> <p>“And it further appearing to the court, that a decree in this case was entered herein at the present term of this court, and that the same is crude and insufficient, and does not carry out the judgment of the court as then rendered, it is therefore considered, ordered, and adjudged that the said decree on record book 9, page 45, of date June 5, 1895, be, and the same is hereby vacated and held for naught; and this decree having been rendered on the said 7th day of June, 1895, and not having been entered of record as of that date, the same is entered now for then.</p> <p>“And it further appearing to the court that under the decree heretofore entered at the present'term of this court, that the said receiver has turned over to the said Rachel McClellan the papers in said McClellan place and the sum of $663.18, the amount in his hands, and also $550, heretofore referred'to in promissory notes, and also the corn cribs on the said McClellan place, estimated to be worth $120, it is therefore considered, ordered, and adjudged that the same be, and is hereby, entered as credit on said judgment.” • *</p> <p>Thereafter the plaintiffs in said caiise, by complaint filed in said court, charged that in pursuance of said decree and judgment the receiver advertised and offered the property for sale at public vendue, and sold the same for the sum of $1,000 to one E. B. Fraser, and that the defendants W. P. McClellan and his wife attended said sale, and sought to interfere therewith, and before said sale advised people that they would sue them in the Cherokee courts, and that whoever bought said premises would buy a lawsuit, and in other ways sought to pervent and injure said sale and deter bidders; that the price offered for said premises was wholly inadequate, and if it had been offered for sale free from the threats made by the said McClellans it would have brought at least from $2,500 to $3,000; that said McClellans had persisted in slandering the title of said property, and had violated the injunction order heretofore issued in the case while the same was in full force and effect, and in open defiance of the authority, jurisdiction and power of the court, asking that the sale be set aside, and that the said McClellans be further enjoined from in any way interfering with the further conduct of- the receiver in the management and sale of said premises, directing and enjoining them to abstain from further slandering the title to said property, or interfering with any person who might become purchaser of said property, and asking that they be required to pay into court for their contempt aforesaid the expenses of said sale and the expenses of said receiver, and that they be further punished; that said William P. McClellan and Rachel McClellan appeared in court in response to said petition on December 5, 1895, and gave their testimony relative to their disobedience of the injunction order, and the court, so far as the record shows, gave judgment upon the contempt matter as follows: “It is therefore considered, ordered, and adjudged that the said William P. McClellan and Rachel McClellan, his wife, as well as their attorneys, agents, and all other persons acting for, by, through, or under them, (refrain) from in any manner interfering with the further conduct of the receiver, herein, James A. Scott, in the management and sale of said Prather improvement. * * * And said defendants, their agents, attorneys, and all other persons claiming by, through, or under said defendants, by reason of any right or title which said defendants, or either of them, may have had at the commencement of the original suit herein, to wit, on the 14th day of September, A. D. 1891, or at the rendition of the original decree herein (all such rights having been adjudicated against them in this suit), are directed and enjoined to abstain from further slandering the title of said property, or from hereafter interfering with the title and possession' of any person who may hereafter become the purchaser of said property and improvements at any sale hereafter made thereof under the order and decree of this court, upon penalty of the law in such cases made and provided” — to all of which rulings, actions, judgments, and order of the court defendant at the time excepted.</p> <p>Thereafter, and on December 6, 1895, the following order was made and entered of record: “It is therefore considered, ordered, and adjudged that the report of said receiver be, and the same is now hereby, approved in all things, and the allowance claimed by him, to wit, $49.7.55, be, and the same are, allowed and appeared (approved), and that said receiver pay over to the plaintiffs or their attorney of record, John H. Rogers, $341.27 •now in his hands, and take his receipt therefor to be filed as a voucher herein” — to all of which rulings, actions, judgments, and orders of the court defendants at the time excepted.</p> <p>Thereafter, and on the same day, the receiver made a further report, and on the 28th day of December, 1896, the receiver made a report, and likewise on December 26, 1896, the court made an order approving certain reports of the' receiver and making certain allowances. Afterwards, and on December 28, 1896, the receiver reported the sale of the said Dick Prather .farm; and on the same day the court approved the deed made by said receiver, and thereafter appeal was taken to this court on the judgment of the court below.</p>