Volume 4 — Oklahoma Reports

Error from the District Court of Oklahoma County. An action in mandamus begun in the court below by D. H. Hull against J. W. Davis, to obtain possession of the books, records and paraphernalia of the office of justice of the peace in Oklahoma City, Oklahoma county. Judgment for Hull in the court below. Davis brings up the case. The opinion states the facts.

<p>Taxation — Personal Property of Indians Taxable, When. when an Indian tribe is located upon a reservation by the government of the United States under a treaty which does not provide that the reservation shall not be included within territorial or state jurisdiction, and the reservation is afterward ' included within an organized county and territory, and the tribe surrenders its interest in its reservation, and the several members of it take allotments, they become residents of the territory and county, and are persons in contemplation of law, and their personal property is subject to assessment and taxation by the proper authorities of the county in which they reside.</p>

<p>1. DAMAGES — Petition for, States Pacts Sufficient, When — Error. A petition for damages against a bank which alleges that Melone Bros, were engaged in the mercantile business in the City of Guthrie; that the National Bank of Guthrie was a corporation engaged in the general banking business; that Debteiguer was the president of the bank, and had active control and management ot its business; that the Johnston Fife Hat company was a corporation under the laws of Missouri, doing a general merchandise business; that Melone Bros, entered into a conspiracy with DeSteiguer, and through him with the bank, whereby Melone Bros, were to purchase of wholesale dealers goods to the amount of several thousand dollars on credit, and have them shipped to their Guthrie store; that the bank was to loan them $1,000. and take a cháttel mortgage on the stock for„a large sum; then sell the goods under the mortgage, and give the bank one-third the proceeds and the Melone Bros, two-thirds, and leave the creditors unpaid; that pursuant to this conspiracy they bought goods of plaintiff in the sum of $354, and goods from divers other firms to the value of over $10.000; that the bank loaned them $1,000. and took a chattel mortgage on the stock for $9,960, and before the bills for goods became due, foreclosed the mortgage and took possession of goods andsold same for $5,300, which the bank received; that the plaintiff sold the goods in good faith with no knowledge of the conspiracy to defraud. and which seeks to recover the value of the goods sold, states a good cause of action against the bank, and it was error to sustain a demurrer to such petition.</p> <p>2. Banking Corporations — Liable for Damages, When. It is a part of the duty of a banking corporation to loan money, and to collect such loans by sale of goods or other security, and where the president of the bank has the active control and management of the affairs of the bank, and in conducting its business enters into a conspiracy to defraud, and puts the same into execution whereby another is damaged, the bank will be liable in tort for the damages.</p> <p>S. Same — Liable for Acts of Officers. A managing officer of a bank is not a servant of the corporation, but is the head of the corporation, who does its thinking and through him it acts. And the bank is liable'for his torts committed in carrying on its business while acting in the scope of his powers, even though the tortious acts are not within the corporate powers of the bank.</p> <p>4, Same— Guilty of Fratid. A corporation may be guilty of a fraud. As a mere legal entity it can have no will, and cannot act at all, but in its relations to others, it is represented by its officers and agents, and their fraud in the course of the corporate dealings is, in law. the fraud of the corporation.</p> <p>5. SAME — Responsible for Wrongs. Corporations are responsible for the wrongs committed by them, under subsantially the same rules which govern the responsibility of natural persons.</p> <p>G. Same — Fruid. If an officer of a banking corporation, while exercising the authority conferred on him by the corporation, is guilty of falsehood and fraud, the corporation is liable for the consequence which may flow therefrom.</p> <p>7. Same — Notice of Fraud. Where the president of a banking corporation, who has the control and management of its business, enters into conspiracy to defraud third persons, and carries out such fraudulent design through his relations with the bank, such corporation has notice of such fraud, and if it accepts the benefits resulting therefrom it becomes a participant in the fraud and liable for the damage.</p>

<p> Error from the District Court of Logan County. </p>

<p> Error from the District Court of Logan County. </p>

<p> Error from the District Court of Logan County. </p>

<p>1. Exemption — Law Liberally Construed. Exemption laws being remedial, beneficial, and humane in their character, will be liberally construed And when it does not clearly appear whether certain property is or is not embraced within the exempting statute, the debtor will generally be allowed the benefit of the doubt, and suffered to retain the property.</p> <p>2. Same. Under a statute exempting “one yoke of work oxen” a fr ' year old steer, and a two year old bull, which have been yoked together a few times, and are being kept and intended by the owner for work oxen, are-within the intent and purpose of the statute, and are exempt.</p> <p>3. Same — Rule Apolted. Under a statute exempting “five milch cows” it appeared that the debtor owned two cows, which were giving milk, aud three two year old heifers with calf, which had never been milked, but were being raised, kept, and intended for family use as milch cows; held, that the heifers-are exempt.</p> <p>4. Same. A well boring apparatus and derrick, used for hire, and only occasionally used on the farm, is not exempt, under a statute exempting all implements of husbandry used on the homestead.</p>

<p>1. INDICTMENT — For Murder Embraces Crime of Manslatcghter. livery good' charge, in an indictment for murder, embraces the crime of manslaughter in some of its grades, and a verdict of a jury which finds “the defendant guilty as charged in the indictment of manslaughter in the first degree ” is. sufficiently certain to warrant a judgment of guilty of manslaughter in the first degree and does not find the defendant guilty of two offenses.</p> <p>2. Criminal Cavse — Judgment Takes Effect, When. A judgment in a criminal cause takes effect from the date of its entry, unless a different time is fixed by the court, and the person convicted can not complain of the failure-of the court to name a date at which his imprisonment shall commence.</p> <p>3. Trial — Proceedings Presumed to Be Regular Unless Otherwise Shown By the Record. All presumptions that may be rightfully entertained by an appellate court in a criminal cause are in favor of the regularity of the proceedings below; and one complaining of error in the trial court must bring enough of the record to the appellate court to make manifest such error. Where only a partial record is relied upon, every error complained of must be made to affirmatively appear. If the whole record is before the court, and from such record it does not affirmatively appear that essential requirements have been complied with in the trial court, then no presumptions can be entertained in favor of the regularity of such proceedings. But this rule does not prevail in the absence of the record.</p> <p>4. JUDGMENT — No Particular Form of Words Required. No particular language or form of words are necessary in rendering and recording a judgment of conviction in a criminal cause, and where the words “ commanded by the court ” are used instead of the usual form “ considered and adjudged by the court” it is sufficient on appeal.</p> <p>5. Verdict and Sentence— Time Waived — Presumption. The pr'sonermay waive the statutory time allowed between time of trial and judgment, and where sentence was pronounced the next day after verdict, and the record does not show objection was made or additional time asked, we will presume that the prisoner waived such time.</p> <p><5. Sentence. An appellate court can not say, as a matter of law, that a sentence to fifty years’ imprisonment for manslaughter in the first degree is cruel and unusual punishment, the statute fixing the punishment at any period not less than four years; there being nothing in the record showing the age or previous character of the prisoner, or the circumstances under which the crime was committed.</p> <p>7. Indictment — Recitals Not Required. There is no requirement that an indictment shall contain a recital of the drawing, selecting and empanneling of the grand jury which found such indictment. Such proceedings are had prior to the finding of an indictment, by the court, or its officers, and are proper to be recorded in the journals of the court. What reasons that may have once existed in olden times for the recital of these matters in an indictment, have long since ceased.</p> <p>8. New Trial — Motion Not Part of Record. This court will not review the action of the trial court in overruling a motion for new trial, unless the motion for new trial is made part of the record in some of the modes prescribed by statute. Attaching it to the papers filed in this court does not make it a part of the record.</p> <p>8. Alleged Errors — Practice Not Commended. The practice of presenting alleged errors for the consideration of this court, which have nothing in the record for a basis, is not to be commended, and should not be indulged in, as it consumes valuable time without profit.</p>

<p> Error from the District Court of Woodward County. </p>

Error from the District Court of Kingfisher County. The defendant was indicted by the grand jury of Kingfisher county, charged with the murder of one William Fowler in that county on the 12th day of July, 1894, and on trial before the jury he was convicted and his punishment fixed by the jury at imprisonment at hard labor for life. Judgment was rendered accordingly upon the verdict, from which judgment the defendant appeals.

Error from the District Court of Canadian County. A. J. Jennings, as county attorney, brought this action in mandamus in the district court of Canadian county on the 19th day of March, 1891, to compel the defendant,, who was probate judge of Canadian county, to make his annual settlement with the county and to turn over to the county all fees received by him as such officer for the year commencing on the 2d day of January, 1898.

<p>New Trial — Motion. The Statutes of Oklahoma of 1800 required that: “The-application for a new trial must be by motion upon written grounds, filed at the time of making the motion.” When no copy of motion for a new trial accompanies the proceedings or any other record to show that such motion in writing was presented, it will be presumed, for the purpose of upholding the judgment of the lower court, that all things have been done regularly there, and that no written motion, asprovided in the statute, was filed.</p>

<p> Appeal from Probate Court of Garfield County. </p>

<p> Error From, the District Court of Payne County. </p>

<p>1. Written- Instrument — Denial of Execution^ Proof Necessary. Where the plaintiff, in a replevin action, in his petition claims a special ownership in the goods and chattels sued for, by virtue of a certain chattel mortgage executed and delivered to the plaintiff by other parties than the defendant, and where the defendant plead to the petition by general denial, under oath, an issue was formed as to the execution of the chattel mortgage, and it was error for the court to permit a certified copy of the chattel mortgage to be introduced in evidence before the jury, without proof of its execution.</p> <p>■2. Case Evidence — Sufficiency of Statemetit. Although it is necessary that a case made, independently of the certificate of the trial judge, shall show that it contains all of the evidence adduced upon the trial of the cause in order that questions arising from a consideration of the evidence may be reviewed in the supreme court, it is not necessary that this should appear in that exact language, and although the word ‘•testimony” is an inaccurate word to use when referring to evidence, yet where the case made appears to give in detail the pleadings, motions and proceedings of the cause, and states that “the plaintiff proceeds to introduce his testimony and the same and all of said plaintiff’s testimony is as follows,” and then proceeds to give the plaintiff’s testimony, together with documentary evidence offered, and the plaintiff’s production of evidence closes with “Whereupon the plaintiff reads to the jury exhibit ‘A’and offers no further proof and rests its case,” and the record then shows that: “Thereupon the defendant rests its case without offering any proof,” and to such a case made is attached the certificate of the trial judge that the same is “a full, true and complete copy of all the pleadings in said cause of action, together with all orders by the court made therein, journal entries and all evidence taken therein on the part of the plaintiff and defendant or either of them.” Held* That it does sufficiently appear that the record presents all of the evidence produced upon the trial of the case.</p>

Error from the District Court of Canadian County. This was an action of attachment brought by Seigel, Welch & Clawson Live Stock Commission company against J. Q. Johnson, in which Gh W. Plaines intervened, claiming the attached property, and S. J. Johnson was made a party defendent after the intervention of Haines. Judgment was rendered for the plaintiff on the money demand, and for Haines as to the attached property. From which the plaintiff appeals.

In March, 1895, the defendant was indicted by the grand jury of Logan county, the indictment being in three counts, the first two charging grand larceny and the third charging an obtaining of the property under false pretenses. On the trial of the cause the jury, on March 15, 1895, returned a verdict of guilty of grand larceny against the defendant, and judgment was rendered upon the verdict sentencing the defendant to imprisonment in the penitentiary for four years.

<p> Error from the Probate Court of Kingfisher County. </p> <p>February 6, 1894, Richard Pappe obtained a judgment in the probate court of Kingfisher county against The American Fire Insurance company of Philadelphia, in the sum of $705. The defendant below brings the case here for reversal. The opinion states the facts.</p>

<p> appeal from the District Court of Kingfisher County. </p> <p>The defendant was, in September, 1894, indicted by the grand jury of Blaine county, Oklahoma, charged with the murder of one Edward H. Townsend on the 28th day of March, 1894. and on his application the venue of the cause was changed to Kingfisher county, where the defendant was convicted, and the punishtaent assessed by the jury and adjudged by the court at imprisonment at hard labor in the penitentiary for life.</p>

Error from Probate Court of Garfield County. January 30, 1894, A. E. Walling instituted an action of replevin in the probate court of Grarfield, then “ O ” county, against W. M. Irwin to recover certain personal property, and obtained judgment. To reverse the case Irwin appealed to this court. The opinion states the material facts.

<p>1. Motion- for a New Trial — Absence of. This court will not consider assignments of error which involve questions of the weight and sufficiency of evidence and matters occurring on the trial of the cause in the’ absence of a motion for a new trial filed in the court below.</p> <p>'2. COMPLAINT — Sufficiency of, in an Action to Recover Possession of Real Property. Where a complaint filed under the Code of 1890 sets out the interest of the plaintiff in real property, describes the premises and alleges that defendant unlawfully obtains and holds possession, and in addL.on thereto, sets forth fully all the facts necessary to entitle him to possession, held, sufficient upon which to base a judgment in favor of plaintiff for possession.</p> <p>'8. Prayer- — Sufficient. A prayer in a petition being a matter of form, the demand for relief may be amended.</p> <p>-4. Amendment®. Averments which might have been amended below, on motion, will in the supreme court be deemed to have been made.</p>

<p>1. Appeal — Limitation Thereon Void. The Organic Act gives the right of appeal to the supreme court of this Territory from a’l final decisions of the district courts, and that part of § 4437 of the statutes of 1893 which d nies the right of appeal in certain cases, where the amount or value in controversy, exclusive of costs, shall not exceed one hundred dollars, is void.</p> <p>2. Distraint for Rent Inapplicable The common law right to dis-train for rent is violative of the condition and wants of the people of this Territory, and is repugnant to the genius and spirit of our institutions, and is inapplicable and is not in force here.</p> <p>3. Lessee —Debtor—Right to Prefer Creditors. A lessee indebted for rent to his landlord is a debtor, and the landlord is a creditor, and the lessee has a right to secure by chattel mortgage of personal property situated on the premises, the debt of another of his creditors in preference to the landlord, and the landlord has no right to distrain for rent the property of the mortgagor so mortgaged.</p>

<p>1. ASSIGNMENT — Laws of Oklahoma — Construction. The voluntary assignment laws of Oklahoma have no extra territorial force or operation, and must be so construed as to embrace and operate upon deeds of assignment executed in Oklahoma and not elsewhere.</p> <p>2. Same — Have no Operation Outside State Where Made. Involuntary assignments which are made under foreign insolvent laws have no operation outside of the state under whose laws they are made; while a voluntary assignment is a personal common law right, possessed by every owner of property, unless prohibited by statute, and may operate in other states as well as in the state where it is executed.</p> <p>3. SAME — Though Upheld Against Non-Resident Attaching Creditors, Rule Not Invoked Against Resident Creditors. Voluntary assignments valid in the state or territory where made, will on the principle of comity be upheld by the courts of other states against non-resident attaching creditors, even though the effect of the assignment is contrary to the policy and laws of the state where it is sought to be enforced. But this rule cannot be invoked as against resident creditors.</p> <p>4. Same — Rule Applied. A voluntary assignment made by a partnership, residing and doing business in the Indian Territory, to a trustee residing in said Territory, which is valid under the laws relating to voluntary assignments in Indian Territory, and which conveys property situated in Oklahoma, although said assignment contains preferences which would render it void if made in Oklahoma, will, on the principle of comity, be upheld and enforced against an attaching creditor of such partnership, who resides in the state of Missouri</p> <p>5. Same — Deed Conveying Real Estate Sufficient as a Deed of Conveyance. A deed of assignment made and executed in the Indian Territory according to the laws of that Territory, and conveying real estate in Oklahoma, is sufficient as a deed of conveyance in this Territory if it conforms to all the statutory requirements of Oklahoma, as to its recitals, execution and acknowledgement, and has been duly filed for record in the office of register of deeds in the county where said land is situated.</p> <p>6. LAWS OF OKU YHO'.I Y — .V; Av'>lic:iiio>ito Assignments Made in Indian Territory• The assignment laws of Oklahoma only having been intended to embrace assignments made within the Territory, have no application to voluntary assignments made in the Indian Territory, and an assignee or trustee under an assignment made there, is not required to comply with Oklahoma Statutes, as to filing, schedule, giving bond, etc., in Oklahoma.</p> <p>7. REAL Estate— Conveyance By Deedof Assignment Made in Indian Territory Upheld in Oklahoma. A voluntary assignment for benefit of creditors, executed in conformity with the laws of Indian Territory, and valid there, which purports to convey real estate situated in Oklahoma, and which contains all the common law and statutory requirements to constitute a deed of conveyance in Oklahoma, will be sufficient to convey real estate in Oklahoma, although it contains provisions which would render it void as a deed of assignment in Oklahoma. And on the principle of comity, such conveyance will be upheld by the courts of Oklahoma as against a non-resident attaching creditor of the assignor. But said assignment would be held void as against a qreditor of such assignor residing in Oklahoma.</p>

<p>1. Limitations — Statute of. The statute of limitations adopted from Nebraska by provisions of the Organic Act, did not begin to run until May 2, 1890 at - which time the cause of action is first subjected to its operation.</p> <p>2. Action — Time for Beginning May be Extended. When the time in which an action may be brought has not expired, the legislature may extend the time.</p> <p>3. Same — Nebraska Rule. Under the Nebraska Statutes a cause of action was deemed commenced, as tothe defendant, at the date of the summons which was served on him.</p> <p>4. Basse — Indiana Rule. Under the Oklahoma Statutes of 1890, adopted from Indiana, a civil action was deemed commenced from the time of issuing summons.</p> <p>5. Same — Rule Applied. When the statute of limitations was two years, and the complaint was filed September 30, 1890; summons issued April 5, 1892, and served same day the action should be deemed commenced under the Statutes of 1890, and was not barred by the twTo year's limitation at the time the action was commenced.</p>

<p> Error from, the District Court of Canadian County. </p>

<p> Error from the District Court of Logan County. </p>

<p> Error from the District Court of Canadian County. </p>

<p> Error from the District Court of Logan County. </p> <p>Francis R. MeKennon filed bis suit in the district court on October 18, 1891, to foreclose a lien in the nature of a mortgage upon the one-half interest of Harry Colton and Jennie Colton in lot 26, block 60, in the city of Gruth'rie, and to quiet title to the lot as to August Frank and Thomas J. Taylor.</p> <p>It appears from four different contracts which were made between Francis R. McKennon, Thomas J. Taylor and Harry and Jennie Colton, on the 25th of October, 1889, April 21, May 21 and August 4, 1890, all of which related to the same subject matter, the subsequent ones of which were amendments of the former: That Harry Colton and Jennie Colton were on October 25, 1889, in possession of lot 26, block 60, in the city of Gruthrie, which was then a government townsite, and on which they had some improvements and had started to erect a building; That McKennon on that day loaned to the-Coltons the sum of two hundred and fifty dollars, to be repaid in six months, and took a quit-claim deed to the lot.</p> <p>By the terms of the contracts entered into McKennon. was to furnish the money to erect a building on the lot, and the Coltons were to have one-half interest in the lot and building, McKennon one fourth interest, and Taylor one-fourth interest. Taylor was to repay to McKennon one-fourth of the expense of the building, and the Coltons were to repay to McKennon one-half of the expense of the building above the sum of nine hundred and twenty-two dollars, and McKennon was to hold a first lien on the property for these amounts.</p> <p>It was also further agreed that if McKennon erected a building on the adjoining lot, in connection with the one erected on lot 26, he was to pay his proportionate share of the expense of the second story which the twenty-three feet of lot 26 would bear to the twenty-seven feet of the other lot, and to have that proportionate interest in the upper story of the combined buildings.</p> <p>The contracts also provided that the Coltons were to, and it appears they did, lease another building of McKen-non, known as the Noble hotel, and the agreements provided that the rentals due and to become due, and the two hundred and fifty dollar note should also be a lien on the Coltons1 interest in lot 26, and the building to be erected thereon.</p> <p>McKennon erected the building, which was completed and ready for occupancy in August, 1890. He always held possession of the building, and paid for the repairs and taxes, and received all the rentals therefor, occupying by himself and his agents as office rooms and an opera house, the upper story, and leasing out the lower portions.</p> <p>Before the suit was brought Taylor assigned all of his right, title, claim and interest in and to the property and under the contracts, to McKennon.</p> <p>The suit was to foreclose this lien, and McKennon claimed that the Coltons owed him, and which he claimed should be a lien on the building, one-half of the sum of thirty-four hundred and fifty dollars, which was the expense of the building on lot 26, less nine hundred and twenty-two dollars, the amount of this item being seventeen hundred and twenty-five dollars. Also that they owed fourteen hundred and eiglity-two dollars rent, and the two hundred and fifty dollar note, and for repairs- and taxes. McKennon admitted the receipt of a large amount of rents, of which sum he stated that seven hundred and twenty-four dollars should be credited upon the charges against the Coltons.</p> <p>August Frank, who claimed some interest in the property, -and Taylor were made parties to the suit to quiet "title. Taylor, by bis answer, disclaimed any interest, and August Frank set up a mortgage in the sum of eight hundred dollars, and the Ooltons admitted the contracts, but denied any indebtedness to McKennon, claiming that the building had not cost more than nine hundred and ■twenty-two dollars, and th.nt whatever the cost was McKennon had collected rents largely in excess of it, ■and also set up as set-offs a due-bill to Mrs. Colton in •the sum of one hundred and fifty dollars, two board bills ■due Harry Colton, one of Fred Elkin, ordered by McKennon, and the other of F. R. McKennon himself, the two amounting to eighty-five dollars; .and on the ■trial a set-off of forty-six and forty-nine one-hundredths dollars for lumber was set up. There are some other matters stated in the Ooltons’ answer, but not relied upon on the trial, and need not be stated. The Ooltons asked for an accounting, and the balance of their judgment for rents against McKennon.</p> <p>In January, 1893, McKennon died, and Samuel Murphy and Harry W. Pentecost were in February duly appointed, and duly qualified, as administrators, and they prosecuted the action.</p> <p>Upon the trial, judgment was rendered for the plaintiffs for the sum of one hundred and twenty-nine and forty-two one-hundredths dollars, which was declared to be a first lien on the property. And August Frank was given a second lien for his mortgage, there being no •controversy between him and the Coltons. From this judgment the plaintiffs appeal.</p>

<p> Error from the District Court of Logan County. </p>

Error from the District Court of Logan County STATEMENT OE FACTS. On December 5,1890, the defendants in error, as sureties for one Moses Whitbeck, executed a note to a bank at Fredonia, Kansas, for the sum of one thousand dollars, bearing interest at the rate of ten per cent, and payable ninety days after date.

<p>1* City Warrants — When Funded; Payable from Proceeds of the Sale of the Bonds. Treasury warrants issued by a city of the first class, and duly registered and not paid for want of funds; and subsequently included in an issue of funding bonds regularly issued by said city, are payable only from the funds realized from the sale of said bonds, and are not payable from the funds in the treasury applicable to current expenses.</p> <p>2. Bonds — Sale of — Trust Fund. When bonds are issued for the purpose of funding outstanding warrant indebtedness, the warrants embraced within such bonds, and for the payment of which said bonds are issued, become merged in said bonds, and the funds realized from the sale of such bonds is a special trust fund for the payment of the warrants so merged, and said fund can not be divertedto, or used for any other purpose. And until said bonds are sold, payment of such warrants is necessarily suspended.</p> <p>S. Municipal Corporations — Obligations of — Payment. One who deals with a municipal corporation, deals with it with reference to the laws regulating the manner in which such corporation shall pay its obligations, and when such person takes a warrant on the city treasury, he is bound to know the law authorizing such city to bond said warrant, and that payment of his warrant may be postponed thereby.</p> <p>•í. Warrants — Registration of — Laws Regtilating. The laws regulating the issue and registration of warrants, and for issue and sale of bonds for the purpose of realizing a fund out of which to pay such warrants are pari materia and must be construed with reference to each other.</p> <p>■6. Same. The statute prohibits the payment ot warrants not embraced in the funding bonds, from the funds realized from sale of bonds, anda violation of this statute is made a misdemeanor.</p>

<p>Probate COURT — Stipulation—Agreed Statement of Fact Binding — Rule ■ Applied. In a cause begun in the probate court, a written stipulation was agreed upon between the plaintiff and the defendants “ that the facts in the above entitled cause are as follows.” The cause was tried upon this stipulation, containing the agreed statement of facts, in the probate court, and finding had for the plaintiff. The case was appealed to the district court upon law and facts and tried by the court without a jury. The stipulation was objected to at the trial in the district court, and the objection sustained, and the stipulation and the agreed statement of facts contained in it, thereupon excluded from the testimony then produced in the case. Held, this was error. A written statement of facts, claiming to be the “facts in the above entitled cause,” properly entitled and signed by the parties to a cause, or their attorneys and filed in the cause for use as evidence, and thereafter so used at the hearing in the probate court, is a general and solemn admission of the facts, and binding upon the district court upon appeal, and conclusive in all further proceedings in the cause, unless some portions thereof are uncertain and of doubtful interpretation, in which case evidence ahunda will be received upon such points of doubtful and uncertain interpretation.</p>

<p>1. Attachment — False Statement of Debtor Will Not Sustain. Evidence of false statements by the debtor, in reference to his financial condition at the date of maturity of his debts, in order to secure an extension of time, to enable him to raise the money to pay his debts, will not sustain an attachment upon the grounds that the debtor is about to assign or dispose of his property with intent to hinder and delay creditors.</p> <p>2. Assignment— Offer to Make No Bvidenceof Fraud. An offer by the debtor to make a voluntary assignment for the benefit of all his creditors, is no evidence of fraud, and is no ground for attachment.</p> <p>3. Evidence Reviewed. Evidence reviewed and held insufficient to sustain the attachment proceedings, and further held that the court prooerly sustained the motion to discharge the attachment.</p>

<p> Appeal from the Probate Court of Kay County. </p>

<p> Error from the District Court of Logan County. </p>

Error from the District Court of Logan County. This was an action by McDermid to recover of Cummings a lot in the town of Mulhall, and from the judgment in plaintiff’s favor the defendant brings the case on petition in error to this court.

<p> Error from the District Court of Kingfisher County. </p>

<p>1. Official Bonds — Sttreties. The contracts of sureties on official bonds are slrioitsstmi juris.</p> <p>2. Statutory Bond. A statutory bond is one required to be given by some statute.</p> <p>8. City Clerk — Bond. The official bond of a city clerk is one required by statute, and is a statutory bond.</p> <p>4. Official Bond — Contract—Extent of. Sureties on an official bond contract with reference to the law requiring such bond, and regulating the duties of the principal, and these laws enter into and become a part of the contract as much as if incorporated into the bond itself. And the liability of sureties cannot be extended beyond the strict terms of their engagement, as contemplated at the time of giving bond.</p> <p>5. Same — Obligation Authorized by Statute Valid. An official bond which contains all the conditions required by statute, and also conditions in excess of those specified by statute, is valid, so far as it imposes obligations authorized by the statute; but the stipulations which are in excess ot it may be rejected as surplusage. But if the bond falls so far short of the statutory requirements as to be invalid as a statutory bond, it may be treated as a common law bond, unless prohibited by some statute, or is against public policy.</p> <p>6. SAME — Construction—General Rule. It is a general rule of construction applicable to official bonds, that general words cannot enlarge a liability fixed by particular words.</p> <p>V. City Clerk — Clerical Office. The office of city clerk is, in contemplation of law, a purely clerical office, and in absence of a statute, or ordinance of the city authorizing the clerk to collect or receive monies due such city, he has no authority to make such collections or receive any monies due the city. And the sureties on his official bond do not contract with reference to any such unau.horized acts, and are not liable for defaults occurring on account of such acts.</p> <p>8. City Treasurer — Law Creates — Duties. The law creates the office of city treasurer; defines its duties, and generally directs the payment of all monies belonging to the municipality to the treasurer, and it was never intended that the city clerk should be the custodian of any monies belonging to the city.</p> <p>9. City CLERK — Bond—Sttreties Ltable for What. The statute requires the clerk to give a bond for the faithful discharge of the duties of his office. This comprehends every duty required of him by law or ordinance. It embraces the faithful accounting for, and payment to the city treasurer of, all monies that shall cdme into his hands by virtue of his office. And his sureties can only be held liable for a failure to faithfully discharge such duties, although the terms of the bond may be more comprehensive.</p> <p>10. Official Bonds — Sureties Liable, for What Acts. Sureties on official bonds are liable only for acts of the principle done virtuti officii, anl not for acts done colore officii.</p> <p>11. Liquor License — Payment to City Clerk Únauthorized. The payment of money for liquor license to city clerk is not only unauthorized, but is in violation of the spirit of the law, which directs its payment to the city treasurer, and the sureties of the clerk are not liable on his official bond for such collections.</p> <p>12. Official Bond — Sureties Not Entitled to Credit. The sureties on the bond of the city clerk are not entitled to credit for the amount of balance due the clerk for salary, when it appears that the clerk is indebted in a latfee sum to the city on account of defaults for which his sureties are not liable. A part of his indebtedness being secured and a part unsecured, the crédito» has a right to have the credit applied to the unsecured portion.</p>

<p>1. Attachment — Chattel Mortgage — Seizure of Property. A chattel mortgage was given on December 15,1896, by W. & Son, upon a stock of goods, wares and merchandise, to V., of which V. took immediate possession. The plaintiffs forthwith sued W. & Son, on December 17, 1890, for an amount claimed to be due them, and seized the goods under a writ of attachment, alleging that (1) the defendants had sold and conveyed and otherwise disposed of ‘ their property, with the intent to cheat or defraud their creditors, or to hinder or delay them in the collection of their debts; and (2) that the defendants fraudulently contracted the debt and incurred the obligation for which the suit was brought. Plaintiff alleged that the claim was, according to the provisions of the contract, due on the 1st day of May, 1891. Upon the hearing of the case in April, 1891, the plaintiffs applied to the trial court for leave to amend their complaint and attachment affidavit by a showing that the goods sold by plaintiffs to defendants had beén disposed of by them, and that as a consequence, no suit for recovery of the specific goods sold could be effective. The application to amend the complaint was allowed; the application to amend the attachment affidavit was refused. Upon the hearing of the cause, the plaintiffs’ evidence having been introduced, the defendants demurred. The cause was tried under the Indiana Code of Civil Procedure • which went into force in this Territory, December, 1890; the rules of that Code and their interpretation and construction by the, supreme court of the state of Indiana, governing the trial and rendition of judgment provide, that the jury, if a jury has been empanneled, would be discharged by the court, and such evidence as had been offered tending to make out the case in behalf of the plaintiff would be considered. All the evidence tending to make out the case in behalf of the defendant would be excluded, and the sole question would be, is there any evidence legally tending or conducing to support the allegations of plaintiffs’ petition ? In this case the court sustained the demurrer to the petition. Ileing thus required to examine the evidence and to pass upon the fact as to whether there was any evidence of fraud legally, tending to support the allegations of plaintiffs’petition and affidavit in attachment, and finding that such evidence existed, it is our conclusion that the judgment should be reversed and that the finding and judgment should have been for the plaintiffs, for the amount claimed in their petition, and that the attachment should be sustained.</p> <p>2. Demurrer — Effect—Indiana Practice. For the argument upon the demurrer to the evidence, the rule which must guide the court under the Indiana Code of Civil Procedure is, that all of the adversary’s evidence must be admitted as true, and that all of the defendants’ testimony, so far as any has been adduced up to that point, shall be considered as withdrawn or false, and if any legal evidence whatever has been adduced tending to make out the plaintiffs’ case, the ruling will be in favor of the plaintiff, the demurrer being overruled and judgment will be rendered accordingly.</p> <p>3. Chattel Mortgage — Fraud. The chattel mortgage having been executed to V,, for himself and other mortgagees, under an authority to him to obtain for them such security as he could, and evidence having been produced to show fraud in the taking of the said chattel mortgage, which fraud was known to V., knowledge of the fraud will also be chargeable to the other chattel mortgagees, and the mortgage will be regarded as altogether fraudulent.</p> <p>4.If Fraudulent— Will be Set Aside. If a chattel mortgage is affected with fraud in part in the intention to fraudulently hinder, or delay creditors, it will be regarded as fraudulent altogether, and will be set aside in behalf of tire suing creditors,</p> <p>5.Unnecessary Security — Evidence of Fraud. If the mortgagee in a chattel mortgage be otherwise abundantly secured, the taking of additional security by the chattel mortgage, will, itself, be considered as evidence of fraud, for creditors will not be permitted to pile security on security unnecessarily to the detriment of other creditors.</p> <p>G. Credit--Extension — Frattd— Damages. If credit be extended and a debt incurred by means of fraudulent representations, the creditor is entitled to sue at once for payment for the amount due under the contract, whenever the fraud is discovered; notwithstanding 'the fact that the debt by its terms may not then be due, and the plaintiffs are not limited to an action for damages, if they see fit to sue prior to the maturity of the debt under the contract.</p> <p>7. Contract — Interpretation—Law Applied. If goods be shipped to this Territory purchased in New York, the laws of the state of New York will apply in the interpretation of the contract, and to all facts determining the maturity of the amount due.</p> <p>8. ATTACHMENT Affidavit — Amendment. An amendment asked for by the plaintiffs to the attachment affidavit, showing that the defendants had entirely disposed of property purchased of plaintiffs, and which had been purchased upon fraudulent representations, and that it was out of the power of the plaintiffs, therefore, to recover by replevin, was proper and should have been allowed.</p>

<p>Suit in equity brought to declare the holder of the legal title a trustee for the benefit of one who claims a superior title in equity. Decision of the lower court affirmed. The opinion states the facts.</p>

Error From the District Court of Kingfisher County. Andrew Mackay, Jr., brought his action in the district court of Kingfisher county on the 6th day of April, 1894, to recover the sum of six hundred and thirty-nine dollars and forty-six cents, alleged to be the balance due from the estate of Daniel Richardson, on his endorsement of a certain promissory note of John P. Jones, which note, with the endorsements thereon, is as follows: “One day after date, I promise to pay to…

Error from the District Court of Logan County. Thomas S. Jones filed his claim before the board of comity commissioners of Logan county to recover the sum of two hundred and fifty dollars, for services rendered by him for the county.

<p>1. Judgment — Findings of Fact — Rule. The rule is here adopted, as in other territories and states which have the same practice act, that a finding of fact by the court in a case which is tried to it, is equivalent to a verdict by a jury; and if there is testimony to support the material allegations of the petition this court will not disturb the finding and judgment, even though the appellate court might think, upon an examination of the evidence, that the findings of fact should have been otherwise, unless the findings of fact made by the trial court were manifestly erroneous.</p> <p>2. Real Estate — Conveyance—Fraud. When a plaintiff comes into this court seeking the cancellation of a conveyance to land which had been procured from him by fraud, and it appears in evidence that he has received something of value in the transaction, the restitution of the valuable thing will not be required before granting relief to the plaintiff, if it appears that the consideration was given for one thing, when, in fact, it appears that, by the fraudulent representations of the defendant, it was given for another thing.</p> <p>3. Witness — Leading Questions* When the purposes of justice plainly require it, the court may permit a party to put leading- questions to his own witness. The power is discretionary with the court to be regulated by the circumstances of each case.</p> <p>4. JUDGE- Special Assignment — Jurisdiction. In a civil case in which the judge who presides is not a judge who is regularly assigned to the judicial district, but is sitting under a special assignment, it will be presumed that he has been properly assigned and designated under the law and had jurisdiction to hear the cause, in the absence from the record of any copy of the order of his assignment to try the cause and to preside at the trial thereof.</p>

<p> Error from the District Court of Noble County. </p>

<p> Error from the District Court of Cleveland County. </p> <p>Action by Charles F. Beach, Jr., against Anne M. Beach. Prom a judgment for plaintiff, defendant appeals.</p>

William H. Hightower was engaged in the mercantile business, and executed a mortgage including his entire stock of goods to the First National bank of El Reno upon the 27th day of October, 1893, which mortgage was withheld from record.

<p> Error from the District Court of Logan County. </p>

<p> Original Proceeding in Hateas Corpus. </p>

<p> Original Proceeding in Habeas Corpus. </p>

Error from the District Court of Cleveland County. STATEMENT OE EAOTS.

Error From the District Court of Logan County. Prosecution by indictment against Richard Hansing in the district court of Logan county for the crime-of murder and convicted of the crime of manslaughter in the first degree, and sentenced to a term of six years in the penitentiary at Lansing, Kansas. The defendant below brings error. The facts are st,ated in the opinion.

Error from the District Court of Eoger Mills County. STATEMENT OE THE CASE. Plaintiff’s petition filed in the district court of Eoger Mills county September 5, 1893. Petition verified by J. W. McMurtry, under the seal of the district court, and avers that he is the duly elected, qualified and acting county attorney of said county, and a resident and taxpayer of said county, and that this action is brought in behalf of himself and all the taxpayers of said county.

Error from the District Court of Canadian County. Action brought against the First National bank of Okarche and Julius Loosen to recover possession of certain personal property and for damages for its detention. Judgment for the plaintiff. Defendants below bring error.

Error from the District Court of Canadian County. Action on a bond for damages by the city of El Reno against John R. Cullinane and his bondsmen for failure to construct an electric light plant and to maintain the same as required by the conditions of the said bond. Judgment for the defendants below. The facts are stated in the opinion. Plaintiff brings error.

<p>1. Attachment Affidavit — Amendment. An attachment affidavit containing merely a clerical error may be amended upon application.</p> <p>2. Wager. It is well settled that while a money wager remains in the hands of the stakeholder, either party may call it down and enforce his claim against the stakeholder by suit.</p>

<p>1. Right of Way — Grant tn Praesenti. An act of congress investing and empowering a railway company with the right of way of locating, constructing, owning, equipping, operating, using and maintaining a railway through and or er public land and providing that said company is authorized to take and use for all purposes of a railroad a right of way over said public land is a present absolute grant.</p> <p>2. Homestead Settlek — Subject to Rtght of Way. A homestead settlement subsequent to such an act is subject to the rights of the railway company although the line of the road was not definitely located until after the entry and the settler cannot recover for damages necesarily occasioned by the building of the railway under said act.</p>

<p> Error from the District Court of Canadian County. </p> <p>Injunction: The facts are stated in the opinion.</p>

Error from the District Court of Kay County. STATEMENT OE FACTS. White, the defendant in error, brought suit in the probate court of Kay county, on September 26, 1894, to recover judgment against Murray and Moore for three hundred and eighty dollars, and costs.

Error From the District Court of Payne County. STATEMENT OE EACTS.

<p> Error from the Probate Court of. Noble County. </p>

<p>1. Attachment — Death of Defendant in — Effect of. Where a court of general jurisdiction or a court which has acquired full jurisdiction in attachment proceedings over the cause and over the parties, renders a judgment* for or against a party, after the death of such party, the judgment is not, for that reason, void. If the personal representatives of the deceased party be not made parties to the action before judgment, the judgment will be irregular and erroneous, but until reversed dr Vacated by appropriate proceedings, it .will be valid. Such judgment is not void but only voidable.</p> <p>2. ATTACHMENT — Judgmeni in, after death of Defendant — Hnw Vacated. Sections 238, 580 and 588 of the Code of Civil Procedure, Statutes of 1893. provides the procedure for vacating a judgment irregularly rendered'in an at-tachmentsuit by reason of the death of the defendant after service and before judgment and where the personal representatives of the deceased had not been made parties to the action; and a petition for injunction by an administrator to restrain proceedings on such judgment, which does not set forth the. judgment, the grounds to vacate or modify it, and the defense to the action, does not state facts sufficient to constitute a cause of action and is demurrable.</p>

<p> Error from ihe District Court of Kingfisher County. </p>

The facts necessary to be stated herein are: That the defendants in error, W. J. Wood and E, T. Wood, are husband and wife, and were husband and wife at and during all the times hereinafter mentioned; that prior to the year 1890, the land covered by the mortgage in controversy herein, was a part of the public domain of the United States, and together with other lands was, in the year of 1889, settled upon as a townsite, under the town-site laws of the United States; that the…

<p> Appeal from the District Court of Oklahoma County. </p>

Error from the District Court of Logan County. Action brought by plaintiff in error, to recover the Sum of |134.51 alleged to be due him for work and labor. Judgment for defendant for costs, from which plaintiff appeals.

<p> Error from the District Court of Canadian County. </p>

<p>1. Railroad — Passenger Trains — Regtilation of. In the absence of statutory-provisions to the contrary, a railroad company has a right to adopt regulations providing that one or a part of its regular trains of passenger cars, running regularly upon its road, shall not stop at certain designated stations or places. And the duty is imposed upon one proposing to travel as a pas-en-ger on such road, to inform himself whether, under the regulations of the company, the train upon which he takes passage stops at the station or place to which he is going; and in the absence of such statutory provision, and such regulation having been made upon the road, a passenger who holds a ticket for a station at which that train does not stop, and who is unwilling to ride to a station at which the train does stop and to pay for such additional ride, may, in a proper manner, be removed from such train.</p> <p>2. Damages — Recovery. Under the facts shown in this case, in order to entitle the plaintiff to recover upon the ground that he was misled or misinformed by the agent of the company, orthatthe defendants, by said agent, had made a special arrangement with him by which be had a right to have the train which he entered and upon which he took passage, stop and let him off at a station which the regulations of the company provided that that train should not stop at, it must have been made clearly to appear that it was the intention of the plaintiff to take the through train from Galveston to Chicago, which" by the regulations of the company, did not stop at the station to which he liad bought his ticket, and where he intended to go; and that it was not his intention to wait until an hour later and take the local train, which, under the regulations of the company, did stop at Lawrie; and that at the time the agent of the company knew that such was the intention of the plaintiff in error, and that the agent consen ed to this arrangement and agreed that the regulations of the company should b e suspended in order to suit this proposition and purpose of the plaintiff in error, and it must also specifically and clearly appear that the plaintiff in error acted upon the agreement thus intentionally and knowingly made between the agent and himself, and that the plaintiff was at the time in the exercise of due care in making this agreement.</p> <p>3. Action — Pleading. Under our system of code pleading, the petition must state the facts upon which the plaintiff relies for his recovery, and he cannot seek to recover upon a petition alleging a cause of action sounding in tort, by proof of a breach of a contract, express or implied.</p>

Error from the District Court of Cleveland County. STATEMENT OE THE CASE.

<p> Error from the District Court of Logan County. </p>

<p>Case Made — Extension of Time by Stipulation of Parties, The parties to a record cannot, by stipulation, extend the time for making and serving a case made; , and where a case made is served after the time allowed by law has expired, but within the time stipulated for by the parties, but which stipulation is not approved by any order of the court or judge, the case made is void and if no questions are saved excepting by such case made, the judgment will be affirmed.</p>

Error from the District Court of Logan County. STATEMENT OF THE CASE. This was an action brought by defendants in error in the district court of Logan county on the 7th day of August, 1894, in conversion, against the plaintiff in error to recover the value of a stock of goods, on which the plaintiffs claimed a pledgee’s lien, with interest from the date of the alleged conversion, July 19, 1893.

<p>1. PRACTICE — Amendment—Error in Allowing — Not Reached by Demurrer. Where a court has granted leave to file an amended pleading, the question whether the amendments made could properly be made under the statute of amendments, is a question that cannot be reached by demurrer. The demurrer does not go to the right to make the amendment, but to its sufficiency when made.</p> <p>2. Contract — Sufficiency of Consideration. The relinquishment of the preferment right to entry on the public lands, and an agreement to sell personal property such as a house, fences and other improvements thereon is a good and valuable consideration for an assignment of moneys. Where “B" was . contestant for entry on lands and had obtained a decision in the local lanjl office, cancelling the entry of the contestee, and recommending to the general land office that “B” be allowed the preferment right under the law and “B” agreed with "W” that when such decision should be affirmed by the general land office, he would surrender such preferment right and not assert the same, but would assist “W” to make entry on said lands, and that “W” should own and be possessed of the personal property and improvements on said land then owned by “B;” held, that such agreement was a good and valid consideration for an assignment of moneys from ‘ W” to “B.”</p>

<p> Error from the District Court of Garfield County. </p>

<p>CONSTITUTIONAL law — Habeas Corpus — Jurisdiction of District Courts', Sitting with the Powers of United States Courts. Where a city ordinance requires the payment of an occupation tax, by all persons in said city engaged in selling or offering for sale goods, wares and merchandise and provided a fine and imprisonment for a violation thereof, held, that one who was engaged in soliciting the sale of goods on behalf of an individual or firm doing business in another state, was not amenable to said ordinance. That as to such person, it is a regulation of commerce among the states and unconstitutional as in violation of the provisions of the constitution of the United States, granting to congress the power to make such regulations. Where such person is imprisoned, charged with the violation of such ordinance, such imprisonment involves a federal question and-the'district’court; sitting as and with the powers of a circuit or district court of the United States, has jurisdiction to dischargedrom such imprisonment upon habeas corpus.</p>

<p>Sufficiency of Evidence to Su.-tain Finding of Trial Court — Where a motion to dissolve an attachment is heard by the district court and a general finding of facts made upon oral testimony, as well as affidavits and depositions, such finding is a finding of every special thing necessary to be found to sustain the general finding and is conclusive in the supreme court upon all doubtful and disputed questions of fact; and the supreme court will not weigh the conflicting testimony to determine whether the finding and action of the court below was justified by the weight of evidence.</p>

<p> Error from the Probate Court of Woods County. </p> <p>This was an action of injunction brought by plaintiff in error here, plaintiff below, in the probate court of Woods county against Joseph W. Elliott, justice of the peace, W. H. Elliott, special constable, and Peter Ruse, to enjoin execution upon, and collection of, a judgment in favor of Ruse, and against Wetz, for the return of certain personal property of the value of about twenty-five dollars, and costs of about ten dollars. A temporary order of injunction was duly. issued, which, upon motion of defendants, was dissolved. Prom this action the appeal is taken.</p>

<p> Error from the Probate Go mi of Payne County. </p> <p>Action brought by Kennedy on January 12, 1895, in the probate court of Payne county against Andrew upon two promissory notes, the one for $62, dated September 24, 1887, the other for $87, dated October 21, 1887, due respectively thirty and sixty days from date, and each bearing 12 per cent, per annum interest from maturity. The plaintiff claimed that the following letter relieved the notes from the bar which would otherwise have been created by the five years’statute of limitations:</p> <p>“StillwateR, Ok. Deem. 29, 1894.</p> <p>“Dear Friend Mr Kenidy: I will Drop you a Few Lines to night in Regard to our Busines I want to say to you That we are in trouble here now For we got our Court house Burnt up here night Before last and it threw me in bad shape The same as the Rest of the county officers We had no vault and everything was Burnt But a few books But the most important one were Burnt and all of the Register of Deeds Books were burnt and you can see that it through The County in Bad Shape.</p> <p>“Now I want to say to you about our business i have not go no mone now nor wont have For some Time and i want to get That Thing off my mind Some time now i will make you a note For One hundred $100.00 payible in one Year and i will get the money By that Time and pay you and Less have it settled I have been hard up all of the Time so i could not do anything Of course you will loose but i Cant Pay every thing and Live if I had The money i would pay the cash But I have not got I have a wife and a Baby to Take care of Now I will do this and see that it is paid if you want to Please Let me no and so instruct Fred Hunt</p> <p>“Yours R. N. Andrew, Under Sheriff.”</p> <p>On the trial on March 5, 1895, judgment was rendered for plaintiff for $281.37 and costs. From this judgment defendant appeals.</p>

Error from the District Court of Logan County. Action by the Bank of Indian Territory against W. S. Cooper and Alma L. Cooper, upon a promissory note and mortgage. Judgment for the plaintiff for the sum of $760, and attorney’s fee of $76, and the foreclosure of the mortgage. From which the defendants appeal.

Petition for Rehea/ring. Defendant- in error filed its petition for a rehearing, and the same was granted at the June sitting of this term. The material facts are stated in the former opinion, 2 Okla. 414, 37 Pac. 851, and in this opinion,

<p> Error from the Probate Court of Canadian County. </p>

Error from the Probate Court of Oldahoma County. Action for the recovery of -judgment on an indemnity bond. Judgment for the plaintiff for the sum of $201.30 and costs. From which judgment the defendants appeal.

<p> Appeal from the District Court of Logan County. </p>

<p>1. Occupying Claimant. In order to successfully assert a right as an occupying claimant, the party must bring himself within the statuatory provisions applicable thereto and in the absence of such showing by defendant in an action of ejectment, he should be'regarded as a trespasser, without any rignt to demand a jury to assess the value of the improvements he has placed upon the land.</p> <p>.2. Referee— Oath Of. Section 309, Code of Civil Procedure, which provides that a referee shall be sworn, while mandatory to the extent of requiring the oath to be taken, yet the precise language of the statute need not be followed in the oath administered; yet it is sufficient if the substance of the statute be complied with.</p> <p>3. Same — Report Of— When Confirmed. Where an objection is made to the report of a referee on the ground that the report is not sustained by the evidence, and the evidence taken by the referee in the hearing had-before him is not incorporated in the motion to set aside the referee’s report, it is not error for the trial court to overrule the objection to the confirmation of the report.</p> <p>4. Ejectment — New Trial. Where a judgment by default is taken in favor of a plaintiff in an ejectment suit, and no issue has been raised by a defendant as to the right of plaintiff in the possession of the land, § 618 of our Code which provides for anew trial as a matter of right in an ejectment proceeding is not applicable. (Hall v. Saunders, 25 Kan, 538.)</p>

<p>Injunction — Mandatory. Where A filed a homestead entry for a tract of land on May 7,1889, and B settled upon the same tract on May 8,1889, and on May 17,1889, institutes contest in the local land office, charging A with being disqualified to enter the land by reason of having entered upon and occupied a portion of the lands thrown open to settlement by the president’s proclamation dated M'arch 23, 1889, prior to April 22, and subsequent to March 2, of said year, and A suffers B to continue his settlement upon and improvement of the land for a period of five years,' without objection, held, that a mandatory injunction will not lie to remove Bfrom the land in dispute pending the final determination of the contest between the parties.</p>

Error from the District Court of Oklahoma County. Defendant in error instituted an action in the district court of Oklahoma county against the plaintiff in error to recover damages in the sum of two thousand dollars, for personal injuries received through the negligence of the city in leaving an excavation in close proximity to a street. A verdict was had in the lower court in favor of the defendant in error in the sum of $500.

<p>1. Election — Herd Law — Appeal. An appeal lies from all decisions of the board of county commissioners under our statute, and as under the provisions of art. 2, ch. 2, Statutes of Oklahoma, it is made the duty of the board of county commissioners to call an election to determine whether or not a regulation permitting stock to run at large shall be adopted, and where such board erroneously decides that such an election is a resubmission of the question to the voters, helds that an appeal will lie to the district court from such decision.</p> <p>2. Same. Section 4, art. 2, ch. 2, construed: A second election under § 4, ext. 2, ch. 2, is not a resubmission as contemplated in such section, unless a majority of the resident electors "of the district shall have at a prior election voted in favor of putting into effect a regulation permitting stock to run at large.</p>

This is a proceeding in mandamus commenced in the district court of Oklahoma county by the Territory of Oklahoma ex rel. J. H. Woods, county attorney, to compel S. A. Steward to pay to the county certain moneys collected by S. A. Steward as probate judge for issuing and recording marriage licenses. Defendant below demurred to the petition, which demurrer was by the court overruled, and judgment awarded as prayed for in the writ. The opinion states the facts.

<p> Error from the District Court of Pottawatomie County. </p>

Error from the District Court of Logan County. William R. Booth bro'ught his action in the district court of Logan county on the 21st day of November, 1893, to recover judgment against E. Gf. Millikan in the sum of $483.33 Issues were joined, and on the trial in the district court on the 11th day of April, 1894, the plaintiff recovered judgment against the defendant in the sum of $670 and costs, from which judgment the defendant appeals.

Error from the District Court of Logan County. STATEMENT OE. EACTS. On March 18, 1893, Donaldson sold to Edwards and Robinson a yoke of oxen, the possession of which are involved in this case. Edwards and Robinson agreed to pay therefor the sum of $65; $50 in cash, which was paid, and $15 in labor, consisting of breaking and grubbing a fifteen-acre tract of land. Only a small portion of the work was performed.