Volume 5 — Indian Territory Reports

<p>1. Indian Lands — Towns and Town Lots — Leases.</p> <p>Under Sec. 16 of the Curtis Bill (Act, June 28, 1898) a Chickasaw Indian had a right to hold and rent such lands in said Nation as would be his reasonable share thereof, until allotment, and, after allotment to rent his allotted lands. Sec.- 2118 Rev. Stats. U. S. prohibits any person from making a settlement on lands belonging to any Indian tribe, and surveying or designating boundaries of the same, and provides a penalty therefor. The Curtis Bill also provides for the laying off of towns in Indian Territory under direction of the Secretary of the Interior. Held, that Sec. 2118 does not relate to Indians; that the provisions in Curtis Bill regarding towns apply only to legal or political subdivisions, and that an Indian could subdivide his proportionate.share of lands and lease same in small lots .without violating any of the statutes cited.</p> <p>Gill, C. J., dissenting.</p>

Hosea TowNsend, Judge. Action by L. A. Swinney and others against T. B. Kelley and others. From a judgment in favor of plaintiffs granting insufficient relief, they appeal. This is an action of forcible entry and detainer, brought by the appellants against the appellees to -recover possession of certain premises described in the complaint.

Wm. H. H. Clayton, Judge. Action by A. C. Joyce against the Missouri, Kansas & Texas Railway Company, involving identically the same question as decided at this term in the case of Missouri, Kansas & Texas Railway Co. vs Phelps, 4 Ind. Ter. Rep. (76 S. W. 285). The amount claimed in this case was $20, and it was tried in the mayor’s court of Durant, Ind. Ter. Judgment was rendered against appellant for $12.

<p>1. Mayor’s Court — Appeal—Jurisdictional Amount.</p> <p>An appeal may be taken from a mayor’s court to the District Courts. , regardless of the amount of judgment or amount in controversy.</p>

Apjreal from the United States Court for the Northern District. Joseph A. Gill, Judge. Action in replevin by the National Bank of Boyertown against John H. Schufelt. Judgment ’for defendant. Plaintiff appeals.

<p>1. Guardian and Ward — Natural Guardians — Rights of, as to Ward’s Lands</p> <p>Under the common law the natural guardian has jurisdiction only of the person of the ward and cannot lease the ward’s lands without an order of court, until appointment by the court and giving of bond.</p> <p>2. Guardian and Ward — Law Relating to in the Creek Nation.</p> <p>At the time of the adoption- of the Creek Agreement and Supplemental Agreement, the law as to guardian and wards in force in the Creek Nation was contained in Chap. 73 of Mansf. Dig. of Laws of Arkansas. This law was not changed by the Creek Agreement except that by Sec. 35 of the Agreement, it is provided that natural guardians may, in the discretion of the court, be permitted to administer the ward’s estate without giving bond.</p> <p>3. Guardian and Ward — Leases of Lands — Invalid if Without Order of Court.</p> <p>Under the provisions of Chap. 73 Mansf. Dig. and Sec. 35 of Creek Agreement, any lease of a ward’s lands made by a guardian without the order or confirmation of the court is absolutely void.</p> <p>4. Indian Lands — Invalid Lease — Removal of Lessee by Indian Agent.</p> <p>Under the provisions-of the Supplemental Creek Agreement, of June 30, 1902, the U. S. Indian Agent under orders of Secretary of Interior» is authorized to protect allottees in their right to possession against any person claiming under any lease not made in conformity to law. A lease of a ward’s land made by the guardian without the order ox-confirmation of court is not “obtained in confox-mity to law” and such lessee is liable to removal by the Indian Agent.</p>

<p>Appeal from the United States Court for the Central District.</p> <p>Before Wm. H. H. ClaytoN, Judge.</p> <p>Mandamus by Nancy Lee Cundiff against Henry L. Dawes and others. Judgment for plaintiff. Defendants appeal. Remanded, with directions.</p>

<p>1. Mandamus — Dawes Commission — Citizenship Claims — Exclusive Jurisdiction of Citizenship Court.</p> <p>By Act of Cong. July 1, 1902 (32 Stat. 646) the Citizenship Court was created and vested with exclusive jurisdiction to settle all claims of citizenship in the Choctaw and Chickasaw Nations; and a proceding seeking to compel by mandamus the enrollment of one as an Indian citizen by the Dawes Commission was thereby terminated, such cause being necessaryly transferred.to the Citizenship Court.</p>

<p>Appeal from the United States .Court for the Central District.</p> <p>W. H. H. Clayton, Judge.</p> <p>Mandamus by Rebecca C. Harris and others against Henry L. Dawes and others. Judgment for plaintiffs. Defendants appeal.</p>

<p>Appeal from the United States Court for the Northern District.</p> <p>Joseph A. Gill, Judge.</p> <p>Action by Samuel Nidiffer against R. E. L. Rogers and others. Judgment for plaintiff. Defendants appeal.</p>

William H. H. Clayton, Judge. Action by Daniel Farrimond against Perry Bros. Judgment for plaintiff. Defendants appeal. On November 14, 1899, the appellee (plaintiff below) filed his complaint in equity against appellants (defendants below), and for cause of action states that on the 25th day of June, 1897, plaintiff entered into a written contract with defendants, by which they leased to plaintiff a certain coal mine property in the town of Coalgate, Ind.

<p>1. Jurors — Qualifications of — Relation of Attorney and Client.</p> <p>A juror is not disqualified because be bad some time previously been a client of one of the attorneys in the case, where it is not shown that bias existed against one of the parties by reason of such former relation.</p> <p>2. Conversion — Pleading—Evidence Admissible Thereunder.</p> <p>In an action for conversion of certain corn, the issue was as to the ownership of the com and this depended upon the ownership of the land. Plaintiff’s complaint contained averments of ownership, and under such averments it was proper to introduce in evidence the Cherokee laws relating to the ownership of the property, without specially pleading them.</p> <p>3. Verdict — Not Disturbed When Based on Conflicting Evidence.</p> <p>In an action for conversion, the evidence was. conflicting upon several essential matters at issue and it was therefore proper for the court to refuse to disturb the verdict of the jury, there being sufficient evidence to sustain their verdict, and the reconcilement of conflicting, testimony being solely within their province.</p> <p>4. Instructions — No Error in Refusing Where Jury finds Against Facts on Which it is Based.</p> <p>Where an instruction requested by defendant was based upon the existence of certain facts, and the jury found against the existence of such facts no error was committed by refusing to give the instruction.</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosea Townsend/Judge.</p> <p>Action by Taylor Percival against W. A. Wade and others. Judgment for plaintiff. Defendants appeal.</p>

‘ Appeal from the United States Court for the Western District. Chas. W. Raymond, Judge. Action by Willard Johnston against Henry Kaase. Judgment for plaintiff. Defendant appeals. Action of replevin by Willard Johnston, as plaintiff, cashier of the First National Bank of Shawnee, Okl. Ter., against defendant, Henry Kaase, Deputy United States Marshal, Northern District, Ind. Ter.

United States Court for the Western District. Charles W. Raymond, Judge. Action by'S. N Oarlislé against Henry Davis and others. Judgment for plaintiff. Defendants appeal. The appellee, S. N. Carlisle, brought suit of replevin against appellant Henry Davis in Commissioners’ Court for the recovery of 40 acres of cotton, which he claimed under a mortgage executed to him by Davis. ' The -Hayes Mercantile Company was made a party defendant.

<p>Appeal from the United States Court for the Western District.</p> <p>Chas. W. Raymond, Judge.</p> <p>Action by Silas Smith against.George M. Griffin and others. Judgment for plaintiff. Defendants appeal.</p> <p>The plaintiff (appellee) filed his bill in this case on November 1, 1901, alleging, in substance, that on March 23, 1901, he had old certain real estate in Okmulgee, Ind. Ter., described as the “Capitol Hotel Property,” to defendants (appellants) for $2,500 of which it was agreed $1,800 was to be paid in cash, and the remaining $700 evidenced by a promissory note of G. M. and H. W. Griffin, due in six months, and secured by a mortgage on certain chattels and a separate piece of real estate, owned by the Griffins; that defendant W. E. Gentry paid $1,250 and defendant G. M. Griffin paid $50 in money, and executed his note for $700, secured by a mortgage on other property, and promised verbally to pay the other $500 in a few days; that defendant had, at the time of bringing suit, paid $215 on the note and nothing on the $500. Pyayer for a decree for $1,019.40, and that plaintiff's lien upon the property described in the mortgage, which was no part of the hotel, property, together with the lien on the premises sold, be foreclosed, and for general relief.</p> <p>The defendants answered, denying that the agreed purchase price of the hotel property was $2,500, but alleged: That the price was $2,000, evidenced by an agreement in writing, dated February 19, 1901, extended by a further written agreement dated March 16, 1901. The agreement of February 19th is'follows: .</p> <p>Okmulgee, I. T., Feb. 19, 1901.</p> <p>“This contract or agreement made or entered into by and between Silas Smith, party of the first part, and Griffin Brothers, parties of the second part, witnesseth:</p> <p>“The party of the first part bargains and sells to the parties of the second part his hotel building and lot upon which it is located, together with all other buildings on said lot, said lot consists of Nos. 2, 3, 4, and 5 in block 37, in the town of Okmulgee, Ind. Ter.</p> <p>“For and in consideration of the above, the parties of the second part are to pay the parties of the first part the sum of Two thousand dollars ($2,000.00), said amount to be paid within the next ten days. When the said amount is paid, the party of the first part is to give to parties of the second part a deed to said property. If the amount specified above is not paid by the parties of the second part within the next ten days, this contract is void.</p> <p>“Silas Smith.</p> <p>“G. M. & H. W. Gkifein.”</p> <p>The receipt of March 16th is as follows:</p> <p>“Received of G. M. Griffin fifty dollars, to apply on payment of property contracted to him as Capitol Hotel block. Contract is extended by this payment. „ ,</p> <p>Silas Smith.”</p> <p>That $¿0 had been paid by Grffin before the deal was closed, to wit, March 16, 1901. That $1,250 was paid by Gentry at the date of the actual transfer of the hotel property, March 23, 1901, and that Griffin on that date executed a note for $700, and secured the same by a mortgage on property other than the hotel property. Denied that he had ever agreed to pay $2,500 for the hotel property; and denied that he owed Smith anything except a balance on the $700 note, which balance he stood ready and willing to pay; and prayed the dismissal of plaintiff’s bill and judgment for costs.</p> <p>The evidence was taken before a special master, and it developed that subsequent to the filing of the bill defendant Griffin had paid plaintiff the balance of the $700 note. The special master, on January 14, 1902, filed his report, sustaining the contention of plaintiff, and finding that $500 was due from Griffin to Smith, and recommended a decree foreclosing Smith’s vendor’s lien upon the hotel property. To this report defendants filed exceptions. On August 12, 1903, the court overruled the defendants’ exceptions, and entered a decree for plaintiff for $500, with interest from that date at 6 per cent., and that plaintiff’s lien upon Griffin’s undivided half interest in the hotel property be foreclosed, and said property be sold, according to law, and the proceeds of such sale applied to the payment of the judgment. To this decree defendant excepted, and appealed to this court.</p>

<p>1. Indian Lands — Action for Rent — Complaint—Sufficiency of.</p> <p>In an action to recover rents due for the use of certain lands in the Cherokee Nation during a period subsequent to the passage of Act of Cong. June 2S, 1898, the complaint failed to state that plaintiff was a citizen of the Cherokee Nation, and failed to state that the lands comprise the amount which would be plaintiff’s just and reasonable share of the lands of his Nation, and therefore, under the terms of Sec. 16 of said Act, fails to show facts entitling plaintiff to recover such rents.</p> <p>2. Pleading — Demurrer to Answer Relates Back to Complaint.</p> <p>Where, in an action to recover rents, the complaint failed to state facts entitling plaintiff to recover, but defendant answered thereto, and thereafter plaintiff demurred to the answer, the demurrer relates back and is properly sustained as against the complaint.</p>

Joseph A. Gill, Judge. Suit by W. A. Crawford against W. H. Parrott and another. Judgment for plaintiff. Defendants appeal. This is a bill in equity, filed by W. A. Crawford, appellee, against W. H. Parrott and Leo E. Bennett, United States marshal for the Northern District of the Indian Territory, appellants, seeking to enjoin the sale of certain real estate claimed by him, levied on by the marshal as the property of one J. C. Crawford.

IIosea ToavnseND, Judge. Action by Amelia Carson and others agaiifst Willis Mann and others. Judgment for plaintiffs. Defendants appe Action of ejectment, Amelia Carson and others agaii William Mann and others, begun by filing complaint January 1901, in the United States Court in the Southern District Ardmore, praying for the recovery of certain premises a: damages for the detention by defendants thereof in the sum $160.

<p>1. Bills and Notes — Action—Directed Verdict — Evidence Insufficient to Warrant.</p> <p>In an action by the indorsee of a promissory note, payable to a bank fcJÜlifiüLand indorsed to plaintiff by the cashier thereof, where the bank claimed that such indorsement was made, without consideration, solely for accomodation of the indorsee, and that same was given for money of plaintiff’s loaned by tl|e bank for her, but there is proof that the money loaned to the maker was used to discharge the maker’s indebtedness to the bank, the question of consideration is one for the jury and a verdict for the bank should not be directed.</p> <p>2. Bills and Notes — Action—Instructions.</p> <p>In an action by the indorsee against the payee of a promissory note, . the defense being an accomodation indorsement without consideration, where the court charged the jury that if they found defendant received no consideration for its indorsement plaintiff could not recover, it is not error to refuse a specific instruction in other terms but to the same effect.</p> <p>3. Bills and Notes — Indorsement by Cashier Binding on Bank — Instruction.</p> <p>A requested instruction that if a bank cashier loaned the money of plaintiff taking a note to the bank therefor, and then indorsed the note and transferred same to plaintiff, “then you are instructed that' the cashier had no authority to bind the bank by this indorsement and the bank is not bound thereby, although you may believe it was the purpose of the cashier to bind the bank,” was properly refused for 1 such acts are within his general powers as cashier. ,</p>

<p>1. ,Equity — Injunction—To Restrain Enforcement of Judgment — Remedy by Appeal.</p> <p>A court of equity will not vacate a default judgment, award a new trial and enjoin the enforcement of the judgment or proceedings thereunder on the ground of irregularities accident and surprise, after a motion to set aside said judgment has been overruled. The proper remedy is an appeal from the order denying the motion to set aside the judgment.</p> <p>2. Equity — Injunction—To Stay Proceedings on Judgment — In What Court Brought.</p> <p>An equitable action to stay proceedings under a judgment can only be brought in the court wherein the judgment sought to be stayed, was rendered, under Sec. 3751 Mansf. Dig. (2510 Ind. Ter. Stat.)</p>

William H. H. Clayton, Judge. Action by J. E. Whitehead against A. W. Breckenridge. From a judgments in favor of defendant, plaintiff appeals. This was an action at law brought by .the appellant against the appellee on the 3d day of May, 1901.

Charles W. Raymond, Judge. Action by the First National Bank of Holdenville against Schaff & Co. Judgment for plaintiff. Defendants appeal.

<p>1. Indian Lands — Citizenship—Decrees Awarding — Due Process of Law.</p> <p>The. provisions of the Indian Appropriation Act, June 10, 1S96, c. 398 (29 Stat. 321, 330) providing for trials of right to citizenship in the United States Court in Indian Territory are not unconstitutional as' depriving members of Indian tribes of their property -without due process of law, by reason of its failuie to provide for notice of such cases upon such individual members.</p> <p>2. Indian Lands — Individual Indians not Tenants in Common — No Vested Rights.</p> <p>The lands and funds of the Indian tribes in Indian Territory are public lands and public moneys in which the members of the tribes have no vestéd rights, nor are the lands held by the individual allottees as tenants in common.</p> <p>3. Citizenship in Indian Tribes — Parties—Notice to Nation Sufficient.</p> <p>In actions brought by claimants to citizenship in the Indian tribes in the Indian Territory, the individual members have no such interest in the land and funds affected by the enrollment of additional citizens, as entitles them to be made parties to such action or have notice thereof.</p>

<p>1. Removal of Cause — Record—Mistake in Date.</p> <p>■ Where, after indictment, a change of venue is taken and the record of the proceedings in the first court, when filed in the court to which change is taken, includes in the heading relative to the selection of the grand jury, a date later than that shown in the order itself, and later than the date of filing of the record in the court of trial, an error is apparent and the date included in the order will control, it being a part of the record, the other being a statement of the clerk.</p> <p>2. Removal of Cause — Imperfect Record — Presumption of Correctness.</p> <p>Sec. 2204 Mansf. Dig. (1547 Ind. Ter. Stat.) provides the duties of the clerk in regard to the record, upon a removal of a cause to another • court. The presumption is that the clerk performed his duty and that the record is full and complete, until the contrary is made to appear.</p> <p>3. Removal of Cause — Imperfect Record — Waiver—Non-Prejudicial Error.</p> <p>Where, upon removal of a cause, the record is imperfect in several particulars and defendant obtains certiorari correcting same in one particular only and goes to trial without further objection, and when the missing portion of the record was such as not to prejudice defendant by its absence, the error, if any, will not cause a reversal of the judgment</p> <p>4. Removal of Cause — Jurisdiction—Attacked in Motion for New Trial, Too Late.</p> <p>Where the jurisdiction of the court to which a cause has been removed on change of venue is attacked in the motion for new trial for first time, on the ground of an imperfect record, it is too late, when the omission from the record cannot be prejudicial to defendant.</p> <p>5. Trial — Witness—Attendance not Compelled by Attachment When III.</p> <p>It was not'error for the court to refuse to issue an attachment for a witness who was sick and unable to attend court.</p> <p>6. Trial — Continuance—Absence of Evidence — Discretion of the Court.</p> <p>The granting of a continuance is a matter within the discretion of the court and it is not such an abuse of this discretion as constitutes error to overrule a motion based on the absence of a witness whose testimony would have been cumulative and contradictory of im materia matters.</p> <p>7. Murder — Evidence—Conduct of Wife of Deceased, After Killing.</p> <p>In a prosecution for murder it was not error to permit testimony to go to the jury as to conversations and conduct of deceased’s wife after the killing, nor-to admit testimony that the defendant and wife of deceased slept together at the latter’s house, after the killing.</p> <p>8. Criminal Law — Arraignment—Sufficiency of Record.</p> <p>Where the record discloses that on a certain day, reciting the convening of court, the number and title of the case, the designation of the offense, the defendant in open court after being formally arraigned upon the indictment in this cause says he is not guilty as charged therein and puts himself upon the country, this shows a sufficient and correct arraignment of the defendant.</p> <p>9. Terms of Court — Adjournment—Authority of Judge.</p> <p>The judges of U. S. Courts in Indian Territory, for sickness or other sufficient reason have authority to cause the opening and adjournment of any regular term of court in his district until such reasonable time as he deems proper, under his general authority for fixing the time, of holding courts in his district.</p> <p>10. Terms of Court — Adjournment—Waiver of Objection.</p> <p>One who submits himself to the jurisdiction of the court and is tried at a time other than during the regular legal session, without objection, waives any error, if any, in the matter of the jurisdiction of the court at such adjourned term.</p> <p>11. Criminal Law — Jurisdiction—Locality of Crime — Judicial Districts.</p> <p>The United States Court for the Central District in the Indian Territory is bound to take judicial notice of the date wheip.a portion of the Choctaw Nation was placed in the Western District, and hence has no jurisdiction of a crime committed in that portion of the Choctaw Nation unless committed prior to the formation of the Western District; and, this jurisdictional fact must be shown by the evidence.</p> <p>.12. Criminal Law — Jurisdiction—Sufficiency of Evidence to Disclose.</p> <p>. In a prosecution for .murder the evidence, Held to sufficiently show the jurisdictional facts ofdocality bf crime and date.</p>

Hosea TownseND, Judge. Action by Eliza Alexander and others against Henry Crawford. Judgment for plaintiffs. Defendant appeals. This is an.action of forcible entry and detainer, brought by the plaintiffs (appellees) against the defendant (appellant) to recover the possession of the premises sued for. The complaint was in the usual form, and the affidavit was in conformity to the statute. Bond was executed by plaintiffs, and a writ of possession issued.

<p>Appeal from' the United States Court for the Northern District.</p> <p>Joseph A. Gill, Judge.</p> <p>Action by J. B. Morris against Pies. Cork. Judgment for defendant. Plaintiff appeals.</p>

Chas. W. Raymond, Judge. Action by K. T. Stovall against S. H. Osteen. Judgment for plaintiff. Defendant appeals. This was an action of forcible entry and detainer brought by appellee (plaintiff below) against appellant (defendant below) for the possession of a certain tract of land described in the complaint.

<p>1. U. S. Marshals — Indemnifying Bonds — Bight of Action On — Parties Amendment.</p> <p>Where an action is brought by the Marshall’s custodians in an attachment case, against the sureties on an indemnifying bond, for custodian’s fees, and amended by making the Marshall a party, the suit, if maintainable at all, might be brought by the custodians separately or in connection with the marshall and the amendment was proper under Mansf. Dig. Secs. 4933-4936 (Ind. Ter. Stat. 3138-3141).</p> <p>2. Attachment — Indemnifying Bond — Security for Costs.</p> <p>Under the statute providing for attachment, the Marshall cannot demand anji- indemnity beyond the attachment bond but under Sec. 3250 Mansf. Dig. (2234 Ind. Ter. Stat.) he may demand payment of his fees or security there for in advance of the levy.</p> <p>3. Attachment — Indemnifying Bond — Does not Cover Pees and Costs.</p> <p>Where, before levying an attachment, the Marshall requires and is furnished an indemnifying bond conditioned to protect him and his deputies from any actions costs, charges, damages and expenses the same only secures him from claims by third persons and does not bind the party giving it for the costs of the action or the marshal’s custodians’ fees.</p> <p>Raymond, C. J. dissenting.</p>

Hosea Townsend, Judge. Action by G. G. Anderson against W. G. Handley. W. L. Goins interpleaded. Judgment for plaintiff. Defendant and interpleader appeal. On October 1, 1900, appellee began suit against appellant to enforce a landlord’s lien by filing with the clerk of court the following affidavit: “In the United States Court for the Southern District of the Indian Territory. G. G. Anderson, Plaintiff, vs W. G. Handley, Defendant. Affidavit to Enforce Landlord’s Lien.

<p>1. Mandamus — Not Granted to Compel Transfer from Law to Equity Docket.</p> <p>•The remendy for the refusal of a court to transfer a cause from the law to the equity docket is by appeal, and mandamus will not lie to compel such transfer.</p> <p>Townsend, J., Dissenting.</p>

Hosea Townsend, Judge. Action by L. H. Love against the Ardmore Stock Exchange and others. Judgment for defendants. Plaintiff appeals. January 23, 1899, appellant, L. H. Love, began his action for debt, and filed in the office of the United States commissioner, Southern District, at Ardmore, complaint and affidavit for attachment against the Ardmore Stock Exchange, without alleging whether defendant was a corporation or a partnership.

<p>1. Appeal — Findings of Fact — Refusal of Court not Error.</p> <p>The refusal of the Trial Court to make findings of fact on the trial of ' questions of fact before it, as provided in Sec. 5149 Mansf. Dig. (3354 Ind. Ter. Stat.) is not reversible error.</p> <p>2. Dower — Law Governing — Adultery no Bar.</p> <p>Under Act of Cong. May 2, 1890 adopting, Chapts. 20 and 53 Mansf Dig. (12 and 23 Ind. Ter. Stat.) these chapters, as construed by the Supreme Court of Arkansas becoming the governing law regarding dower in Indian Territory; and, under such law adultery, not followed by divorce, is no bar to widow’s right of dower.</p> <p>3. Dower — Release by Wife to Husband a Nullity — Separation Agreements— Consideration.'</p> <p>An agreement between husband and wife including a release of dower by the wife and including no provision for division of property or wife’s maintenance will not bar shch wife’s claim to dower in her husband’s estate upon his death, for the release of dower to a husband is a nullity and the whole agreement was without consideration to the wife.</p> <p>4. Widow’s Allowance — Not Barred by Separation, Without Divorce.</p> <p>A widow’s right to the statutory allowances, in addition to dower, is not barred by the fact that she had lived separate and apart from her . husband for several years at the time of his death.</p>

<p>1. Replevin — Forthcoming Bond — Liability of Sureties — For Costs.</p> <p>The sureties upon a forthcoming bond, in replevin, given under and in the form prescribed by Sec. 5581 Mansi Dig. (3552 Ind. Ter. Stat.) are not liable thereon until there is a final judgment, adverse to the defendant; and there was no liability when the suit was dismissed by the plaintiff after a judgment for defendant was reversed on appeal and remanded for further trial. •</p>

<p>Appeal from the United States Gourt for the Southern District. »</p> <p>Hosea Townsend, Judge.</p> <p>Dudley Slaughter was convicted of manslaughter, and appeals.</p>

<p>Appeal from the United States Court for the Central District.</p> <p>William H. H. Clayton, Judge.</p> <p>Robert Fortune, convicted of being drunk and disorderly, appeals.</p>

Joseph A. Gill, Judge. Action by the Corner Stone Bank against William Rhodes and others. Judgments for defendants. Plaintiff appeals. This action was brought by the appellant against the appellees on a promissory note dated July 1, 1901, for $900 and interest, due January 1, 1902. The note purported to have been signed by one John W. Ward and the three defendants, William Rhodes, J. C. Welch, and John Clark.

<p>Appeal from the United States Court for the Western District.</p> <p>Charles W. Raymond, Judge.</p> <p>Action by J. A; Sellers and another against Hiram Catron. Judgment for defendant. Plaintiffs appeal.</p>

<p>1. Criminal Law — Appeal—Record—Dismissal.</p> <p>Where on appeal in a criminal case record entries which should appear in the record proper are only brought up as a part of the bill of exceptions, the appeal will be dismissed.</p>

<p>1. Indian Lands — Void Leases — Unlawful Detainer.</p> <p>By Act of Cong. June 28, 1898, agricultural leases of Indian lands terminated on Jan. 1, 1900 and after that date were wholly void; and a lessee under such a lease cannot therefore maintain unlawful detainer against his tenant holding over.</p> <p>2. Unlawful Detainer — Tenant may Deny Landlord’s Title, When.</p> <p>In an action of unlawful detainer brought by one who holds Indian lands under a lease which is void and made for purposes in violation of law, his sub-tenant may deny the title of the person under whom he entered.</p> <p>3. Unlawful Transactions — Parties Engaged Therein in Pari Delicto — Courts Closed Against.</p> <p>Where parties are engaged in transactions involving leases and subleases of Indian lands all void under the law and against the public policy, they will be held in pari delicto and the courts will be closed against the complaints of any against the others.</p>

<p>1. Evidence — Non-Prejudicial Error in Admitting Incompetent.</p> <p>.The admission, of incompetent evidence is not prejudicial if the same facts toward which it was directed are otherwise established by competent evidence.</p> <p>2. Malicious Prosecution — Instructions.</p> <p>Where, in ah action for malicious prosecution, the jury were charged that plaintiff must prove that the prosecution was prompted by malice, and that it was without probable cause, and that she was not guilty, it was not error for the ccurt to refuse instructions that if reasonable or probable cause existed; then no amount of malice would warrant a verdict against the defendant; or, that if there was reasonable cause the law would not inquire into the motives of defendant in instituting, the prosecution.</p> <p>3. Malicious Prosecution — Instructions Not Conflicting.</p> <p>In an action for malicious prosecution, the jury was charged that if defendant maliciously caused plaintiff's arrest without probable cau«e to believe she was guilty they should find for plaintiff; and also that if defendant had not probable cause for prosecuting plaintiff they might infer malice therefrom. Held, such charges not in conflict with another instruction that plaintiff must prove that the prosecution was prompted by malice and was without probable cause and that she was not guilty of the crime charged.</p> <p>4. Malicious Prosecution — Abuse of Process — Advice of Counsel no Protection —Instructions.</p> <p>In an action for malicious prosecution, an instruction that if the criminal prosecution was commenced simply to get possession of certain premises, and not for the purpose of punishing a violation of the law, it would be an abuse of process and conclusive evidence of malice, as to which the advice of counsel would be no protection, was proper.</p> <p>5. Argument of Counsel — Improper Remarks — Reversible Error.</p> <p>In an action of malicious prosecution, wherein the court had instructed the jury that the plaintiff must prove that she was not guilty of the crime charged against her, it was reversible error for the court to permit plaintiff’s counsel in his closing argument to state to the jury that it was always‘the law that a person charged with a crime is presumed to be innocent and must be proven guilty beyond a reasonable doubt, and to refuse to sustain the objection thereto and withdraw the same from the jury.</p>

<p>1. Bills and Notes — Pledged as Collateral — Liability and Duties of Pledgee— Banks.</p> <p>A bank to which a debtor assigns a note secured by chattel mortgage, as collateral, is bound to use reasonable diligence to collect the collateral note and enforce the collection of the security; and failing in this, whereby the value of such collateral note and security is lost by the insolvency of the maker, the bank is liable to pledgor therefor.</p>

William U. H. Clayton, Judge. Action by George A. Nowlin against James Degnan. Judgment for plaintiff. Defendant appeals. On the 2d day of October, 1902, appellee (plaintiff below) filed his complaint at law against appellant (defendant below). On the 7th day of January, 1903, appellant filed his general demurrer to the complaint, which was overruled, and on the 6th day of June, 1903, appellant filed a special demurrer, which was sustained by the court.

<p>Appeal .from the United States Court for the Southern District.</p> <p>Hosea Townsend, Judge.</p> <p>Action by William Cameron & Co. against Campbell & Williams and others. Judgment for plaintiffs. Defendants Campbell & Williams appeal.</p> <p>This is an action brought in the United States Court at* Chickasha, in the Southern District of the Indian Territory, by the appellees, against one J. M. Ellis and the appellants, C. M. Campbell and W. G. Williams, under the firm name of Campbell & Williams, to recover of the said defendant J. M. Ellis the sum of $583.90, alleged to be due from one J. B. Pope to Ellis for lumber and building material sold and delivered to him to be used in the erection of a certain store building on a lot in the town of Mineo, Ind. Ter., belonging to Williams & Co., the appellants. Ellis was a building contractor, and had contracted with Campbell & Williams to build a storehouse on their lot for a certain sum specified in the contract. The complaint alleges and the proof shows that lumber and other material for the construction of the building was purchased by Ellis from the said J. B. Pope to the amount of $952.30. The plaintiffs allege that during the construction and after the completion of the building Ellis was paid for the material furnished the sum of $368.40, leaving due and unpaid the sum of $583.90, the’ sum sued for. This account was, for a valuable consideration, and before the filing of the suit, assigned to the plaintiffs. The plaintiffs further allege that their assignor, Pope, had given the proper notice to Campbell & Williams, and performed all the other duties required by the statute to secure a lien on the building and lot upon which it was erected; hence they were made parties to the suit. The case was in equity. Ellis failed to answer. Campbell & Williams filed their answer, admitting the building contract with Ellis; that he constructed the building, and that Pope furnished to Ellis lumber and material. They deny that the amount and value of the lumber and material was as alleged, or that Pope notified them of the fact, or of the probable value of the materials furnished, or that he, within 90 days from the date of furnishing said materials, made affidavit as required by law, and caused itemized statement of said account, together with affidavit, to be filed and recorded in the office of the clerk of the United States Court for the Southern District of the Indian Territory, and deny the lien. They admit that there is now dllO Ellis on said contract the sum of $147.47. The facts established by the proof, necessary to the decision of this case, will be set out in the opinion. Proof was taken, and the cause referred ro the master, with directions to find the facts. He made his report, to which exceptions were filed, heard, and overruled. Decree for plaintiff by default as against Ellis for $583.90, and declaring a lien upon the. house and lot of Campbell & Williams, and foreclosing the same, etc. Ellis has not appealed.</p>

<p>1. Estates of Decedents — -Reports of Executor — Executor Right to Appeal from Order Sustaining Exceptions.</p> <p>Under Mansf. Dig. Sec. 1267 (Ind. Ter. Stat. 769), an Executor has a right td appeal from a decision of court sustaining exceptions to his report and ordering a modification thereof, and a distribution of the estate contrary to his view of the manner required by the will.</p> <p>2. Executor’s Report — Exceptions—Considered Though Filed Too Late.</p> <p>Where exceptions to an executor’s report are filed one day too late, the court will properly disregard a motion to strike said exceptions from the files, where no substantial right of the executor is affected.</p> <p>3. Executor’s Report — Second Exceptions — Raising Same Questions Discretionary with Court to Consider.</p> <p>It is within the discretion of the court to consider exceptions to an amended report of Executor raising same questions as before, when filed before the final approval of the report and bringing to the attention of the court provisions of the will not before noticed.</p> <p>4. Probate Courts — Jurisdiction—Questions of Title to Property.</p> <p>The court sitting in probate has no jurisdiction to pass upon the disputed title to the beneficial interest in an insurance policy left by deceased payable to one of his heirs and to order the guardian of such heir, who happens to be also the xecutor of the will, to turn same into ; the distributive estate of the deceased where the said beneficiary is not a party to the proceedings in probate..</p> <p>5. Probate Court — Jurisdiction—To Compel an Election by a Devisee.</p> <p>The court, sitting in probate, has no jurisdiction to compel an election by a- devisee under a will, where the devisee is not a party to the proceeding nor in court.</p>

Joseph A. Gill, Judge. Ejectment by Ola Wilhite against Leslie Coombs. Judgment for defendant. Plaintiff appeals. This is an action of ejectment brought by plaintiff (the appellant) to recover of the defendant the possession of lots numbered 9 and 10, lying and situate out of, but adjacent to, the town of Bartlesville, Cherokee Nation, Ind. Ter.

<p>1. Appeal — Order Sustaining Demurrer not Final Judgment — Dismissal.</p> <p>' An order sustaining a separate demurrer of a portion of the defendants, with no disposition of the case as to the other defendants, is not such a final order or judgment as to be appealable.</p>

<p>1. Certiorari — No Notice of Application Necessary — Laches.</p> <p>Under Sec. 1273 Mansf. Dig. (775 Ind. Ter. Stat.) either party to an action may, whenever he conceives the record to be imperfect apply to Supreme Court and have a writ of certiorari to perfect the record . No notice of such application is necessary and laches cannot be imputed from delay, as no time is fixed.</p> <p>M. Motion {or Rehearing — Affidavits—Part of Record.</p> <p>When affidavits of counsel for both sides are considered by the court, by consent of parties, on a motion for rehearing such affidavits are a part of the record though never formally filed in the court below.</p> <p>3. Rehearing — Motion for — What Not Considered Upon — Negligence of Counsel.</p> <p>Alleged errors of procedure in taking depositions and report of special master should be raised by proper motion and exceptions within time allowed by law, and same will not be considered on motion for rehearing, after judgment, when the result of counsel’s own negligence.</p>

<p>1. Indian Lands — Quapaws—Leases—For Period Longer Than Three Years, Valid.</p> <p>Under the treaties with the Quapaw Indians (Nov. 15, 1824-7, Stat. 232; May 13, 1833, 7 Stat. 424) and the Acts of Congress relating to the lands of such tribe (Ind. Appro. Bill, 1895, 28 Stat. 907; Ind. Appro. Bill, June 7, 1897, 30 Stat. 7) there is no prohibition against patentees leasing their lands for any term and other alloted lands may be leased for three years.</p> <p>2. Forcible Entry and Detainer — Indian Lands — Lease—-Evidence.</p> <p>Under Sec. 3365 Mansf. Dig. (2299, Ind. Ter. Stat.) providing that in actions of forcible entry and detainer, title to the lands in controversy can only be given in evidence to show the right to possession, a valid lease of Indian lands and an assignment thereof, under which one party claims, are competent evidence.</p> <p>3. Forcible Entry and Detainer — Instructions.</p> <p>An'instruction, requested by defendant in an action of forcible entry and detainer, charging the jury that the gist of the action is the forcible taking of the actual possession of the premises was properly refused, as, under Sec. 3347 Mansf. Dig. (2281 Ind. Ter. Stat.) the forcible holding, alone, of possession, is ground for the action.</p> <p>4. Instructions — Non-Prejudicial—Not Error. ></p> <p>Where instructions complained of, even though erroneous, were prejudicial only to the appellee, the appellant cannot be heard to complain.</p>

Chaeles W. Raymond, Judge. Action by the Capital Town Site Company against Joe Denton. Judgment for plaintiffs. Defendant appeals. On August 5, 1902, plaintiffs, T. M. Stanclift and Francis R. Brennan, partners under the firm name and style of Capital Town Site Company, began their suit in ejectment against Joe Denton, defendant, by filing their complaint at law.

Chas. W. Raymond, Judge. Action by Buster & Jones and others against J. George Wright and others. Judgment dismissing the complaint. Plaintiffs appeal. On August 23, 1901, the appellants (plaintiffs below) filed their complaint in equity against the appellees (defendants below), asking for a temporary restraining order enjoining the defendants, among other things, from closing up the places of business of plaintiffs, or in any other manner interfering with plaintiffs.

<p>1. Appeal — Assignments of Error — Must be Definite.</p> <p>An assignment of error, on appeal, that the court erred in permitting evidence to go to the jury “which evidence is fully set forth in the bill of exceptions” is too indefinite, and will not be considered.</p> <p>2. Appeal — Assignment of Error — Non-Compliance with Buie of Court— Dismissal.</p> <p>For non-compliance with rule 10b requiring the specification of errors to separately state each error asserted, to quote the full substance of evidence admitted or rejected and set out instructions complained of in totidem verbis, an appeal will be dismissed.</p>

W. M. Springer, Judge. Action by T. M. Grubbs, as surviving partner, against Thomas B. Needles and others. Order denying a motion for judgment on the pleadings. Plaintiff appeals.

<p>1. Appeal — Report of Master — Not a Final Judgment.</p> <p>An appeal will not lie from an order confirming a report of a master in chancery, as the same is not a final judgment.</p> <p>2. Appeal — Record—Assignment of Errors — Dismissal for want of.</p> <p>An appeal will not be entertained when the record discloses an entire absence of the assignment of errors required by rule 10 (4 Ind. Ter. Rep. 753) of this court.</p>

States Court for the Western District. Chas. W. Raymond, Judge. George Stancliff was convicted of disturbing the peace. He appeals.

<p>1. Municipal Corporations — Contract for Water Supply — Exclusive Use of Streets.</p> <p>Under Sec. 755 Mansf. Dig. (525 Ind. Ter. Stat.) municipal corporations in the Indian Territory have power to contract with any person or corporation for the construction of a system of water-works, to contract with them for furnishing water to said town, and to grant them the exclusive privilege of using the streets and alleys of said town for such purposes.</p> <p>2. Muncipal Corporations — Exclusive Contracts — Taxpayers Cannot Maintain Suit to Question, unless Illegal.</p> <p>An ordinance of an incorporated town in the Indian Territory granting an exclusive privilege to a water company, by ordinance, to use the streets and alleys and furnish water to said town, is within the power of the corporation, not ultra vires, and, therefore cannot be questioned by its citizens as taxpayers, in an action to enjoin the carrying out of the contract.</p> <p>3. Muncipal Corporations — Ordinances not Restrained by Injunction.</p> <p>In the absence of a showing of fraud or gross wrong, courts will not inquire into the reasonableness of ordinances or contracts of a muncipal corporation, especially where such ordinance is one expressly authorized by law, and in such case a court of equity will not interfere by injunction.</p> <p>4. Statutes — Repeal of.</p> <p>The Act oí Cong. May 19, 1902 (32 Stat. 200) authorizing cities and towns in the Indian Territory of a certain population, to issue bonds and borrow money for the construction of a system of water-works, is not in conflict with Chap. 29, Mansf. Dig. empowering muncipal corporations to grant exclusive privileges and contract for a water supply with others, nor does it repeal such chapter.</p>

<p>1. Indian Lands — Ejectment—Complaint—Sufficiency Of.</p> <p>Complaint, in an action of ejectment to recover Indian lands held by a Cherokee intruder, alleging the appraisement of the improvements, tender of price, refusal, notice to vacate, and pleading the Indian laws under which such proceedings were had; with allegations of citizenship of plaintiff, Held, sufficient as against a demurrer.</p> <p>2. Indian Lands — Intruders—Ejectment—Notice—Sufficiency Of:</p> <p>In an action of ejectment to recover possession of Indian lands from an intruder a notice given by the original plaintiff is a sufficient compliance ryitb the provisions of Act of Cong. June 28, 1898, c. 517 s. 5 although the Cherokee nation was afterwards made a party and no additional notice was given by it.</p> <p>3. Indian Lands — Ejectment—Tender of Value of Improvements — Need not he Kept Good.</p> <p>In an action of ejectment to recover possession of Indian lands, where - there is a prayer for damages for the wrongful detention, and the tender was properly made, it is not necessary to keep same good by bringing the money into court.</p> <p>4. Ejectment — Damages for Detention, Recoverable.</p> <p>Under Sec. 2637 Mansf. Dig. (1921 Ind. Ter. Stat.) the plaintiff prevailing in an action of ejectment may recover, as damages, the rents and profits during the detention of the premises.</p> <p>5. Indian Lands — Ejectment—-Intruder—Jurisdiction of U. S. Courts.</p> <p>The United States Courts in Indian Territory have jurisdiction of an action of ejectment brought to recover possession of Indian lands in Cherokee nation held by an intruder.</p> <p>6. Indian Lands — Intruders-—Ejectment—Limitations.</p> <p>Under Act of Cong, June 28,1898, s, 10, an action to recover possession of Indan lands begun, and the Cherokee nation made a party all within less than two years from the passage of the act, is not barred by the statute of limitations.</p>

Joseph A. Gill, Judge. Action by the Arkansas & Oklahoma Railroad Company against W. H. Doherty. Judgment for plaintiff. Defendant appeals.

■ Appeal from the United States Court for the Central District. William H. H. Clayton, Judge. Action by W. A. Madden against S. V. Anderson and others. Judgment for defendants. Plaintiff appeals. Action of ejectment, in which Madden, as plaintiff, filed complaint against defendants on October 19, 1900, in the United States Court for the Northern District of Indian Territory, at Wagoner. On December 3, 1900, W. A. Barbee filed his answer.

<p>1. Indian Lands — Improvements—Forfeiture of by Act of Indian Nation.</p> <p>An act of the Choctaw council forfeiting to the nation improvements of a citizen of the United States, on lands in said nation, is of no validity, in the absence of express authority by treaty or some act of Congress.</p> <p>2. Receivers — Actions Against After Discharge.</p> <p>After the discharge of a receiver no action can bo maintained against him, as such.</p> <p>3. Pleading■ — Objection to Jurisdiction — Demurrer with A nswer.</p> <p>Under Sec. 5054 Mansf. Dig. (3259 Ind. Ter. Stat.) a demurrer may be filed with an answer and although not urged upon the consideration of the court it saves the question of jurisdiction of the court, so that an objection upon that ground may be made, for the first time on appeal, and not come too late.</p>

<p>1. Indian Lands — Ejectment—Pleading—Complaint.</p> <p>In an action of ejectment brought by a citizen of the Chickasaw nation' ' it is not necessary for the complaint to allege that plaintiff intends to allot the land sued for and that with it he is not in possession of more than his allotable share of the tribal lands. These are matters of defense.</p> <p>2. Indian Lands — Claims to Possession — Jurisdiction of U. S. Courts.</p> <p>The provisions of the Supplemental Agreement (32 Stat. 644) giving to the Commission to the Five Civilized Tribes exclusive jurisdiction to determine controversies as to the right to select lands for allotment does not preclude the U. S. Courts from jurisdiction of actions to recover possession of such lands before allotment.</p> <p>3. Instructions.</p> <p>Complaint cannot be made that the court’s instructions were too general and inapplicable to the facts or for failure to make the instructions more explicit in certain particular when no instructions covering such particulars were requested.</p> <p>4. Instructions — Not Covering Issues Presented by Pleadings — Objection Waived. In an action of ejectment defendant plead the value of his improvements under the betterment act (Sec. 2644 Mansf. Dig., 1928 Ind. Ter. Stat.) and plaintiff filed no reply. Held, that although the answer might be considered as pleading a counter-claim and be admitted by failure to reply, still defendant cannot complain that such questions were not presented to the jury by the court’s instructions, when no request for same was made.</p> <p>5. Ejectment — Defense.—Betterments—Waiver by Failure of Proof and Exceptions.</p> <p>In an action of ejectment where the answer plead the value qf improvements, but proof thereof was excluded by the court and defendant failed to save an exception thereto, and failed to request instructions thereon, he has waived any error in relation to the exclusion of such defense from the evidence and from the consideration of the jury.</p> <p>6. Ejectment — Estoppel—Instructions.</p> <p>In an action of ejectment, an instruction that if the plaintiff had, as a beneficiary, accepted the terms of a will under which the defendant claimed the land in controversy, she would be estopped from disputing the provisions of the will was more favorable to the defendant than one requested by the defendant upon the same subject, and hence cannot be complained of, even if improperly given.</p>

IÍOSEA ToAVNSENI), Judge. Suit by S. B. Cook and others against Edson Keith & Co. Judgment for defendants. Plaintiffs appeal. On the 20th da}r of October, 1893, the appellees, Edson Keith & Co., recovered a judgment in the United States Court at Ardmore, Inch Ter., against D. F. Cook, Walter Cook, Herbert Cook, and the appellant S. B. Cook for the sum of $369.58, with interest at 6 per cent, per annum and cost of suit.

William H. H. Clayton, Judge. Scott Bise was convicted of receiving stolen property. He appeals. The appellant (defendant below) was on the 19th day of May, 1903, convicted of receiving stolen property, and was sentenced by the court to the penitentiary at Ft. Leavenworth for the period of three years. From the judgment of conviction this appeal was prosecuted.

<p>1. Murder — Evidence—Opinion of Physician as to Position of Body — Inadmissible.</p> <p>Ob. a trial for murder, it was error to allow a physician to testify as to an examination of the body and wound and state his opinion as to the position of the deceased’s arm at the time the wound was received; that being a question for the jury.</p> <p>2. Trial — Cross-Examination—Control of, in Discretion of Court.</p> <p>The control of the cross-examination is within the discretion of the court, and a ruling thereon will only be disturbed upon a clear showing of abuse of this discretion.</p> <p>3. Murder — Evidence—Improperly Admitted — Effect of.</p> <p>"Where, in a murder trial, evidence, of a conversation at which defendant was not present was improperly admitted, a conviction will not be reversed when such improper evidence seems to have had no influence with the jury.</p> <p>4. Appeal — Evidence—Objection Mlist Appear in Record.</p> <p>An alleged error in admission of testimony will not be considered where the record does not show any objections made and exceptions reserved at the trial.</p> <p>5. Murder — Instruction—Abstract Proposition of Law.</p> <p>An instruction covering an abstract proposition of law, not directly applicable to the facts in issue, but from which no injury could result to defendant, will not warrant a reversal.</p> <p>6. Murder — Aiding and Abetting — Instructions.</p> <p>On a trial for aiding and abetting in a murder, an instruction that if defendant had in good faith abandoned any intention to participate and was endeavoring to withdraw from the conflict, he should be acquitted was properly refused; for the instruction should have contained the provision that defendant must also have notified the principal of such withdrawal.</p>

<p>1. Contract — Presumed to be Written — Statute of Frauds — Not Raised by Demurrer.</p> <p>Where, in an action upon a contract, the complaint does not state whether same is written or verbal, the presumption is that it is written and a demurrer cannot raise the question of the statute of frauds as to such contract.</p> <p>2. Admission of Counsel — In Argument — Conclusive.</p> <p>In an argument upon a demurrer an admission of counsel that a contract was verbal will bo conclusive as to him, when the ruling of the trial court, based thereon, is presented to this court for review.</p> <p>3.Contract — Statute of Frauds — Law of Other Slates Presumed to be Same as Those of Forum.</p> <p>In an action on a contract relating to lands in another state, the statute of frauds of such other state will bo presumed, in absence of proof, to bo the same as that of the forum.</p> <p>4. Contracts — Parol—For Purchase 0/ Interest in lands — Void.</p> <p>A parol contract for the purchase of an interest in lands for another being within the statute of frauds, is void for all purposes and cannot raise a trust or form the basis of title.</p> <p>5. Equity — Courts of Will not Decree Performance of Vague and Indefinite Contracts.</p> <p>A court of equity in the Indian Territory should not undertake to enforce an agreement to operate an oil lease in Oklahoma where the agreement is wholly indefinite as to manner of working and extent of operations.</p>

William H. H. ClaytoN, Judge. Action by the Brunswick-Balke Collender Company against J. H. Ammons. Judgment for plaintiff. Defendant appeals.

William H. H. Clayton. Judge. Action by W. G. Weimer and others against J. W. Zevely and others for an injunction. Judgment for plaintiffs. Defendants appeal.

<p>1. Fire Insurance — Title to Property — In Indian Nation — Estoppel.</p> <p>A policy or contract of fire insurance written upon property in the Indian Territory at a time when, under Secs. 2116, 2118 Rev. Stat. U. S. land therein was not subject to individual ownership contained a provision that same should be void if the building insured should be upon land not owned in fee by the assured. Held, that such provision was a nullity and the insurance company is estopped from claiming a forfeiture thereunder.</p> <p>2. Fire Insurance — Proof of Loss — Verification—Waiver.</p> <p>After a ..loss by fire of property covered by a policy containing a requirement that verified inventory as proof of loss to be furnished within sixty days, the assured, within that time furnished an unsworn inventory and the company’s agent stated it was all right. Later the company refused to waive the requirements of policy and claimed the proof to be insufficient, and failed to return the unsworn proof, as requested, in time to enable the assured to verify same within the required time. Held, that the Company thereby waived the requirement as to proof of loss.</p> <p>3. Evidence — Husband and Wife.</p> <p>A divorced wife cannot testify, against her husband, as to communications made by her to her husband while the marriage relation subsisted; and where objection was made on this ground and counsel offering the testimony made no statement showing that her testimony would be to other facts that might have been competent, it will be presumed that the testimony related to such inadmissible communications and was properly excluded.</p>

Hosea Townsend, Judge. Action by Annie G. Brown, administratrix, against Sallie Howell and others. Judgment for plaintiff. Defendants appeal.

<p>1. Railroads — Loss of Goods — Hability For — Limited by Bill of Lading — Not if Unsigned.</p> <p>The liability of a railroad for loss of goods is only limited by special stipulations in a Bill of Lading when same is signed by the carrier’s agent; but where unsigned and delivered to a shipper who could neither read nor- write, and no proof of a verbal contract of shipment, the carrier is liable for the value of the goods.</p> <p>2. Pleading — Amendment—During Trial.</p> <p>' Under Sec. 5080 Mansf. Dig. providing for the amendment of pleadings at any time in furtherance of justice and to conform same to the facts proved, it was not error for the court to allow, during a trial, an amendment of complaint stating .that a bill of lading was not signed when it so appeared from the proof.</p>