Volume 53 — Oklahoma Reports

<p>Original proceedings for writ of prohibition by the Billings Hotel Company and others against the City of Enid and others.</p>

<p>1. INSURANCE — Life Insurance — Delivery of Policy — Waiver of Condition. On December 5, 1910, the insured made application in writing to defendant at S., through its special agent, for. the policies sued on, therein representing his health to be good. The-special agent 'recommended the acceptance of the risk, sent the same to the home office at Chicago, where policies issued and were sent to the bank at S., pursuant to an arrangement with the bank to turn them over to any one having the right to receive them on payment of the premiums, which, when paid, were to be credited to the account of defendant by the bank as its depository. At the time the policies arrived M. was the local soliciting agent of the defendant at S., under agreement with ■ defendant for a certain per cent, of the first year’s premium on business written with his aid. Having assisted in securing the business in question, and being entitled t.o part of the premiums on delivery of the policies, M., on February 8, 1911, with knowledge that the insured was in ill health, instructed H.,.a collector for the bank, to turn the policies over to the insured on payment of the premiums if he so desired; whereupon H., with the permission of the cashier, after. banking hours entered the bank, left a check for the amount of the premiums, took the policies, and caused them to be delivered to the insured, who died next day. Held, the policies providing that they “shall not take effect until the- same shall be issued and delivered by the company, and the first premium paid thereon in full when my health is in the same condition as described in this application,” the good health of the insured was a condition precedent to the delivery of the policies. Held, further, that the local soliciting agent was without authority to waive such condition, and that on the facts stated no risk attached under the contract of insurance.</p> <p>2. INSURANCE — Life Insurance — Action on Policy — Defense— Estoppel. But where, in addition to the facts stated, the check given in payment of the premiums was collected and the proceeds placed to the credit of defendant, pursuant to a prior arrangement with the bank, and, being thus received, has since been retained by defendant with knowledge of all the facts, held that such action constitutes a waiver of such condition precedent, and that defendant is estopped to urge-that no risk attached under the contract of insurance.</p> <p>(Syllabus by the Court.)</p>

<p>Original action between the State Board of Equalization and E. B. Howard, as State Auditor, and the Wolverine Oil Company, to determine the validity of portions of the act of March 11, 1915, as provided for by said act, and pursuant to section 5303, Rev. Laws 1910.</p>

<p>Original proceeding brought by T. F. Horne to disbar James H. Gernert.</p>

Error from District Court, Oklahoma, County; W. R. Taylor, Judge. Action by Seth Gettys, administrator of the estate of Jonas Bedford, deceased, against Thomas L. Cox. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Craig County; Preston S. Davis, Judge. </p> <p>Action by the Buxton & Skinner Stationery Company, a corporation, against the Board of County Commissioners of Craig County, Okla. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Coal County; Robert M. Rainey, Judge. Action by Ira Hathaway and others against John W. Hoffman and others. Judgment for defendants, and plaintiffs bring error.

<p>APPEAL AND ERROR — Review—Verdict—Evidence. Where the evidence .reasonably tends to support -the verdict of the jury, -the judgment of the trial court will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>INDIANS — Allotments—Descent and Distribution. Where a citizen of the Creek Nation died intestate after receiving her allotment, leaving, her surviving her noncitizen husband' and their child, a citizen of the Creek Nation, held, that, although .allotted, the lands are -still “lands of the Creek Nation” within the meaning of section 6 of the Supplemental Agreement (Act Cong. June 30, 1902, c. 1323, 32 Stat. 501), following Washington v. Miller, 235 U. S. 422, 35 Sup. Ct. 119, 59 L. Ed. 295. Held, further, that Enabling Act, sections 13, 21, and Const, art. 25, section 2, in effect repealed that part of section 6 of the Supplemental Agreement (Act Cong. June 30, 1902), providing that descent and distribution of land and money, provided for by an act of Congress approved March 1, 1901 (Act March 1, 1901, e. 673, 31 Stat. 861), shall be in accordance with chapter 49 of Mansfield’s Digest of the Statutes of Arkansas, and substituted therefor the laws of the Territory of Oklahoma thus extended to and put in force throughout the state, leaving in force the two provisos contained in section 6, which survive and operate as su'ch upon the laws extended to the extent of limiting the same, so that -“only citizens of 'the Creek Nation, male and female, and their Creek descendants shall inherit lands of the Creek Nation,” and “that if there he no person of Creek citizenship to take the descent and distribution of said estate then the inheritance shall go to noncitizen heirs in the order named in” the laws of the State of Oklahoma. Construing which, it is held, further, that the child took the whole allotment of the mother to the exclusion of the noncitizen father, and that a purchaser from him of one-half thereof took no title.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Muskogee County; R. P. de Graff enried, Judge. ■ Action by John W. Bailey and another against Nettie Drake, and, defendant dying, an order of revivor was made in the names of Rose Drake Davidson, as administratrix of the estate of Nettie Drake, deceased, and others, Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court Okfuskee County; John Caruthers, Judge. </p> <p>Action by A. J. - Morgan against J. H. Patterson and another. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by Louis Baumle against the Anchor Bottling Works. Judgment'for plaintiff, and defendant brings error. Ejectment by Louis Baumle and others against the receiver of the Anchor Steam Bottling Works, a corporation. Judgment for plaintiffs, and defendant brings error. Affirmed.

<p> Frror fron District Court, Wagoner County; R. C. AUen, Judge. </p> <p>Action by Charles G. Watts against J. D. Weaver. Judgment for plaintiff, and defendant brings error.</p>

<p>1. SPECIFIC PERFORMANCE! — Judgment—Impossibility of Performance — Innocent Purchaser. A judgment for defendant in an action for specific performance based on a finding of fact, among others, that defendant had conveyed the property to an innocent purchaser for value cannot be reversed, as specific performance is impossible where the party to the contract has conveyed the property to one who is free from equities.</p> <p>2. VENDOR AND PURCHASER — Remedy of Purchaser — Recovery of Money Paid. Where a vendee pays money in part performance of an executory contract of sale and fail’s to perform it, he cannot recover of the vendor the money so paid.</p> <p>3. SPECIFIC PERFORMANCE — Rescission by Vendor — Restoration of Property Received. The rule that a vendor, who elects to rescind a contract for the sale of real property, “must restore to the other party everything of value which he has received from him under the contract” (section 986, Rev. Laws 1910)), does not apply to the defendant in a suit for specific performance commenced by the vendee, where the vendor pleads an abandonment of the contract for the purpose merely of defeating the plaintiff’s demands, and does not set up any affirmative equitable defense or claim any affirmative .relief.</p> <p>(Syllabus by the Court.)</p>

<p>1. ATTORNEY AND CLIENT — Settlement by Attorney — Authority —Presumption—Evidence. Where an action between a shipper and a railroad company to enforce a compromise and settlement of a certain damage case between the same parties, which, it was alleged, was agreed nipón toy counsel for the respective parties, was tried upon the theory that it was governed by the general law applicable to the power of attorneys to settle or - compromise actions on behalf of clients, it is not to be presumed that when local counsel for the railroad and its attorney for the state assume the right to exercise such power, and do exercise it, this is done without lawful authority; and slight evidence, in such a case, will be sufficient, to take the ease to the jury on that question.</p> <p>3.SAME. Evidence examined, and held sufficient to take to the jury the question of whether local counsel for the railroad was authorized, by its attorney for Oklahoma, to compromise the action for damages, and whether the local counsel and the attorney for Oklahoma were clothed with the power they assumed to exercise.</p> <p>3. ' COMPROMISE AND SETTLEMENT — Instructions, Instructions to the jury examined, and held to lie substantially correct.</p> <p>4. ATTORNEY AND CLIENT — Principal and Agent — Unauthorized Act — “Ratification’'—Pleading and Proof. “Ratification” is equivalent to an original grant of authority. The situation of the parties is the same as if the plaintiff had induced the contract in the first instance, through an agent duly appointed for the purpose. Proof of ratification includes proof of agency and authority, and may be made under a pleading charging the ratified act to be that of the principal.</p> <p>5. APPEAL AND ERROR — Harmless Error — Instructions—Evidence. After an examination of the entire record, it does not appear that the errors ’complained of, based upon misdirection of the jury, or the improper admission or rejection of evidence, have -probably resulted in a miscarriage of justice, or constitute a violation' of any constitutional or statutory right.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pottawatomie County; Chas B. Wilson, Jr., Judge. </p> <p>Action by Jesse J. Penny against the Planters’ Cotton & Ginning Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Perfecting of Appeal — Petition in Error - Case-Made. The filing of a purported ease-made in the Supreme Court, in the absence of a petition in error, institutes no action thereon, under sections 5238 and 5240, Rev. Laws 1910.</p> <p>2. SAME. Where plaintiff in error files lids case-made in this court on the last day of the statutory period for perfecting his appeal, and does not file his petition in error until eight days after the expiration of said period, held, not to vest this court with jurisdiction of the cause.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Actions by Arthur Lee Schrock and.others, and Lillie Isherwood and others, and Hattie Feland and others, against Grady county.</p>

<p>APPEAL AND ERROR — Presentation for Review — Motion- to Vacate Judgment. Dismissed upon the authority of Grady County v. Schrock, ante, p. 144, 155 Pae. 882, Grady County v. Miller, post, p. 148, »nd Orr v. Fulton, 52 Okla. 621, 153 Pae. 149.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Presentation for Review — Motion to Vacate Judgment. Dismissed upon the authority of Orar v. Fulton, 52 Okla. 621, 153 Pae. 149, and Grady County v. Schrock, ante, p. 144, 155 Pae. 882, and Grady Coimty v. Alexander, ante, p. 147.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND' ERROR — Case-Made—Time to Make and Serve — Extension of Time — Validity of Order. A purported order of the ■trial judge made at chambers extending the time to make and serve a case-made is without force, where the case-made fails to show affirmatively that -such order was entered in the journal of the court, pursuant to section 5317, or section 5324, Rev. Laws 1910.</p> <p>(Syllabus by the Court.)</p>

Error from County Court, Grant County; C. W. Stephenson, Judge. In the matter of the assessment of Stewart Bros., a co-partnership composed of H. M. Stewart and another. From the action of the county treasurer of Grant county in refusing to run on the tax roll certain property, O. R. McCombs, tax ferret, attempted to appeal to the county court, where his appeal was dismissed, and from the order of dismissal he brings error.

<p> Error from District Court, Okmulgee County; E. B. Hughes, Judge. </p> <p>Action between W. F. Brakel and others- and Alexander Scott. From the judgment, the parties first mentioned bring error.</p>

Error from District Court, Okmulgee County; Wade S. „•Stanfield, Judge. Ejectment by George ¡W. Strawn against A. C. Brady, wherein J. C. Cassaver was substituted as plaintiff. Judgment for substituted plaintiff, and defendant brings error.

Error from District Court, Carter County; Stihvell H. Russell, Judge. Action by Robert Sweeney and others against E. E. Morris and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Atoka County; J. H. Linebaugh, Judge. </p> <p>Action by Naoma P. Phillips and another against W. D. Oliver and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. PARENT AND CHILD — Injuries to Child — Loss of Services— Party in Interest — Question for Jury. Record examined, and held, that there was sufficient evidence adduced at the trial to take the case to the jury upon the question whether the plaintiff had relinquished his parental authority and control over his •minor child and turned over to another the duty of his care, custody, support, and education. Held, further, that an examination o'f the entire record discloses that the parties have had a fair and impartial trial according to the forms of the law, and substantial justice has been done.</p> <p>2. APPEAL AND ERROR — Ground for Reversal — Nonprejudicial Errors — Instructions. In suleh circumstances, by virtue of section 6005, Rev. Daws 1910, errors based upon nondirection or misdirection of the jury do not constitute sufficient ground for setting aside or reversing the judgment of the trial court.</p> <p>(‘Syllabus by the Court.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by the United States Bond & Mortgage Company, a corporation, against Ida M. Keahey and others. Judgment for defendants, and plaintiff brings error.

<p>1. MALICIOUS PROSECUTION — Defense—Advice of Counsel. In an action for malicious prosecution growing out of a criminal prosecution of the plaintiff by defendant, where the latter before instituting the criminal proceedings advised with an attorney, and placed before him all the facts bearing on the case of which complainant had knowledge or could have ascertained by reasonable inquiry and diligence, and defendant acted upon the advice received honestly and in good faith, the absence of malice is established, the want of probable 'cause is negatived, and a recovery cannot be had.</p> <p>2. SAME — Instructions. Instructions 3 and 4, upon the defense of advice of counsel, examined in connection with the evidence, and held to correctly state the law.</p> <p>3. MALICIOUS PROSECUTION — Burden of Proof — Want of Probable Cause. In an action for damages for malicious prosecution, the burden of proving want of probable cause rests upon the plaintiff, and not the defendant.</p> <p>(■Syllabus by the Court.)</p>

<p>1. INSURANCE — Life Insurance-Misrepresentations of Applicant— “Company.” In an application for life insurance, to the question, “Have you ever.applied to any agent or company for insurance o® for restoration of a lapsed policy without having received a policy of the exact kind and amount applied for?” applicant answered, “No,” and to the question, “Has any company or association ever declined or postponed your application for insurance or offered you a policy different to the one applied for?” “When?” “-What Company?” he answered, “No.” Previous thereto he had applied for a second certificate in the Endowment Rank of the Knights of Pythias, and his application had been rejected. Held, that the answers given were not false and did not avoid the policy.</p> <p>2. INSURANCE — Life Insurance — Construction. Where the meaning of language in a policy of life insurance or in the applies tion therefor is ambiguous or susceptible of two different constructions, the same will be strictly construed against the insurer and that construction adopted which is most favorable to the insured.</p> <p>3. TRIAL — General Finding — Construction. Where a case is tried to the court without a jury and the court makes no special findings of fact, a general finding in favor of plaintiff includes a finding upon every fact necessary to support the judgment. •</p> <p>4. INSURANCE — Life Insurance — Misrepresentations in Application —Intent—Question for Jury. The question as to whether certain answers given to questions' in an application for insurance are false, and as to the intent of the applicant in making them, is a question of fact for the jury, or for the court sitting as a jury.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Jackson County; J. M. Williams, Judge. </p> <p>Action by James A. Wallace against W. A. Blasingame. Judgment for plaintiff for less than claimed, and he brings error.</p>

<p> Error from District Court, Le Flore County; W. H. Brown, Judge. </p> <p>Action by the J. S. Terry Construction Company against H. S. McKenna and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Rogers County; W. J. Campbell, Judge. </p> <p>Mandamus by William M. Gresham and others against Frank Peed, Commissioner of Collinsville, Okla. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error, from District Court, Beckham County; G. A. Brown, Judge. </p> <p>Action by J. A. Arthur against the Interstate Compress Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. STATUTES' — Gross Revenue Tax — Validity of Statute. That portion of section 2, c. 44, Sess. Laws 1910, imposing a gross revenue tax on corporations, which provides that public service corporations operating partly within and partly without the state shall pay a tax equal to such proportion of the per centum of its gross receipts, as thereinafter provided, as the portion of its business done within the state bears to the whole of its business, having been declared unconstitutional as an attempted regulation of commerce among the states (Meyer, Auditor, v. Wells Fargo & Co., 223 U. S. 298, 32 Sup. Ct. 218, 56 L. Ed. 445), the remaining part of the statute, levying a tax on such corporations operating wholly within the state, cannot be sustained, being in contravention of the legislative purpose and intent, and therefore the entire act must be held invalid.</p> <p>2. TAXATION — Partial Invalidity — Gross Revenue Tax — Construction and Validity of Statute. Chapter 44, Sess. Laws 1910, imposing a gross revenue tax, provides a comprehensive scheme of taxation, the parts of which, as respects those public service corporations operating wholly within the state, and those operating partly within and partly without the state, must be construed according to the obvious legislative intent as a whole. Such construction precludes the belief that the Legislature would have enacted the statute independent of the part held unconstitutional.</p> <p>3. STATUTES — Partial Invalidity — Construction. The question as to whether portions of a statute which are constitutional shall be upheld while other divisible portions are eliminated as unconstitutional is primarily one of intention. If the objectionable parts of a statute are severable from the rest in such a way that the Legislature would be presumed to have enacted the valid portion without the invalid, the failure of the latter will not necessarily lender the entire statute invalid, but the statute may be enforced as to those portions of it which are constitutional. If, however, the constitutional and the unconstitutional portions are so dependent on each other as to warrant the belief that the Legislature intended them to take effect in their entirety, it follows that, if the whole cannot be carried into effect, it will be presumed that the Legislature would not have passed the residue independently, and accordingly the entire statute is invalid.</p> <p>(Syllabus by the Court.)</p>

<p>1. .CONSTITUTIONAL LAW — Municipal Corporations — Due Process — Street Improvements. Section 723, Comp. Laws 1909, conferring upon the mayor and council of cities of the first class authority, whenever they shall deem it necessary, to grade, pave, macadamize, gutter, curb, drain or otherwise improve any street, avenue, alley or lane, or any part thereof, within the limits of the city, for which a special tax is to .be levied, by resolution to declare such work or improvement necessary to be done, which resolution shall be published in six consecutive issues of a weekly newspaper published and having a general circulation within such city, provides for a sufficient notice to the owners-of property sought to be charged with the cost of the improvements, and is therefore not repugnant to section 7, art. 2, Okla. Constitution, or to the Fourteenth Amendment to the federal Constitution.</p> <p>2. MUNICIPAL CORPORATIONS — Street Improvements — Notice to Property Owners — Sufficiency. The due publication of the ■resolution of necessity of the mayor and city council, provided for in said section 723, together with the publication of the notice given by the city clerk required by section 726, Comp. I.aws 1909, as exhibited by the petition, was sufficient notice to property owners affected thereby, of the proposed street improvements.</p> <p>3. NEWSPAPERS — Notice—Publication in “Daily Newspapers.” A newspaper published on each day of the week except Monday is a daily newspaper within the meaning of sections 723 and 726, Comp. Laws 1909, providing, respectively, for the publication of the resolutions of the mayor and council, and notice of hearing by the city clerk, in street improvement work.</p> <p>4. MUNICIPAL CORPORATIONS — Street Improvements — Resolutions — Notice—Publication. Section 723 requires that the resolution “he published in six consecutive issues of a daily newspaper," while section 726 provides that notice of the session of the mayor and council “shall be published by the city clerk in five successive issues of a daily newspaper.” Section 730 provides that the publication of all notices in a daily newspaper called for in the act shall be the number of clays therein specified, exclusive of Sundays and legal holidays. Held, a compliance with the statute, where the resolution and notice were published, respectively, in six and five consecutive issues of a newspaper published each day in the week except Monday, and omitting the Sunday edition.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by J. C. Hills against the City of Lawton, Okla., a municipal corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Ellis County; James R. Tolbert, Assigned Judge. </p> <p>Action by the Board of County Commissioners of Ellis County against the First State Bank of Shattuck and others. From the judgment, D. C. Ewing and others, defendants, bring error.</p>

<p>Error from District Court, Pawnee County; L.. M. Poe, Judge.</p> <p>Action by Robert Ellis against the Missouri, Kansas & Texas Railway Company. From the order of the court refusing to set aside default judgment in favor of plaintiff and to grant a new trial, defendant brings error.</p>

<p> Error from District Court, Okmulgee County; Ernest B. Hughes, Judge. </p> <p>Action by Grant N. Jefferson and others against Wm. J. Cook and others. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Leflore County; W. H. Brown, Judge. Action by A. H. Crouthamel, as guardian of the estate of George Washington, a minor, against J. H. Welch and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Comanche County; Cham Jones, Judge. Action by James W. .Lusk and others, receivers of the St. Louis & San Francisco Railroad and another, against J. L. Porter, as County Treasurer of Comanche County. Judgment for defendant, and plaintiffs bring error.

<p>NEWSPAPERS — Selection—Sales fors Delinquent Taxes — Publication of Notice. Section 7409, Rev. Laws 1910, makes it the duty of the county treasurer to 'advertise and sell at public auction real estate purchased by him for the county for delinquent taxes which remains unredeemed for two years from date of sale, and by section 7410, Rev. Laws 1910, he is required to give notice of the sale thereof once a week for four consecutive weeks preceding the sale in some newspaper in the county, and in selecting such newspaper he is. not bound by any order or direction of the county commissioners in x-eference thereto.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Remand of Cause — Motion, for New Trial. Where a cause is reversed in this court, with instructions to enter, judgment, and before the mandate is spread of record a motion for a new trial on the ground of newly discovered evidence is filed, which, on motion, is stricken, held no error, as the court was without jurisdiction to do other than enter judgment pursuant to the mandate, and that, if applicable at all, Rev. Laws 1910, sec. 5037, cannot be here invoked,, for the reason that more than one year has expired since the rendition of the final judgment.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Petition in Error — Time for1 Filing — Dismissal. Where more than six months has intervened between' the rendition of the final order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Roger Mills County; T. P. Clay, Judge. Action by D. N. Fink, trustee, and others, against the Cheyenne Short Line Railroad Company and others. From the judgment, the parties first mentioned bring error.

<p> Error from District Court, Hughes County; George C. Crump, Judge. </p> <p>Action by the Continental Gin Company against N. V. Bilby. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court} Nowata County; T. L. Brown. Judge. Action by Rufus Cochran and ■ others against F. A. Blanck and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Oklahoma, County; Tom D. McKeown, Assigned Judge. Action by Mary Miozrany against ths National Surety Company and others. Judgment for plaintiff against the National Surety Company, and the company brings error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by J. Ramsey Davis against the Southwestern Surety Insurance Company and another. Judgment for plaintiff, and defendant named brings error.

<p> Appeal from Order of Corporation Commission. </p> <p>Proceedings before the Corporation Commission against the Missouri, Oklahoma & Gulf Railway Company. From an order of the Commission requiring that the railroad company change the location of its depot, etc., in the</p> <p>village of Salina, the railroad company brings error.</p> <p>Re-</p> <p>versed.</p>

<p>1. DEEDS* — Delivery—Effect. Where the owner of land executes an instrument, attested as a deed, and in all respects in the form of a deed, and places it beyond recall in the hands of a third person, to be delivered to his daughters at his death, it should o be treated by the court as a conveyance passing title in praesenti, with the right to possession postponed until the death of the grantor.</p> <p>3. SAME — Action to Cancel — Demurrer to Evidence — Sufficiency. In a suit to set aside such a deed by a son of the grantor for insufficient delivery, in which the plaintiff voluntarily assumed the burden of proof, the evidence adduced by the plaintiff tended to show that the grantor executed the deed with the express intention of deeding his property to his girls and making disposition thereof at that time, the deed to be turned over to- the girls at his death; that the scrivener who prepared the deed, and to whom the foregoing statements were directed, placed the deed in a bank, ■ where it remained until the death of the grantor, whereripon it was turned over to one of the grantees and the administratrix of the estate of the deceased, who placed it of record. Held, that the trial court did not err in sustaining a demurrer to the evidence.</p> <p>3. GIFTS — Acceptance—Presumption. The presumption that a person will accept a purely unquálifled gift is so strong that the courts have quite generally manifested a disposition to act upon such presumption as a working rule for the operation of such conveyances.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County; W. F. Freeman, Judge. </p> <p>Action by Arthur Adams against W. D. Coleman and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Appeal Bond — Entry of Judgment. Where supersedeas bond is filed, and on appeal to this court the judgment of the lower court is affirmed, on motion of defendant in error judgment will be entered in this court against the sureties on the appeal bond.</p> <p>(Syliabus by the Court.!</p>

<p> Error from District Court, Okfuskee County; Tom D. McKeown, Judge. </p> <p>Action by W. H. Dill against M. B. Flesher. Fron the judgment, Dill brings error.</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by Junius Carter, by John Carter, as next friend, against Dan McKeever. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Le Flore County; W. H. Brown, Judge. </p> <p>Action by Reeves & Co. against A. L. Phillips, surety on promissory note. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Disposition of Cause — Decision as Law of Case. An opinion handed down in a ease which' is remanded for further proceedings becomes the law of the case.</p> <p>2. TENDER — Sufficiency—Amount. Where the amount due is within the exclusive knowledge of the creditor, ¡and the creditor on demand neglects or refuses to indicate the correct amount that is due, the debtor may tender so much as he thinks is justly due, and if less than the true amount, the tender, nevertheless, will be good.</p> <p>3. INTEREST — Amount—Effect of Tender. The tender of a less sum than is actually due will not prevent the running of interest thereafter on the whole principal, as though tender had been made.</p> <p>(Syllabus by the Court.)</p>

<p>CANCELLATION OF INSTRUMENTS — Conditions Precedent — Restoring Consideration. In a suit to rescind a contract, tlie plaintiff, by virtue of section 986, Iiev. Laws Okla. 1910, must restore to the other party everything of value which ho nas received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action by A. F. McCaleb against G. R. McKinley. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Action by the Oklahoma Auto Supply Company, a corporation, against A. E. Mathey and others, and H. A. . Von Unworth, interpleader. Judgment for defendant Mathey and interpleader, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by James Beaty, Court Clerk of Oklahoma County, against the Board of County Commissioners of Oklahoma County. Judgment for plaintiff, and defendant brings error.</p>

<p>L COMMEKOEi — Power to Regulate — Exclusive or Concurrent Powers. Act of Cong. .Tune 18, 1910, c. 309, 36 Stat. 539, amending the act to regulate commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379), which placed telegraph companies, with respect to interstate business, in the same class as other common carriers and made such companies liable under the federal law for any dereliction of duty, supersedes all state laws on the subject.</p> <p>Z. COMMERCE — Telegraphs and Telephones — Operation—Limitation of Liability — Validity. A stipulation, on the back of >a regular printed form upon which messages are written, that a telegraph company will not be liable for mistakes or delays in the transmission or delivery of an unrepeated message beyond the amount received for -sending the same, and a further stipulation that the company will not be liable for damages or statutory penalties in any ease where the claim is not presented in writing within 90 days after the message is filed with the company, are, as applied to interstate messages, valid and binding upon 1ho sendee of such message, and are not affected by section Í), art, 23, Const.</p> <p>(Syllabus by the Court.)</p>

<p>Error• from District Court, Comanche County; J. T. Johnson, Judge.</p> <p>Action by James M. Brooks against tbe E. Van Winkle Gin & Machine Works. Judgment for plaintiff, and defendant brings error. Affirmed.</p>

<p> Error from, County Court, Stephens County; J. W. Marshall, Judge. </p> <p>• Action by J. W. Talla against. Joe Anderson. Judgment for plaintiff, and plaintiff brings error.</p>

Mandamus 'proceedings by Clyde Hunter and others against Jess Ross' and others for the possession of the respective offices of treasurer, clerk, and justice of the peace of the town of Braggs. Judgment for each of the plaintilfs, and each of the defendants brings error.

<p>1. REMOVAL OF CAUSES — Determination of Right — Jurisdiction of State Court. A state court is not bound to surrender its jurisdiction of a pending action on ¡a petition for its removal into the District Court of the United States until a case has been made whibh on its face shows that the petitioner has a right to the transfer. All issues of fact made on the petition for removal must be tried in the federal district court, but the state court is at liberty to determine for itself whether, on the face of the record, a removal has been effected.</p> <p>2. . SAME — Pleading. Where the petition for removal of a cause shows that the plaintiff “at the time of the commencement of the suit was, and now is, a citizen and resident of the State of Oklahoma,” and that defendant .at said times wias a corporation organized under the laws of the 'State of Missouri, and a citizen and resident thereof, while the plaintiff's petition shows that both plaintiff and. his next friend and mother were at all times named therein “residents, citizens, and inhabitants of Snyder, * * * in the Western Judicial District of the United States for the State of Oklahoma,” .and where jurisdiction of the district court is founded only on the fact that the action is be■tween citizens of different states, consideration may he given the plaintiff’s petition (it constituting a pa-it of the record) in determining the question of removability.</p> <p>3. SAME — Diversity of Citizenship — Court to Which Removed. An action brought in a state court outside of the federal court district of the plaintiff's residence is not, on objection by plaintiff, removable to the federal court on the petition of the defendant, who is a resident of another state, as sections X and 2 of Act Cong. March 3, 1SS7, c. 373, 24 Stat. 552, as amended by Act Cong. August 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. Stat. 1901, pp. 508, 509), provide that, where jurisdiction of the federal court is founded upon diversity of citizenship, suit shall be brought only in the district of the residence of either plaintiff or defendant, and that suits of a civil nature, at law or in equity, may be removed into the federal court for the proper district by the defendant or defendants therein, being nonresidents of the state. To permit, the removal would not take the cause to “the proper district” within the meaning of the statute, but, instead, into a district of which neither plaintiff nor defendant was a resident.</p> <p>4. RAILROADS — Trespassers—Licensees—Duty to Avoid Injury. A railroad company owes no duty to mere trespassers upon its tracks except to avoid unnecessary injury to them after their presence on the premises is discovered: but. where there exists a license, either express or implied, to the children of a community to go upon and across the tracks in the yards of the company, where for a long period of time, with knowledge of the company’s servants and employees, they have been accustomed to gather for play or to pick' up coal in the yards of the company and near its coal chute, the company is bound to use reasonable care to avoid injury to those whose presence there it may reasonably anticipate.</p> <p>5. SAMIS — That children on some occasions had been warned not to take coal or play about the premises of the company did not absolve the company from its duty to exercise reasonable care in operating its trains in the yards, where it was shown that the former custom had not been discontinued.</p> <p>6. SAME — Injuiry to Licensee — Proximate Cause — Question for Jury. The proximate cause of an injury is ordinarily for the jury, and is to be determined as a question of fact, in view of the circumstances of fact attending it.</p> <p>7. APPEAL AND ERROR* — Invited Error — Instructions. Instructions to the jury that are in substantial compliance with those requested cannot be made the grounds of reversal at tlie instance of the party requesting them.,</p> <p>8. EAILROADS — Injury to Child Licensee — Instructions—Contributory Negligence. An instruction to the effect that, if the jury lKdieve and find from the evidence that the plaintiff (a boy 11 years old) was of sufficient age, intelligence, and experience to comprehend and appreciate the danger incident to his situation, under the circumstances of the case, and was injured by reason of negligence on his part, measuring his conduct by the standard that is to be expected from children of his age, capacity, and understanding under like circumstances, and which negligence was the proximate cause of his injury, and that in such event plaintiff would be guilty of contributory negligence and could not recover, it being admitted that plaintiff was acquainted with the dangers incident to the operation of freight trains while ■being made up in the railroad yards, does not incorrectly state the law; as “children of his age, capacity, and understanding under like circumstances" refers to children such as plaintiff, acquainted with the dangers arising out of the movement of freight trains while switching and being made up.</p> <p>9. SAME — Evidence of Habit. Evidence of the railroad company in support of its claim of contributory negligence, that plaintiff, a hoy 11 years of age, was in the habit or custom of crawling underneath the cars whenever he found the track blocked and desired to cross over said track, the boy himself being a witness, was, for the reason stated in the opinion, inadmissible, and hence properly excluded.</p> <p>10. APPEAL AND ERROR' — Excessive Verdict — Decision, on Appeal. While in ian action for personal injury a verdict will not be. set aside for excessive damages, unless it clearly appear that the jury committed some gross wnfl palpable error, or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of law by which' damages are regulated, yet, where from the size of the verdict it is apparent that it was given under the influence of passion or prejudice, the court may direct a reversal of the case, or give.the plaintiff the option to remit the excess, and allow the judgment to stand as modified.</p> <p>11„ DAMAGES — Personal Injuries — Excessive Recovery. Evidence examined, and the verdict of $20,000 held to he so excessive as to amount to ;a miscarriage of justice, and that the same should be set aside and a new trial granted unless a remittitur is filed for all in excess of $15,000, and interest thereon from date of judgment.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Plea to Jurisdiction — Defenses Available. Where a domestic railway company is sued in a state where incorporated by one claiming to be an employee of said railway company, and claiming to have been injured by defendant’s negligence while doing its work in another state, and summons is properly served on defendant’s local agent in the state of its incorporation, held, the defense that the plaintiff was not the defendant’s employee or under-its control is not available under a plea to the jurisdiction of the trial court.</p> <p>%. TRIAL — Injuries to Servant — Actions — Evidence — Objections. Where the defendant’s plea to the jurisdiction of the trial court has been overruled and it has answered, setting up its defense to plaintiff’s action, it is not error to overrule its objection to the introduction of any evidence, and a motion to be discharged on the ground that the court has no jurisdiction to render a judgment-against it and on other specific grounds, which are substantially the grounds of defense set up in the answer.</p> <p>3. TRIAL — Taking Case From Jury — Demurrer to Evidence— Direction of Verdict. The defendant’s demurrer to the evidence and motion for an instructed verdict, at the close of the evidence in: the trial court, rare properly overruled where there is any competent evidence before the jury which, if true, would support a verdict in plaintiff’s favor..</p> <p>4. PLEADING — Reply—Necessity. Where the answer of the defendant contains no new matter and amounts to nothing more than a denial of the petition, no reply thereto is necessary.</p> <p>5. TRIAL — Instructions—Issues. It is not error for the court in his instructions to the jury to tell them the substance of what is alleged in the petition and answer.</p> <p>6. SAME. Where the instructions given by the court fairly and reasonably present for the consideration of the jury the issues joined by the pleadings and presented by the evidence, they are sufficient.</p> <p>7. MASTER AND SERVANT — Trial—Conclusion of Law or Matter of Fact — Instructions—Applicability to Case. The allegation in defendant’s answer to the effect that, if it was liable for plaintiff's injuries, his right and defendant’s liability were regulated by the federal Employers’ Liability Act, April 22, 1908, c. 149, 35 Stat. 65 CtL S. Comp. St. 1913, secs. 8657-8665), stated a proposition of law and did not controvert any allegation made in plaintiff’s petition, and hence no issue was made thereby, and the court did not err in failing to mention such allegation in his preliminary statement to the jury; there being no allegation in the answer that defendant at the time of the injury was engaged in interstate commerce, and the defendant having denied plaintiff was injured while in its employment or under its direction or control.</p> <p>8. TRIAL — Instructions—Error Cured by Subsequent Instructions. Where the court, preceding the -numbered paragraphs of his instructions to the jury, purports-to state to them the substance of the allegations contained in the petition and the answer and fails to mention the defense of contributory negligence and assumed risk, which are contained in the answer, but gives and reads to the jury instructions requested by the defendant embodying such defenses, held, the error, if any, in failing to mention these grounds of defense in the preliminary statement, was cured by giving the defendant's requested instructions thereon.</p> <p>9. TRIAL — Instructions—Requests. The trial court is not required to give a requested instruction which is uncertain or needs modification or qualification. If it is not good as requested it is not error to refuse it. •</p> <p>10. MASTER AND SERVANT — Injuries to Servant — Actions—Instructions. The primary test of the master’s liability to the servant for injury sustained by the latter is -the right of the master to control the servant at the time of the injury, and that the injury was received while the servant was doing the master’s work or work directed by him, and was the result of negligence chargeable to the master; and in air action by a servant against the master to recover damages for an injury received upon a defective engine which the master told him to move, it is not error to refuse an instruction telling the jury that before plaintiff can recover he must show, by a preponderance of the evidence, that said engine was under the direct manágement, control, and supervision of defendant.</p> <p>11. APPEAL AND ERROR — Record—Questions Presented. ' It is not always error to allow read to the jury, in rebuttal, certain ■answers in the deposition in'eviously taken, of a witness who appeared and testified in- person at the trial, but who had been dismissed and was absent and could not be obtained at the time the deposition was offered, and the action of the trial court admitting such answers, when the same were not set out in the brief of'the complainant, will not be reviewed on appeal.</p> <p>12. APPEAL AND ERROR — Presenting Questions in Trial Court— Necessity. An alleged error of the trial court complained of for the first time in the appellate court will not he considered therein.</p> <p>13. CORPORATIONS — Railroads — Injuries to Servant — Persons Liable. Where two railway companies are incorporated under the laws of different states, but their tracks connect at the state line, and together form a continuous line of railway extending into both states, and both said companies use the same headquarters, roundhouse, and switch yards, and have the same managing and operating officers, and employ and use the same engineers and train crews, and use indiscriminately each other’s engines, cars, and trains, and jointly operate through trains and train crews over both lines of road, and sell continuous tickets and carry passengers over both roads, and deposit the earnings of both companies in one common fund received, kept and disbursed by a common auditor of both companies, and from which common fund the employees and expenses of both companies arc paid, and the joint earnings and expenses are respectively credited and charged to each company in .proportion to mileage owned by it of the aggregate contiguous lines of railway in the two states, and the same common managing officers of both companies have authority to employ, direct, control, and discharge, at will, the engineers and other employees of both companies, and all of whom may be required to work on either company's line of railway, held, in such case, an engineer so employed and controlled, who is injured by the negligence of one or both of such railway companies, while doing the work of both, may sue one or both companies in the courts of either state, and recover his damages, provided he is otherwise entitled to damages,</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; Edward, Dewes Oldfield, Judge. </p> <p>Action by Onno Peppard against the Oklahoma City Construction Company and another, as defendants, and the Maryland Casualty Company, as garnishee. Judgment tor plaintiff, and the garnishee brings error.</p>

<p>APPEAL AND ERROR — Record—Settlement of Case-Made. A notice to defendant in error that case-made would be presented to the trial judge for signing and settlement on January 6, Dll, at 10 o’clock, a. m., “or as soon thereafter as counsel' can be heard,” is not sufficient to confer authority upon the trial judge to sign and settle the same on the 12th day of January, in the absence of the defendant in error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District' Court, Deioey County; G. A. Brown, Judge. </p> <p>Application by the Trustees’, Executors’ & Securities Insurance Corporation, Limited, and another, as trustees, for writ of mandamus to J. E. Hooton, County Clerk of Dewey County. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Suit in equity by R. S. Litchfield against the Henson Oil Company. Judgment for defendant, and' plaintiff brings error.</p>

Error from District Court, Coal County; J. H. Linebaugh, Judge. Suit in equity by Isaac Vogel and others against Alex Steelman and others, as members of the Excise Board of Coal County. Judgment for defendants, and plaintiffs bring error.

<p> Appeal from State Board of Equalization. </p> <p>From the reassessment and increase of valuation of its property, for purposes of taxation, by the State Board of Equalization, the Gulf Pipe Line Company appeals.</p>

• Error from C-ounty Court, Grant County; C. W. Stephenson, Judge. In the matter of the assessment of the Boston Store for taxation. From the judgment, O. R. McComb, tax ferret, brings error.

<p> Error from District Court, Hughes County; R. W. Higgins, Special Judge. </p> <p>Action by the National Reserve Bank of Kansas City, Mo., against N. V. Bilby and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action by J. P. Allen against W. J. W. McLaren and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Transfer of Cause — Time for Tailing Proceedings. An order granting a new trial upon a petition therefor, under section 5037, Rev. Laws 1910. upon the ground of newly discovered evidence, from which an appeal was perfected, 'and which was reversed, does not operate to prevent an appeal from an order overruling a motion for new trial upon the ground of alleged errors occurring at and during the xJrogi.ess of the trial, nor to suspend the time during which such proceedings should be commenced.</p> <p>2. SAME. Where petition in error is not filed in the Supreme Court within the time allowed by law, the filing thereof confers no jurisdiction on the Supreme Court, and same will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Lands—Conveyances—Jurisdiction of State Court. A decree of a district court of this state purporting to confer upon an Indian minor allottee of tribal lands majority rights, including authority to execute a conveyance of her allotment, is ineffectual and void, in so far (as it undertakes to 'authorize a conveyance of said lands in violation of the congressional restrictions thereon.</p> <p>2. SAME — Cancellation. In an action to set aside a void conveyance of the lands of an Indian minar allottee, it is not necessary for plaintiff to plead a formal tender and offer to return the consideration received therefor as a condition precedent to maintaining such action.</p> <p>3. SAME. The fact that a minor Indian allottee in her own name brought suit to set aside a void conveyance of her allotted lands, executed after May 27, 1908, and thereafter permitted said suit to be dismissed with prejudice, cannot operate as a bar to a subsequent suit by her upon attaining her majority to cancel said deed and have same removed as a cloud upon her title.</p> <p>4. INDIANS — Lands—Action by Guardian — Effect. Neither can the guardian of said minor, by commencing an action and thcreafter entering into a compromise and settlement of such litigation, by which same was dismissed, divest the title of said minor to said lands, nor confer any rights upon the grantee in such void conveyance,' nOr give any validity thereto, nor create an estoppel against said allottee thereafter asserting the invalidity of such void conveyance.</p> <p>5. LIMITATION OF ACTIONS — Computation of Period — Accrual of Cause of Action — Infants. The statute of limitations does not begin to run against an action to set aside a void conveyance of an Indian minor allottee of his or her allotted lands, executed after the passage and approval of Act Cong. May 27, 1908, c. 199, 85 Stat. 312, until such minor has attained his or ner majority, as shown by the enrollment records of the Commissioner to the Five Civilized Tribes.</p> <p>(Syllabus by the Court.)</p>

<p>APFEAL AND ERRORr — Dismissal—Grounds—Frivolous Proceeding. Whore upon an examination of the record, petition in error, and the motion' to dismiss it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>NEGLIGENCE — Actions—Instructions—Last Clear Chance. In charging on the doctrine of the last clear chance, it was error for the court to charge that plaintiff could recover if defendant, after discovering her peril, could have avoided injuring plaintiff by the exercise of all of the means at his command, and failed to do so.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Kiowa County; James R. Tolbert, Judge. Habeas corpus proceeding by Thomas 'M. Lynch against O. C. Poe and another. Judgment for defendants, and plaintiff brings error.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Isaac Mendenhall and others against Andrew J. Walters and others. Judgment for defendants, and plaintiffs bring error.

<p>1. BILLS AND NOTES — Negotiability and Transfer — “Holder ta Due Course.” The purchaser of a negotiable instrument, in order to be a holder in due course, must come within the requirements of section 4102, Rev. Laws 1910, defining such holder.</p> <p>2. ATTORNEY AND CLIENT — Authority of Attorney — Notice. Where at the time the note was negotiated to the holder his attorney, acting for and representing him in the particular transaction, had actual knowledge of an infirmity in the note, such knowledge will be imputed to the holder as though the facts were made known to him in person. In such case the principal is chargeable with notice of all such facts as come to his agent’s knowledge while acting within the scope of his agency.</p> <p>3. BILLS AND NOTES — Actions—Burden of Proof. When it is shown that the title of any person who has negotiated a negotiable instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course, except as otherwise provided in section 4109, Rev. Laws 1910.</p> <p>4. SAME. The rule placing the burden of proof on the holder obtains where there is fraud in the inception of the note.</p> <p>5. SAME — Instructions. Instructions placing the burden of proving knowledge of infirmity in a negotiable instrument upon the defendant, except in the class of cases provided for in the latter part of section 4109, Rev. Laws 1910, constitute reversible error. Such instructions- relieve the plaintiff holder of making proof of a fact necessary to a. recovery, and imposes upon the defendant maker the additional duty of establishing to the jury’s satisfaction a fact not necessiary to his defense.</p> <p>(Syllabus by the Court.)</p>

Error' from District Court, Jackson 'County; Frank Mathews, Judge. Action by the Oklahoma State Bank of Altus, a corporation, against A. J. Miller and wife, S. H. Johnson and another interpleading. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by the Iowa State Savings Bank against Fred Wignall and others.' From the judgment, plaintiff brings error.</p>

<p>TAXATION — Collection of Taxes — Delinquency—Statutory Provision. Penalties that had. accrued on delinquent taxes on February 3, 1915. under the act of the Legislature of March 22, 1911 (Sess. Laws 1910-11,- p. 263) were not remitted nor released by the act of the Legislature of February 3, 1915 (Sess. Laws 1915, p. 9), extending the time for the payment of taxes, -and which act further provided that all taxes then due under existing .statutes should bear interest from date of extension until June 1, 1915, at the rate of 6 per cent, per annum.</p> <p>(Syllabus by the Court.)</p>

<p>Original application by Fred G. Shaw for writ of habeas corpus.</p>

<p>1. PARENT AND CHILD — Stepchild—Liability for Support. A husband, who receives into his family and supports his wife’s child by & former marriage, will be presumed to have done so as a parent; and where such is the case, said child is not liable to him for its support. Section 4378, Rev. Laws 1910.</p> <p>2. GUARDIAN AND WARD — Dealings Between — Presumption of Fraud. Courts watch with great jealousy transactions of guardians with their wards, or any dealings between them affecting the estate of the ward. From the confidential relations between them, it will be presumed that the ward was acting under the influence, of the guardian, and all transactions between them prejudicially affecting the interests of the ward will be held to be constructively fraudulent. This presumption: extends to transactions between them after the guardianship has ended, but where the influence remains, and the control and dominion over the former ward’s property still continues.</p> <p>3. SAME — Proof to Overcome Presumption. The equitable rules concerning dealings between guardian and ward are very stringent. The relation is so intimate, the dependence so complete, the influence so great, that any transactions between the two parties, or by the guardian alone, through which the guardian obtains a benefit, entered into while the relation exists, are in the highest sense suspicious; the presumption against them is so strong that it is hardly possible for them to be sustained. The general doctrine of equity applies to the parties after the legal condition of guardianship has ended, and as long as the dependence on one side and influence on the other presumptively or in fact continues. This influence is presumed to last while the guardian’s functions are to any extent still performed, while the property is still at all under his control, and until the accounts have been finally settled. Any conveyance, purchase, sale, contract, and especially gift, by which the guardian derives a benefit at the expense of the former ward made after the termination of the legal relation, but while the influence lasts, is presumed to be invalid and voidable. The burden rests heavily upon the guardian to prove all the circumstances of knowledge, free consent, good faith, absence of influence, which alone can overcome the presumption'.</p> <p>4. SAME — Conveyance by Former Ward — Validity. A deed by an illiterate Creek freedwoman, of the major part of her allotment, made one week after the discharge of her legal guardian, to her stepfather and former guardian, with whom she at the time resided, and who was at the time her attorney in fact and in control of her allotted lands, in consideration of her support by said grantee during her minority, it mot appearing that she was advised of her legal rights, is constructively fraudulent. In such circumstances, to bind the grantor, it must appear that she acted after ,the termination of her legal disability, with deliberation and with full knowledge of all the material facts respecting her right.</p> <p>5. NOTICE — Attesting Witness. — Contents of Instrument. One who signs an instrument as an attesting witness to the signature of the maker is not thereby, and from that fact alone, charged with knowledge of the contents of the document signed by him.</p> <p>6. VENDOR AND PURCHASER — Notice—Records. A purchaser of lands, who buys in reliance upon the record title, is chargeable with all the notice brought to him by the records; and if the record contains matters that would put a person of ordinary prudence upon inquiry into the nature of the title of the grantor, or of the rights and equities of a former owner, then the law charges such purchaser with all the. knowledge an inquiry upon his part, prosecuted with reasonable diligence, would have brought home to him.</p> <p>7. SAME — .“Actual Notice.” livery person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, and who omits to make such Inquiry with reasonable diligence, is deemed to have constructive notice of the fact itself. Section 2926, Rev. Raws 1910.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Nowata County; T. L. Brown, Judge. </p> <p>Action by Peggie Bacon against William R. Dawson and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Murray County; R. McMillan, Judge. ' </p> <p>Action by Henry S. Johnston against the Board of County Commissioners of Murray County. Judgment for defendant, and plaintiff brings error. Reversed and remanded.</p>

<p>APPEAL AND ERROR — Dismissal—Reinstatement. In a suit in equity to cancel a deed to a tract of land and to recover rents and profits, tlie defendants prevailed in tlie trial court. While the cause was pending in tlie Supreme Court the plaintiff in error, plaintiff below, died intestate. Thereafter, to wit, on the 16th day of February, 1915, J.-, the father of plaintiff, filed in the Supreme Court a petition, suggesting the death of said plaintiff, and showing that he was the sole surviving heir at law of said plaintiff, and praying that said cause be revived, and that all further proceedings therein he had in the name of said J., as the sole heir of said plaintiff, to which petition was attached the consent of the defendants in error'. At said time there was also filed in said action1 a stipulation for the dismissal of said appeal, signed by the said J. and by all the defendants in error, by which stipulation it was agreed that the plaintiff in error and defendants in error had reached an amicable adjustment of the matters in controversy in said cause, and, having made finpl settlement thereof, the causo should be dismissed. On the same day the following journal entry was entered of record: “Death of plaintiff suggested and 'cause revived by agreement in name of ,T.. sole heir of plaintiff, upon cause being settled; and stipulation filed 2/10/1Í5, appeal is hereby dismissed. Held, that the order of dismissal will not be set aside and the cause revived in the name of the administrator npon the motion of the subsequently appointed administrator, who is the sole creditor . of the decedent, where it appears from the showing accompanying such motion that -the order of dismissal will not adversely affect the rights of (lie administrator as a creditor of the decedent.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Action by W. C. Sappington against the First National Bank of Ryan. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Greer County; R. W. Higgins,. Assigned Judge. Action by J. W. Biffle against the First State Bank of Mangum and another. From the judgment, the First State Bank of Mangum and another bring error.

<p>1. RAILROADS — Regulation— Connections — “Other Industry.” ¿In, oil mill and cotton gin are embraced under the term “other industry” as used in section 33, art. 9, Const., providing special facilities for such industry.</p> <p>Z. SAME. Under section 33, art. 9, Const., whenever the amount of business reasonably to be afforded' a railway line by an oil mill and gin plant is sufficient to justify the same, after a switch or spur track lias beeu constructed from said railroad to said plant at the expense of its owner, said railway company may be required to furnish the switch stand and frog and other necessary material for making connection with such side track or spur and shall make such connection under such reasonable terms, conditions, and regulations as the Corporation Commission may prescribe.</p> <p>3. SAME. The jurisdiction of the commission under this provision to require a switch connection to be made does1 not rest upon the existence of contractual relations between the parties, nor does it arise by reason of the breach of an alleged contract to construct such switch, but depends upon the existence of a state of facts which bring the case within the terms of said constitutional provision.</p> <p>4. CONSTITUTIONAL LAW — Eminent .Domain — Due Process of Law — Regulation of Railroad. Where a private side track or spur is constructed to a railroad from a private industry under section 33, art. 0, Const., and said railroad is required to construct a connection with such side track or spur at the expense of the owner ■ of such industry under reasonable terms, conditions, and regulations prescribed by the Corporation Commission, the requirement that such switch connection be made by the railroad company does not constitute the taking of private property for private use without compensation and without due process of law.</p> <p>5. COMMERCE — Means of Regulation — Regulation of Railroads. Act Cong. June 29, 1906, c. 3591, section, 1, 34 Slat. 5,84 (U. K. Comp. St. 1913, section 8563), amending “An act to regulate commerce" (Act Cong. Feb. 4, 1887, c. 104, section 1), conferring jurisdiction upon the Interstate Commerce Commission to require switch connections to be made with any lateral branch line of railroad or private side track where such connection is reasonably practicable and will furnish sufficient business of an interstate character to justify the same, does not deprive the Coiporation Commission of jurisdiction to require switch connection to be made with a private side track or spur under section 33, art. 9, where the business of an intrastate character is sufficient to warrant the making of such an order.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by Annie Wadsworth (formerly Cox) and others against George C. Crump. and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Oklahoma. County; Geo. W. Clark, Judge. Action by Thomas M. Milam against George J. Ames to enforce payment under, a contract of sale of real estate and to foreclose a vendor’s lien. Judgment for plaintiff, and defendant brings error.

<p>1. SPECIFIC PERFORMANCE — Oil and Gas Lease — Option to Terminate. A surrender clause in an oil and gas lease, which gives to the lessee an option to terminate such lease lat any time, deprives the lessee of the right to specific performance, until it has performed the contract or placed itself in such a position that it might be compelled to perform the same on its part.</p> <p>%. SPECIFIC PERFORMANCE — Right — Contracts Enforceable. Specific performance will not lie unless the agreement is certain, fair, and just in all its parts; and in such lan action any element showing that the contract is unfair, or unjust, and against good conscience, will justify the court in refusing such decree, although the contract, had it been executed, might offer no sufficient grounds for cancellation. Following Superior Oil & Gas Co. v. Mehlin, 25 Olda. 809, 108 Pac. 545, 188 Am. St. Rep. 942.</p> <p>8. COURTS — Federal Courts — Practice. The case of Guffey et al. y. Smith et al., 237 TJ. S. 101, 35 Sup. Ot. 526, 59 L. Ed. 856, has no applicationi to the instant case, as the opinion in that case was based upon the decisions of the Supreme Court of Illinois; the Supreme Court of the United States specifically holding that the Illinois “decisions constitute rules of property and must be accepted and applied in passing upon complainant’s rights.”</p> <p>(Syllabus by the Court.)</p>

<p>GUARDIAN AND WARD — Management of Waird’s Property — Oil and Gas Lease. Under the Constitution and laws of this state the county court may authorize a guardian of ia. minor to execute an oil and gas mining lease upon the lands of such minor for a period of years extending beyond the minority of his ward.</p> <p>(Syllabus by the Court.)</p> <p>Turner, J., dissenting.</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by Thomas M. Milam against J. T. Frizzell. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by William A. Bamberger against Edmonia H. Dautell and another, wherein J. S. Carle was made a party defendant by supplemental petition. From an adverse judgment, Carle brings error.

<p>COURTS — County Court — Jurisdiction. Const, art. 7, sec. 12, and wet approved March 9, 1910 (Rev. Raws 1910, see. 1816), construed together, and held to vest the county court with no jurisdiction of civil cases involving $200 or less.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Tillman County; F. B. Swank, Assigned Judge. Action by James W. Lusk and others, receivers of the - St. Louis & San Francisco Railroad Company and another, ag'ainst E. B. Eminhiser, County Treasurer of Tillman County. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Jackson County; F. B. Swank, Assigned Judge. . Action by James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company and another, against S. H. Starkey, County-Treasurer of Jackson County. Judgment for defendant, and plaintiffs bring error.

Error from County Court, Murray County; Harry W. Fielding, Judge. Action by H. D. Barry against J. J. Easter and another, doing business as the Easter Drug Company. Judgment for defendants, and plaintiff brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by the Colonial Trust Company, a corporation, against F. N. Counrod, administrator of the estate of Elizzie Davis, deceased, and others. From the judgment, defendants Leoria L. Twist and others bring error.

Error from Su/perior Gourt, Oklahoma, County; Edward Dewes Oldfield, Judge. Appeal by F. J. Fleenor from an order of the board of county commissioners of Oklahoma county, entered in passing on his exceptions to the action of viewers appointed to assess damages and benefits from a drainage ditch constructed by the North Canadian River Drainage District No. 3 of Oklahoma County. From a judgment for Fleenor, the drainage district brings error.

<p>APPEAL AND ERROR — Presentation for Review — Motions. Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly a part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by means of a bill of exceptions or ease-made.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by the Farmers’ National Bank of Tecumseh, Okla., against G. W. Cobble and others. Judgment for plaintiff, and certain defendants bring error.

<p> Error from County Court, Atoka County; Baxter Taylor, Judge. </p> <p>Action by Moore-DeGrazier & Company against Gustave Haas and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Kay County; Wm. M. Bowles, Judge. Action by Emily F. Fearnow and others against Luttie B. Jones and others. Judgment for plaintiffs; and defendants bring error.