Volume 6 — Indian Territory Reports

<p>1. Criminal Law — Continuance—Absence of Witnesses.</p> <p>In a trial for murder defendant was granted a continuance from May 20, 1903, to the next term of court, which was the following January. On December 26, 1903 defendant caused subpoena to issue for absent witnesses which was returned not found and second motion for continuance overruled. Held; That the court acted correctly in refusing the continuance.</p> <p>2. Criminal Law — New Trial — Newly Discovered Evidence.</p> <p>Where a motion for a new trial is based upon affidavit, which is vague and indefinite. Not error in refusing new trial.</p> <p>3. Criminal — Change of Venue.</p> <p>In granting a change of venue the application shall be by petition, supported by affidavit of some credible person, and where such petition is filed and the prosecuting attorney filed counter affidavits showing that affiant in application for such change of venue, was a person of bad moral character and unworthy of credit as a witness; and defendant fails to file affidavits to sustain affiant's credibility.</p> <p>. Held; That it is within the discretion of the court to receive the oral testimony of witness as to facts affecting their own credibility and the court did not err in, denying cither of appellants applications for a change of venue after permission had been granted to withdraw witnessed affidavit, as the statute had not been complied with.</p> <p>4. Criminal Law — Evidence.</p> <p>Evidence of the use of opium by witness cannot be introduced to impair credit, unless it be shown that the witness was under the influence of opium when examined. It is likewise inadmissible in order to attack veracity to prove the bad character of a female witness for chastity, or to show she is a prostitute.</p> <p>5. Criminal Law — Weapons—Instructions.</p> <p>Where the court instructed the jury that deceased had a right to draw his gun, and, if defendant pressed upon him, he would have a right to use it, Held,; Evidence sufficient to support such instruction.</p> <p>/ 6. Criminal Law — Instructions—Assignment of Error.</p> <p>An assignment of .error directed to an instruction to which no exception is made. Held; Is not well taken.</p> <p>7. Criminal Law — Instructions—Manslaughter.</p> <p>It is not error for the court to refuse an instruction as to what constitutes manslaughter when there is no evidence tending to prove the same.</p> <p>8. Criminal Law — Instructions—Assumption of Facts.</p> <p>It is error for the court to assume facts in an instruction not authorized by the evidence.</p> <p>9. Criminal Law — Jurors—Bailiff.</p> <p>In the absence of a contrary showing it is presumed that the oath of the officer having custody of the jury as required by statute was properly administered.</p> <p>10. Criminal Law — Admonishing Jury.</p> <p>No objection being made or exception saved to admonishment of jury by the court. Held; Presumption is that the court did his duty, and hence there was no error.</p>

<p>1. Unlawful Detainer — Affidavit Necessary — Before Writ of Possession Issue.</p> <p>Under Sec. 3351 it is essential to the issuance of a writ of possession in an unlawful detainer action that the affidavit required in such action be filed, and the required security given. In the absence of same the writ is nugatory and void.</p> <p>2. Unlawful Detainer — Retaining Bond — Without Consideration and Nonenforceable, When.</p> <p>Where defendant gave a retaining bond in an unlawful detainer suit and in which plaintiff in obtaining a writ of posession had not complied with all the statutory requirements; said retaining bond is without consideration and non-enforceable.</p> <p>3. Unlawful Detainer — Judgment—Damages.</p> <p>Under Sec. 3352 Mansf. Dig. plaintiff can only recover damages for the detention when defendant has given bond'and retained possession of the subject matter of the controversy. Held; Where plaintiff in obtaining a writ of possession has failed to comply with all the requirements of said statute the court has no authority to render a judgment for damages against the defendant for retaining possession.</p> <p>4. Unlawful Detainer — Landlord and Tenant.</p> <p>Plaintiff purchased from defendant’s landlord. Held; Defendant having admitted the existence of such relation, the expiration of the term of tenancy and written demand for possession, cannot dispute the validity of transfer to plaintiff.</p> <p>5. Unlawful Detainer — Possession of Tenant that of Landlord.</p> <p>Appelles, or their grantors acting upon what purported to- be opinions of the United States attorney for the Southern District in construing portions of the Curtis Bill with reference to holdings of property! tore down their fences on part of the controverted premises while their tenant, appellant, was in possession and it being afterward ascertained that said opinions were erroneous and misconceptions of said' Curtis Bill, appelles attempted to resume possession and control of such premises; Held; No abandonment, the possession of the tenant, appellant, was the possession of appellee, his landlord.</p> <p>6. Unlawful Detainer — Notice to Quit — Evidence Considered.</p> <p>Appellee swore that he served the notice to quit upon the appellant by delivering the same to appellant in person, who admitted that he received some paper, the contents of which he did not read. Held; The jury was warranted in finding that such notice was properly served from- this state of the evidence.</p>

<p>Appeal — Failure to File Briefs — Effect of.</p> <p>Appellant was allowed thirty days from submission of case in which-to file brief and appellee was allowed the same period in Which to file a reply thereto. Xo brief having been filed by either party said' appeal was dismissed for non-compliance with the rule.</p>

<p>Appeal — Opinion of Court Divided — Effect of.</p> <p>When no two justices could agree as to how an appeal should be decided under the statute (Sec. 11, Act of Congress approved March 1, 1895) the judgment of the lower court stands affirmed.</p>

<p>Appeal from the United States Court for the Southern District.</p> <p>Hosba Townsend, Judge.</p> <p>Action by Ella Adams and others against Hugh Wallace and others. Judgment for .plaintiffs. Defendants appeal.</p>

<p>1. Sales — Contract—Parties.</p> <p>Where the sellers of merchandise maintain two places of business, their office in one city and factory in another, the fact that goods were shipped from the factory instead of from the office will not justify the purchaser in refusing to receive the goods in compliance with the contract.</p> <p>2. Contract — Delivery of Goods — to Railway.</p> <p>Where the contract specified that delivery was to be made to the Chicago, Rock Island & Pacific Railway and that road runs through both cities where defendant maintains places of business. Held; A delivery to such road at either place was a sufficient compliance with the contract.</p> <p>3. Contract — Order-*-Executory Contract.</p> <p>Where an order for merchandise is signed by both parties it becomes a binding contract between the parties and title to the goods vested' in the buyer at the time the goods are delivered as stipulated, and the “order” constitutes an executory contract and a mere offer-'' sale.</p> <p>4. Contract — Title.</p> <p>Where an executory contract for the sale of merchandise provides for the delivery of the goods at a certain time and place, title does not pass to purchaser until the terms of such executory contract have been fully complied with.</p> <p>5. Contract — Variance—Unintentional Mistake.</p> <p>"Where the seller in billing out goods to buyer makes an unintentional mistake as to the terms of the payments, and upon seller’s attention being called thereto, and seller immediately rectifying such mistake to conform with the contract; Held; Purchaser not justified in refusing to carry out the contract.</p> <p>6. Sale by Sample — Warranty—Waiver.</p> <p>Where a contract for the sale of merchandise provides that all goods ' were warranted to be the same in quality, material and all other' respects, as samples shown by salesman, and on arrival purchasers . shall examine all goods and' give an itemized written notice of such defects, or all warranty of said goods shall be waived, and purchaser fails to make such examination; Held; Purchaser has waived such warranty and is not justified in refusing to pay for such goods.</p> <p>7. Contract — Verbal Agreements — Evidence.</p> <p>Where a salesman had a verbal understanding with the buyer, other than those contained in the contract, and where the contract contained the following, “We have no agreement or understanding with salesmen, except as printed or written on this order.” Evidence was incompetent to prove that sellers agreed to ship goods to destination over certain connecting lines, over which they were not shipped.</p>

Action by Minnie ThomasTand another against Sass & Crawford. From a judgment for plaintiffs, defendants-appeal.

May 20, 1903. Action by F. M. Bryant against John S. Hammer, in which the Purcell Wholesale Grocery Company intervened, as the real party in interest. From a judgment in favor of plaintiff, defendant grocery company appeals. This is an action iii replevin for the possession of a stock of groceries agreed to be of the value of $300, by the parties.

Gill, November 12, 1903. Suit by J. Henry Dick against Aaron Ross and others. From a decree in favor of defendants, complainant appeals.

<p>1. ' Criminal Law — Evidence of Other Crimes when Inadmissable.</p> <p>Defendant was living with his mother and some of his brothers; defendant and his mother owned cattle and used the same brand, except that the defendant had an additional brand for the cattle claimed by him to that of the mother. The evidence further shows that the mother of defendant claimed the calf he is charged with stealing in this case as her calf; that the defendant had been arrested and taken before the Commissioner for preliminary examina tion for the larceny of two calves belonging to one Plummer; that the prosecuting witness, Cyrus Thompson, received such notice, that he went to the Clampitt place and there found the calf involved in this case, and caused the arrest of the defendant for its larceny. The government over the objection of defendant was allowed by the court to show that two of Plummer’s calves were recovered from the Clampitt field a day or two before the defendant was arrested for the larceny of the Thompson calf. Held; Possession of other stolen property by a defendant is competent evidence against him upon a trial for larceny, when it connects him with the transaction of which he stands accused, not as tending to prove another offense, but that one; but before such testimony is admissable it must be shown that the property in his possession was stolen property.</p> <p>2. Same — Trial—Argument of Counsel.</p> <p>It is prejudicial error, in a trial for the larceny of a calf, for the prosecuting attorney to argue to the jury that the defendant should have brought a civil action against the prosecuting witness to recover the calf in controversy, when defendant made no claim to same.</p> <p>3. Same — Arrest of Judgment — Grounds—Statute.</p> <p>Sec. 2302 Mansf. Dig. (Ind. Ter. Ann. St. 18S9, Art. 1645) provides: “The only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court.” A motion in arrest of judgment interposed by defendant for the reason that at the time of trial and verdict there was another indictment pending and undisposed of does not come within the statute and will not be considered.</p> <p>4. Same.</p> <p>Under the ruling laid down in Thurman vs State, 54 Ark. 120, 15 S.W. 84, and cases cited, it was not error for the court to pass sentence upon the defendant after the judgment had been suspended and a term of court had intervened between the order making suspension, and the term at which judgment was rendered.</p> <p>5. Same — Cruel and Unusual Punishment.</p> <p>A two years sentence at hard labor for the larceny of a calf is not cruel and unusual punishment, when Art. 1628 Mansf. Dig. (Ind. Ter. Ann. St. 1899 Art. 971) provides a minimum penalty of one (1) year and a maximum penalty of five (5) years for the larceny of any kind of cattle.</p>

16, 1904. Action by W. M. Smith against the Missouri, Kansas & Texas Railway Company. From a judgment in favor of plaintiff, defendant appeals. This is an action for damages brought by the appellee by reason of being ejected from a passenger train of the appellant.

Action' in unlawful detainer by M. J. Smith against R. M. Wilson. From a judgment in favor of plaintiff, defendant appeals.

Gill, April 14, 1904. Action by the Springfield Wagon Company against W. W. Miller. From a judgment in favor of plaintiff, defendant appeals. This action was instituted before a United States commissioner for the Northern District of Indian Territory by plaintiff (appellee) filing an affidavit for vendor's lien on June 10, 1903. Summons issued and served.

<p>1. Witnesses — Contradiction—Evidence.</p> <p>Where a witness testified through an interpreter to facts different from those which he had previously affirmed in an ex parte affidayit taken through another interpreter, who acted as agent for both parties, such affidavit was admissible to contradict the witness, though the interpreter so employed was not sworn.</p> <p>(Ed. Note. — For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1248, 1255).</p> <p>2. Same — Writings—Letters.</p> <p>Where, in replevin to recover a wagon, C. denied the testimony ó a witness that, when he went to take the wagon under a chattel mortgage held by defendant, C. handed him a certain letter and asked him to give it to plaintiff, the letter was admissible in evidence to contradict C.’s statement that he did not give it to the person who took the wagon.</p> <p>(Ed. Note. — For eases in point, see vol. 50, Cent. Dig. Witnesses, §§ 1248-1249).</p> <p>3. Bailment — Personal Property — Possession—Ostensible Ownership.</p> <p>Where plaintiff delivered to C. a wagon in controversy to keep and use until plaintiff and C. consummated an agreement for the letting of certain land, and plaintiff permitted C. to keep possession of the wagón and use it as his own for over a year, during which he mortgaged it to defendant, plaintiff was thereby estopped as against defendant from recovering the same.</p>

T. Dickerson. June 10, 1904. Action by W. S. Wolverton & Son against Bruce & Butt. From a judgment of dismissal, plaintiffs appeal.

<p>Criminal Law — Failure to File Brief — Grounds for Demurrer.</p> <p>Where appellant in a criminal case has failed to comply with rule 10 of the ourt of Appeals (64 S. W. VI) in not filing a brief within the term therein allowed and where upon being given additional time for that purpose fails to do so within the time his appeal should be dismissed.</p>

Gill, February 3, 1904. Action by F. M. Overlees against Frank Bucher. From a judgment in favor of plaintiff, defendant appeals.

<p>1. Criminal Law — Instruction—Evidence.</p> <p>In a trial for larceny an instruction, that if the jury find from the evidence that there was others than the defendant interested in the larceny it would make no difference that the other parties were not indicted and on trial, is prejudicial to the defendant when there is no evidence in the record to sustain it, unless the inference is drawn that every one who associated with defendant was a thief.</p> <p>2. Same — Evidence.</p> <p>The defense on a trial for larceny was that defendant represented the owner in obtaining the property claimed to have been stolen from’the person in possession thereof. Defendant attempted to offer testimony to the ('fleet that the owner stated to defendant that he would represent him in procuring the horse. Held; Exclusion of this evidence was reversible error.</p> <p>3. Larceny — Excessive Punishment] What is.</p> <p>A ten years sentence for the larceny of a $40 horse is excessive even though it is not improbable that the defendant is a horse thief.</p>

Gill, February 25, 1904. W. C. Burroughs was convicted of murder, and he appeals. The defendant was charged in the indictment with the crime of murder. No objection is made to the indictment. The killing occurred on. the 24th day of October, 1903, at Sageeyah, Cherokee Nation, I. T., a station located on the Iron Mountain Railway. The name of the deceased was Leonard D. Simmons. He was “a little past 12 years old” when he was killed.

H. H. Clayton, April 2, 1903. Action by John O’Nesky against the Choctaw, Oklahoma & Gulf Railroad Company. From a judgment for plaintiff, defendant appeals.

H. H. Clayton, March 5, 1904. Action by M. D. Wells & Co. against Charles W. Plummer, as administrator of the estate of E. J. Lloyd, deceased. From a judgment sustaining exceptions to a master’s report, disallowing the claim sued on, the administrator appeals.

<p>1. Juror — Misconduct of — Grounds for New Trial, When,</p> <p>One of the jurors had been one of the panel selected previously to try appellant on a criminal charge, involving practically the same state of facts, and it was further shown that this juror during the noon recess stated that appellant would not win this civil suit as he had in the criminal suit and that he, the juror, had made up his mind in the trial of the Criminal Court that defendant should be made to pay the debt in this case. Held, such misconduct as to entitle appellant to a new trial. Juror disqualified as such by reason of having previously formed an opinion and his discussing said case publicly during its progress and before verdict, notwithstanding the admonishment of the court to the contrary, is gross misconduct on his part.</p>

H. H. Clayton (Nov. 17, 1904). Action by O. W. Richardson & Co. against S. Oppenheim. From a judgment dismissing an appeal from the commissioner's court, and from an order denying an application to reinstate the same, defendant appeals.

Gill, January 4, 1905. Action by F. M. Smith against John D. Marker and others. From a judgment dismissing a garnishment plaintiff appeals. On January 18, 1901, Henry Hayter, appellant's assignor, obtained judgment in the United States Court sitting at Vinita, I. T., against the appellee John D. Marker, for the sum of $481.-93, with interest.

Suit by the Capital Townsite Company against Charlie Fox and others. From a decree in favor of defendants, complainant appeals.

<p>1. Indians — Leasing of Lands.</p> <p>Under Sec. 17 of the Act of Congress approved June 30, 1902 (32 Stat. 504, C. 1323), Creek citizens may rent their allotments for strictly non-mineral purposes, for a term not to exceed one year for grazing purposes only, and for a period of not tó exceed five years for agricultural purposes, but without any stipulation or obligation to renew the same.</p> <p>2. Lease — Extent of Term.</p> <p>A lease dated August 30, 1902, stated that the lessor rents for the sum of §40.00 per annum payable, one half on or before January 1st, and one half payable on or before July 1st, of each year; that the lessor agrees to give possession on or before January 1, 1903, but if possession, is not so given on or before said date, then rents are to commence from date of possession. Held; The stipulation that possession shall be given on or before January 1st only ha, reference to the payment of rents. If possession is given .on or before January 1st then rents shall begin on January 1st, if not given until after that time, then to commence from date of possession.</p> <p>3. Lease — In Absence of Fixed Date When Lease is to Begin to Run.</p> <p>Where a lease bears a specific date, and is to continue for a period of years, and the time for its commencement is not otherwise expressed, the day of the date of the lease is to be regarded at the time from which the lease is computed.</p> <p>4. Lessor and Lessee — Estoppel, When Invoked Against Landlord.</p> <p>A lessor is estopped by his lease from denying that he had any estate in the land at the time the lease was executed.</p>

<p>1. Partnership — Burden or Proof to Establish.</p> <p>Where a partnership is alleged by the plaintiff to exist between defondants and denied by the latter, the burden is on plaintiff to prove same.</p> <p>2. Appeal — Evidence, Necessity of in Record.</p> <p>Where an action has been dismissed by the Trial Court for want of proof an appeal will be dismissed when the evidence is not in the record.</p>

Action by the Capital Townsite Company against Joe Denton. From a judgment in favor of defendant, plaintiff appeals. On December 20, 1904, a mandate of the Court of Appeals of the Indian Territory was filed in the case of Joe Denton, appellant, vs Capital Townsite Company, appellee, reversing the case for error in overruling the demurrer filed to the complaint, and directing the court below to sustain the demurrer.

Action by C. E. Castle and another against George Schaffer. From a judgment for plaintiffs, defendant appeals. On March 28, 1902, L. A. Younger executed a chattel mortgage on two horses, a wagon, and set of harness to George Schaffer, the appellant, to secure a debt of $35, and all other indebtedness which might be due on October 1,1902, at which time the debt secured by the mortgage was payable.

<p>1. Appearance — Effect on Jurisdiction.</p> <p>Section 4029 Mansf. Dig. (Ind. Ter. St. 1899, Art. 2709), provides that actions cognizable before a justice of the peace, instituted by-summons or warrant, shall be brought before some justice of the peace where the defendant resides or is found, and if there be more than one defendant then in the township where one of them resides, or is found. Held, Defendant having appeared for trial, and the case having been continued on his motion, the Commissioner had) jurisdiction. Defendant thereby waived any defect that might exist as to service.</p>

District of the Indian Territory; before Justice Hosea Townsend, February 16, 1905. . Action by Fannie Gatlin against A. Vaut and another. From a judgment for defendants, plaintiff appeals. This is an action of replevin, instituted on September 19, 1904, by the appellant, Fannie Gatlin, against the appellees, for the recovery of two mules.

John Glover was convicted of robbery, arfd he appeals. On December 13, 1904, the defendant was indicted for the crime of robbery, committed on May 27, 1904, in said district, upon one Frank Neeley, and on same day defendant waived arraignment and pleaded not guilty. On March 13, 1905, the defendant was tried by a jury, who returned the following verdict: “We, the juiy, find the within-named defendant, John Glover, guilty in manner and form as charged in the within indictment.

T. Dickerson, December 17, 1904. Action by Mrs. Ella Cross and others against J. P. Ellis and another. From.a judgment in favor of plaintiffs, defendants appeal. This is a suit founded upon the following supersed as bond: “Know all men by these presents: That we, J. P. Ellis, as principal, and the Fidelity & Deposit Company of Maryland, as surety, are held and firmly bound unto Theo.

<p>1. Trial — Instructions.</p> <p>Instructions stating an abstract proposition of law, however correct in themselves, are necessarily misleading and mischievous, as they tend to draw the minds of the jurors away from the real facts in the case to something which they assume to exist and which cannot be found in the record.</p> <p>2. Railroads — Injury to Animals.</p> <p>Where plaintiff sued a railroad company for negligently killing a horse and fails to prove negligence; Held, It was error for the court to refuse the motion to direct a verdict.</p> <p>3. Evidence — Negligence—Failure of Proof.</p> <p>Before plaintiff can recover for the' killing of a horse by the defendant company-he must not only prove the killing of the stock; but 'that the killing was the result of lack of ordinary care on the part of the servants of the railroad company.</p>

W. Raymond, February 4, 1905. L. L. Ellis was convicted of the crime of introducing liquor, and sentenced to imprisonment in jail for a period of 90 days and fined $250, and appeals.

<p>1. ' New Trial — Motion For, When Grounds too General Will Not be Granted</p> <p>As grounds for a motion for a new trial it is alleged as reasons therefor among others (1) errors of law occuring in the record, (2) because of remarks made by the court in the presence of the jury during the trial of said cause, and (3) because of erroneous instructions and refusal to instruct as requested by defendant which instructions and requested instructions were not reduced to writing and cannot therefore be repeated in said motion, said reasons will not be considered because too general.</p>

R.Lawrence, May 27, 1905. Action by the Peoria Cordage Company against C. W. Poole and another, doing business under the firm name of the Chelsea Furniture & Implement Company. There was a judgment refusing to vacate a default judgment for plaintiff, and defendants bring error.

H. H. Clayton, September 20, 1901. Henry Leftridge was convicted of murder, and he appeals. On April 7, 1899, two indictments were returned, against the defendant and one Lemon Butler. The first one charged both said defendants with the murder of one Joshua Crowder on the 8th day of December, 1896; the second'one charged both said defendants with the murder of one James Johnson on the 8th day of December, 1896.

R. Lawrence, December 5, 1905. H. E. Buckles and another were convicted of carrying-intoxicating liquors into the Indian Territory, and from a judg-. ment sustaining a motion in arrest the United States brings error. On November 23, 1904, the grand jury returned the following indictment against defendants, to wit: “Indictment for Introducing Intoxicating Liquor.

<p>Appeal from the United States Court for the Southern. District of the Indian Territory; before Justice Hosea Townsend, March 28, 1902.</p> <p>Action by the Bank of Commerce against the WaplesPainter Company. From a judgment in favor of plaintiff, defendant appeals.</p>

C. Humphry, March 1, 1906. Action by J. L. Kirie and others against J. F. Tally. From a judgment for plaintiffs, and order overruling defendant’s motion for a new trial, defendant appeals.

<p>1. Executors and Administrators — Powers Before Appointment — Relation, Doctrine of.</p> <p>A widow, prior to her appointment as administratrix of her husband’s estate, is not, under the doctrine of relation, either in person or by-agent, authorized to take possession of property* claimed by or in the possession of another although the husband at the time of his his death had a mortgage thereon.</p>

T. Dickerson, April 5, 1905. Suit by the Briggs Machinery & Supply Company and others against the Tishomingo Oil & Cotton Company, in which the Continental Gin Company intervened, and in which the Ardmore National Bank and others filed petitions claiming a lien on the property of defendant.

Before Justice J. T. Dickerson, March 13, 1905. Will Taylor was convicted of selling and furnishing liquor to a person within the Indian Territory, and he appeals. The appellant was charged by indictment containing two counts, returned on the 1st day of October, 1904, first, with the sale of intoxicating liquors within the Southern district of the Indian Territory, to one J. B. Hutchins, and second, with the furnishing to the said J. B. Hutchins of intoxicating .liquors.

Before Justice Joseph A. Gill, May 4, 1904. Action by M. E. Handley, administrator of W. H. Handley, deceased, against' the Mayes Mercantile Company. From a judgment for plaintiff, defendant appeals. This was a suit on a promissory note, originally brought in the commissioner’s court at Pryor Creek, in the Northern district of Indian Territory. Plaintiff obtained judgment, and defendant appealed to the United States Court for the Northern District.

<p>1. Attachment — Forthcoming Bond — Defendant Not JActble On, When.</p> <p>The defendant is not liable on a forthcoming bond given by him in an attachment suit in which judgment was rendered against him where execution was stayed on account of his discharge in bankruptcy and wherein his wife, as interpleader, has subsequently recovered judgment for possession of the property.</p> <p>2. Same — Interpleader—Necessary Proof.</p> <p>An interpleader claiming ownership of property which is the subject-matter of attachment proceedings, is not required to set up a defense to plaintiff’s claim against defendant.</p> <p>3. Costs — Discretionary with Court for Continuance.</p> <p>Appellant announced ready for trial on one of the days of the May term of court, and on said day found he was not ready for trial. The court did not nonsuit him but continued the cause upon. conditions which plaintiff failed to comply with. At a subsequent day of said term, the court having overruled his motion for a withdrawal of his announcement of ready, on motion of defendant taxed the costs of the term to him and continued the case. Held; No abuse of discretion by the court. It was for the court to say whether the appellant had placed himself in such position to have the cause continued, and it was for the court to say, in its discretion, at whose costs the case should be continued.</p> <p>4. Appeal — Review of Alleged Error.</p> <p>Where the record on appeal does not disclose any order of the court overruling or passing upon appellant’s motion to retax costs, such question is not before the court and will not be considered.</p>

<p>1. Instructions — Failure to Request — Damages.</p> <p>In an action for damages by a riparian owner for the washing away of his land caused by the construction by defendant of wing dams-along the opposite shore, the court instructed the jury that they might find for plaintiff for an amount they might be satisfied plaintiff' was entitled under the evidence. Held; Defendant could not-complain of such instruction when it failed to request an instruction directing that the measure of damages should be determined by deducting from the market value of the land immediately before the injury complained of, the market value thereof immediately thereafter.</p> <p>2. Damages — Interest.</p> <p>When defendant in a manner equivalent to taking from plaintiff^ injures his property, it is not error to allow interest at the legal rate on the amount of the damages recovered, from the date of the injury.</p> <p>3. Instruction — When Bad in Part, Duty of Court.</p> <p>The court is not required to modify an instruction which contains a, statement vitiating it in its entirety.</p> <p>4. Instruction — When in Error is Cured by Correct Verdict.</p> <p>When the verdict as to damages is proper an erroneous instruction with reference thereto is thereby cured.</p> <p>5. Damages — Successive Actions for Repetition.</p> <p>A judgment for damages for washing away land caused by the construction of wing dams on the opposite side of the river, is not a bar to subsequent actions for damages where, by each successive rise of the river, additional land was washed away.</p>

■Gill, January 31, 1902. Action by J. L. Courtney against J. H. Bartles and •others. From a judgment for plaintiff, defendants appeal. On the 9th da} of September, 1897, the plaintiff (appellee) filed his complaint against the defendants (appellants) •and alleged: That defendant Moore is a citizen of the United States. That in the latter part of the year 1896 and the earlier-part of 1897 defendants were jointly engaged in buying and shipping horses and nudes.

<p>Appeal from the United States Court for the Northern District of the Indian Territory; before Justice Joseph A. Gill, March 1, 1904.</p> <p>Action by L. A. Iveys against, the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals.</p>

<p>Appeal from the United States Court for the Central District of the -Indian Territory; before Justice' Wm. H. H. Clayton, July 5, 1904.</p> <p>Action by Joe Rolla, administrator of Barto Rolla deceased, against the McAlester Coal Mining Company. Prom a judgment for defendant, plaintiff appeals.</p> <p>From the transcript of the record it does not appear on what date the original complaint was filed, but on May 6, 1903, defendant filed motion to quash service. On June 6, 1903, the motion to quash was overruled, to which defendant excepted, and other motions were filed and overruled. Venue was changed to Poteau, and by agreement changed back to South McAlester. On July 2, 1904, plaintiff filed amended complaint, and alleges that on October 7, 1902, defendant was operating coal mines at Buck, I. T., among which was a mine known as “Slope No. 2.” Plaintiff ivas employed by defendant, and on said day was at work “in said mine No. 2 slope, in said slope, at a point about 45 feet below the eighth south entry on the north side of said slope, turning a room off of said slope.” That it was the duty of defendant to furnish plaintiff a safe place to work, and to properly and safely timber the entries, slopes, and passages of said mine, to carefully and thoroughly inspect the passages, entries, and slopes and working places in said urine, and to remove the slate, rock, or other debris, or timber the same up, and'“to notify its employes of dangerous places in said mine, and to manage, control, conduct, and operate said mine so as not to endanger the safety and lives of its servants and employes.” That on said day defendant “had carelessly and negligently permitted rock, slate, earth, and other debris to become loose in the roof and top of said slope No. 2 on the north side thereof, about forty-five feet below the eighth south entry, at and near the place where the plaintiff was engaged at work, under which it was necessary for plaintiff to pass in going to and returning from his work, and to remain while performing his work in said mine. The said rock, slate, earth, and other debris had been jarred loose by shots fired by the shot firer of the defendant. That the shots which jarred the said matter loose were fired on or about the 3d day of October, 1902, after plaintiff had left the mine, and the plaintiff did not again return to the said mine until October 7, 1902, the day upon which he was injured. The defendant carelessly and negligently failed to inspect the said slope at said place for loose rock, slate, earth, and other debris, and had carelessly and negligently failed to place timbers under the same, or to remove the same, and defendant carelessly and negligently failed to notify the plaintiff of the said loose rock, slate, earth, and other debris.” That by reason of defendant's negligence, while plaintiff was at work at that place in said mine mentioned, loose rock, slate, earth, and other debris fell upon him, wounding, bruising, and injuring him, breaking his leg just above the ankle, injuring him intemally, by reason of which he has suffered great pain and is permanently injured, to his damage $10,000. Defendant files its amended answer, and denies specifically each and every allegation in plaintiff’s amended complaint, and, “further answering, defendant says that if plaintiff was injured in its mine on the 7th day of October, 1902, that said injury was due to the negligence and to the contributory negligence on the part of the plaintiff in this, to wit: The plaintiff was opening a room off defendant’s slope for the purpose of taking coal therefrom. That plaintiff had mined the coal for some distance from the slope, and had prepared shots, and directed that these shots be exploded by the shot firer in order to loosen coal in said room and to mine the same therefrom. That said shots are so fired by the shot firer, and that thereby the rock over the room in which plaintiff was working and over the slope was loosened and broken, and that thereafter plaintiff began to mine said coal in the room which had been opened by him. That it was plaintiff’s duty, before beginning the ''mining down of the coal in said room, to examine for and determine the result of the shots so fired by the shot firer, and that plaintiff failed so to examine Ms roof and to determine the result of said shots, but negligently began to mine down his coal and to take away the support of the coal from the roof without proper examination. . That if a portion of the roof of the slope at the side of which plaintiff was working did fall, the fall of rock was occasioned’by the act of the plaintiff in negligently mining down his coal. That if the plaintiff was injured at the time and place mentioned in his complaint, that such injury occurred wMle plaintiff was in the act of making a room from wMch to mine coal. That it was plaintiff’s duty to inspect, care for, and protect his working place, and that the plaintiff assumed the risk of such injury while in said employment;” and defendant asks to be discharged, with its costs. The cause was tried before a jury on July 5, 1904. Defendant files motion to instruct jury to return a verdict for defendant, which, is sustained by the court, to which plaintiff excepts, and under instructions of court, to which plaintiff excepted, the jury returned a verdict for defendant, and the court rendered judgment on the verdict. On July 7, 1904, plaintiff filed motion for new trial, which was subsequently overruled, and appealed to this court. On June 13, 1905, there was filed with the clerk of this court notice to appellee and motion to substitute Joe Rolla, as administrator of the estate of Barto Rolla, deceased, as appellant, service of motion waived by counsel for appellee, and on June 14, 1905, said motion was granted by this court.</p>

A. Gill, Dec. 9, 1904. In the matter of the probate of the will of Betsy Terrell, deceased. From an order of probate on the petition of N. B. Foreman, Mellissa Ross appeals.

C. Humphry May 5, 1905. William McCoy was convicted.of larceny, and he appeals. On February 10, 1904, the defendant (appellant) was indicted by the grand jury at Atoka in two counts: First, foiythe larceny of 17 hogs from one John M. Cole; and second, for receiving 17 hogs, knowing the same to have been previously stolen. On said day defendant was arraigned and pleaded not guilty to said indictment.

<p>1. Criminal Law — Change of Venue — Power of Court — Presumptions.</p> <p>Section 7, of the Act of Congress of March 1, 1905, (28 Stat. p 697, c. 145), provides that all prosecutions for crimes or offences -within the jurisdiction of the United States in Indian Territory, shall be had in the jurisdiction in which the offense was committed, and in the court nearest or most convenient to the locality where it was comitted to be determined by the judge on motion to transfer. It is further provided that when a change of venue is allowed, the court shall change the venue to the nearest place of holding court within the district. Held; A fair construction of said statute leaves the judge to determine, on motion, the place to which the cause shall be transferred, and this applies to a motion to change the venue as well as transfer. Unless the contrary appears the Appellate Court must assume that the Trial Court followed the statute in changing the place of venue.</p> <p>2. Same — Confession—Which is Best Evidence of.</p> <p>The statement of the prisoner upon preliminary examination before a magistrate, though under oath and taken down is secondary evidence. The statute only requires this magistrate to make in writing a “general” statement of the substance of what was proven. Therefore the testimony of the witnesses who heard it is admissable. .Such testimony is more satisfactory, than that of the statement made by the magistrate.</p> <p>3. Evidence — Idem Sonans — Indictment and Proof.</p> <p>The indictment charged defendant with the murder of one “Sarah Roberts” while the proof showed the correct name of the deceased to be “Sarah Robert.” Held;' The rule of idem sonans should prevail.</p> <p>4. Criminal Law — Evidence—Instruction to Jury.</p> <p>The jury was instructed that if the testimony of witnesses showed the defendant to be sixteen or seventeen years of age; that is, if the jury was satisfied from the evidence, from his appearance, and thé testimony on that point, there would be nothing further to consider in regard to his age; and that if, upon the other hand, the testimony showed to the satisfaction of the jury that the appellant, at the time of the commission of the crime, was under the age of fourteen years, then it would be the duty of the jury to determine from the evidence that he was of sufficient intelligence to know right from wrong, and that upon that question what the witness stated as to his intelligence and how he acted, and, if the jury should find that he participated in the crime, the question would then be whether he kept it a secret, whether he left the neighborhood, or any proof that would show whether he knew right from wrong; but the question of his knowledge, of his knowing right from wrong, does not enter into the case, if the jury should find from the evidence in the case that he was between fifteen andlsixteen, or over the age of fourteen, at the time of the commission of the alleged crime. •A previous instruction clearly set forth, that the defendant was presumed to be innocent, and that he should not be found guilty except upon evidence that should satisfy the jury beyond reasonable doubt. Held; Xo error.</p>

<p>1. Courts — Jurisdiction of United States and Commissioners — Trespass.</p> <p>Section 4 of the Act of Congress of March 1, 1895, C. 145 (28 Stat. 696) confers original and exclusive jurisdiction upon Commissioners Courts as justices of the peace in all classes of cases where jurisdiction is by said act conferred upon the United States Court in Indian Territory where the amount or value of the property in demand does not exceed $100.00. Sec. 4026 Mansf. Dig. provides that justices of the peace shall have exclusive jurisdiction in all matters of contract where the amount in controversy does not exceed $100.00, excluding interest. Section 4028 (Ind. Ter. St. 1899, 2700) Mansfield’s Digest, provides that a justice of the peace shall, not have .jurisdiction where a lien on land, or title of possession thereto, is involved. The Act of Congress of May 2, 1890, (26 Stat. 98, C. 182, Art. 39) put, in force Chapter 91 of Mansf. Dig. but limits the jurisdiction of Commissioners to causes where the value of the thing or the amount in controversy exceeds one hundred dollars. Held; United States Commissioners have full and ample jurisdiction to try all matters exchxsive of the Distinct Court, where the demand of the plaintiff does not exceed one hundred dollars, whether the same originated irb contract, grew out of personal injxxry, or arose fi’om damage to real estate.</p>

H. H. Clayton, November 25, 1902. Action by C. W. Edwards against Sam T. Minor. . From a judgment for plaintiff, defendant appeals. On October 31, 1901, there was filed in the clerk’s office of the United States Court at Poteau, I. T., transcript of judgment rendered in this cause by United States Commissioner John R. Pollan, of the Cameron Commissioner’s district of the central district of Indian Territory.

<p>Appeal from the United States Court for - the Southern District of the Indian Terri toiy; before Justice Hosea Townsend, February 13, 1902.</p> <p>Aetion between R. B. Faulkner and John Hutchins. From a judgment in favor of the latter, the former appeals.</p>

, . Action by Z. T. Burton against the Tishomingo Electric Light & Power Company and others. From a judgment in favor of plaintiff, defendants appeal. Appellee, as plaintiff, brought an action against appellants, 'as defendants, to recover for services rendered and moneys advanced by appellee for which defendants had the use and benefit.

<p>1. Forcible Entry and Detainer — Title.</p> <p>The question of title is not involved in a suit for unlawful detainer,' except so far as tending to show the plaintiff’s right to possession.</p> <p>2v Same — Complaint—Necessary Allegations.</p> <p>In an action of forcible detainer the complaint must show that the relation of landlord and tenant exists between plaintiff and defendant, or that the defendant by force of arms ousted plaintiff from possession</p> <p>3. Same — Damages—Evidence.</p> <p>In an action of forcible entry and detainer plaintiff gave bond and obtained a writ of possession. Plaintiff refused to amend his complaint after the court had sustained a demurrer thereto, whereupon the action was dismissed, the property ordered returned to defendant, and taxed the costs against plaintiff. Held; It was the duty of the court to grant defendant a writ of inquiry to assess defendant’s damages, and the fact that defendant gave a retaining bond is conclusive evidence that he had possession of the property from then until the judgment for damages.</p>

<p>1. Carriers — Limitation of Liability.</p> <p>The contract fixed the measure of the value of the horses, shipped by a carrier, in case of their loss or destruction through the fault of the appellant, at $60. Held; This amount is to be taken as the amount of recovery to be had by appellees in case of total loss under such circumstances, is fixed and liquidated by the contract of shipment, thereby estopping the appellee from demanding a greater price and the appellant from reducing the price.</p> <p>2. Trial — Évidence, Error in Ruling on — Effect.</p> <p>An error in ruling on the admission or exclusion of evidence is cured by an authorized verdict.</p>

<p>1. Actions — By Indians for Recovery of Lands — Nature of.</p> <p>Sec. 3 of the Act of June 28, 1898 (30 Stats. 495) providing for the recovery of the value of improvements placed on the tribal lands prior to June 28, 1898, under a valid lease executed prior to. said date, did not change the character of the action, that is from proceedings at law to an action in equity.</p> <p>2. Actions in Equity and at Law — Transfer of Cause from Latter to Former.</p> <p>The parties to an action at law believing that same should be transferred to the equity docket, consented to same and proceeded accordingly. Held,; That though the transfer was irregular, the parties thereby waived their right to trial by jury.</p> <p>3. Actions — Defenses.</p> <p>Under the procedure in this jurisdiction an equitable defense is permissable to an action at law.</p> <p>4. Repeal — Without Saving Clause — Effect.</p> <p>It is a general rule, that the repeal by the Legislature, without a saving clause, of an act it is considered, except as to transactions past and closed, as never having existed. And the repeal of an act conferring jurisdiction deprives the court of authority to further act,</p> <p>5. Some — When Part of Judgment Rests on Repealed Statute.</p> <p>When an act conferring jurisdiction is repealed pending an action, that portion of said judgment which rests upon the jurisdiction conferred by said repealed act is void and of no effect.</p> <p>6. Trial — Irregular Transfer — Retransfer Upon Repeal of Statute.</p> <p>Where parties to an action, acting under a misapprehension, transfer the cause from the legal to the equitable docket and the statute conferring jurisdiction on the Court of Equity is repealed pending the action, either party may, on motion, have the cause retransferred to the law side and trial by a jury if so desired.</p>

T. Dickerson, June 25, 1904. Action by C. R. Smith against the Armour Packing Company. From a judgment for defendant, plaintiff appeals. This is an action for conversion of 77 head of cattle. The evidence shows that C. R. Smith employed one John Thrasher to purchase cattle. Smith was to furnish the money and Thrasher was to buy and feed the cattle until ready for market.

<p>1. Landlord and Tenant — Possession, IIow Recovered.</p> <p>There is nothing in the laAv to prevent plaintiff from bringing an action of ejectment against his tenant after the term has expired, if he so desires.</p> <p>2. Same — Ejectment—Proof of Title — Notice.</p> <p>If a landlord brings ejectment he cannot show title by proving that the tenant recognized him as his landlord. He must allege and proA^e his title. In ejectment proof of notice to quit is not essential.</p> <p>3. Continuances — Surprise.</p> <p>A motion by defendants for a continuance was based on the grounds of absent witnesses and the motion set out what the witnesses would . testify if present, which evidence was introduced by defendants on the trial. Held; No error in denying said motion. Defendants got all they were entitled to.</p> <p>4. Bills of Sale, — Transfer of Indian Lands By.</p> <p>Instruments transferring the right of possession to Indian lands, have always been regarded more in the nature of bills of sale and as such need not be acknowledged or recorded.</p> <p>5. Limitation of Action — Must be Pleaded.</p> <p>One who relibs upon the statutes of limitations as a defense must plead it, or it will not avail.</p> <p>6. Indians — Transfer By To Whiteman.</p> <p>A transfer of the possessory right to' tribal lands from an Indian to a white man, conveys nothing and is absolutely void.</p>

Before Justice Wm. R. Lawrence, May 29, 1905. Suit by Byrd Ironside against the city of Vinita. From a decree in favor of defendant, complainant appeals. On May 2, 1905, the plaintiff filed her original complaint in equity, and defendant on same day filed its answer. On May 15, 1905, plaintiff filed her amended' complaint, and alleged: That she resides in the city of Vinita, and that defendant is a municipal corporation, being a city of the second class.

Gill, June 10, 1905. Quo warranto by the United States on petition of Pliny L. Soper, by F. S. Walker, relator, against W. P. Painter. From a decree in favor of petitioner, defendant appeals.

H. H. Clayton, December 3, 1903. Action by Robert I. Bond against the Choctaw, Oklahoma & Gulf Railroad Company. From a judgment in favor of plaintiff, defendant appeals.

<p>1. Intoxicating Liquors — Indictment—Allegations.</p> <p>Under the Act of Congress of March 1, 1895, (28 Stat. C. 145) it is not necessary that an indictment, charging the sale of intoxicating liquors, state the name of the person to whom said liquor was sold.</p> <p>2. Criminal Law — Instructions.</p> <p>Where the instructions given by the court upon the trial of the case are not contained in the record, the court has no means of knowing whether a complained of instruction was given or not, and where the record does not show that any exception was taken by the defendant to the failure of the court to instruct the jury as it is claimed was requested, the judgment of the lower court will be affirmed.</p>

Gill, February 17, 1904. Action by John Wilhoit against the Missouri, Kansas & Texas Railway Company. From a judgment in favor of plaintiff, defendant appeals.

H. H. Clayton, March 31, 1905. Ed. Mickle was convicted of larceny, and he brings error. On November 15, 1904, the grand jury at South Mc-Alester returned an indictment for larceny against the defendant (appellant). It charged that the defendant unlawfully and feloniously did steal, take, and carry away from out of the possession, and without the consent, of Enoch ICendle, four hogs of the value of $20.