Volume 68 — Oklahoma Reports

<p>Original application for writ of prohibition by the Atchison, Topeka & Santa Fe Railway Company against the Corporation Commission of the State of Oklahoma, and others.</p>

Error from District Court, Kingfisher County; James B. Cullison, Judge. Suit by School District No. 51, Kingfisher County, against the Chicago, Rock Island & Pacific Railway Company and others, consolidated with suit by Cimarron Township, Kingfisher County, against the same defendants. Judgments for plaintiffs in each case, and defendants bring error.

Error from (District Court, Muskogee County; R. P. De Graffenried, Judge. Suit by Clarence W. Turner and others against the Old Homestead Company and others. Decree for defendants Fred E. Turner and others, and plaintiffs and defendants Metropolitan Trust Company and Tookah T. Bagg, nee Turner, bring error.

Error from District Court, Tulsa, County; Ij. M. Poe, Judge. Action by J. D. Crosbie and another against R. P. Brewer and others. Judgment for defendants, and plaintiffs bring error.

<p>Original petition for writ of prohibition by Jessie Harrah against Edward Dewes Oldfield, Judge of the Thirteenth Judicial District of the State of Oklahoma, sitting in Oklahoma County, Okla.</p>

<p>(Syllabus.)</p> <p>1. Evidence — Admissions — Liability on Account.</p> <p>Evidence that, prior to the institution of the action, the defendant admitted he owed the amount sued for, is admissible in support of plaintiff’s cause of action on an open account.</p> <p>2. Trial — Instruction — Cure of Error.</p> <p>While an instruction standing alone may be subjected to criticism as being indefinite and uncertain, yet if other instructions fairly submit 'the material issues to the jury, reversible error is not committed.</p> <p>3. Same — Theory of Case.</p> <p>Record examined, and held, that the instruction complained of, when considered in connection with other instructions given, fairly states the law applicable to the theory of the case upon which it was commenced and tried.</p>

Error from District Court, Cherokee Counity; John H. Pitchford, Judge. Action by Ellis Wofford .against A. H. Sharum and others, with answer and cross-petition .by defendant Sharum, whereupon plaintiff dismissed his cause of action and answered the cross-petition. Judgment for Wofford, and Sharum brings error.

Error from District Court, Woods County; W. (!. Crow, Judge. Action by It. M. Watson ,against J. N. S.ono and others to quiet title. Judgment for defendants, and plaintiff brings error.

Error from District Court, Okmulgee County; Ernest. B. Hughes, Judge. Action by James Corrigan '.against |tlie Oklahoma Coni Company. Demurrer to petition sustained, and action dismissed, and jilaintiff brings error.

Original action for writ of prohibition by the State of Oklahoma, on the relation of B. F. Hamilton, executor of the estate of Samuel Bailey, deceased, and Sherman Spencer, legatee, against McLain Taylor, acting as special Judge of the County Court of Pottawatomie County, Okla.

<p>(Syllabus.)</p> <p>Evidence — Sale of Assets by Bank Commissioner — Presumptiion of Authority.</p> <p>Where the bank oammissioner took charge of an insolvent bank, and where in winding1 up its affairs he sold certain of its assets, it will be presumed, in the absence of an affirmative showing to the contrary, that he .obtained authority for such sale from the district court or a judge thereof.</p>

Error from District Court, Pawnee County. Action for injunction by G. W. Parrish against School District No. 19 and others. Prom an order dissolving the injunction and dismissing the ease, after remand from the Supreme Court, plaintiff brings error.

<p>Error from County Court, Harper County; A. H. Walker, Judge.</p> <p>Action by L. E. Venn against the Bank of Buffalo. From « judgment for plaintiff in the county court on appeal -from justice’s court, defendant brings error.</p>

■■iEjrm'fJi'om District Court,-Johnston >Oounity-5 JS H. Lineb’augh, Judge. ' •-Siiit'by Aaron Jackson against T. S. Van-'divétf,' vWfrh-’ amended petition making W. D. Diamond a party defendant, with decree for plaintiff, and subsequent petition by Vandi-ver land Diamond to vacate the judgment, consolidated .with the original action, and judgment vacating the decree, after which Mrs. Walter Van Noy and others, grantees of Jackson, were made parties defendant to th®…

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by W. H. Richardson against Mrs. H. M. Carr, Mrs. Lalla Gray, Mrs. Julia Ren-aker. H. P. Hickey, Julia K. Goff, H. A. Childs, the Interstate Mortgage & Trust Company, Roy S. Dodd, James D. Kivlehan, I.ot-tie Swatek. Mrs. Willip P. Tumey, and Emily Childs for possession of and to remove cloud of certain deeds from the west 50 feet of lots 1. 2. 3. 4, 5, and 6 of Margaret McKinley's subdivision of lots 14. 15, and 16 (originally platted as lots 15 and 16) of block ¡24 in Oklahoma City as shown by the recorded plat thereof, and for the adjustment ■of equities between ¡the plaintiff and defendants in respect to the value of the latter’s use and occupation of this property and the value of the improvements made by ¡them thereon in the event of plaintiff’s recovery of the same. Judgment upon plaintiff’s dismissal in favor of H. P. Hickey as to said part of lot 6. Judgment upon the disclaimer of the Interstate Mortgage & Trust Company dismissing its cross - petition.. Judgment against the plaintiff and in favor of Mrs. Willie P. Turney as to said part of lots 1 and 2, and' in favor of Lottie Swatek as to said part of lot 3, and in favor of Roy S. Dodd and James D. Kivlehan as to said part of lot 4, and in favor of Julia K. Goff as to said part of lot 5, and also against the plaintiff and in favor of these defendants and each of them for costs of suit. The plaintiff brings error.</p>

Error from County Court, Pawnee County; George E. Merritt, Judge-. Action by J. J. Rush and others against the German-Ameriean Bank of Blackburn and another. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Muskogee County; R. P. De Graffenried, Judge. Action between J. S. Bilby and others and Cleveland Roberts and others. Judgment for the latter, and the former bring error.

<p>('Syllabus.)</p> <p>Carriers —Shipper Accompanying’ Live Stock —Care Required.</p> <p>The owner and shipper of live stock, accompanying the shipment while in transit for the purpose of feeding and caring for same under contract with the carrier, has the implied consent of the company to cross over the tracks of its yards for .the purpose of looking after his property, while the car is delayed in the yards of the company, .awaiting further transportation to its destination. In such case the company owes to the plaintiff the duty of exercising reasonable care for his safety.</p>

<p>(Syllabus.)</p> <p>Carriers — Bill of Lading — Claim by Shipper — Sufficiency.</p> <p>A claim for the value of a shipment of grain misdelivered by the carrier is sufficiently made to sat'sfy the requirements of the bill of lading that any claim based on failure to make delivery shall be made in writing within four months airer the time, for delivery has elapsed, where it appears that the. defendant and the plaintiff negotiated a settlement of plaintiff’s claim by letter before the expiration of the four-month period, and that the claim was declined after the expiration of such period on grounds other than that plaintiff had not complied with th,e four-month clause of the bill of lading.</p>

Error from District Court, Le Flore County ; W. H. Brown, Judge. Action by the Merchants’ National Bank and others against John London and another. Judgment for plaintiffs, and defendants bring error and move to stay execution.

<p>(Syllabus.)</p> <p>1. Railroads — Removal of Station — Finding of Commission — Evidence.</p> <p>In a hearing before the Corporation Com-mission, involving the removal of a railway station from its present location to another, which it was alleged would be more convenient for the inhabitants of a nearby village, the probable cost to tbe company of removing said station and the facilities <--onnectert therewith came into question. Qualified, witnesses on behalf of the railway company testified that such removal would cost in the neighborhood of $24,000. Without any witnesses testifying to the contrary, the commission found that, “from viewing the grounds and general knowledge of the cost of way and structure,” the estimate of the appellant was about twice the actual cost.. Held, that such finding was not supported by the evidence.</p> <p>2. Same — Order for Removal of Station-Reasonableness.</p> <p>Record examined, and held, that the order appealed from is unreasonable and unjust.</p>

Error from District Court, Wagoner 'County; Fred P. Branson, Judge. Suit in ejectment by John 'S. Bilby against James M. Barnard, and, pending sucb suit, action for injunction by Barnard against Bil-by and others. Actions consolidated and tried together, and from the judgment, and from the overruling of his motion for a new trial, Barnard brings error.

<p>(Syllabus.)</p> <p>1. Carriers — Freight Rates — Minimum Carload Rate.</p> <p>A carload of broom corn moved out of Elk City over the Wichita Ealls & Northwestern Railway Company to Altus, where it was iransferoed to the St. Louis & San Francisco Railroad Company to be shipped to Wichita, Kan., where the same arrived in due time. S. was ¡both the consignor and consignee, but instructions were noted on the bill of lading to notify the Western Warehouse Company upon its arrival. The bill of lading, with draft attached, was transferred by S.: to the plaintiff, who sent the same to a bank at Wichita • for collection, which refused to honor the draft on presentation. Thereupon ftoe Western Warehouse Company sued S. and the St. Louis & San Francisco Railroad Company in replevin and recovered 57 bales of said corn, weighing 16,820 pounds, whereupon upon payment of freight on a minimum carload of 25,560 pounds at the rate of 47 cents per hundredweight as noted on the bill of lading issued by the Wichita Falls & Northwestern Railway Co., said 57 bales were delivered to the sheriff and turned over to the Western Warehouse Company. Thereafter S. offered to pay freight on the balance of said shipment of 34 bales in excess of the minimum carload rate already paid, at the rate of 47 cents per hundredweight, and requested that the same be delivered to the Ralls Commission Company, which the St. Louis & San Francisco Railroad Company refused to do, and demanded freight on said 34 bales at the minimum carload rate of 25,560 pounds on the ground that the shipment belonged to S. and another and was governed by the proviso to rule 6 of the Western Classification, which S. refused to pay, whereupon the St. Louis & San Francisco Railroad Company advertised and sold to the highest bidder said 34 bales, deducting from the proceeds thereof as freight thereon the minimum, carload rate of 25,560 pounds, and for other charges, and tendered the balance to S. Held, that the proviso to rule 6 did not apply; that the carrier had no right to make the ownership of the goods the test by which its charges for carriage are to be measured, and was guilty of a conversion of the 34 bales,</p> <p>2. Same — Interstate Carriers — Liability.</p> <p>Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 379 (U. S. Comp. St. 1901, p. 3154), as amended by Act June 29, 1906 c. 3501, 31 Stat. 584. 595 (U. S. Comp. St. Supp. 1909, pp. 1149, 1166; Comp. St. 1916, §§ 8604a, S604aa), imposes upon an interstate carrier voluntarily receiving property for transportation from a point in one state to a point in another state liability to the holder of a bill of lading for loss anywhere en route with a right, when sued with a connecting carrier for loss occurring upon its line, by cross-petition to recover over against the connecting carrier for the amount of such loss or damage evidenced by the judgment against it.</p> <p>3. Same — Contract—Loss of Goods — Valuation — Evidence.</p> <p>Where the shipping contract provides that in case of loss of. or damage to, the goods, the amount of loss or damage shall be computed at. the value of the goods at the place of shipment, and .evidence is admitted, in proof of loss, over objection as to the value of the goods at the place of destination, Tield error.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by Etta Lenahan, and Etta Len-ahan as administratrix of estate of James Lenahan, deceased, against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>Judgment — Bar — Ejectment — Bents and Profits,</p> <p>Where plaintiff brought an action of ejectment and prosecuted same to judgment in his favor, but made no demand therein for rents and profits of the land involved, the judgment in the ejectment suit is not a bar to a Subsequent action for rents and profits.</p>

<p>(Syllabus.)</p> <p>1. Dismissal — Voluntary “Dismissal” — Payment of Costs.</p> <p>Under section 5126, Rev. Laws 1910, the plaintiff has the right, upon payment of costs, to dismiss his action without an order of court any time before the trial has commenced. But the filing of the praecipe without paying the costs does not constitute a dismissal of the action.</p> <p>2. Mandamus — Entry of Judgment.</p> <p>After the mandate of this court was received and spread of record in the trial court, plaintiff filed a praecipe for dismissal of the case, but did not pay the costs. The 'court refused to render judgment in obedience to the mandate, treating the case as automatically dismissed upon filing of the praecipe. Held, the action not having been dismissed by filing the praecipe without paying the costs, mandamus will lie to compel the trial court to enter judgment in obedience to the •mandate.</p>

Error from District Court, Oklahoma County; Frank Mathew-s, Assigned Judge. Proceeding instituted for the correction and adjustment of the assessment of the property of the First State Bank of Oklahoma City for the year 1915. From a judgment of the district court reversing an order of the county board of equalization of Oklahoma c-ouniy, the board brings error.

<p>Error from District Court, Hughes County ; Tom D. McKeown, Judge.</p> <p>Action by Grace Scales against tlhe National 'Surety Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Wagoner County; Chas. G. Watts, Judge.</p> <p>Suit by W. T. Hunt, County Judge Of Wagoner County, Okla., trustee for Melissa •Byrd, and by Melissa Byrd, in her own right, against J. A. Bearman and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Judgment — Res Judicata — Subject-Matter.</p> <p>A final judgment in an action for the re-plevin of cotton is not res adjudicata of an action for the damages sustained by the defendant as a result of the malicious and unwarranted institution and prosecution of ihe replevin suit.</p> <p>2. Same.</p> <p>In order to constitute a good plea of re* adjudicata, the subject-matter of the a» tions must be the same. j.</p>

Error from District Court, Grady County; Will Linn, Judge. Actions by Mrs. Ardie King, administra-trix, against G. L. King and another and. the Southwestern. Surety Insurance Company, a corporation, and against J. B. Lucas and P. E. Baker, which were consolidated. There was a judgment for plain-tiff against the several defendants, and for defendants Lucas and Baker against the Southwestern Surety Insurance Company, which brings error.

<p>Error from District Court, Payne County; R. W. Higgins, Assigned Judge.</p> <p>Action by H. R. Ketchum against the First National Bank of Cushing, Okla. There was a judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Judgment — Vacation or Modification During Term.</p> <p>It is -a general rule of law that all the judgments, decrees, or other orders of the court, however conclusive in their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and may be set aside, vacated, or modified by the court.</p> <p>2. Appeal and Error — Review — Atase of Discretion.</p> <p>Where it does not clearly appear th-at the court below a-bused its discretion, its action in l’elation to such motion will not be disturbed on appeal.</p> <p>3. Trial — Duty of Court to Cali Counsel.</p> <p>When a cause is regularly set for trial-, it is not the duty of -the court tó call counsel when absent, and it is no abuse of discretion to proceed to trial when the cause is reached in its order, where no postponement of the case has been taken, and no leave to be absent has been granted to tbe parties or their counsel.</p>

<p>(Syllabus.)</p> <p>Intoxicating Liquors — Seizure and Forfeiture of Automobile — Statute — “Appurtenance.”</p> <p>An automobile used April 27, 1916, in the unlawful conveyance of intoxicating liquor in the presence of an officer having power to serve criminal process, was not subject to seizure by such official and forfeiture to the state under the provision of section 3617, Rev. Laws 1910, and is not .an “appurtenance” within the meaning of that section, which provided: “When a violation of any provision of this chapter (chapter 39, Intoxicating Liquors) shall occur in the presence of any sheriff, constable, marshal, or other' officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels and appurtenances thereunto belonging so unlawfully used.”</p> <p>Brett, J., dissenting.</p>

<p>Error from County Court, Cotton County; .1. C. Norman, Judge.</p> <p>A. L. Wilson, Deputy Sheriff of Cotton County, arrested without warrant one Bob Lebrecht for the offense of unlawfully conveying intoxicating liquor, and seized the liquor and the automobile in which the same was being conveyed. The return of the seizure having been made, one Sol Lebrecht appeared and claimed the automobile. Judgment forfeiting the automobile to the State was rendered, and claimant brings error.</p>

<p>(Syllabus.)</p> <p>Intoxicating Liquors — Seizure and Forfeiture of Automobile — Statute — “Appurtenance.”</p> <p>An automobile used January 4, 1917, in the unlawful conveyance of intoxicating liquor in the presence of an officer having power to serve criminal process, was not subject to seizure by such official and forfeiture ,to ithe -st-ate under the provision of section 3617, Rev. Laws 1910, and is no-t an “appurtenance” within the meaning of that section, which provided: “When a violation of any provision of this chapter (chapter 39, Intoxicating Liquors) shall occur in the presence of any sheriff, constable, marshal, or other -officer having power to serve criminal process, it shall be the duty -of sueh officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels and appurtenances thereu-nto belonging so unlawfully used.”</p> <p>Brett, J., dissenting.</p>

Error from County Court, Okmulgee County ; Mark L. Bozarth, Judge. Action by tbe Guaranty Stajte Bank of Ok-mulgee against Louise Mitchell, as executrix ‘of tbe will of George W. Mitchell, deceased, and another. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Oil and Gas — Lease—Forfeiture.</p> <p>Ordinarily the lessor in an oil and gas lease is the only person who can take advantage of a provision therein providing for a forfeiture thereof for failure of the ’essees to comply with its terms, unless there is an express stipulation that, the lease sbaU be void upon failure to comply with its terms.</p> <p>2. Same.</p> <p>The lessor is the only person who can avoid an oil and gas lease on the ground that it is rendered unilateral by reason of a surrender clause contained therein, and claim a cancellation thereof because of such surrender clause.</p> <p>3. Same — Lease —Construction — Possession of Lessee.</p> <p>The lease in question conferred upon the lessees the right to go on its premises and search for oil and gas within the initial period, and to commence operations within that time, and continue same with reasonable diligence until it was determined whether the premises were barren, or oil and gas, or either of them, was found thereon in paying quantities, and, while the lessees acquired no vested estate in the premises, yet they had the right to the possession of the land to the extent reasonably necessary to perform the obligations imposed upon them ■by the terms of the lease.</p> <p>4. Same.</p> <p>After oil and gas or either of them was found upon the leased premises in paying quantities, the lessees thereby acquired a vested, though limited, estate in the leased premises for the purposes named in the lease, and are entitled to be protected in the exercise of their rights according to the terms and conditions of their contract, unless the lease has been forfeited for a violation of some of its terms or has been abandoned by them.</p> <p>5. Same — Lease — Construction — Estate Conveyed.</p> <p>An oil and gas lease is not a grant of the oil and gas that is in the ground, but of such part thereof as* the lessee may find, and passes no estate that can be the subject of an ejectment or other real action.</p> <p>Error from District Court, McIntosh County ; R. W. Higgins, Judge.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action between the Southwestern Surety Insurance Company and others, and Lotsie B. Dietrich. There was a judgment for the latter, and the former bring error. On motion to dismiss.

<p>(Syllabus.)</p> <p>1. Partnership — Evidence—Sufficiency.</p> <p>Evidence examined, and held that the facts proven show the existence of a partnership between plaintiff and defendant.</p> <p>2. Trial — Objections to Evidence.</p> <p>A general objection to the introduction of testimony without specifying any ground upon which the evidence offered is inadmissible is too indefinite and general, and it is not error to overrule same.</p>

Error from County Court, Cotton County; J. C. Norman, Judge. Proceeding by the State against One Cadillac Automobile; State Exchange Bank of Oklahoma City, claimant. Judgment for the State, confiscating the automobile, claimant’s motion for new trial overruled, and it brings error.

Error from the District Court, Sequoyah County; John H. Pitchford, Judge. Action by Ducy Quinton against John P. Priest. Defendant’s motion for continuance, denied, and verdict instructed for plaintiff, and defendant brings error.

Error from District Court, Kay County; William M. Bowles, Judge. Action between J. F. Muirheid and William F. Noell and others. Judgment for the latter, and the former brings error.

Original application for writ of prohibition by the State of Oklahoma, on the relation of J. Warren Davis, executor, etc., against Willard J. Barnett and others.

<p>Error from District Court, Hughes County; George C. Crump, Judge.</p> <p>From a judgment allowing a claim of N. A. Carrell, County Assessor, against Hughes County, tlie Board of County Commissioners prosecute ■error.</p>

<p>Error from District Court, Harper County; W. C. Crow, Judge.</p> <p>Suit by F. J. Lee against Anon H. Smith and another, in which R. H. Ross filed a plea of intervention. Judgment for plaintiff against defendants and against intervener, and" the defendants and intervener bring error.</p>

<p>(Syllabus.)</p> <p>1. Statutes — Amendment—'Construction.</p> <p>An act to amend a particular section of a general law is limited in its scope to the subject-matter ' of the section proposad to be amended. Such amendment ex vi termini implies merely a change of its provisions upon tha same subject to which the original section relates.</p> <p>2. Same — New Matter.</p> <p>Though a particular section of a law may by amendment be broadened so as to bring within its provisions matter which could logically and legally have been placed in it originally, such new matter must be something which had not been already specially and differently provided' for in another section of the same statute and to which section no reference is made in the amendatory law.</p> <p>3.Same — Amendment—Reference to Title--Constitutional Provisions.</p> <p>That portion of section 1, c. 210, Act oí May 17, 1913 (Sess. Laws 1913, pp. 463, 464) which undertakes to limit the compensation of county assessors to the value of the property assessed, excluding “values placed upon public service corporations, or other property assessed by the State Board of Equalization,” being amendatory both in form and in fact, is repugnant to and violative of section 57, art. 5, of the Constitution, requiring that “no law shall be * * * amended * * * by reference to its title only; but so much thereof as is * * * amended * * * shall be re-enacted and published at length.”</p>

Error from District Court, Logan County; A. H. Huston, Judge. Suit by R. 1. Phillips against W. 0. Mitchell and wife for reformation of a deed, consolidated with a suit by defendants against D. M.-Phillips, R. I. Phillips, and others for damages, and heard together by agreement. Judgment for W. O. Mitchell and wife, and D. M. Phillips and others bring error.

Action btween the Hoffman Bros. Investment Company and Jack A. Porte'r. From a judgment of the county court, on appeal from a justice court, in favor of the latter, the former brings error.

<p>(Syllabus.)</p> <p>1. Contracts — Construction — Avoidance of Unreasonable Construction.</p> <p>Where the meaning of the language of a contract is doubtful and the same is fairly susceptible of two constructions, that construction must be preferred which makes it fair and such as prudent men would naturally execute in preference to a construction that would make it inequitable, or such as reasonable men would not be likely to enter into.</p> <p>Z. Same — Construction as a Whole — Intention of Parties.</p> <p>The intention of the parties must ba deduced from the entire agreement, not from any part or parts of it, and where a contract .has several stipulations, the intention of the contracting parties is not expressed by any single clause, or stipulation, but by every part and provision in it, which must all be considered together, and so construed as to be consistent with every other part.</p> <p>.3, Oil and Gas — Lease—Action For Accounting-Sufficiency of Petition.</p> <p>W., the plaintiff, alleged in his petition that the defendant, G. 0. Co., had been producing from each of several oil wells upon the lands of plaintiff gas, the same being commonly spoken of as casinghead gas, and had, in its own nearby plant, reduced or condensed the said gas into the form of gasoline, in which form it had been marketing the same, and for which it had received a very large sum of money, and had not accounted to plaintiff for any part thereof. The lease under which the defendant was operating, which was attached to and made a part of the petition, contained the following provisions with reference to the payment of royalties:</p> <p>“In consideration of said grant and demise, the parties of the second part agree to deliver to the party of the first part one-fourth of the oil realized from the premises, in tanks, at the well without cost. If gas is found in any well or wells on said premises the party of the first part is to have, upon demand, sufficient gas for domestic purposes free of charge, the remainder with all gas from oil wells to go to the second part [parties].</p> <p>“If the parties of the second part shall market any gas from any well producing gas, then the party of the first part shall receive therefor at the rate of one-fourth of all the gas so marketed or sold.”</p> <p>Held, that the petition stated a cause of action, and that the. trial court erroneously sustained a demurrer thereto.</p>

Error from County Court, Noble County; L. B. Robinson, Judge. Eour actions, one by Alpha Rivers, one by Anna Campbell, one by Myrtle Lane, and one by Elsie Roads, all against School District No. 51 of Noble County. Judgment for de< fendant, and plaintiffs bring error.

Error from District Court, Rogers County; AV. J. Campbell, Judge. Suit by C. H. Brown against Jesse E. Burr, C. B. Littlefield, and others, -with answer and cross-petitions by the -other defendants. Judgment for plaintiff and in favor of the cross-petitioners, and defendant C. B. Little-field moved to vacate and set aside the judgment, and from an order overruling his motion he brings error.

L. Lyon, Secretary. In the matter of Referendum Petition No. 31, State Question No. 95, Senate Bill No. 307 of 1917 Legislature, known as the Muskogee Free Fair Bill. From a ruling of the secretary of state sustaining the validity of the petition, Charles A. Moon, protestant, appeals.

Error from District. Court, Caddo County ; Will Linn, Judge. Action bv J. E. Littlefield against John D. Garner and others. From a final order sustaining deft aidant Garner’s demurrer to a second amended petition, plaintiff brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — Commencement of Proceeding in Error — Dismissal.</p> <p>A proceeding in error in this court to reverse, vacate, or modify a judgment or final order commenced more than six months from the rendition of the judgment or final order complained of will be dismissed.</p>

Proceeding by Tom Davis under the Workmen’s Compensation Act to obtain compensation for personal injury, opposed by the Independent Gin Company, employer. Prom an order of the State Industrial Commission discontinuing the weekly compensation theretofore allowed plaintiff, he appeals.

Error from District Court. Oklahoma County; Edward Dewes Oldfield, Judge. Action between tke Cleveland Petroleum Refining Company and George J. Ames and others and W. M. ¡Bonner. Judgment for tke latter, and tke former bring error.

Proceeding before the Corporation Commission by W. D. Turner and others against the Comanche Light & Power Company. From an order of the commission fixing its rates for service, defendant appeals.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by C. C. Mueller and others against the Arkansas River Bed Oil & Gas Company and others for -the appointment of a receiver. From the denial of their motion to vacate the appointment of the receiver the Union State Bank of Shawnee and others bring error.

<p>Error from District Court, Jefferson County; Cham Jones, Judge.</p> <p>Action by Catherine Trout against George W. Hinton. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Municipal Corporations — Defect in Streets — Personal Injury. .</p> <p>Petition examined, and held to state a cause of action.</p> <p>2. Negligence — Question for Jury — Taking Issue from Jury.</p> <p>What is negligence is generally, under proper instructions, a question for the jury. And when competent evidence has been admitted to prove negligence, it is only where the standard of duty is capable of being de.-termined as a matter of law, or where, under the undisputed facts, reasonable men could not draw different conclusions respecting the question of negligence, that the court is warranted in taking the question of negligence from the jury.</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Señora Jefferson, by Chas. F. Bliss, her next friend, against Lilali D. Linsey, Judgment for plaintiff, and defendant brings error.</p>

Y-TTor from District Court, Garviu County; E. B. Swank, Judge. Action by W. D. Berry against R. E. Tol-leson and wife. Judgment for defendants ■denying foreclosure and canceling mortgage, and plaintiff brings error

<p>Error from District Court, Bryan County; Jess-ei -M. Hatchett, Judge.</p> <p>Action by Noah Airington against the Oklahoma State Bank of Caddo, Okla. -Tudg-ment for plaintiff, and defendant brings error.</p>

Error from District Court, Logan County; A. H. Huston, Judge. Action to foreclose a mortgage by the Industrial Savings Society, a corporation, against W. H. Cole and others. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>Municipal Corporations — Mayor’s Nonen-forcement of Ordinance — Bemoval.</p> <p>The charter of the city of Tulsa makes the mayor of said city the chief executive officer thereof, and imposes upon him the duty to see that all the laws of the city are enforced; in addition to which the chief of police is placed under his superior authority, and he is made a conservator of the peace with power to arrest in all eases. Ordinances of the city prohibiting the traffic in intoxicating liquors and gambling were openly and notoriously violated, of which the mayor had personal knowledge. Held, that it was the duty of the mayor to see that said ordinances were enforced, and for his willful failure to do so he might be removed from office.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Mandamus by the State of Oklahoma, on the relation of W. D. Gault and another, against George Baker, County Treasurer of Oklahoma County, State of Oklahoma, consolidated with mandamus by the State of Oklahoma, on the relation of Sárah E. Gault, against the same defendant. From a judgment refusing to make the alternative writ peremptory, relators bring error.

Error from County Court, Haskell County; Wm. L. Crittenden, Judge, Action by Mrs. Margaret B. Funk, as ad-ministratrix of the estate of H. H. Funk, deceased, against the American National Bank of Stigler, Okla. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Stephens County; Cham Jones, Judge.</p> <p>Mandamus by H. W. Sitton against J. W. Marshall, County Judge. From the issuance of a peremptory writ of mandamus, the defendant brings error.</p>

<p>(Syllabus. 1</p> <p>1. Judgment — Res Judicata.</p> <p>On August 2, 1910, Horace Posey, a citizen by blood of the Creek Nation, executed a deed to his allotment to his brother, Frank Posey, an,d on September 6, 1910, Frank-Posey executed a deed to the same land to one J. H. Weer, and on October 8th thereafter Horace Posey executed a quitclaim deed to Frank Posey. Subsequent to the execution of said deeds Horace Posey instituted an action against Frank Posey and Weer to cancel the deeds executed by him to Frank Posey, on the grounds of minority and fraud, and in the same action asked and obtained a decree quieting his title as against Weer. After the rendition of this judgment Horace Posey conveyed the land to one Bell. Held, that the judgment against Weer was a bar to an action by him to quiet his title as against Bell.</p> <p>2. Judgment — Action to Vacate — Parties.</p> <p>In an action to vacate and set asid© a judgment, the plaintiff in whose name the judgment stands is a necessary party to the action.</p>

Error from District Court, Oklahoma County; Edward Dew-es Oldfield, Judge. Action between the Southwestern Surety Insurance Company and the Capitol State Bank of Oklahoma City. Judgment for the latter, and the former brings error.

<p>Error from District Oourt, Oklahoma Countyj Edward Dewes Oldfield, Judge.</p> <p>Action by the Western Casualty & Guaranty Insurance Company against the Capitol State Bank of Oklahoma City. Judgment for defendant on a directed verdict, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; George W. dark, Judge. Action for mandamus by Urban De Has-que against the Atchison, Topeka & Santa Fe Railway Company. Judgment for defendant, and plaintiff brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action, by S. W. King, Jr., and another against P. H. Adams and another. Judgment for plaintiffs, and defendants bring error, and plaintiffs file a cross-petition in error. Affirmed upon cross-petition, and reversed and remanded upon defendant’s petition in error.

<p>Prom an order of tlie Industrial Commission awárding compensation under the Workmen’s Compensation Act to George T. Barr, the Board of County Commissioners of Cleveland County appeals.</p>

<p>(Syllabus.)</p> <p>1. Usury — Interest—“Discount”</p> <p>When the lender exacts of the borrower as a condition of the loan a sum in addition to the highest.legal rate of interest, the loan is thereby tainted with usury and the taint is not removed by giving this charge the name of “discount.”</p> <p>2. Same — Device—Question for Jury.</p> <p>Defendant agreed with plaintiff to make Tier a loan of a sum of money, with, one P. as surety on her note, and to charge her for the use of the money, in addition to the highest legal rate of interest, the sum of $25. P. was to have a second mortgage on her farm as security for signing the note. Subsequently the negotiations resulted in the note being made to P., who indorsed the ■same. The plaincm and P. went to the bamt where plaintiff delivered the note and mortgage to the president of the bank, who gave plaintiff and P. each a deposit slip for the amount of the loan, and had P. give plaintiff a cheek for said sum. Defendants’ witnesses testified that it refused to make the loan to plaintiff, and that it purchased the note from P. at a discount of $25. Plaintiff and P. testified that plaintiff did not borrow the money from P., but from the bank. Plaintiff paid the note and all interest charged thereon to the bank. Held, the question as to whether the fact that the note was made to P. and by him indorsed to the bank, under the circumstances of this case, constituted a bona fide sale of the note at a discount to tie bank, or was a device by which the bank charged and collected from plaintiff usurious interest for the use of the money loaned, was a question of fact for the jury.</p> <p>3: Trial — Instructions—Theory of Plaintiff.</p> <p>In a case tried to a jury, it is the duty of the court to submit, by appropriate in- - strnctions, the theory of the plaintiff, where there is evidence reasonably tending to support the same, and the failure of the court to give requested instructions, which are applicable either in tbe language requested or substantially so, is reversible error.-</p>

<p>(Syllabus.)</p> <p>1. Indians — Devolution of Allotment — What Law Governs.</p> <p>The devolution of an allotment on behalf of a deceased Creek citizen, made June 30, 1902, is governed by the Creek law of descent and distribution.</p> <p>2. Same.</p> <p>Where an allotment on behalf of a deceased Creek citizen was made under section 28. of the Original Creek Agreement (Act March 1, 1901, o. 676. 31 IT. S. Stat. 870), ill the name of the allottee, title vests in the heirs by operation of law.</p> <p>3. Same — Title of Heirs.</p> <p>The law in force at the date of the allotment controls as to when the title vests in the heirs.</p>

<p>(Syllabus.)</p> <p>1.Master and Servant — Employers’ liability Act — Assumption of Risk — Question For Jury.</p> <p>Under the federal Employers’ Liability Act (Act April 22. 1908, c. 149. 35 Stat. 65 [U. S. Comp. St. .1916, §§ 8657-8665]), the servant assumes all the ordinary risks of his employment which are known to him, or which could have been known by the exercise of ordinary care to a person of reasonable prudence and- diligence in like circumstances. Bisks not naturally incident to the occupation, but which arise from the negligence of the master, are not assumed by the servant until he becomes aware of such negligence and of the risk arising therefrom, unless the negligence and risk are so apparent and ■ obvious that an ordinarily careful person would observe the one and appreciate tire other. Whether the risk is an ordinary risk of the employment, or an extraordinary risk known to the. servant, or with knowledge of which he is chargeable, is a question of fact to be submitted to the jury.</p> <p>2. Appeal and Error — Harmless Error — In- , structions.</p> <p>Plaintiff sued defendant for injuries sustained in falling from a box car, alleging the •failure to .uncouple and the sudden- and unusual stopping of the string of cars on which he was working constituted negligence. : The court instructed the jury that ' plaintiff assumed all the ordinary and usual risks of the employment of which he had knowledge, or should, in -the exercise of ’ reasonable care, have known to exist,..but -. that he did not assume such risks. as , were;, created by the master’s negligence. Held.-ttye,^ servant does assume risks arising fr,opi:,the’,' negligence of the master after he becomes' ’ aware of such negligence and risks, of whéii ' they are so apparent and obvious that an or- ' dinarily careful person would observe the one and appreciate -the other. Hence that" portion of the instruction to the effect that- ' he did not assume such risk was error, but, applied to the facts in this case, was not • prejudicial for the reason, if the failing to uncouple and the sudden stopping of. the cars amounted to negligence of the master, and the. risk caused thereby was n-ot a usual risk of the employment, such risk,' being coincident with the injury, was not -assumed by ■ the plaintiff because he could not have 'had knowledge of it-.-</p> <p>3. Appeal and EiTor — Master and Servant —Federal Employers’ Liability Act — Contributory Negligence — Effect.</p> <p>Instructions to the effect that contributory negligence is a bar to the servant’s recovery under the terms of the federal Employers’ Liability Act is not a correct statement of the law, but, being error in the master’s favor, is not sufficient to reverse the judgment based upon the master’s - negligence.</p> <p>4. Jury — Trial by Jury — Federal Constitu-. tion — State Courts.</p> <p>The requirement of Const. U. S. Amend. 7, that trials by jury be according to the course of the common law, i.. e., by.unanimous verdict, does not control the state courts, even when enforcing rights under a federal statute like Employers’ Liability Act (Act April 22, 1908, e. 149, 35 Stat. 65 [XT. 5. Comp. St. 1916, §§ 8657-8665]), and such courts may therefore give effect in actions under that statute to a local practice permitting a less than unanimous verdict.</p> <p>Sharp, C. J., dissenting;</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Jonas Kano against R. H. Hughes. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Craig County; Preston S. Davis, Judge.</p> <p>Action by Lizzie Silversmith, a minor, by W. E. Foltz, her guardian, against B. L. Hart and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Jefferson County; Frank M. Bailey, Judge.</p> <p>'Ejectment by W. F. Carter against J. S. Mullen and others. Judgment for plaintiff, and defendants bring error.</p>

Error from County Court, Tulsa County; J. W. Woodford, Judge. Proceeding by John T. Kramer, as County Treasurer of Tulsa County, State of Oklahoma, to assess a tax on escaped property of the Gypsy Oil Company. The property was placed upon the tax rolls by the county treasurer, and defendant appealed to the county court, and from a judgment therein for defendant the treasurer brings error.

Error from District Court, Bryan County; Summers Hardy, Judge. Action by Simon Johnson and others against H. M. Dunlap and others. Prom the judgment, both plaintiffs and defendants prosecute error to this court.

Error from District Court, Oklahoma County; Geo. W. 'Clark, Judge.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Suit by W. P. Harn and wife against the Interstate Building & Loan Company and another. Prom a judgment sustaining a demurrer to plaintiffs’ evidence on their first cause of action, and awarding nominal damages only on their second cause of action, they bring ei-ror.

Error from District Court, Noble County; Henry S. Johnston, Special Judge. ■Suit for foreclosure by George I. Lynch against Petty Johnson and Angelina Johnson, in which R. Schwiut intervened. Judgment for intervener against defendants, and the judgment was assigned to S. A. Moore and then to James M. Taylor, who purchased at the foreclosure sale.

<p>(Syllabus.)</p> <p>Certiorari — Purpose of Writ — Correction of Errors.</p> <p>The writ of certiorari, as used in this jurisdiction, brings up for review the sole question whether the inferior tribunal kept within or exceeded the jurisdiction conferred upon it by law. The writ cannot be used to correct errors committed by the inferior tribunal within the limits of its jurisdiction.</p>

<p>(Syllabus.)</p> <p>1. Public Lands — Lease of School Lands— Public Policy.</p> <p>Where the law and regulations in force prohibit any one person from leasing more than one-quarter section of school land, public policy forbids that another person shall lease and hold other such lands for a lessee, and one who has a valid lease upon school lands to the maximum amount permitted is estopped from claiming that another lease is held for him.</p> <p>2. Forcible Entry and Detainer — Public Lands — Possession of Defendant — Recovery of Possession.</p> <p>Record examined, and held: (1) That th'e defendant is in possession of the tract of land in controversy -without color of title; (2) that the plaintiff is entitled 'to recover possession thereof under section 5505, Rev. Laws 1910, which provides, in effect, that proceedings by forcible entry and detainer may be had “in cases where the defendant is a settler or occupier of lauds and tenements without color of title.”</p>

<p>Error from District Court, Le Flore County; W. H. Brown» Judge.</p> <p>Action by Noel Folsom against John A. Jones and the Jefferson Trust Company. Judgment for defendants on demurrer to plaintiff’s petition and plaintiff brings error.</p>

Error from District Court, Pontotoc County ; Tom D. McKeown, Judge. Petition by Samuel ,E. Bell to vacate a judgment rendered against him in favor of R. P. Pord. Demurrer to petition sustained, and petitioner brings error.

<p>(Syllabus.)</p> <p>1. Pleading — Removal of Causes — Personal Summons — Answer Day — Time — Es-toppel'. '</p> <p>E., a citizen of Oklahoma, commenced an action, against D., a citizen of the stat© of Texas, causing a summons to be issued and served upon D. in the latter state, which required the defendant to answer the petition of the plaintiff on or before the 1st day of April, 1914. After t'he service-of this summons which by statute (section 4727, Rev. Laws 1910), was en.itled to no other or greater force and effect than service by publication, the defendant voluntarily came within the jurisdiction of the trial court, whereupon personal summons was duly issued and served upon him, which required him to answer the petition of the plaintiff on or before the 6th day of March, 1914. Held!: (1) That the latter personal summons superseded the former summons by publication, and that the answer day fixed therein was the time the defendant was required by the laws of the state to answer or plead to the petition of the plaintiff; (2) that a petition for the removal of said cause from the stat© to fire federal _ court, which was not made and filed until after the expiration of said date, was made and filed too late to comply with the requirements of section 29 of the federal Judicial Code (Act March 3, 1911, c. 231, 36 Stat. 1095, LU. S. Comp. St. 1916, § 10131]); (3) that the plaintiff is not estopped from complaining of the defendant’s delay.</p> <p>2. Exchange of Property — Rescission for Fraud — Judgment — Sufficiency of Evidence.</p> <p>Record examined, and held that the judgment rendered is reasonably supported by the evidence.</p>

Error from District Court, Muskogee-County; B. P. De Gra-ffenried, Judge. Action by the T. H. Bogers Lumber Company against Bessie E. English and Tupper & Bird, a copartnership, composed of H. E. Tupper and E. V. Bird, defendants. Judgment for plaintiff, and defendant Bessie E. English and A. Z. English and W. C. Cook, sureties, bring error.

Error from District Court, Garvin County; E. B. Swank, Judge. -Suit by E. H. Childs, as guardian for certain of his minor children and others against Ellen Cook, Emma Poland, and Cordelia Jacobs for tbe partition of tbe homestead and surplus allotment, selected after the death of Sim Nelson by Ellen Cook, -his widow and administratrix, with answer by Ellen Cook claiming a dower interest and joining in tbe -prayer for partition or sale.

<p>(Syllabus.)</p> <p>1. Assignments for Benefit of Creditors— —Record—Validity.</p> <p>The provision of sec lion 223, Rev. Laws 1910, requiring an assignment for the benefit of creditors to be recorded, is a condition subsequent to the validity of the assignment, and under section 225 failure to record the same within 20 days after the date of the assignment renders the same void only against creditors of the assignor and against purchasers and incumbrancers in good faith and far value.</p> <p>2. Same — 'Objections to Evidence.</p> <p>In a replevin action by one claiming through an assignment for the benefit of creditors, it is error to sustain an objection to the introduction in evidence of an assignment for the benefit of creditors valid on its face, in proper form, and duly executed and acknowledged, upon objection of a defendant not dliown to be a creditor of the assignor, or a purchaser or an incumbrancer in good faith and for value, or one standing in the place of, or claiming in the right of, or under such creditor, purchaser, or in-cumbrancer, on the ground that it does not appear that the assignment has been recorded or the Bulk Sales Law (Rev. Laws 1910, §§ 2903-2905) complied with.</p>

Error from District Court, Nowata County ; W. J. Campbell, Judge. Action by the Producers’ National Bank and M. R. Garnett as its liquidating trustee, against Geo. A. Elrod. Verdict and judgment for defendant, motion for new trial overruled, and plaintiffs bring error.

Error from District Court, Johnston County ; J. H. Linebaugh, Judge. Action by Ben Finley against W. J. Thompson and others, in wnich Yock Jackson and another by order of court filed an interplea. Judgment for defendants, and plaintiff brings error, and the interpleaders bring a cross-petition in error.

Error from. County Court, Okfuskee County ; W. A. Huser, Judge. Action between A. Upperman and others and Topley Coon. Judgment for the latter, and the former bring error.

<p>(Syllabus.)</p> <p>Indians — Conveyance of Allotment — Title of Purchaser— Statute.</p> <p>While a minor, I)., a freedman citizen of tile Cherokee Nation, prior to Act Cong. May 27, 1908, c. 199, 35 Stat. 312, made certain deeds to his allotted lands. After . attaining his majority and subsequent to the time at which the mentioned act became effective D. executed new deeds to the grantee named in the original void deeds. Held, in an action by the allottee to recover the lands, that, there being no restriction on his power to alienate, in force at the time of the second set of conveyances, the deeds being regularly executed, and no equitable ground being urged for setting them aside, the grantee acquired the title thereto.</p>

<p>(Syllabus.)</p> <p>1. Alteration of Instruments — Deeds— Evidence.</p> <p>The evidence upon the issue of the alteration of a deed/ examined, and held, that the finding of the trial court thereon is not contrary to the weight of the evidence.</p> <p>2. Appeal and Error — Trial Amendment— Discretion of Court.</p> <p>The allowance of amendments to pleadings during the progress of the trial rests within the sound judicial discretion of the trial court, and action thereon will not be disturbed on appeal unless clear abuse of such discretion is shown.</p> <p>3. Appeal and Error — Reversal —Harmless . Error.</p> <p>A judgment will not be reversed on appeal for error in any matter of pleading or procedure, unless it appears, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right of the party complaining.</p>

<p>(Syllabus.)</p> <p>1. Habeas1, -'Corpus — Review—Irregularities of Procedure.</p> <p>This court on habeas corpus will not look beyond the judgment and sentence of any court of competent jurisdiction as to mere irregularities of procedure, or errors of law on questions over which the court had jurisdiction.</p> <p>2. Ha’:eas Corpus — “Court of Competent Jurisdiction.”</p> <p>A court of competent jurisdiction is one •having power and authority of law at the time of acting to do the particular act.</p> <p>3. Habeas Corpus — Inquiry in Supreme Court — Statute.</p> <p>Section 4893, Rev. Laws 1910, limits inquiry on habeas corpus to whether the district court which rendered judgment had jurisdiction of the parties and subject-matter and authority of law at the time of acting to render the judgment complained of.</p>

<p>Error from District Court, Alfalfa County ; .Tamos B. Cullison, Judge.</p> <p>Action by Sam C. Lambert and Lena Lambert against Ora L. Kuykendall. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Muskogee County; Chas. G. Watts, Judge. Suit for injunction by W. D. Hume against J. E. Wyand and others. Demurrer to petition sustained, and plaintiff brings error.

Error from District Court, Garfield County; John B. Cullison, Judge. Action for injunction by J. W. Smith and others against the Warner-Quinlan Asphalt Company and others. Judgment for plaintiffs, and defendants bring error. Reversed, and canse remanded, with directions to dismiss the action.

Error from District Court, Okfuskee County ; Geo. C. Crump, Judge. Mandamus by the State, on the relation of J. H. MeRiley, against C. H. Becknell and others, to create election precincts. A peremptory writ was awarded relator, and defendants bring error.

Error from County Court, Greer County; Jarret Todd, Special Judge. Action by J. Kroning against W. D. Dawson and another. Judgment for plaintiff on his motion for judgment on the pleadings, motion of defendant Dawson to vacate' the judgment overruled, and from such order he brings error.

Error from District Court, Payne County. A. H. Huston, Judge. Action for injunction by J. P. Long -against the Roma Oil Company and others- Judgment for plaintiff, and defendants bring error. Reversed, and cause remanded, wdth direction to dissolve the temporary injunction.

Error from District Court, Rogers County; W. J. Campbell, Judge. Action by Herbert L. Wihsted, a minor, by D. B. Crewson, next friend, against Ernest P. Shank and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Custer County; Thos. A. Edwards, Judge. Action by N. F. Fouts and Perry Reynolds, as administrators of the estate of Shoe Boy, an Indian, deceásed, against Alice Nance, administratrix, and Ohas. W. Hood-win, administrator, of the estate of T. J. Nance, deceased. Judgment for plaintiffs on the pleadings after mandate, and defendants bring error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. ' Action for specific performance by Dan Mara against Harley Fulkerson and others. Judgment for plaintiff, and defendants bring error.

Error from District Corn''-. Jefferson County; Cliam Jones. Judge. Action by Matilda Sarah Langley, a min- or, by her guardian, W. E. Alexander, against Sam L. Langley and others and the Aetna Accident & Liability Company. Judgment for plaintiff, and the Aetna Accident & Liability Company alone brings error.

Error from District Court, Love County; W. F. Freeman, Judge. Proceeding by Coleman J. Ward and others and C. A. Greenlees, trustee, against the. Board of County Commissioners of Love County, Okla., upon a claim for a refund of taxes. ■ The claim was disallowed by the board, and claimants appealed to the district court, wherein a demurrer to the petition was overruled, and judgment rendered for claimants, and defendants bring error.

<p>(Syllabus.)</p> <p>Mandamus — Justice’s Disapproval of Appeal Bonds — Discretion.</p> <p>Disapproval of appeal bonds bv a justice of the peace is the _ exercise of discretion reposed in him by statute; and, where it is not made to appear that liis action was arbitrary and constituted an abuse of that '■discretion, his action cannot be controlled by mandamus.</p>

<p>(Syllabus.)</p> <p>1. Malicious Prosecution — Defense — Sufficiency of Complaint.</p> <p>The defendant in an action for malicious prosecution will not be permitted to allege the insufficiency of the complaint on which he caused plaintiff’s arrest to shield himself from the conseuuences of his act.</p> <p>2. Appeal and Error — Instructions—Review —Exception.</p> <p>Instructions to the jury will not be examined by this court unless properly excepted to in the trial court.</p> <p>3. Appeal and Error — Malicious Prosecution —Reversal—Excessive Damages.</p> <p>Record examined, and held, that the verdict rendered is fairly supported by the evidence ; that the damages awarded, whilst liberal, are not excessive; and that there was no error committed in the matter of pleading or procedure, or in the instructions given to the jury, which probably resulted in a miscarriage of justice, or constituted a substantial violation of any statutory or constitutional right of the defendant.</p> <p>4. Reversible Error — Statute.</p> <p>Section 6005. Rev. Laws 1910, provides: “No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional nr statutory right.”</p>

<p>Error from District Court, Cleveland County; F. B. Swank, Judge.</p> <p>Action by R. V. Downing and the Farmers’ National Bank of Norman, Okla., against the Wheatland Grain & Lumber Company and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error from District Court, Kingfisher County; James B. Cullison, Judg’e.</p> <p>Action by A. W. Westlake against Ployd E. Pelt, Prank Letson, and A. E. Stephenson and others. Judgment and verdict for plaintiff' against the named defendants, and they bring error.</p>

Error from Superior Court. Pottawatomie county; Leander Cx. Pitman, Judge. Action by E. B. Webster against the Shawnee Tecumseh Traction Company. Judgment for xilaintiff, motion for new trial overruled, and defendant brings error.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by Nathaniel Boush ag'ainst the St. Louis & San Francisco Railroad Company and others, continued, after plaintiff’s death, in the name of Anna H. Boush, as ad-ministratrix. Judgment for plaintiff, motion for new trial overruled, /nd defendants bring error.

Error from District Court, Okfuskee County ; Geo. C. Crump, Judge. Action by Rena Williams and others against W. S. Thompson. Judgment for defendant, motion for new trial overruled, and plaintiffs bring error.

<p>(Syllabus.)</p> <p>1. Insurance — Fire Insurance — Cancellation — Waiver.</p> <p>The statutory clause in a fire insurance policy providing that the policy may be canceled by the company by giving 5 days’ notice of cancellation, but that the unearned portion of the premium shall be returned upon surrender of the policy, is for the benefit of the assured, and may be waived by him.</p> <p>2. Same.-</p> <p>When an agent of an insurance company, acting under instructions from his principal, gives the assured notice that he has been instructed to cancel his policy of insurance, and that he will call and take up and cancel the policy in a few days. and. when he does can on the assured for that purpose, the assured voluntarily and unconditionally surrenders the policy, knowing that the pur--n-'p of the agen+ jn taking it up is to cancel it, the right of the assured to treat the pol-i-v ,o« ir, full force and effect until the company has paid or tendered to him the unearned premium is thereby waived.</p>

<p>Error from District Court, McIntosh County; R. W. Higgins, Judge.</p> <p>Action by A. W. Culp and others against Abe Griffin and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Greek County; Ernest B. Hughes, Judge. Action between J. M. Longfellow and others and .J. L. Byrne and others. Judgment for the latter on the pleadings and tire former bring error.

<p>Enor from District Court, MeCurtain County; O. E. Dudley, Judge.</p> <p>Action by James W. Lusk and others, as receivers of the St. Louis & San Francisco Railroad Company, and the St. Louis & San Francisco Railroad Company against ' Leon A. White, County Treasurer of MeCurtain County, Oklahoma. Judgment for defendant for costs, and plaintiffs bring error.</p>

Error from District Court, Woodward County; James B. Cnllison, Judge. J. P. Whittinghill filed a claim for compensation with the Board of County Com-misMoners of Wood-ward County. From a reduction of the claim, he appealed to the district court, and from the judgment of such court, sustaining a demurrer to his claim, plaintiff brings error.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Action by W. A. Dimmers, as administrator of the estate of Susan Root, deceased, against John Regan and Neasey Regan, in which Neasey Regan only answered. Judgment for Neasey Regan, motion for new trial overruled, and plaintiff brings error.

<p>(Syllabus.)</p> <p>L Usury — Written Demand for Return — Pleading and Proof.</p> <p>The making of a written demand for tbe return of usury is a condition precedent to the maintenance of an action for the penalty prescribed by section 1005, ReT. Laws 1910, and such demand must be alleged in the petition and proved at the trial.</p> <p>2. Same — Sufficiency of Demand.</p> <p>Although demand and refusal are requisite to the right of the plaintiff to commence an action for the recovery of usury paid, yet, when the law does not require any particular form or condition for either, any demand will be sufficient which notifies the lender that the borrower intends to claim the benefits given him by the statutes.</p> <p>3. Same.</p> <p>In an action for usury instituted jointly by the principal and two sureties, a written demand, signed by one of the plaintiffs only, where the context of the demand discloses that it was made in behalf of all, is a substantial compliance with -section 1005, Rev. Laws 1910, requiring a writting demand for thq return of the usury paid.</p> <p>4. Usury — What Constitutes — Transfer of Property.</p> <p>Section 1005, Rev. Laws 1910, which gives a remedy to the person by whom usurious interest has been paid against the person, firm, or corporation taking or receiving the same to recover back twice the amount of interest paid, comprehends the payment of the usurious interest by a transfer of property at an agreed valuation, as well as by payment in money where such transaction was intended as payment by the contracting parties.</p> <p>5. Same — Payment of Debt.</p> <p>Where one of the sureties on two notes on which usurious interest had been paid agreed with the principal, for a valuable consideration, upon a new and independent contract, to pay the creditor by the transfer of property at -an agreed valuation, and the payee accepted the property, marked the notes paid, and delivered them to thei surety with the intention that the transaction should constitute a payment and cancellation of said notes, the principal was thereby discharged, and is entitled to recover of the payee the statutory penalty.</p> <p>6. Usury — Action for Penalty — Evidence.</p> <p>Evidence in this case examined, and held to reasonably support a judgment for plaintiff.</p>