Volume 7 — Indian Territory Reports

<p>1. Landlord and Renter — ■Unlawful Detainer — Action by Vendee of Landlord</p> <p>Under the Statute unlawful detainer lies by a vendee of land against the lessee of his vendor, who holds over after his lease expires though the vendee has never been in actual possession of the land.</p> <p>2. Indians — Lands—Actions for Unlawful Detainer — Complaint—Sufficiency</p> <p>A complaint in an action of unlawful detainer, alleging that plaintiffs were Indians entitled to an allotment, and that they desired to take the lands in controversy in allotment, and were not in possession of other lands than those in controversy, sufficiently alleged, as against a demurrer, that. plaintiffs were holding the land for the purpose of allotment.</p> <p>3. Same.</p> <p>In an action of unlawful detainer by Indians residing in Indian Territory, a complaint alleging that plaintiffs were the owners of the premises and entitled to their immediate possession was sufficient on demurrer; the fact if it be true, that plaintiffs were holding more than their share of the lands óf their nation or tribe, in violation of the provisions of the Curtis bill (Act June 28, 1898, c. 517, §§ 16, 17, 30 Stat. 501, 502), limiting the extent of an Indian’s holding before allotment, and making the holding of more land a misdemeanor, being defensive matter to be set up by answer.</p>

<p>Appeal from the United States Court for the Southern District of the Indian Territory; before Justice J. T. Dickerson, December 5, 1904.</p> <p>Cleo Miles and others appeal from a conviction of disturbing the peace.</p>

Action by Letty Dickens against the Atchison, Topeka & Santa Fe Railway Company, From a judgment for plaintiff,defendant brings error. On the 9th day of November, 1902, Henry Dickens, the deceased, was in the employ of defendant as an engine cleaner at the station of Purcell, and at the time of receiving the injuries causing his death was engaged in cleaning an engine at a cinder pit of defendant in the Purcell yards.

H. H. Clayton, July 8, 1904. Suit by Emmett Snyder and others against W. L. Sherrell and another, marshal- to enjoin execution on a judgment and annul the judgment. From a decree sustaining a demurrer to the complaint, plaintiff appeals.

<p>1. Assignments — Check Made on Deposits.</p> <p>A bank check given in the ordinary form, which merely directs payment of a certain sum of money to payee or order, does not constitute an assignment of that amount to the drawer, without presentation.</p> <p>2. Writ of Erro) — Interpleader.</p> <p>Judgment is final where a defendant answered and failed .to appear the judgment which was rendered against him and reversal cannot be claimed by interpleader by writ of error on plea of irregularities at the trial between plaintiff and defendant.</p>

<p>Written application by H. S. Conner for a writ of habeas corpus.</p>

J. E. Jéffries was convicted of receiving stolen property, and- brings error. The defendant was indicted, tried and convicted in the court below for receiving stolen property, consisting of three suits of clothing, alleged and proven to have been stolen from Russell Bros., at Hewitt, Ind. Ter., on November 11, 1901.. On.November 23, 1901, the goods stolen were found in the possession of the defendant.

<p>1. Indictment — Adultery—Sufficiency.</p> <p>After alleging that the woman was single and the man a married man at the time the offense was committed, an indictment for adultery sufficiently charged a felonious act when it alleged that defendant “did unlawfully and feloniously commit the crime of adultery by having sexual intercourse with, her.'</p> <p>2. Selection of Grand Jury.</p> <p>Mansfield’s Digest provides tha-t-Circuit Courts shall select jury commissioners and that these commissioners shall select persons to serve on the grand jury. It further provides that should either the circuit or commissioners selected by them fail in their duty, the.court shall order the sheriff to summon a grand jury which shall have and perform the same duties as though regularly selected. This method however must not be resorted to merely because the court prefer it, but because of some mistake or inadvertence in the action of the Circuit Court or commissioners.</p> <p>3. Motion to Quash Indictment — Proof Necessary\</p> <p>Where a motion to quash an indictment because grand jurors were not selected by the jury commissioners as required by law but by the sheriff by order of the court and was sustained by no other proof excepting an affidavit charging that the court usurped' its power, the motion was properly overruled.</p> <p>4. Adultery — Sufficiency of Evidence.</p> <p>It is held that evidence on a trial for adultery,, coupled with the fact that the defendant made no request for instruction on that ground shows that at the time of the commission of the offense the defendant was married.</p> <p>5. Determination' of Punishment by Jury.</p> <p>It is prejudicial error to fail on defendant’s request on a trial for adultery to instruct the jury to determine the punishment for '• Mansfield’s Digest of Statutes c. 46 provides, that on rendering a verdict of guilty the jury shall fix the punishment if it is not already determined by law.</p>

<p>Courts of Indian Territory — Prolate Jurisdiction.</p> <p>By act of Congress June 28, 1898, e. 517, 30 Stat. 504, § 28, tribal courts of the Indian Territory were divested in all eases of all jurisdiction, the courts were abolished and their jurisdiction given to the .United States ourts. Section 29 (page 505) provided however that this should not be the case if the part of the act known as the Atoka Agreement were not ratified by a certain time. In case the agreement were ratified the act only applied to the Choctaw and Chickasaw tribes when it did not conflict with the Atoka Agreement) This agreement gave exclusive jurisdiction to the United States Courts in all cases involving title occupation, ownership, possession of real estate and of all persons in the territory charged with certain crimes. It was ratified within the specified time and held to repeal the Act of Congress in so far as to withdraw probate jurisdiction from the tribal courts of the Choctaw and Chickasaw nations- and vest it in the territorial court. Also that the territorial courts had no jurisd.ction to appoint a guardian for a Chickasaw minor prior to act of Congress, April 28,1904, c. 1824, 33 Stat. 573 which gave the United States Courts all jurisdiction.</p>

Action by Thomas E. Tootle against Charles M. McClellan. Plaintiff appeals from a judgment for defendant, This is an action founded on a judgment obtained by Tootle against McClellan in the Circuit Court of Anderson county, Mo.

Action by Harry H. Myers and another against J. E. Le Bosquet and another. Plea in abatement to the jurisdiction óf the court. From a judgment for plaintiffs, defendants appeal.

Henry Young was convicted of larceny and he appeals. On November 25, 1904, appellant and one Bradley Carr were jointly indicted by grand jury, sitting at South McAlester, in the Central district, for the larceny on July 4, .1904 of six hogs from George Logsden. Defendant waived arraignment and pleaded not guilty. On^ November 16, 1905, defendant was tried separately by a jury who on November 17, 1905, returned into court a verdict of guilty.

<p>Appeal from the United States Court for the Northern District' of the Indian Territory; before Justice Gill, March 4, 1905.</p> <p>Action by John C. Shirk and others against the United States Fidelity & Guaranty Company. Judgment for plaintiffs, and defendant appeals.</p>

J. C. Wilcox and another were convicted of disturbing the peace and quiet of a family by fighting, and they bring error. G. A. Mansfield and James E. Gresham, Asst. U. S. Atty.

Suit by the Bradley Real Estate Company against E. L. Robbins and another. From a judgment in favor of defendants, complainant appeals.

<p>Appeal from the United States Court for the Central District of the Indian Territory; before Justice W. H. H. Clayton, Oct. 18, 1901.</p> <p>Action by Dave Miller against the Átoka Coal & Mining Company. From a judgment for plaintiff, defendant appeals.</p>

<p>1. Damages — Personal Injury.</p> <p>In an action for injuries to an employe, where there is no proof of his earning capacity prior to the injury, nor of the time ho was unable to perform his usual labor, nor of the expenses incurred as a consequence of the injury, and the evidence only showed that his working capacity was reduced one-half, and that his life expectance- by the mortality tables was a designated number of years,'ho is only entitled to nominal damages.</p>

<p>Appeal from the United States Court for the Western District of. the Indian Territory; before Justice Chas. W. Raymond, June 29, 1905.</p> <p>Action by R. N. Eggleston against J. B. Bostic Company and another. Judgment for plaintiff, and defendants appeal.</p>

<p>1. Writ of Error — Assignment of Error.</p> <p>An assignment of error is a pleading, and must state facts showing a sufficient cause for reversal.</p> <p>2. Same.</p> <p>An assignment of error is assumed to be stated for the plaintiff in error as favorably as the facts will allow.</p> <p>3. Same.</p> <p>An assignment of error, in an action for injuries to mules while in transit, alleging that the coürt submitted the live stock contract sued on to the jury after its retirement, neither the_ plaintiff nor his attorneys being present, or having notice of such action, but not alleging that the jury disagreed as to any part of the testimony, or a request by it to be brought into court for further information, does not bring the alleged error within the provisions of Ind. Ter. Ann. St. 1899, § 3340 (Mansf. Dig. Ark. § 5135), which provides that if, after the jury have retired, there is a disagreement as to any of the testimony, or if they desire further instruction, they may request to be taken into court, where the information needed shall be given in the presence of the parties or their attorneys; the inference being that the court, on its own motion sent the contract to the jury, and therefore in consideration of the alleged error that statute may be eliminated.</p> <p>4. Same — Prejudicial Error.</p> <p>It was not prejudicial error, in a trial to recover for injuries to mules in transit, for the court on its motion, in the absence of plaintiff or his attorneys to send the live stock contract sued on to the jury after it had retired.</p>

C. Humphry, October 18, 1905. Action by W. W. Morris against A. E. Perry. From a judgment for plaintiff, defendant' appealed to the United States Court for the Central district of Indian Territory, and from a judgment dismissing the appeal defendant brings error.

<p>Appeal from the United States Court for the Central District of the Indian Territory; before Justice W. II. H. Clayton, June 8, 1905.</p> <p>Action by T. C. Collier and another against Martin Curran. From a judgment for plaintiffs in the commissioner’s court, defendant appealed to the United States Court, and from its judgment he appeals.</p>

Action by the Western Investment Company against Frank M. Davis and others. From a judgment for defendants, plaintiff brings error.

<p>Appeal from the United States Court for the Central District of the Indian Territory; before Justice W. H. H. Clayton, May 26, 1906.</p> <p>Ben Gibbs was convicted of selling intoxicating liquor, and appeals.</p>

<p>Appeal from the United States Court for the Central District of the Indian Territory; before Justice T. C. Humphrey, October 10, 1904.</p> <p>J. R. Roper was convicted of an assault with intent to kill, and he appeals.</p>

<p>1. Court Rules — Assignment of Error.</p> <p>Under Court of "Appeals rule 13 (104 S. W. —) which provides that as the assignment of errors to the admission or rejection of evidence shall quote fully the evidence admitted or rejected, assignments that the court erred in permitting the asking of improper questions over the objections of plaintiff, as appeared by the bill of exceptions on specified pages referred to, were insufficient.</p> <p>2. Indians — Lands—Leases.</p> <p>Where lands were alloted to minor Indians and rented .to the plaintiff by them, a sublease for a term of two years made by plaintiff to defendant ostensibly for farming purposes, but in reality for grassing purposes was void because, it was a violation of treaties of March 1. 1901. and June 30. 1902.</p>

R. Lawrence, May 19, 1906. S. W. Isaac was convicted of crime, and brings error. On the 8th day of March, 1905, in the United States Court for the Western District of Indian Territory, sitting at Wagoner, the grand jury presented in open court an indictment for false pretense against plaintiff in error.

C. Humphrey, May 16, 1905. Action by D. D. Brunson, administrator of Louis Gamerro, against the Southwestern Development Company. From a judgment for defendant, plaintiff brings error.

<p>1. Appeal — Error Assigned.</p> <p>Without assignment of error, the appellate court will take notice of a trial court’s want of jurisdiction; however such errors are only-receivable on proper assignment of errors.</p> <p>2. Same — Compliance with Court’s Rule.</p> <p>If the trial court had jurisdiction and no error is presented to appellate court and no .error appears from the record, the appeal will be dismissed because of lack of compliance with court rule 13, which requires appellant to file assignments of error and set out each . error assigned separately.</p>

<p>Appeal from the United States Court for the Southern District of the Indian Territory; before Justice J. T. Dickerson, November 25, 1904.</p> <p>Protest by Peter J. Hudson against the appointment of Chas. K. Von Weise-as guardian of said Hudson’s minor children. From an order confirming the appointment, said Hudson appeals.</p> <p>On the 7th day of March, 1904, Peter J. Hudson was duly appointed guardian of Listie Bohannon, Liza Bohannon, and Elizabeth Bohannon in the county and probate court of Neshoba county, Choctaw Nation; this being the county where the minors resided, and this appointment being made on the written request of Listie Bohannon, who was over 14 years of age, and of Jesse Bohannon, the father of the minors. On June 23, 1904, Peter J. Hudson was also appointed guardian by the United States Court for the Southern District of the Indian Territory at Ardmore. On June 18, 1904, Chas. K. Von Weise applied to the clerk of the United States Court for the Southern District of the Indian Territory at Tishomingo, and on his application the clerk, in vacation, appointed said Von Weise guardian of Elizabeth and Liza Bohannon, which appointment was subject to the confirmation of the court in term time. On the 28th day of November, 1904, Peter J. Hudson, guardian, and Jesse Bohannon, father of the minors, filed a protest before the Honorable J. T. Dickerson, judge of the United States Court for the Southern District of the Indian Territory, at Tishomingo, protesting against the confirmation of the appointment of Von Weise. The court overruled said protest and proceeded to make an order confirming the appointment of Von Weise. Peter J. Hudson, guardian, filed a motion for a new trial, which was overruled, prayed an appeal to this court, which was allowed, and in due time filed -a supersedeas bond and perfected his appeal.</p>

Kid Kelley was convicted of murder, and he brings error. The defendant below was indicted, tried, and convicted of murder, and the sentence of death was entered against him. The killing occurred at Tishomingo, in the Southern district, on January 11, 1904. The facts are that deceased had been arrested for gambling, and had accused the defendant of being instrumental in causing his arrest. The day before the killing they had a quarrel.

T. Dickerson, March 2, 1900. Barney Carney was convicted of manslaughter, añd brings error. Plaintiff in error at the February term, 1904, of the United States Court of the Southern District of Indian Territory, at Ada, was indicted for the murder of Caddo Gordon, and was on the 27th 'day of February, 1905, convicted of manslaughter and' sentenced to the penitentiary at Ft.

<p>1. Indictment — Variation in Names.</p> <p>Under the common law the variance between a charge that defendant stole “S. K. Canady’s” horse and proof that he stole a horse belonging to “Steve Kennedy” would be fatal. However under Carter’s Ind. Ter. Ann. St. 1899 § 1454 it is immaterial providing the identity of the person named in the indictment and the owner of the horse is sufficiently shown. •</p> <p>2. Witnesses — Evidence.</p> <p>Accused could not show upon cross-examination that a witness had been convicted of perjury in another state to prove his incompetency. The record of such conviction is best evidence.</p>

<p>1. Criminal Law — Continuance.</p> <p>The refusal of a continuance lies within the discretion of the court.</p> <p>2. Seduction — Trial—Question for the Jury.</p> <p>Under Mansf. Dig. § 1587 (Ind. Ter. Ann. St. 1899 § 930) no person shall be convicted of having carnal knowledge of any female under promise of marriage unless the testimony of the female is corroborated. It is for the jury to' decide whether there was corroborative evidence of the promise to many.</p> <p>3. Same — Presumption of Chastity.</p> <p>In a prosecution for seduction an instruction that the burden of proof was on defendant to show that prosecutrix was not chaste as the law presumes every woman to be chaste and proof must be sufficient to raise a reasonable doubt, is ample statement of the law.</p> <p>4. Criminal Law — Indictment.</p> <p>Under Mansf. Dig. § 2106 (Ind. Ter. Ann. St. 1899 § 1449) an indictment is sufficient if it can be understood from it that the act or omission charged as the offense is stated with sufficient certainty to enable the court to pronounce judgment according to the right of the case.</p>

<p>Error to the United States Court for the Northern District of the Indian Territory; before Justice Joseph A. Gill, February 8, 1906.</p> <p>Action by the Wagoner National Bank against T. J. Welch and others. Judgment for defendants, and plaintiff brings error.</p>

H. H. Clayton^. February 4, 1905. Action by the Central Coal & Coke Company against George S. Good & Co. From a judgment for plaintiff, defendant brings error. The original complaint in this cause was filed on the 13th. day of October, 1895, at South McAlester. On April 29, 1896, the defendants, George S. Good & Co., filed their answer tO' the complaint.

District of the Indian Territory;'before Justice J. T. Dickerson, November 28, 1905. Sid Burch was convicted of introducing intoxicating .liquor into Indian Territory, and brings error.

<p>Error to the United States Court for the Northern District of the Indian Territory; before Justice Luman F. Parker, Jr., May 5, 1906.</p> <p>Action by John W. McCoy and another for killing plaintiffs’ cattle against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiffs, and defendant brings error.</p> <p>On the 8th day of February, 1906, plaintiffs below, defendants in error here, filed their complaint against defendant below, plaintiff in error here, and alleged: That they are citizens of’the Cherokee Nation, and the defendant is a corporation; that on the 14th day of November, 1905, defendant was engaged in operating its railroad with steam locomotives and passenger cars; that on same day plaintiffs were the owners and in possession of eight head of cattle, as follows, one black with white face five year old steer, three red four year old steers, three red and white four year old steers, one red and white three year old steer, all branded with the figure 7 on the right hip, and also on the right side, and of the value of $300; that on said date, through no fault or neglect on the part of said plaintiffs or either of them, the above-described steers strayed upon the railway track of the defendant, and were standing on said railway track at a point where a public highway crosses said railway four miles south of Pryor creek, Incl. Ter-., which crossing was opened across said track by said defendant for public travel and convenience; that at said time and place, while said steers were standing upon said track and upon said public crossing, said defendant, by its certain officers, agents, servants, and employes then and there having the care, government, control, and direction thereof, for said defendant, disregarding their duty in this behalf, negligently and carelessly drove, directed, managed, and operated the steam locomotive and passenger cars thereto attached, belonging to and owned by said defendant, at a great speed, against, upon, and over said steers, while so standing upon said railway track and upon said public crossing as aforesaid, and thereby and by reason of said negligence and careless driving, directing, managing, and operating of said steam locomotive and passenger cars thereto attached, its officers, agents, servants, and employes, against, upon, and over said steers, seven of said steers were killed, being the said black with white face five year old steer, the said three red four year old steers, and the said three red and white four year old steers, and so crippled, mangled, and injured'said red and white three year old steer that it soon thereafter died from said injuries so received by it; that said locomotive and passenger cars composed what was designated by said defendant as train No. 5; that by reas.on of the jieg-ligent, careless, and unskillful management and operation of said train, and its officers, agents, servants, and employes, from no fault or neglect on the part of the said plaintiffs or either of them, seven of the said steers were killed, and one so crippled, mangled, and injured that it soon thereafter died from the injuries so received by it, and all were rendered worthless and of no value to these plaintiffs; and they were thereby and they are damages in the sum of $300, wherefore they sue. On February 19, 1906, defendant filed its answer, specifically denying each and every allegation of the plaintiff’s complaint. ■ On May 5, 1906, the case was tried before a jury-, who returned the following verdict: “We, the jury, duly impaneled and sworn to try the issues in the above-entitled cause, find from the law and the evidence the issues in favor of plaintiffs, and assess their damages at two hundred dollars. Ed. Gwartney, Foreman.” Upon the same day defendant files its motion for a new trial, as follows: “(1) Because the verdict of the jury is contrary to law. (2) Because the verdict of the jury is contrary to the evidence. (3) Because the verdict is excessive. (4) Because the court erred in admitting testimony over defendant’s objection, as shown by the record, and to which ruling of the court defendant at the time excepted and still excepts. (5) Because the court erred in refusing to admit testimony, offered by defendant as shown by the record, to which ruling of the court the defendant at the time excepted and still excepts. (6) Because the court erred in refusing defendant’s request to instruct the jury to return a verdict for the defendant, to which action of the court defendant at the time excepted and still excepts.” Which said motion was by the court overruled, to which ruling ■of the court defendant excepted. Thereupon the court rendered judgment upon the verdict of the jury. Defendant was allowed '60 days to file bill of exceptions, and the ease was brought to this court by writ of error.</p>

R. Lawrence, May 17, 1906. Action by Rachel A. Edwards and others against the Guarantee Gold Bond, Loan & Savings Company, in which G. M. Swanson intervenes. From a decree for plaintiffs, defendant and the intervener appeal.

<p>Appeal from the United States Court for the Western District of the Indian Territory, before Justice Louis Sulzbacher; August 3, 1905.</p> <p>Suit by W. R. Manley against J. C. Tye. From a decree for complainant, defendant appeals.</p>

Appeal' from the United States Court for the Western District of the Indian Territory; before Justice Louis Sulzbach'er, July 23, 1906. Action by Perry Colbert against R. J. Alfrey and another. Decree for plaintiff. Defendants appeal.

<p>1. Contract — Bonus.</p> <p>A contract made by a railroad company to construct its railroad through a town in consideration of a bonus is not void as against public policy and does not render the note given for the bonus void.</p> <p>2. Same.</p> <p>The bonus was not shown to be for the benefit of any other than the railroad company so as to make the contract void, because notes^ executed to trustees, payable to a town were assigned to A., trustee) an officer, director and stockholder of said railroad company. The assignment conditioned that the notes would be void if the road was not constructed.</p> <p>3. Parol Evidence.</p> <p>Plaintiff executed notes to trustees, payment being conditioned on the construction of a railroad to D. The trustees made a written assignment thereof to A., trustee, stating that the consideration was the benefit to be derived by the town from the construction of a road to such town. Therefore it cannot be proved that part of the consideration was an invalid agreement that no depot should be between D. and another town, by oral testimony, that the person representing A. when the assignment contract was executed, declared to the persons making the assignment that he would have A. make such an agreement on the following day.</p>

<p>Appeal from the United States Court for the Western District of the Indian Territory; before Justice Louis Sulzbacher, April 16, 1906.</p> <p>Suit by William B. Hudson against W. L. Stuckey, trustee, and others. From an adverse judgment, plaintiff appeals.</p>

<p>Appeal from the United States 'Court for the Western District of the Indian Territory; before Justice Louis Sulzbacher* April 16, 1906.</p> <p>Suit by Andrew J. Deskin against W. L. Stuckey, trustee, and others. From an adverse judgment, plaintiff appeals.</p>

R. Lawrence; February 10, 1906. • Suit by A. P. Murphy against Pleasant Porter and another. From a decree for plaintiff, defendants appeal.

<p>1. Rulings of Appellate Court — Harmless Hiror.</p> <p>A cause will not be reversed by the Appellate Court because leading questions were asked, unless it plainly appears that the party making the complaint was prejudiced thereby</p> <p>2. Same — Verdict.</p> <p>In a cause where appellant did not introduce any evidence, verdict will not be disturbed on appeal if supported by any evidence.</p> <p>3. Release Fraud.</p> <p>A verdict that a release of $2,000 to a beneficiary in a mutual benefit association was procured by fraud on the part of insurer was held authorized by the evidence.</p>

Gill; November 4, 1905. S. D. Harper was convicted under U. S. Rev. St. § 5209 (U. S. Comp. St. 1901, p. 3497), of making false entries in a report, and brings error.

H. H. Clayton, March 24, 1906. Action by R. Sarlls against the Choctaw, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.

R. Lawrence, January 28, 1907. W. T. Martin, Jr., was convicted of taking from the office of the Commissioner of the Five Civilized Tribes of Muskogee, Ind. Ter., the Creek roll, and brings error. On the 12th day of October, 1906, the grand jury of the United States Court for the Western District of Indian Territory, sitting at Muskogee, returned a bill of indictment against the defendant, W. T. Martin, Jr., as follows: “United States vs W. T. Martin, Jr., Defendant.

W. Raymond. May 20, 1905. Action by the T. H. Rogers Lumber Company against A. B. McRea. Judgment for defendant, and plaintiff brings error. The complaint in this case alleges that the plaintiff, T. H. Rogers Lumber Company, is a foreign corporation; that the defendant-, A. B. McRea, is indebted to it for material furnished for the erection of a dwelling house, and asks for the foreclosure of a mechanic’s lien upon the property.

Application by Legus C. Perryman, as guardian of the estate of Edith M. Perryman, a Creek minor, for permission to lease the minor's land for mining oil and gas, continued after the removal of Perryman as guardian by his successor, Frank L. Mars. From an order setting aside an order confirming a lease to the Eastern Oil Company and providing for a lease to the Selby Oil & Gas Company and others, the Eastern Oil Company appeals.

R. Lawrence, April 14, 1906. Action by Johnson Foreman against the Midland Valley Railway Company. There was a judgment for defendant rendered after sustaining a demurrer to the complaint, and plaintiff brings error.

d States Court for the Southern District of the Indian Territory; before Justice J. T. Dickerson, June 17,-1905. S. E. Kerr was convicted of seduction, and he brings error. The defendant was charged in an indictment in the court below with the seduction of one Nora Hiser, who, at the time the offense is alleged to have been committed, was about 19 years of age.

<p>Error to the United States Court for the Southern District of the Indian Territory; before Justice Hosea Townsend, November 9, 1906.</p> <p>Act'on on a note by G. W. Pate against A. V. Harris. From a judgment of the commissioner’s court for defendant, plaintiff appealed to the United States District Court; and Irom a judgment for plaintiff, defendant brings error.</p>

H. H. -Clayton, April 19, 1906. Action by George A. Scargill against Wiley W. JLowrey and another. From a justice's judgment in favor of plaintiff, affirmed by the District Court, defendant Lowrey brings error.

Action by W. A. Dillard against the Ardmore Loan & Trust Company. From a judgment for plaintiff, defendant brings error. This is a suit instituted by defendant in error, plaintiff below, against the Ardmore Loan & Trust Company, to recover damages in the sum of $520 for the alleged unlawful conversion of certain property described in the complaint. Defendant justified the taking under a mortgage executed to it bir Dillard.

T. Dickerson, May 1, 1906. Action by the Kansas Moline Plow Company against H. S. Bruner and others. From a judgment for plaintiff defendants appeal. The appellee, the Kansas Moline Plow Company, brought its action against the appellants for the sum of $1,223.21 together with interest for goods, wares, and merchandise sold and delivered by appellee to the appellants at the special instance and request of said appellants, and attached to their complaint an itemized account.

<p>1. Writ of Error.</p> <p>A writ of error is a process of common law origin available only to present questions of law.</p> <p>2. Nuisance — Notice.</p> <p>The railroad company could not be liable for damages resulting from the building of its right of way embankment, which plaintiff claimed was a nuisance until after notice to abate such building.</p> <p>3. Water and W^atei- Courses — Railroads—Proof of Title.</p> <p>In an action brought against a railroad company for injuries caused to plaintiff’s land through defendant’s right of way embankment obstructing the flow of surface water, it was sufficient proof of title that the plaintiff was in possession of the land, no evidence being given of limit of his estate.</p>

H. H. Clayton, April 2, 1906. Action by the incorporated town of McAlester against the Choctaw Railway & Lighting Company. From a judgment for plaintiff, and from an order denying defendant's motion for a new trial, defendant brings error.

<p>Error to the United States Court for the Central District of the Indian Territory; before Justice W. H. H. Clayton, January 12, 1906.</p> <p>Action by Juanita Fisk against Leo Arnold and another. From a judgment for defendants, plaintiff brings error.</p>

Action by James A. Harris against Adam M. Hardridge and others. From aii order sustaining a demurrer to the complaint, plaintiff appeals.

<p>Indian Lands — Contract for Sale.</p> <p>Act of Cong. June 28, 1898, c. 517 § 29, 30 Stat. 507 provides for sale,, etc. of the land of certain Indian allottee shall be void. Act July 1, 1902, c. 1362, 32 Stat. 642 provides that allotted land shall not be affected by any deed, debt or other obligation made before the time when such land could be alienated under the act. Therefore-a contract made by any one not an Indian citizen to buy land before allotment is made, is void. Such persons have no right to buy or sell Indian lands before allotment and the expiration of the period of restrictions.</p>

H. H. Clayton, Mai’ch 14, 1906. Action by the Saline County Bank against Cassidy & McFadden and others. Judgment for plaintiff, and defendants bring error.

T. Dickerson, May 15, 1905. Action by the Johnson & Larimer Dry Goods Company against J. W. Hunt. From a judgment for plaintiff, defendant brings error. This was an action brought by the defendant in error against the plaintiff in error, J. W. Hunt, upon an account for goods, wares; and merchandise sold and delivered to Hunt, amounting to the sum of §485.42. The defendant below.

H. H. Clayton, August 31, 1905. Petition for mandamus by E. A. Moore against E. J. Fannin and another. From a judgment denying the writ, petitioner brings error.

<p>Appeal from the United States Court for the Central' District of the Indian Territory; before Justice T. C. Humphrey, March 10, 1905.</p> <p>Action by Swift & Co. against J. M. Sanford. From ai judgment for plaintiff, defendant appeals.</p>

Justice Louis Sulz-bacher, June 14, 1906. In the matter of the estate of Joseph F. Berryhill, an infant. From a decree confirming a bid of a lease of the allotment of the infant and directing William Berryhill, guardian, to execute a lease to the Galbreatli Oil & Gas Company, the Laurel Oil & Gas Company appeals.

; before Justice Louis Sulzbacher, June 14, 1906. In the matter of the estate of Jackson Glenn Berry hill and another, minors. From a judgment confirming a lease to the Galbreath Oil & Gas Company and directing the guardian, Theodore Berry hill, to execute such lease, the Laura Oil & Gas Company appeals.

<p>1. Parties to Mrrit of Error.</p> <p>In order that a writ of error to a Ufaited States District Court of the Indian .Territory be valid all the defendants against whom a judgment was rendered must be made parties thereto. Act March 3, 1905, c. 1479 § 12, 23 Stat. 1081 (U. S. Comp. St. Supp. 1905, p. 150) made Rev. St. IT. S. § 997 (U. S. Comp. St. 1901, p. 712) and Act March 3, 1891, c. 517, § 11, 26 Stat. 829 (U. S. Comp. St. 1901, p. 552) applicable to such courts.</p> <p>2. Same — Defect.</p> <p>When one of the defendants against whom judgment was rendered is not made a party to the writ of error, the defect is not cured by entry of appearance of this party after the writ has been filed and the time fo.- suing it out has expired.</p>

<p>1. Injunction — Temporary.</p> <p>When merely a temporary injunction is asked for it is error to grant a perpetual injunction.</p> <p>2. Same — Motion to Dissolve.</p> <p>When there is sufficient remedy at law a motion it is proper that the motion to dissolve a temporary injunction be sustained.</p> <p>3. Same — Demurrer.</p> <p>It is proper that a demurrer to a petition for a temporary injunction be sustained when the remedy at law is sufficient.</p> <p>4. Same — When Bill is Bad.</p> <p>A temporary injunction being granted and the bill showing that the remedy at law is sufficient, the complaint should be dismissed on consideration of a demurrer to the answer, because the demurrer extends back to the bad pleading first made.</p>

<p>Appeal from the United States Court for the Western District of the Indian Territory; before Justice Wm. R. Lawrence December 29, 1906.</p> <p>Action by Johnnie Hood, by Chester A. Linebach, his guardian, against Ben F. Lafayette and another. From a decree for plaintiff, defendants appeal.</p>

<p>Appeal from the United States Court for the Western District of the Indian Territory; before Justice Wm. R. Lawrence, December 29, 1906.</p> <p>Action by Jackson Hood, by Chester A. Linebach, his guardian, against Ben F. Lafayette and another. From a decree for plaintiff, defendants appeal.</p>

<p>Appeal from the United States Court for the Southern District of the Indian Territory; before Justice J. T. Dickerson, September 22, 1904.</p> <p>Harrison Porter was convicted of murder, and he appeals.</p>

Suit by Robert Pilgrim against Jackson McIntosh, as guardian, and another, as United States Indian agent. From a decree dismissing the bill, and for costs and damages, plaintiff appeals.

<p>L Master and Servant — Risk—Servant’s Injury.</p> <p>A mule driver in a mine who was injured through a mule becoming frightened at a curtain in a passageway, the same mule having been frightened in the same manner a few hours before while in charge of the same driver, cannot recover from his employer, even though the pit boss induced the driver to return to his work after the first occurrence telling him the mule was not vicious, but merely frightened.</p> <p>2. Same.</p> <p>It is the duty of the master to provide a reasonably safe place and appliances for work and it is the duty of the servant to likewise be careful in the use of such appliances. If, knowing any defects of which the master has no knowledge, he continues work and is injured, he cannot recover.</p>

December 20, 1905. Ejectment by Hattie E. Crabtree against the W. O. Whitney Lumber & Grain Company. Judgment for plaintiff,, and defendant appeals.

<p>1. Nature of Pleadings.</p> <p>Pleadings are the exact statements of the cause for which plaintiff asks relief also the affirmative or negative denial by the defendant.</p> <p>2. Pleading — Demurrer.</p> <p>If a complaint for injury fails to give cause for the injury a demurrer is proper and not a motion to make complaint more explicit and certain.</p> <p>3. Master and Servant — Injury to Servant.</p> <p>In an action brought against a coal mining company because of injury to a miner by an explosion, the complaint, though with repetitions, gave a clear and concise statement of the cause of action as required by Carter’s Ind. Ter. Ann. St. 1899, § 3231.</p> <p>4. Same — Evidence.</p> <p>In a case brought ágainst a mining company because of personal injury to a miner due to an explosion, he could simply say that the flame by which he was burned “seemed to come right up the slope.”</p> <p>.5. Same — Qualification of Witness.</p> <p>A miner having eleven years experience, and having worked in one particular mine for eighteen months is qualified to testify as to the capabilities of a sprinkling machine which was used to keep the explosive dust down.</p> <p>6. Same — Risk.</p> <p>By the Act Cong. July 1, 1902, c. 1356, 32 Stat. 631, mine operators in the Indian Territory are required to guard their employes from injuries through dust, bad air, explosives, etc. Therefore an operator is estopped from pleading contributory negligence or assumption of risk in a suit for injury which was caused by noncompliance of the operator with the act.</p> <p>7. Same — Negligence.</p> <p>It is improper to charge contributory negligence, where it is not stated that the burden of such proof falls on the defendant.</p> <p>8. Appeal — Damages.</p> <p>A'verdict allowing excessive damages will be undisturbed, unless so extreme as to show prejudice.</p> <p>9. Same.</p> <p>A minor who was negligently burned 'in an explosion could recover for permanent disability and inability to earn a living and also for the pain and suffering and for being handicuffed the rest of his life by distorted face and body.</p>

<p>1. Criminal Law — Counsel’s Misconduct.</p> <p>By Carter’s Ind. Ter. St. § 1974, a husband or wife is disqualified to testify for or against the other, or as regards any communication between them during the marriage. Therefore it is prejudicial error for the attorney for the prosecution to refer in his argument to the failure of the wife of the accused to testify and to declare that as a witness she was competent unless objected to by the prosecution; the court failing to have the remark withdrawn or to instruct that the wife was wholly incompetent as a Witness.</p> <p>2. Same — Right of Accused.</p> <p>Accused has absolute right to a fair and impartial trial and to be given the benefit of every doubt as to his guilt.</p> <p>5. Same — Proof of Error.</p> <p>Accused must show prejudicial error in prosecuting attorney’s remarks to the jury.</p> <p>4. Same — Instructions to Jury.</p> <p>Prosecuting attorney has no authority to instruct the jury as to law points.</p>

<p>Appeal from the United States Court for the Central District of the Indian Territory; before Justice T. C. Humphry, March 11, 1905..</p> <p>Action by D. A. Taylor against J. T. Southerland, in which R. Moffett & Sons and J. H. Randall, intervened as co-defendants. From a judgment for defendants, plaintiff appeals.</p>

<p>Appeal from the United States Court for the Southern District of the Indian Territory;.before Justice J. T. Dickerson, December 29, 1905.</p> <p>Action by D. D. Sayer against J. W. Brown. From a decree for defendant, plaintiff appeals.</p>

<p>1. Appeal — Showing Error.</p> <p>An appellant, making allegation that a judgment against him was obtained through fraud, must overcome the lower court's finding' that no such fraud existed.</p> <p>2. Evidence — Notice of Laws.</p> <p>Judicial notice is not taken by the federal Court as to what the laws of the Chickasaw Nation are, but such laws must lie proved by introduction of authorized publications or by testimony of some person learned in that law.</p>

Condemnation proceedings by the St. Louis & San 'Francisco Railroad Company against R. W. Pfennighausen. From the judgment, the railroad company brings error. This is an appeal from a condemnation proceeding, wherein the railroad company sought to condemn a piece of land situated in the town of Sapulpa, in the Creek Nation.

C. Humphry, March 8, 1906. Action by J. K. Thurman against G. Y. Henderson and another to recover for the breach of a covenant of quiet enjoyment in a lease. Frdftf a judgment for plaintiff against defendant Henderson, plaintiff brings error.

T. Dickerson, March 31, 1906. Action by Ida Hay-es against John L. Barringer. From a judgment for defendant, plaintiff brings error. This is an action in ejectment, brought by-the plaintiff in error, Ida Hayes, for the recovery of the possession of certain land named in the complaint. The plaintiff is a Chickasaw Indian. The complaint alleges that she is the owner and entitled to possession of the land in controversy.

<p>1. Weapon» — Statute.</p> <p>Mansf. Dig. § 1907 prohibits the carrying‘of weapons, but it is riot so interpreted as to prevent a person from carrying a weapon when making a journey.</p> <p>2. Same.</p> <p>Before a person can be convicted under the statute for carrying a weapon, it must be proved that he carried the weapon in order to always have it available for use in a fight. The jury must decide as to the reason for which the weapon was carried.</p>

<p>Error to the United States Court for the Northern District of the Indian Territory; before Justice ffm. R. Lawrence, March 8, 1905.</p> <p>Action by Arthur Buffalo against C. D. Goodrum and others. Judgment for plaintiff, and defendants bring error.</p> <p>Arthur Buffalo, a minor Quapaw Indian, brought suit in ejectment against C. I). Goodrum and his tenants for the possession of two tracts of land in the Quapaw reservation, Ind. Ter. Goodrum in his answer in both cases claims title as follows: On September 26, 1896, the lands were conveyed by patent from the United States to John Medicine and Mary Joseph, his wife, both Quapaws, as their allotment and proportionate share of the lands of the Quapaws. The allottees both died, leaving surviving two. children as their sole heirs, Ollie Plylor, the mother, and John .Medicine, the uncle, of defendant in error, who inherited each an undivided one-half interest, in both allotments.' On March 8, 1899, subsequent to the death of the original allottees, John Medicine and Ollie Plylor executed 1o the plaintiff in error, ('. I). (loodrum, warranty deeds to said allotments. Subsequent to the execution of the deeds mentioned, and during1 the lifetime of the grantors, a controversy arose as to the legality of the sale to (loodrum; it being contended that under Act Cong. March 2. 1895, c. 188 (28 St at. 907), and the patent issued in conformity to the provisions thereof, the lands attempted to be conveyed by said deeds were inalienable for the period of 25 years, and by virtue of the provisions of Mansfield's .Digest an agreed case was made between Ollie I'lvlor and (\ D. (loodrum in the United States Court at Vjnifa, and between John Medicine and C. I), (loodrum in the United States Court at Wagoner, in both of which cases the following identical judgments were entered: “'Phis cause coming on to be heard * * * upon the agreed statement of fads and the submission of the controversy herein to the judgment, of the court, the court being fully advised in the premises, doth find that the plaintiff * • * * is the. heir at law of .John Medicine, deceased, and of Mary Joseph, deceased, and as such heir of said parties is entitled to an undivided one-half interest in the following lands, to wit: * * •Which lands were allotted * * * under the act of Congress approved March 2, 1895. * * * That the plaintiff * * * on .March 28, 1899, sold and conveyed to the defendant (’. D. (loodrum her undivided one-half interest in and to the said lands, and that there is a balance due from the said (loodrum to plaintiff of * * * * That the said plaintiff and the said John Medicine and Mary Joseph are and were all citizens of the Quapaw tribe of Indians. That the court doth further find that the plaintiff has a full and complete right to transfer and convey said lands to the extent of her interest therein, and that she is competent to make a deed conveying the same. It is therefore considered, ordered, and adjudged by the court * * * that she make a deed for the same to the said ('. 1). Goodrum, upon the payment of the said sum, which deed shall and will convey a good and valid title to the said lands to the said C. I). Goodrum.” The judgment at Wagner was entered on May 24, 1899, and the judgment at Yinita on October 2, 1899. The deeds upon which plaintiff in error, Goodrum, relies, were both executed on March 28, 1899: and no other or further deed appears to have been executed after the rendition of the above mentioned judgments. The defendant in error, plaintiff below, claims title to the premises by reason of being the sole heir of the original allottees; ami claims that under the act of Congress of March 2, 1895, and the patent issued thereunder, the lands are inalienable for the period of 25 years from the date of the allotments, and that, therefore, the deed from Ollie Plylor and .John Medicine, the heirs of the original allottees, was void. The plaintiff in error, Goodrum, contends, “first, that the restriction on the right of alienation only applied to the original allottee, and that upon his death the heirs took free from limitation: second, conceding that this court might be of opinion that the restriction runs with the hind, that inasmuch as this is a question for judicial determination, that, as far as this case is concerned, it having been decided by a court of competent jurisdiction that the deed from plaintiff's ancestors to Goodrum was a gootl and valid deed, he" is now estopped by that judgment, even though it was erroneously rendered.”</p>

Action by J. E. Bell and another against the Purcell Cotton Seed Oil Mills. From a judgment for plaintiffs, defendant brings error. Bell and Mays, the plaintiffs below and defendants in error here, were engaged in feeding cattle at Purcell; and for that purpose used largely cotton seed hulls, which they obtained from a house in Memphis.

Krror io the United States Court- for the Northern District f the Indian Territory; before Justice Wm. R. Lawrence,. Larch 8, 1905. Action by Arthur Buffalo against C. D. Goodrum ancl thers. From the judgment, defendants bring error!

Action by I. Hunter Pickens against the First National Bank of Madill and another. Judgment for plaintiff against defendant bank, and said bank brings error.

<p>1. Criminal Law — Error—Evidence.</p> <p>It is harmless to refuse to allow a matter to be shown by one witness, when subsequently the same matter is brought out by the undisputed testimony of another witness.</p> <p>2. Same — Instructions.</p> <p>It is not error to refuse instructions, whose substance is contained in the general instructions.</p> <p>3. Homicide — Instructions.</p> <p>An instruction defining murder, first explaining malice aforethought then stating that evidence must show that defendant thought of killing beforehand, in order to constitute murder is not objectionable if an instruction is then given on the right of self-defense.</p> <p>4. Same — Criminal Law.</p> <p>Where the instructions considered as a whole, state the law correctly, error may not be claimed on a detached sentence, which taken by itself would be erroneous.</p>

Action by Lee Scroggins and others against L. C. Oliver. From an adverse judgment, plaintiffs appeal.

Action by Fat Gorman against S. W. Brown and another. From a judgment of the United States Court affirming a judgment for plaintiff in mayor's court and awarding recovery on the appeal bond, and from a judgment refusing to redocket the cause, defendant Brown appeals.

Suit to vacate a judgment by S. W. Brown and others against Pat Gorman. From a judgment dismissing the complaint plaintiffs appeal. On December 18, 1905, plaintiffs (appellants) filed their complaint in the United States Court at Sapulpa, Ind.

T. .Dickerson, June 21, 1905. ' B. i The plaintiff in error, B. E. Driggers, with five others, to wit, L. W. Goff, Tom McCarter, Tom Morgan, Ted Bennett, and John Underwood, was on the 13th day of October, 1903, indicted at Ada, in the Southern district, upon a charge of murder. There are four counts in the indictment.

C. Humphry, October 18, 1905. Personal injury action by Isaac Boyd against the Southwestern Development Company. From a judgment for plaintiff, defendant brings error. On September 7, 1905, the plaintiff below, defendant in error here, filed his complaint against the defendant, the Southwestern Development Company, plaintiff in error here.