Volume 79 — Oklahoma Reports

Error from Superior Court, Pottawatomie County; Leander (1. Pitman, Judge. Action by Ed Park and others against H. H. Fowler, County Superintendent of Public Instruction of Pottawatomie County, and others for injunction to prevent the -disorganization of certain school districts and the organization of a consolidated district. Judgment for plaintiffs, and defendants -bring error.

Error from District Court, Caddo County; Will Linn, Judge. Action by the Keechi Oil & Gas Company against Elmer T. Wagner and others to require delivery of assignment of an oil and gas lease. Judgment for plaintiff, and defendants bring .error.

<p>Error from District Court, Tulsa County; Owen Owen, Judge.</p> <p>Habeas corpus proceeding by George F. Aufder Heide against Anna W. Kiskaddon and another for custody of minor children. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by J. T. Gist against the Chicago, Rock Island & Pacific Railway and another to recover freight overcharges. Judgment for plaintiff, and defendants bring error.

Error from District Court, Nowata County; W. J. Campbell, Judge. Foreclosure of mortgage by the Union Central Life Insurance Company and others against William Vann and another. Defendants’ motion to vacate default judgment and objections to confirmation of sale overruled, and they bring error.

Error from District Court, Carter County; TV’. F. Freeman, Judge. Action by Charles E. Fraley and wife against Leslie Y. Wilkinson and another to cancel deed. Judgment for defendants, and plaintiffs bring error (Charles E. Fraley having died, the cause was revived in the name of his administrator, Wm. S. Fraley).

<p>Error from District Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by Clark P. Bryan, doing business under the firm name and style of the O. K. Credit & Collection Service, ■ against the Ok-mulgee County Business Men’s Association and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court; Ottawa County; Preston S. Davis, Judge.</p> <p>Action by Priscilla Breedlove against James N. Stovall to cancel contract for sale ox land and other relief. Stipulation filed settling controversy, also settling controversy involved in ‘ three other eases brought by Frank T. Lamar against Breedlove and another. Judgment for Breedlove upon the stipulation, and Stovall and Lamar bring error.</p>

<p>Error from District Court, Ottawa County; Preston S. Davis, Judge.</p> <p>Action by Wesley M. Smith against Napoleon J. Bradley and wife on notes and to foreclose real estate mortgage. Judgment for plaintiff; motion by defendants to set aside order confirming sale overruled, and they bring error.</p>

Error from District Court, Tulsa County; Owen Owen, Judge. Action by Lucy Krauter against Bert Krauter for annulment of marriage and for division of property. Judgment for plaintiff, and defendant brings error from decree as to property rights.

Error from District Court, Marshall County ; George S. March, Judge. Action by J. A. Boucher against W. G-. Sterling to quiet title to certain lands in Marshall county, Oklahoma. After judgment for plaintiff, defendant secured an order granting a. new trial. From this order, plaintiff attempts to appeal.

<p>(Syllabus by tbe Court.)</p> <p>1. Appeal and Error — Sufficiency of Evidence — Necessity of Objections in Lower Court.</p> <p>Where a party submits his case to the jury without demurring to the evidence or asking an instructed verdict, or otherwise legally attacking its sufficiency, the question whether there is any evidence reasonably tending to support the verdict is not presented for revie-w by his motion for a new trial.</p> <p>2. Appeal and Error — Verdict—Evidence.</p> <p>Where a verdict is rendered upon conflicting evidence and there is evidence reasonably tending to support the verdict, this court will not disturb the verdict on appeal.</p>

Error from District Court, Sequoyah County ; John H. Pitchford, Judge. Action by Warren Mooney against Pearl Sells, nee Hayes, and others, for possession of land, to quiet title, and for rents. Judgment for plaintiff on demurrer to defendants’ answer and cross-petition, and defendants bring error.

<p>Error from District Court, Sequoyah County ; John H. Pitchford, Judge.</p> <p>Action by Warren Mooney against Pearl Sells, nee Hayes, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus by the Court.)</p> <p>Indians — Alienation of Land — Champerty—■ Rule of Property.</p> <p>Same as in cause No. 9600, Pearl Sells, nee Hayes, v. Warren Mooney, this day decided, ante, p. 34.</p>

Complaint before the Corporation Commission by the Phoenix Refining Company against the Pierce Oil Corporation and Clay Arthur Pierce. From order of Commission requiring defendants to give complainant service in its oil pipe line and revoking former order exempting defendants from obligations of a common carrier, defendants appeal.

<p>(Syllabus by the Court.)</p> <p>1. Torts — Joint Tortfeasors — Necessary Parties Defendant.</p> <p>Where several persons unite in an act which constitutes a wrong to another, the law permits all the wrongdoers to be proceeded against jointly, also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy regardless of the participation of the others. The rules regarding remedies which are applied to breaches of contract are obviously inapplicable, but the rule is that the party injured may bring separate suits against the wrongdoers and proceed to judgment in each, and no bar arises as to any of them until satisfaction is received.</p> <p>2. Municipal Corporations — Safety of Streets — Municipal Responsibility.</p> <p>A municipal corporation is charged with the duty of maintaining its streets in a reasonably safe condition for travel, and the duty rests primarily, as respects the public, upon the corporation; and the obligation to discharge this duty cannot be evaded, suspended, or cast upon others by any act of its own.</p> <p>3. Municipal Corporations — Defective Streets — Action for Injuries — Effect of Former Action Against Street Railway, a Joint Tortfeasor.</p> <p>In a legal action founded upon tort, against a municipal corporation, based upon the neglect by the defendant of the duty imposed by law to keep its streets in a reasonably safe condition for the protection of the traveling public, where the testimony showed that such neglect of the defendant was equally chargeable to a street railway company, and that the plaintiff had brought an action against said company for damages therefor, and the cause had been tried and resulted in a verdict in favor of the defendant, from which the plaintiff had appealed, and the appeal was then pending, and the defendant in the instant case pleaded the verdict and judgment in the trial court as a bar, held (a) the doctrine of election of remedies did not apply; and (b) that the judgment in the former action was not final as to such action, the doctrine of lis pendens applying.</p> <p>3a. Same — City Charter Requiring Written Notice of Injury — Failure to Give Notice —Excuse.</p> <p>While a provision of a city charter providing that, before the city shall be liable for damages, the person injured or some one in his behalf shall give the mayor or city auditor notice in writing of such injury within 30 days after' the same has been received, stating where and how the injury 'occurred and the extent thereof, may be valid, the failure to give such notice may be excused on account of the incompetency of the injured party by reason of infancy or effect of such injuries, rendering him mentally and physically incompetent to give such notice.</p> <p>3b. Same — Notice of Defective Streets— Charter Provisions — Validity.</p> <p>Where a city charter provides that the city shall not be liable for damages for injuries to person or property arising from or occasioned by any defect in any public street, highway, or grounds, or any public work of the city unless the specified defect causing the damage or injury shall have been actually known to the mayor or city engineer by personal inspection for a period of at least 24 hours prior to the occurrence of the injury or damage, unless the attention of the mayor or city engineer shall have been called ther.eto by notice thereof, in writing at least 24 hours prior to the occurrence of the injury or damage, and proper diligence .lias not been used to rectify the defect after actually known or called to the attention of the mayor or city engineer as aforesaid, held, (a) such provision so far departs from reasonableness as to amount to a denial of justice, and is therefore void, and may not be enforced by the courts of this state, and, (b) that a city is chargeable with notice of a dangerous defect in its streets, although actual notice may not have been brought home to it, and (c) if the evidence shows that such a state has continued for a sufficient length of time so that the city, by exercising ordinary care, might have learned of its condition. and not to know such fact would be negligence on the part of the city, and a charge to the jury to that effect was properly given.</p> <p>4. Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>In a civil action triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudicial errors of law are shown in the instructions of the court, or its rulings on law questions presented during the trial, the verdict and the finding of the jury will not be disturbed on appeal.</p> <p>5. Trial — Demurrer to Evidence — Directing Verdict.</p> <p>The defendant’s demurrer to the evidence or motion for an instructed verdict at the close of the evidence, is overruled where there is any competent evidence before the jury reasonably tending to support the verdict.</p> <p>6. Appeal and Error — Review—Excessive Verdict — Personal Injuries.</p> <p>In an action for personal injury a verdict will not be set aside for excessive damages, unless it clearly appears that the jury committed some gross and palpable error, or acted under some improper bias, influence, or prejudice, or have totally mistaken the rules of l'aw by which damages are regulated.</p>

Error from District Court, Seminole County; J. W. Bolen, Judge. In the matter of the guardianship of Herbert Thompson, a minor, Thomas S. McGeis-ey, guardian. ETom action of district court affirming action of county court in distribution of proceeds of guardian’s sale of land, appeal is prosecuted by Lafayette Walker, United States Probate Attorney, for the minor, making tire guardian and O. S. Walker, Prank H. Reed, and Harry Rogers defendants in error.

Error from District Court, Tul-sa County; Owen Owen, Judge. In the matter of the guardianship of the estate of Robert Pitman, Jr. From order of county court settling account of former guardian, D. A. McDougal, B. Kersey and another, guardians, appealed to the district court. Upon motion of McDougal the appeal was dismissed, and Kersey brings error.

Error from District Court, Pawnee County; Redmond S. Cole, Judge. Action by S. G. Jackson, M. J. Hyland and B. F. Foerster against A. J. Moore, Maggie Moore, Carl D. Smith, and the Twin State Oil Company to cancel oil lease and for other relief. Judgment for defendants on demurrers to petition, and plaintiffs bring error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Ananias McIntosh, alias Ananias Drew, a minor, by his guardian, W. S. Wright, against W. Bf. Holtgrave, Kay S. Al-wood, C. C. Taylor, Ben Cash, and Harry IT. Barker to set aside guardianship proceedings and guardian’s deed and to recover land. From judgment against plaintiff on demurrer to petition, he brings error.

<p>Error from District Court, Grant County; W. M. Bowles, Judge.</p> <p>Action by M. G. Lamb against E. G. Palmer, County Treasurer of Grant County, to enjoin collection of certain school taxes. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action by Efiie McMillan and minor children against Alexander New and another, receivers of the Missouri, Oklahoma & Gulf Railway Company, for damages for wrongful death of Ben McMillan. Judgment for plaintiffs, and defendants bring error.</p>

<p>(Syllabus by Galbraith, G.)</p> <p>1. Insurance — Waiver of Forfeiture Provisions — Payment of Premiums.</p> <p>The first, second, and third paragraphs of the syllabus in Pacific Mutual Life Insurance Company v. McDowell, 42 Okla. 300, 141 Pac. 273. D. R. A. 191SE, 391, are approved and adopted herein.</p> <p>2. Insurance — Recorder of Beneficiary Association Agency in Collecting Dues and Assessments.</p> <p>Under the facts set out in the opinion it is held that the recorder of the local branch of' the mutual benefit, society, in collecting the monthly dues and assessments from the members, acted as the agent of the general society, and not of the individual members, the provisions of the by-laws to the contrary notwithstanding.</p> <p>3. Appeal and Error — Findings—Concluisiveness — Insurance.</p> <p>Where the by-laws of a fraternal society provide that no benefit shall be paid on account of the death of a member whose death occurs while such member is to any extent “under the influence of intoxicating liquors,” and an action on a certificate is defended on the ground that the member died while under the influence of intoxicating liquor, the question whether the member was under the influence of liquor “to any extent” within the terms of the contract, in a cause tried to the court, was one of fact, to be determined by the court, and its finding, being supported by the evidence, is binding upon appeal to this court.</p> <p>On Rehearing.</p> <p>(Syllabus by the Court.)</p> <p>4‘. Insurance — Reinstatement in Fraternal Benefit Society After Suspension — Rights of Beneficiary.</p> <p>A policy issued by a fraternal life insurance company provided that a life benefit member, suspended for the nonpayment ■of a monthly rate, etc., may be reinstated within a certain time by complying with the by-laws of the company. Held, that the right to reinstatement does not die with the insured, hut passes to the beneficiary under the policy, and may be exercised at any time during the period of extension.</p>

<p>Error from District Court, Tulsa County; N. E. McNeill, Judge.</p> <p>Action by the Gilchrist Drilling Company against the Tulsa Fuel & Manufacturing Company on drilling contract. Judgment for plaintiff,. and defendant brings error.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by G. B. Stone against W. S. Spencer for dissolution of partnership and accounting. Judgment for defendant, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>Constitutional Law — Amendment of Federal Constitution — Ratification by States — State Referendum.</p> <p>Referendum provisions of state Constitutions and statutes cannot be applied in the ratification or rejection of amendments to the federal Constitution without violating the requirement of article 5 of such Constitution, that such ratification shall be by the Legislatures of the several states, or by conventions therein, as Congress shall decide.</p>

<p>(Syllabus by the Court.)</p> <p>1.Principal and Agent — Contracts—Liability of Undisclosed Principal.</p> <p>For most purposes the contract of an agent, who deals in his own name without disclosing that of his principal, is the contract of the principal, and when discovered the principal may be held liable, as a general rule, unless it clearly appears that the contracting party intended to give exclusive credit to the agent.</p> <p>2. Same — Implied. Agency — Proof. .</p> <p>An implied agency may be established from words or conduct of the parties and circumstances of the particular case, and, while it is more readily inferable from a series of transactions, it may be implied from a single transaction.</p> <p>3. Same — Question for Jury.</p> <p>In law actions in this jurisdiction the question of agency, when resting in parol, is a question of fact to be determined by the jury.</p> <p>4. Husband and Wife — Presumption of Agency.</p> <p>The relationship of husband and wife will not, unaccompanied by other circumstances, authorize the conclusion that the husband is the agent of his wife, but such fact may be taken into consideration, and is usually entitled to considerable weight when taken in connection with other circumstances as tending to establish the facts of agency.</p> <p>5. Appeal and Error — Verdict—Sufficiency of Evidence.</p> <p>In an action at law the verdict of the jury will not be set aside on the ground of insufficiency of evidence where there is any evidence' reasonably tending to support it.</p> <p>6. Appeal and Error — Harmless Error — Admission of Evidence.</p> <p>This court is not authorized to reverse a case on the erroneous admission of evidence ■unless, after an examination of the entire record, it appears to the court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.</p>

Error from District Court, Alfalfa County; James B. Cullison, Judge. Action by Charles Ring against B. W. Tel-ford, Mrs. B. W. Telford, John H. McGee, and Elbert S. McGee for specific performance of a contract of sale of land. Judgment for plaintiff, and defendants bring error.

Error from District Court, Seminole County ; J. W. Bolen, Judge. Action for possession of real estate by Sam Norton against Peggie Shanks and another. Judgment for plaintiff, and defendants bring error.

<p>Error from Superior Court, Muskogee County; Cuy P. Nelson, Judge.</p> <p>Injunction by J. L. Brandt and others against the Texas Company. Judgment for plaintiffs, and defendant appeals.</p>

Error from District Court, Rogers County; W. J. Campbell, Judge. Action by Clayton A. Schanbacher against Johnathan R. Payne and wife for breach of warranty in sale of land. Judgment for de fendants, and plaintiff brings error.

Error from Superior Court, Okmulgee County; R. E. Simpson, Judge. Action by G. F. Haun against Wright Thornburgh for real estate broker’s commission. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; James I. Phelps, Judge. Action by the city of Oklahoma City and others, composing the board of commissioners of said city, against Tom Bodine, county clerk, and others, composing the excise board of Oklahoma county. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Workmen’s Compensation-State Industrial Commission —Continuing' Jurisdiction..</p> <p>The power and jurisdiction of the State Industrial Commission under the Workmen’s Compensation Law (chapter 246, Sess. Laws 1915) ■ over each case submitted to it are continuing, and the commission may, from time to time, make such modification or change of its former findings or orders relating thereto as, in its opinion, may be just, and under section 12, art. 2, of said act the commission may at any time, upon its own motion or upon the application of any party in interest, on the ground of a change in conditions, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the act.</p> <p>2. Appeal and Error — Scope of Review— Decisions of Industrial Commission.</p> <p>The decision of the commission is final as to all questions of fact, and this court is not authorized to weigh the evidence upon which any finding of fact is based.</p> <p>3. Master and Servant — Workmen’s Compensation — Loss of Arm.</p> <p>Where an injury inflicted upon an employe caused the loss of the use of the entire arm, it is equivalent to the loss of the arm, and the claimant is entitled to the compensation provided' by the act for the. loss of an arm, although the amputation of the arm was between the elbow and the wrist.</p> <p>4. Same — Claim for Injuries — Time for Application.</p> <p>Where an employe files an application for compensation, on account of an injury to his hand, withm a year after receiving said injury, as provided by section 17, art. 2, of the Workmen’s Compensation Act, but at the time of making such application the extent of the injury was not appreciated and it did not then appear that claimant would lose'the use of h’s arm as a result thereof, under the. continuing power and jurisdiction of the commission, as conferred by section 12, art. 2, and section 14, art. 4, his application for an increase of the award on account of loss of the use of his arm growing out of the injury on which his first claim was based was not barred, although not filed within a year after receiving the injury.</p>

<p>(Syllabus by the Court.)</p>

Action by H. T. Lowe and A. O. Dickens against Consolidated School District No. 97 of Blaine County and the members of the board of directors thereof to restrain the issuance of bonds. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Pawnee County; Conn Linn, Judge. Henry C. D. Poos sued on a promissory note executed to him by Ed M. Kelly. Defendant filed a cross-petition alleging indebtedness of plaintiff to him. The jury returned a verdict for defendant in the sum of .$272.50, from which judgment the plaintiff appeals to this court.

Order of Corporation Commission requiring the Southwestern Bell Telephone Company to complete connections for certain calls for the Tecumseh Telephone Company and the Asher Telephone Company, from which order the company first named appeals.

<p>Error from District Court, Oklahoma County; Hal Johnson, Assigned Judge.</p> <p>Action by Joe S. Greco against the Kool Kola Company. Judgment for defendant, and ifiaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Equity — Right to Relief — Remedy at Law.</p> <p>Relief will not be granted by a court of equity where, at the time, there is a plain, specific, and adequate remedy at law.</p> <p>2. Taxation — Assessment anti Equalization*— Appeal — Equity.</p> <p>Whenever the statutes of the state provide a mode by which appeals may he taken from the assessment or equalization of property, that remedy is exclusive. Resort cannot, be had to equitable remedies.</p> <p>3.Same — Appeal from Assessments — Tax Ferret Law.</p> <p>Article 9, c. 81, Sess. Laws 1907-08, providing for the listing and assessing of omitted property, known as the Tax Ferret Law, provides a remedy by appeal to the county court from the final action of the county treasurer upon any assessments of omitted property made thereunder to the party aggrieved, and where the aggrieved party neglects or refuses to avail himself of the remedy provided by statute for the correction of error of which he complains, the court is without jurisdiction to exercise its equitable powers by restraining the collection of taxes due under such assessment.</p>

Disbarment proceedings by the State, on the relation of Frank Dale and others, commissioners, against Vilas V. Vernor and Ed. K. Brook; Phil D. Brewer, referee. Report of referee confirmed and respondents suspended from practicing for six months.

<p>(Syllabus by the Court.)</p> <p>Process — Requisites of Summonls — Nonresident Defendant.</p> <p>The requirement of section 4727 of the Revised Laws of 1910 that a summons for a nonresident defendant be addressed to him is not satisfied by it being addressed to the sheriff of the county in which he resides and there served on him. ,</p>

Error from District Court, Muskogee County; B. B. Wheeler, Judge. Action by James J. Claxton against Eastman Richards for damages. Judgment for plaintiff for less than sued for, and from an order granting him a new trial, defendant brings error.

<p>Error from Superior Court, Okfuskee County; John L. Norman, Judge.</p> <p>Action by P. H. Veasey against W. T. Ham and others, to cancel lease and for other relief. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Custer County; T. r. Clay, Judge. Action by the Oil Well Supply Company against John E. Miller and others on contract of guaranty. Judgment for plaintiff, and defendant named brings error.

Error from District Court, Washington County; Preston A. Shinn, Judge. Application by W. O. Greening against the Maire Brothers Company, a corporation, for appointment of receiver. Application denied, and plaintiff brings error.

Error from District Court, Okmulgee County; Chas. G. Watts, Assigned Judge. Action 'by George W. Thornton against W. R. McKee to quiet title to a certain tract of land in Okmulgee county. From a judgment for plaintiff, defendant .appeals.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Questions of Fact— Equity Case.</p> <p>In an-equity proceeding the judgment and findings of the trial court will not be disturbed unless clearly against the weight of the evidence.</p> <p>2. Oil and Gas — Action to Cancel Lease— Judgment — Evidence.</p> <p>Record examined, and held that the judgment is sufficiently supported by the evidence.</p>

Error from District Court, Canadian County; James I. Phelps, Judge. Action by Lueile Taylor against the Chicago, Rock Island &’ Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, McClain County; F. B. Swank, Judge.</p> <p>Quo warranto by the state on the relation of W. H. Woods, county attorney of McClain county, against J. A. Ratliff and others, officers of Consolidated School District of Cole, to declare the organization of said district illegal. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Washington County; R. B. Boone, Judge. Action by Mose Glory, a minor, by his next friend, C. F. Bliss, against Oliver Bagby and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Cherokee County ; John H. Pitchford, Judge. Action by the National Surety Company against the Board of Commissioners of Cherokee County to recover premium on surety bond. Judgment for defendant, and plaintiff brings error.

Error from District Court, Pawnee County; Copn Linn, Judge. Action by T. E. Mann against the St. Louis & San Francisco Railroad Company and others, its receivers, for usable value of real estate. Judgment for plaintiff, and defendants bring error.

Error from District Court, Carter County; T. B. Orr, Special Judge. Action by Mary P. Hall and another against Ola Holloway and another. Judgment for plaintiffs, and from the refusal of the court to vacate a certain judgment arid orders in foreclosure proceedings, defendants bring error.

Error from District Court, Stephens County; Cham Jones, Judge. Action of attachment by R. A. Howard and J. C. Holden before a justice of the peace against H. B. Salmon to recover landlord’s portion ,of the crops as rent. J. R. Manning, defendant in error, intervened, claiming the rents under prior lease. The judgment of the trial court awarded Manning two-thirds of the rent and plaintiffs in error one-third.

Error from District Court, Blaine County; ..Tliomas A. Edwards, Judge. ‘-■Action by Estella S. 'Starkweather against Ered Brown, Mary Brown, C. W. Cressler, and others to recover on promissory note and foreclose real estate mortgage. Judgment for plaintiff, and cross-defendant Cressler, a junior mortgagee, filed a plea of res judi-cata, to which cross-defendants Brown filed .demurrer.

Error irom District Court, Beaver County Thomas A. Edwards, Assigned Judge. ■Action by Ferdinand P. Kline and Ellen ,M. Kline against Frederick Kollmari to bave a deed decreed a mortgage. Judgment sustaining. defendant’s demurrer to plaintiffs’ evidence, and plaintiffs ¡bring error.

Error from District Court, Pawnee County; Conn Linn, Judge. Action by E. M. Clark against John C. Duncanson to quiet title. Judgment for defendant, and plaintiff brings error.

Error from County Court, Okfuskee County ; Ben C. Ballard, Special Judge. Action by Board of County Commissioners of Okfusgee County to recover from Ex-County Attorney Tom Hazelwood and his bondsmen. $215.05, alleged illegal compensation. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Contracts — Acceptance—Counterproposals.</p> <p>Where a person offers to do a definite thing and the party to whom the offer is made accepts conditionally, or introduces a new and .material term into the acceptance, his answer constitutes a counterproposal and there is no agreement; but when the party to whom the counterproposal is made accepts it, such counterproposal and acceptance constitute a binding contract.</p> <p>2. Evidence — Parol Evidence Affecting Writings — Construction of Contract — Question for Jury.</p> <p>Where a contract, evidenced by a telegram, is ambiguous and its meaning is disputed, evidence of extrinsic facts and circumstances throwing light upon the intention of the parties is admissible, and the construction of the contract becomes a mixed question of law and fact and is determinable by a jury under proper instructions of the court.</p> <p>3. Same — Sale of Mill Products — Construction of Telegram — Opinion Evidence.</p> <p>Where a telegram from a milling company, engaged in the sale of flour and feed, does not contain any technical or code language, it is not error for the trial court to refuse to permit witnesses, other than the parties to the action, engaged in the same lino of .business as defendant to testify as to the meaning of the words employed. In such circumstances, under section 959, Rev. Laws 1910, the essential question, is not in wl^at sense mill men would construe the telegram, but in what sense the promisor believed at the time of making the promise that the promisee understood it.</p> <p>4. Pleading — Trial Amendments.</p> <p>Tinder section 4790, Rev. Laws 1910, the trial court may, before or after judgment, amend any pleading, process, or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleadings or proceedings io the facts proved, when such amendment does not change substantially the claim or defense.</p> <p>5. Same — Petition—Breach of Contract— Agency.</p> <p>Where plaintiffs alleged in their petition that a certain brokerage company was the agent of the plaintiffs, but during the trial first ascertained that said brokerage company was the agent of the defendant, and then asked and were given leave to introduce testimony to that effect, and the court properly instructed the jury on the question of such agency, it was not error for the court, after the verdict was returned, but before judgment, to permit the plaintiffs to amend their petition to conform to the proof by alleging, said brokerage company was the defendant’s agent, since such amendment did not change substantially plaintiffs’ claim or demand; their cause of action, as alleged in their original petition, being for damages for alleged breach of contract and such claim or demand being exactly the same after the amendment.</p> <p>6. Sales — Breach of Contract — Measure of Damages.</p> <p>The proper measure of damages for the breach of a contract for the sale of personal property is the difference between the contract price and the market price at the time delivery should have been made under the contract.</p> <p>7. Sales — Delivery—Time.</p> <p>Where a contract does not specify the time of delivery, it must be made within a reasonable time.</p> <p>8. Frauds, Statute of — Sale of Personalty Evidenced by Telegram.</p> <p>A contract for the sale of personal property exceeding $50 in value is not prohibited by the statute of frauds where the same is evidenced by a telegram signed by the party to be charged.</p>

<p>Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.</p> <p>In the matter of the probate of the will of Frances Swartz, deceased; Marguerite Gleason and W. E. Peak, proponents, and M. W. (Wesley) Jones, contestant. Judgment for contestant, and proponents bring error.</p>

Complaint by the city of Sapulpa and others against the Oklahoma Natural Gas Company before the State Corporation Commission. Judgment for the gas company, and complainants appeal.

Error fronj District Court, Seminole County; J. W. Bolen, Judge. Action by Fred Lasiter, administrator of the estate of Cotcha Holatka, deceased, against Walter Ferguson to recover land and quiet title. Judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Garfield County ; J. C. Robberts, Judge.</p> <p>Action by Joe Larkey against Charles Church for personal injuries. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Parties — “Defect of Parties.”</p> <p>A “defect of parties” means too few, and not too many parties.</p> <p>2. Same — Manner of Objections — Waiver.</p> <p>A defect of parties plaintiff appearing upon the face of the petition must be taken advantage of by demurrer to the petition. Ordinarily, when the defect of parties does not appear upon the face of the petition, the objection must be taken by answer, but where the defect of parties does not appear upon the face of the petition and is not known to the defendant at the time the pleadings are made up, but is first discovered at the trial, upon discovery of such de-J feet the matter should then be cálled to the attention of the trial court by proper objection. If no specific objection is made to the defect of parties plaintiff in the trial court, it will be considered waived, and cannot be raised for the first time on appeal.</p> <p>3. Appeal and Error — Verdict—Sufficiency of Evidence.</p> <p>The verdict of the jury will not be reversed where there is any evidence in the record reasonably tending to support it.</p> <p>4. Trial — Demurrer to Evidence — Effeet.</p> <p>The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn therefrom, are admitted, and the court cannot weigh conflicting evidence, but must treat as withdrawn the evidence which is most favorable to the demurrant.</p> <p>5. Torts — Malicious Interference With Contract.</p> <p>It is an actionable tort for one to maliciously interfere with a contract between two parties and induce one of them to break the contract, to the injury of the other.</p> <p>6.Same — “Malfee.”</p> <p>“Malice,” in the sense used herein, means a wrongful act done intentionally, without just cause or excuse.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Time for Petition in Error — Dismissal.</p> <p>Where petition in error is not filed in this court until after the expiration of six months from date of final judgment of the trial court, this court has no jurisdiction over the subject-matter, and the appeal will be dismissed.</p>

Error from District Court, Tulsa County: Owen Owen, Judge. Action by W. T. Brady against C. H. Hubbard and others, mayor and commissioners of the city of Tulsa, to enjoin issuance of municipal bonds. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Necessity for Authenticated Record — Dismissal.</p> <p>Where no authenticated case-made is attached to petition in error, so as to authorize this court to examine and pass upon the record of proceedings in the trial court, and no properly certified transcript of record is attached, so as to authorize this court to pass upon the issues of law presented, the appeal will be dismissed.</p>

<p>Petition of L. K. Pounders for the disbarment of J. Randell Connell. Respondent reprimanded by the court.</p>

<p>Error from District Court, Haskell County; E. F. Lester, Judge.</p> <p>Action between E. R. Walker and others and.Isaac M. King and others. From the judgment, the former bring error.</p>

<p>Error from District Court, Okfuskee County ; Lucien B. Wright, Judge.</p> <p>Action between Tom Hazelwood and others and John M. Robe. From the judgment, the former bring error.</p>

<p>(■Syllabus by the Court.)</p> <p>Appeal and Error — Parties—Right to Appeal —Record.</p> <p>The common law limited the right to sue out a writ of error, or to appeal, to those who were parties or privies to the action in which the judgment or decree complained of was rendered, and this rule has been incorporated in most of the statutes regulating the subject, these statutes giving the right of review to any “party” aggrieved; under such limitation third persons, no matter how much they may be prejudiced by the judgment, decree, or order, cannot obtain its review by appeal or writ of error. The record! on appeal should, accordingly show that the appellant or plaintiff in error was a party or privy.</p>

Error from County Court, Lincoln County; Ira E. Billingslea, Judge. Action by Sam Brown against J. W. Cherry. Judgment for plaintiff, and from the refusal of a new trial on the ground of impossibility of making case-made, defendant brings error.

<p>Error from District Court, Wagoner County; Chas G. Watts, Judge.</p> <p>Proceedings by B. V. Leonard and others for a resurveying of land boundaries. From report of surveyor, C. H. Overton and another, interested property owners, appealed to the district court, where report of surveyor was affirmed, and they bring error.</p>

Error from District Court, Garfield County ; J. C. Robberts, Judge. Action by Maggie Cook against J. H. Cook for divorce and alimony. Judgment for plaintiff, and defendant brings error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action toy Lillie Wray against O. R. Howard, J. A. Bearman, P. B. Righter, and W. H. Forbes to cancel deeds, mortgage, etc. Judgment for defendants, and. plaintiff brings error.

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by the Thorp Oil & Specialty Company against the Home Oil Refining Company for damages for breach of contract of sale. Judgment for- defendant, and plaintiff brings error.</p>

<p>Appeal from order of the State Industrial Commission, awarding workmen’s compensation to Robert Moncrieff, by A. E. Stephenson, the respondent, and the Maryland Casualty Company, insurance carrier.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by George. Lucas and another against Elmer T. Wagner and another to cancel.oil lease. Judgment by default for plaintiffs. Petition by defendants to vacate judgment denied and they -bring error.

Error 'from District Court, Kingfisher County; James B. Cullison, Judge. Action by S. W. Hogan against Ervin M. Mires and others to recover on promissory-note and to foreclose mortgage. Judgment on the pleadings for plaintiff, and th.e defendant named brings error.

<p>(Syllabus by the Court.)</p> <p>Tenancy in Common — Rights Inter Sese— liability of Tenant in Possession for Rents.</p> <p>A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her coten-ants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements.</p>

Error from District Court, Carter County; Thos. W. Champion, Judge. Action for possession of land and to quiet title by Ida M. Rockett and. others against W. L, Smith. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Choctaw County ; A. A. McDonald, Judge. Petition by Tom Hunter for the probate of a certain instrument in writing as the last will and testament of Willie Fisher. Contest was filed by Osborne Battiest and others. Probate was denied, and proponent brings error.

<p>(Syllabus by the Court.)</p> <p>1. O.il and Gas — Rights of Lessee — Possession of Premises.</p> <p>By virtue of the terms of the usual and ordinary oil and gas mining lease, the lessee is entitled to the possession of such portions of the surface of the land covered by the lease as may be reasonably necessary, for the development and exploration of the" leased premises under the terms of the lease.</p> <p>2. Same — Right to Remove Property and Improvements.</p> <p>Where, under the terms of an oil and gas miping lease, the right is reserved by the lessee to cease operations when it is found that oil or gas cannot be produced in paying quantities thereon, and the further right is reserved by the lessee to remove, at any time, the property and improvements placed or erected in or upon the leased premises, the latter has the same right to go upon the leased premises for the purpose of removing this property which 'he had in the first instance in going upon the property for the purpose of developing the same under the lease, provided he acts within a reasonable time.</p>

<p>(Syllabus by the Court.)</p> <p>1. Landlord and Tenant — Action Against Tenant for Holding Over — Measure of Damages.</p> <p>Under sections 2880, 2881, Rev. Laws 1910, a landlord may maintain an action against a tenant for willfully holding over real property after the end of his term and after notice to quit has been duly given and demand of possession made, and the measure of damages is double the yearly vame of the property for the time of withholding, in addition to compensation for the detriment occasioned thereby, and this is true, regardless of the length of the term for which the premises were let.</p> <p>2. Appeal and Error — Necessity for Excep-ti ons — Instructions.</p> <p>Where no exceptions are taken to the giving or refusing of instructions at the trial, the parties are concluded by their failure to take exceptions, and the appellate court cannot examine them.</p> <p>3. Statutes — Construction.</p> <p>Section 4642, Rev. Laws 1910, provides: “The common law, as modified by constitutional and statutory law, judicial decisions and the condition and wants of the people, shall remain in force in aid of the general statutes of Oklahoma; but the rule of the common law, that statutes in derogation thereof, shall be strictly construed, shall not be applicable to any general statute of Oklahoma ; but all such statutes shall be liberally construed to promote their object.”</p> <p>4. Appeal and Error — Review—Verdict— Sufficiency of Evidence.</p> <p>In a civil action, triable to the jury, where there is competent evidence reasonably tending to support the verdict of the jury, and no prejudical errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the jury will not be disturbed on appeal.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Failure to File Briefs— Dismissal.</p> <p>Where cause was submitted in regular order, and plaintiff in error was given extended time in which to file briefs, and no briefs were filed, and no further extension of time reouested, cause will be dismissed for want of prosecution.</p>

Error from District Court, Tillman County; Prank Mathews, Judge. Action by Chas. Zolinger against Mrs. Hala Potts, executrix of the last will and testament of J. M. Potts, deceased, for damages for personal injuries inflicted upon plaintiff by decedent. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Delaware County ; John H. Pitchford, Judge.</p> <p>Action by the Southwest National Bank of Commerce, of Kansas City, against J. H. Todd and others on promissory notes. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from. Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by Isaac & Marx, partners, against the Missouri, Kansas & Texas Railway Company for damages to live stock shipment. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Action by the State against J. M. Miller on an appearance bond. Judgment for plaintiff on the pleadings, and defendant brings error.

<p>Error from District Court, Jackson County; Frank Mathews, Judge.</p> <p>Action by A. R. Singer against the Citizens’ Bank of Headrick for recovery of money. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Woodward County; J. C. Robberts, Judge.</p> <p>Action by the Aetna Building & Loan Asr sociation against H. A. Brockhaus. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Muskogee County; R. P. deGraffenreid, Judge. Action by Cora Tyesky Cooper against the Muskogee Electric Traction Company for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Hughes County ; John L. Coffman, Judge. Action by Lowesa Hawkins against Walter Ferguson to recover dower interest in land, judgment for defendant, and plaintiff brings error.

Error from District Court, Custer County; Thos. A. Edwards, Judge. Action by the Rutland Savings Bank against Charles Harper and another on promissory notes. Judgment for plaintiff. Petition by defendants for vacation of judgment for fraud. Demurrer to defendants’ evidence sustained, and they bring error.

<p>(Syllabus by the Court.)</p> <p>1. Deeds — Wills — Estate Conveyed — Presumptions.</p> <p>Every estate in land which shall» be granted, conveyed, or demised by deed or will, shall be deemed an estate in fee simple and of inheritance, unless limited by express words. (Section 1214, Comp. Laws. 1909; section 1175, Rev. Laws 1910.)</p> <p>2. Estoppel — Estoppel by Deed — Fee-Simple . Title.</p> <p>The grantor of an estate in fee simple may thereafter be estopped from denying that he conveyed such an estate, and this on the principle that when a man has by his deed averred or affirmed or covenanted, or by his act admitted that a fact is true, he shall not afterward be permitted to deny or contradict or disprove it.</p> <p>3. Appeal and Error — Equity Case — Findings — Evidence.</p> <p>In an equitable action, the presumption is in favor of the finding of the trial court, and it will not be set aside unless clearly against the weight of the "evidence. Where the finding of tile trial court is general, such finding is a finding of each special thing necessary to sustain the general finding.</p> <p>4. Estoppel — Estoppel by Deed — After-Acquired Title.</p> <p>Whatever may be the form or nature of the conveyance used to pass real property, if the grantor sets forth on the face of the instrument, by way of recital or averment, that he is seised or possessed of a particular estate in the premises, and which estate the deed purports to convey; or, what is the same thing, if the seisin or possession of a particular estate is affirmed in the deed, either in express terms or by necessary implication, the grantor and all persons in privity with him shall be estopped from ever afterwards denying that he was so seised and possessed at the time he made the conveyance. The estoppel works upon the estate and binds an after-acquired title as between parties and privies.</p> <p>5. Same.</p> <p>Where the deed recites or affirms, expressly or impliedly, that the grantor is seised of a particular estate which the deed purports to convey, and upon the faith of which the bargain was made, he will be thereafter estopped to deny that such an estate was passed to his vendee, although the deed contains no covenant of warranty at all. And the rule accords with .common honesty and fair dealing.</p> <p>6. Attorney and Client — Validity of Contingent Fees — Conveyance of Land— Trusts.</p> <p>The right to hold the attorney as trustee does not extend to one purchasing from the client under the facts in this case.</p>

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Workmen’s Compensation Act — Aggravation of Injury by Unskillful Treatment — Effect on Award.</p> <p>Under the Workmen’s Compensation Act it is incumbent upon the employer to promptly provide medical and surgical aid, and a schedule of compensation is adopted providing specific amounts of recovery for specific results of accidents. In an action before the Industrial Commission for compensation under said act it was conclusively found by the commission that the workman’s injuries had been aggravated and his disability increased by improper treatment of the physician so provided without fault of the workman himself. Held, the employer is liable for all legitimate consequences following the accident, including unskillfulness or error of judgment of the physician furnished as required, and the employe is entitled to recover under the schedule of compensation for the extent of his disability based upon the ultimate result of the accident regardless of the fact that the same has been aggravated and increased by the intervening negligence. or carelessness of the employer’s selected physician.</p> <p>2. Evidence — Judicial Notice — Train Schedules.</p> <p>The schedule time of the arrival and departure of trains at a particular place is so variable that courts will not take judicial notice thereof.</p>

<p>(Syllabus by the Court.)</p> <p>1. Officers — -Powers—Discretion—Mandatory Duties.</p> <p>Where power is granted in permissive language to public officers for the benefit of the public or of individuals, it is generally held that the intent of the Legislature, which is the true test, was not to devolve a mere discretion, but to impose a positive and absolute duty.</p> <p>2. Bail — Conditions of Bond — Performance.</p> <p>Where the principal on a criminal appearance bond requiring the defendant to appear before the district court on the first day of the next term and there remain from day to day and term to term until discharged by due course of law, appears for trial and is found guilty of'the charge preferred against him, he does not, by virtue of section 5931, Rev. Laws 1910, immediately pass into the .custody of the law and thereby discharge the sureties on his bond, unless he is committed into the custody-of the proper officer to await the judgment of the court.</p> <p>3. Same — Forfeiture of Bond — Conclusiveness as to Breach.</p> <p>Where the court forfeiting an appearance bond has jurisdiction to declare a forfeiture, such forfeiture is conclusive evidence of its breach and cannot be impeached by extrinsic evidence.</p> <p>4. Same — Action on Bond — Defenses.</p> <p>Record examined, and held, that the - remaining propositions presented for review were not available to defendant in an action on the bond under the rule announced by this court in Andrews et al. v. State, and other cases cited in the opinion.</p>

<p>(Syllabus toy the Court.)</p> <p>1. Appeal and Error — Time for Appeal — Extension — Effect of Motion for New Trial.</p> <p>Where a motion for a new trial is unnecessary to present to this court for review an order or judgment appealed from, such motion and decision thereon by the trial court are ineffectual to extend the time within which to effect an appeal.</p> <p>2. Same — Failure to File Petition in Error in Time — Dismissal.</p> <p>Where a petition in error is not filed in the -Supreme Court within the time allowed by law, the filing thereof confers no jurisdiction on the Supreme Court ánd same will ’be dismissed.</p>

Error from County Court, Murray County; J. H. Casteel, Judge. Action by the State for forfeiture of automobile alleged to have been used in transportation of liquors, W. E. Brasheers intervening. A judgment of forfeiture was rendered, and intervener brings error.

Error from County Court, Tulsa County; W. B. Williams, Judge. . Proceeding by the state to forfeit an automobile used in transporting intoxicating liquors, the Sturm Motor Co. intervening. A judgment of forfeiture was rendered, and in-tervener brings error.

Error from County Court, Johnson County; C. W. Crowell, Judge. Proceeding by the State against Fleming Automobile Co., G. B. Church, and one Chevrolet car. A judgment of forfeiture was rendered, and defendants-bring error.

Disbarment proceedings by the State, on the relation of Frank Dale and others, commissioners, against O. Benjamin Jefferson; Phil. D. Brewer, referee. Report of referee confirmed and respondent suspended from practice for six months.

Error from District Court, Nowata County ; -W. J. Campbell, Judge. In the matter of the guardianship of Beulah M. Martin, nee Smith, a minor. From approval of final report of guardian, B. G. Dowell, error was brought by one of the heirs, Louis James Martin, who later died.

<p>Error from District Court, Payne County; John P. Hickam, Judge.</p> <p>Action by F. L. Stevens against Josephine Pierce on promissory note. Judgment for defendant and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Trusts — Action to Declare Resulting Trust — Issues and Proof — Judgment— Cancellation for Fraud.</p> <p>In a suit to declare a resulting trust the plaintiff must prove, not that the judgment attacked was erroneous, but that it is a result of mistake or fraud, and it is also well settled that the fraud which would'justify the cancellation in an equity suit of the judgment or order of the probate court must be extraneous to the issues and such as to have prevented the complainant from having a fair hearing.</p> <p>2. Same — Demurrer to Evidence.</p> <p>Record examined, and held, that the trial court did not err in sustaining the demurrer to the evidence.</p>

Error from District Court, Pittsburg County; W. C. Crow, Judge. Action by the Boston Insurance Company on a bond executed by Clyde Coon, as principal, and Kent Y. Gay and C. S. Arnold, as sureties. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Grady uounty; Chas. G. Watts, Assigned Judge.</p> <p>Accusation against R. E. Davenport, County Judge of Grady County, praying for his removal from office. Judgment for defendant, and the County Attorney of Grady County, on behalf of the state, brings error.</p>

Error from District Court, Okmulgee .County; Ernest B. Hughes, Judge. Action by N. F.- Donelson against E. R. Black to rescind assignment of oil lease and to recover purchase price. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Motion to set aside judgment by J. E. Rice sustained, and D. A. McDougal, guardian of Robert Pittman, Jr., brings error.</p>

Petition filed in the Supreme Court by certain attorneys of the Grady County Bar Association to disbar Oscar Simpson. Paul Walker, Esq., appointed by the court as referee to hear the evidence and report to the court his findings of facts and conclusions of law.

<p>Error from District Court, Oklahoma County; James I. Phelps, Judge.</p> <p>Action by Lena L. Bland and another against the Lawyer-Cuff Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from County Court, Tulsa County; H. L. Standeven, Judge. Proceedings by the State to forfeit automobile used in transportation of intoxicating liquor. Intervention by H. C. Peavler, owner of the car, and the Charles Lukins Auto Company, mortgagee. Judgment of forfeiture, and interveners bring error.

Error from District Court, Sequoyah County; E. B. Arnold, judge. Action between Ezzie May Helms, by her guardian, S. R. Helms, and B. F. Faulkner, sheriff, and others. From the judgment, the former brings error.

<p>Error from District Court, Roger Mills County; T. P. Clay, Judge.</p> <p>Prom order dissolving second temporary injunction restraining sale of land on execution, plaintiff,, John Haven, brings error; defendants in error being R. L. Trammell, sheriff, and Ruby Harriman.</p>

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Assessment of Banks — Procedure — Property Subject.</p> <p>In assessing state or national banks, the assessment is not against the corporation upon its moneyed capital, surplus, and undivided profits, but the tax is levied against the shares of stock in the hands of stockholders, and the officers of the corporation act as the agent of the stockholders, both in listing the shares of stock for taxation and in paying the taxes levied against said shares of stock.</p> <p>2. Same — Value of Shares of Stock.</p> <p>The shares of stock in a state or national bank are to be assessed at their true value, which may, or may not, coincide with their book value.</p> <p>3. Same — Exemption of Amount Invested in Securities.</p> <p>In determining the value of shares of stock in a national or state bank for the purpose of taxation, no deduction is to be made on account of the capital of the corporation invested in securities which are exempt from taxation.</p> <p>Pitchford, J., dissenting.</p>

Error from District Court, Dewey County; T. P. Clay, Judge. Action by C. E. Barnard against W. H. Akers and others to recover real property. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Creek County; Lucien B. Wright, Judge.</p> <p>Action by H. Oliver, W. B. Humphrey, Thomas Dickinson, S. B.' Chappelle, A. W. Mathena, P. A. Chappelle, J. W. Arthur, Fred Wilkoming, E. E. Cowman, W. N. Cowman, and P. R. Miller against E. R. Pickett, County Treasurer of Creek County, the City of Sapulpa, and others, to enjoin collection of special assessments for paving. Judgment for defendants, and plaintiffs bring error.</p>

<p>(Syllabus by tbe Court.)</p> <p>1. Venue — Change — Disqualifications of judge.</p> <p>"When it appears that a district judge bas acquired an interest irt tbe subject-matter of litigation pending in bis court, and that jury commissioners were appointed by said judge after acquiring sucb interest, -and a challenge sustained to tbe jury panel for tbe reason that tbe jurors had. been selected by the commissioners so appointed, and it further appearing that tbe trial judge thereupon issued an open venire directing tbe sheriff to select a jury from the body of tbe county to try said cause, tbe party litigant antagonistic to the interest acquired by tbe judge was entitled to a change of venue on proper motion therefor, for tbe reason that be was denied tbe right to have bis cause tried before a jury as prescribe^» by statute.</p> <p>2. Adverse Possession — Hostile Character— Vendor and Purchaser.</p> <p>Where tbe grantor continues in possession of premises after tbe execution and delivery of a deed, bis possession will not be deemed adverse as to bis grantee and those deriving title from him. Sucb possession will be deemed that either of tenant or trustee of the grantee,- and nothing short of an explicit disclaimer of such a relation and a notorious assertion- of right in himself will be sufficient to change tbe character of bis possession and render ehampertous a conveyance by bis grantee to a third party.</p> <p>3. Witnesses — Privileged Communications— Attorney and Client.</p> <p>An attorney is not permitted to testify concerning any communication made to him by bis client, in that relation, or bis ad-vice thereon, without tbe client’s consent.</p> <p>4. Evidence — Relevancy—Forgery.</p> <p>Plaintiff deraigned title to certain land located in Tulsa county -by a deed dated December 18, 1907, from defendants to F. and S., by a deed from F. and S. to P., and from P. to plaintiff. Defendants interposed the plea of forgery as to the deed to F. and 5. Held, under tbe facts 'in this case, error to permit defendants to testify that a deed dated December 18, 19.07, purporting to be signed by defendants conveying lands ^ to F. and S. located in Wagoner county, was also a forgery.</p> <p>5. Evidence — Notaries — Impeachment of Certificate.</p> <p>The act of a notary public in taking an acknowledgment is of a ministerial nature and not a judicial act. The presumption is in favor of the certificate unless there is contradictory evidence sufficient to overcome such presumption, and such contradictory evidence may be furnished by the notary, as well as any other witness in possession of the facts. The evidence, however, to impeach a certificate of acknowledgment should be clear, cogent and convincing,, and such as produces a conviction amounting to a moral certainty that the certificate is false.</p>

<p>Error from District Court, Tulfea County; M. A. Breckenridge, Judge.</p> <p>Action by J. C. Wyatt against W. H. Shackleford and others to recover certificates of corporate stock. Judgment for defendants, and plaintiff brings error.</p>