Volume 8 — Oklahoma Reports

<p>1. Trial — Criminal Cause — Continuanoe—Error. The defendant was indicted on September 20, 1897, for the crime of murder. A demurrer to the indictment was overruled on September 21, 1897, and on the same day he presented an application for continuance on account of the absence of material witnesses who were temporarily absent from the Territory, which was overruled, and the defendant put upon his trial. Held, that the refusal to grant such continuance was prejudical error, and that a period of only one day after the filing of the indictment was not a sufficient length of time in which to prepare for trial.</p> <p>% Homicide — Trial— Questions of Eaet — Instructions. All questions of fact, in a criminal prosecution, are to be determined by the jury, and the court cannot express an opinion as to the weight of evidence, except to direct a verdict of not guilty, and even then it must advise the jury that they may disregard such instruction and return a verdict of guilty; and it is error for a trial court, in a prosecution for murder, when the homicide was committed while the parties were having a personal difficulty, and there was some evidence tending to show that the deceased was the aggressor, to instruct the jury that “in this case there is no evidence to support or justify a verdict of manslaughter in the first degree, manslaughter in the second degree, or justifiable homicide,” and to further instruct them, as a matter of law, that their verdict should be guilty of murder, as charged in the indictment, or that such killing amounted in law to justifiable homicide, and that the defendant is not guilty. It is for the jury to say as to whether or not the defendant committed the homicide, and then jt becomes their further duty to determine from the evidence, under the instructions of the court, of what particular crime, included in the indictment for murder* he is guilty.</p> <p>3. Verdict — Presence of Accused — Record. A verdict in a case of felony cannot be received in the absence of the defendant, but, one© defendant’s presence is shown at a session of court, it will be presumed that he continued to be present in court during the day, or until the first adjournment, unless the contrary is made to affirmatively appear. And where the record shows that the defendant was present when the court instructed the jury, when arguments were made by counsel, and when his case was submitted to the jury, and the jury thereafter, on the same day, returned their verdict, and the record fails to show any adjournment between the retiring of the jury and the returning of the verdict, such record affirmatively shows the presence of the defendant when the verdict was received.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Lincoln County; before John H. Burforcl, District Judge. </p> <p>Henry Wand' was convicted of robbery and appeals..</p>

<p>1. Larceny — Domestic Animals — Intent —Instructions. An instruction* that: “The law presumes every man to be innocent, when accused of crime, until his guilt is made to appear, to the satisfaction of the jury, by competent evidence, beyond a reasonable* doubt; and the burden is upon the Territory in this case to establish, to your satisfaction, by competent evidence, beyond a reasonable doubt, the guilt of the accused of the crime-charged in this indictment. While the law presumes every man to be innocent, until his guilt is thus established, on the other hand it presumes every act which in itself is unlawful to have been criminally intended; and therefore it is not necessary in this case* that the Territory should establish the intent. If they do establish to your satisfaction, from the evidence, beyond a reasonable doubt, that the defendant took this animal from the possession of Mr. Ajdrina, the law will presume ‘that he did it with the* intent to deprive the owner of his property therein,” — is incorrect. Intent, where one is indicted for stealing, is an issue of fact, which’ the jury must determine from all of the facts appearing upon the trial; and it is for the jury to say in each case as to whether or not the felonious intent to steal existed at the time* the property was taken.</p> <p>2. Stealing Domestic Animates — Offense Distinguished. Section 1, art. lu ch. 20, Session Laws of Oklahoma, 1895, which provides “that if any person shall steal any stallion, mare, colt, gelding, ridge-ling, or any ass, genet, or mule, or any bull, cow, calf, steer or* stag, he shall be guilty of a felony, and, on conviction thereof, shall be punished by confinement in the territorial penitentiary for a term of not less than one nor more than ten years,”' creates a distinct and separate offense from larceny, as defined by the Statutes of Oklahoma of 1893, and does not make* the stealing of the domestic animals named in such act grand larceny, without regard to value.</p> <p>(Syllabus by the Court.)</p>

<p>1.Statutes — of Congress — Modification of. An act of the-Territorial legislature which requires the ratification of congress in order to make it valid as law, after such ratification cannot be modified, repealed, or amended by the legislature without the assent of congress.</p> <p>2.Probate Courts — Jurisdiction. The probate courts in Oklahoma, have jurisdiction of all offenses, under the laws of the Territory, not infamous.</p> <p>3.Same — Criminal Causes. The Statutes of 1895, amendatory of the-criminal procedure act, did not effect the repeal of any previous enactment relating to jurisdiction of probate courts which required and had received the ratification of congress by congressional enactment.</p> <p>4. Same — Civil Causes. The limitations contained in section 1562, Statutes 1893, on the jurisdiction of probate courts, apply only to civil causes, and have no application to criminal prosecutions. (Syllabus by the Court.)</p>

Error from the District Court of Pottmoatomie County; before J. R. Keaton, District Judge. Injunction by Samuel Clay, for himself and fifty-five others, again the treasurer, sheriff, and board of county commissioners of Pottawatomie county, enjoining the collection of taxes. From a judgment for the plaintiffs, defendants bring error.

<p> Error from the District Court of Canadian County; before J. C. Tarsney, District Judge. </p> <p>Ered Horn was convicted of murder, and appeals.</p>

<p> Error from the District Court of Woods County; before -Jno. L. McAtee, District Judge. </p> <p>H. H. Hyde was convicted of felonious assault, and brings error.</p>

Error from the District Court of Woods County; before Jno. L. McAtee, District, Judge. H. H. Hyde was convicted of assault with intent to kill, and brings error.

<p>Error from the Prolate Court of Payne County; lefore B. J. Basel, Prolate Judge.</p> <p>Hubert O. Bell was convicted of bastardy, a-d appeals.</p>

Error from the District Court of Garfield County; before Jno. L. McAtee, District Judge. Action by Solon Burkett and others against the Lehmen-Higginson Grocery Company, a corporation, to recover $889 paid by the plaintiffs upon a judgment rendered against them, as sureties upon a sheriff’s bond, for the seizure of property under an attachment instituted by the defendant. From a judgment for defendant, the plaintiffs appeal.

<p>1. Referee — Report of Facts — Effect. Under section 305 of our Code of Civil Procedure, when the order of .reference by the court requires the referee to report the facts, the report has the effect of a special verdict.</p> <p>2. . Same — Findings Same Force as Verdict. The findings of the referee must be regarded by the court as having the same force and weight as the verdict of a jury, and should not be disturbed,, unless clearly against the weight of the evidence.</p> <p>S. Report of Referee — Revieto on Appeal — Elite Applied. The record in this case examined, and held,, that the evidence clearly supports the findings of fact and conclusions of law thereon by the reports of the referees, and it was error for the court to overrule the motions of the defendant to confirm such reports of the referees, and to enter judgment for the plaintiff.</p> <p>(Syllabus by the Court.)</p>

<p>1. Case-Made — Extension of Time to Make and Serve. A trial court or judge has the right to extend the time for making and serving a case-made, on application of the party appealing, for good cause shown, without any notice to the adverse party; and the finding by the court or judge that good cause has been shown is a finding of fact, which will not be reviewed on appeal.</p> <p>2. Appeal — Evidence Not Revieioed, When. Evidence will not be reviewed on appeal, unless the case-made or bill of exceptions contains all of the evidence pertaining to the subject about which it is alleged that error has been committed; and when the case-made contains a statement that all of the evidence introduced upon the trial is contained therein, but the record itself shows upon its face that it does not, and that material written instruments were omitted therefrom, the record is the best evidence, and will prevail over such statement.</p> <p>(Syllabus by the Court.)</p>

<p>1. Perjury — What Indictment for Must Show. An indictment for perjury need not set out the facts from which it will be made to appear that the alleged false testimony upon which the charge is .predicated was material. It is sufficient if the express averment is made that said testimony was material to the question in issue.</p> <p>2. Change of Venue — Granting of, Discretionary. The granting of a change of venue from the county is, by statute, made discretionary with the court; and an appellate court will not reverse the ruling of the trial court denying an application of the defendant for change of venue, unless it is made to clearly appear that there has been such an abuse of discretion as to amount practically to a denial of justice.</p> <p>3. Same — Review of Ruling on Appeal. The ruling upon an application for change of venue cannot be reviewed in the supreme court until ■ after final judgment fh the trial court, and on appeal from such judgment.</p> <p>4. Evidence — Best am.d Secondary — Rule Applied. The rule of evidence requiring that the best evidence shall be produced, to the exclusion of secondary and hearsay, is not violated by permitting the official court stenographer to read from his notes the testimony of a witness in a former trial, taken and recorded by him at the time and sworn to by him to be correct, even though he testifies that he has no independent recollection of such testimony, and cannot refresh his memory from such notes.</p> <p>B. Same — Rule Modified. The old application of the rule requiring the best evidence, which treated the recollection of a person who was present and heard the testimony of a witness as the best medium for reproducing such testimony, should be modified to meet the changed conditions caused by the progress and advancement made in science, art, skill, and mechanism; and the notes or longhand manuscript of a skilled and impartial stenographer should be treated as more accurate and reliable than to trust to the imperfections of human recollection.</p> <p>6. Indictment fob Pebjuby — Proof—Variance.' Where an indictment for perjury specifically avers that the defendant was sworn before a certain person and a particular officer, .such allegation is matter of substance, and must be proved as laid; and proof' that some other person or officer administered the oath is a fatal variance.</p> <p>7. Evidence — Sufficiency. Proof that an oath was administered by the clerk or some other officer of the court in the presence of the court is sufficient to .sustain an allegation that the person was sworn by the court, or in court.</p> <p>8. Ceiminal Law — Statute Interpreted. Section 5231, Statutes 1893, was not intended to change rules of pleading or practice, but announces a rule which had been adopted by some courts previous to its enactment, and only applies to indictments where the allegation is made generally that the accused person was sworn before the court, or in the court, and was not intended to change the rule in case where a specific averment is made setting out the name of the person and officer before whom the oath was taken.</p> <p>9. Instruction — Error. Where an indictment for perjury contains the allegation that the defendant was duly sworn by John H. Havighorst, clerk of the district court, it is error to instruct the jury that it is sufficient proof, if the defendant was sworn by any other officer of the court.</p> <p>(Syllabus by the Court.)</p>

<p>1. Stabe Decisis — The material facts and circumstances presented by the record in this case are precisely those involved in a long line of decisions by this court, and the rule of those decisions must determine this case adversely to the cause of action sought to be stated in the petition.</p> <p>2. Injunction— County Attorney — Duty TiolateiD-Cause Dismissed. Where a county attorney brings injunction in the name of the Territory, as plaintiff, against the county clerk, to restrain said clerk from . spreading upon the tax rolls of the county an increase of valuation of property for taxation, as ordered by the territorial board of equalization, it is apparent from the face of such petition that the Territory is not the real party in interest in the prosecution of -such action; that the real interest of the Territory lies in having such increased valuation spread upon the tax rolls, and not in preventing the same; that the county attorney bringing such action violates his official duty to the Territory, and his obligations of fidelity to courts and clients; and that such petition should be dismissed.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Franlc Dale, District Judge. In the matter of the settement of the accounts of Harry W. Pentecost, receiver.' T. F. McKennon, administrator of the estate of Francis R. McKennon, brings error.

Error from the District Court of Pawnee County; before AG. C. Bierer, District Judge. Actions between Benjamin Price and others and J. F. Johnson and others and John N. Florer and others and the board of county commissioners of Pawnee county and -others. From the judgments, Price and others bring error.

Error from the District Court of Logan County; before Frank Dale, District Judge. Action by Nix, Halsell & Co. and 'others against H. W. Underhill and others to have certain chattel mortgages declared an equitable assignment for the benefit of creditors, and for the appointment of a receiver. From a judgment sustaining a demurrer to the petition of the plaintiffs, and dismissing the cause, plaintiffs bring error.

<p>Action fok Damages — Alienating Husband’s Affections — Demurrer to Evidence. In an action for damages by a wife against her husband’s parents for alienating her husband’s affections, evidence that shows that defendants gave their son a home, but refused the same to the plaintiff; that they had both t-old her, in her husband’s presence, that she was filthy and dirty, and unfit to raise a family; ■ and that plaintiff’s father-in-law told a third person, who had given to plaintiff a temporary home, that he had been trying to separate his son and plaintiff for some time, and had succeeded, and that now he intended to keep them apart — is not sufficient to authorize a verdict for plaintiff, and it was proper for the trial court to sustain a demurrer to such, evidence, and to discharge the jury.</p> <p>(Syllabus by the Court.)</p>

JSrror from the District Court of Grant County; before Jno. L. MoAtee, District Judge. Action by D. W. Jones against the board of county commissioners of Grant county. M. McKinley was substituted as plaintiff. Judgment for plaintiff. Defendant brings error.

Error from the District Court -of Kinfisher Countyj before Jno. L. McAtee, District Judge. Suit by A. Mehew and others against J. M. Lee, county treasurer, and others, to restrain the collection of taxes. Judgment for plaintiffs. Defendants bring error.

Error from the District Court of Kay County; before A. C. C. Bierer, District Judge. Action by Pinson and Sunday, against S. R. Prentise. A judgment for plaintiffs before a justice was reversed, and plaintiffs bring error.

Error from the District Court of Grant County; before Jno. L. McAtee, District Judge. Suit by W. P. Wright and E. R. Claunch against J. T. Godfrey, sheriff, and N. V. Van Petten, to restrain the sale of property for taxes. From a decree for plaintiffs, defendants bring error.

vError from the District Court of Lincoln County; before Jno. H. Burford, District Judge. Action by M. F. Jones, plaintiff, against Rollin M. Hockaday, W. H. Harmon, and E. J. Rowe, partners, and Frank Gebke, sheriff of Lincoln county, to vacate and annul a judgment, to vacate and annul certain garnishment proceedings, and to restrain the enforcement of executions issued upon said judgment and garnishment proceedings.

<p>1. Appeal — Error Never Presumed. Error is never presumed by the-supreme court; it must always be shown affirmatively by the-record, or it will oe presumed that no prejudicial error was committed by the trial court, and the judgment must be sustained.</p> <p>2. Review — Case-Made Must Contain Entire Record. Before this court will consider the -record and review the evidence, based upon the* ground that the findings of the court and judgment thereon are contrary to the evidence, or are not sustained by sufficient evidence, it must affirmatively appear in the case-made itself that it contains all the evidence; and a mere statement of recital to that, effect in the certificate of the trial judge is not sufficient.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County; before A. C. C. Bierer, District Judge. Replevin by John A. McFadyen and Sarah Brown, partners, against H. O. Masters, sheriff of Kay county, to recover a stock of merchandise seized and held under attachments against one P. I. Brown. From a verdict and’judgment for the plaintiffs, they bring error. •

<p> Error from the District Court of Noble County; before AG. C. Bierer, District Judge. </p> <p>Action by Elnora Everett against S. A. Akins, sheriff of Noble county. Judgment for defendant. Plaintiff brings error.</p>

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. Action by F. H. Wright against the board of rcounty commissioners of- D county. Judgment for plaintiff. Defendant brings error.

Error from the District Court of Oklahoma County; before James R. Keaton, District Judge.

<p> Error from the District Court of Oklahoma County; before James R. Keaton, District Judge. </p> <p>Action by H. Overholser against Richard F. Caffrey, ■county clerk of Oklahoma county, by injunction, to restrain said clerk from spreading upon the tax rolls of «aid county the increase of valuations of property in said county, ordered by the territorial board of equalization for the year 1897. From a decree for plaintiff, defendant appeals.</p>

<p> Error from the District Court of Canadian County; before John C. Tarsney, District Juelge. </p> <p>Action between tbe board of commissioners of Custer county and Robert G. Moon. From the judgment, the county commissioners bring error.</p>

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. Action by F. M. Hubble against the board of county commissioners of Day county. Judgment for plaintiff. Defendant brings error.

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. Action by Joel B. Burrow against the board of commissioners of Washita county. Judgment for plaintiff. Defendant brings error.

<p>1. Municipalities — Officers—Obligations. The law presumes that, when the officers of a municipality issue their obligations, such obligations are issued for lawful corporate purposes, and that they acted within the scope of their powers.</p> <p>2. Municipal Indebtedness — TAmitation — Burden of Proof. Where a municipality seeks to avoid the payment of its obligations on the ground that at the time the debts were incurred and the obligations issued, the municipality was indebted beyond the federal limit, the burden of proof is upon the municipality to establish such facts.</p> <p>2. Case-Made — Appeal—Review. Where it appears from the issues joined in the case that the general findings of the court and the conclusions of law thereon depended upon the evidence introduced upon the trial of the cause, and the case-made fails to show that it contains all the evidence introduced and offered, we cannot say that the court committed prejudicial error in its findings of fact and conclusions of law thereon.</p> <p>4. Same — Buie Followed. The record in this case examined, and held, that this case comes clearly within the rule laid down in the case of Board v. Hvftble, this volume, p. 169, and Botird v. Wright, this volume, p. 190, and authorities there cited.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma County • before-James B. Keaton, District Judge. Action by M. E. Young against Isaac Lowenstein.. Judgment for plaintiff. Defendant brings error. STATEMENT OF THE CASE.

Error from the Probate Court of Paionee County; before James P. Neal, Probate Judge. Action (by Roy V. Hoffman and William Blincoe •against the board of county commissioners of Pawnee county. Judgment for defendant, and plaintiffs bring ■error.

Error from the Probate Court of Pawnee County; before James P. Neal, Probate Judge. Action by Charles E. Vandervoort against the board ■of county commissioners of Pawnee county. Judgment for defendant, and plaintiff brings error.

<p> Error from the Probate Court of Grant County; before H. E. Rogers, Probate Judge. </p> <p>Action by the board of commissioners of Grant county against the State Capital Printing company to vacate. a judgment. Decree for plaintiff. Defendant brings error.</p>

Error from tiie District Court of Grant County; before John L. McAtee, District Judge. Action by J. M. Asher against H. M. Brewer and others, the board of county commissioners of Grant county, to recover a balance claimed for salary and expenses as county attorney. From a judgment for the plaintiff, the defendant brings error.

<p>1. County Warrant — Validity—Presumption. A county warrant, nothing appearing on its face to the contrary, is prima facie evidence of the validity of the claim for which it was issued. The presumption of law is that the warrant was issued for legitimate county purposes, and that it was not issued in contravention -of the federal limitation.</p> <p>2. Indebtedness — Limitation — Defense. Where an action is brought against a county by the holder of a county warrant, It is competent for the county to plead and prove as a defense to the action, that its indebtedness was in excess of the federal limit at the time the debt was created, or that the warrant in whole or part was issued for an illegal corporate purpose.</p> <p>3. Illegal Warrant — Defense—Error. Where a county pleads as one of the defenses to an action, upon a county warrant, that such warrant was issued in part for an illegal purpose, it is error for the court to sustain a demurrer to the answer pleading such facts.</p> <p>(Syllabus by the Court.)</p>

<p>1. Fraudulent Conveyances — Antecedent Creditors. An antecedent creditor who knows that his debtor procured goods and merchandise by fraudulent means, cannot, by a chattel mortgage, secure a lien on such fraudulently procured goods, adverse to the innocent vendors of such goods.</p> <p>2. Chattel Mortgage — Fraud of Grantee. An antecedent creditor who-knows that his debtor has procured goods and merchandise by fraudulent means, and when the sale of such goods is partially induced by his own fraud, deceit and misrepresentation as to the credit of his debtor, cannot, by a chattel mortgage, secure a lien on such fraudulently procured goods, adverse to the Innocent vendor.</p> <p>' 3. Bona Fide Purchasers — Who are not. The protection of a purchaser of goods from a fraudulent vendee is based upon and he is recognized as a bona fide purchaser upon the ground only that the fraudulent purchaser has a voidable or defeasible title which, before its annulment by the vendor, the defrauding purchaser can transmit to a bona fide purchaser, who is without knowledge or notice of the fraud, and who has parted with value therefor; but one who buys w'th notice or knowledge of the fraud of his vendor In obtaining the property, is not a bona fide purchaser, and is liable, not only to-lose the go.ods, but, if he has parted with them, he is liable to pay their value.</p> <p>4. Goods Fraudulently Obtained — Mortgage of, When Told. A mortgage of goods fraudulently obtained is absolutely void if the-mortgagee participated in the fraud by which they were obtained, or before the making of the mortgage had knowledge that the mortgagor had fraudulently obtained the same. Where in an action by mortgagees against a sheriff to recover the value of the-mortgaged property seized under attachments against the mortgagor, in suits by his creditors, the defendant establishes the-fact that such goods were fraudulently obtained from the attachment creditors by the mortgagor, and that the mortgagees participated in the fraud by which such goods were obtained, or before the making of the mortgage had knowledge that such goods were-so fraudulently obtained, the fraudulent character of the mortgage- and its invalidity is established.</p> <p>(Syllabus by the Court.)</p>

<p>1. Taxation — Assessment—Sale of Lots — Yoid, 'When. Section 5618, Statutes of Oklahoma, 1893, which provides that, “ On or before the first Monday of May, annually, the several county or township assessors shall make and deliver to the county cleric an assessment roll consisting of the following items, to-wit: A list of all taxable lands in such county, etc., * * with the number of acres in each tract set opposite the same in the column provided for that purpose, and the assessed value thereof in another column, with the columns of acres and values footed up; also stating the number of school and road districts in which such property and the owners thereof is situated.” And “A list of the town lots in each town or city in each county, in like numerical order, with the valuation of each lot or part of lot, and the name of the person listing the same opposite, with the column of values footed up,” etc., is mandatory in so far as it provides for the listing and valuing of each lot separately, and is not merely directory; and where three lots, lying contiguous in a city are listed separately but all valued together, such listing and valuation do not constitute a legal assessment and a sale of such lots, under such an assessment, is absolutely void.</p> <p>2. Tax Warrant-Taw Decd^-Yoid, When. It is the duty of the county clerk to attach his warrant to the tax list, directing the treasurer to collect the taxes contained therein, as provided by sec. 5631, of the. Statutes of Oklahoma, 1893; and a sale of real estate by the county treasurer, without having previously received the warrant of the clerk directing the collection of the taxes for which said real estate was sold, is without authority of law, and the tax deed for such real estate issued to the purchaser thereof, by the treasurer, is absolutely void.</p> <p>(Syllabus by the Court.)</p>

<p> Error from, the District Court of Canadian County; before John C. Tarsney, District Judge. </p>

Error from the Prolate Court of Kay County, before Robert Neff, Probate Judge. STATEMENT OP PACTS. This was an action brought in the probate court of Kay county, by Teller to recover damages against Masters.

Error from the District Court of Payne County; before Frank Dale, District Judge. Action by J. S. Hall against Oren A. Powell and Eldorean Powell. Judgment for defendants1, and plaintiff brings error. STATEMENT OF THE CASE. This was an action to foreclose a mortgage upon real estate, which purported to have been executed by Oren A. Powell and Eldorean Powell, his wife. The mortgage was delivered by Powell to the agent of Hall, who paid. Powell the consideration therefor.

Error from the District Court of Canadian County; before Jno. E. Burford, District Judge. Action by C. E. Brakeñeld against James Lucas and W. D. Bareli. This was an action brought before a justice of the peace in Canadian county to recover damages for the conversion of grain, in which the defendant in error here was plaintiff.

Error from the District Court of Canadian Countyj before-John C. Tarsney, District Judge. STATEMENT OP THE CASE. Action by W. W. Trigg and William H. Trigg against. Caroline Hess and Louis Hess on a promissory note and for the foreclosure of a mortgage upon real estate given to secure the payment of the debt -evidenced by the note. The mortgage purports to have been given by the plaintiff in error and her husband and co-defendant, Louis-Hess.

Error from the District Court of Canadian County; before John C. Tarsney, District Judge.

Error from the District Court of Olclahoma County; before-James R. Keaton, District Judge. Petition by H. H. Scbultz against J. H. Barrows, sheriff, and Henry Duffy. Execution was issued from the district court of Oklahoma county on the 23d day of March,. 1897, and levied by Barrows, sheriff, upon lot 2, block 13,. South addition of Oklahoma City, to satisfy a judgment lien in favor of Duffy for $19 and costs.

Error from the District Court of Noble County; before-A. C. C. Bierer, District Judge. STATEMENT OE THE CASE.

Error from the Distinct Court of Logcm County; before Jno. E. Burford, District Judge. Joe M. Keith was convicted of theft, and brings error. An indictment was returajed charging the defendant Joe M. Keith, with the theft of a watch and certain money, the property of Hildebrand.

<p> Error from the District Court of Custer County; before John C. Tarsney, District Judge. </p> <p>George Roberts was convicted of burglary, and brings error. Reversed. This was a trial upon an indictment for burglary in the second degree.. It appeared from the evidence that the defendant, Roberts, in company with his brother, Bert Roberts, and one Dick Shriver, had raised a window and entered the saloon of one Ben Bullard.</p>

<p>'1. Referee — Findings' Set Aside, When. Where there is no evidence reasonably tending* to support the finding* of fact made by a referee, but there is an overwhelming prepreponderance of testimony against such finding, and the finding of fact is one which materially supports the conclusions of law made by the referee, the findings of fact and the conclusions should be set aside.</p> <p>/2. Same — Incompetent Evidence — Error. Where three witnesses are permitted, over the objection of the opposite party, to testify before a referee upon matter of hearsay, which, if true, strongly support the findings of fact, it will be inferred that such testimony influenced the judgment of the referée, and the reception of such testimony is material error.</p> <p>3. Public Lands — Claimants to Town Lots — Oc<nipanc¡j. Where settlers have staked town lots, and have attempted to take peaceable possession of them, and have been prevented by force by one claiming the rightful possession thereof, from occupying or making any improvements thereon, such an attempt to stake and take possession of such lots is equivalent to the erection of improvements as against-him who prevented by force the staking of the lots and the improvement thereof, and will be regarded as such as against any one attempting to set up a claim by, through, or under him who exercised the force, if such attempts at occupancy are not abandoned.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. Action by N. B. Trulock and others, as the El Reno. Ice & Coal company, against J. R. Blair. From an order sustaining a demurrer to- plaintiff’s evidence they bring, error. STATEMENT OF THE CASE.

Error from the District Court of Oklahoma County; before James R. Keaton, District Judge. Suit by Milton Mills against Henry Betts and others to foreclose a mortgage. From an order -denying the motion of defendant • J. J. Lowe to set aside the sale, defendants bring error. STATEMENT OF THE CASE. The question in controversy in this case arose in a proceeding in the district court of Oklahoma county to foreclose a mortgage upon lot 18, block 53, of Oklahoma City.

<p> Error from the District Court' of Nolle County; before A. G. C. Bierer, District Judge. </p> <p>Action by A. B. Moore against J. L. Calvert and others. Judgment for defendants. Plaintiff! brings error.</p> <p>STATEMENT OE THE CASE.</p> <p>On June.30, 1897, J. W. Yoemans executed to A. B. Moore a promissory note for the sum of $425, payable f>0 days after date, with 12 per cent interest after maturity, and, to secure said note, on the same day executed to Moore a chattel mortgage on a number of ricks of wheat standing on Ms farm in Noble county. Before the note and mortgage matured, Yoemans delivered possession of the wheat to Moore, and authorized him to thresh and market the wheat, pay all- necessary expenses, and satisfy the mortgage debt from the proceeds, and pay the surplus to the mortgagor. After Moore had taken actual possession and control of the wheat for the purpose of converting the same into cash, and carrying out the terms of the mortgage as well as the subsequent oral agreement, the defendant in error Oalvert caused two several executions in his favor, issued on judgments against Yoemans, to be levied on said wheat, and possession was taken of the wheat by Akins, the sheriff, upon said executions. On the trial of this cause, the jury found that these executions were levied and possession taken with the express consent of Moore, the mortgagee. Subsequent to the levy of the executions>, Moore demanded a return of the wheat to him, under his mortgage, and the sheriff, recognizing the superior lien of Moore’s mortgage, released the wheat from the levy to the extent of Moore’s interest therein, and delivered possession to Moore. Immediately Moore procured a thresher, and commenced threshing the wheat and storing it in a bin ready for market. After he had threshed about 900 bushels, Akins, the sheriff, again retook possession of the unthreshed portion of the wheat, and forcibly kept Moore from continuing to finish the threshing. After demand by Moore for possession, in order to enable him to thresh and sell enough wheat to satisfy his claim for expenses and amount due on his mortgage, and a refusal on the part of Akins to re-deliver the wheat,' Moore began this action in replevin against Akins, the sheriff, to recover possession of the unthreshed wheat in the ricks. Akins refused to give a re-delivery bond, and the wheat was delivered to Moore. Moore threshed all the wheat, and sold it on the market, realizing therefor, in gross, about $1,200. Before causing the executions on these judgments to be levied, Calvert deposited with the county treasurer of Noble county the amounts of three several chattel mortgages, aggregating about $150, which were-liens upon the wheat, but junior to Moore’s mortgage. The petition in replevin alleged that the plaintiff had a special interest in the wheat, by reason of the lien of his mortgage, and that he was entitled to the possession for the purpose of threshing and selling said wheat, 'and applying the funds therefrom to the payment of the costs and expenses of threshing, marketing and handling the wheat, to the satisfaction of the lien of his mortgage,, and accounting for the surplus to the mortgagor.</p> <p>It was further averred that the mortgage contained a provision for the payment of an attorney’s fee of 10 per cent, if the mortgage should be placed in the hands of an attorney for collection, and the name of the attorney was signed to the notice of sale, and it was averred that the mortgage had been placed in the hands of S. H. Hariris, an attorney, for collection, and that the mortgagor-had waived the notice of sale, and authorized a sale of the wheat at private sale.</p> <p>Akins, the defendant in the replevin action, first answered, but subsequently filed a motion to have Calvert, the execution plaintiff, substituted as defendant,, and that he be discharged. At the same time Calvert filed his application for leave- to be substituted as a defendant and for leave to plead to the petition. The court sustained this motion and application, and made an order-discharging Akins, and substituting Calvert as defendant, and allowing him to plead'. Calvert then filed an answer and cross-petition. His pleading consisted of, first,' a general denial of all the allegations, except as to-"the execution of plaintiff’s mortgage, which was admitted. The second defense set up the judgments against Yoemans, the issue and levy of the execution® on the wheat, and the release of the levy to the extent of plaintiff’s lien, and that the plaintiff had already threshed ■and received more than a sufficient quantity of wheat to pay his claim and all expenses. The cross-petition set np the junior mortgages that Calvert had paid, alleged that the mortgagees had each accepted the money deposited for them, and asked for an accounting and judgment against the plaintiff, Moore, for any surplus in his hands after satisfying his mortgage, or of a sufficient ■sum to satisfy his executions and said cancelled mortgages paid by him.</p> <p>Demurrers were filed to the answer and cross-petition, ■and overruled, and exceptions saved. A reply was filed to the answer and cross-petition. The cause was tried to a jury, and a verdict returned, finding that Moore was entitled to the possession "of the property at the time he began his action in replevin; that the sheriff levied the executions on the wheat, subject to Moore’s mortgage, with his consent and agreement; that the levy had only been released to the extent of paying off the mortgage, and that plaintiff’s mortgage w'as fully discharged at the time the sheriff retook possession of the property; that the value of the property taken under the writ of replevin was $582.29; and that the amount of Calvert’s executions and mortgages1 was $372.10. On this verdict judgment wras rendered for plaintiff, Moore, that he was the owner and entitled to the pos■session of the property at the time of bringing his action, -and that he recover the entire costs; that Calvert have a return of the 840 bushels of wheat that were taken on the writ of replevin, or, in case a return could not be had, that he recover of Moore the sum of $372.10, the value of his interest in the property.</p>

Error from the Probate Court of. Garfield County: before W. 31. Anderson, Probate Judge. Action by the McCormick Harvesting Machine Company against W. H. Koch and T. J. Koch. Judgment for defendants and plaintiff brings error.

Error from the District Court of Roger Mills County; before-John C. Tarsney, District Judge. STATEMENT OE THE CASE. This was an action by the defendant in error, the Hall Lithographing company, against the plaintiff in error, the board of county commissioners of Roger Mills county, to recover the sum of $1,516.84 upon four county warrants issued by said county to Hall and O’Donald on the 12th day of November, 1892. Judgment for plaintiff. Defendant brings error.

<p> Error from the Probate Court of Pawnee County; before-James P. Neal, Probate Judge. </p> <p>Action by Maurice Weisz against M. Friedman.. Judgment for plaintiff. Defendant brings error..</p>

Error from the District Court of Cleveland County; before B. F. Bunnell, District Judge. Action by Hewitt & Dugger against G-eorge Boston. •Judgment for plaintiffs. Defendant appeals.

<p>Municipal Indebtedness — New Counties — Issue of Wat'rants. A newly-organized county in this Territory has the power to create a valid indebtedness, and issue warrants as an evidence thereof, prior to the making and completion of an assessment for the purposes of. territorial and county taxation, to meet the ordinary expenses which are necessary to carry on and conduct the functions of county government; and the incurring of such indebtedness is not in contravention of section 4 of the act of congress approved July 30, 1886, which prescribes, among other things, that no county shall ever become indebted in excess of 4 per centum of the value of the taxable property therein, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such indebtedness. (Burford, C. J. dissenting.) (Syllabus by the Court.)</p> <p> Error from the District Court of Roger Mills County; before John C. Tarsney, District Judge. </p> <p>Action by Sat Rowden against the board of commissioners of Roger Mills county. Judgment for plaintiff. Defendant brings error.</p>

<p>1. New Counties — Indebtedness—Power to Orente. A newly-organized county in this Territory has the power to create a valid indebtedness prior to the making of an assessment for territorial and. county taxation, and issue warrants as an evidence thereof, for a lawful purpose, and to meet the ordinary and necessary expenses of carrrying on and conducting the affairs of county government. (Board v. Bowden, followed.)</p> <p>2. Municipal Indebtedness — Action Upon Goimty Wmrants — Defense Where a county sets up as a defense, to an action upon county warrants, that at the time the indebtedness was incurred, and the warrants issued in settlement thereof, no assessment had been made of the taxable property .within the county for the purposes-of territorial and county taxation, and therefore said warrants were absolutely void for having created an indebtedness in violation of the act of congress of July 30, 1886, which prescribes, among other things, that no county shall ever become indebted in excess of 4 per centum of the value of the taxable property therein, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such indebtedness, held, that such answer fails to state facts sufficient to constitute a valid' defense, and a demurrer thereto was properly sustained. (Burford, C. J., dissenting.) •</p> <p>(Syllabus by the Court.)</p>

<p>1. Municipal Corporations — Damages — Liability. A municipal corporation is not impliedly liable for the incidental injuries to property, resuting from the exercise of its legislative powers, by reason of the erection and maintenance of public improvements,, ■where the premises are in no manner invaded; yet such a corporation is responsible for the direct injuries to private property,.' caused by a corporate act in the nature of a trespass or nuisance.</p> <p>2. Same — Injuries to Private Property. A municipal corporation, in the-exercise of its corporate powers to construct and maintain public works, has no power to collect water by artificial means,, and discharge it, or permit it to discharge or overflow, upon the •premises or an adjacent freeholder, so as to interfere with his posession. Hence, for a municipal corporation to collect water by artificial means, such as a water standpipe, and conduct it in such a careless and negligent manner as to allow it to overflow and flood the premises of an adjacent property owner, is such an invasion of private property .as to constitute an appropriation of it to public use, and the principle exempting municipal corporations from liability arising from damages occasioned- by the-exercise of their discretionary powers in the construction and maintenance of public works does not apply, and the corporation, is liable for damages resulting therefrom.</p> <p>3.Damages — Measures of. in an action to recover for an injury to-property, arising from the carelessness and negligence of the corporate authorities in permitting a water standpipe to continuously overflow upon the premises of an adjacent property owner, the measure of damages is the loss actually sustained, and in case of a permanent injury to the property the true measure of damages is the difference between the value of the property immediately prior to the location and construction of such improvement and its diminished value immediately thereafter.</p> <p>(Syllabu-s by the Court.)</p>

<p>1. Attachment — Action on Undertaking — Pleading. In an action to recover upon an undertaking given to secure the discharge of attached property and the restoration of such property to the defendant, the condition of which is “ that the defendant will perform the judgment of the court in said action,’’ it is a sufficient allegation of a breach of the conditions of the undertaking to aver that the plaintiff obtained a judgment against the defendant in such action, what the amount of such judgment was, and that said judgment was unpaid, in whole or in part.</p> <p>2. Damages — Measure of — Burden of Proof. In an action upon such an undertaking, the failure to pay the judgment is the breach of the conditions of the bond. The amount of the judgment an l costs, with interest, is prima facie the measure of damages, and, when it is shown on the trial that a valid judgment was rendered, it will be presumed to be unpaid until the contrary is shown. Tne burden of showing payment is on the defendant.</p> <p>(Syllabus by the Court.)</p>

Error from, the District Court of Greer County; before B. F. Burwell, D.istrict Judge. Clark & Courts appeal to the district court from an order of the county board disallowing their claim against Greer county. From a judgment vacating the order of disallowance and dismissing the appeal, plaintiff brings, error.

<p> Error from the District Court of Nolle County; lefore B. T. Hamer, District Judge. </p> <p>Action by the Fire-Extinguisher Manufacturing company against the city of Perry. Plaintiff’s demurrer to defendant’s answer was overruled, and it brings error.</p>

Error from the District Court of Pottawatomie County;before B. F. Bumoell, District Judge. STATEMENT OF THE CASE. This was an action brought in March, 1897,. by B. M. Frier against George M. Southgate to-recover upon a promissory note, payable November-16, 1891.

<p>Jury — Challenge to Array. In general the provisions of the statute in regard to the mode of obtaining juries are directory, and a substantial compliance with the requirements of the law is sufficient. This court will not reverse a ruling of the district court, overruling a challenge to the array, upon objections to the manner in which the list of persons from whom the panel was selected was made up, when such objections are purely technical and do not affect the substantial rights of the parties, and when it is not made to appear that any material rights have been lost thereby.</p> <p>(Syllabus by the Court.)</p>

<p>.Appeal — Final Order — Error. An order made by the district court during the trial of a cause, for the substitution of a cost bond alleged to have been lost, is not a final order, does not involve the merits of the action, and is not an order upon 'which error can be assigned to this court.</p> <p>(Syllabus by the Court.)</p>

<p>Indians — Citizenship. A child who Is the offspring of a white father and an Indian woman is not by birth an Indian, but is a citizen of the United States, and is not entitled to the benefit of the act of congress of February 8, 1887, (1 Supp. Rey. Stat. U. S. P. 534, ' sec. 4.)</p> <p>(Syllabus by the Court.)</p>

Error from the Probate Court of 'Noble County; before Ethan Allen, Probate Judge. STATEMENT OF THE CASE. Action by Carl Crawford against the board of county commissioners of Noble county, Oklahoma, to recover the isum of $300 on a county warrant issued on the 4th day of December, 1896, to one S. E. Richardson, and subsequently assigned to the plaintiff in error, Carl Crawford, who was at the commencement of this action the owner and holder thereof.

Error from the Prolate Court of Kay County; lefora Rolert Neff, Prolate Judge. Action by B. F. Smith against W. W. Spencer. W. C. Spencer intervened. From an order dissolving the attachment piaintiff brings error.

Error from the District Court of Pottawatomie County; before B. F. Burwell, District Judge. Action by Elijah Earls against John Craggs and another. Judgment for plaintiff, and defendants bring error. STATEMENT OP THE CASE. The plaintiffs in error purchased of Earls a tract of land near Earlsboro, in Pottawatomie county, Oklahoma, and Earls conveyed the land by warranty deed to H. E. Craggs, at the request of John Craggs.

<p>1. Criminal Law — Evidence of Other Offenses. As a general rule, on a prosecution for one crime it is not proper to admit testimony against the defendant showing that he had committed other disconnected' offenses, for the purpose of establishing his guilt of the offense charged, or to impeach his credibility; but such evidence is competent where it tends to prove a motive and intent of the defendant in the commission of the act, or any other material fací to be established.</p> <p>2. Larceny — Evidence — Rule Applied. In an indictment for larceny, where the evidence shows the defendant had formed a common design with one W. to commit a number of larcenies in the county, . and that it was impossible to follow the course of the parties in the commission of the offense charged in the indictment, without also detailing the commission of other independent offenses of like character, held, that such testimony was material, and competent for the purpose of showing a motive and intent of the commission of the crime charged in the indictment.</p> <p>S. Oral Instructions — Appeal—Review. Where error is assigned th.At the trial court instructed the jury orally in a criminal case, and did not reduce its instructions to writing before giving them to the jury, it will not be reviewd on appeal by this court, unless presented to the trial court for review in the motion for a new trial.</p> <p>4. Evidence — Criminal Cause — Variance. The record in this case examined, and held, that the evidence is sufficient to establish the identity of the property alleged to have been stolen, and that there is no fatal variance betwen the allgations of ownership in the indictment and in the proof.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma Countyj before James R. Keaton, District Judge. Action by William M. Collier against E. Taylor and others on a promissory note. There was a judgment for plaintiff, and from an order overruling a motion to- set aside the judgment as to him, George W. Outcalt brings error. STATEMENT OF THE CASE.

Error from the Probate Court of Kay County; before Robert A. Neff, Probate Judge. Action by the Gille Hardware & Iron company against J. E. Cox. Judgment was entered on an order overruling defendant's demurrer to the petition, and he brings error.

<p>1. Contract — Conveyance of Lands — Specific Performance. A contract for the conveyance of lands, which a court of equity will specifically enforce, must be certain in its terms, and that certainty required has reference to both the description of the property and the estate to be conveyed; and, accordingly, wherever the property cannot be identified as the property described in the contract, specific performance will be denied.</p> <p>2. Action on Contract — Evidence. Where a sufficient description is given in the contract parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible; but the court will never receive parol evidence both to describe the land, and then to apply the description.</p> <p>3. Contract — Terms Construed. Under the terms of the contract sued upon in this case, which provides for a “bill of sale,” which shall apply to “one-half of all profits made in the handling of cattle, or any other business that I may engage in,” and under the circumstances in this case, this application should be restricted to such operations as Blackwell might have engaged in, in the Ind an Territory, and to apply to only such profits as were made at the time of the handling of cattle, or any other business which Blackwell should engage in by the use of $5,000 then borrowed from a bank at Coffeyville, and which furnish the occasion for the contract. His subsequent removal to Oklahoma some years afterwards, could not have been in contemplation at the time of the execution of the agreement, and his subsequent acquistions of property are not subject thereto.</p> <p>4. Unconscionable Contract — Rule Applied. The doctrine declared by the supreme court of the United States is that: “The difference between that degree of unfairness which will induce a court of equity to interfere actively by setting as'de a contract, and that which will induce a court to withhold its'aid, is well settled. It is said that the plaintiff must come into court with clean hands, and that a defendant may resist a bill for specific performance by showing that under the circumstances the plaintiff is not entitled to the relief hex asks. If the contract is unconscientious or unreasonable, or there has been any unfairness, the court will refuse its aid,” — and that: “ If to any unfairness a great inequality between the price and value be added, a court of chancery will not afford its aid.” These remarks are applicable to the circumstances of this case, and to the relief sought for here.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Greer County • before B. F,. Btcrwell, District Judge. William H. Sullivan was convicted of the larceny of one cow, and he brings error.

Error from the District Court of Woods County; before Jno. L. McAtee, District Judge. Action by W. E. Oxley against the board of county commissioners of Woods county. Judgment for plaintiff. Defendant brings error.

■Error from the District Court of Kay County; before A. C. C. Bierer, District Judge. C. W. Noyes and others, interpleaders, bring error from a judgment in favor of Kate Tootle and others. STATEMENT OP THE CASE. This case is presented upon a motion to dismiss the ■petition in error for the reason that there is no case-made, duly served, signed, and settled, attached thereto.

Error from the District Court of Kay County; before B. T. Hainer, District Judge. Action by Burnham, Hanna, Munger & Co. against Thomas J. Dickson. Judgment for plaintiffs, and the' Consolidated Steel & Wire company and the Wichita Plumbing & Pump company, judgment creditors, were cited to appear. Judgment for plaintiffs, and the judgment creditors bring error.

<p>U. Indictment — Assault to Commit Rape — Sufficiency. An indictment for assault with intent to commit the crime of rape should contain an averment that the female assaulted was not the wife of the person accused of the assault.</p> <p>2. Same — Necessary Allegations. An indictment for assault with intent to commit a felony should contain a sufficient charge of assault, and the essential acts constituting the particular felony which it is alleged was intended to be committed should be averred.</p> <p>:3. Rape — Age of Consent. In order to constitute a good charge of assault with intent to commit nape upon a female under the age of consent, the indictment must aver that she was of previous chaste and virtuous character.</p> <p>•4. Same — Force or Violence. .An indictment for assault with intent to commit rape by force should contain the averment that the defendant assaulted the female with the felonious intent to have sexual intercourse with her by force or violence sufficient to overcome any resistence she might make.</p> <p>(Syllabus by the Court.)</p>

<p>1. Forcible Entry — Statute Defined. Statutes 1893, sec. 2299, which reads, “ Every person guilty of using or procuring, encouraging or assisting another to use any force or violence in entering upon or detaining any lands or possessions of another,” etc., “ is guilty of a misdemeanor,” creates and defines two distinct offenses,— one for forcibly enter'ng upon or detaining lands of another, and the other for forcibly entering upon or detaining the possession of another. “ Lands,” as here used, implies title or ownership, while “ possession ” implies only possessory interests or rights.</p> <p>2. Information — Essential Elements. An information under said section which charges that the defendant “ did then and there unlawfully and wilfully use force and violence, and assist another, to-wit, John Walburn, to use force and violence, in entering upon the possessions of another, to-wit, David B. Ellington; that is to say, the said John Y. Foust did then and there unlawfully and w lfully use force and violence, and assist another, towit, the said John Walburn, to use force and violence, in entering upon, into, and tearing down a dwelling house then and there in the lawful, peaceful, and actual possession, occupancy, and control of the said David B. Ellington; the said entry and entering aforesaid possessions and tearing down said dwelling house as afoi esaid not having been made in a case and manner allowed by law,” — while somewhat inartistic and unnecessarily prolix, embraces all the essential elements of the crime charged, with sufficient certainty to withstand a demurrer and to support a judgment of conviction. “ Possessions of another,” a.s used in this statute, means the right to use, occupy, and enjoy the property to the exclusion of all others, — the mere possessory interest, — and does not imply any higher interest in lands.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Garfield County; before John L. McAtee, District Judge. Information against Perry B. Lincoln for selling unwholesome food. Verdict of guilty, and defendant brings error. STATEMENT OE THE CASE.

<p>1. New Trial — Must Affirmatively Appear. A new trial will not be granted upon the grounds of newly-discovered evidence unless it is made to affirmatively appear that the new evidence would be sufficient to probably change the verdict.</p> <p>2. Same — Cumulative Evidence — Not Sufficient. Newly-discovered evidence,, merely cumulative, is not sufficient ground for new trial.</p> <p>3. Same — Impeachment. A new trial will rarely be granted for the purpose of procuring evidence of impeachment.</p> <p>4. Same — Appeal—Bevieto. In the absence of the evidence upon which the verdict was rendered, this court cannot determine the question of the sufficiency of the newly-discovered evidence to affect the result, and will not reverse the action of the trial court overruling a motion for new trial based on newly-discovered evidence.</p> <p>5. Same — Absence of Party. A party to the action, who was present during a portion of the trial, and who is compelled, by reason of sickness in his family, to be absent during a portion of the trial, and who proceeds without objection or motion for continuance by reason of such enforced absence, will not be heard, after verdict, to urge such absence as ground for new trial.</p> <p>6. Motion for New Trial — Affidavits. Where a motion for new trial is made on the grounds of newly-discovered evidence, it is essential that the affidavits of the witnesses who will give the newly-discovered evidence should be produced, or their absence accounted for. As a general rule, the unsupported affidavit of the applicant or his attorney will not be sufficient.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Kingfisher Coimty; before John L. McAtee, District Judge.</p> <p>Action by David S. Huber against J. A. and C. C. ■Zimmerman. Judgment for defendants, and plaintiff brings error.</p>

Error from the District Court of Kay Countyj before B. T. Hamer, District Judge. Action by the Atchison, Topeka & Santa Fe Railroad company and the Southern Kansas Railway company, plaintiffs', against J. M. Haynes, county treasurer, and the board of county commissioners of Kay county, defendants, to enjoin the collection of certain taxes levied for the year 1897 for school purposes.

Error from the District Court of Cleveland County j 'before Jaimes R. Keaton, District Judge. . STATEMENT OF THE CASE.

Error from the District Court of Kingfisher County; before John L. McAtee, District Judge. STATEMENT OP THE CASE. This was an action commenced by J. J. Douglass company against Harding & Johnson, as partners, to recover on an account for liquors -sold to them. The case was begun in the justice’s court. Judgment rendered for the plaintiff, and an appeal taken to the district court. The only pleading filed was the bill of particulars filed by the plaintiff.

Error from the District Court of Cleveland County; before James B. Éeaton, District Judge. STATEMENT OP THE CASE. Th-fa is an action begun in the district court of Cleveland county April 8,1896, by the Fuller & Fuller company against the defendant, George P. Johnson, upon a judgment rendered in favor of the plaintiff and against the defendant in the United States court in and for the Indian Territory.

<p>1. Chattel Mortgage — Second Lienr — Rights of PdA'iies. A second mortgagee who accepts a second chattel mortgage which refers in express terms to the first chattel mortgage, and covers the same property, accepts the same with full knowledge of the rights of the first mortgagee. He is not a l)Ona fide purchaser or incumbrancer without notice, and cannot be heard to question the sufficiency of the description in the first mortgage.</p> <p>2. Promissory Note — Pleading—Proof. Where plaintiff founds his claim to the property in controversy upon a certain note and chattel mortgage, and gives a copy of said note and chattel mortgage in his original pleadings, and makes it a part thereof, and the defendant does not deny the execution of such note and mortgage by affidavit, it is not necessary for the plaintiff to prove the execution thereof or the amount due.</p> <p>3. New Trial — Motion^-Brror. Alleged error occurring in the trial, not raised in the trial court or set forth in the motion for a new trial, will not be considered for the first time in this court.</p> <p>(Syllabus by the Court.)</p>

Error from -the District Court of Nolle County; before A. C. C. Bierer, District Judge. Action by D. F. Huddleston against the board of commissioners of Noble county. Judgment for defendant, and plaintiff brings error.

Error from the Probate Court of Garfield County y before W. M. Anderson, Probate Judge. Action by Ed Bridges against D. R. Thomas-. From-a judgment sustaining a demurrer to the petition, plaintiff brings error.

<p>1.Courts — Appeal—Jurisdiction. Where an action is appealed from a justice of the peace or from the probate court, the .district court takes merely appellate jurisdiction, and no original jurisdiction, and can hear and determine the case only as a case within the jurisdiction of such court from which the appeal was taken. (Wagstaff v. Ohalliss, 1 Pac. 631, 31 Kan. 212, followed.)</p> <p>2.Appeal — Bond^-Motion to Dismiss — Waiver. Where a case is tried in the probate court, and judgment rendered for the plaintiff, and the defendant attempts to appeal, without giving an appeal bond, and, after the transcript of the proceedings in the probate court is filed in the district court, the plaintiff makes a timely motion to dismiss the appeal for the reason that no appeal bond was given to effectuate the appeal, and such motion is overruled, and the parties are required to go to trial, any appearance for the purpose of protecting his rights on the trial will not amount to a waiver of the giving of an appeal bond, or give the court the right to try and determine such cause.</p> <p>3.Appeal — Failure to Give Bond — Duty of District Court. It is the duty of the district court to dismiss an appeal from a justice’s court when no appeal bond has been given. The court has no power to permit the filing of a new bond except in cases where a defective or insufficient bond has been given.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma, County; before B. F. Burwell, District Judge. Action by tbe Hudson-Kimberly Publishing company against Frank E. Garton and wife. Judgment for plaintiff, and defendants bring error. STATEMENT OE THE CASE.

<p>1. Public Lands — Homestead Entry — Contest — Occupying Claimant. One who is in good faith contesting a homestead entry on the grounds of prior settlement, and residing upon the land in controversy, will be permitted to continue to occupy the land until such time as • the land department shall finally dispose of such contest, and determine which of the adverse cla'mants has the superior right to the land. The courts will then give effect to such decision by protecting the successful claimant in the exclusive possession of the land as against the defeated claimant.</p> <p>2. Same — Contest—Rights of Parties to Occupmicy. A contest to cancel a homestead entry upon the ground of abandonment is a contest for a preference right of entry after the existing entry has been canceled, and one contest'ng for a preference right is not entitled to reside upon or occupy any portion of the land in controversy, as against the entryman, unt 1 after he ' shall have procured the cancellation of the contested entry.</p> <p>3. Injunction — Homestead Contest — Remedy. A contestant for a preference right who attempts to occupy or reside upon the disputed tract against the will or without the consent of the entryman is a trespasser, and mandatory injunction is the proper remedy to restore possession to the entryman.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Canadim County; before John C. Tarsney, District Judge. STATEMENT OE THE CASE.

<p>1. Public Lands — Findings by Secretary of Interior — Review. The findings of the secretary of the interior in a contested lot case upon controverted questions of fact a-.e conclusive, and -will not be disturbed or reviewed by the courts.</p> <p>2. Same — Evidence—Presumption. In the absence of the evidence upon which the secretary based his findings in a lot contest case, the court will presume that there was legal, competent, and relevant evidence to support each finding, although there may have been incompetent evidence before the secretary.</p> <p>3.Same — Review—-Motion—notice. Notice of a motion for review of a decision of the secretary of the interior before that officer need not be -served on the attorney of record of the adverse party. Service of notice upon the party himself is sufficient.</p> <p>4.Public Lands — Proceedings Before Secretary. The proceedings before the secretary in matters pertaining to the disposal of the public lands are not void by reason of failure to give notice to interested parties. The secretary has power to determine all such matters on his own motion, and mere irregularities will not render such proceedings void.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Logan County; before Jno. H. Burford, District Judge. </p> <p>Action by Mack Mason against William Casey and Charles Casey. Judgment for plaintiff. Defendants bring error.</p>

.Error from the District Court of Beaver County; before Bayard T. Hainer, District Judge. Action by A. N. Cranmer and others- against J. C. Williamson, county treasurer, and others. Judgment for ■defendants, and plaintiffs- bring error.

<p> Error from the District Court of Kingfisher County; before John C. Tarsney, District Judge. </p> <p>Action by Edward F. Gould against Richard H. Wade. Judgment for plaintiff. Defendant brings error.</p> <p>STATEMENT OF THE CASE.</p> <p>This was an action in replevin begun in the probate court of Kingfisher county for the recovery of the possession of four cows, valued at $55. The petition upon which the case was tried averred that the plaintiff had tendered all charges and dues claimed by the' defendant upon the cattle for pasturage, and made a tender of the same into court, subject to its order. The value of the cattle was claimed together with $25 damages. The defendant answered generally, and, the matter having been presented to the probate court, it was appealed to the district court, where the plaintiff filed a supplemental petition, averring that there had been born to and was an increase of, the stock originally claimed in the plaintiff’s. petition, since the filing thereof, six calves, two of which were yearlings, and that all of them were a part of the original stock set forth in the petition, and that the increase was of the value of $60, together with $25 damages.</p> <p>The defendant demurred to the supplemental petition upon the grounds that (1) there were several causes of action improperly joined in the petition; and (2) that there was another action pending between the same parties in this court for the same cause, and that said action had been duly tried and determined-; and (3) because the petition did not state facts sufficient to constitute a cause of action.</p> <p>The demurrer was overruled, and thereupon the defendant answered, averring (1) a general denial; and (2) that there was a cause of action pending in this court on appeal from the probate court between the same parties, involving the same subject matter and that the said cause had been since that time- duly tried1 and determined.</p> <p>The case was tried to the judge of the district court, without a jury, and special findings of fact requested, which were made as follows: “That on or about the 1st day of April, 1896, the plaintiff placed in the defendant7» pasture, for keeping, four head of cattle mentioned in the supplemental petition, to be kept by the defendant and pastured for a consideration of 20 cents per head- per month; that in August of that year the defendant requested the plaintiff to remove his cattle -and take them out of that pasture, and that the plaintiff failed and neglected at that time so to do; that in .January, 1897, the plaintiff tendered in money to the defendant the full amount in which he was indebted to the defendant for the keeping of said cows, and demanded possession of the cows; that the defendant refused to accept such tender unless the plaintiff would consent to dismiss a certain cause of action then pending, in which the present plaintiff was plaintiff and the present defendant was defendant; that, of these four cows, two had calves in the spring of 1897, and all four produced calves in the spring of 1898; that all of said cattle (cows 'and calves) were in the possession of the defendant at the time of the filing of the supplemental petition in this case. The court finds that there was no other or further demand made for the possession of any of the stock in controversy, except that made in January, 1897; and on these findings of fact the court concludes, as matter of law, that the plaintiff was entitled to the immediate possession of the four head of cattle originally placed in the pasture of the defendant, at the time of the commencement of this suit, and that pending this action he has become entitled to the possession of the increase and product of these four cows, and is now entitled to the possession of ail of said property. The court finds the value of the property now detained by the defendant from the plaintiff fo be $163. The court finds that there is evidence establishing the fact that the use of said cows for the purpose of producing milk and butter while they have been detained was of the value of $54 over and above the reasonable cost of their keeping. The court finds as a matter of ■ law, that the defendant is not entitled to anything for keeping said cattle after his refusing to deliver them up after the tender of all due on them had been made. The judgment in this case will be that the plaintiff have and recover the possession of all the property specified in the petition and supplemental petition, and, if the possession thereof cannot be had, the sum of $163, their assessed value, and, in addition thereto, damages in the sum of $54, and the costs of this suit.” To which findings and conclusions the defendant excepted.</p>

<p>Appeal — Review—Case-Made. Where the case-made does not show that it contains all the evidence, it cannot be considered, thought the certificate of the trial judge contains a statement to that. effect.</p> <p>(Syllabus by the Court.)</p>

<p>•Claims Asainst Counties. This cause is affirmed on the authority of Ciarle & Courts v. Greer County, this volume, p. 425.</p> <p>(Syllabus by the Court.)</p>

Error from the Probate Court of Pmonee County; before James P. Neal, Probate Judge. Action by Charles E. Vandervoort against the board of commissioners of Pawnee county. Judgment for defendant, and plaintiff brings error.

Error from the Probate Court of Pawnee County; before James P. Neal, Probate Judge. Action by R. R. Poe against the board of commissioners of Pawnee county. Judgment for defendant. Plaintiff brings error.