also heard the evidence and sustained the ver- I dict. We have read the evidence, and find that it abundantly sustains the finding of the jury. It is true that the appellant produced in evidence a letter written by the appellee some time after the execution of the order in question, assigning another reason for his failure to comply with the contract; but the appellant's salesman who took the order thereafter called upon the appellee to collect the indebtedness, if any indebtedness existed under the contract, and the appellee then stated as a reason for not making the payment the reason assigned in the letter and the further reason that he was drunk. From this it appears that the appellant had notice of this defense before the commencement of this action, and he is therefore not prejudiced by the alleged "mending of his hold" by the appellee. The judgment of the court is affirmed.

GILE et al. v. WICKS et al. (Supreme Court of Kansas. Dec. 11, 1909.) Appeal from District Court, Sumner County; C. L. Swarts, Judge. Action by J. A. Gile and others against W. W. Wicks and others. Judgment for plaintiffs, and defendants appeal. Affirmed. James Lawrence and Levi Ferguson, for appellants. W. W. Schwinn, for appellees.

would have done no more than express what the parties in the Mollohan Case agreed upon, but omitted from the writing. It may be conceded the agreement not to contest, if a divorce suit followed, was void; but that was not the thing which induced the contract, or the consideration upon which the lawful stipulations depended, and it may be disregarded. If, however, the whole contract be treated as void, it was fully executed as to all subjects embraced in this controversy, and consequently, as in the Mollohan Case, will not be disturbed. There is no claim that the property arrangement effected according to the contract was unfair, unjust, or inequitable. Judgment affirmed.

STATE V. ROBB. (Supreme Court of Kansas. Nov. 6, 1909. Rehearing Denied Dec. 17, 1909.) Appeal from District Court, Franklin County; C. A. Smart, Judge. Proceeding by the State against Vincent C. Robb. From the manded. F. A. Waddle, for appellant. F. S. judgment, Robb appeals. Reversed and reJackson, Atty. Gen., and W. B. Pleasant, for the State.

PER CURIAM. The court is satisfied the judgment in this case ought to be reversed, but PER CURIAM. Only one cause of action it is in some doubt as to what indication should was stated, and that was for commission for be given the trial court respecting the future disposition of the case. It seems quite clear the sale of the mill under an employment by all disposition of the case. the defendants, who were, therefore, properly that the person holding the office of district made parties. The fact that only the owner of judge was the real subject of appellant's anthe mill signed the contract to convey it did not imadversion. Incidentally he gave expression destroy the liability of Wicks and Barber for to two or three sentences which might indicate the commission due their agents for making the a purpose to influence judicial action; but it sale. The contract bound the purchaser, and was impossible, under the circumstances, that that was sufficient, so far as the agents' were they should have any such effect. The disclaimer of intentional disrespect to or contempt of concerned. The letters objected to were com- the court, which appellant promptly and humpetent to prove the attitude of the purchaser, bly offered, could not, of course, relieve from for which plaintiffs were responsible. There is responsibility for improper language; but, readabundant evidence showing individual liability ing the information and the answer together, it on the part of Wicks and Barber, and this lia- is apparent that appellant was guilty of conbility is not affected by the fact that the corpo- tempt in a technical sense only, and the adminration's demurrer to the evidence was sustained. istration of justice will rarely, if ever, be impairNo objection was made to the abstract furnish-ed by technical contempts. The trial court's esed, or to the title it disclosed, and they cannot timate of the offense seems to have been affectbe questioned now. The court's instructions are not open to the criticism made upon them. motely, if at all, pertinent to the inquiry, and ed by a number of independent matters only reNo question of the legal meaning or effect of the contract was submitted to the jury. What- rather than sentence. The appellant ought to even then the case was deemed one for parole, ever the terms or character of the instrument, have been discharged, rather than paroled, and if the purchaser and Wicks and Barber intended thereby to effect the trade, the purpose of at most no more than a nominal fine, sufficient the agency was then and there accomplished, The judgment is one from which an appeal lies. to carry the costs, should have been imposed. and the commission for making the trade was Reversed and remanded. earned. Other claims of error are as unsubstantial as those noticed, and the judgment of the district court is affirmed. All the Justices concurring.

(Su

KISTLER v. HEARTBURG et al. preme Court of Kansas. Nov. 6, 1909.) Error from District Court, Shawnee County; A. W. Dana, Judge. Action between Betsey Kistler and Bertie M. Heartburg and others. From the judgment, Kistler brings error. Affirmed. J. J. Schenck and L. H. Greenwood, for plaintiff in error. J. B. Larimer and Matt Campbell, for defendants in error.

PER CURIAM. The decision of this case is controlled by the two opinions in the case of King v. Mollohan, 61 Kan., at pages 683 and 692, 60 Pac. 731. Separation agreements are not per se contrary to public policy, and neither fraud, collusion, nor improper purpose appears. On the contrary, the contract and agreed facts show a separation for cause contemplated as immediate, and immediately taking place. The matter of a divorce was merely a contingency, which might or might not arise. The real purpose was to adjust property and other rights, and not to facilitate a divorce. If an immediate

BENSON, J., not sitting.

WHITTEKIND et al. v. CHICAGO LUMBER CO. et al. (Supreme Court of Kansas. Dec. 11, 1909.) Appeal from District Court, Shawnee County; A. W. Dana, Judge. Action by W. J. Whittekind and others against the Chicago Lumber Company and others. Judgment for plaintiffs, and defendants appeal. Affirmed. James E. Larimer and F. H. Foster, for appellants. J. J. Schenck and W. E. Atchison, for appellees.

PER CURIAM. The question in this case is one of fact. Who owned the property in controversy, the husband or the wife? The facts and circumstances relied on by the defendant to prove ownership in the husband are not, either singly or considered together, conclusive as a matter of law. Each one is merely an item of evidence, with more or less probative force. This proof is met, first, by evidence explaining it and breaking its apparent effectiveness; and, second, by affirmative testimony, which, if believed by the trial court, established ownership in the wife. The court found for the wife. clearly this court cannot interfere. Judgment

STATE PUB. CO. v. STEARNS, Mayor, et al. (Supreme Court of Oklahoma. Nov. 9, 1909.) Application by the State Publishing Company for writ of mandamus against Frank P. Stearns, Mayor, and others. Writ denied. Freeling & Hood and W. W. Blakely, for plaintiff. P. O. Cassidy and W. S. Pendleton, for defendants.

Appeals of Oklahoma. Dec. 1, 1909.) Error DAVIS et al. v. STATE. (Criminal Court of from Seminole County Court; T. S. Cobb, Judge. Friday Davis and Isreal Davis were convicted of resisting an executive officer, and they bring error. Dismissed. Crump, Rogers & Harris, for plaintiffs in error.

PER CURIAM. The plaintiffs in error were tried and convicted for the offense of resisting an executive officer in the performance of his duty, and judgment rendered that they be confined in the county jail of Seminole county for 30 days and each pay a fine of $50, from which judgment they appealed to this court by filing with the clerk on October 23, 1909, their petition in error and case-made. On November 29th there was filed with the clerk of this court, on behalf of said plaintiffs in error, by their attorneys of record, a dismissal of said appeal. It is therefore ordered that said appeal be, and the same is, hereby dismissed, and the cause remanded to the county court of Seminole county.

quired by section 5610, Wilson's Rev. & Ann. St. 1903, and notice of said motion to dismiss having been served as required by rule 6 of the rules of this court (101 Pac. viii), and no appearance having been made to resist said motion, the court finds there is nothing in the record showing proof of service of notices that appellant appeals from the judgment as required by law. Upon the record before us, there is TURNER, J. On July 23, 1908, the State nothing which confers jurisdiction upon this Publishing Company filed in this court its orig-tion in error. There is no case in this court. court to review the errors set forth in the petiinal proceedings in mandamus. The petition For the reasons stated, the purported appeal is substantially states that it is a domestic corpo- dismissed, at the cost of plaintiff in error. ration engaged in the business of publishing, printing, and circulating a daily newspaper in the city of Shawnee, known as the "Daily Herald"; that defendants Frank P. Stearns and A. D. Martin are, respectively, mayor and city clerk of the city of Shawnee, a city of the first class under the laws of the state; that on May 12, 1908, said city, through its mayor and city council, pursuant to a resolution duly passed, entered into a contract with plaintiff and let and awarded it the printing of all ordinances, resolutions, and other things required of it by law to be published, for a stipulated price (and it filed a copy thereof as an exhibit to its petition), and that it had theretofore from time to time received from said city clerk all such matters for publication; that theretofore, to wit, at the city election in April, 1908, a board of freeholders was duly elected in said city, and afterwards prepared and submitted to the mayor thereof a charter in due and legal form, which he is about to publish as provided by law, and which he and said city clerk have refused and are refusing to deliver to plaintiff for publication as by the terms of said contract provided, and are attempting to deliver the same to another publication in said city, which is threatening to publish the same; that plaintiff is entitled to publish the same by virtue of its said contract, and that in order so to do it must receive the manuscript thereof on or before the 23d day, of July, 1908, for the reason that on the morning of the 24th said charter must be duly and regularly published as required by law-and prays this court to issue its peremptory writ of mandamus, requiring said defendant Frank P. Stearns, as mayor aforesaid, to deliver to it the manuscript or copy of said charter for publication as by said contract required. The answer in substance admits the allegations of the petition, except that the printing of the charter falls within the terms of said contract, which is denied, and, for reasons stated, avers that defendants are about to let said printing to another newspaper published in Shawnee at a cost of $300, as to publish the same in plaintiff's newspaper would cost said city the sum of $2,186, if done according to the terms of said contract, and asked to be discharged etc. On the author ity of Homesteaders v. McCombs (recently decided by this court, but not yet officially reported) 103 Pac. 691, this case should be, and it is accordingly, dismissed. All the Justices con

cur.

ADAMS v. STATE. (Criminal Court of Appeals of Oklahoma. Nov. 22, 1909.) Appeal from District Court, Latimer County; Malcolm E. Rosser, Judge. Willie Adams was convicted of larceny, and sentenced to two years' imprisonment in state prison. His petition in error and case-made was filed in the Supreme Court on August 7, 1908, and was by the Supreme Court transferred to this court as provided by law. Dismissed. Charles L. Moore, Asst. Atty. Gen., for the State.

PER CURIAM. Motion having been filed in the above-entitled cause to dismiss the appeal, on the grounds that notices to the county attor ney of said county and the clerk of the district court that the defendant appeals from the judg

HAST V. TERRITORY. (Criminal Court of Appeals of Oklahoma. Nov. 18, 1909.) Appeal from District Court, Pottawatomie County; B. F. Burwell, Judge. Charles H. Hast was convicted of crime, and appeals. Dismissed. Chas. West, Atty. Gen., and Chas. L. Moore, Asst. Atty. Gen., for the State.

this court show that on April 20, 1904, a petiPER CURIAM. The records of the clerk of tion in error, with case-made attached, in the above-entitled cause, was filed in the Supreme Court of the territory of Oklahoma, and that upon the admission of Oklahoma as a state said cause was transferred to the Supreme Court of the state of Oklahoma. Upon the organization of the Criminal Court of Appeals, as directed by statute, the Supreme Court transferred said cause to this court; but no record, petition in error, case-made, or briefs have ever been transferred to this court. No appearance has ever been made in this court on behalf of plaintiff in error, although said cause has been assigned and continued from term to term since the organization of this court. It appearing that plaintiff in error has abandoned his appeal, for the reasons stated, the appeal is, on the motion of Assistant Attorney General Charles L. Moore, dismissed for want of prosecution, with direction to the district court of Pottawatomie county to cause the judgment and sentence to be carried into execution.

INSKEEP v. STATE. (Criminal Court of Appeals of Oklahoma. Nov. 27, 1909.) Appeal from Creek County Court; John Caruthers, Judge. Application of Joseph Inskeep for writ of habeas corpus. Writ denied, and petitioner brings error to the Supreme Court. Case transferred to Criminal Court of Appeals. Case stricken from the docket. Charles West, Atty. Gen., and Charles L. Moore, Asst. Atty. Gen., for respondent.

PER CURIAM. Appellant, Joseph Inskeep,

The writ | county, with direction to the district court of said county to proceed in accordance with the views of this court as expressed in said opinion. For this reason, the application for a writ of habeas corpus is denied.

END OF CASES IN VOL. 105.

INDEX-DIGEST.

ABANDONMENT.

Of particular species of property or rights.
See Highways, § 72.

Mining location, see Mines and Minerals, § 24.
Right to use of water, see Waters and Water
Courses, $151.

Of remedies or proceedings.

Rights as to construction of subway by street
railroad, see Street Railroads, § 34.

Rights in streets in cities, see Municipal Cor-
porations, §§ 646-705.

ACCEPTANCE.

Of dedication, see Dedication, § 19.

Of goods sold in general, see Sales, §§ 156-181.

Dismissal of suit for divorce upon refusal to Of offer of judgment, see Judgment, § 81. offer testimony, see Divorce, § 1392.

ABATEMENT AND REVIVAL.

Election of remedy, see Election of Remedies. Judgment as bar to another action, see Judgment, $$ 570, 631.

Right of action by or against personal representative, see Executors and Administrators, §§ 431, 447.

ABETTORS.

Of option for purchase or sale of realty, see
Vendor and Purchaser, § 44.

Of premiums after default in payment, see In-
surance, § 392.

Of trust by cestui que trust, see Trusts, § 39.

ACCESSION.

Annexation of personal to real property, see
Fixtures.

ACCESSORIES.

Criminal responsibility, see Criminal Law, § 59. Criminal responsibility, see Criminal Law, § 59.

ABORTION.

Surplusage in indictment, see Indictment and
Information, § 119.
Testimony of accomplices, who are accomplices
within rules relating to corroboration, see
Criminal Law, § 507.

§ 1. To "advise" and "procure" a pregnant woman to use an instrument with intent to cause her miscarriage, held to be a use thereof, under Snyder's Comp. Laws 1909, § 2045 (Wilson's Rev. & Ann. St. 1903, § 1948), in violation of Snyder's Comp. Laws 1909, § 2370 (Wilson's Rev. & Ann. St. 1903, § 2268).Greenwood v. State (Okl. Cr. App.) 371.

ABSENCE.

Suspension of running of statute of limitation, see Limitation of Actions, § 84.

ABSOLUTE DEED.

As mortgage, see Mortgages, § 32.

ABSTRACTS.

Of record on appeal or writ of error, see Appeal and Error, §§ 581, 590.

ABSTRACTS OF TITLE.

§ 3. Petition, in action on the bond of abstract makers, held not to show that plaintiff sustained actual injury by the negligence of the abstract maker.-Walker v. Bowman (Okl.) 649.

ABUTTING OWNERS.

Assessments for expenses of public improvements, see Municipal Corporations, §§ 410523.

Compensation for taking of or injury to lands or easements for public use, see Eminent Domain, §§ 134-158, 266-303.

ACCOMPLICES.

Criminal responsibilty, see Criminal Law, § 59.
Testimony, see Criminal Law, § 507.

ACCOUNT.

Accounting by guardian of infant, see Guard-
ian and Ward, §§ 137-146.

ACKNOWLEDGMENT.

Of indebtedness barred by limitation, see Lim-
itation of Actions, §§ 142-164.

Operation and effect of admissions as evidence,
see Criminal Law, §§ 406-420; Evidence, §§
222, 226.

Operation and effect of admissions as ground
of estoppel, see Estoppel, §§ 78-92.

III. OPERATION AND EFFECT.

$ 55. An officer's certificate of acknowledgment is only prima facie evidence of the execution of the instrument, and may be impeached by parol.-People's Gas Co. v. Fletcher (Kan.) 34.

IV. PLEADING AND EVIDENCE.

§ 62. Where parties have appeared and signed an instrument, and afterwards attempt to contradict the certificate of acknowledgment, the evidence must be clear and convincing.-People's Gas Co. v. Fletcher (Kan.) 34.

§ 62. Evidence of parties that they neither signed nor acknowledged an instrument is entitled to as much weight as that of any other interested witness.-People's Gas Co. v. Fletcher (Kan.) 34.

ACTION.

Bar by former adjudication, see Judgment, §§
570, 631.
Commencement within period of limitation, see
Limitation of Actions, § 127.

For cases in Dec. Dig. & Amer. Digs. 1907 to date & Indexes see same topic & section (§) NUMBER