the tippling laws the people of the town j joined in an effort to have the remainder of his sentence remitted, and succeeded in accomplishing this purpose, and he was thereupon released; that soon after he was thus released he began to make preparations to evade the spirit of the law while complying with its letter; that to this end he bought a few acres of land in the western part of Erin, and erected some very cheap tenement houses thereon,-some of them not costing more than $25 or $30,-and soon thereafter made conveyances of these improved lots to his tenants and others, and in some instances without any consideration, and solely for the purpose of securing the requisite number of freeholders to apply for "a charter of incorporation for his small possessions, and such others adjoining this as he could persuade to co-operate with him." The bill further alleges that the town of Erin is located on the line of the Louisville & Nashville Railroad, in a deep, narrow valley, with very abrupt and high hills on either side, so that suitable building lots are scarce, and therefore the town has grown westward along the railroad in the valley until it has reached the Miller farm, about three-fourths of a mile distant from the court house, and that here its extension has stopped because the Miller land is not for sale; that the principal street in the town is Market street, extending from the court house westward to the Miller farm; that it is south of this street, and east of the Miller farm, and between that farm and the court house, that the few acres of land contracted for by the defendant Frost are located. At this part of the bill a diagram is exhibited which shows the relation of the proposed new town to the old one. This diagram is made part of this opinion, and is as follows:

It is alleged that that part of the diagram marked "Midway," and inclosed in heavy black lines, includes the Frost possessions; that the black stars show the number and location of residences in the west half of Erin, and also within the lines describing Midway.

It is further alleged that as soon as defendant Frost secured some 12 or 15 cheap residences on his premises, and the consent of a few adjoining freeholders, he and his co-defendants in this cause "connived and conspired to apply for a charter for what is called the "Town of Midway'"; that they are now preparing to hold an election and organize a city government, and, unless restrained, will at once do so, for no other purpose than to authorize the sale of intoxicating liquors where it is now prohibited by the four-mile law; that this effort is being made under and by virtue of the statute (Shannon's Code, 1881) which provides that "any part of a county, not included in a municipality, may be incorporated as herein provided"; that the statute then provides (section 1882) that any number of legal voters over 14, being freeholders and residing within such territory, may apply for the charter; that the letter of this statute is not necessarily its spirit; that its purpose was not to enable a few persons, and only a small portion of the town, to secure a charter of incorporation, because the next section (1883) provides for a list of qualified voters to be prepared in alphabetical order and filed, and that not less than 30 lines must be left after each letter in the alphabet for the addition of other names of voters; that, notwithstanding this provision of the statute, defendant Frost and his codefendants, 22 in number, "have agreed and conspired together to evade the manifest meaning of the statute, by complying with its

The stars (*) indicate residences.

letter, which is a fraud on the law." It is further charged: "That the spirit and object of the four-mile law, which prohibits the sale of intoxicating liquors within four miles of any school, unless within an incorporated town, and under proper police regulations, is to protect public morals, and especially that of the youths of school age, while their characters are in a state of formation. That both the white and colored schools of Erin are located within 150 yards of the lines of said proposed town of Midway, as shown by the diagram; the white school being located at A, and the colored at B. That saloons in Midway would be almost at the doors of the school houses, and would be a menace to the morals of these schools, and a public nuisance, unless properly controlled and held in check by adequate city government, and that no such government or police regulation is possible for said Midway, for the following reasons: The man possessing the greatest amount of means in the town of Midway is defendant H. C. Frost, whose entire property is assessed for taxation for 1897 at $600. That some of the lots and houses of the other so-called freeholders are assessed as low as $50, and the entire assessed valuation of the proposed town for 1897, as shown by the assessor's book, is about $2,100. From this the court can see that it is utterly impossible to raise sufficient revenue to keep up a city government. That the salary of one night or day policeman alone, at the very low figure of $1 per day, would require about $18 taxes on the $100 worth of property, as shown above. That such taxes would amount to confiscation of this property, and this shows how utterly farcical this entire town scheme is. By inspecting the diagram the court can see that the lines of Midway exclude a number of residences immediately along the line of the proposed town, and that in crossing Market street such lines actually cut off from Erin a number of residences actually further removed from the court house or center of Erin than Midway itself. This was done, as orator is informed, believes, and charges, to secure only such persons within the lines of Midway as are favorable to the scheme. Your orator charges that this whole town scheme is a miserable pretense, a fraud upon the statute, and an attempt to create a public nuisance under color of law, and an attempt to force upon a long-suffering community the open saloon, which the people have repeatedly declared shall not destroy their schools, and is a menace against public morals and all that is good and pure. Your orator shows that the statute provides that, when once granted, such charter of incorporation shall not be collaterally attacked; that the legal remedies against this proposed wrong are wholly inadequate, and, even if such legal remedies were adequate, your honor can see, from the number of indictments required to stop defendant Frost from violating the tippling laws, how protracted and harassing such

litigation would likely become, and that, unless restrained by the court, defendants will secure a charter, and will sell liquors in violation of the spirit of the law, if not the letter, to the great and irreparable damage of the schools and community aforesaid. Your orator is a member of the board of publicschool directors, and as such presents this bill pro bono publico, and especially on behalf of the schools aforesaid, as well as in his own behalf." The prayer of the bill is for an injunction to restrain the defendant from securing a charter of incorporation in the proposed town of Midway, and from organizing a city government thereunder, and from selling intoxicating liquors by reason of any such incorporation, and that on final hearing the injunction be made perpetual.

We have thus given the bill substantially in its entirety, with all of its arguments, reasonings, and forecasts. A demurrer, however, only admits the facts charged in the bill. The facts as stated in the bill are, substantially, that the town of Erin was formerly incorporated, but is now unincorporated, having surrendered its charter, and is composed of a collection of houses used as homes and for business by about 1,200 or 1,500 people, and has schools and churches; that the defendants, 22 in number, have taken the steps required by the statute preliminary to the organization of an incorporated town, to be called "Midway," immediately adjoining the unincorporated town of Erin on the south and southwest, and are about to take such other steps as the statute requires to complete said town scheme, by procuring a charter and organizing; that, if permitted to continue under the statute, such town will be chartered and organized, and it will be lawful to sell intoxicating liquors therein, although there are schools within 150 yards of the lines of said proposed incorporation, and outside of said lines; that the property of all the people composing the proposed new town does not exceed $2,100, and that it will be very expensive for the people of said new town to pay the necessary officials in order to insure an efficient government; that the promoter of the town, defendant Frost, was indicted 15 times in the town of Erin for selling intoxicating liquors in violation of the law, and was convicted, sentenced to jail for 60 days, released at the expiration of 30 days upon application of the citizens of Erin on his promise of future good behavior, and that he thereupon started this new town scheme in the immediate vicinity of the old unincorporated town of Erin, where he had been so punished for unlawful tippling; that complainant is a citizen of Erin and a member of the school board. The demurrer is as follows: (1) That there is no equity in the bill; (2) that the bill does not show that complainant has any legal interest or right in the proposed corporation of Midway, and has no right to file a bill in this cause; (3) because complainant's bill seeks to have a statute legally passed by the

legislature of the state of Tennessee practically repealed by the judicial department of the state; (4) that the bill fails to allege that complainant is a resident or freeholder of any part of the proposed municipal corporation, and shows no right in the complainant to interfere with the management of the affairs within said proposed corporate limit.

Shannon's Code, § 1881, provides that any part of a county not included within any municipality may be incorporated by following certain directions laid down in subsequent sections. The next section provides that any number of legal voters over 14, being freeholders and residing within such territory, may apply for a charter. The next section provides that before making application the persons intending to apply shall, in a good, substantial blank book, make or cause to be made a full and correct alphabetical list of the names of all persons, whether residing within the boundaries of the proposed incorporation or not, who at the time of making said list would be qualified voters in municipal elections in the proposed incorporation, were the same then incorporated, and shall leave sufficient space in said list, in no case less than 30 lines, after the last name in each letter of the alphabet, for the addition of other names. The next section provides that when this list is completed it shall be verified as a full, correct, and complete list by the affidavit of at least three of the persons intending to apply for the charter, that they verily believe it to be such, taken before any official authorized by law to administer oaths in Tennessee. The subsequent sections provide for the custody of the list, the marking of the date of its filing thereon, notice of the application, the entering of omitted names, the correction of errors, the delivering of the list to the officer holding the election, the election itself, the form of the ballots, the certificate of the officer holding the election, the certification of the returns to the secretary of state, his certificate of incorporation, the registration of the certificate and the application; and the closing sections provide that upon all these things being done properly, in accordance with the directions of the statute, the petitioners and their successors, and all others residing within the limits prescribed, shall be incorporated, and be invested with all the rights incident to other municipal corporations provided for in the Code. Upon the prescribed number of persons applying for a municipal charter, and complying with the provisions of the statute, they are entitled, as a matter of law, under the legislative enactment, to a charter, and to exercise all the rights vested by law in municipal corporations provided for in the Code. have no power to prevent these people from taking advantage of a statute which the legislature has passed. The fact that the motive of the defendants for procuring a charter is that they may have a town wherein they can sell intoxicating liquors does not alter the 53 S.W.-21

We

matter. This is one of the many rights which are possessed by municipalities in this state. The point is that when the requisite number of legal voters apply for a municipal charter, and comply with the requirements of law for the procurement of such charter, they have a legal right to it, and the courts cannot deprive them, without usurpation. The case made in the bill, from a moral and social standpoint, is a hard one, it is true. After the long-continued and strenuous efforts made by the citizens of Erin, as charged in the bill, to relieve themselves of the evils attending the open saloon, and finally surrendering their charter in order to escape the saloon, to be thus met and practically defeated by the creation of a municipal corporation immediately adjoining the old town presents necessarily what must be to the citizens of Erin a vexatious, not to say distressful, situation. But, as stated, the court is unable to furnish any relief; being bound to administer the law as it is found upon the statute books, and having no power to make laws. The result is, the decree of the chancellor must be reversed, the demurrers sustained, and the bill dismissed. The complainant will pay the costs of this court and of the court below. All the judges concur.

Affirmed orally by supreme court, March 15, 1899.

SHEAR et al. v. MCALESTER. (Court of Appeals of Indian Territory. Oct. 26, 1899.)

APPEAL RECORD-INSTRUCTIONS-PRESUMPTION-TROVER-DEFENSE BY MARSHAL -EVIDENCE-SALE BY RECEIVER.

1. Where the entire charge is not in the record, it will be presumed that the court below properly instructed the jury on the law applicable to the facts.

2. In an action for conversion against an officer for taking, under a levy of attachment against a third person, property claimed by plaintiff, it appeared that after said levy of attachment the same property was levied on under an execution issued on a judgment for rent against said third person, rendered prior to such levy of attachment; that a receiver was appointed, who, by order of the court, sold the property, and applied all the proceeds to the satisfaction of said judgment. Held, that the record of the judgment for rent and the order appointing the receiver were admissible, as the officer could not be held for conversion of property which the court took from his possession, and sold through its receiver.

Appeal from the United States court for the Northern district of the Indian Territory; before Justice W. M. Springer, October 9, 1897.

Action by H. A. and N. L. Shear against J. J. McAlester for conversion. There was a judgment for defendant, and plaintiffs appeal. Affirmed.

On March 5, 1891, complaint was filed in this action by plaintiffs below, appellants here, against the defendant below, appellee here, alleging that on the day of Sep

tember, 1893, they were lawfully possessed of certain personal property of the aggregate value of $3,865, which was then, and has ever since been, the property of plaintiffs; that on said day the defendant forcibly, wrongfully, and unlawfully seized upon said property, and took it forcibly, wrongfully, and unlawfully out of plaintiffs' possession, and converted it to his own use, to the damage of plaintiffs $4,000. On May 3, 1894, defendant filed his answer, and denied that plaintiffs were lawfully possessed of the property described in their complaint on the day of September, 1893, and that it was the property of plaintiffs; denied that he wrongfully and unlawfully and forcibly took said property out of plaintiffs' possession, and converted same to his own use, and denied it was of the value alleged by plaintiffs; and for further defense defendant says plaintiffs ought not to recover herein, "because the property for which he sues was sold by J. L. Blevins, receiver, under order of this court, to satisfy a landlord's judgment in favor of Jno. W. and Jas. Young vs. Geo. Shear, which was prior in right to the attachment issued in favor of F. M. Crowell vs. Geo. Shear, and the sale so made exhausted the property levied on by attachment." Case was tried to a jury, and verdict for defendant. Judgment upon the verdict. Plaintiffs moved for new trial, which was overruled by the court, and plaintiffs appealed to this court.

Maxey, Clayton & Martin, Marcum & Owen, and Earl Edmondson, for appellants. Stuart, Lewis & Gordon, for appellee.

TOWNSEND, J. (after stating the facts). The appellants here, plaintiffs below, have filed six specifications of error, all objecting to either the admissibility of certain evidence, or the charge of the court to the jury; but they have failed to preserve in their bill of exceptions or elsewhere in the transcript of the record the entire charge of the court. In fact only a brief extract from the charge, and on one proposition only, is brought to this court. The rule is well settled that, unless the entire charge of the court is preserv ed in the record, it will be presumed that the court below properly instructed the jury upon the law applicable to the facts. Neither counsel for appellants nor for appellee have deemed it necessary to furnish in their briefs any citation of authorities, both insisting the questions presented are so plain that argument is substantially unnecessary, and the citation of authorities wholly useless. It appears that prior to the levy of the attachment complained of, on September 12, 1893, in the case of Crowell against George Shear, there had been a judgment rendered against said George Shear at the suit of James L. Young for the possession of lands on which the property attached was located, and for $500 for rents, and costs of suit. This Young judgment was rendered on August 24, 1893,

and on October 27, 1893, execution having been issued on the Young judgment, levy was made on the identical property attached in the Crowell case. On December 21, 1893, Young, the judgment creditor, intervened in the Crowell case, and, upon a showing satisfactory to the court, obtained the appointment of a receiver to take charge of the property which had been attached in the Crowell case, and levied upon under the execution in the Young judgment; and subsequently the court ordered the receiver to sell the property thus impounded, and apply the proceeds, in the first instance, to the payment and satisfaction of the Young judgment; the court being of the opinion that the Young judgment, being for rents under a landlord's lien, was prior in time and right to the attachment in the Crowell case. The proceeds of the sale of the property were absorbed in the satisfaction of the Young judgment, and Crowell, the attaching creditor, received no benefit from his attachment. No evidence was given of any injury to the property between the date of the attachment and the levy of the execution. The appellants, who were the sons of George Shear, the defendant in the Crowell attachment and the Young judgment, did not see fit to assert their rights, if any they had, in the proceeding subjecting the property to the sale and satisfaction of the Young judgment, but insist that the admission of the record of the Young judgment and the order appointing the receiver was error on the trial of this cause. We cannot concur in this view, and are of the opinion that the appellants should have asserted their rights in the proceeding that resulted in the sale of their property by order of the court for the satisfaction of the Young judgment. It would be manifestly unjust to hold the marshal for conversion of property which the court took from his possession, and sold through its receiver, another officer of the court. This case was submitted to a jury under instructions which, under the condition of this record. must be presumed to have been correct, and the verdict was for the defendant, which was confirmed by the judgment of the court, and we are of the opinion that said judgment should not be disturbed, and it is therefore affirmed.

CLAYTON and THOMAS, JJ., concur.

HARRIS v. BRUTON et al. (Court of Appeals of Indian Territory. Oct. 26. 1899.)

APPEAL RECORD-MOTION FOR NEW TRIAL

SUFFICIENCY.

1. Where the grounds upon which a party relies for reversing a judgment can only be presented for review by a bill of exceptions, and the record shows that no motion for new trial was made in the court below, the appeal will be dismissed.

2. A motion to set aside an order withdrawing a cause from the jury, and dismissing the case.

which fails to state the grounds for such motion, is in no sense a motion for a "new trial," under Mansf. Dig. §§ 5151, 5154 (Ind. T. Ann. St. 1899, $$ 3356, 3359), specifying the causes for granting a new trial, and requiring that written grounds for the motion must be filed when it is made.

Appeal from the United States court for the Northern district of the Indian Territory; before Justice John R. Thomas, September 29, 1898.

Action by Charles Harris against Wilson O. Bruton and others. From a judgment directing a nonsuit, plaintiff appeals. Appeal dismissed.

This is an action of ejectment to obtain possession of a certain improvement situated in the Cherokee Nation. The complaint is in the ordinary form of an action in ejectment. The property is described, and the chain of title stated. No exceptions are filed to any of the exhibits or evidences of title, but separate answers of the defendants are filed, putting in issue the material allegations of the complaint so far as ownership is concerned. At the close of the testimony in the case, counsel for defendants moved the court to direct the jury to return a verdict in their favor, for the reason, as alleged, that the plaintiff had shown no right to recover. Thereupon the court, after argument, submitted the following statement, and on his own motion dismissed the case: "This case develops a state of affairs which one would scarcely expect to exist, even in the Indian Territory, at this age and generation. Whether knowingly or unknowingly, it is very clear that Dr. Harris has either intentionally or unintentionally allowed himself to deprive the Cherokee Nation of the Indian Territory of property. A sale must be made by parties to a contract for a valuable consideration, and with reference to something that they have a right to convey or sell. This land belonged to the Cherokee Nation, but there was a small improvement there, and that had been made and owned by a Cherokee citizen. That Cherokee citizen, under the law, had a right to sell that improvement to a Cherokee citizen, for a valuable consideration, and to put him into possession of it; but the evidence in this case shows that this property was not conveyed to Dr. Harris, but was conveyed to Bailey, which is a violation of the Cherokee law; the deed or bill of sale being used simply as a cloak to cover a legal fraud. Dr. Harris paid nothing for it. There was no valuable consideration, and therefore there was nothing passed under that sale. The deed does not pass for title from party to party, even where the titles are allodial. The deed is simply the evidence of the passing of title by parties capable of contracting for valuable consideration,-simply evidence; and, for a greater security and safety, in most states these deeds are required to be recorded for two purposes: First, to give notice to the world; and, second, to preserve

their contents from destruction, so that they may stand as a monument of evidence to the transaction. Therefore there was no title passed to Dr. Harris by this bill of sale, Bailey going into the possession of this place by his own right, and by virtue of a contract in violation of the Cherokee law, which, therefore, could not be carried out by law. And the last transaction, made with eyes open, by a lawyer, in open violation of law, and in fraud of the Cherokee Nation, is so outrageous a piece of business that this court will overrule the motion to direct a verdict, withdraw a juror of his own motion, and dismiss the case." To which ruling of the court in withdrawing a juror and dismissing the case the plaintiff excepted. On the same day-September 29, 1898-the plaintiff filed what is called in the record "his motion for a new trial," which is in words and figures as follows, to wit: "Comes the plaintiff, and moves the court to set aside the order or judgment of the court herein withdrawing said case from the jury and dismissing said case." This is signed by attorneys for plaintiff. The record further states: "Motion for new trial is overruled by the court, and the plaintiff excepts." On the 30th day of September plaintiff prayed an appeal to the court of appeals for the Indian Territory from the judgment of the court and the ruling thereof in withdrawing the case from the jury, which was granted, and a bill of exceptions was tendered within the time allowed, and the case brought to this court on appeal.

J. P. Buster and John H. Pitchford, for appellant. Hutchings & West, for appellees.

SPRINGER, C. J. (after stating the facts). The appellees in this case file in this court a motion to dismiss the appeal for the reasons stated below: "First, because the printed record fails to comply with rule 9 of this court; second, because appellant's brief fails to comply with rule 10 of this court, as to size and style, and character of type; third, because the brief of appellant fails to comply with section 2 of rule 10 in failing to contain any specification of errors; fourth, because the record shows that no motion for a new trial was made or passed on in the court below."

While the grounds for dismissal stated in this motion as 1, 2, and 3 are technically well taken, the court would not be disposed to dismiss the appeal on this ground solely, for the reason that the appellant might be required by an order of the court to comply strictly with the rules. The fourth ground for dismissal is, however, free from any technical objection. In order that the errors, if any, which occurred in the court below in this case, could be reviewed by the appellate court, it was necessary that a motion for a new trial should be made, and overruled by the court. Whenever it is desired to present