CARRIERS-Continued.

cover from such carrier the moneys so paid. --Idem, 64.

8. Carriage of Live Stock-Negligence-Dipping Cattle.

"Dipping" cattle by a railway company in compliance with quarantine regulations established by law is a part of the service required by the shipping contract, and the question of negligence in the performance of this service must be measured by the terms of that contract.-Missouri, K. & T. R. Co. v. Skinner,

189.

9. Same-Actions for Injuries—Admissibility of Evidence.

In an action for damages against a railway company for negligence in failing to water cattle before dipping them, in compliance with established quarantine regulations-although the plaintiff contends that the contract for dipping was an independent, oral contract-the exclusion of the shipping contract, when offered in evidence in support of the allegation of the answer setting up such contract as a defense to the action, is prejudicial error.-Idem, 189.

CASE-MADE-See "Appeal and Error," 5, 11-20; "New Trial," 6. CATTLE See "Animals."

CHAMPERTY AND MAINTENANCE:

1. Conveyance of Lands Held AdverselyStatutes.

Rev. Laws 1910, sec. 2260, relating to the buying or selling of pretended titles to lands adversely held but not in suit, does not prohibit the exercise of a statutory authority or a conveyance which equity would compel.Warner v. Wickizer, 200.

2. Same-Conveyance by Corporation Required by Law-Validity.

Where a corporation was organized in Indian Territory to deal in realty, and a continuance of its functions is in violation of the Constitution and statutes of the state, a conveyance of realty, when made in good faith for the purpose of dissolution, is not void as to an adverse holder.-Idem, 200.

CHATTEL MORTGAGES-See "Estoppel"; "Replevin."

1. Rights of Parties-Sale by Mortgagee— Indian Territory Law.

Under the laws of the state of Arkansas. in force in Indian Territory prior to statehood, a chattel mortgage conveyed title to the mortgagee, subject only to the mortgagor's right of redemption, and under such law a mortgagee, on condition broken, had the right, pursuant to the terms of the mortgage, to sell the mortgaged property, although the property was at the time in adverse possession of another.-Continental Gin Co. v. Pannell, 102. 2. Same-Action for Possession-Right of Action.

After such sale of mortgaged property by a mortgagee out of possession, such mortga

CHATTEL MORTGAGES-Continued.

gee or the purchaser at the mortgage sale was entitled to recover possession of such prop erty by appropriate action, the mortgagee to deliver possession to the purchaser, or the purchaser in his own right.-Idem, 102. 3. Release of Mortgage-Statutory Provision.

Section 4408, Comp. Laws 1909, providing a forfeiture of $100 for the failure to release a mortgage which has been satisfied, deals exclusively with recorded mortgages, and does not apply to chattel mortgages, which are by law merely required to be filed.Farmers' State Bank of Glencoe v. Harris, 62. CITIES-See "Municipal Corporations."

CONTEMPT-See "Depositions"; "Divorce." 1. Appeal-Reserving Exceptions.

Whether trial court asked questions indicating opinion as to guilt of defendant charged with contempt is not reviewable where no objection or exception was taken to the questions.-Fowler v. Fowler, 280.

2. Same-Argument of Counsel-Prejudice.

On attachment for contempt in disobeying order to pay alimony, remark of counsel that defendant got married and promised before God and man to support his wife, and "he has this little child whose duty it is to support," is not ground for reversal.-Idem, 280. CONTRACTS-See "Alteration of Instruments"; "Assignments": "Bailments"; "Banks and Banking"; "Bills and Notes": "Brokers"; "Champerty and Maintenance"; "Chattel Mortgages"; "Counties"; "Evidence"; "Exemptions"; "Fraud"; "Frauds, Statute Of"; "Guaranty"; "Indians"; "Insurance"; "Landlord and Tenant"; "Logs and Logging"; "Municipal Corporations,' 1; "Principal and Agent"; "Release"; "Sales"; "Usury."

1. Fraud Scope of Evidence.

Where a written instrument is attacked for fraud, all the circumstances leading up to its execution, as well as the motives of the maker, may be shown.-Thompson v. Vaught, 195.

2. Construction-Conditional Liability.

Under a contract for execution of a note by

CONTRACTS-Continued.

insured to defendant for the amount of a premium and payment of a sum named by defendant to plaintiff on payment of the note, defendant does not become liable until payment of the note.-Leeper Bros. Lumber Co. v. Gunter, 122.

3. Grounds for Rescission-Lack of Funds.

The party to contract did not have funds to make payments required is not alone sufficient to authorize rescission by other party.Clements v. Jackson County Oil & Gas Co., 247.

4. Same.

That a party has no funds or property to make payment or secure money to make payments under contract is a failure of consideration, authorizing the other party to rescind and refuse to perform, under Rev. Laws 1910, sec. 984, par. 4.-Idem, 247.

5. Performance-Tender-Waiver.

When tender of performance of an act is necessary, it is waived or becomes unnecessary when it is reasonably certain that the offer will be refused.-Rawlings v. Ufer, 299. 6. Performance-Impossibility.

To bring a contract within the rule of impossibility of performance, it must appear that the thing to be done cannot by any means be accomplished.-Clements v. Jackson County Oil & Gas Co., 247.

7. Action for Breach-Excuse for Non-Performance-Evidence.

In an action for breach of contract, it is not error to exclude testimony for defendant which does not tend to show his right to rescind or impossibility of performance, but merely that performance was more expensive or more difficult.-Morrison v. W. L. Green Commission Co., 287.

CONTRIBUTORY NEGLIGENCE-See "Ap peal and Error," 50; "Carriers," 5; "Negligence," 7.

CORPORATIONS-See "Banks and Banking"; "Carriers"; "Champerty and Main tenance"; "Fraud," 8, 10; "Gas"; "Master and Servant"; "Municipal Corporations"; "Railroads"; "Taxation.”

1. Stockholders-Liability.

Under Const. art. 9, sec. 39, the liability of one accepting corporate stock as an original shareholder for its par value to pay in full for the same is not discharged, at least so far as the corporate creditors are concerned, by transfer to an innocent holder.-Chilson v. Cavanaugh, 98; Same v. McFarland, 250. 2. Same Pleading.

A petition against a stockholder by a trustee in bankruptcy of a corporation for par value of stock for which defendant had transferred lease containing covenant against assignment, held insufficient to state a cause of action. Idem, 98, 250.

CORPORATIONS-Continued.

3. Fraud of Agent-Ratification.

Where agents obtained stock subscription for corporation through fraud, if the company accepts benefits of misrepresentations, it is liable for the fraud.-McLean v. Southwestern Casualty Ins. Co. of Oklahoma, 79. 4. Pleading-Amendment.

Where corporation is properly before court to answer petition naming it correctly, but wrongly alleging state of its incorporation, amendment to properly describe such corporation is justified.-Bishop-Babcock-Becker Co. v. Hyde, 250.

5.

Sale of Stock-Rescission-Relief.

In an action to rescind a contract for purchase of corporate stock and recover purchase money, where plaintiff had by defendant's agent been induced to accept stock of another corporation in lieu of defendant, held that, under Rev. Laws 1910, sec. 986, tender of such stock was sufficient restoration of everything of value received to entitle her to relief.-Hood v. Wood, 294.

COSTS--See "Municipal Corporations," 8. COTTON-See "Carriers," 7; "Words and Phrases."

COUNTIES-See "Bridges."

1. Powers of Commissioners-Audit of Accounts of Officers.

Under Rev. Laws 1910, secs. 1600, 1601, county commissioners have no implied authority to engage individuals to audit the accounts of county officers, but such work should be done by the State Examiner and Inspector, under sec. 8119.-News-Dispatch Printing & Auditing Co. v. Board of Com'rs of Grady County, 259.

2. Board of Commissioners-Personal Liability-Contracts.

County commissioners who contracted for lumber and building material to be used in eradicating Texas fever tick, in accordance with estimate approved by the excise board of the county, which was afterward held void, are not individually liable for the value of the material.-Carey, Lombard, Young & Co. v. Hamm, 174.

COURTS--See "Depositions"; "Indians," 1, 2; "Judges"; "Judgment"; "Justices of the Peace"; "Motions"; "Venue."

1. "Jurisdiction."

Jurisdiction is the power of courts and judicial officers to take cognizance of and to hear and determine the subject-matter in controversy between parties to a proceeding pending, and to adjust or exercise judicial power over them.-Model Clothing Co. V. First Nat. Bank of Cushing, 88; Apache State Bank v. Voight, 253.

2. Same Jurisdiction—Waiver.

Parties cannot by consent or by stipulation invest a court with jurisdiction or power not authorized by law, and this rule applies to causes wherein the necessary jurisdictional

DIVORCE-Continued.

erty, taking into consideration the time and manner of acquisition.-Idem, 275

4. Alimony-Validity of Order.

An order for alimony pendente lite is not void because no evidence for defendant was heard.-Fowler v. Fowler, 280.

5. Same-Earning Capacity of Defendant.

In fixing alimony pendente lite, the husband's ability to earn money is an element to be considered.-Idem, 280.

6. Same-Disobedience of Order-Contempt.

A man who has no money or tangible property may be punished for contempt in failing to pay alimony if he makes no honest effort, considering his physical and mental capa bilities, to earn money to pay it.-Idem, 280. 7. Same-Final Order-Appeal.

An order, allowing alimony pendente lite is not a final order from which appeal will lie to Supreme Court.-Idem, 280.

8. Same-Review-Discretion of Trial Court.

An order for alimony pendente lite will not be reversed for abuse of discretion in refusing to hear testimony offered by defendant, where the court offered to hear the testimony on motion to reduce amount allowed, and no such motion was filed.-Idem, 280. DOMESTIC ANIMALS-See "Animals.” DOMICILE:

1. Requisites-"Residence."

The residence of a man having a family which he maintains is prima facie where the family dwells, and a man's acts and conduct are more to be considered in determining the change of residence than any mere declarations of intent; and, when the question of residence or nonresidence is doubtful, the ques tion should be so determined as will best "... froditors and others having dealings with such party.-Jones v. Reser, 46.

2. Same.

The term "residence" means a settled or fixed abode of a character indicating permanency, at least for an indefinite time; it signifies a party's permanent home and principal establishment, to which, whenever he is absent. he has the intention of returning. -Idem, 46.

DRAINS See "Waters and Water Courses." EARNINGS-See "Exemptions."

EMINENT DOMAIN:

1. Measure of Damages.

Measure of damages on condemnation of private property is market value of property actually taken, together with depreciation resulting to remainder of property.-Incorporated Town of Sallisaw v. Priest, 9. 2. Condemnation-Award-Evidence.

On appeal from award of commissioners in condemnation proceedings, evidence as to

EMINENT DOMAIN-Continued.

effect of operation of enterprise located on the land taken as it existed at the time of trial held admissible.-Idem, 9.

3. Same-Damages-Sufficiency of Evidence.

In a proceeding for the condemnation of lend for sewage disposal plant, award of $2,000 damages held warranted.-Idem, 9. EMPLOYERS' LIABILITY ACT--See "Master and Servant."

EQUITY-See "Appeal and Error," 29, 35; "Assignments"; "Cancellation of Instruments"; "Champerty and Maintenance"; "Estoppel"; "Public Lands"; "Subrogation"; "Taxation."

Jurisdiction-Remedy at Law.

Relief will not be granted in equity where there is a plain, specific, and adequate remedy at law. Perry v. Carson, 263.

ESTATES-See "Guardian and Ward"; “Insurance," 3, 4.

ESTOPPEL:

1. "Waiver❞—Nature.

A waiver is the voluntary or intentional relinquishment of a known right, or such conduct of a party, or his authorized agent, as warrants an inference of such intent; it is essentially a matter of intention and may arise out of the acts done by a party, or his authorized agent, who has full knowledge of all the material facts out of which the right springs.-American Cent. Ins. Co. of St. Louis, Mo., v. Sinclair, 17.

2. Same Question for Jury.

"A waiver involves the notion of an intention, entertained by the holder of some right, to abandon or relinquish instead of insisting on the right"; it is a question of fact to be determined by the jury.-Idem, 17. 3. Silence-Conduct Chattel MortgagesPriorities.

Where a bank held a mortgage on crops and the cashier after the record of the mortgage drew a mortgage executed by the same party to plaintiff, it did not estop the bank to enforce its mortgage because the cashier failed to mention to plaintiff the bank's mortgage.-Farmers' State Bank of Jefferson v. Jordon, 15.

4. Bills and Notes-Alteration-Estoppel to Urge-Pleading.

Estoppel in pais against maker of instrument materially altered, to be available must be pleaded.-Wayne County Nat. Bank v. Kneeland, 265.

EVIDENCE-See "Appeal and Error,” 1, 2. 9, 25, 30-38, 40, 43, 44, 51; "Attachment" "Banks and Banking"; "Bills and Notes": "Brokers"; "Carriers"; "Contracts"; "Customs and Usages"; "Depositions"; "Divorce"; "Eminent Domain"; "Fraud," 2; "Homestead"; "Insurance," 9, 17: “Intoxicating Liquors"; "Master and Servant": "Negligence," 7; "New Trial." 7; "Princi

3. Foreign Judgment-Authentication.

A certified copy of foreign judgment sued on held properly authenticated under Rev. St. U. S. sec. 905 (U. S. Comp. St. 1913, sec. 1519), though no judgment is shown to have been signed by the trial judge and filed in the court. Shufeldt v. Bank of Mound City, 194. 4. Testimony in Former Trial—Authentication.

Before the longhand transcript of the tes timony of a witness, given at a former trial, can be admitted in evidence at a subsequent trial of the same case, it must be duly certified by the reporter of the court who took the evidence as correct, or agreed to by the parties as being the evidence of such witness and as being correct, and, then, it can only be used under such conditions as would warrant the use of the deposition of such witness.--St. Louis & S. F. R. Co. v. Walker,

37.

5. Parol Evidence Affecting Writings.

Where oral contract is partially reduced to writing, and the writing evidences that it is not complete, parol evidence not inconsistent with such writings is admissible to show full agreement.--Rawlings v. Ufer, 299. 6. Same.

Where the words employed to express a particular condition in a contract in writing are ambiguous and cannot be satisfactorily explained by reference to other portions thereof, it is not error to admit parol evidence to show the meaning intended by the parties as to the use of the words employed. -Gilbert v. Citizens' Nat. Bank of Chickasha, 112.

7. Same.

Evidence that a written contract was in duced and obtained by material false and fraudulent representations does not contradict or vary terms of contract, and is admissible.-McLean v. Southern Casualty Ins. Co. of Oklahoma, 79.

8. Opinion Evidence-Value of Land.

The question of the value of agricultural land is not one for expert testimony, and persons living in the vicinity may testify thereto. -Incorporated Town of Sallisaw v. Priest, 9.

EVIDENCE-Continued.

9. Same-Damage from Overflow.

In an action against a railway for overflowing and, the admission of testimony as to the amount of damages was error; as the witness should have been required to state the facts, and not conclusions, as to the amount of damage.-Kansas City Southern R. Co. v. Hurley, 241.

10. Same-Existence of Agency.

Evidence that a party is or is not an agent is a mere conclusion, but witness may state facts concerning transactions between him and principal, leaving court and jury to determine existence of agency.-Ford Motor Co. v. Livesay, 231.

EXCEPTIONS-See "Appeal and Error," 2, 3; "Contempt."

EXCHANGE OF PROPERTY-See "Fraud," 7.

EXECUTION-See "Homestead.”
Notice of Sale-Sufficiency.

Under Rev. Laws 1910, sec. 5166, a notice of sale under execution published once a week for six weeks in a daily edition is insufficient, and objection to confirmation of the sale should be sustained.-Cherry v. City Nat. Bank, 236.