say: "This case was settled long after the time had elapsed for making and serving a case, and for suggesting amendments; hence the statement contained in the certificate of the judge, that the case contains all the testimony offered and received, is improper."

In the case of Board of County Commissioners of Washita County v. Hubble, S Okl. 169. 56 Pac. 1058, this court says: "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." And in the case of Geo. G. Frame v. Roland A. Ryel, reported in 14 Okl. 536, 79 Pac. 97, this court, in the body of the opinion. written by Justice Burwell and concurred in by the entire court, says: "The appellant has presented a number of citations of error, each of which requires an examination of the evidence taken upon the trial: and it is contended by the appellee that none of these specifications of error can be considered, because there is no statement in the case-made to the effect that it contains all of the evidence taken upon the trial. A portion of the case-made purports to be a transcript of the proceedings on the trial. at the end of which appears the certificate of the stenographer as follows: "Territory of Oklahoma. Logan County-ss. I, Thomas A. Higgins. do hereby certify that the within and foregoing transcript is a true. full, and complete record of all the evidence introduced upon the trial of the above cause. Witness my hand this 16th day of June, 1903. Thomas A. Higgins, Court Reporter.' This is the only statement in the case-made to the effect that it contains all of the evidence, except the ordinary recitation in the certificate of the judge who settled the same. It is the well-established rule of practice in this court that, where an appellant seeks to have the evidence reviewed, his case-made, independent of the certificate of the judge, must contain a positive recitation that all of the evidence taken upon the trial is included therein, and the attachment of the court stenographer's certificate to the purported transcript and certificate within the case-made is not a compliance with the law." Further on in the opinion the court says: "A case-made is prepared by the appellant, and the law requires, where he desires to have the evidence reviewed, a solemn statement that it contains all of the evidence, and as no such recitation appears in the record presented to this court, except as stated herein, none of the assignments of error will be considered, and the appeal will be dismissed at the cost of appellant." And a very recent case decided by this court, which may be regarded

as the last declaration of this court upon this subject up to this time, is the case of Sawyer & Austin Lumber Company Champion Lumber Company, decided September, 7, 1905, and reported in 84 Pac. 1093. In an opinion, rendered by the Chief Justice and concurred in by this entire court, the following language is used: "The case purports to contain the evidence, but the record contains no recital or other statement that it contains all the evidence introduced in the trial of the cause. There is a certificate of counsel that the case contains all the evidence, and also a certificate of the stenographer that his transcript contains all the evidence; but neither of these certificates are authorized or recognized. ed or recognized. The case itself must contain the positive averment by way of recital that it does contain all of the evidence submitted or introduced on the trial of the cause. and, in the absence of such recital, this court will not review any question depending upon the facts for its determination. This question has repeatedly been decided." And to support this the writer of the opinion cites the following authorities: Frame v. Ryel, 14 Okl. 536. 79 Pac. 97: Board of Washita County v. Hubble, 8 Okl. 169, 56 Pac. 1058; B., K. & S. W. Ry. Co. v. Grimes, 38 Kan. 241, 16 Pac. 472; Ryan v. Madden (Kan. Sup.) 26 Pac. 680: Pelton v. Bauer (Colo. App.) 35 Pac. 918; Eddy v. Weaver, 37 Kan. 540, 15 Pac. 492; Hill v. Bank, 42 Kan. 364, 22 Pac. 324.

Now, as these assignments of error all require for their determination an examination into the evidence taken on the trial, and a decision as to what such evidence proves, and require an examination and weighing of such evidence for the reasons herein stated, these assignments of error cannot be considered by this court.

There is another very strong reason why these assignments of error cannot be considered by this court. All the questions assigned in the petition in error in this case for the consideration of this case, and argued in the brief of counsel for plaintiff in error as grounds for reversal, must have been, in order to be properly assignable here, set up and urged in a motion for a new trial. When the motion for new trial was overruled, this should have been assigned as error in their petition in error. Now the petition in error makes six assignments of error, but none of these assign ments of error are on the ground that the court erred in overruling the motion for a new trial. This we think is a necessary assignment of error. We think, under the holdings of this court, that it is not only necessary that the grounds for reversal should have been set up in the motion for new trial, but, when the motion for new trial is overruled, that that should be assigned as error, and that this is a necessary assignment of error before this court can consider errors

occuring during the trial. In the case of Mollie C. Beall v. Mutual Life Insurance Co. of New York, reported in 7 Okl. 285, 54 Pac. 474, this court says: "Where the appellant fails to assign as error the overruling of a motion for new trial in the petition in error, no question is properly presented in this court to review error alleged to have occurred during the trial of the case in the court below." In the case of J. J. Douglas Company v. J. M. Sparks et al., reported in 7 Okl., at page 259, 54 Pac. 467, this court says: Although a motion for new trial be filed in the court below upon grounds for which a new trial may be granted; and the motion be overruled, the Supreme Court will not consider these grounds, unless, in the petition in error, the overruling of the motion for a new trial is assigned as error." And in the body of the opinion, at page 260, of 7 Okl., page 467 of 51 Pac., this court uses the following language: "The motion for a new trial by the plaintiff below, who is also the plaintiff in error here, is for the reasons (1) that the verdict and decision are not sustained by sufficient evidence, and are contrary to law; and (2) for errors of law occurring at the trial and excepted to by the plaintiff. The motion was overruled. The errors here assigned were upon the errors alleged to have occurred at the trial. The fact that the motion for a new trial was overruled was not assigned as error in the petition in error. It has been repeatedly determined, under our Code of Civil Procedure, adopted from Kansas, by the Supreme Court of Kansas, from which it was adopted, that, even though a motion for a new trial be filed in the court below upon grounds for which a new trial may be granted, and the motion be overruled, the Supreme Court will not consider these grounds, unless, in the petition in error, the overruling of the motion for a new trial is assigned as error." Now, a comparison of the assignments of error in the case at bar with the assignments of the errors in the case of Douglas Company v. Sparks et al., which the Supreme Court had before them when the opinion in 7 Okl. 259, 54 Pac. 467, was rendered, will show that they are almost identical; for there the question which is sought to be reviewed involves a consideration of all the evidence in the case, and for these reasons we think they are not properly subjects of review in this court. In the case of Crawford v. Railroad Company (Kan. Sup.) 25 Pac. 865, it is said: "Nor can any of the points or questions involved, and which were subject to review upon the motion for a new trial, be considered in this court, unless the overruling of that motion is assigned for error."

For these reasons, the judgment of the district court is hereby affirmed, at the costs of the plaintiffs in error. All the Justices concurring, except HAINER, J., who, having tried the case below, took no part in this decision.

(17 Okl. 53)

BOARD OF COM'RS OF KAY COUNTY V. DUNLOP, County Treasurer. (Supreme Court of Oklahoma. Sept. 7, 1906.) 1. COUNTIES COUNTY DEPOSITORIES-POWER AND DUTY OF COMMISSIONERS.

Under article 2, c. 11, Sess. Laws 1905, making provision for depositories for county funds, it is the duty of the board of county commissioners to designate certain banks within the county as depositories for money in the hands of the county treasurer, and to approve their bonds. When that is done, they have performed their full duty under the act, and have no power to specify what amount of money shall be deposited in any given bank.

[Ed. Note. For cases in point, see Cent. Dig. vol. 13, Counties, §§ 119, 223.]

2. SAME-DUTY AND POWER OF TREASURER.

Where depositories for county funds have been designated by the board of county commissioners, and the bonds thereof approved, it becomes the duty of the county treasurer to use these depositories for depositing the county funds therein. It is, however, within the discretion of the county treasurer to fix the amount to be placed in any given bank, subject, however, to the provision that he shall not deposit an amount greater than the capital stock of such bank, nor greater than the bond given as security.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 13, Counties, §§ 119, 223.] (Syllabus by the Court.)

Application by the board of county commissioners of the county of Kay for writ of mandamus against Robert Dunlop, county treasurer. Denied.

Virgil H. Brown, County Atty., and W. C. Tetirick, for plaintiff. Moss & Turnor and Dale & Bierer, for defendant.

PANCOAST, J. This is an original action in this court by the board of county commissioners of Kay county against the county treasurer, Robert Dunlop, asking for a writ of mandamus to compel him to deposit a certain percentage of the funds in his hands as county treasurer in certain banks, which had theretofore been designated by the board as county depositories, under the provisions of article 2, c. 11, p. 180, of the Session Laws of 1905.

Section 1 of the act provides that in all counties the county treasurer "shall deposit daily all funds and moneys of whatsoever kind that shall come into his possession by virtue of his office as such county treasurer. in one or more responsible banks located in the county and designated by the board of county commissioners as county depositories"

providing, also, that there "shall not be deposited of said funds in any one bank at any one time a greater amount than the capital stock of said bank." The act further provides for the giving of bonds by the banks. and the approval thereof, and that the largest sum which may be deposited at any one time in any bank shall not be more than the amount of bond, nor more than the amount of the capital stock. An alternative writ was issued by Justice Hainer, return duly

made thereto, and an agreed statement of facts filed, upon which the case is submitted. In the agreed statement, it is admitted that the several banks mentioned in the petition were designated by the county commissioners as county depositories, and have given bonds, which were approved; that the defendant has, at all times since the depositories were designated, kept on deposit in said depositories all moneys in his hands as county treasurer. Then a list of the banks is given, with the amount of the capital stock of each, and the amount of their respective bonds, together with the amount of money now in the several banks belonging to the county, and an estimated amount of the taxes to be received for the ensuing year.

It will be noticed that the contention is, not that the county treasurer has failed or refused to deposit the county money in the banks designated, but the board of county commissioners assumed the authority to determine and designate what percentage of the money of the county should be placed in each of the several banks. The defendant contends that it is not within the power of the county commissioners to dictate what amount of money shall be placed in any one or more of the several different depositories, and it is upon this point that the contention arises. The statute referred to nowhere provides what amounts shall be deposited in any one or more of the depositories designated. It must, then, be held that, when the county commissioners have designated what banks shall constitute the county depositories, and approved their bonds, they have performed their full duty under the act, and have no authority to specify what amount shall be deposited in any one or more given banks. When the depositories are designated, and their bonds approved, it becomes the duty of the county treasurer to use these banks as depositories for the county money in his hands; but it is left to his discretion to fix the amount to be placed in any given bank, subject, however, to the provisions that he shall not deposit an amount greater than the capital stock of such bank, nor greater than the bond given as security.

The peremptory writ is therefore denied, and the costs of this action are taxed against the plaintiff. All the Justices concurring.

(17 Okl. 135)

TERRITORY ex rel. THACKER, Co. Atty., V. CONNER et al.

(Supreme Court of Oklahoma. Sept. 5, 1906.) 1. BAIL-SUFFICIENCY OF BOND-DESCRIPTION OF OFFENSE.

A bond given in a criminal case requiring the defendant to appear and answer to the charge of "obtaining property by means of false representations and pretenses" contains a sufficient description of the offense for which the defendant is required to answer.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Bail, §§ 266, 267.]

2. SAME-INCONSISTENT RECITALS.

Incorrect recitals in an appearance bond as to the day of the month or year on which the court will convene, or the defendant appear, when coupled with the condition for the defendant to appear at the "next term," will not invalidate the bond, or release the sureties thereon of their liability, but will be treated as mere surplusage.

[Ed. Note. For cases in point, see Cent. Dig. vol. 5, Bail, & 259.]

3. SAME.

In a bond given in a criminal case, it is not required that all the facts necessary to be stated in the indictment should be set forth with legal accuracy, or in the terms of the statute. It will be sufficient if it shows that the defendant was charged with the commission of a public offense. If the offense can be designated by a specific name it will be sufficient to state it; otherwise, it should contain a substantial description, so that the nature of the charge may appear for which the defendant is required to

answer.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 5, Bail, §§ 263, 265, 266.]

(Syllabus by the Court.)

Error from Probate Court, Greer County; Todd, Judge.

Action by the territory, on the relation of Charles M. Thacker, county attorney for Greer county, against J. C. Conner and M. H. Dodson. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

This action was brought in the name of the Territory ex rel. Charles M. Thacker, county attorney in and for Greer county, as plaintiff, against Thomas Boswell, M. M. Arrington, J. C. Conner, and M. H. Dodson, defendants, upon a written instrument designated as an "Appearance Bond," given by Boswell and codefendants, as sureties, for his appearance at the next term of the district court of Greer county, Oklahoma Territory, to answer an indictment drawn under section 2517, Wilson's Rev. & Ann. St. 1903, charging him "with intent to cheat, and defraud another designedly by false pretense obtaining from such other property." Service not being obtained upon Boswell or Arrington, the case was prosecuted against J. C. Conner and M. H. Dodson, sureties, who filed a demurrer which was sustained, and judgment being given in their favor, the territory brings this case here for review.

Chas. M. Thacker, for plaintiff in error.

GARBER, J. (after stating the facts). The only question raised in the court below, and upon this appeal, is as to the sufficiency of bond, which instrument reads as follows:

"Territory of Oklahoma, plaintiff, v. Thomas Boswell, defendant. Case No. 1032. Be it remembered that on this the 20th day of November, A. D. 1903, Thomas Boswell of the Chickasaw Nation of Indian Territory, as principal, and as sureties, appeared personally before the undersigned, clerk of the district court of the Fifth judicial district in and for the county of Greer,

and jointly and severally acknowledged themselves to be indebted to the territory of Oklahoma in the sum of seven hundred dollars ($700), to be levied on their respective goods, chattels, lands, and tenements; to be void, however, if the said Thomas Boswell, who has been committed to jail at Mangum, in the county of Greer, in the territory of Oklahoma, shall personally be and appear before the district court of the territory of Oklahoma in and for the Fifth judicial district in and for the county of Greer, at the next term of said court, to be held at Mangum in the county of Greer, territory of Oklahoma on the day of -, A. D. 1903, at the hour of 9 o'clock, a. m., of said day, and from term to term, and from day to day of each term, to answer to the charge preferred against him for the offense of obtaining property by means of false representations and pretenses, and to abide the order of the said court, and make his appearance at each successive term of said court until the charge hereinbefore set forth shall have been disposed of according to law, and to do and to receive what shall be enjoined by said court upon him, and shall not depart the said court without leave thereof. In witness whereof, we have hereunto set our hands and affixed our seals the 20th day of November, 1903. Thomas Boswell, Principal, M. M. Arrington, Surety, J. C. Conner, Surety, M. H. Dodson, Surety. Taken, subscribed, and acknowledged this 20th day of November, 1903, at my office in the town of Mangum, in the county of Greer, territory of Oklahoma, as to Tom Boswell, M. M. Arrington, J. C. Conner, and M. H. Dodson. J. P. Renshaw, Clerk of the District Court, by J. W. Sproat, Deputy. [Indorsed on the back]: No. 1,032, Appearance Bond, District Court, Territory of Oklahoma, Plaintiff, vs. Thomas Boswell, defendant. Approved this 20th day of November, 1903, Jasper Nelson, Sheriff, by F. M. Overton, Deputy. Filed this 20th day of November, 1903, J. P. Renshaw, Clerk, by J. W. Sproat, Deputy. Filed September 12th, 1904, Nancy G. Hood, Clerk of Probate Court."

The material objections raised to the sufficiency of the bond as appears from the demurrer on file, the defendants having filed no briefs, were: (1) The time when the defendant was required to appear; (2) insufficiency of description of offense charged; (3) failure of defendant to qualify; (4) because the bond was not taken and approved by an authorized person.

Under section 9 of the organic act (Wilson's Rev. & Ann. St. 1903, p. 75), and section 3 of the act of Congress, approved December 21, 1893 (28 Stat. 20), the Supreme Court of this territory fixes the time and place at each county seat in each district where the district court shall be held, and there is no act limiting the number or the length of terms to be held in said counties.

On November 20, 1903, the day the bond was taken, th. Supreme Court had not fixed the time for holding the next term of the district court in Greer county, and under those circumstances it was impossible to insert the exact day, and of this, the defendant and his sureties were bound to take notice. Because the November, 1903, term of the district court of Greer county may have lapsed, and because no additional term was fixed or held in that county during that year, in no way excused the defendant from complying with the conditions of the bond requiring his appearance at the "next term of said court," and from "term to term and from day to day of each term, to answer the charge preferred against him, * * and

to abide the order of the said court, and make his appearance at each successive term of said court until the charge hereinbefore set forth shall have been disposed of according to law, and to do and receive what shall be enjoined by the said court upon him, and shall not depart the said court without leave thereof." In the case of State ex rel. Gibson v. Lay, 128 Mo. 609, 29 S. W. 999, the defendant gave a bond conditioned for his appearance in the circuit court of Henry county of September 1, 1894, and it was there contended that the bond was void upon its face because it required the cognizor to do an impossible thing; that is, to appear before the circuit court of Henry county on the 1st day of September, 1894, when that time had already transpired when the recognizance was taken and approved by the sheriff on the 15th day of September, 1894. The court said: "The time fixed by statute for the beginning of the September term of the circuit court of that county is on the 2d Monday of that month, and that day had passed before the recognizance was approved, but it was not for that reason invalid, as, at most, the defect was nothing more than a clerical error, and as the principal in the recognizance was bound to take notice of the time at which the regular terms of the circuit court in that county were held, he was bound to appear at the next succeeding term after the recognizance was executed, and to appear on the 1st day." A similar question was before the St. Louis Court of Appeals, in State v. McElhaney, 20 Mo. App. 584, in which it was held: "That a recognizance for the appearance of the defendant in a criminal case was not void because it required the principal cognizor to appear in court on a day which had already passed; that it was merely a clerical error." In the case of Gay v. State, 7 Kan, 394, it was held. "A recognizance requiring the defendant to appear at the next term of the district court of the proper county, but which does not designate any particular day of said term or of the month on which he is so to appear, is not void. In such case the defendant is bound to appear on some day during the

said next term, and when he does so appear, he is bound to remain until permitted to leave by order of the court." In Com. v. Branch, 1 Bush (Ky.) 59, the court said: "The principal was recognized to appear at the next ensuing May term of the circuit

No court was held in May, and the defendant failing to appear at the following October term, a bench warrant was issued on which he was arrested, but he made his escape from the sheriff. It was held that his sureties were liable for his appearance at the October term, and were not released by his arrest by the sheriff." Incorrect recitals in an appearance bond as to the day. month, or year on which the court will convene or the defendant appear, when coupled with the condition for the defendant to appear at the "next term," will not invalidate the bond, or release the sureties thereon, of their liability, but will be treated as mere surplusage. 5 Cyc. 96; Mooney v. People, 81 Ill. 134; Hunter v. State, 21 Ind. 351: Curry v. State, 39 Miss. 511; People v. Welch, 47 How. Prac. (N. Y.) 420; People v. O'Brien, 41 Ill. 303; Proseck v. State, 38 Ohio St. 606. The section under which the indictment was found provides (section 2517, Wilson's Rev. & Ann. St. 1903): "Every person who, with intent to cheat or defraud another, designedly, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money or property, is punishable in the territorial prison not exceeding three years, or in the county jail not exceeding one year, or by fine not exceeding three times the value of the money or property so obtained, or by both such fine and imprisonment." In this case the offense charged could not be designated by any specific term, and the description in the bond "obtaining property by means of false representations and pretenses" is a substantial and sufficient description of the offense charged, our statute neither prescribing the form of the bond, nor the manner of describing the offense. In In Patterson v. State, 12 Ind. 86. it was held that: "A recital in the recognizance that the cognizor is to appear to answer to the charge of obtaining money under false pretenses is sufficient at common law, and still more so under 2 Rev. St. p. 366. pt. 3. c. 1. § 49, although the recital does not describe the of fense with legal accuracy. And in Browder v. State, 9 Ala. 58, it was there decided that: "An undertaking to answer to the charge for resisting process is sufficiently significant in the recognizance to indicate the offense intended to be charged, although the statute makes the offense consist in knowingly and willfully resisting or opposing any officer of this state in serving, or attempting to serve or execute any legal writ or process whatsoever." It is not required that all the facts necessary to be stated in the indictment should be set forth in the bond with legal ac

87 P.-38

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This

curacy, or in the terms of the statute. will be suflicient if it shows the defendant was charged with the commission of some public offense. If the offense charged can be designated by a specific name, it will be sufficient to state it; otherwise, it should contain a substantial description, so that the nature of the charge may appear for which the accused is required to answer. rule in no way enlarges the extent or scope or purpose of the obligation set forth in the bond. 5 Cyc. 98; U. S. v. Sauer (D. C.) 73 Fed. 671; State v. Randolph, 22 Mo. 474; State v. Rye, 9 Yerg. (Tenn.) 386; Com. v. Daggett, 16 Mass. 447; People v. Rundle, 6 Hill (N. Y.) 506; Kerns v. Schoonmaker, 4 Ohio, 331, 22 Am. Dec. 757; People v. Gillman, 125 N. Y. 372, 26 N. E. 469; Adams v. State, 48 Ind. 212; State v. Marshall, 21 Iowa, 143; State v. Merrihew, 47 Iowa, 112. 29 Am. Rep. 464; State v. Gilmore. 81 Me. 405, 17 Atl. 316; Turner v. State, 41 Tex. 549; Belt v. Spaulding, 17 Or. 130, 20 Pac. 827.

The objection that the defendant did not qualify upon the bond cannot be maintained. There is no question but what the sureties properly acknowledged the bond, and, having undertaken for the faithful appearance of the defendant for trial, they are not in a position to avail themselves of any formal defect in the instrument, if any such there were, which applies to another party thereto and not to themselves. Section 633 of our Code of Criminal Procedure (Wilson's Rev. & Ann. St. 1903, § 5769) provides: "Bail by sufficient sureties shall be admitted upon all arrests in criminal cases where the offense is not punishable by death; and in such case. it may be taken by any of the persons or courts authorized by law to arrest and imprison offenders." "Bail by sufficient sureties" is the language used. In the absence of a statute requiring him to do so, it was unnecessary for the defendant to qualify. In Tillson v. State, 29 Kan. 457, Justice Valentine, speaking for the court, said: "The point that the recognizance is void because the accused did not sign the same, we think is not tenable. At common law, it was never necessary for any person to sign the recognizance; and under the statutes it is necessary only for those to sign the recognizance who are to be bound thereby; and it is never necessary under the statutes for the accused to sign the recognizance, unless the statutes absolutely require the same to be done." Ingram v. State, 10 Kan. 630; People v. Hammond (Sup.) 7 N. Y. Supp. 219.

The remaining objection that the bond was not approved by an authorized person cannot be upheld in view of the admissions made on demurrer. The petition, with the bond attached, and made a part thereof, shows that it was taken, subscribed, and acknowledged by the deputy clerk of the court on November 20, 1903, and on the same day approved by Jasper Nelson, sheriff of said