jury were in favor of the client of the lawyer who refused to agree to a majority verdict.

was

AMONG THE ANCIENTS. Plea for monkey-One Saturday in the Boys' court of Chicago a little monkey stood before the judge charged with a crime. The monkey's name "Billy.' While collecting pennies on the street for his master he bit Bessie Hine. Bessie's mother swore out two warrants, one charging the monkey with an assault and the other charging his master with disorderly conduct. The case against the monkey was called first. Assistant State's Attorney Malcolm B. Sterrett of Evanston stepped forward and said:

"Your honor, some one has filed a complaint against this monkey, charging him with a crime. The defendant is properly before the court. It plainly becomes my duty to prosecute the case, whether I want to or not. If I entered a nolle pros, I would do so on the theory the monkey is not human. I would rather the court would take the responsibility of deciding that question.

"In order for the state to secure a conviction in this case, it is necessary to take the position that the monkey is a human being. If he is a human being and guilty of this offense, he should be held to the grand jury. If he is not a human being. he should be dealt with in some other manner. Whatever decision your honor makes, the Darwinian theory will be involved.

"Darwin, the great naturalist, set forth the theory that man and the monkey are descended from a common ancestor; that they both belong to the same class, because they present, independently of their habits of life, the same fundamental type of structure and be cause they graduate into each other. He contended that in the, struggle for existence the stronger species survive and multiply and the weaker and more imperfect perish. By imperceptible degrees man has risen to his present position, leaving his little brother behind.

"The criminologists of these days are laying great emphasis upon what they call 'arrested development.' They tell us that the boy criminal of 18 years of age who has the mentality of the boy of 9

years is a moron, that his development is arrested, and that he is incapable of any further advancement. If this is true then Darwin and the criminologists are in perfect accord, for the monkey of today was the moron boy of centuries back.

"Courts are treating the moron boy offender these days with great leniency on the theory that he is not entirely responsible for his acts. Are we no inconsistent if we fail to show the same leniency for this little moron brother? If this defendant is declared not a huan being he will be shot like a dog, in cold blood."

At this point the monkey, which had been seated on the table facing the judge and listening intently to the prosecutor's argument, jerked off his little red cap, made a profuse bow and plainly indicated his approval of the words uttered in his behalf.

The judge, while inclined to uphold the Darwinian theory, discharged the defendant because of an impression he had that the courts had already decided against the state's contention.

The LAW JOURNAL has a field of usefulness all lits own and it has no ambition to infringe upon the prerogatives or preserves of any other publication. The Appellate Courts of Oklahoma at this time are “making law" by the construction of statutes and constitutional provisions at a rate far in excess of like tribunals in the older states and these opinions and decisions are of first importance not only to Oklahoma lawyers, but to counsel for interstate and other corporations doing business in Oklahoma. This JOURNAL will have a staff of contributing editors who will discuss and criticize with helpful ability our present statutes and proposed amendments to our constitution and laws, and it will be the constant aim of the publishers to have the JOURNAL fill its own field of usefulness to the legal profession and the people of the state. With that aim in view we ask for the LAW JOURNAL under its new management a critical examination by its readers and any suggestions they may have to offer as to its improvement in features that will add to its usefulness and force with the profession.

G. A. Brown.

Summers Hardy.

J. F. Sharp-

John B. Turner..

Associate Justice

OF APPEALS

-Presiding Justice Associate Justice Associate Justice

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SYLLABUS

No. 4967.

Arbitration is the submission of some disputed matter to selected persons, and the substitution of their decision or award for the judgment of the established tribunals of justice; and this method of settling disputes is recognized at common law. In the absence of a statute on the subject, the common law controls.

The agreement of submission may be by parol, and this is true as to the award, unless the submission contains a provision as to the form in which the award may be made.

A parol submission to arbitration is valid in any case where an oral agreement of the parties with respect to the matter submitted would be valid and enforceable.

The settlement of disputes by arbitration is favored and encouraged by the courts. Error from the Superior Court of Grady County, Will Linn, Judge.

Action by J. M. Deal against C. M. Thompson; judgment for defendant, and plaintiff brings error.

Feggy Phillips, a Creek freedom citizen, duly enrolled as such, received her allotment, for which a certificate was issued; subsequent to the issuance of certificate and prior to the issuance of patent she died, October 20, 1903, intestate, without issue; patents were issued designating homestead and surplus lands. Held, that under the Act of April 21, 1904, c. 1402, 33 St. at L. 204, said lands passed to Willie Love and Jonas Love free from restrictions, and alienable in February and March, 1905. Held, further, that under such facts the homestead quality did not attach.

Error from the District Court of Muskogee County, R. P. DeGraffenreid, Judge. Action by Willie Love. Jonas Love and Pompey Phillips, against Laura Parks, Oakley Fay Parks Brown, Goldie Ray Parks, minor, Annie L. Parks, minor, Dorothy C. Parks, minor, and Lonnie O. Parks, minor, by their mother and next friend, the said Laura Parks, all heirs of O. F. Parks, deceased, and Cinderella Hatcher, and Ennally H. Connally, as the only heirs and devisees of Henry Hatcher deceased; judgment for plaintiffs, and defendant bring error.

REVERSED AND REMANDED. Bailey, Wyand & Moon, Attorneys Plaintiffs in Error.

Where, under the facts is this case a subdivision of land has been platted into lots, blocks, streets and alleys, and a portion of the lots have been sold, a part of such addition cannot be vacated under Section 924, Comp. Laws, 1909, (522 R. L. 1910) without all the owners of lots in such plat joining in the execution of a written instrument as provided by Section 923, Comp. Laws, 1909, (521, R. L. 1910).

Error from the Superior Court of Pottawatomie County, George C. Abernathy, Judge.

Action by John Rain against Albert Clark; judgment for plaintiff, and defendant brings

error.

REVERSED.

W. F. Durham, Attorney for Plaintiff in Error.

Joe M. Adams, Attorney for Defendant in Error.

OPINION BY RITTENHOUSE, C.

for

G. W. SMITH,

1. When an action of law is tried by the Court without a jury and special findings are made upon any controverted question of fact, such findings are conclusive upon this Court. 2. Where in an action upon an oral agreement to pay rent, the defendant answered by general denial, a motion for judgment on the pleadings is properly denied.

Error from the County Court of Murray County, Harry W. Fielding, Judge. Action by T. H. Dunnagainst J. L. Anderson, II. I. Henderson intervening; judgment in favor of defendant and intervenor, and plaintiff brings error.

G. M. Nicholson and L. Dolman, Attorneys for Plaintiff in Error.

AFFIRMED.

R. A. Heffner and E. W. Fagan, Attorneys for Defendants in Error.

OPINION BY RITTERHOUSE.

E. P. BROWN,

Plaintiff in Error,

V.

R. W. MOTLEY,

Defendant in Error.

SYLLABUS.

1. In an action for damages for an assault and battery where the defendant interposes the defense of self-defense, and the Court correctly instructs the jury on such defense, but does not include therein an instruction as to the effect of one withdrawing or attempting to withdraw from a difficulty which he has provoked, and there is no evidence that the defendant withdrew or attempted to withdraw from the difficulty after he provoked it; Held, that the Court did not err in failing to instruct the jury upon that phase of the law of self-defense.

2. Where an instruction is correct so far as it goes, and it is urged by the defendant that under his theory of the case additional instructions should have been given, reversal will not be had unless a supplemental instruction is requested by such defendant embodying such theory.

Error from District Court of Muskogee County. R. P. DeGraffenried, Judge. Action by R. W. Motley against E. P.

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SYLLABUS.

A deposition is a written declaration under oath, made upon notice to the adverse party, for the purpose of enabling him to attend and cross-examine, but there is no requirement that deposition should be in the form of question and answer, and they will not be suppressed because given in narrative form.

Continuances for the absence of witnesses or of a party to the action, are addressed largely to the discretion of the trial court, and this Court will not review such discretion, unless it has been abused. On the day of the trial, the defendant offered an affidavit for continuance, on the ground that defendant was a material witness, setting out what he expects to show by him, but that the defendant was prevented from attending by reason of the interruption of direct railroad communications. Attached to this affidavit was an unvarified statement by a doctor, saying that owing to the defendant's condition, in his judgment, it would be injurious for him to make a long trip. There was no allegation in the affidavit that attorney required the presence of the defendant to aid in the case, other than as

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No. 4571.

William M. Franklin,

SYLLABUS.

is

Where a lease by a Creek citizen, of his restricted allotment is made for agricultural purposes, and before it expires another lease for agricultural purposes made to the same lessee for a period of five years, to commence in the future, the last lease not being approved by the Secretary of the Interior; HELD, the last lease is void.

A valid lease for agricultural purposes of a restricted Creek allotment, may be made during the existence of a prior, valid lease, provided it is made for a fair rental, near the termination of the existing lease, and that it does not extend the term more than five years from the date of the last lease.

Error to the District Court of Wagoner County. R. P. DeGraffenreid, Judge.

AFFIRMED.

This was an action for ejectment and for damages for the detention of the land, and the facts are, that the land in question was the allotment of one Yarges, a duly enrolled Creek Indian; that on October 8th, 1909, an order was made by the Secretary of the Interior, removing the restrictions on the alienation of this land, which order was to become effective simultaneously with the execution of a deed therefor by the allottee to the purchaser. On the 9th day of May, 1910, Yargee and her husband, in compliance with the order, and under the direction and supervision of the Union Indian Agency at Muskogee, executed a deed for this land to Hildt, the plaintiff below. On November 7th, 1908, Yargee executed to the defendant below, the plaintiff in error in this Court, a lease of this land for agrucultural purposes, for a term of one year, ending June 1st, 1910, which lease contained no stipulation or agreement for a renewal or continuance thereof. This lease was duly recorded, and Hudson went into possession under it. On October 29th, 1909, before the expiration of the lease, and while Hudson was in possession of the land thereunder, Yargee executed to him another agricultural lease on this land, for five years from

January 1, 1910, which, therefore, expired January 1, 1915, more than five years from its date. This lease was registered on November 1 1909, and after the expiration of his lease for one year on January 1, 1910, thereunder. Hudson continued in possession The Secretary of the Interior did not approve the last lease for five years.

The trial court held the lease for five years void, and directed it to be cancelled, gave judgment in favor of the plaintiff, Hildt, for possession, and for the sum of $140.00 rents, and for costs. The defendant below brings the case to this Court by petition in error and case-made.

J. C. Pinson, Jess W. Watts, Alvin F. Moling and Edward M. Gaylagher, for Plaintiff in Eiror.

Sharp & Cunningham and James M. Gresham, for Defendant in Error. OPINION BY DEVEREUX (After stating the facts.)

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SYLLABUS.

It is not error to overrule a general demurrer to a petition in replevin, because the petition does not specifically allege conditions of chattel mortgage broken, when there is a copy of the mortgage attached to the petition which shows on its face, that conditions therein have been broken.

2. Under section 4031, Revised Laws, 1910, which makes a chattel mortgage void as against creditors of the mortgagor, and subsequent purchasers and encumbrances of the property for value, unless the mortgage "be filed by depositing the same in the office of the register of deeds of the county where the property was mortgaged, or any part thereof, is at such time situated;" HELD that the mortgagee has done all the law requires of him, when he has filed the mortgage by depositing it in the office of the register of deeds; and, if the instrument is not then properly recorded, and indexed, it is the fault of the register of deeds, and the mortgagee will not lose his rights, or be made to suffer by reason of the laches of the register of deeds.