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by the company to which it assigns them. And also it would be peculiar if the statutes, which have granted to cities of the first class ordinarily well policed, the power to suppress billiard-halls and pool-rooms, should be construed to withhold that power from towns and villages of ten possessing little or no police protection. In our opinion our statutes are not susceptible of that construction.

Our conclusions therefore are; First, that the legislature may lawfully delegate to municipal corporations the power to declare what shall constitute a nuisance within its corporate boundaries, and the power to prevent, abate or remove the same. Second, that under such delegation of power the municipality may not lawfully declare a thing a nuisance which clearly is not one, but that it may declare anything a nuisance which is so per se, or which by reason of its location, management or use or on account of local conditions or surroundings, may or does become a nuisance within the common law or statutory definition thereof, or those things which in their nature may be nuisances, but as to which there may be honest differences of opinion in impartial minds. Third, that where a thing neither necessary nor useful may or may not be a nuisance, depending upon a variety of facts and circumstances, or upon local conditions and surroundings, the determination of the question by the municipality through its legislative body, is, under such a grant of power, conclusive upon the courts. And Fourth, that billiard halls and pool-rooms are not protected as necessary or useful institutions; that they may or may not be nuisances, depending upon circumstances, and that the determination of that question locally by the town trustees of Eldorado is conclusive upon us. We therefore hold the section of the ordinance in question to be valid.

Was there such a trial of the case before the town justice as would warrant a judgment of conviction? The judgment, omitting the caption, reads in part as follows:

"And now, on this 25th day of January, 1910, came on

to be heard the above entitled matter' the plaintiff present by W. C. Austin, special attorney for the plaintiff, and the defendant present in person and by his attorney. J. T. Shives. The defendant having waived arraignment in open court entered a plea of not guilty, and both parties having announced ready for trial, defendant waives jury and thereupon the plaintiff reads and offers the complaint charging the defendant with wilfully and unlawfully engaging in, establishing, opening, keeping, carrying on and assisting in carrying on, maintaining and assisting in maintaining a pool-room and place by then and there, to-wit, on Jan. 24, 1910, in Eldorado, Oklahoma, keeping pool tables for hire and for public use in violation of ordinance Number 40 of the said incorporated town of Eldorado, Oklahoma. And the defendant after the plaintiff had proven the ordinance under which said charge was made enters a confession on his part of having committed the corporal acts and matters therein charged against him; and the court after hearing the argument of the counsel and after duly and fully considering the law applicable thereto, and the' evidence as produced and confessed, finds the defendant guilty as charged; and it is the order of the court that a fine of $25.00 be and the same is entered against the said defendant".

This judgment purports to have been rendered upon "the evidence as produced and confessed"; no attempt has been made to show by evidence of any kind that no testimony was in fact taken; and in the face of the judgment recital we will not presume that the justice did not in fact hear testimony.

We therefore hold that the petitioner's, imprisonment is not illegal. The writ of habeas corpus heretofore issued will accordingly be discharged, and the petitioner will be remanded to the custody of the town marshal. It is so ordered.

Furman, Presiding Judge, and Doyle, Judge, concur.

JAKE ENSLEY, Plaintiff in Error,

VS.

A-No. 456

STATE OF OKLAHOMA, Defendant in Error.

(Rendered May 28th, 1910.)

Appeal from the County Court of Wagoner County.
Hon. W. T. Drake, Trial Judge.

Dismissed.

Under section 6949 of Snyder's Comp. Laws, requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney, actual knowledge on the part of the clerk and the prosecuting attorney that an appeal is intended does not dispense with the necessity of giving formal notice and making due proof thereof.

2. Under section 6949 requiring notice of appeal to be served upon the clerk of the court and the prosecuting attorney a written notice is intended; and oral notice, though given in open court in the presence of those officers, and shown by the journal entry, is insufficient.

3. Generally, wherever a statute requires notice to be served in a legal proceeding, a written notice capable of legal service, of proof and return, and of being filed, is intended; and especially so where service of such notice and proof thereof are jurisdictional.

4. The word "service," when used with reference to summons, writs, subpoenas, notices or other legal processes, means the reading of the same to the person to be served, or the delivery to such person of the original or a copy thereof; and the expression, "service of a notice," without qualification of any kind, means a personal service of a written notice.

5. In the county court notice of appeal may be served on the county judge, or upon the clerk of the county court if there be one; in the district court it must be served upon the district clerk.

6. The notice of appeal in criminal cases provided for in sec. 6949, is analogous to a citation or a summons in error, and is designed to take the place thereof.

REVIEWS,

A TREATISE ON CODE

PLEADING AND PRACTICE, In four volumes. By William A. Southerland, of the California Bar. Published by Bancroft-Whitney Company, Price $26.

San Francisco, Cal.

This unabridged work as now being issued is not only the most extensive but the latest, covering the whole field of Pleading and Practice. It is so arranged as to cover the practice of the code states, but especially that of California, Arizona, Idaho, Montana, Nevada, New Mexico, North and South Dakota, Oklahoma, Oregon, Utah and Washington.

While there is a number of valuable publications on this subject, this work has been written upon a plan that surpasses all previous compilations; as each particular subject is treated separately both as to the pleading incident and the forms necessary in forming the issues in that particular branch discussed, thus saving much of the labor occasioned by a separation of the pleading and the forms. The work is so extensive that even to give a brief sketch of it one volume only can be included in the first notice. The first volume contains 57 chapters, and each one follows the order generally adopted in the classification of the subjects in the codes. After the introductory chapter discussing rights and remedies he begins with parties to civil actions, real party in inter est, and parties plaintiff and defendant. This is followed by substitution and forms in substitution of parties. The 8th chapter enters into the discussion of the rules of the art of pleading, as to form, allegation and formal parts. Chapter 12 treats of the verification of pleadings. And 13, 14 and 15 are devoted to the complaint or petition and joinder of causes of action. Chapters 17, 18 and 19 canvass the field of the rights of plaintiffs and the liabil

ity of defendants, followed by an extensive treatment of functions of the demurrer. Chapters 21, 22 and 23 enter minutely into the treatment of defenses, so thoroughly that almost all questions are met that can arise in practice. This is followed by counter-claim and cross-complaint. Intervention and Interpleader receive close scrutiny, as well as Supplemental Pleadings and Amendments. In fact all incidents of pleading and practice are met: such as notices, affidavits, motions, etc. Without exaggeration it is one of the best works on Pleading and Practice that have ever been written. Its great usefulness is found not only with its scientific arrangement, but also with the fact that it cites the latest authorities and at once carries you through the intricacies that have arisen out of the many modern commercial questions, and to which modern methods of application must be understood by the up-to-date lawyer. Too much cannot be said in behalf of the merits of this excellent work, as we hope to show in our next issue. A display ad of the whole treatise will appear in the July number.

NATHAN BURKE,

By Mary S. Watts.

Published by The Macmillan Company, Price $1.50.

New York.

While we publish a Law Journal, we never refuse interesting literary books nor refuse to give them deserved praise, if they have merit-especially in view of the fact that a law journal reaches none but a reading people. Nathan Burke is one of the most interesting of novels-a book that every lawyer will enjoy reading during the summer vacation. It is a well written book. If you once begin to read it you will not want to lay it down until you have finished it, so interesting it will be, and one whose characters seem real. Secure a copy.

All books sent us for review notices must have a market value of one dollar or more, otherwise we cannot afford the time and space to comment upon it.

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