E. A. VAUGHAN and IRENE VAUGHAN, VS. GEO. W. HOLDER, Defendant in Error. (Rendered December 23, 1913) Error from District Court of Grady County. Hon. Frank M. Bailey trial Judge. No. 2900 Affirmed 1. A possession to be adverse must be open, visible, continous and exclusive, with a claim of ownership, such as will notify parties seeking information upon the subject that the premises are not held in subordination to any title or claim of others. but against all titles and claimants. Fleatcher v. Callaghan, 32 Okla. 263 2. A conveyance of land made in contravention of secs. 2214 and 2245 Comp. Laws 1909 is void as against persons holding adversely, either by themselves or tenants, and claiming to be owners of the land under color of title. 3. A deed from a person out of possession within a year, and who has not within that time taken the rents and profits, is void as against person in adverse possession. Following Johnson vs. Myers, 32 Okla, 421. (Syllabus by the Court.) Opinion by HARRISON, C. EX PARTE LEROY E. WAUGH. Original action in Habeas Corpus. 1. Every order of commitment to prison of a witness, by a court officer, must spoify, particularly, the cause of arrest or commitment, and when the commitment is for the refusal to answer a question, such question must be stated in the order. 2. When such mandatory provision under the statute is not complied with the prisoner will be be discharged. Opinion by Williams. J. THE CROWDER STATE BANK, Plaintiff in Error, No. 3036 THE ETNA POWDER CO., and J. L. BURBA. 1. Where a cashier of a bank makes a contract which is beyond his power and authority, but the bank by reason thereof secures a benefit, or beneficial effect, it will not thereafter be heard to urge non-liability thereunder on the plea of ultra vires. 2. It may be considered as settled law in this state today that when a corporation goes outside of its legitimate business and makes a contract, and that contract is executed, and the corporation has received the benefits of the contract, the courts will not listen to a plea of ultra vires. 3. When suit is brought on an ultra vires contract against a corporation, the contract being evidenced by a written instrument, the action is not maintained by virtue of the written instrument but, on the implied contract of the corporation to return the property delivered by virtue thereof or to place the parties in statu quo. To maintain such an action is not to affirm but to disaffirm the original or unlawful contract. City of Purcell. Defendant in Error. Error from County Court of McClain County. No. 2960 1. A person acting in the capacity of an officer of a municipality cannot recover compensation as such officer from such municipality on the ground of an implied contract to pay what his service is reasonable worth. 2. A person acting in the capacity of a public officer of a municipality is entitled to only such compensation as may be given by some provision of law, OPINION OF THE COURT BY WILLIAMS, J.: THE CRIMINAL COURT OF APPEALS OF OKLAHOMA BEN CHAPPELEAR, Plaintiff in Error, VS. No. A-1837. STATE OF OKLAHOMA, Deefndant in Error. (Rendered December 13, 1913) Appeal from the District Court of Washita County. James R. Tolbert, Judge. Affirmed. 1. Separate informations may be filed against defendants complained of as being joint offenders and together held for the commission of a single crime. 2. By leave of court, an information may be amended, as to matters of substance or form, after a plea of not guilty has been entered, and before the trial has begun. 3. When it appears that the charge in the complaint before the committing magistrate is substantially the same as that charged in the information filed in the district court, a motion to quash, on the ground that the offense charged in the information differs from that charged in the complaint upon which the defendant was held to answer is unavailing and was properly overruled. 4. Error must affirmatively appear from the record; it is never presumed. Every presumption favors the regularity of the proceedings had upon the trial. The plaintiff in error must affirmatively show prejudicial error; other wise the judgment of the trial court will be affirmed. Syllabus by the court.) Onirion of the Court, DOYLE, J.; This appeal is prosecuted from a conviction had in the District Court of Washita County, on the 30th day of March, 1912, in which the defendant was found guilty of larceny of domestic animals, and his punishment assessed at imprisonment in the penitentiary for the term of five years. The evidence shows that Ben Chappelear, and Tom Smith residing near the town of Cloud Chief, learned that their neighbor, Charley Maddox was going to ship some cattle from the Town of Dill, on the Orient Railroad to Wichita, Maddox and his brother drove the cattle to Dill, arriving with them there about dark; the cattle were put into the Railroad stock pen. Chappelear and Smith took five of the cattle out of the railroad stock pens and drove them back in the general direction from which they had come, by a different road; the loss of the cattle was discovered by Maddox when he went back to load thein and search was made. Investigation led to the finding of the cattle tracks and horse tracks, and the subsequent finding of the cattle on the day following where they had been left in a field about fifteen miles from where they had been taken; that the horse tracks following these cattle were the tracks of the horses rode by Chappelear and Smith. Witnesses also testified to seeing Chappelear and Smith driving the stolen cattle. There was no evidence offered on the part of the de fense. The record shows that on November 20th, 1911, the county attorney of Washita County filed preliminary complaint with the county judge of said county, which said. complaint charged Ben Chappelear and Tom Smith with the larceny of five head of cows, the property of Charley Maddox. The defendants were arrested and waived preliminary examination, and gave the required bond and were released. That on the 14th day of December, 1911, the county attorney filed in the District Court an information charging Ben Chappelear and Tom Smith with the larcony of five head of cows. Defendants were arraigned and entered pleas of not guilty and present bond continued. That on the 20th day of February, 1912, the county attorney filed an amended information against the defendant Chappelear, charging the larceny of two head of cows, the property of Charley Maddox. Thereafter on the 15th day of March, 1912, this case came on for trial, and the state and the defendant announced ready, and a jury was empaneled to try the cause. Thereupon the county attorney reads the information to the jury, and made his statement of the case. Thereupon the defendant's counsel moved to quash the information, for the reason that no preliminary examination had been had or waived by the defendant upon the charge stated in the information upon which the defendant is now sought to be tried; that the same has been filed without leave of court, or notice to the defendant, or his counsel and that he has never been arraigned upon this information, nor has he plead to such information. Thereupon the defendant was arraigned and entered his plea of not guilty. The action of the court is assigned as error. The defendant has filed a brief of thirty-one closely printed pages without citation of authority to support the contention made. The argument advanced is that after the defendants. had been jointly held for trial, the county attorney had ro power other than to file an information jointly charging them with the larceny as charged in the original complaint. Under the statute any defendant in a felony case may demand that a separate trial be awarded him, and where the state asks it, a separate trial may be granted, in the discretion of the court. (Sec. 5878 Rev. Laws.) In our opinion it is within the discretion of the county attorney to inform against them either jointly or severally, and separate informations requiring separate |