rect and maintain structers, pipe lines and machinery necessary for the "production and transportation" of oil and gas, and to use sufficient water, oil and gas to run the necessary engines for the "prosecution of said business" which reserves to the lessor substantial royalties in kind and in money, on the oil produced and saved and the gas used off the premises, which shows that the promise of these royalties was the controlling inducement to the grant, and which, while expressly requiring that drilling commence within ninety days from the date of said lease, did not expressly define the measure of diligence to be exercised in the work of development and production after the expiration of that period, containe a covenant by the lessee arising by necessary implication from the nature of the lease and the other stipulations therein contained; that if during the term of the lease oil and gas, one or both, are found in paying quantities, the work of development and production shall be continued with reasonable diligence-that is, along such lines as will be reasonably calculated to make the extraction of oil and gas from the leased land of mutual advantage and profit to the lessor and lessee. 2. Where object of the operations contemplated by an oil and gas lease is to obtain a benefit or profit for both lessor and lessee, neither is, in the absence of stipulation to that effect, the arbiter of the extent to which or the diligence with which, the operation shall proceed; but both are bound by the standard of what, in the circumstances, would be reasonably expected of an operaor of ordinary prudence, having regard to the interest of both. 3. Because forfeitures are usually harsh and opprestive, and because they can ordinarily be enforced at law courts of equity generally refuse to aid in there enforcement; but the rule is not absolute or inflexible. Its influences and operation do not extend beyond the reason which underlies it, and in cases otherwise cognizable in equity there is no insupperable objection to the enforcement of a forfeiture in a court of equity when that is more consonant with the principles of right, justice and morality, than to withhold equitable relief. 4. A court of equity will decree a forfeiture of an oil and gas lease on account of a breach of an implied cov. enant to diligently operate and develope the property when such forfeiture will effectuate justice, The granting of such relief depends upon the facts and circum. stances surrounding each particular case. 5. A lessor invoking the jurisdiction of a court of equity to cancel and rescinda lease for breach of an im plied covenant must come into court with "clean hands.” and must act with reasonable dilligence after the discovery of his right to the forfeiture on account of such breach. 6. In a suit to cancel an oil and gas lease the court should not decree damages where the measure thereof is uncertain, vague and indefinite. (Syllabus by the Court.) WM. KINNAMER. et al., Defendants in Error, (Rendered April 4, 1914) Error from District Court of Tulsa County. No. 3248 One who has filed exceptions to the conformation of a sale under execution, which have been overruled, cannot thereafter maintain an action to have the order of conformation set aside on other grounds, without alleging that he had no knowledge or information as to such grounds at the time he filed his exceptions and without showing that his substantial rights were effected by the order of confirmation. Syllabus by the court.) Opinion of the Court by Harrison C. MARY TRUEBLOOD,. Plaintiff in Error, V8. E. B. JOHNSON, Defendant in Error. (Rendered April 4, 1914) Error from District Court of McClain County. No. 3086 E. B. Johnson, a Chickasaw citizen by blood, under a prevailing custum in the Chickasaw Nation, had inclos ed and improved more land than he was permitted to se• lect as allotments for himself and family. A part of the land thus enclosed and improved by him was selected by and allotted to Mary J. Trueblood. After she had mòved on to the allotment, Johnson sought to remove the fencing which he had placed on and around same prior to allotment. HELD, Acting within a reasonable time he had the right to remove his fencing. Syllabus by the court.) CHAS SMITH, VS. STATE OF OKLAHOMA, Reversed and Remanded. No. A-1441 1. Where without preliminary complaint the indictment was returned more than eighteen months after the alleged offense was committed, and the case called for frial nine days later, and defendant's affidavit for continuance contained all the formal allegations required by law, and shows the temporary absence of two material witnesses, and shows what facts defendant expects to prove by said witnesses, and that he has used all possible diligence in endeavoring to get ready for trial, it was error to refuse a continuance. 2. To constitute larceny, there must have existed a felonious intent at the time of the taking. 3. Evidence in this case considered and found insufficient to warrant a conviction. (Syllabus of the Court.) T. S. CHAMBERS, Plaintiff in Error, V8. FRANK KIRK, et al., Defendant in Error. (Rendered April 1, 1914.) Error from District Court of Garfield Couxty. No. 3602 1. All of the property of an individual, not exempt to him under the law, becomes, upon his adjudication as a bankrupt, assets to be administered in the bankruptcy proceedings: and a money judgment rendered in a State Court during the pendency of the proceedings does not impose a lien on lands forming a part of such assets. 2. A judgment on account of a liability for obtaining property by false pretenses or false representations, is not released by a discharge, in bankruptcy; but an allegation in a pleading, answering a claim of discharge, which avers in substance, that at the time the debtor borrowed the money and gave a note secured by a mortgage, that he represented that he was going to invest the money in a farm which would become part of his general assets, and would not be converted into an exempt homestead, does not state a case of obtaing property by false pretenses or false representation, so as to relieve the debt of the effect of the discharge. 3. Where a liability against a bankrupt has been prosecuted to judgment, the record is decisive as to the character of the claim upon which the judgment is founded and cannot be affected by oral evidence except in case, of ambiguity. 4. Although a reply to an answer which sets up a discharge in bankruptcy, contains a "general denial of the matter set up in the answer except as thereafter admitted," where the reply then undertakes to allege facts which are intended to avoid the effect of the discharge as to that particular claim, it is in effect an admission of the fact of the order of discharge, coupled with the af firmative defense that the discharge is inoperative a gainst the debt in suit; and where the affirmative facts set up are insufficent in law to defeat the defense of dis charge, it was error to order judgment on the pleadings. notwithstanding the general denial. A. H. SHARUN, V8. THE CITY OF MUSKOGEE, Reversed and remanded. No. 4922 1. A person having an inchoats title to certain town lots by virtue of having them scheduled to him by the townsite commission under Sections 12, 13, 14, 15 and 16 of the original agreement (31 Stat. 861), which in due course ripens into a complete and absolute title, has a right to see that no illegal assessment for public improvements shall be imposed upon said lots, and in the exercise of such right may sign the protest against such improvements provided for by Section 616, Rev. Laws, 1910, 2. Where the owners of more than one-half in area of the land liable to assessment to pay for paving a street in a city of the first class protest in writing against such improvement within fifteen days after the last publication of the resolution of necessity, as required by Sec. 616, Rev. Laws, 1910, the mayor and city council of said city are deprived of the power to cause such improvement to be made and to contract therefor and to levy agsessment for the payment thereof, and that power cannot be restored by withdrawals from such protest suffi. cient to reduced the number of protestants below the number required by statute subsequent to the time with. in which such protest is required to be filed. 3. Where it appears that an assessment for street paving is sought to be enforced against a property owner which is made up of different items or elements all blended together, some of which are illegal and others legal, the property owner may resist the payment of the whole assessment in the absence of some statute which modi. fies the general rule. 4. Record examined and HELD. That the doctrine of estoppel in pais is not applicable to the facts disclosed. |