lands acquired by the heirs after his death under Section Five of the Act of April 26, 1906, is not affected by a will made prior to such proof. (Syllabus by the Court.) R. A. METCALF, E. C. SHERMAN and C. VS. No. 4031. THE STATE OF OKLAHOMA, Defendant in Error. (Rendered Jan. 18, 1915.) Error from the County Court of Ellis County, A. L. Squires, County Judge. 1. It is a sufficient cause to vacate a judgment forfeiting a recognizance under Section 7112, Comp. Laws 1909 (Sec. 6110 Rev. Laws 1910), that the performance of the conditions of such recognizance was rendered impossible by an act of God, an act of the obligee or an act of the law. 2. A party charged with a criminal offense under the state laws and admitted to bail, may, while out on bail, be arrested by the federal authorities without violating the comity existing between the two jurisdictions, but the state court, if it so desires, may insist upon the jurisdiction previously obtained and procure the principal from the possession of the federal authorities for the purpose of trial. The principal and his sureties however, do not enjoy this same privilege, they cannot elect that the principal be tried by the state courts and thereby oust the federal court of its jurisdiction. 3. Where a party executes a recognizance in a state court and is subsequently arrested by the federal authoritics and confined in the federal jail within the same state at the time his recognizance was forfeited in the state court, it is not a sufficient excuse for his absence that he was incarcerated in such federal jail, as he must further show that he was incarcerated through no fault of his own. (Syllabus by the Court.) C, B. Loedy, Attorney for plaintiff in error. Opinion of the Court by RITTENHOUSE, C. B. B. WHEELER, Plaintiff in Error. VS. THE CITY OF MUSKOGEE, a municipal No. 3545. Error from the Superior Court of Muskogee County, A. W. Clapp, Special Judge. Affirmed. 1. Art. 1, Chapter 10, Sess. Laws 1907-08, was not borrowed from the laws of any particular state, but was the outgrowth of years of legislation and experience. A construction placed upon similar laws by the Supreme Court of the State of Missouri is not binding upon this court unless it is clearly shown that the legislature borrowed Art. 1, supra, from the laws of Missouri, after such laws had been construed. 2. The resolution of necessity passed by the city council of Muskogee on October 1, 1908, declaring that said council deemed it necessary to grade, pave, macadamize, improve, gutter, drain and otherwise improve certain streets, avenues, alleys and lanes, therein named, giving 15, days in which the property owners might protest, and publishing said resolution as required by law, is sufficient to give the council jurisdiction to make the improvements, it being unnecessary under Section 2, Art. 1, Chapter 10, Sess. Laws 1907-08, to show in said preliminary resolution the nature, character and width of such improvements and material to be used. 3. Where a petition is filed by the owners of more than one-half in area of the lands liable to assessments for improvements under Art. 1, Chapter 10, Sess. Laws 1907-08, and the petition is not absolute, but conditioned upon the city council exercising its discretion under Section 724, Comp. Laws 1909, in a particular manner, therein designated, the council is not bound to proceed under said conditional petition and may wholly disregard the same. 4. Within sixty days after the passing of the ordinance making the final assessment for the paving improvements, plaintiff sought to enjoin the officers of the City of Muskogee from enforcing the collection of such paving assessments, and set up in his petition two causes of action or grounds for relief. After the sixty days had expired plaintiff amended his original petition by incorporating therein several additional causes of action. Held, that the statute of limitation when applied to such new causes of action treats the action as commenced when the amendments were filed and such amendments do not relate back to the beginning of the action. The causes of action set forth in the amendments which are not based upon the exceptions contained in Sec. 728, Comp. Laws 1909, are barred. Syllabus by the court.) ELI R. RATCLIFF, Plaintiff in Error, V8. C. A. SHARROCK, Defendant in Error. (Rendered Jan. 19, 1915.) No. 3726 Error from the County Court of Carter County. 1. In a landlord's attachment action to recover rent due under a lease contract, the tenant may counterclaim for work and labor preformed and money expended in improving and repairing the demised premises, where such work and labor was authorized by the landlord. 2. The amount of the counterclaim is to be determined by the fair and reasonable value of the work and la bor authorized and performed, and the money actually expended. 3. A motion for new trial predicated upon miscon duct of the prevailing party, where such motion is supported by the affidavit of a third party, but is controverted by the affidavit of the opposing litigant, is addressed to the sound discretion of the trial court, whose action in denying and overruling the motion can only be reviewed where it is made to appear that the court abused its discretion. M. O. & G. R. R. CO., Defendant in Error. (Rendered Jan. 18, 1915.) No. 3855 Error from Superior Court of Muskogee County. Farrar L. McCain trial Judge. Affirmed 1. Where plaintiff in error complains on account of the admission and rejection of testimony, he must set out in his brief the full substance of the testimony to the admission or rejection of which he objects. Rule XXV. 2. Instructions to the jury will not be considered here unless exceptions thereto were saved and allowed in the trial court. EDITORIALS Judge G. A. Brown.-Most of our readers are familiar with seeing the name of "Hon. G. A. Brown, trial Judge,' following the title of many cases, seldom reversed. Hereafter we will all have the pleasure of reading opinions headed by the words: "Opinion by Judge, G. A. Brown;" and we will be fortunate to so read it. Judge Brown has had a vast experience as a judicial officer. He served on the bench of Texas 14 years as district Judge, and in Oklahoma he has served in the same capacity since statehood, and until he was elevated to the Supreme bench at the last general election. The reader must also remember what is implied by these facts; which is that few men can serve on the bench so long and yet be elected by those who knew him best by an overwhilming majority. The confidence of the people in his ability, character and integrity speak louder in his behalf than anything we can write or say of him. The Judge is not only a jurist in a Judicial sense, but a scholar and a gentleman of culture and refinement one who will lend luster and dignity to our already disting. uished Bench. He is descended from a family of noted lawyers and Judges-His uncle Tom J. Brown being Chief Justice of the Supreme Court of Texas. Our pleasant interview with Judge leads us to believe that his attainments, fairmindedness and ripe judgment will render the state of Oklahoma most valuable service and add a brilliant page to the history of the Supreme Court of the State. The address of Mr. Henry Morgan in the December issue was a treat to many-a gem of the highest skill. Look out for another great treat on another line by a great master, which will appear in the February Issue. |