2. The mere fact that it is shown that the owner of a shipment of live stock accompanied the same, does not relieve the carrier of any of its common law liability in the absence of proof that the shipper specially agreed as a part of the contract of transportation that he would care for the animals. (Syllabus by the Court.) Opinion of the Court by KANE, J. ALICE HARN v. CITY of OKLA. CITY, et al. No. 3181. Error from Dis. Ct Okla. County. (Rendered May 14th, 1912.) Dismissed. The petition in error in an appeal from an order discharging a temporary injunction must be filed in the supreme court within a time fixed by the trial court, not exceeding thirty days from such discharge. Syllabus by the court.) ELSIRA LYNCH, a minor, by Moses Riley, Guardian, and John B. Martin, Guardian, Plaintiff in Error, VS. No. 1503 John F. Harris, a minor, by J. B. Rutherford, Guardian, Defendant in Error. (Rendered May 14th, 1912.) Error from District Court of Rogers County. T. L. Brown, trial Judge. Reversed and Remanded. By reason of section 22 of an Act of Congress, approv ed July 1 1902. (37 U. S. Stat. at L. P. 716) vol. 1, Kappler,s Indian Affairs, Laws and Treaties, p. 789, the Commissioner to the Five Civilized Tribes, upon motion made before him, and the Secretary of the Interior, on appeal from an order of said Commission, have power at any time before the issuance of patent to an allottee of the Cherokee Tribe of Indians, upon notice to such allottee and after hearing, to cancel and set aside a judgment of the Commissioner in a contest awarding to the allottee as contestant the lands allotted to him, when such judgment was procured without service of notice of contest upon the contestee, and without an opportunity given to the contestee to be heard, but upon a false and fraudulent affidavit made by the contestant or one acting for him, showing that such service had been made. -O THE BANK OF COMMERCE, V8. A. T. INGRAM. No. 1627 (Rendered May 14th, 1912.) Error from County Court of Muskogee County. Affirmed Where the payee of a check drawn on a bank presents the same to another bank for collection, which bank gives him credit therefore on his pass book, the relation of principle and agent arises, and it is the duty of the agent to exercise reasonable care and diligence to make the collection, and its failure to do so renders it liable for any loss its principal may suffer thereby. Almeda Oil Company, Plaintiff in Error, VS. Fred L. Kelley, Defendant in Error. No. 1475 In an action pending in one of the United States Courts of the Indian Territory at the time of the admission of the state, brought by a party to remove a cloud upon his title to land, he must allege and prove that he is in possession thereof, unless his title be merely an equitable one, or the land be wild and unoccupied. HARSHA, Trustee, eto. v. RICHARDSON, et al. No. 6297. Rendered May 14 1912. Dismissed Where a cause is reversed and remanded by the Supreme Court with directions to proceed in accordance with the decision of the appellate court, and the court below proceeds in substantial conformity with such directions, it action will not be considered on a second appeal ALICE S. McGannon, Administratrix, Plaintiff in Error. V8. No. 2669 STATE ex rel. M. E. Trapp, et al., Defendant in Error. (Rendered May 14, 1912.) Error from District Court of Tulsa County. L. M. Poe, trial Judge. Reversed and remanded. 1. The act of May 26, 1908, which imposes a tax upon inheritances is a tax upon the transitus of the property and not upon the property. a. Being a tax on the transitus of property it is not in conflict with Art. 10, Sec. 6 of the Constitution. b. Said act is not in conflict with Sec. 5, Art. 10 of the Constitution. c. Being neither a local or special law which changes the descent or succession of property, said act is not in conflict with Art. 5, Sec. 46 of the Constitution. * * * 2. Constitution, Art. 10, Sec. 19, providing: "Every act enacted by the legislature levying a tax, shall specify distinctly the purpose for which the tax, shall specify distinctly the purpose for which the tax is levied. , does not apply to act of May 26, 1908, imposing an inheirtance tax upon the transfer of property, but applied only to annually recuring taxes. 3. Statutes will be construed in the most beneficial way which their language will permit to prevent absurd. ity, hardship or ambiguity, to favor public convenience and to oppose all prejudice to public interest. 4. In construing tax laws where there is any ambiguity or doubt, it must be resolved in favor of the person upon whom it is sought to impose the burden. (Syllabus by the Court.) OPINION OF THE COURT BY TURNER, C. J. E. M. LACKEY, C. W. LACKEY, Mary E. Lackey and Geo. W. Pierce, Defendants in Error. (Rendered May 14th, 1912.) Error from District Court of Kingfisher County. Hon. A. H. Huston, trial Judge. Affirmed 1. Possession taken by a vendee under a parol con. tract for the conveyance of real estate, not taken in pursuance of the contract nor with the knowledge and consent of the vendors, is insufficient to relieve the contract of the operation of the statute of frauds and to entitle the vendee to specific preformance. 2. A purchaser of land may rely upon the statute of frauds to invalidate a parol contract for its conveyance made between his vendor and one claiming adversely under such parol contract. D. K. Cunningham and L. R. Weiss, Attorney for Plaintiff in Error. John T. Bradley, Jr., Attorney for Defendants in Error. BOARD OF COUNTY COMMISSIONERS OF GREER COUNTY, Plaintiffs in Error, VS. H. D. Henry, et al., Defendants in Error. (Rendered May 14, 1912.) Reversed and remanded. 3332 At the time of the adoption of the Constitution, the salary of the county attorney elected at that time being fixed at $2.000 per annum by section 18 of the schedule, because of Art. 23. Sec. 10 of the Constitution cannot be changed during his term office and was not reduced by a decrease in the population of the county ascertained according to a census taken pursuant to the act of April 8. 1908. Nor was the salary of the county clerk, elected at the same time, nor $600 allowed him for clerk hire thereby reduced, being fixed by act of March 10, 1905, extended to and put in force throughout the state. But the latter being no part of his salary could be and was raised by the act of May 29, 1908, allowing the clerk for clerk hire $800.00. LAWTON PRESSED BRICK & TILE CO., et al. VS. ROSS-KELLER TRIPPLE PRES. BRICK MACHINE COMPANY, et al. Affirmed Error from the District Court of Comanche County. 1. Where the facts constituting the pleader's cause of action are fully set out by the pleader in his petition and are followed by a formal statment of his conclusions drawn from the facts stated, such conclusions, if erroneous, may be disregarded as surplusage. 2. Certain brick manufacturing machinery was sold upon a written agreement between the parties that the title thereto should not pass to the vendee until the purchased price was fully paid; that the title thereto should not be affected by the delivery and erection thereof; that if default should be made in the payment of the purchase money the vendor should have the right to enter upon the premises "wherever said machinery may be found and take possession thereof." In an action in replevin to recover possession of said machinery for non payment of purchase price, the evidence reasonably tended to show that the machinery was annexed to certain real estate belonging to the vendee according to the terms of the contract and that the mode of annexation was such that the removal thereof would not take away or destroy that which was essential to the support of the buildings, foundation or walls or other part of the real estate to which it was attached, and that it would not destroy or impair the machinery itself. HELD, that the agreement between the original vendor and vendee fully expressing their distinct purpose that the annexation of the machinery should not make it part of the real estate was sufficient to that effect without any concurring intention on the part of a third person who subsequently purchased the land from the purchaser of the machinery. 3. Chattels may be annexed to the real estate and still retain the character of personal property, of the various circumstances which may determine whether in |