THE AMER. STEEL & WIRE CO. Plaintiff in Error. vs. No. 613 CARL COOVER and O. E. COOVER, Defendants. Rendered September 13th, 1910. Error from District Court of Muskogee County. Malcom E. Rosser, Trial Judge. Reversed and remanded 1. Alleged errors presented for review that require an examination of all the facts cannot be considered, unless the case-made contains an averment by way of recital to the effect that the case-made contains all the evidence at the trial. But a statement in a case-made preceding the evidence to the effect that "the following evidence was introduced, same being all the evidence introduced by both parties at the trial." whereupon the evidence follows, is a sufficient compliance with the rule to authorize a review of alleged errors requiring a consideration of all the facts. 2. Where one of two members constituting a firm is adjudicated a bankrupt, but there is no adjudication against the firm. the property of the firm does not pass to the trustee of the estate of the individual bankrupt; and such adjudication does not defeat an attachment lien of a firm creditor who has caused an attachment to be levied on a portion of the firm's assets within four months prior to the adjudication of the individual as a bankrupt, nor does it require that such attachment shall be discharged. (Syllabus by the Court.) Masterson Peyton and M. C. Mason, Attorneys for plaintiff in error.. W. T. Hutchings, Murphey & German, Attorneys for defendants in Error OPINION of the COURT by HAYES, J. THE STATE MUTUAL INSURANCE. CO. VS. Plaintiff in Error. No. 417 FRANK CRAIG, Defendant in Error. (Rendered September 13th, 1910.) Error from District Court Grant County. W. M. Bowles, Trial Judge. Reversed and remanded 1. As to actions existing and pending in the courts of Oklahoma Territory at the time of the erection of the State, the decisions of the Supreme Court of the United States as applicable thereto are binding on the State courts in the determination of such cases. 2. Under the decisions of said court, restrictions inserted in an application for insurance which by its terms becomes a part of the insurance contract and restrict the power of the agent to waive any condition therein contained, apply to conditions which to the inception of the contract as well as to matters arising subsequent to its execution. 3. In the insurance policy containing a clause providing that "this policy is based on an application of the insured on file with this company which is referred to as forming part of this policy and it is understood that no other representations or statements have been made to the company or its agent than those written on said application, said application with everything therein contained, shall be a continous warranty by the insured,” although the soliciting agent of the assurer made the estimates for the assured and inserted the same in the application, the same then being read over by said agent to the assured who signed the same, under the decisions of the Supreme Court of the United States, the, assured is not estopped from setting up misrepresentations made in said application to have said contract rescinded. (Syllabus by the Court.) Parker & Simons, for plaintiff in error. OPINION of the Court, by WILLIAMS, J. JOHN S. JENKINS, Plaintiff in Error VS. CITY OF OKLAHOMA CITY, et al., Defendants No. 615 Affirmed. 1. A resolution for grading, draining, eurbing and paving certain lots that was published daily in a daily newspaper of general circulation, the first publication being August 30, 1905, and the last publication September 26, 1905, was published for four consecutive weeks, in conformity with that part of section 444, Wilson's Ok. Stat., which provides that "such resolution shall be published for four consecutive weeks in some newspaper of general circulation in the city." 2. Unless the whole assessment for the purpose of grading, draining, curbing and paving a street is void, a case for injunction cannot be maintained, for he who seeks equity must do equity. If any part of the assessment against the owner's land is valid, he cannot have an injunction unless he has paid or offered to pay such part as is valid. (Syllabus by the Court.) John S. Jenkins, pro. se. Burwell, Crockett & Johnson, for defendants in error. OPINION of the Court by KANE, J. T. H. MARTIN, Plaintiff in Error. vs. A. F. MCGARR, Defendant in Error. (Rendered September 13th, 1910.) Error from District Court Muskogee County. J. H. Pitchford, Trial Judge. No. 1433 Reversed and remanded 1. Under the terms of section 3106, Compiled Laws of Oklahoma, 1909, it is the duty of the county election board in creating or altering voting precincts, to include therein only such territory as shall be within a ward or township and to change the boundaries of any precinct by dividing or consolidating two or more into one when public convenience or public good may require it, and duty on the part of said board is enforceable under the specific terms of said act by mandamus by any qualified elector of the county. In the event of failure on the part of said board to act in accordance with the terms of the said statute, the remedy afforded the electors is mandamus to secure a correction of the same. Where the board fails to perform its duties in a legal manner and mandamus has not been invoked to require it, the election will not be held void because qualified electors are denied the priv. ilige of registering or voting. 2. An action brought for the purpose of having an election declared void, will not be sustained by showing merely the reception of illegal ballots. An election is held void in those cases only where it is impossible to separate the valid from the invalid ballots and the correct result is impossible of determination. 3. Under Sec. 3202, Comp. Laws of Oklahoma, 1909, it is the duty of the electors of precincts failing to receive the election supplies, to proceed under its terms and provisions to prepare ballots, boxes, etc., and to hold an election as nearly as may be in conformity with the law, and where in such case they fail or neglect to do so they will be held to have been parties to their own disfranchisement and the election will not be held void on that account. 4. An election is void where qualified electors are corruptly and fraudulently deprived of an opportunity to register and vote sufficient in number, had all been counted for the next highest candidate, to have changed the result of the election. (Syllabus by the Court.) Kornegay & Robertson, and Geo. S. Ramsey, and Mur. phey & Davidson, Attorneys for plaintiff in error. Bailey & Wyand, and Owen & Stone, Attorneys for defendants in error. (This opinion is being printed to appear in full.) The sixteenth volume of this most excellent series of Reports has been published and is being delivered to its many subscribers. In looking through the volume we are reminded of the illustration we made to a fellow lawyer of the value of these reports a short time since. This lawyer said that, “It is very nice to have these select Cases in a volume in the office, and yet they are the same cases found in the reports from which they are taken." Our answer to his statement was the recalling of a thought from our old text book in Natural Philosophy of many years ago: That ten pounds of iron were worth about 20 cents, and made into horseshoes, would be worth four dollars, and properly tempered and made into steel pens the same iron would be worth over three hundred dollars. Now, the enhanced value of a literary matter or production does not differ from an industrial one, when value is materially added to it by skilled labor whether mental or physical. In estimating the value of these reports it is not only the cases themselves naked as they stand or were handed down by the courts, but skilled work bestowed on them by classification and annotation, bringing all kindred cases into view both direct and as side lights to the principle involved-this is the great source from which arises the enhanced value added to these decisions. A striking feature in this very volume is the first note, which collects all the cases, almost two thousand in number, in which the appellate courts have passed upon the excessiveness of verdicts |