Upon the first error assigned, to wit, the overruling of defendant's challenge to the panel of the trial jury, the following facts appear in the record: The case was set down for trial on the 9th day of May, 1892, in its regular order, upon the calendar of the court. That it was or would have been reached upon the call on that day, but on the 7th day of May the defendant appeared in court, and requested that the trial be postponed to the 17th on account of the absence of defendant's attorney. This was objected to for the reason that it might result in a continuance of the case for the term, as the jury trials were about concluded. When the challenge was made the court made the following statement, which was not disputed, and which appears in the record: "The fact is this: The remark I made when it was set for the 17th was that perhaps the jury would be discharged before then, but that if it was we would issue a special venire, and I would continue the case to that time. There was nothing said on either side in the way of objection to this." The challenge was upon the ground that the jury had been summoned especially to try this particular case. It seems that by reason of the postponement of the case to the 17th the regular calendar of jury cases was concluded several days before that date, and the regular jury in attendance was discharged. When the day arrived for the trial of this case, in accordance with the statement of the court just quoted, a venire was issued for a jury to try the case, and it was challenged upon the ground stated by the defendant as follows: "Defendant now challenges the entire panel of the jury in the box, called in this case, and examined upon their voir dire, for the reason that there is no regular panel for the term of this court in attendance at this time; that the jury that has been called, as appears by the records of the court, have been summoned on a special venire this date issued and served by the marshal, he making the selection of jurors himself; and, further, that the said jury is not a regular panel selected from the lists for jurors for the term provided under the territorial statute, or by any other method, as a regular panel for the present term of this court." Counsel for defendant stated, in connection with the challenge, that he had no objection to the personnel of the jury. We do not think the court erred in denying this challenge. There is abundant authority for holding that where there is no intimation or charge of bad faith the court has the power, whenever the necessity arises, and there is no regular jury in attendance, to impanel a jury to try a case which has been properly set, and is ready for trial to a jury. Mackey v. People, 2 Colo. 13; Stone v. People, 2 Scam. 335; Vanderwerker v. People, 5 Wend. 530; Hunt v. Scobie, 6 B. Mon. 469; Reed v. State, 15 Ohio, 217. We do not in

See

tend, in this case, to declare the rule that the court can capriciously break up the regular panel, and require parties to submit their controversies to an unsatisfactory array of jurors summoned upon a special venire. But in this case there is no pretense of bad faith on the part of the court, or of the plaintiff. If the defendant desired to object to the arrangement contemplated, of summoning a special jury, it should have given some intimation of its objection at the time it was first suggested by the court, when the defendant was asking of the court a postponement of the trial. The defendant sat by, and took advantage of the postponement when it was given to it, when it was particularly announced that one of the conditions would be that the case would have to be tried by a special jury. We believe the doctrine of equitable estoppel should prevail on a question of practice, in a case like this. If the party sits by, and, without objection, hears an arrangement made in court for his own advantage, and at his own instance, he should not afterwards be heard to complain of some particular part or detail of that arrangement. In this case, if the defendant desired a trial by the regular panel, it should have gone to trial at the time the case was first set. Instead of doing this, it asked a postponement, which it was foreseen would result in exactly what did happen, and which was at the time suggested, and the purpose of the court to summon a special jury was at the time fully expressed and declared. No objection was made. The continuance or postponement was accepted. Under such circumstances, we do not believe the defendant ought to be heard, in this court, to complain of the arrangement, inasmuch as it further appears that the jury was unobjectionable, and the whole proceeding, so far as the court was concerned, was fair.

The second error assigned is the ruling of the court sustaining an objection of the plaintiff to a question asked by defendant's counsel of the witness William Gundy. The question was as follows: Defendant having produced the witness William Gundy, who was foreman for defendant, and who was present at the time of the accident, asked him this question: "I will ask you to state whether or not, putting in this shot, so far as you have observed it, and the examination you have made, if that is different in any way from the usual method of working and examining the mine?” This was objected to, and the objection was sustained. The ruling of the court is assigned here as error. We think the objection was properly sus tained. While it is true that the evidence discloses the fact that the plaintiff had worked about the mine, altogether, some eight months before the accident, it does not appear that he ever before this time examined or knew anything about the manner in which shots were put in, and the examina

tion made after they had been fired. The question, in effect, is whether or not this shot was put in, and the examination made, in the usual method in that mine. Now, the usual method may have been a negligent one, and, unless the plaintiff knew that such negligence was usually indulged in, such testimony would not be material. There is nothing to show that he did know it. We think it was proper for the court to permit the circumstances of the transaction to be fully detailed, as was done in the evidence. But whether this transaction was like other transactions usually occurring in that mine would certainly not enlighten the jury as to whether it was negligent or not negligent, in itself.

The third objection urged here relates to the sufficiency of the evidence to sustain the verdict. We have made a most careful examination of the evidence in this case, and the facts are as follows: The defendant was operating an iron mine at Tintic. It was worked as an open cut on the side of the mountain. The ore was extracted from a wide vein by quarrying it out or blasting it. At the bottom the mine was carried in on a level, and the face or breast of ore becoming accordingly higher as further progress into the mine was made. At the time of the accident the lower level or bottom of the mine was something like 100 feet at the face or breast of ore below the surface of the ground. About 70 or 75 feet up the face of this breast was a roadway cut along across the ore body. Above this roadway were rock and waste matter, and some ore. In working the mine the practice was to work all that part of the ground above the roadway, being about 30 feet in depth, by blasting it down, working out the ore that was in it, and hauling off the waste at the roadway. Then the ore matter below the roadway, and down to the lower level, was blasted down, and carried away from the lower level. On the day of the accident, plaintiff was engaged, first, in sorting ore on the roadway, while two fellow laborers, Hawkins and Rundquist, were engaged in drilling a hole to put in a shot. When they were ready to fire the shot, plaintiff was notified, and he retired to a place of safety, taking with him the horse and cart which were used to haul away the waste. After the shot was fired the plaintiff came back to within about a rod of the place, and stood waiting while Hawkins, under the direction of Gundy, who was foreman for the defendant, made an examination of the bank and ground for the purpose of ascertaining if they were safe. This examination appears to have been made by Hawkins, on this occasion, in the following manner: He went up on the surface of the ground some 30 feet above the roadway, and drove a crowbar in the ground, to which he attached a rope, and by means of this rope climbed

down over the face of the precipice or bank above the roadway. He had with him a crowbar or pick for the purpose of prying out and throwing down any material that was loose, or liable in any way to fall. Hawkins describes the work, in his own language, as follows: "I drove a drill back of the bank, and made my rope fast to it, and came down and over, and worked the loose rock down. I used the rope to hold myself right along that brow. From there I looked down, and examined all portions of the ground disturbed by the blast. I worked with a pick and a crowbar. I worked down all the loose rock that I could get out there. That was after examining below on the roadway." The shot was put in just above the level of the roadway. After the examination had been made, and all the loose rock worked down by Hawkins, Gundy ordered the plaintiff to come on, and go to work hauling the waste. The language of Gundy, according to the plaintiff's own statement, was as follows: "Come on, Sam. It's all right. Bring in the cart." Plaintiff backed the cart in, and, in connection with Hawkins and Rundquist, began loading it with waste. Several loads of waste were hauled out, plaintiff driving the cart, and assisting to load it. After three or four loads had been hauled, while they were loading the cart, the bank above the roadway seems to have slipped and fallen down on the roadway, filling it up to within about two feet of the edge next to the pit below. Rundquist and Hawkins were not hurt, but the plaintiff was either knocked over or jumped over the precipice, and fell to the lowe level, some 70 or 75 feet, and was seriously injured. This statement of the evidence, we believe, embodies as strong a presentation of it as can properly be made in favor of the plaintiff. There was some evidence that there was a crack parallel to the roadway, extending a few feet from where the shot was put in. It appears to have been one of several cracks around the point where the shot had been put in. It was seen and examined by Hawkins and the foreman. It is claimed by the plaintiff that, had another shot been put in, it would have thrown the bank down, and would have prevented the accident, inasmuch as the plaintiff would not have been present when the shot was fired, and after another shot the bank could not have slipped. This contention may be reasonable, but it is certainly not founded upon anything in the evidence. There is no one who testifies that the putting in of another shot would certainly have prevented the accident. In fact, it seems to us impossible that any one should have known whether it would or not. It does appear clearly, from the testimony, that Hawkins made the examination of the bank, under the direction of the defendant's foreman, for the purpose of ascertaining whether or not it was safe.

He appears to have been a competent man for that business. He had been engaged in mining for 30 years, and was fully qualified to perform the work to which he had been assigned. In fact, no complaint was made as to his competency. Now, if it be admitted that upon this occasion he neglected to make so thorough an examination as he should have done, is the defendant chargeable with his neglect? He was unquestionably the fellow servant of the plaintiff, and it is a familiar rule that the employer is not responsible for the neglect of a fellow servant of plaintiff, when he has exercised due care in the selection of the fellow servant. In this case the defendant directed Hawkins to examine and see if the bank was safe. He made the examination, which he testifies was thorough, and pronounced it safe. Defendant's foreman directed plaintiff to come on, and go to work; that it was all right. There is no doubt but that Gundy, the foreman, relied upon Hawkins' statement as to the condition of the bank, for he himself had not examined it, and was not accustomed to examine it. It is difficult to conceive upon what theory the jury concluded that the defendant was guilty of negligence, or what particular act of negligence the defendant was guilty of. The work in which plaintiff was engaged was extremely hazardous, but the hazard and danger were open and obvious. When plaintiff accepted the employment, the risks naturally and ordinarily incident to the employment he assumed. He went to work upon this narrow roadway, above a precipice 75 feet high, in the business of blasting down and carting away under the precipice immediately above him. It was patent to the plaintiff, or any other reasonable person, that, in blasting down the wall of rock above the roadway, it was liable to give way; rocks were liable to be shaken loose, and roll down; or, in numerous other ways, plaintiff was liable to be knocked off of the narrow roadway or The plainledge on which he was at work.

tiff had worked considerably at the mine on previous occasions, and he fully understood the great hazard of the employment he took. He had a right to rely upon the legal obligation of the defendant to use ordinary care Under the circumstances, to protect him.

it would seem that in this case that care was exercised. It is impossible for us to conIclude that there was any negligence on the part of the defendant in the working and management of this mine, according to the If the evidence in the record before us. evidence was conflicting, if there was any dispute about the details or circumstances as to what occurred, if any state of facts sustained by the evidence would indicate negligence on the part of the defendant, it would be our duty to sustain the verdict of the jury. We are unable to find anything in the facts of this case that will warrant

BARTCH, J. The plaintiff brought this action to recover $1,000 and interest, due on a promissory note made payable to the order of Will R. Swan, and signed by the defendant. Swan indorsed the note in blank. and the plaintiff claims he thereafter procured it, for a valuable consideration, before maturity. At the trial the defendant objected to the introduction in evidence of the note, unless the plaintiff would supplement it with evidence that he was an innocent holder for value, etc. The court overruled the objection, and, after plaintiff rested, the defendant offered evidence to prove the allegations contained in her answer and supplemental answer, which allegations are to the effect that at the time of the making of the note there was a mortgage on the property for the purchase money of which this note was made, and of which mortgage the defendant was ignorant; that she was compelled to redeem the property after foreclosure of the mortgage; that there by the consideration given by Swan had failed; that the plaintiff was not an innocent holder for value; that the note was indorsed by Swan, who delivered the same to the Interstate Land & Town Company without consideration, which company and one A. B. Patton diverted the note from the purpose for which said Swan became

Rehearing denied.

an indorser; that the note was fraudulently and wrongfully obtained from said company by said Patton, and in fraud of the rights of said Swan, who fraudulently and unlawfully delivered the same to the plaintiff, etc. The evidence thus offered was objected to, on the ground that it was incompetent, irrelevant, and immaterial, and for the further reason that the evidence of the failure of the consideration, pleaded in the answer, is not competent against the plaintiff, who purchased the note before maturity, the answer setting up no fraud in the making and execution of the note. The objection was sustained, and after argument, and upon motion of counsel, the court instructed the jury to find the issues for the plaintiff. The jury returned a verdict in favor of the plaintiff for the sum of $1,215.

Counsel for defendant contend that the rulings of the court were erroneous. This leads to the inquiry as to whether the allegations contained in the answer were sufficient to admit the evidence offered.

The first material allegation is that the "plaintiff is not an innocent holder for value of said note." These words must be taken with reference to their ordinary meaning, and, when so taken, they should give notice of the issue which the plaintiff is called upon to meet. It is a charge of mala fides, and the facts should be distinctly alleged. What issue is the plaintiff to meet? Is it that he is simply a collusive holder, not really interested in the note himself, but only lending his name to Swan to enable him to avoid equities existing between him and the maker, or that he had knowledge of equities existing between the payee and maker of the note before he purchased it, and hence took it subject to those equities, or that he was in collusion with Swan in concealing from defendant the existence of the mortgage which caused the alleged failure of consideration? These are facts, among others, which might be mentioned, any one of which proven would show such a want of good faith that the jury might infer that he was not an innocent holder for value; but how can a court admit evidence to establish facts which do not appear in the pleadings? At most, the allegation referred to is but a naked assertion. The facts which would constitute the plaintiff such a holder ought to have been distinctly pleaded, so as to give him notice as to what he would be called upon to rebut at the trial. The allegation in question failed to do this, and was therefore insufficient. "In pleading, mala fides must be distinctly alleged, and an allegation that the party is not the bona fide holder is not sufficient." Daniel, Neg. Inst. § 770; Uther v. Rich, 10 Adol. & E. 784.

Nor is fraud sufficiently pleaded in the allegation "that said note was fraudulently and wrongfully obtained from said company by said Patton, and in fraud of the rights of v.34P.no.1-5

said Swan, who fraudulently and unlawfully, as defendant is informed and believes, delivered said note to the plaintiff herein without consideration, and for the sole and only purpose of combining and colluding wrongfully and fraudulently with this plaintiff to cheat and defraud this defendant." This states, in general terms, that the plaintiff was guilty of fraud in the alleged transaction, but it does not state any specific acts which constitute his guilt. Nor does it state that the defendant was influenced by or relied on any fraudulent acts or representations of the plaintiff or of the payee, and yet this is necessary to make the fraud actionable; for, if no reliance was placed on such acts or representations, then there was no injury. A person is said to be guilty of fraud, or of larceny, or of murder because he has done some acts which in law constitute the fraud, the larceny, or the murder. In accordance with the nature of the act, the law applies the term, which term is not a fact in itself, but simply the legal conclusion drawn from the facts. It follows that facts as to such acts must be specifically stated in pleading, in order that the court may know whether there was such fraud as will be of any avail to the pleader, and that the party accused of the fraud may know the nature of the accusation, and prepare to meet it. The allegation in question is merely a legal conclusion, as it does not state what acts the plaintiff did that were fraudulent. It is therefore insufficient, and the evidence offered under it was properly excluded. "In alleging fraud it will not suffice to say that the party fraudulently induced, or fraudulently did this or that, or that he committed or was guilty of fraud; the facts which constitute the fraud must be stated." Bliss, Code, Pl. §§ 211, 339; Cooley, Torts, 474; 2 Estee, Pl. & Pr. 2748; Gushee v. Leavitt, 5 Cal. 160; Cohn v. Goldman, 76 N. Y. 284; Kent v. Snyder, 30 Cal. 667; Triscony v. Orr, 49 Cal. 612; Hale v. Walker, 31 Iowa, 344.

Counsel for appellant also contend that the consideration for the note has totally failed because of the defendant's having to pay $1,250 to redeem the premises from the incumbrance. This contention might be good as between the maker and the payee, but will it be of any avail against the indorsee? In so far as the pleadings and evidence are concerned, it appears that the indorsee became the holder of the note for value before maturity. The note was given for purchase money for property sold by the payee to the maker. The defendant claims that the vendor undertook to sell the property to her clear of incumbrance, when in fact there was then a valid mortgage against it; that it subsequently cost her more than the amount of the note by way of redemption; and that the vendor concealed the existence of the mortgage from her. While this might be a good defense against the payee, were he to attempt the collection of the note, it cannot

avail as an offset against the indorsee, in the absence of fraud on his part. Where a person procures a negotiable instrument before it becomes due, his possession raises a prima facie presumption that he holds it lawfully and in good faith. He is not obliged to show that he paid value for it until the defendant has, under proper pleadings, proven that he procured it for an illegal consideration, or that it was a fraudulent transaction in its inception, or that it came wrongfully into his possession. In Commissioners v. Clark, 94 U. S. 278, Mr. Justice Clifford said: "Possession even without explanation is prima facie evidence that the holder is the proper owner or lawful possessor of the instrument, and the settled rule is that nothing short of fraud -not even gross negligence-is sufficient to overcome the presumption, and invalidate the title of the holder, as inferred from his actual custody of the instrument." Battles v. Laudenslager, 84 Pa. St. 446; Murray v. Lardner, 2 Wall. 110; Bank v. Crow, 60 N. Y. 85; Goodman v. Harvey, 4 Adol. & E. S70; Bank v. Chapin, 8 Metc. (Mass.) 40; Miller v. Ottaway, 81 Mich. 196, 45 N. W. Rep. 665; Burrough v. Moss, 10 Barn. & C. 558; Adams v. Smith, 35 Me. 324.

It is not claimed that the plaintiff was present when the note was made and delivered to the payee, nor is there any evidence to show that he had knowledge of fraud committed by the payee, if any was committed; nor could any such evidence have been admitted under the pleadings. We think, therefore, that, under the facts and circumstances as revealed by the record in this case, the trial court committed no material error in its rulings, and that the verdict should not be disturbed. The judgment is affirmed.

ZANE, C. J., and SMITH, J., concur.

(1 Okl. 366)

BRADFORD v. TERRITORY ex rel. WOODS, County Attorney. (Supreme Court of Oklahoma. July 20, 1893.) QUO WARRANTO PROCEEDING-JURY TRIAL-CONSTITUTIONAL LAW-ASSIGNMENT OF ERRORS.

1. In a proceeding in the nature of a quo warranto to oust an officer for misconduct, the sufficiency of the information cannot be attacked in the supreme court, in the absence of a specific assignment of error in that regard.

2. A proceeding by information in the nature of quo warranto is a suit at common law, within the meaning of Const. U. S. Amend. 7, providing for the right of trial by jury in such suits.

3. Const. U. S. Amend. 7, providing that in suits at common law involving more than $20 the right of trial by jury shall be preserved, applies to territorial courts.

4. St. Okl. c. 70, art. 18. § 22, providing that nine jurors may return a verdict, is invalid, as in violation of Const. U. S. Amend. 7. providing for the preservation of the right of trial by jury.

Appeal from district court, Oklahoma county; J. G. Clark, Judge.

Proceeding in the nature of a quo warranto, on the relation of J. H. Woods, county William attorney, against L. Bradford. From a judgment against defendant, he appeals. Reversed.

Chas. R. Reddick, for appellant. J. H. Woods and Chas. Brown, Atty. Gen., for appellee.

BURFORD, J. This was a proceeding in the nature of a quo warranto to remove the appellant from the office of county clerk for willful maladministration in office. The information is filed by the county attorney, and charges, in substance, that the appellant, Bradford, is the regularly elected, qualified, and acting clerk of Oklahoma county. That, as such clerk, it was his duty to issue licenses for the sale of malt, spirituous, and vinous. liquors to persons to whom such licenses were granted by the board of county commissioners of said county, upon the payment into the county treasury of the amounts required by law therefor. That said Bradford, as such clerk, did issue and deliver a license to each of several persons named, after the same had been granted by the board of county commissioners, without the parties having paid into the county treasury the sums of money or warrants required by law to be paid therefor, or any other suns. That said Bradford, before issuing the said licenses to said parties, did, willfully and corruptly, take and receive from each of said persons and firms as payments for such licenses the following sums in money and county warrants of said Oklahoma county, to wit: From John Hrube, $100; from T. W. Rogers, $50; from Charles Baizer, $50; from Kunkle & Miller, $50; from Pyles & Co., $100; from Frank Raney, $100; from Kretzon & Sonnenscheim, $50; from W. S. Burrus, $50; from Crane & Co., $100; from John Kohler, $50; from W. J. Carter, $50; from A. L. Chitty, $50; from J. Kaufman, $50,-total, $800,-and of the value of $700. And that he wholly refused to pay the same into the county treasury, but has appropriated the same to his own use and benefit, with the intent to deprive the county thereof. It was also alleged that he willfully and fraudulently overdrew his salary, and it is asked that he be removed from office by judgment of ouster. To this complaint the appellant files a general denial, except as to the allegations as to his official character, which were admitted. Trial was had by jury, and finding and judgment against the appellant; that he was guilty as charged; and that he had forfeited his said office. Motion for a new trial and in arrest of judgment were filed and overruled, and exceptions saved, and the case is brought here on appeal.

It is insisted in argument of counsel for appellant that the information does not state facts sufficient to constitute a cause of ac tion, but the question is not before this court. The information was not attacked by de