Amendment-Withdrawal. 15. Texas Court Rule 14, declaring that unless the substituted instrument shall be set aside on exception for a departure in pleading, or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, does not prevent a plaintiff from withdrawing by leave of court an amended petition to prevent defendant's obtaining a continuance on the ground of surprise, and adopting the petition for which it was substituted.-Mayer v. Walker, (Tex. Sup.) 17 S. W. 505 Refusal. 16. The refusal to allow the filing of an amended petition was equivalent to sustaining a demurrer to the petition as amended.-Arnold v. Stephens, (Ky.) 17 S. W. 859. Waiver of defects. 17. in scire facts on a forfeited recognizance an exception for failure to give the date in the ci tation comes too late after answer to the merits. Garrison v. State, 17 S. W. 351, 21 Tex. App. 342. 18. The objection that plaintiff's petition does not state facts constituting a cause of action may be raised for the first time on appeal.-Childs v. Kansas City, St. J. & C. B. R. Co., (Mo. Sup.) 17 S. W. 954. 19. Defects in a petition are cured by proof of the omitted facts, admitted without objection at the trial.-Louisville & N. R. Co. v. Taylor, (Ky.) 17 S. W. 198. PLEDGE. Surrendering stock - Obtaining new certificates. 1. In a suit on a note by an indorsee, the maker alleged that the note was made for the accommodation of the payee investment company. and that the payee owned certain stock which was in possession of plaintiff; that it was agreed between the parties that plaintiff should hold the stock as security for the note; that defendant was only surety for the investment company; that without defendant's knowledge plaintiff permit ted the stock to be assigned to E. and defendant, to secure them pro rata on the investment company's investments; that without defendant's knowledge such stock was sold. Plaintiff denied that it held the stock as defendant alleged, but as security for other indebtedness of the investment company. Held, that it was not error to charge that if plaintiff, without the consent of defendant, caused said stock to be surrendered, and other certificates issued for a different purpose than the security of the debts for which it had been agreed that the stock should be held, defendant was not liable; and that, when shares of stock are pledged for the payment of a debt, the pledgee may surrender the certificates pledged and have other certificates in the name of the pledgee, and if plaintiff agreed to hold said stock as security for the payment of the note sued on, yet, if such change in the form of said stock was made without any intent to use said stock for any other purpose than that for which it was agreed to be held, defendant would not be released from liability on the note.-Smith v. Traders' Nat. Bank, (Tex. Sup.) 17 S. W. 779. 2. A charge that if defendant signed the note as accommodation maker, and plaintiff had notice thereof, and if, at the time of making the same, it was agreed by plaintiff that it would hold the stock as security for the same, and afterwards the investment company agreed with plaintiff that its cashier could realize on the stuck, and pay pro rata on certain of the investment company's notes, held by plaintiff without the knowledge and consent of defendant, they should find for defendant, was as favorable to defendant as the facts warranted. -Smith v. Traders' Nat. Bank, (Tex. Sup.) 17 S. W. 779. Police Power. Bee Constitutional Law, 18, 19. Possession. See Adverse Possession. POWERS. Power of attorney. "to take full and absolute charge of all my busi1. A power of attorney which gives authority ness and affairs whatsoever;" to make contracts 66 for the sale of" lands; to execute deeds of conveyance "to whom he may or shall make sale;" to receive from the "purchaser or purchasers" the "consideration money therefor;" and to "do all matters and things whatsoever relating to the premises, as fully" as the grantor of the power might do if personally present, does not authorize a deed of conveyance in settlement of a preexisting claim.-Frost v. Erath Cattle Co., (Tex. Sup.) 17 S. W. 52. 2. When a power of attorney is to a partnership as such, a deed executed in the partnership Erath Cattle Co., (Tex. Sup.) 17 S. W. 53. name by one of the partners is good.-Frost v. firm name, in the execution of a deed under a 3. Where a person who claimed to sign the was in fact at the time a member of the firm, power of attorney to the firm, as one of the firm, this is sufficient, in the absence of evidence to the contrary, to justify the presumption that he was such member at the time of the execution of the power of attorney.-Frost v. Erath Cattle Co., (Tex. Sup.) 17 S. W. 52. Power of sale-Execution of deed of trust. 4. Executors empowered by will to sell testator's land have no authority to execute a deed of trust as security for money borrowed by them. -Willis v. Smith, 17 S. W. 247, 66 Tex. 31. pearance: PRACTICE IN CIVIL CASES. Directing verdict, see Trial, 28, 29. 1. Plaintiff sued G., K., M., and C., jointly, on an alleged contract to pay him for defending C. in an action brought to remove him from the office of county treasurer, by reason of his refusal to keep his office at another place, claimed to be the county-seat. The evidence showed that C. did not join in the contract, but allowed his official position to be used by his co-defendants to test the question of removal of the county-seat, and for which purpose he refused to remove his office, or register bonds issued to build a courthouse at the contemplated county-seat. Held, that C. was not the principal obligor on the contract, within the meaning of Rev. St. art. 1257, which provides that, where suit is discontinued as to the principal obligor, no judgment can be had against the guarantor or surety, unless it is alleged and shown that such principal obligor resides out of the state, and plaintiff properly dismissed as to him.-Keesey v. Old, (Tex. Sup.) 17 S. W. 928. 2. Where there was no objection made to plaintiff's dismissal as to one of defendants by the other defendants until judgment was rendered, at which time the evidence showed that the dismissed defendant was not liable on the contract, it was not error to refuse a new trial on the ground of the dismissal.-Keesey v. Old, (Tex. Sup.) 17 S. W. 928. 3. Under Rev. St. art. 1259, which allows a discontinuance as to one or more defendants, when it will not prejudice the others, the dismissal as to C. was proper, it not being shown that his co-defendants were thereby injured.Keesey v. Old, (Tex. Sup.) 17 S. W. 928. Set-off by defendant. 4. Under Code, (Mill. & V.) § 4936, which provides that if the defendant shall plead a set-off, and there is a balance in his favor, the court shall enter judgment for such balance against the plaintiff, and that, if plaintiff shall fail to establish any demand, defendant shall have judgment for the amount to which he is entitled, the plaintiff cannot dismiss the suit where a set-off is pleaded, and defendant's right to a recovery for whatever indebtedness he may establish is not dependent upon the plaintiff's having established a demand of smaller amount against him.-Boone v. Bush, (Tenn.) 17 8. W. 792. Nonsuit. 5. In an action against a constable for an alleged false return, it is proper to grant a nonsuit, where the evidence of the complaining party virtually shows that the writ in question was duly served.-State v. Devitt, (Mo. Sup.) 17 S. W. 900. Prescription. a finding that W. had authority to contract to locate the depot on plaintiff's land was warranted. -Gulf, C. & S. F. Ry. Co. v. Jones, (Tex. Sup.) 17 S. W. 534. 3. Though a general agent has no authority to buy goods on credit, if the goods are delivered by plaintiffs without knowledge of such limitation they are not bound by it.-Liddell v. Sahline, (Ark.) 17 S. W. 705. 4. Plaintiff cashed a draft to the order of H. or bearer, drawn on defendant insurance company by W., its local agent. W. had power to receive proposals for insurance, to countersign, issue, and renew policies, and receive premiums. The draft purported to be in full of all claim against defendant for loss under policy No. 100, and was presented to plaintiff by W., with a letter to W. from defendant's secretary, which authorized him "to make a draft to the order of the court for the benefit of whom it may concern' for the sum due. Held, that there was dence of W.'s authority to draw and negotiate the draft. Commercial Union Assur. Co. Rector, (Ark.) 17 S. W. 878. Ratification. no evi 5. Defendant, who was to pay the running expenses of a mill, including the pay-rolls, gave his agent authority to buy goods of plaintiff not to exceed $25 in value. The agent, however, purchased goods of plaintiff largely in excess of that amount, furnished them to the mill hands, and charged them therefor on their pay-rolls. When defendant paid the mill hands, and took credit for the goods which had been furnished them and charged on their pay-rolls, he knew that but a short time before the agent had made an account with plaintiff largely in excess of $25, and his agent had told him that the business could not be run without supplies for the help, See Adverse Possession; Limitation of Actions. and he saw by the pay-rolls that supplies were Presumption. See Evidence, 8. As to death, see Death. Principal and Accessory. Bee Criminal Law, 2-7. PRINCIPAL AND AGENT. See, also, Attorney and Client; Factors and Brokers. Evidence of agency. 1. Plaintiff sued to recover of certain heirs for services rendered in the location of land. The petition alleged that plaintiff was employed by the heirs under a contract executed by their guardian and by the administrator, as agents of the said heirs. Held, that the said contract was binding only upon those who signed it; and a declaration therein that the guardian and administrator acted in the capacity therein named was not evidence of their authority, without other proof showing that they had such authority.-Fine v. Freeman, (Tex. Sup.) 17 S. W. 783. Powers of agents. 2. On the question whether one W. was authorized, in procuring a right of way for defendant railway company, to contract for the location of depots, the evidence was conflicting. W. and the general manager of the road testified that he had no such authority, while several persons testified to instances in which he had exercised such authority to the company's knowledge. It was also shown that when W. procured certain land from plaintiff, agreeing, as consideration therefor, to locate a depot thercon, as claimed by plaintiff, he exhibited to plaintiff and another witness a telegram from the general manager, which he said stated that if plaintiff did not give the land they would not locate a depot on it. Held, that furnished them which he had no reason to believe were provided by himself. Held, that he was at least put on inquiry, and that his availing himself of the unauthorized purchases was a sufficient ratification to bind himself on the original contract. Neimeyer Lumber Co. v. Moore, (Ark.) 17 8. W. 1028. 6. Where certain persons representing themselves as the agents of defendants sell a lot to plaintiffs on certain conditions, and these conditions are made known to defendants, who make no offer to return the purchase money, defendants must be deemed to have ratified the agency. -Kelly v. Carter, (Ark.) 17 S. W. 706. 7. Where an agent, without authority, makes a contract with a certain person for the location of land, whereby the said person is to receive for his services an interest in such land, and the principal accepts the benefits resulting from the location, this does not of itself give the said per son any right in the land.-Fine v. Freeman, (Tex. Sup.) 17 S. W. 783. Action by agent. 8. Under Gen. St. Ky. c. 47, § 5, providing that the stakeholder of money staked on a bet or wager shall, when notified, return the same to the person making the stake or deposit, and for failing to do so the amount may be recovered from him "by the party aggrieved, "1 one who deposits a stake as agent for another, and has no further interest in it, cannot sue in his own name to recover it, but the action must be brought by his principal.-Donohue v. McDonald, (Ky.) 17 S. W. 195. Action against-Pleading and proof. 9. In an action for goods sold to a general agent of defendants as members of a co-operative association, though the account filed is against the agent, where defendants admit in their answer that such agent was manager and clerk of such association, it is competent for such agent and others to testify that the goods were purchased pursuant to his authority for and were used by defendants.-Liddell v. Sahline, (Ark.) 17 8. W. 705. 1220 PRINCIPAL AND SURETY. See, also, Bail Bonds. Liability of sureties on guardian's bond, see 1. A financial agent, appointed to refund a county's indebtedness, was prohibited from including therein any of the bonds of such county numbered 161 to 200, without an actual order of the county court. By a subsequent order of court, he was cuthorized to negotiate for the exchange of renewal bonds aggregating $120,000, in denominations of $600, $500, and $100. The agent gave a bond, with sureties, in which it was expressly stipulated that in no event should there be delivered to him at any one time more than 25 of such renewal bonds of a face value of $600 each, or an equivalent amount of $500 or $100 bonds. The county court afterwards issued, without further order, other bonds in excess of the $120,000 previously issued, the last lot being numbered 164 to 225, each for $500, and two others for $100 each. These bonds were delivered to the agent, who converted them to his own use. Held, in an action on the agent's bond, that the sureties were not liable on any issue in excess of the original $120,000.-Sullivan County v. Hatfield, (Mo. Sup.) 17 S. W. 945. Liability of sureties. 2. The least amount of which a principal was in default after the date of giving a new bond which did not release the suretics on the old bond, is the greatest amount for w ich the sureties of the prior bond can be held liable. -Loyd v. City of Ft. Worth, (Tex. Sup.) 17 S. W. 612. Discharge and release of surety. 3. The giving of a new bond by the city assessor, pursuant to Rev. St. Tex. art. 366, does not release the sureties on the bond already existing from liability for defaults of the principal to that date.oy v. City of Ft. Worth, (Tex. Sup.) 17 S. W. $12. Military bounty lands, statute of limitations, see title by adverse possession, see Adverse Possession, 9. Grants to railroads. 1. Act Tex. Aug. 16, 1876, grants to railroad companies theretofore chartered, or thereafter organized under the general law, on the completion of a section of 10 miles or more of road, 16 sections of land for each mile so completed and put in running order: "provided, that the act shall not be construed to renew or continue any right to companies which have failed or may fail to complete their roads within the time specified in their charters." Held, that the proviso did not exclude from the benefit of the act a company which had previously acquired no right to public lands under its charter, and which had failed after the passage, and before the taking effect, of the act to complete its road in the time the charter required.-Galveston, H. & S. A. Ry. Co. v. State, (Tex. Sup.) 17 S. W. 67. 2. Act Tex. Aug. 16, 1876, grants to railroad companies theretofore chartered, or thereafter organized under the general law, on the completion of a section of 10 miles or more of road, 16 sections of land for each mile, so completed and put in running order. Held, that the grant attaches only to continuous sections of the main line, and land certificates based on the length of switches and side tracks are voidable, notwithstanding the decision of the executive department to the contrary.-Galveston, H. & S. A. Ry. Co. v. State, (Tex. Sup.) 17 S. W. 67. 3. The fact that the certificates did not distin guish between lands granted for mileage of the main line and of the side tracks did not invalidate the entire grant.-Galveston, H. & S. A. Ry. Co. v. State, (Tex. Sup.) 17 S. W. 67. Forfeiture. 4. A provision in the charter of a railroad company that, if its road be not completed in a certain time, "the charter shall be forfeited," is not self-executing; and, unless the forfeiture has been judicially declared in proceedings for that purpose, lands granted to the company cannot be recovered by the state on the ground that, prior to the grant, the company had failed to complete its road within the stated time.-Galveston, H. & S. A. Ry. Co. v. State, (Tex. Sup.) 17 S. W. 67. Titles derived from states. 5. Const. Tex. 1876, art. 14, § 4, providing that "no certificate for land shall be sold at the land-office except to actual settlers upon the same, and in lots not to exceed 160 acres;" and section 2, providing that all genuine land certificates heretofore or hereafter issued shall be located only upon unappropriated public domain, and not upon any land titled or equitably owned under color of title from the state,-apply exclusively to the sale of land certificates at the land-office, and have no reference to sales contemplated by Act Tex. July 14, 1879, as amended by Act March 11, 1881, providing for the sale of all vacant and unappropriated lands, in certain counties, in tracts of 640 acres each. -Sanborn v. Gunter, (Tex. Sup.) 17 S. W. 117. 6. Laws Tex. 1879, as amended by act of March 11, 1881, relating to public lands, provide that "these lands shall be sold in tracts of 640 acres each, unless precluded by previous surveys, etc. Held, that in an application to pur chase land in one body, to be surveyed in 640 acre tracts, it is not essential to describe the land "section by section," since the act simply prescribes the amounts to be purchased, and does not prescribe or affect the form of application. -Jumbo Cattle Co. v. Bacon, (Tex. Sup.) 17 S. W. 136. 7. Laws Tex. July 14, 1879, as amended by Laws 1881, p. 25, provided for the sale of state lands at 50 cents per acre to any responsible person who would make application therefor and Laws Tex. Jan. 22, 1883, repealed the foregoing acts. Held, that upon a Cancellation of fraudulent sales, limitation, see survey the same. proper application for the purchase of state lands, 8. The treasurer could not defeat that right shall issue for the lands surveyed and paid for. 9. The fact that a witness was employed by 10. Laws Tex. May, 1873, § 8, reserves the Headrights. 11. A special act of the legislature, directing 12. In an action to recover a section of land 13. Laws Tex. March 11, 1881, amendatory of Transfer of certificate. 15. Where plaintiffs claim land under a trans- Bar of unsatisfied certificate. 16. Const. art. 14, § 2, provides that all unsat- Forfeiture of grant. 17. Act Ky. 1808, incorporating the "Lewis QUI TAM AND PENAL AC- Action to recover penalty for Sunday labor, see Indictment for penalty. 1. Though a statute provides that a penalty 2. A variance between a complaint, giving Judgment-Award to wrong person. 3. Where a judgment is rendered for a pen- RAILROAD COMPANIES. See, also, Carriers. Construction of track in street, see Municipal Discrimination against, for injuries causing death, see Constitutional Law, 9. 1. The construction and operation by a rail- Registration of charter. 2. The statutes provide that a railroad com- 8. Where a charter is amended so as to change 4. There being no common-law obligation for Municipal aid. 5. Gen. St. Mo. 1865, pp. 338, 339, §§ 17, 21, pro- Held, that such bonds Foreclosure of mortgage-Intervention 6. Where a certain creditor is seeking judg- (Tex. Sup.) 17 S. W. 60; Same v. Kennedy, Id. 67. 7. In an action against a railroad company 8. At the crossing of a horse and a steam |