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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.
See, also, Abatement and Revival: Appeal: Ap-
Costs;
Attachment; Certiorari;
Courts; Deposition; Equity; Exceptions, Bill
of: Execution; Garnishment: Judgment: Jury;
Justices of the Peace; New Trial: Parties;
Pleading; Removal of Causes; Report and
Case Made: Trial; Venue in Civil Cases;
Witness; Writs.

Directing verdict, see Trial, 28, 29.
On appeal, see Appeal, 10-18.
Dismissal.

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.

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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.

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PRINCIPAL AND SURETY.

See, also, Bail Bonds.

Liability of sureties on guardian's bond, see
Guardian and Ward, 2.
Scope of contract.

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.

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Military bounty lands, statute of limitations, see
Limitation of Actions, 1.

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.
Limitation of Actions, 2.

proper application for the purchase of state lands,
made December 1, 1882, a survey made January
19 and 20, 1883, payment of the surveyor's fees
and the fees for recording in the general land-
office, and a tender of the purchase price to the
state treasurer, the applicant acquired a vested
right in the lands, which the legislature cannot
divest.-Jumbo Cattle Co. v. Bacon, (Tex. Sup.)
17 S. W. 136.

8. The treasurer could not defeat that right
by refusing to accept the money.-Jumbo Cattle
Co. v. Bacon, (Tex. Sup.) 17 S. W. 136.

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shall issue for the lands surveyed and paid for.
Held, that an application to the proper surveyor,
November 25, 1882, for the survey of land open to
pre-emption, the filing of the field notes in the
general land-office, January 30, 1883, and the pay-
ment, March 27th following, to the state treasurer
of the ful purchase price, confirms the right of
purchase, and it could not be defeated by the
provisions of the act of March 31, 1883, validat-
ing patents and surveys by virtue of headright
and bounty warrants issued under special laws
enacted after March 31, 1870, and prior to April
17, 1876.-White v. Martin, 17 S. W. 727, 66 Tex.
840.

9. The fact that a witness was employed by
another to locate land under a certificate of grant
which be claimed to own is not sufficient to au- 14. S., a soldier in the Texas revolution, and
thorize the submission of the question of owner- as such entitled to a headright of a third of a
ship of the certificate to the jury, when the pat-league of land under Act Dec. 14, 1837, received
ent was issued to the original owner, as the mere a certificate in 1841, and in 1849 conveyed the
possession of a muniment of title is not evidence certificate and the land on which it had been
of title in the possessor.-Chamberlain v. Pybas, located by deed with covenants of warranty
(Tex. Sup.) 17 S. W. 50.
against himself and his heirs. The certificate for
the headright, which had never been established
by suit, was invalid. Act April 26, 1873, direct-
ing, for the relief of S., that another certificate
be issued to him in lieu of the original, was in
conflict with Const. 1866, art. 10, § 6, prohibiting
a grant of land to any one by the legislature.
Held, that under Gen. Laws 1883, p. 38, declar-
ing that all surveys and patents by virtue of
headright and bounty warrants, to which there
was no valid legal objection other than that the
special acts authorizing the certificates under
which they were located were in conflict with
the constitution then in force, were validated
and confirmed to "soldiers and heirs and actual
settlers of Texas and their vendees," it was the
intention to revive the original right, rather
than to create a new one, and therefore the bene-
fits of the act accrued to those to whom S. grant-
ed the original certificate, rather than to his heirs.
17 S. W. 238, reversed.-Ralston v. Skerrett, (Tex.
Sup.) 17 S. W. 843.

10. Laws Tex. May, 1873, § 8, reserves the
Memphis and El Paso reservation, from the
twenty-third meridian west to the Rio Grande
river, from pre-emption and location, for the
benefit of the Texas Pacific Railway Company,
to a distance of 40 miles on either side of the
center of such reserve. In December, 1872, de-
fendants' lessors made application for the sur-
vey of 40 alternate certificates, and on May 10,
1873, applied for a survey of 200 additional cer-
tificates. In July, 1873, they made the 240 al-
ternate surveys under their two applications, and
filed them in the general land-office. These sur-
veys did not cover the land in question. Their
application, however, covered 420 sections of
land more than were necessary to satisfy their
surveys, and included the land in controversy.
Afterwards, and without any additional filing,
they surveyed the lands in suit, which lie with-
in the 80 mile Texas & Pacific Railway reserve
under other and different certificates than the
240 alternate certificates on file. Held, that the
application of the new certificates could only take
effect as new locations, and the latter, being made
subsequent to the above act, are void.-Jumbo
Cattle Co. v. Bacon, (Tex. Sup.) 17 S. W. 136.

Headrights.

11. A special act of the legislature, directing
a headright certificate to issue in lieu of a void
certificate, was but in effect a direction to issue a
land certificate as a donation, which under Const.
Tex. art. 10, § 6, then in force, the legislature
had no power to do.-White v. Martin, 17 S. W.
727, 66 Tex. 340.

12. In an action to recover a section of land
through a patent which issued in August, 1883,
on a location made in 1874 on a certificate issued
under Sp. Laws Tex. 1873, p. 307, directing the
commissioner of the general land-office to issue
to one J., "640 acres headright in lieu of No. 162,
issued in Shelby county, without the conditional,"
it appeared that the certificate referred to in the
act had been issued without the conditional cer-
tificate required by law by the Shelby county
board of land commissioners on May 27, 1840, who
at that time had no authority to act. The cer-
tificate was rejected by the board of claims,
April 5, 1858, and there was nothing to show that
it was ever recommended by any board appointed
to detect fraudulent land certificates, nor that it
was established by suit. Held, that certificate
No. 162 was void, and could not be made the foun-
dation of a right.-White v. Martin, 17 S. W. 727,
66 Tex. 340.

13. Laws Tex. March 11, 1881, amendatory of
Laws 1879, relating to public lands, provides that
any person, firm, or corporation may purchase
any of the unappropriated lands by causing and
paying for a survey of the land desired by the
authori ed surveyor of the county or district
where it is situated, and it shall be the right of
such intending purchaser, who has had the same
surveyed, to pay into the state treasury the pur-
chase money at the rate of 50 cents per acre, and,
upon presentation to the commissioners of the gen-
eral land-office of the treasurer's receipt, a patent

Transfer of certificate.

15. Where plaintiffs claim land under a trans-
fer of the certificate prior to the issue of the pat-
ent, and the defendants claim through a regular
chain of title from the patentee, and, there be.
ing some controversy as to the transfer, the court
charges that title to the certificate would pass,
as between its true owner and the claimant, by
written transfer, or by verbal sale, or by an
adverse holding for two years, if the charge as
to title by adverse possession is not correct, the
plaintiffs cannot complain, for in so far it is in
their favor.-Sickles v. White, 17 S. W. 543, 66
Tex. 178.

Bar of unsatisfied certificate.

16. Const. art. 14, § 2, provides that all unsat-
isfied land certificates in existence at the time of
the adoption of the constitution shall be barred
after five years therefrom. Rev. St. arts. 3887,
3888, in proper cases, authorize the issuance of
certified copies of certificates and certificates of
unlocated balances. Held, that the issuing of
certified copies and of certificates of unlocated
balances does not give new life to the original
certificate, and the constitutional bar is not
affected by their dates. -New York & T. Land
Co. v. Thomson, (Tex. Sup.) 17 S. W. 920.

Forfeiture of grant.

17. Act Ky. 1808, incorporating the "Lewis
County Academy, "authorized the trustees to pat-
ent land for the benefit of the academy. In 1825
the legislature authorized the trustees to sell for
the benefit of the academy the land which they
had patented. Held that, the land not having
been sold, and the academy being dissolved,
and there being no trustees, the legislature had
power, 26 years later, to repeal the act of 1825,
and grant the land for another purpose; since,
the trust being for a special purpose, and that
purpose having failed, the land reverted to the
grantor without any direct proceeding to establish
the forfeiture.-Kennedy v. McElroy, (Ky.) 17 8.
| W. 202.

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QUI TAM AND PENAL AC-
TIONS.

Action to recover penalty for Sunday labor, see
Sunday, 6-9.

Indictment for penalty.

1. Though a statute provides that a penalty
prescribed thereby shall be recovered only in a
suit" by the prosecuting attorney in the name
of the people, the court has jurisdiction to ren-
der judgment for the penalty, where it is sought
to be recovered by indictment presented under
the sanction of the grand jury, if the indictment
is, in substance, equivalent to a complaint, and
is signed by the prosecuting attorney, since in
such case the proceeding may be treated as a
suit. St. Louis, I. M. & S. Ry. Co. v. State,
(Ark.) 17 S. W. 806.
Variance.

2. A variance between a complaint, giving
defendant's name as a "railroad" company, and the
summons and judgment, giving it as a "railway"
company, is immaterial. -St. Louis, L. M. & S.
Ry. Co. v. State, (Ark.) 17 S. W. 806.

Judgment-Award to wrong person.

3. Where a judgment is rendered for a pen-
alty, error in awarding the same to persons not
entitled to it does not prejudice defendant.-St.
Louis, I. M. & S. Ry. Co. v. State, (Ark. 17 S.
W. 806.

RAILROAD COMPANIES.

See, also, Carriers.

Construction of track in street, see Municipal
Corporations, 24, 25.

Discrimination against, for injuries causing death,

see Constitutional Law, 9.
Land grants in aid of, see Public Lands, 14.
Charter and franchises.

1. The construction and operation by a rail-
road company of a part of its road proves an ac-
ceptance of its charter, where no particular mode
of acceptance is designated.-St. Joseph & I. R.
Co. v. Shambaugh, (Mo. Sup.) 17 S. W. 581.

Registration of charter.

2. The statutes provide that a railroad com-
pany's charter shall first be registered in the
County where the company's principal office is;
that it shall then be transmitted to the secretary
of state, who shali affix his certificate of regis-
tration and the great seal of state, and that these
shall be registered where the charter was orig-
inally registered; and that this shall complete the
company's corporate character. Held that, where
a company was organized to run a railroad
through several counties, the county where its
charter has been so registered shall be deemed
to have been determined on as the location of the
principal office, and holding a directors' and
stockholders' meeting in another county will not
change the fact.-Anderson v. Middle & East
Tennessee Cent. R. Co., (Tenn.) 17 S. W. 803.

8. Where a charter is amended so as to change
the starting point of a railroad, the change will
not be effected unless such amendment is regis
tered in the county where the charter was orig-
inally registered.-Anderson v. Middle & East
Tennessee Cent. R. Co., (Tenn.) 17 S. W. 803.
Failure to fence.

4. There being no common-law obligation for
a railroad to build a fence along its line, but it
being obliged by statute to build half of the fence
after notice, as in the case of persons owning ad-
joining lands, damages cannot be recovered
against a railroad for failure to construct a fence,
though it has refused to do so after notice, where
plaintiff does not aver a construction of, or offer
to construct, his half of the fence. -Hall v. Trus-
tees of Cincinnati Southern Ry., (Ky.) 17 S. W.
207.

Municipal aid.

5. Gen. St. Mo. 1865, pp. 338, 339, §§ 17, 21, pro-
vide that counties, with the assent of two-thirds
of the voters, shall have the right to subscribe
to the stock of railroad companies, whether in-
corporated under the general law or some special
act. It is also made the duty of the county court
the bonds issued therefor. The bonds in question
to levy a special tax to pay the subscription or
were issued under Act Feb. 20, 1865, incorporat-
ing the M. & M. R. Co., and authorizing the levy
of a "tax to pay the same not exceeding one-twen-
could be paid only out of the special tax provid-
tieth of one per cent."
ed for them, and not out of the general revenues
of the county. SHERWOOD, P. J., dissenting. 11
S. W. 747, affirmed. -State v. Trammel," (Mo.
Sup.) 17 S. W. 503.

Held, that such bonds

Foreclosure of mortgage-Intervention
by state.

6. Where a certain creditor is seeking judg-
ment against a railroad company on certain bonds
and mortgages, an intervening petition by the
state, alleging that the bonds and mortgages are
void, and that the railroad company, by collu-
sion and neglect to defeud, is about to allow
judgment to go against it by default; that such
railroad company, in consideration of large
grants of land from the state, has agreed to
maintain low rates of transportation; and that,
if said bonds and mortgages are foreclosed, the
rates will, of necessity, be increased, and im-
pose great burdens on commerce,-does not show
such a public interest as entitles the state to in
tervene and prevent such judgment; especially
when neither the charter of the road nor any
subsequent law reveals any such contract as that
its rates of traffic shall be governed by state
alleged, and the charter expressly provides that
regulation.-State v. Farmers' Loan & Trust Co.,

(Tex. Sup.) 17 S. W. 60; Same v. Kennedy, Id. 67.
Defective fences-Injury to crops.

7. In an action against a railroad company
for damages occasioned by cattle breaking through
defective fences erected by defendant, it is un-
necessary for the plaintiff to show diligence in
repairing such defects, even though the owner
trespassed upon is authorized by Rev. St. art. 4243,
to repair cattle-guards "at the expense of the
railroad company if it fails to do so," for such
statute is permissive only, and the owner may
bility for contributory negligence if he fails to
exercise the privilege at his option, without lia-
do so.
lowed. -San Antonio & A. P. Ry. Co. v. Knoepfli,
Railroad Co. v. Young, 60 Tex. 201, fol-
(Tex. Sup.) 17 S. W. 1052.
Accidents at crossings.

8. At the crossing of a horse and a steam
railway, the view of the latter's track was ob-
structed until within 15 feet of it. A horse car
was driven slowly upon the crossing, without
warning from a gateman stationed at the cross-
ing by the railroad company, until the horses
were on the crossing, when, as an engine ap-
proached on a down grade, the gateman shouted
to the driver of the horse-car to stop, and com-
menced to lower the gates guarding the crossing,

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