or waiver of service, nor in any manner give the court jurisdiction over the parties.-Cunningham v State, (Tex.) 11 S. W. 871.

6. The setting aside of agreements of counsel is ordinarily in the discretion of the trial court; but where the agreement affects the substance of the cause of action or the character of the defense, and it appears to have been made by counsel without a knowledge of all the facts, and that its withdrawal will not prejudice either party, the motion to set aside ceases to be a matter of mere discretion, and a refusal to grant it is error.-Porter v. Holt, (Tex.) 11 S. W. 494. Production of books.

7. One not a party will not be required, before the trial of an action, to produce his private books for inspection, though they contain accounts the examination of which is important to the preparation of the case for trial.-Marion Nat. Bank v. Abell's Adm'x, (Ky.) 11 S. W. 300.

Proof of agency.

1. Plaintiff and one S. having purchased a debt against defendant, S., acting for himself and plaintiff, induced defendant to give to them notes for equal amounts, secured by deed of trust on two tracts of land. One tract having been advertised under the deed of trust, S., stating that he acted for plaintiff and himself, agreed with defendant that, if defendant would not bid, or procure any one to bid, at the sale, they, S. and plaintiff, would buy the land and release defendant from the payment of any deficiency that might occur. S. purchased the land at the sale, taking a deed to himself and plaintiff, leased it to defendant, and received the rent. Plaintiff testified that S. was always his attorney when he had one; and it appeared that, after the trustee's sale, S. settled another claim of plaintiff's against defendant. Plaintiff did not demand payment of the note until eight years after the trustee's sale. Held, that there was sufficient evidence of the agency.Mitchum v Dunlap (Mo.) 11 S. W. 989. Authority of agent.

2. Plaintiffs were partners retailing goods, and G. was their clerk. They were pressed by creditors, and J., the partner having sole charge, left home, giving G. private instructions to pay such creditors as should come to collect their debts in goods at cost and carriage, and to confine each creditor to the line of goods purchased of him. J. had begun to pay creditors in that way, and G. continued to do so after J. left. H., representing a creditor, came for his debt, and asked G. to give him goods in payment, which the latter said he would do. Although G. assured H. that he was authorized to pay him in that manner, at the request of the latter he telegraphed J. to know if he might give H. a bill of sale of the goods. J. answered authorizing him to give a bill of sale to all the creditors concerned. Thereupon the goods were invoiced and sold to defendant M. and out of the proceeds H.'s debt and part of another were paid. In paying H.'s debt G. did not use the goods purchased of H.'s principal alone, but used any goods in stock, and invoiced them at less than cost and carriage, contrary to his verbal instructions. Held, that the private limitations upon G.'s apparent general

authority were not binding on M., and that plaintiffs could not recover of H. and his principal for the conversion of the goods.-Sails v. Miller, (Mo.) 11 S. W. 970.

Agent's liability to third persons.

3. In an action on a contract, made in the name of a principal, and signed in his name by defendant, as his agent, parol evidence is not admissible to show that defendant signed the name of the principal for his own benefit, and with the intention to bind himself. Heffron v. Pollard, (Tex.) 11 S. W. 165.

4. The name of the principal being that of a real person, parol evidence is not admissible to show that defendant in signing it intended to use it as his own business name.-Heffron v. Pollard, (Tex.) 11 S. W. 165.

PRINCIPAL AND SURETY.

Liability of sureties, see Bonds, 1, 2; Executors and Administrators, 3, 4; Negotiable Instruments, 7. Rights of sureties, see Counties, 3-6. Release of surety.

1. Plaintiff became a surety on a builder's contract in consideration of an order by the builder on the owner "to pay from said contract the sum of one thousand dollars; same to be paid at finish of contract." This order was accepted by the owner to be "brought in at final settlement between us. "} By the contract the owner had the right to retain 50 per cent. of the price until the contract was completed, retaining enough to pay for plastering and painting; and an inspector was provided for, whose decision should be final. Relying on the builder's misrepresentations that the contract had been performed, the owner paid him the contract price, less the $1,000 retained for the surety and the cost of plastering and painting. Held, that the surety was released from liability for the failure of the builder to comply with the contract.-St. Mary's College v. Meagher, (Ky.) 11 S. W. 608.

Remedy against surety.

2. Though the surety has been released, the owner can set off the damages sustained by the in an action by the surety to recover the amount failure of the builder to comply with the contract due on the order.-St. Mary's College v. Meagher, (Ky.) 11 S. W. 608.

3. Plaintiff, holding an overdue note given by S., on which defendant was surety, was induced by the false representations of S., and with knowledge that he was about to make an assignment, to surrender and cancel the note, and accept a new one, signed by S. alone, embracing the amount of the old note and other debts of S. payable in five years, and secured by an insufficient mortgage. Defendant was informed that the note on which he was surety had been canceled, and new security obtained from S. The next day S. assigned, and plaintiff then learned that the mortgage was not adequate security; whereupon it compelled the assignee to accept a release of the mortgage, but for nearly five months it did not notify defendant of the fraud, nor offer to transfer the mortgage to him. All the parties lived in the same city, and the mortgaged property and records were situated there. Held, that plaintiff's conduct discharged defendant from liability.-Struss v. Masonic Sav. Bank, (Ky.) 11 S. W. 769.

4. Defendant H. gave his note for $3,250 to plaintiff, and defendant M. became surety. To secure M., H. gave plaintiff a mortgage on an uudivided interest in a flock of sheep owned by H. and one A., and a note of A. for $3,465 for his interest in the sheep. The mortgage was filed in the county clerk's office, and a copy sent to the clerk's office of the county in which the sheep were, and recorded, but neither the original nor a copy was left there. The mortgage recited that it was given for the note in suit, and in consideration that plaintiff had been surety for H. for $5,000. H. kept possession of the sheep and note. A. afterwards returned the 1,200 sheep he bought of H., who can

celed and delivered to him the $3,465 note, and gave a mortgage on the 1,200 sheep to M. Of this mortgage plaintiff had notice. Afterwards, H. gave plaintiff another mortgage in lieu of the first given to him. This mortgage recited the indebtedness of H. to plaintiff for the $3,250 note in suit, his liability on the $5,000, and extended the payment of both notes. Defendant M. had no notice of the release of the first mortgage made by H. to plaintiff. On the trial H. stated that the payment of the $3,250 note was extended when the second mortgage was given, but plaintiff denied it, stating that he canceled the first mortgage and took the second because the former had not been properly recorded. Held, that plaintiff extended payment of the note for $3,250 upon sufficient consideration, and the acceptance of the second mortgage changed the contract, and enhanced the risks of the surety, and discharged him from liability.-Wylie v. High tower. (Tex.) 11 S. W. 1118.

Contribution between sureties.

5. Where the complainant, in a bill for contribution, has paid only a part of the joint indebtedness, and one or more of the defendants bave also made payments, the amounts paid by all the parties must be added together, and the sum divided by the number of solvent sureties, which will give the basis for contribution.-Gross v. Davis, (Tenn.) 11 S. W. 92.

6. Attorney's fees paid by one surety for prudently defending suits on the bond against all the sureties, and interest on such payments, are a proper subject for contribution.-Gross v. Davis, (Tenn 11 S. W 92.

7. But a surety who pays such fees to an amount in excess of the amount he is liable to contribute towards the payments on the judgment, and who sets up the payment of such fees merely as a defense to the suit for contribution, is not entitled to contribution in that suit for the excess.Gross v. Davis, (Tenn.) 11 S. W. 92.

8. Court costs are also a proper subject for contribution.-Gross v. Davis, (Tenn.) 11 S. W. 92.

PROHIBITION, WRIT OF. Want of jurisdiction.

On dissolution of a temporary injunction, in an action by an administrator, defendant moved for an assessment of damages on the injunction bond. During the proceedings a new administrator was substituted, and the surety on the bond moved for a writ of prohibition from proceeding further with the motion for damages, on the ground that the original suit abated, and the jurisdiction of the court terminated. Held, that the writ should be denied, as any error of the court in respect to its jurisdiction may be corrected on appeal or writ of error.-Mastin v. Sloan, (Mo.) il S. W 558.

Publication of Summons. See Writs, 6-11.

Public Improvements. Street assessments, see Municipal Corporations,

19-22.

PUBLIC LANDS.

Error in survey, see Surveys and Surveyors.
Swamp lands.

1. Act Cong. Sept. 28, 1850, donated certain swamp lands to the state of Missouri, with the stipulation that the proceeds of the land, whether from sale or direct appropriation, should be applied exclusively, so far as necessary, to the recla

mation of the lands by levees, etc. Various statutes of the state subsequently vested the title to a portion of the lands in Wayne county, the primary object of these acts evidently being that the value of the lands should be applied to their reclamation. Const. Mo. 1865, art. 9, § 5, provided that the proceeds of all lands granted to the state by the United States should become part of the school fund, if not already otherwise appropriated; and Sess. Acts 1868, p. 70, § 8, provided that the net proceeds of all said lands in Wayne and certain other counties, after defraying the expense of reclaiming, etc., should become part of the county school fund. Held, that the county court of Wayne county could, if they deemed it expedient, sell the land for the minimum price fixed by statute, receiving payment by the construction of levees and drains by the purchaser at the full price of the land, the sale being in good faith, and not a fraudulent device to donate the land to the purchaser.State v. County Court of Wayne County, (Mo.) 11 S. W. 758.

2. Act Cong. Sept. 28, 1850, donated swamp and overflowed lands to the different states, the selections thereof to be approved by the secretary of the interior. Act Cong. March 3, 1857, validated all selections of vacant and unappropriated lands theretofore made and reported to the commissioner of the general land-office, though not approved by the secretary. Plaintiffs' grantor purchased and paid for the land in controversy by entry at the local land-office in 1855. In 1858 it was patented to the state, under the act of 1850, under which patent defendants claim. Held, that the latter patent was prima facie evidence that the selection of this land had been duly approved by the secretary, and that the burden was on plaintiffs to show the contrary, in order to compel defendants to rely upon the confirmatory act of 1857.-Cramer v. Keller, (Mo.) 11 S. W. 734.

3. The legislature having the power, as between the state and the counties, to make such changes in the boundary lines between counties as it may see fit, and the title to swamp lands within the state having been by act Mo. Nov. 4, 1857, vested in the counties "in which they may lie," a patent from the state to the county in which the lands were situated at the date of its issuance passes the state's title, subject to any vested rights previously acquired while the lands constituted a part of the territory of another county.-Pool v. Brown, (Mo.) 11 S. W. 743.

4. The special law (act Mo. Feb. 21, 1857) providing a mode of selling swamp lands in Bollinger county was comprehended within the repealing clauses of the subsequent general acts concerning swamp lands, (acts March 27, 1868, and March 10, 1869) though not specially mentioned therein.Pool v. Brown, (Mo.) 11 S. W. 743.

5. The fact that a deed of swamp land from the county court under acts Mo. March 27, 1868, and March 10, 1869, contains an unauthorized covenant of warranty, does not impair its effect as a conveyance of title.-Pool v. Brown, (Mo.) 11 S. W. 743. School lands.

6. Act Tex. April 12, 1883, § 2, creates a state land board, who are required to exercise the powers and perform the duties thereinafter prescribed. Section 16 provides that certain public free-school lands may be leased for not less than four cents per acre, and requires provision to be made for competition in leasing. Held that, though the board has no authority to fix a higher minimum rental, a lessee who accepts a lease at a higher rate, voluntarily agreed upon, is bound by his contract. Following Smissen v. State, 9 S. W. 112.Cunningham v State, (Tex.) 11 S. W 871.

7. To make valid a purchase of public school land under act Tex. April 12, 1883, there must have been a classification of the land as required by section 3 of that act. Following Martin v. McCarty, 10 S. W. 221.-State v. Opperman, (Tex.) 11 S. W. 1076.

8. Section 6 of act Tex. April 12, 1887, relating to the sale of public school lands, provides that "the lands, when placed on the market, shall be sold in the county or in the land-district in which

they are situated." Held, that section 7, which provides the manner of sale, "until otherwise prescribed by" the land board, does not empower the board to authorize a sale elsewhere than in the county or land-district.-State v. Opperman, (Tex.) 11 S. W. 1076.

9. Section 6 also provides that the classified agricultural lands "shall be sold only to actual settlers;" and section 8, that no sale of such lands shall be perfected until the proposed purchaser files an affidavit that he intends that the land shall be actually settled within six months, and, in case of a failure to settle the same within that time, he "shall forfeit the money already paid on the land." Held, that such failure renders the contract void.-State v. Opperman, (Tex.) 11 S. W. 1076.

10. The land board have no power to impose upon the purchaser a condition that he shall settle upon the land within 90 days from the time of his purchase.-State v. Opperman, (Tex.) 11 S. W.

1076.

Titles derived from states.

11. A patent to 1,248 acres of land, describing the boundary by courses and distances, excluding therefrom 210% acres included in prior grants, is not void for uncertainty because the grants excluded are not specifically set forth.-Hall v. Martin, (Ky.) 11 S. W. 953.

12. Prior to 1820 the states of Kentucky and Tennessee agreed on a boundary line, and that a certain strip of land lying between "Walker's

line" and the line of latitude 36 deg. 30 min. north, and in Tennessee, was the property of and subject to the disposition of Kentucky, with the right on the part of that state to make all laws proper for disposing of it by grant or otherwise. În 1836 the state of Kentucky issued a patent to defendant's ancestor for 7,800 acres of this land, and nearly 50 years afterwards sued in a Kentucky court to have the patent corrected so as to convey only 1,400 acres; claiming that the larger grant was obtained by fraudulent representations. Held, that the jurisdiction of the state of Kentucky over the 7,800 acres was entirely exhausted by the execution of the patent in 1836, and the court properly dismissed the suit for want of jurisdiction.-Commonwealth v Bowman, (Ky.) 11 S. W 28.

13. The wife of one who died possessed of a Texas land certificate, sold and conveyed, in writing, her one-half interest therein, and shortly afterwards it was located, and the field-notes of the survey, together with the certificate, were returned and filed in the general land-office, with an indorsement that the balance of said certificate was entered in the name of the purchaser, but the purchaser neither recorded his conveyance in the county where the land was situated, nor filed it in the land-office. Held, that as the land certificate was personalty, the registration laws did not apply, and the purchaser acquired title thereto as against a subsequent purchaser from the wife, who had no notice of the prior sale except the memorandum on file in the land-office; that being sufficient to put him on inquiry as to the prior purchaser's connection with the certificate. - Dodge v. Littler, (Tex.) 11 S. W. 331.

14. Act Tenn. 1823, c. 49, providing for the entry of vacant lands lying north and east of the congressional reservation line and north of the Tennessee river, provided for the election and qualification of one entry-taker for each county, and fixed the amount per acre to be paid the enterer, and limited the quantity to be covered by one entry. The act of 1825 reduced the price, and the act of 1827, c. 69, increased the quantity. Act Jan. 9, 1830, c. 87, provided that, "where an entry has been heretofore made, or may hereafter be made, in any county" under the above acts, the beginning corner of which is in one county and a part of the entry in another, it shall be lawful for the surveyor of the county where such beginning corner is situated to proceed and survey such entry. Held that, as these acts all relate to the same subject, they must be construed together, and that act Jan. 9, 1830, c. 87, applied to an entry and grant under the act of Jan. 9, 1830, c. 85, which enlarged

15. The failure of the enterer to take a copy of the survey to the entry-taker's office of the other county, and have it recorded there, as provided in the act of 1825, c. 28, does not render the grant void, as such provision was omitted from the act of 1830, c. 87, which provides that such entry and survey shall not interfere with any other prior legal claim.-Graham v. Gunn, (Tenn.) 11 S. W 214. Relief against fraud and mistake.

16. Act Tex. April 14, 1883, provides that if the land board discover certain illegal or fraudulent purchases of public lands, and conclude that the interests of the common school fund will be subserved by the institution of suits to annul the purchases, it shall notify the attorney general of their conclusions, and he shall institute suit, etc. Held, that the question of the right of the attor ney general to bring a suit without specific direction to do so cannot be raised by demurrer.-Randolph v. State, (Tex.) 11 S. W. 487.

17. It is not necessary that the board shall direct that the suit be brought against any particular person, and where defendant, after suit brought, conveys to another, and dies pending plication to purchase was originally made may be suit, the grantee and those in whose names the apmade defendants, and the heirs of the original defendant need not be joined.-Randolph v. State, (Tex.) 11 S. W. 487.

18. The suit may be maintained against the substituted defendants, not as a new suit, but as a suit brought within 12 months after the act of April 14, 1883, took effect, though the conveyance was not made or was not known until after the ex

piration of the 12 months.-Randolph v. State, (Tex.) 11 S. W. 487.

19. It is not necessary for the state to return or tender the money paid for the land. Following State v. Snyder, 66 Tex. 687.-Randolph v. State, (Tex.) 11 S. W. 487.

20. Under Laws 18th Leg. Tex. c. 88, § 6, a corporation can purchase but one section in any one county. The action was to set aside the sale of four sections, and the petition alleged that a third person was the "hireling and tool" of defendant corporation, and made the purchase in his name, but at defendant's instance and for its benefit, and transferred to it all his interest. Held, that the fraud was alleged with sufficient particularity. State v. Wichita Land & Cattle Co., (Tex.) 11 8. W. 488.

21. The third person having conveyed to defendant, he had no interest to be affected by the result of the suit, and was not a necessary party. State v. Wichita Land & Cattle Co., (Tex.) 11 S. W. 488.

22. The venue of a suit by the state to set aside a sale of public lands as authorized by act Tex. April 12, 1883, is regulated by the general laws, and not by the special provisions of the act of April 14, 1883, and under Rev. St. Tex. art. 1198, § 13, the district court of the county in which the land is has jurisdiction. Following State v. Pasture Co., 66 Tex. 363.-State v. Wichita Land & Cattle Co., (Tex.) 11 S. W. 488.

Leases.

23. Laws Tex. 1883, p. 89, authorize the land board to lease certain lands, and to prescribe reg ulations governing such leasing, and provides that the land shall remain liable to sale. The board made a rule that all lease money should be paid at the state treasury at Austin, in Travis county, which should be stipulated in the lease. Defendant filed an application for a lease of certain lands in P. county, in which it was recited that the application was made under the act of 1883, and the resolution of the board. The board accepted his bid, and sent him duplicate leases, to be executed by him, containing clauses, respectively, reserving

the right to sell the land, and providing that, in case of non-payment of the rent, action therefor might be brought in Travis county. Defendant, alleging that the lease did not conform to his application, refused to execute the lease. Held, that the clauses therein did not add anything to the contract not contemplated by defendant's application, as the provisions of the statute and the resolution of the board became part of his offer; and, the rent being payable in Travis county, the courts thereof would have had jurisdiction of actions to recover

it, without the stipulation.-Neville v. State, (Tex.)

11 S. W. 868.

24. It is not essential to the validity of such a lease that the land should have been classified, as the provisions of said act regarding classification are only intended to enable the board the better to dispose of the land by sale.-Neville v. State, (Tex.) 11 S. W. 868; Cunningham v. State, Id. 871. 25. As the act provides that, if the lands were already classified at the date of its passage, no other classification should be necessary, a classification previously made may be adopted by the board, though the commissioner of the land-office has not approved it.-Neville v. State, (Tex.) 11 S. W. 868.

26. Where a state sues on a contract for a lease of public lands prima facie valid, the want of classification, if any defense to the action, should be specially pleaded.-Neville v. State, (Tex.) 11 S. W. 868.

Inclosing public lands.

27. A petition by the state for an injunction to compel the removal of inclosures, and restrain the erection of additional ones, alleged that defendant had practically inclosed a large area of the public

school lands, and of the unappropriated public domain; that such inclosures prevented the use of such lands as grazing commons by the people, interfered with the moving of stock, and obstructed travel, that they were unlawful, and impeded sale of the lands, under the laws for that purpose. Held, that the petition alleged both a purpresture and a public nuisance, and was not demurrable, as the obstruction to the right to sell the public lands cannot be waived since act Tex. Feb. 7, 1884.State v Goodnight, (Tex.) 11 S. W. 119.

28. It is not ground for refusing an injunction in such case that act Tex. Feb. 7, 1894, (Acts Tex. 1884, p. 69,) makes inclosures of public land a penal offense, and provides for its prosecution and punishment, as such act does not apply to persons inclosing land not their own, in good faith, and a public nuisance may be enjoined, though indictable.-State v. Goodnight, (Tex.) 11 S. W. 119.

29. Neither do the Texas statutes which provide for the action of trespass to try title constitute ground for refusing an injunction, as affording an adequate legal remedy, as the petition alleges inclosure of public lands, and not the erection of inclosures thereon.-State v. Goodnight, (Tex.) 11 S. W. 119.

30. A plea in abatement which alleges that there are other persons than defendant interested in the fences sought to be removed, and that de fendant is not the sole owner of any part of the inclosures, is not objectionable on the ground that such persons are not necessary partics as to that part of the petition seeking to restrain the erection of new fences.-State v. Goodnight, (Tex.) 11 S. W. 119.

31. But where such plea does not allege the nature and extent of the interest of the other persons it is too vague.-State v. Goodnight, (Tex.) 11 S. W. 119.

32. Defendant may be compelled to remove obstructions erected on his own lands, on lands of the state, and on lands in which he is interested as

partner or co-tenant, where the other persons interested with him are not within the jurisdiction of the court, without making the latter persons parties to the action, but all persons interested in the lands who are within the court's jurisdiction and all who own parts of the land in severalty should be made parties.-State v. Goodnight, (Tex.) 11 S. W. 119.

QUIETING TITLE.

Remedy at law.

One who has the legal title to land, being out of possession, cannot sue in equity to remove a cloud on his title, but will be left to his legal remedy.-Graves v. Ewart, (Mo.) 11 S. W. 971.

Qui Tam and Penal Actions. Failure to care for stock, see Carriers, 6.

QUO WARRANTO.

Against municipal corporation, see Municipal
Corporations, 4.
Appeal in proceedings, see Error, Writ of.
Jurisdiction, see Courts, 3.
Against officers.

1. Where persons holding the offices of councimen of a city whose charter provides for the registration of voters, derive title to such offices from an election invalid because the voters were not registered, they are properly ousted on proceedings in the nature of quo warranto.-State v. Frazier, (Mo.) 11 S. W. 973. Procedure.

2. Though the statute (2 Sayles, Ann. St. Tex. art. 4098) seems to contemplate that the petition for leave to file an information in quo warranto and the information itself shall be separate, yet, as the

proceeding is expressly declared to be a civil one, the liberal rules of Code pleading are to be applied, and it is sufficient if the petition for leave to file be included in and made a part of the information.

City of East Dallas v. State, (Tex.) 11 S. W. 1030.

RAILROAD COMPANIES.

See, also, Carriers; Horse and Street Railroads.
Bonds in aid of, see Counties, 12-14.
Contract for grading, see Contracts, 5, 6.
Occupation of streets, rights of abutters, see Nui-
sance, 2.

Taxation for school purposes, see Schools and
School-Districts, 4.

Forfeiture of corporate existence.

1. Rev. St. Tex. art. 4278, provides that if any railway corporation organized under that title ing its articles of association, begin the construcshall not, within two years after filing and recordtion of its road, and construct and equip, etc., at least 10 miles of its proposed road, such corporation shall "forfeit its corporate existence, and its powers shall cease as far as it relates" to the unfinished part of the road, "and shall be incapable of resumption by any subsequent act of incorporation." Held, that the failure to begin the construction of the road within the two years works a forfeiture of corporate existence without any judicial proceedings for that purpose.-Bywaters v. Paris & G. N. Ry. Co., (Tex.) 11 S. W. 856.

2. A subscription for stock is presumed to have been made with reference to the law in force at the time, and, where the period prescribed by article 4278 is suffered to elapse without beginning the construction of the road, a subscriber for stock is absolved from liability on his subscription, and the subscription cannot be revived by the subsequent passage of an act suspending the limitation, gin to run, especially as a subsequent act restoring and fixing another date when such period shall becorporate existence would in effect be an act of incorporation, and would nullify the provision of article 4278, that corporate existence which has been forfeited thereunder shall be incapable of resumption by any subsequent act of incorporation. -Bywaters v. Paris & G. N. Ry. Co., (Tex.) 11 S.

W. 856.

Construction of road.

3. In an action against a railroad company for damages caused by constructing an embankment so as to overflow plaintiff's land, the complaint alleged that the waters of B. river filled à certain