§ 2. Rights and liabilities as to third persons.

Where the holder of a bill of exchange, upon discovering that the maker had acted as agent, or for accommodation, of Y., presented it as a claim against the insolvent estate of Y., there was not such an election to look to Y. as precludes him from looking to the maker for the balance due.-Hoffman v. Anderson (Ky.) 49.

executed for sums due on various other notes, which embraced 10 per cent. interest, held incompetent.-Stepp v. Hatcher (Ky.) 819.

PRIORITIES.

Between execution and other claims, see "Ex-
ecution," § 3.
Of mortgages, see "Mortgages," § 2.
Of vendors' liens, see "Vendor and Purchaser,"

§ 5.

PRIVATE ROADS.

PRIVILEGE.

Effect on limitation, see "Limitation of Actions," § 2.

Of married women, see "Husband and Wife," § 2.

An instruction in an action by a mortgagee

of a homestead to recover the property held er

PROBABLE CAUSE.

PROBATE.

PROCESS.

Where one having authority to sell land sells to himself, in a suit by the owner against a grantee of the purchaser, the burden is on plaintiff to show that defendant had notice of plaintiff's equities.-Hunter v. Eastham (Tex. Civ. App.) 1080.

A power giving authority to sell land carries authority to execute conveyances.-Hunter v. Eastham (Tex. Civ. App.) 1080.

Where one has no interest in land, save under a power to sell, his deed in his own name, conveying his interest, passes the title of the owner.--Hunter v. Eastham (Tex. Civ. App.)

1080.

Where one, having authority to sell the lands of another under a recorded power, conveys in satisfaction of his own debt, the grantee takes no title.-Hunter v. Eastham (Tex. Civ. App.) 1080.

PRINCIPAL AND SURETY.

See "Bail"; "Bonds"; "Guaranty."
Action on contractor's bond, see "Limitation of
Actions," § 1.

Liabilities of sureties on bonds for perform-
ance of duties of trust or office, see "Execu-
tors and Administrators." § 9.
Liabilities on bonds for performance of duties
of trust or office, see "Sheriffs and Consta-
bles," § 2.

§ 1. Creation and existence of relation. A surety held not relieved from liability by an agreement with the principal.-Forrest v. White Sewing Mach. Co. (Tex. Civ. App.) 340. § 2. Remedies of creditors.

Where the sureties on a note defended on the ground that plaintiff had extended the time of payment, and that they were thereby released, evidence that the note sued on was

In

In particular actions or proceedings. criminal prosecutions, see "Criminal Law," § 6.

Particular forms of writs or other process. See "Execution"; "Injunction"; "Mandamus"; "Prohibition": "Sequestration."

§ 1. Nature, issuance, requisites, and validity.

Where a defendant demurred to a first amended original petition, and it was sustained, no new citation was necessary on the seeond amended pleading, filed at a subsequent term, stating the same cause of action.-Wisbey v. Houston Nat. Bank (Tex. Civ. App.) 195.

An allegation in an amended petition, allegnot a statement of a new cause of action, reing value within the court's jurisdiction, held quiring service of citation anew.-Wisbey v. Houston Nat. Bank (Tex. Civ. App.) 195. § 2. Service.

Act March 16, 1848 (Pasch. Dig. arts. 25, 26), construed, and held to warrant service by publication of unknown heirs in the first instance, even though their ancestor had never been himself a party to the suit.-Kilmer v. Brown (Tex. Civ. App.) 1090.

PROHIBITION.

Of traffic in intoxicating liquors, see "Intoxicating Liquors."

§ 1. Nature and grounds.

A court having jurisdiction of a prosecution, its refusal of jury trial is at most mere error, which is not ground for writ of prohibition.-Delaney v. Police Court of Kansas City (Mo. Sup.) 589.

PROMISSORY NOTES.

See "Bills and Notes."

The authority of the officers authorized to issue school land patents, under Const. art. 7, § 6, and Act April 7, 1883, held ministerial, and hence that the state was not concluded by their acts.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

The question as to the de facto existence of a county to which school land patents were issued, under Const. art. 7, § 6, and Act April 7. 1883, held to have no bearing upon the validity of the patents.-Cameron's Ex'rs V. State (Tex. Civ. App.) 348.

Purchasers for value without notice held to obtain no title to lands patented, under Const. art. 7, § 6, and Act April 7, 1883, to a county which did not belong to the state.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

In an action by the state to recover lands patented under Const. art. 7, § 6, and Act April 7. 1883, findings held insufficient to raise the question of innocent purchasers.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

In an action by the state to recover lands patented under Const. art. 7, § 6, and Act April 7, 1883, the defense of estoppel held not applicable.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

Act Feb. 8. 1860, purporting to create a county, and subsequent acts recognizing such county as existing, held not to estop the state from reclaiming lands patented under Const. art. 7, § 6, and Act April 7, 1883, to such county.Cameron's Ex'rs v. State (Tex. Civ. App.) 348. The actions of the officers authorized to issue school land patents under Const. art. 7, § 6, and Act April 7, 1883, in issuing such patents, held not to estop the state from reclaiming the land, where the patentee county did not belong to the state.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

In an action by the state to recover lands patented, under Const. art. 7, § 6. and Act April 7, 1883, to Greer county, so called, a purchaser of the lands from the county held not entitled to set up estoppel.-Cameron's Ex'rs v. State (Tex. Civ. App.) 348.

Batts' Ann. Civ. St. § 4218f. considered in connection with section 4218ff, held to authorize a purchaser of school lands to purchase additional lands at the time of purchasing his home place.-Nowlin v. Hall (Tex. Civ. App.) 900.

Where an application to purchase school lands was regular, and the applicant was an actual settler thereon until his assignment to another, the award of the land to such applicant took the land off the market until it was declared forfeited by proper proceedings; and a subsequent applicant, alleging abandonment, could not recover the lands.-Duncan v. State (Tex. Civ. App.) 903.

In action for school land, held proper to exclude evidence that purchaser from state was minor, especially when facts brought purchase within Acts 1899, p. 259. Strickel v. Turberville (Tex. Civ. App.) 1058.

Where various applications to purchase leased school lands were all premature, because made before the expiration of the lease, but one of the applicants filed another application after the expiration of the lease, he was entitled to the land, though his first application was not prior to that of the other premature applicants.-Corbin v. McGee (Tex. Civ. App.) 1068.

Attitude of owner of school land lease with regard to the time of expiration thereof held to prevent him from attacking the validity of a sale to another applicant on the ground that his application was prematurely filed.-Corbin v. McGee (Tex. Civ. App.) 1068.

Where two or more applications for the purchase of leased school lands are filed prior to the expiration of the lease by persons other than the lessee, the first applicant is entitled to the land, if the other applicants do not file a further application after the lease has expired.-Corbin v. McGee (Tex. Civ. App.) 1068.

Settlement on leased school land prior to the expiration of the lease does not give right to apply for adjoining land.-Corbin v. McGee (Tex. Civ. App.) 1068.

A lease of school land for a term of two

years from August 26, 1899, cannot be regarded August 26, 1901, and an application to purchase as expiring prior to 12 o'clock midnight of made prior thereto is premature.-Corbin v. MeGee (Tex. Civ. App.) 1068.

Lands surveyed and located under a railroad land grant held, under Const. 1876, art. 7, 88 2, 4, Id. art. 14, § 2, and Act Feb. 3. 1883, § 1, to be school lands, not subject to be patented, even though the railroad land grant was invalid.-Mills v. Needham (Tex. Civ. App.) 1097.

PUBLIC SCHOOLS.

See "Schools and School Districts," § 1.

PUBLIC USE.

Taking property for public use, see "Eminent Domain.'

PUNISHMENT.

See "Criminal Law." § 32; "Penalties": "Homicide," § 8.

PUNITIVE DAMAGES.

See "Damages," § 3; "Death," § 1.

QUANTUM MERUIT.

QUASHING.

to the one who located it. such indorsement

is sufficient to justify a finding that such transfer was made.-Barrett v. Spence (Tex. Civ. App.) 921.

Information," § 2.

QUESTIONS FOR JURY.

$ 21.

QUIETING TITLE.

Repeal of statute relating to quieting of title, see "Statutes," § 3.

§ 1. Proceedings and relief.

Where land has remained wild and unimproved until shortly before the commencement of suit for its possession, plaintiff's claim is not stale.-Penrose v. Doherty (Ark.) 398.

A petition in an action under Rev. St. 1899, $ 650, alleging title in plaintiff, and that defendant has entered under claim of title and withheld possession from plaintiff, does not contain facts on which to predicate a judgment for restitution.-Bedford v. Sykes (Mo. Sup.) 569.

On a finding for plaintiff in an action under Rev. St. 1899, § 650, entry of judgment for restitution of the premises is unwarranted.— Bedford v. Sykes (Mo. Sup.) 569.

A petition held not to state a cause of action for removal of cloud on title.-Smith v. Morgan (Tex. Civ. App.) 919.

RAILROADS.

See "Street Railroads."

Carriage of goods and passengers, see "Carriers."

Condemnation proceedings, see "Eminent Domain," § 2.

1. Right of way and other interests in land.

Deflection of railroad from right of way held not abandonment of enterprise, working a forfeiture.-Dickson v. St. Louis & K. R. Co. (Mo. Sup.) 642.

The commissioners' court of a county has authority to grant a railroad a right to build a track in a public road or highway.-Texarkana & Ft. S. Ry. Co. v. Texas & N. O. R. Co. (Tex. Civ. App.) 525.

That the act of a railroad company in building a certain spur track was ultra vires does not justify an entry on such track by another railroad.-Texarkana & Ft. S. Ry. Co. v. Texas & N. O. R. Co. (Tex. Civ. App.) 525.

Where a lumber company and a railroad construct a spur track from the former premises to the latter's line, the former has no right to authorize a use of the spur by another railroad.-Texarkana & Ft. S. Ry. Co. v. Texas & N. O. R. Co. (Tex. Civ. App.) 525.

§ 2. Construction, maintenance,

equipment.

and

In action for injuries from maintenance of coal bins by railroad, there can be no recovery, unless there was damage to plaintiff's property from the manner of operation of the bins, and no recovery for damage caused by trains passing on the track by plaintiff's house.-Louisville & N. R. Co. v. Walton (Ky.) 988.

In determining whether the verdict in action for damages from operation of railroad coal bins is excessive, the fact that the recovery is in full of all damage caused by the reasonable, ordinary, and prudent operation of the bins is to be considered.-Louisville & N. R. Co. v. Walton (Ky.) 988.

That coal bins were necessary to the operation of a railroad does not preclude plaintiff from recovering damages for injury to his property from the operation of the bins.-Louisville & N. R. Co. v. Walton (Ky.) 988.

$ 3. Indebtedness, securities, liens, and mortgages.

A civil engineer, employed by a railroad company to survey its line and superintend the construction of its road, held entitled to a lien under Rev. St. 1889, § 6741, and Rev. St. 1899, § 4239.

-Van Frank v. St. Louis, O. G. & Ft. S. Ry. Co. (Mo. App.) 688.

One entitled to a lien, under Rev. St. 1889, § 6741, and Rev. St. 1899, § 4239, on the property of an insolvent railroad company, could not intervene in a suit to foreclose a mortgage on such property, for the purpose of having his claim decreed priority over the mortgage debts.-Van Frank v. St. Louis, C. G. & Ft. S. Ry. Co. (Mo. App.) 688.

The appointment of a receiver for an insolvent railroad company held not to entitle one having a lien under Rev. St. 1889, § 6741, and Rev. St. 1899, § 4239, to intervene in a suit to foreclose a mortgage debt, for the purpose of having his claim decreed priority over the mortgage debts.-Van Frank v. St. Louis, C. G. & Ft. S. Ry. Co. (Mo. App.) 688.

One who failed to perfect his lien under Rev. St. 1899, § 6741, and Rev. St. 1899, § 4239, on the property of an insolvent railroad, held not entitled to have his claim decreed priority over mortgage creditors by a court of equity.-Van Frank v. St. Louis, C. G. & Ft. S. Ry. Co. (Mo. App.) 688.

Where one entitled to a lien under Rev. St. 1889, § 6741, and Rev. St. 1899, § 4239, intervened in a suit to enforce a mortgage on an insolvent railroad to have his claim decreed priority over the mortgage debts, his legal remedy under the statutes could be set up as a defense, without any plea of adequate remedy_at_law.Van Frank v. St. Louis, C. G. & Ft. S. Ry. Co. (Mo. App.) 688.

Sp. Laws 1870, p. 45, and Act Dec. 19, 1857, making certain sales of "roadbed, track, franchise, and chartered rights and privileges" of a certain railroad prima facie evidence of title in the purchaser, did not include property never occupied or used by the purchaser.-Everett v. Galveston, H. & S. A. Ry. Co. (Tex. Civ. App.) 453.

§ 4. Operation -Statutory, municipal, and official regulations.

A railway company is required to fence its tracks within the limits of an unincorporated town, if it can do so without obstructing the streets, except where necessary to keep them open within reasonable switch limits for the convenient transaction of its business and the safety of its employés in handling cars.-Downey v. Mississippi River & B. T. Ry. Co. (Mo. App.) 945.

Where a city ordinance prohibits the running of trains at a higher rate of speed than 8 miles an hour, the running of a train at 35 miles an hour is an act of negligence.-Edwards v. Chicago & A. R. Co. (Mo. App.) 950. § 5.

Injuries to licensees or trespassers in general.

The court properly refused to instruct that if defendant's brakeman put plaintiff's intestate, a trespasser, off the train maliciously, and not in the discharge of his duty as brakeman, the jury should find for the defense.-Illinois Cent. R. Co. v. McManus' Adm'x (Ky.) 1000.

An instruction as to the duty of servants in charge of a train in putting a person off, even though he be a trespasser, reviewed.-Illinois Cent. R. Co. v. McManus' Adm'x (Ky.) 1000.

In action for injuries received while climbing between cars of a freight train not on a public crossing, the fact that other cars of the same train did block the crossing was immaterial.-Thompson v. Missouri, K. & T. Ry. Co. (Mo. App.) 693.

Instruction in action against a railroad company for negligently causing death held argumentative.-Lumsden v. Chicago, R. I. & T. Ry. Co. (Tex. Civ. App.) 168.

Set of general and special instructions in an action against a railway company for negligently

causing death held erroneous, because unduly emphasizing particular defense.-Lumsden v. Chicago, R. I. & T. Ry. Co. (Tex. Civ. App.) 168. § 6.

$

Accidents at crossings. Action against a railroad company for death, resulting from failure to give signal of the approach of train at crossing, held to be for the jury.-Chesapeake & O. Ry. Co. v. Dupee's Adm'r (Ky.) 15.

Boy climbing between cars of freight train held not required to use same care as adult, though appreciating the danger, unless he has also the same prudence as an adult.-Thomp son v. Missouri, K. & T. Ry. Co. (Mo. App.)

693.

Railroad company, before moving a freight train blocking a public street, should give warning of some kind.-Thompson v. Missouri, K. & T. Ry. Co. (Mo. App.) 693.

In an action against a railroad company for injuries sustained by a traveler at a street crossing, evidence held insufficient to show that he was guilty of contributory negligence as a matter of law in obeying the flagman's signal to cross.-Edwards v. Chicago & A. R. Co. (Mo. App.) 950.

In an action against a railroad company for injuries sustained by a traveler at a street crossing, evidence held to show that the engineer was negligent in failing to take proper steps to stop the train after discovering the traveler's peril. Edwards v. Chicago & A. R. Co. (Mo. App.) 950.

A railroad company's flagman, directing a traveler to hurry across the tracks, though a train was then approaching at a high rate of speed, and so near as to make it hazardous to drive on the tracks, held negligent.-Edwards v. Chicago & A. R. Co. (Mo. App.) 950.

A railroad company's flagman at a street crossing, failing to be on guard as a traveler approaches the crossing, and giving no signal until the traveler is in great danger, is guilty of negligence. Edwards v. Chicago & A. R. Co. (Mo. App.) 950.

A railroad company held guilty of negligence in leaving an engine unattended, with steam up, at a public crossing.-Texas Midland R. R. V. Cardwell (Tex. Civ. App.) 157.

Plaintiff, in an action against a railroad company for injuries caused by reason of his horse having been scared by an engine at a public crossing, held not guilty of contributory negligence.-Texas Midland R. R. v. Cardwell (Tex. Civ. App.) 157.

Plaintiff, in an action against a railroad company for injuries received while attempting to cross defendant's tracks near an engine at a public crossing, held not to have assumed the risk. Texas Midland R. R. v. Cardwell (Tex. Civ. App.) 157.

Evidence held to sustain a verdict that a person injured at a railroad crossing was not guilty of contributory negligence.-St. Louis S. W. Ry. Co. of Texas v. Carwile (Tex. Civ. App.) 160.

railroad track.-Hughes' Adm'r v. Louisville & N. R. Co. (Ky.) 984.

Evidence held not to sustain recovery against a railroad company for the death of a person who was struck and killed by a train while sitting asleep on the end of the ties of defendant's track at a late hour at night.-Hughes' Adm`r v. Louisville & N. R. Co. (Ky.) 984.

Evidence of defendant's regligence in an action for injuries on a railroad bridge held sufficient to go to the jury.-Kentucky & I. Bridge Co.'s Receivers v. Montgomery (Ky.) 1008.

An instruction that it was the duty of defendant bridge company, in operating its train upon the bridge, "to exercise the highest degree of care usually exercised by prudently managed corporations of the same character to prevent injury to passengers," etc., in effect required of defendant only the exercise of ordinary care.-Kentucky & I. Bridge Co.'s Receiv ers v. Montgomery (Ky.) 1008.

Persons using the highway of a bridge are charged with notice of the right of the bridge company, in operating its trains over the bridge. to make all usual and reasonable noises incident thereto, and they must act for their own safety with reference to such right.-Kentucky & I. Bridge Co.'s Receivers v. Montgomery (Ky.)

1008.

Where a bridge company operates trains on one side of its bridge, and the other is used by it as a toll highway, it is the duty of its servants in charge of trains to keep a lookout for the teams on the bridge, and, if they are discovered to have become so frightened as to be unmanageable, to cause no more noise than is necessary. Kentucky & I. Bridge Co.'s Receivers v. Montgomery (Ky.) 1008.

Where plaintiff discovered his child on a railroad track a short distance in front of an along the track towards the train in an efapproaching train, the fact that he ran back fort to save his child does not render him liaSan Antonio & A. P. Ry. Co. v. Gray (Tex. ble to a charge of contributory negligence.— Sup.) 763.

railroad trestle while running to save his inWhere plaintiff was injured by falling on a fant son from being run over by an approaching train, not at a crossing, and plaintiff saw the danger before the train reached a crossing, it was error to charge that failure to perform the statutory duty of whistling and ringing the bell at crossings rendered the defendant liable. San Antonio & A. P. Ry. Co. v. Gray (Tex. Sup.) 763.

Where plaintiff was injured while running on a railroad track to rescue his child, who was in danger of being run down by an approaching train, the fact that he was wrongfully on the track when he discovered his child's peril does not make him a trespasser in his subsequent efforts to save his child.-San Antonio & A. P. Ry. Co. v. Gray (Tex. Sup.) 763.

541.

Evidence in an action against a railroad company for running over plaintiff's child considered, and held to show negligence of the engineer in failing to see the child in time to avoid the accident.-Texas & P. Ry. Co. v. Harby (Tex. Civ. App.) 541.

Where a locomotive engineer is negligent in failing to see a child on the track, the exercise of due care in attempting to stop the train after the peril is discovered does not relieve the company from liability.-Texas & P. Ry. Co. v. Harby (Tex. Civ. App.) 541.