Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 694

694 INDEX.
PREEMPTION--Continued.
to give to B the right to a survey of the land after it had been
thus appropriated by C. Such a construction would change the
legal position of the parties, and violate the Constitution in its
provision against retroactive laws.
2d. Even if the law were otherwise, B could not maintain a proceeding
for mandamus against the surveyor, until after C's patent
had been canceled by a decree of a court of competent jurisdiction.
Miller v. Hays, 479.
PRINCIPAL AND AGENT.
1. An agent acting under power of attorney which authorized him
"to mortgage, hypothecate, or create a lien " on the lands of his principal,
borrowed a sum of money for which he executed a note, secured it
by a deed of trust, made at the same time on the land of his principal.
Suit was brought against the principal on the note and to foreclose the
mortgage. Defendant pleaded non est factumn, as to the note only,
which, notwithstanding the plea, was admitted in evidence with the deed
of trust, with no further evidence of its execution than that afforded by
the deed of trust: Held,
1st. That there was no error, the deed of trust and note constituting
one transaction; the note being evidence of the debt, and
the trust deed both evidence and security. 2d. The trust deed
alone was sufficient without the note to authorize a judgment
for the debt and a decree of foreclosure. Taylor v. Hudgins, 244.
2. Such a power of attorney will be construed as authorizing the
agent to negotiate a loan for his own or his principal's benefit. Id.
PRINCIPAL AND SURETY.
1. An agreement by the principal to pay an increased rate of interest
without consideration will not discharge the surety. Claiborne v. Birge,
98.
2. The release of surety by alteration of contract by principal can only
follow from a valid contract binding upon the principal, and in some
way interfering with or impairing the rights of the surety. Id.
PROMISSORY NOTES.
BANKRUPTCY, 3.
1. Upon the failure to deliver such specific articles at maturity, the
obligation becomes absolute for the sum specified in money. Short v.
Abe'rnathy, 94.
2. PARTIES-OFFSET. The payee of a note, who assigned the same to
avoid the payment of debts, indorsed upon it at the time of the assignment
a credit for an amount agreed to have been due from the payee to
the assignee. Upon the assignment, in a suit by such assignee :
feld,
1st. That the assignee having by virtue of the assignment the legal