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Parol evidence as to indorsement of
checks for collection, see Evidence,
15.
Variance between pleading and proof
as to title, see Evidence, 51.
3. An unrestricted indorsement of a
check confers on the indorsee the legal
title and the right to sue thereon, although
the check is taken for collection. Citizens'
State Bank v. E. A. Tessman & Co. 45:
606, 140 N. W. 178, 121 Minn. 34.
4. Where certain checks are deposited
by the payee to his account in a bank, and
immediately thereafter he draws on his
account in favor of the drawer of the
checks, in such an amount as to leave his
account with the bank overdrawn upon a
dishonor of the checks deposited, and there-
after other checks are substituted by the
drawer of the first checks for the dis-
honored ones, and these indorsed unre-
strictedly, and deposited for collection by
the payee with the bank, to make good his
overdraft, and thereupon the drawer, with
knowledge of the possession of the checks
by the bank, settles with the depositor.
and stops payment on the substituted
checks, an action may be maintained by
the bank against the drawer on the checks.
Citizens' State Bank v. E. A. Tessman &
Co. 45: 606, 140 N. W. 178, 121 Minn. 34.
5. An agency coupled with an interest
in favor of the bank is created by the de-
posit in a bank of checks unrestrictedly
indorsed, in lieu of previously dishonored
checks, and to cover an overdraft created
thereby; and the depositor has no power
to revoke the agency, or to demand a re-
turn of the checks or their proceeds, or to
prejudice the rights of the bank by a
settlement with the drawer, so long as the
overdraft is unpaid. Citizens' State Bank
v. E. A. Tessman & Co. 45: 606, 140 N. W.
178, 121 Minn. 34.
Pledge of assets.
6. A bank organized under a statute
permitting it to do business upon the
terms and conditions and subject to the
liabilities prescribed in the statute has no
power to pledge its assets to secure a de-
positor or a surety for a depositor, where
such power is not expressly mentioned in
the statute. Commercial Bank & T. Co.
v. Citizens' Trust & Guaranty Co. 45: 950,
156 S. W. 160, 153 Ky. 566.
7. A statute requiring banks which be-
come state depositories, to give security for
the public fund, does not authorize them
to pledge their assets as security, but ap-
plies to personal security only. Commer-
cial Bank & T. Co. v. Citizens' Trust &
Guaranty Co. 45: 950, 156 S. W. 160, 153
Ky. 566.
(Annotated)
8. Charter authority to receive de-
posits and pay interest thereon does not
empower a bank to pledge its assets to
secure a depositor. Commercial Bank &
T. Co. v. Citizens' Trust & Guaranty Co.
45: 950, 156 S. W. 160, 153 Ky. 566.
BATTERY.
See Assault and Battery.
BENEFICIARIES.
Of insurance, see Insurance.
Deducting benefits resulting from nui-
sance from damages for, see Dam-
ages, 7.
BENEVOLENT SOCIETIES.
Binding effect on order of acceptance
of dues by local lodge, see Insur-
ance, 29.
By cotenant, see Cotenancy.
Right of widow of cotenant to dower
in improvements made by hus-
band, see Dower.
BILLS AND NOTES.
Preferences to indorser, see Bank-
ruptcy, 1.
Authority of bank officers as to, see
Banks, 1.
Compromise by giving of, see Com-
promise and Settlement, 2.
Validity of note procured by duress,
see Duress, 1, 2.
Presumption as to indorsement, see
Evidence, 7.
Parol evidence as to, see Evidence, 15.
Presumption and burden of proof in
action on, see Evidence, 7.
Payment of note, see Payment.
Taxation of premium notes, see Taxes,
1. An indorsement making a note pay-
able in the alternative to one or the other
of two persons named does not destroy its
negotiability under the negotiable instru-
ment act. Page v. Ford, 45: 247, 131 Pac.
1013,
Or..
2. The insertion in a mortgage given
to secure a note, both instruments being
executed at the same time as part of the
same transaction of a provision that the
mortgagor shall pay all taxes assessed
against the note or mortgage, does not,
where the note does not incorporate the
provisions of the mortgage, render the note
non-negotiable as creating an uncertainty
in the amount due, since the instruments
are not to be construed together as form-
ing only one contract. Page v. Ford, 45:
247, 131 Pac. 1013, . Or,
Liability of indorser.
3. The payee of a note cannot enforce
payment of it against one who, without the
knowledge of the maker, signs it to assist
him in discounting it at the bank, if it is
never discounted, but the payee is merely
seeking to enforce the original obligation.
Cowan v. Hudson, 45: 720, 62 So. 275,
Miss.-.
Rights and liabilities of transferees.
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4. It is only where a defense arises
before indorsement that the question wheth-
er the indorsee is an indorsee for value
within the law merchant becomes material.
Citizens' State Bank v. E. A. Tessman &
Co. 45: 606, 140 N. W. 178, 121 Minn. 34.
5. Lack of consideration is no defense
to a note in the hands of a bona fide holder
for value. Page v. Ford, 45: 247, 131 Pac. BRIDGES.
1013, Or.
As a local improvement for which
abutting property may be assessed,
see Cases Certified; Public Im-
provements, 1.
Municipal liability for injury by oper-
ation of drawbridge, see Municipal
Corporations, 13.
Oral statements by grantor as to build-
ing restrictions on other lots in
tract, see Contracts, 1, 2.
Equitable relief for violation of oral
assurance by grantor as to build-
ing restrictions, see Equity, 3.
Restrictions in covenants, see Covenants
and Conditions, 1, 2.
Who is within protection of ordinance
requiring roof over sidewalk while
building is being erected, see Mu-
nicipal Corporations, 1.
Contract for state buildings, see State.
Statute nullifying contract for con-
struction of state building, see Con-
stitutional Law, 10.
In general, see Fraudulent Conveyances.
Validity of sale in bulk of stock of
drugs, see Contracts, 4.
In general, see Evidence, 2-9.
Liability for killing another under mis-
taken belief that he was a burglar,
see Death, 2.
Question for jury as to reasonableness
of belief that person killed was at-
tempting burglary, see Trial, 3.
ing a passenger from the train, knocks or
throws him against his daughter to her in-
jury, is liable for the injury and fright
which may result to her therefrom. Chesa-
peake & O. R. Co. v. Robinett, 45: 433, 152
S. W. 976, 151 Kỵ. 778.
5. A passenger cannot recover damages
for injury inflicted upon her by the push-
ing against her by the train hands of her
father, in an attempt to eject him from
the train, using no more force than was
necessary, if, because of his intoxication,
Of insurance company, see Insurance, refusal to surrender his ticket, and abuse,
3, 4.
CANCELATION OF INSTRUMENTS.
he rendered himself subject to ejection, and
his resistance thereto caused the impact
with the person injured. Chesapeake & 0.
Cancelation of insurance policy, see In R. Co. v. Robinett, 45: 433, 152 S. W. 976,
151 Ky. 778.
Duty as to vehicle or place of riding.
6. A street car company is not negligent
is using open cars with wheel guards pro-
jecting into the running boards along the
sides so as to be liable for injuries to a
passenger whose foot strikes and slips from
the guarding when he is attempting to
alight from the car, thereby throwing him
from the car and injuring him, if cars of
this type are in common use, and it is not
shown to be feasible to dispense with guards
or use safer ones. Adduci v. Boston Ele-
vated R. Co. 45: 969, 102 N. E. 315.
Mass.
(Annotated)
Ejection of passenger or trespasser.
See also supra, 4, 5.
7. A brakeman on a freight train bas
no implied authority to remove trespassers
therefrom, so as to charge the railroad com-
rid-pany with liability for injuries inflicted in
Boston & M. R. Co. 45: 813, 100 N. E. 606,
the performance of the act. Harrington v.
Relation of carrier and passenger
tween employer and servant
ing on elevator, see Master and
Conversion by carrier, see Trover, 2, 3.
Who are common carriers.
1. Those engaged in the business of
draymen or truckmen, for transportation of
goods and merchandise within a city, are
common carriers. Lawson v. Connolly, 45:
1152, 141 N. W. 623, Mich.
Assault.
Punitive damages for, see Damages, 1.
Recovery for mental suffering, see Dam-
ages, 8.
2. A carrier is not liable for an assault
upon one passenger by pushing another
against him if, without provocation, the
one pushed assaulted the conductor, who.
using no more force than was or reason-
ably appeared to be necessary, repelled the
attack, and in so doing pushed him against
the complaining passenger. Chesapeake &
O. R. Co. v. Robinett, 45: 433, 152 S. W.
976, 151 Ky. 778.
Measure of care required; negligence
generally.
3. A carrier is not liable for fright of
a passenger by wrongfully assaulting her
father, and ejecting him from the train,
in her presence, and leaving her to pursue
her journey alone, Chesapeake & O. R. Co.
v. Robinett, 45: 433, 152 S. W. 976, 151 Ky.
778.
(Annotated)
4. A carrier which, in wrongfully eject-
Injuries in getting on or off.
See also supra, 6.
8. A street car company is not negli
gent in stopping its cars where the ground
slopes toward a sewer pocket, so that at the
point where passengers must alight it is 2
or 3 inches below the ordinary level, where
the street is in good repair, and it has per-
mitted passengers to alight at such point
for years without any complaint that it
is unsafe to do so. Morrison v. Rhode Is
land Co. 45: 988, 87 Atl. 199,- R. I. —.
9. The mere fact that a thirteen-year-
old boy who is accustomed to riding be-
tween his home and school on a railroad
train knows that there is possibility of in-
jury is jumping from the train while it is
moving does not relieve the carrier from lia-
bility for his injury in attempting to jump
when the train is passing the school, if.
to the knowledge of the carrier, boys had
been in the habit of doing so without any
attempt on its part to prevent it. Kambour
v. Boston & M. R. Co. 45: 1188, 86 Atl. 624,
N. H.
10. A railroad company having knowl
edge that boys riding to school on its trains
are in the habit of jumping from the train
while it is passing the schoolhouse, to avoid
walking back from the station, is bound to
take active measures to prevent their doing
SO. Kambour v. Boston & M. R. Co. 45: | Carrying live stock.
1188, 86 Atl. 624,
11. A railroad company, whose duty is
to restrain a boy from leaving a moving
train, is liable for injury to him in so leav-
ing, if, because of his youth and inexperience
he was not negligent in so doing, notwith-
standing he knew that there was a possi-
bility of his being injured, and voluntarily
assumed the risk of such injury. Kambour
v. Boston & M. R. Co. 45: 1188, 86 Atl. 624, |
N. H. -
12. A boy who does not know that it is
the duty of a railroad company to prevent
him from jumping from its train does not
consent to its failure to do so, so as to
make applicable the maxim Volenti non fit
injuria to an injury received by him in so
doing. Kambour v. Boston & M. R. Co. 45:
1188, 86 Atl. 624, N. H.
Measure of damages for, see Damages,
Conversion of injured live stock by car-
Evidence in action for conversion of,
17. A railroad company is liable for in-
jury to live stock in its possession for
transportation through the derailment of
the train by the sudden appearance of a
cow upon the track in front of the locomo-
tive under circumstances which it could not
reasonably have anticipated, so that it was
guilty of no negligence in the matter. Cin-
cinnati, N. O. & T. P. R. Co. v. Rankin,
45: 529, 156 S. W. 400, 153 Ky. 730.
Stipulations as to liability.
Prohibition against, as interference
with interstate commerce, see Com-
Effect of contract limiting liability on
measure of damages for injury, see
Damages, 4.
18. The ordinary rule of damages will
apply in case of injury by a carrier to live
if it secured the contract fixing its value
stock in its possession for transportation,
by fraud or deceit. Cincinnati, N. O. & T.
P. R. Co. v. Rankin, 45: 529, 156 S. W. 400,
153 Ky. 730.
Connecting carriers.
13. Whether or not a thirteen-year-old
boy was negligent in attempting to leave
a train while it was in motion must be de-
termined by ascertaining whether or not
the ordinary boy of his age and experience,
and with his knowledge of the situation and
its dangers would have done what he did.
Kambour v. Boston & M. R. Co. 45: 1188,
86 Atl. 624, N. H. -.
Duty to receive and transport freight.
14. A transportation of intoxicating
liquor from a place of sale in one state to
the residence of a purchaser in another,
which is designed to be a continuous pas- 19. The provision of the Carmack amend-
sage, is interstate commerce, although it is ment of the interstate commerce act, ren-
to go over the lines of several connecting dering a carrier liable for loss or injury
carriers, and therefore, an express company to property in its possession for transpor-
cannot refuse to receive from a boat a pack-tation, caused by it or a connecting carrier,
age at a point within the state of destina-
tion to complete the transportation, al-
though a statute forbids any person to as-
sist either seller or purchaser in effecting
a sale of liquor within the state. Ameri-
can Exp. Co. v. Beer, 45: 120, 61 So. 306,
Miss.
(Annotated.)
Delivery by carrier; delay.
Burden of showing inability to com-
municate with shipper where car-
rier sells goods without notice, see
Evidence, 8.
Sale of goods by carrier without notice
as conversion, see Trover, 2.
15. Where a carrier offers delivery of
goods to a consignee, who refuses to accept
them, the carrier is chargeable with the
duty of notifying the shipper with reason-
able promptness that the goods are held sub-
ject to his order, and the perishable nature
of the goods will not excuse the omission
of the carrier to give this notice where
it is practicable to do so, nor will it au-
thorize the carrier to sell the goods. Ala-
bama G. S. R. Co. v. McKenzie, 45: 18, 77
S. E. 647, 139 Ga. 410.
(Annotated)
16. A statute providing that whenever
the property transported by a carrier is
fruit, and it is not delivered, the same
may be sold at public outcry on twenty-
four hours' notice of sale, does not protect
a carrier who has given no notice of such
sale.
Alabama G. S. R. Co. v. McKenzie,
45: 18, 77 S. E. 647, 139 Ga. 410.
does not relieve it from liability for loss
caused by derailment of the train due to the
sudden springing of an animal onto the
track in front of the locomotive, the pres-
ence of which could not have been reason-
ably anticipated, so that no amount of care
on the part of the carriers could have pre-
vented the wreck. Cincinnati, N. O. & T.
P. R. Co. v. Rankin, 45: 529, 156 S. W. 400,
153 Ky. 730.
20. If a shipper does not route his ship-
ment, the carrier may select the route, if
there be more than one, but he must exer-
cise the option of the selection reasonably
under the circumstances, to the best inter-
ests of the consignee and shipper, and not
to their disadvantage, unless in good faith
and under circumstances which seem to re-
quire it. Alabama G. S. R. Co. v. McKen-
zie, 45: 18, 77 S. E. 647, 139 Ga. 410.
Rates; discrimination.
Effect on jurisdiction of state courts of
action for discrimination, of Fed-
eral Interstate Commerce Act, see
Courts, 6.
Damages in action for discrimination in
rates, see Damages, 2.
21. The modern common law imposes up-
on common carriers the duty of equality in
freight rates to all shippers similarly cir-
cumstanced, for the transportation of the
same class of goods the same distance; and
our statutes prohibiting such discrimina-
tion are declaratory of the common-law
rule. Sullivan v. Minneapolis & R. R. R.
Co. 45: 612, 142 N. W. 3, 121 Minn. 488.
22. The shipper's common-law right of
action for damages for discrimination in
rates is not taken away by rate-regulating
statutes, which furnish no civil remedy to
the shipper therefor. Sullivan v. Minneapo-
lis & R. R. R. Co. 45: 612, 142 N. W. 3, 121
Minn. 488.
(Annotated)
23. Even though there be no common-
law duty on the part of common carriers
to maintain equality in rates, under a stat-
ute prescribing the same and thus imposing
a new obligation upon the carrier a shipper
who has been discriminated against has a
right of action in damages therefor, there
being no civil remedy provided by the stat-
ute. Sullivan v. Minneapolis & R. R. R.
Co. 45: 612, 142 N. W. 3, 121 Minn. 488.
CARRYING WEAPONS.
A pistol filled with dirt and so rusty
that it cannot be loaded or unloaded,
opened or fired, is not within the law against
carrying concealed weapons. Burnside v.
State, 45: 780, 62 So. 420, Miss. -
Injury to passenger by condition of,
see Carriers, 6.
Injury to employee by, see Master and
Servant, 27.
Assumption of risk as to, see Master
and Servant, 37.
No action lies for causing the re-
lapse of a convalescent woman by calling
her over the telephone during her husband's
known absence and with threatening and
abusive language ordering her to take
charge of her husband's cattle, which had
escaped from their inclosure, under penalty
of a threatened visit to her home to avenge
the speaker of the assumed wrong inflicted
by failure to keep the cattle inclosed.
Kramer v. Ricksmeier, 45: 928, 139 N. W.
1091, Iowa, -.
CASES CERTIFIED.
An agreed statement of facts may be
certified to the supreme court for its opin-
ion as to whether or not a viaduct in a
street is a local improvement for which
abutting property may be assessed, under
a statute permitting parties to any pro-
ceeding to make an agreed case containing
the points of law at issue between them to
be certified to the appellate court, and pro-
viding that the cause shall proceed in the
same manner as if a full record had been
certified. Waukegan v. De Wolf, 45: 918,
101 N. E. 532, 258 Ill. 374.
Opinion evidence as to, see Evidence,
17.
Sufficiency of proof of, see Evidence,
Proximate cause, see Proximate Cause.
CHATTEL MORTGAGE.
A sale by a mortgagor of chattels,
in whom is the legal title, with the con-
sent of the first mortgagee, without notice
to intermediate lien holders, does not fore-
close their liens, although the sale is made
for the full value of the property, and the
proceeds are applied to the payment of the
debt secured by the first mortgage. Platte
Valley Cattle Co. v. Bosserman-Gates Live
Stock & L. Co. 45: 1137, 202 Fed. 692, — C.
C. A. -
(Annotated)
CHOSE IN ACTION.
Assignment of, by administrator, see
Executors and Administrators, 5.
Levy on, see Legislature; Levy and
Seizure, 1.
Christmas festival as religious meet-
ing, see Disturbing Worship.
Question for jury as to whether Christ-
mas festival is a religious meet-
ing, see Trial, 4.
Against bankrupt estate, see Bank-
ruptcy, 2.
Sufficiency of claim for mechanics'
liens, see Mechanics' Liens, 3.
CLOUD ON TITLE.
Equity has no jurisdiction of a suit
to quiet title to an island in a navigable
|