the vouchers withdrawn from the package Officer's liability on bond for loss of 2. Set-off in case of, see Set-Off and Counterclaim, 2. 5. One who has deposited checks on account in an insolvent bank is not prevented from having payment on them stopped and reclaiming them from the bank's receiver, by the fact that they have been forwarded to a correspondent bank and credited to the account of the insolvent one, if the correspondent makes no claim to them. Knaffl v. Knoxville Bkg. & T. Co. L.R.A.1915D, 402, 170 S. W. 476, 130 Tenn. 336. BATHING RESORT. (Annotated) 1. The ownership of premises is not essential to the liability of a person who operates or maintains a bath house where bathing suits are furnished for hire, at a seaside resort, for injuries due to his negligence in failing to maintain proper and safe life lines and life rafts for the protection of his patrons. McKinney v. Adams, L.R.A.1915D, 442, 66 So. 988, Fla. a 2. An action may be maintained against a person who operates or maintains a bath house where bathing suits are furnished for hire, at a seaside resort, for negligence in failing to maintain proper and safe life lines and rafts for the protection of his patrons, by a patron not guilty of contributory negligence who is injured as proximate result of the negligence of such operator or his agents, where the statute makes it the duty of a person operating or maintaining such a bath house to maintain at all times proper and safe life lines and life rafts for the protection of bathers, and prescribes a fine or imprisonment or both for failure to comply with the duty. MeKinney v. Adams, L.R.A.1915D, 442, 66 So. 988, Fla. (Annotated) BENEVOLENT SOCIETIES. Insurance by, see Insurance. BETTING. See Gaming. BIAS. Of juror, see Appeal and Error, 12. BIBLE. Reading of, in public schools, see Con- BILL OF REVIEW. BILL OF SALE. As violation of condition in insurance policy, see Insurance, 8, 9. BILLS AND NOTES. Recovery of money paid on forged draft against United States Treasury, see Assumpsit, 2. Negotiability. 1. Uncertainty as to the rate of interest in a note, so as to render it non-negotiable, is not created by drawing with a pen a ring around the figures representing such rate as inserted by a typewriter in a printed note blank, and placing a figure above it with a pen, where the statute provides that where there is a conflict between the written and printed provisions in a contract, the written ones must prevail, since the typewritten figures must be regarded as printed. Acme Coal Co. v. Northrup Nat. Bank, L.R.A.1915D, 1084, 146 Pac. 593, Wyo. (Annotated) -. Indorsement and transfer. water into a cellar on one side of the street | unless it is made bona fide, and unless, from a pond on the opposite side, because also, the plaintiff has not signified an inof the disturbance of the earth by the blasts. tention to regard the contract as at an end. McGinnis v. Marlborough-Hudson Gas Co. Corduan v. McCloud (N. J. Err. & App.), L.R.A.1915D, 1080, 108 N. E. 364, 220 Mass. L.R.A.1915D, 1190, 93 Atl. 724, N. J. (Annotated) 575. BONA FIDE HOLDER. Of note, see Bills and Notes, 4. BONDS. Recovery of unearned premium upon Right of legislature to divert proceeds A town treasurer who, upon re-election to office, continues a deposit account of the town's money in a bank so insolvent that it cannot pay the amount, does not, although he is ignorant of the true conditions, account for it within the meaning of his official bond satisfying its obligation in case of such accounting, so as to relieve the surety from liability in case the account is lost because of the bank's insolvency. Yawger v. American Surety Co. L.R.A. 1915D, 481, 106 N. E. 64, 212 N. Y. 292. BOOKS. Right to inspect books of corporation, see Corporation, 7, 7a, 24. BREACH. BREAKING. Sufficiency of, to constitute burglary, see Burglary. BRIDGES. The cost of the construction of bridges on the public highway across a drainage ditch constructed by a drainage district must be borne by the county, and not by the drainage district, where the bridges are a public necessity and convenience, and where the estimated cost of such construction was deducted from the share levied upon the county as its portion of the cost of the improvement, on the theory that the county was damaged to the extent of such cost of construction, and no appeal was taken from such action. Wilkins v. Hillman, L.R.A.1915D, 249, 145 Pac. 1111, Okla. BROKERS. benefits of a contract for sale negotiated 2. The agreement by a property owner to pay a broker a commission for selling the property, knowing that he was employed by the buyer, is a fraud upon the rights of Of covenant, see Covenants and Con- the buyer, if the agreement was not assentditions, 3. 2. Defendant's offer of marriage after breach is as a rule no defense. Corduan v. McCloud (N. J. Err. & App.) L.R.A. 1915D, 1190, 93 Atl. 724, N. J. 3. An offer on the part of the defendant to fulfil the promise of marriage after his refusal to do so, or a renewed offer in, his answer or in open court, is not a defense ed to by him. Whitney v. Bissell, L.R.A. BROTHER. Right to appointment as administrator, see Executors and Administrators, 1a. BUILDINGS. Denial of equal protection of laws by Police power as to, see Constitutional Restrictions in covenants, see Covenants Injunction to prevent destruction of, under void municipal ordinance, see Injunction, 4. Lien on, see Mechanics' Liens. Delegation of power as to. see Municipal Corporations, 4. Forbidding storage of inflammable sub stances in garage in certain locations, see Municipal Corporations, 11. Partial invalidity of ordinance establishing fire limits, see Municipal Corporations, 5. 1. Power to forbid the construction of 3. The opening wider of a chicken house a public garage in a city block without the door which had been left partly open by the consent of a majority of the property own-owner, and was held in position by means ers is conferred upon a municipal corpora- of a fence post placed on one side thereof tion by statutory authority to direct the and a brick on the other, by removing the location and regulate the use and construc- post and brick, without which removal no tion of garages, inter alia, within the city entry could have been made into the buildlimits. People ex rel. Busching v. Ericsson, ing, constitutes a forcible breaking within L.R.A.1915D, 607, 105 N. E. 315, 263 Ill. the meaning of a burglary statute. Goins v. State, L.R.A.1915D, 241, 107 N. E. 335, Ohio St. -. 368. 2. Power to direct the location and regulate the use and construction of garages does not authorize a municipal corporation to forbid their location within the city limits. People ex rel. Busching v. Ericsson, L.R.A.1915D, 607, 105 N. E. 315, 263 Ill. 368. 3. Requiring one who desires to operate a public garage in or within 100 feet of a city block in which two thirds of the buildings on both sides of the street are used exclusively for residences, to secure consent from a majority of the property owners, is not unreasonable. People ex rel. Busching v. Ericsson, L.R.A.1915D, 607, 105 N. E. 315, 263 Ill. 368. 4. Forbidding the location of a public garage within 200 feet of a church is not unreasonable. People ex rel. Busching v. Ericsson, L.R.A.1915D, 607, 105 N. E. 315, 263 Ill. 368. 5 Statutory power to establish limits within which no building composed of combustible material shall be erected does not authorize an ordinance establishing limits within which no such building shall be erected without permission of the mayor and council. Hays v. Poplar Bluff, L.R.A. 1915D, 595, 173 S. W. 676, Mo. BURDEN OF PROOF. - In general, see Evidence, 4-20. BURGLARY. 44. Loss of passenger's baggage by, see Carriers, 7. Evidence in prosecution for, see Evidence, 25, 33. Competency of witnesses in prosecution for, see Witnesses, 1. 1. An employee's opening a building at a time when his duties did not require him to do so, by means of a key furnished him by the employer for the limited purpose of opening the store for business in the morning, followed by his taking property of his employer therefrom with intent to convert it to his own use, is a sufficient breaking to constitute burglary. State V. Corcoran, L.R.A.1915D, 1015, 143 Pac. 453, 82 Wash. (Annotated) 2. Burglary may be established by proof of the breaking out as well as breaking in, under statutes providing punishment for anyone who shall feloniously break any dwelling house and take away anything of value, and requiring statutes in deroga tion of the common law to be liberally construed with a view to promote their objects. Lawson v. Com. L.R.A.1915D, 972, 169 S. W. 587, 160 Ky. 180. (Annotated) Irrigation company as a common carrier, see Waters, 4. Measure of care required; negligence generally. Measure of damages for injury to pas senger, see Damages, 5. 1. A carrier which, after injury to a boy upon its car, takes him, against the protest of his guardian, to its own surgeon for treatment, is liable for any injury which the surgeon may inflict upon him through malpractice, whether it used care in the selection of a surgeon or not. Easler v. Columbia Railway, G. & E. Co. L.R.A. S. C. 1915D, 883, 84 S. E. 417, (Annotated) 2. The negligence of a person in peril on a highway crossing, which requires the application of the emergency brake to the train, does not relieve the carrier from liability for consequent injury to a passenger if the necessity of resort to such brake was due to its own negligence. Dorr v. Lehigh Valley R. Co. L.R.A.1915D, 368, 105 N. E. 652, 211 N. Y. 369. (Annotated) 3. A railroad company cannot avoid liability for injury to a passenger by the application of the emergency brake to avoid collision with a traveler on a highway crossing on the theory that it might assume that he would leave the track in time to escape injury, if he was manifestly unconscious of the approach of the train. Dorr v. Lehigh Valley R. Co. L.R.A.1915D, 368, 105 N. E. 652, 211 N. Y. 369. 4. A railroad company is liable for injury to a passenger by the sudden application of the emergency brake to avoid striking a traveler at a highway crossing if it was negligent in failing to warn him or to observe his danger in time to avoid the accident without resort to the emergency brake. Dorr v. Lehigh Valley R. Co. L.R.A. 1915D, 368, 105 N. E. 652, 211 N. Y. 369. Leaving at destination. 5. A railroad company is not liable for carrying past his destination a passenger who knowingly boards a train not scheduled to stop there, although the gateman and brakeman made no objection to his boarding the train, if the conductor, upon ascertaining his destination, informed him that the train would not stop, and advised him to leave it at a suitable intermediate stopping place and wait for another train. Louis ville & N. R. Co. v. Gaddie, L.R.A.1915D, 705, 172 S. W. 514, 162 Ky. 205. (Annotated) Limitation of liability. Effect of Federal employer's liability act to invalidate contract exempting carrier from liability for injury to Pullman porter, see Master and Servant, 1. 6. One who, when employed as a Pullman porter, agrees to protect the Pullman Company in its contracts by which it undertakes to indemnify railroad companies against liability for injuries to Pullman employees, deprives himself of the right to maintain an action against the railroad company for injuries received in the course of his employmentt. Robinson v. Baltimore & O. R. Co. L.R.A.1915D, 510, 40 App. D. C. 169. 7. A passenger who does not claim his baggage at destination until forty-eight hours after its arrival cannot hold the carrier liable as insurer for loss of the baggage twenty-four hours before by burglary, although he failed to reach destination earlier because of inability to procure sleeping car accommodations, if he did not notify the carrier that he would not accompany the baggage. Denver & R. G. R. Co. v. Doyle, Colo. L.R.A.1915D, 113, 145 Pac. 688, Freight carriers. Liability of carrier for injury by livestock escaping from cars, see Animals. Presumption and burden of proof as to negligence, see Evidence, 14, 15; Trial, 11. Negligence as question for jury, see Question for jury as to fairness of con tract limiting liability, see Trial, 6. 8. In order that a carrier may relieve itself from liability for loss of, or damage to, goods while in transit, it is necessary for it to show that the loss or damage arose solely from one or more of the excepted causes; it is not sufficient for it merely to show that the shipper was negligent, if the loss or damage would not have resulted except for the concurring fault of the carrier. Northwestern Marble & Tile Co. v. Williams, L.R.A.1915D, 1077, 151 N. W. 419, 128 Minn. 514. 9. A common carrier is at common law an insurer of the goods shipped, and is responsible for all losses except those arising from certain excepted causes, one of which is improper packing by the shipper. Northwestern Marble & Tile Co. v. Williams, L.R.A.1915D, 1077, 151 N. W. 419, 128 Minn. 514. 10. If improper packing in a shipment offered to a carrier is apparent to the carrier or his servants, he may refuse to receive the shipment, but if he receives it he assumes to carry the goods as they are, and the full common-law liability as carrier attaches. Northwestern Marble & Tile Co. v. Williams, L.R.A.1915D, 1077, 151 N. W. 419, 128 Minn. 514. 11. Although a carrier has knowledge of defective packing in goods shipped, yet, if it is not apparent to the ordinary observation of the carrier or his servants that the goods cannot be safely carried in the condition in which they are presented, the carrier should not be held to take the chances of injury from improper packing. Northwestern Marble & Tile Co. v. Williams, L.R.A.1915D, 1077, 151 N. W. 419, (Annotated) 128 Minn. 514. 12. An act of God, such as a severe blizzard and snowstorm, which will excuse a carrier from liability for loss, must not only be the proximate cause of the loss, but it must be the sole cause, and though the loss may have been caused by an act of God, yet, if the negligence of the defendant commingles with such act of God as an efficient, contributing, concurrent cause, and it appears from the evidence and the circumstances of the case that such injury would not have occurred except for such negligence, the company will be liable. St. Louis & S. F. R. Co. v. Dreyfus, L.R.A. 1915D, 547, 141 Pac. 773, 42 Okla. 401. 13. Where property is injured or lost while in the hands of a common carrier, the shipper may sue the carrier upon the latter's common-law liability, without regard to the existence of any special contract of shipment that may have been entered into limiting the carrier's liability, thus leaving it to the defendant to plead such contract by way of defense. McGrath v. Northern P. R. Co. L.R.A.1915D, 644, 141 N. W. 164, 121 Minn. 258. Governmental control; rates: discrimi nation. Regulation of interstate business of, see Due process in regulations as to depots, Mandamus to compel receivers to obey order to join in construction of union depot, see Mandamus, 1. Review by courts of order of Railroad Commission as to union depot, see Public Service Commissions, 2. 14. A Railroad Commission has authority to change the location of depots formerly established, under statutory power to hear petitions for the establishment, enlargement, equipment, and discontinuance of depots, and determine the character of construction, equipment, change or enlargement of depots which shall be supplied. St. Louis, I. & M. & S. R. Co. v. Bellamy, L.R.A. 1915D, 91, 169 S. W. 322, 113 Ark. 384. (Annotated) 15. The Railroad Commission, in locating a railroad depot, is not bound to adopt the exact location set forth in the petition therefor, where the statute does not require the petition to define the place of location or require the Commission to adopt the spot which may be designated by petition. St. Louis, I. M. & S. R. Co. v. Bellamy, L.R.A.1915D, 91, 169 S. W. 322, 113 Ark. 384. 16. Authority to require the abandonment of present facilities is included in a grant of power to a Railroad Commission to require railroad companies to maintain a union station. Railroad Commission v. Alabama, G. S. R. Co. L.R.A.1915D, 98, 64 So. 13, 185 Ala. 354. 17. Locating a depot at a place where the main line of the railroad will be upon a curve and a branch line upon a grade is not so unreasonable and arbitrary as to make the order of location void where the curve is not greater than that upon which other depots are located, and the railway company owns land sufficient to enable it to straighten the tracks for several hundred feet at the place of location. St. Louis, I. M. & S. R. Co. v. Bellamy, L.R.A.1915D, 91, 169 S. W. 322, 113 Ark. 384. 18. Arbitrary power is not conferred upon a Railroad Commission by granting it authority to require railroad companies within a particular city to construct and maintain union stations when the necessities of the case, in its judgment, requires it, so as to make the statute unconstitutional. Railroad Commission v. Alabama, G. S. R. Co. L.R.A.1915D, 98, 64 So. 13, 185 Ala. 354. (Annotated) 19. That a railroad company is in possession of receivers does not take it out of the operation of a statute providing that railroad companies may be required, under penalty, to construct and maintain union stations, although the order must be executed by the receivers, and the statute is not made expressly applicable to them, where, by statute, a railroad company includes any person operating a railroad. Railroad Commission v. Alabama G. S. R. Co. L.R.A. 1915D, 98, 64 So. 13, 185 Ala. 354. 20. A requirement under statutory authority that a union depot be constructed by several railroads, one of which is in possession of receivers, is within the operation of the Federal statute requiring receivers appointed by Federal courts to obey the valid laws of the states in which the property under their control is located. Railroad Commission v. Alabama G. S. R. Co. L.R.A.1915D, 98, 64 So. 13, 185 Ala. 354. 21. An order of a Railroad Commission requiring the construction and mainte nance of a union depot by several railroad companies is not invalid in not fixing the exact spot where it is to be located, if the general location is designated. Railroad Commission v. Alabama Ğ. S. R. Co. L.R.A. 1915D, 98, 64 So. 13, 185 Ala. 354. 22. An order of a Railroad Commission requiring the construction of a union depot is not invalid because it does not furnish the plans and specifications. Railroad Commission v. Alabama G. S. R. Co. L.R.A. 1915D, 98, 64 So. 13, 185 Ala. 354. |