check payable to a particular person or order raises a presumption that
it was paid to the payee therein named. But such presumption is
rebutted by the positive and uncontradicted testimony of the payee,
that he in fact never did collect the check, or authorize any one to col-
lect it for him. Pickle v. Muse, 900.
13. BANK CHECK RETURNED TO DRAWER VOUCHER OF PAYMENT WHEN.
A bank check returned to the drawer after being paid and debited to
his account with the indorsement of the payee, is a voucher of such
payment in favor of the drawer against the payee; but without such
indorsement it is not evidence, as between drawer and payee, of such
payment. Id.
14. ACCEPTANCE OF BANK CHECK NECESSARY TO MAINTAIN SUIT AGAINST
BANK.-The holder of a bank check cannot sue the bank for refusing
payment thereof, in the absence of proof that the bank accepted the
check, or did some other act equivalent to and implying acceptance.
Id.
15. ACCEPTANCE OF BANK CHECK, WHAT IS SUFFICIENT EVIDENCE OF.
The acceptance of a bank check and assent to the payment thereof may
be inferred from proof of the fact that the bank received and retained
it when presented at its counter, and subsequently charged the check
to the account of the drawer, and settled with him, deducting the
amount of it. And the bank cannot escape liability to the payee for
the amount of the check by saying that what it did in receiving the
check and in paying it, and in debiting to the account of the drawer, was
all through mistake; for that would be to suffer it to escape the conse-
quences of its own mistake by pleading its own negligence as a defense.
Id.
16. DELIVERY OF BANK CHECK ESSENTIAL TO PAYEE'S RIGHT TO RECOVER
THEREON.—The payee of a bank check cannot maintain an action
thereon against the bank on which it is drawn, unless it has been
delivered to him by the drawer. Id.
17. RATIFICATION OF UNAUTHORIZED DELIVERY OF BANK CHECK. -The
payee of a bank check may adopt and ratify an unauthorized delivery
of the check to a stranger who, without authority, presents it to and
receives payment thereof from the bank on which it is drawn. And the
bringing of suit by the payee is a sufficient ratification by him of the
unauthorized delivery. Id.
18. AUTHORITY TO RECEIVE CHECK PAYABLE TO ORDER IMPLIES NO AU-
THORITY TO INDORSE IT in the name of the payee, or to collect it with-
out such indorsement. Id.
19. NECESSITY OF PRESENTATION OF CHECK WHEN NO FUNDS are on Deposit.
Presentation of a check for payment and notice of non-payment to
the drawer are not necessary when the latter has no funds on deposit for
the payment of the check at the time when it should be presented, or
when, having funds on deposit, he withdraws them, or when, by consent
of the drawer, or agreement between him and the payee, the check is
not to be presented for payment. Culver v. Marks, 377.
20. CHECKS-PRESUMPTION AS TO BANK DRAWN AGAINST. Checks dated
"Lafayette, Indiana," and drawn on the "First National Bank,” the
evidence showing that there was such a bank at that place, are pre-
sumed, in the absence of anything to the contrary appearing, to relate
to and to have been drawn upon that bank. Id.
21. CHECKS DRAW INTEREST from the time when presented, or when they
should have been presented, if there had been any funds of the drawer in the bank with which to pay them. Id.
22. EVIDENCE OF WILLINGNESS OF BANK TO PAY A CHECK of the drawer, notwithstanding the fact that he has no funds in the bank, is inadmissible in an action on the check, as the payee is relieved from making presentation and demand if the drawer has no deposit in the bank. Id. 23. PAYEE OF CHECK takes it with the legal obligation to present it at the bank for payment, and failing to do so, if the drawer has funds in the bank to pay it, must suffer any loss ensuing from such failure; but if the drawer has no funds in the bank, the payee is excused from presenting the check for payment. Id.
24. BANKS HAVE NO LEGAL RIGHT to allow the drawers of check to overdraw their accounts, and to pay checks out of the funds of other depositors or the money of stockholders. Id.
25. ENTRIES ON BANK-BOOKS, ADMISSIBILITY OF. — In an action on a check original entries in original books of the bank, made in the due course of business, are admissible to show the state of the depositor's account at the time the check was drawn, though some of the persons who made such entries are dead, removed from the state, or have no recollection of the facts represented by the entries, except that they were made in the due course of business, and were correct when made. Id. 26. EXPERT EVIDENCE - ABSTRACT OF BOOKS. In an action on a check, the statement of an expert witness, who has examined the books of a bank and made an abstract thereof, is admissible in evidence when an opportunity to cross-examine is given. Id.
BAWDY-HOUSES.
See CRIMINAL Law, 9–13,
BLASTING ROCKS.
See STATUTES, 1.
BOARD OF EDUCATION.
See INJUNCTIONS.
See NEGOTIABLE Instruments, 7–9; Sales, 13, 14; VENDOR AND VENDER, 9.
BOND, WHAT 18. — AN AGREEMENT TO DO A THING, ACCOMPANIED BY THE STIPULATION "and this I bind myself to do, under penalty of five thousand dollars," is a penal bond. Carey v. Mackey, 500.
See APPEAL AND ERROR, 9; HUSBAND AND WIFE, 2; Mortgages, 1; MusiCIPAL CORPORATIONS, 3.
AGREEMENT as to BOUNDARY IS BINDING WHEN.
as to the true division line between adjoining proprietors, or the line is uncertain, and they are ignorant of its true location, and they fix and
agree upon a permanent boundary line, and take possession accordingly, the agreement binds them and those claiming under them. Such an agreement is not within the statute of frauds. Krider v. Milner, 549. See ADVERSE POSSESSION, 2.
BREACH OF PROMISE OF MARRIAGE.
See MARRIAGE AND DIVORCE, 3.
BUILDING ASSOCIATIONS.
EXTINGUISHMENT OF LIABILITY OF BOrrower.
of a building association, a borrower is required to pay dues and installments weekly for the period of six years, and such payment discharges all his obligations to the association, and "all loans shall become due in six years from the date of this corporation, or on the stock of the corporation becoming of par value, in either of which cases the note given by the borrower and the stock upon which the loan was made shall be set off against each other," a borrower who pays his dues and installments as required for six years extinguishes his liability to the association. Lime City Building etc. Ass'n v. Wagner, 342.
BUILDINGS.
See MORTGAGES, 4, 5.
Bee BANKS AND BANKING, 8; ESTOPPEL, 4; INSURANCE, 27; MASTER AND SERVANT, 12; RAILROAD COMPanies, 3; NeglIGENCE, 10, 15; NEGO TIABLE INSTRUMENTS, 9.
CABLE-RAILWAY COMPANIES.
See RAILROAD COMPANIES, 8, 9.
CANCELLATION.
See INSURANCE, 7, 8.
1. LIABILITY FOR GOODS SEIZED UNDER ATTACHMENT. When goods in the hands of a common carrier for transportation, and while in transit, are seized, under process sued out against the owner, and taken out of the carrier's possession, the property is thus placed in the custody of the law so as to excuse the carrier from liability for non-delivery. Jewett v. Olsen, 745.
2. DUTY AS TO GOODS ATTACHED IN HIS CUSTODY. When goods in tran. sit are taken from the possession of the carrier, under attachment against the owner, it is the carrier's duty to immediately notify him of the fact. Id.
3. REGULATIONS-FARES AND TICKETS. Railroad companies may make reasonable regulations, not only as to the amount of fares, but as to the time, place, and mode of payment. They may refuse to carry without the previous procurement of a ticket, or they may charge an additional
or higher rate of fare to those who do not procure tickets before enter
ing the cars, provided passengers are given a convenient place and op-
portunity to buy tickets. Reese v. Pennsylvania R. R. Co., 818.
4. REGULATIONS FARES AND TICKETS.
A regulation requiring passen-
gers who board a train without a ticket, after having had an oppor-
tunity to procure one, to pay a small sum in excess of the regular fare,
such excess to be refunded at any regular ticket-office on the road, upon
presentation of a check therefor, given by the conductor, is valid, and
not unreasonable nor oppressive, nor open to the objection that the ex-
cess thus imposed is a part of the fare, and makes it higher than the rate
allowed by law. Id.
5. REGULATIONS FARES AND TICKETS. A regulation requiring that
a sum in excess of the regular fare shall be collected from passengers
who board a train without having procured a ticket, after having had an
opportunity to do so, such excess to be refunded at any regular ticket-
office on the road, upon presentation of a check given therefor by the
conductor, but excepting from its operation passengers getting on trains
at stations where no tickets are sold, or where, on account of an excess-
ive rush of business, it is impossible to issue the refunding check, and
providing that in such cases the collection of the excess shall be omitted,
is valid, and not unreasonable, oppressive, or partial. Id.
6. RULES AND REGULATIONS. - Railroad companies have the right to adopt
reasonable rules as to the method of paying fares by passengers, and to
discriminate between fares paid in the cars and at stations, and to re-
move from the cars, in a proper manner and at a proper place, persons
who refuse to comply with such regulations. McGowen v. Morgan's etc.
R. R. & S. S. Co., 415.
7. RULES AND REGULATIONS. — A railroad regulation, requiring passengers
who do not procure tickets before the commencement of the journey to
pay an extra amount of fare, and providing that a coupon shall be given
the passenger on which he may collect the extra fare from any agent at
a station, and exempting from its operation such passengers as board the
trains at stations where tickets are not sold, is reasonable and valid.
Id.
8. CARRIERS OF Passengers MUST EXERCISE THE UTMOST CARE AND PRU-
DENCE which human foresight can suggest to secure their safety. This
vigilance, if the carrier is a railroad corporation, is to be exercised by it
to see that its road, and the appurtenances used in operating it, are and
remain in good condition and free from defects. Palmer v. Delaware etc.
Canal Co., 629.
9. LATENT DEFECT WHICH WILL RELIEVE A CARRIER OF PASSENGERS FROM
RESPONSIBILITY is such only as no reasonable degree of human skill and
foresight could guard against. Id.
10. NEGLIGENCE. RAILROAD CORPORATIONS MAY BE HELD LIABLE FOR
INJURIES RESULTING TO A Passenger by the Breaking of A SPINDLE
of a draw-bar used to connect cars together as a train, if the evidence
tends to show the existence of a flaw in such spindle, which may have
been in it before it was put to use on the car. When it was made to be
put on a car, the duty of the corporation was to apply all known tests
to ascertain whether it was, in all respects, fit for the purpose it was in-
tended to serve, and if, in consequence of the failure to do so, the defect
was not discovered, and the accident occurred, the corporation is liable.
Id.
11. NEGLIGENCE - QUESTION FOR JURY. - Where an accident has occurred
from the breaking of spindle used to connect cars in a train, and it ap-
pears that such spindle had not been inspected during the two years it
had been in use, and that the removal and inspection of it were not
within the system of inspection adopted by the defendant, it is for the
jury to determine, under proper instruction from the court, whether the
defendant had been guilty of a want of due care. Id.
12. WHILE THE PERFORMANCE OF THE DUTIES OF A CARRIER OF PASSEN-
GERS IS TEMPORARILY SUSPENDED until it can make arrangements to
overcome a difficulty occasioned by a washout of its road-bed, its pas-
sengers continue entitled to all of the rights which pertain to passengers
on a train moving towards the point of destination stipulated for in the
contract of the carrier. Dwinelle v. New York etc. R. R. Co., 611.
13. DUTY TO Protect PassenGERS. — Among the obligations which a car-
rier assumes is that of protecting its passengers against any injury
from the negligence or willful misconduct of its servants, and of their
fellow-passengers and strangers, so far as practicable, and to provide
them with the usual accommodations and any information and facilities
necessary for the full performance of the contract on the part of carrier.
ld.
14. PORTER OF SLEEPING OR Drawing-ROOM CAR IS A SERVANT OF THE
RAILROAD COMPANY, for whose misconduct it is answerable, though it
does not own such car, nor hire nor pay such porter, if the car is run on
its road under a contract between it and the sleeping-car company which
required that the servants employed by the latter should be acceptable
to the railroad company. Id.
15. PERSONS IN CHARGE OF A DRAWING-ROOM OR SLEEPING CAR are to be re-
garded and treated, with respect to their dealings with passengers, as
servants of the railroad company, which is answerable for their acts to
the same extent as if they were directly employed by it. The law will
not permit a railroad company engaged in the business of carrying pas-
sengers for hire, through any device or arrangement with a sleeping-car
company, whose cars are used by the railroad company, and constitute a
part of its train, to evade any duty imposed on it, by interposing the
defense that a porter on a sleeping-car was not a servant of the railroad,
but of the sleeping-car company. Id.
16. QUESTION FOR THE JURY.-Whether a porter of a sleeping-car was not,
at the time he committed an assault on a passenger, acting as a servant
of a railroad company is a question for the jury, when it appears that
such porter was the only person put forward or presented in the sleeping.
car to perform the duty and service the railroad company owed such
passenger. Id.
17. FOR A WILLFUL AND MALICIOUS ASSAULT BY A SLEEPING-CAR PORTER
UPON A PASSENGER, the railroad company is answerable, because every
carrier of passengers undertakes absolutely to protect them against the
misconduct of its own servants, engaged in executing its contract of car-
riage. Id.
18. A PASSENGER IS ENTITLED TO ALL INFORMATION requisite to enable him
to pursue his journey with safety and dispatch. His duty is to make all
necessary inquiries, and the corresponding duty of the carrier is to give
the information sought. Id.
19. A SLEEPING-CAR PORTER, WHO MAKES AN ASSAULT ON A PASSENGER
while the latter is seeking of him information necessary to enable the
|