loaded with nitroglycerin, who discovers that the automobile is on fire, the fire not having been caused by any lack of care on his part, is not guilty of actionable negligence in abandoning the automobile when it is stuck on a steep hill. The automobile ran back down the hill, which was near the plaintiff's residence, and upset "and later, perhaps half an hour," the nitroglycerin exploded. At the time of the explosion the plaintiff was 1,100 feet away; she alleged that she was injured by the shock of the explosion and the poisonous gases. The plaintiff was aware of the presence of the car for some time before the explosion. There is nothing in the case as to the omission of the driver to give warning to persons in the vicinity that there was a burning car containing nitroglycerin in the road, unless the word "abandoned" gives such a suggestion.

In Ladlie v. American Glycerin Co. (1924) Kan., 223 Pac. 272, the plaintiff, who was injured in his mill some 700 feet distant by the explosion of a new commercial automobile carrying nitroglycerin, on the highway, recovered a judgment against its owner, which was affirmed on appeal. The court construed the findings as holding that the defendant was negligent in failing to equip the car properly for the transportation of nitroglycerin, and that its driver drove it over a rough piece of road into a rut or depression at 10 miles an hour, causing a jar. It was held that the plaintiff was properly permitted to show that the driver of a companion car notified his employer, who promptly dispatched another car properly equipped, to which was transferred the load of such companion car. The two original cars were alike, new commercial cars, used but little, and consequently stiff in their springs and bearings. The court considered that the evidence tended to show that after the explosion, at least, the defendant realized that such new commercial cars were not proper vehicles, or properly equipped, for the safe transportation of nitroglycerin, and stated that the fact that the car was blown up was

evidence that the cars were not properly equipped. "And whatever degree of care the defendant had exercised theretofore (and nothing less than the very highest would be sufficient . . . ), the defendant's manager concluded that a still higher degree of care could be exercised by transferring the explosives from the remaining... car to one perfectly equipped for such purpose."

(It may be noted that the driver of the unexploded car seems to have been convicted of a misdemeanor, but on appeal his conviction was reversed. State v. Satterlee (1921) 110 Kan. 84, 202 Pac. 636. It was held that that part of the Kansas statute "which prohibits a person from carelessly or negligently handling or exposing nitroglycerin violates § 10 of the Bill of Rights of the Constitution of the state of Kansas, for the reason that the statute does not name the acts which are prohibited by law. A complaint drawn under that portion of the statute does not charge an offense against the laws of the state of Kansas.")

In Furth v. Foster (1868) 7 Robt. (N. Y.) 484, the defendant ordered his cartman to take a can of powder from the premises of the defendant's coal yard, and to throw it into the river; the cartman drove off with a companion, and the can, being rotten, broke from the jolting of the car, and a portion of the powder was scattered along the route; when the cartman discovered that the can was broken, he and his companion, having been told that the powder was damaged and was of no use, threw it-it being in cakes and lumps-into the street; there was a small fire in the street, and some boys there threw a portion of the powder into the fire, resulting in an explosion which injured the plaintiff, as well as other boys. The jury found a verdict for the plaintiff. On appeal the judgment was reversed. The can had been for a time submerged under water, and had again been wet in defendant's store, a month before the accident, and it was held to be error to refuse the offer of defendant's counsel to show that the defendant "submitted the powder for examina

tion to experts, to those persons who were familiar with the use of powder in blasting, and that he was told by them that it was useless for any explosive purposes, and that his action subsequently was governed by that." The court considered that, without that evidence, the jury would be guided only by their own knowledge in passing on the question submitted to them by the trial court, to "consider whether, under the circumstances, the extent to which the explosive nature of the compound had been deteriorated by reason of wet and damp, and the ground which both these parties had for believing it was not explosive, there was carelessness and negligence on the part of [the cartman] in the throwing it out of the cart into the street, or in carrying it in such a manner that portions of it could be jolted out of the cart into the street."

In Bigwood v. Boston & N. Street R. Co. (1911) 209 Mass. 345, 35 L.R.A. (N.S.) 113, 95 N. E. 751, it was held that a street-car passenger injured by

an explosion that wrecks the car does not make out a case of negligence against the carrier sufficient to carry to the jury the question of its liability for his injury therefrom, by showing that, shortly before the car, which was under perfect control, reached the point where the explosion occurred, a small package of dynamite had been dropped from a dray which had passed that point, if the explosion occurred after dark, and there is nothing to show in what form the package presented itself to the view of the motorman, if it could be assumed that it had dropped upon the track and caused the explosion.

It may be noted that in Thompson v. Union Traction Co. (1918) 103 Kan. 104, 172 Pac. 990, it was held that a company which maintains an oil pipe on the surface of a highway, through which inflammable oil is flowing, is liable in damages to one who, without negligence on his part, breaks the pipe by driving a threshing outfit over it, and sustains injury and loss from the escaping oil, which catches fire. B. B. B.

V.

sometime in March, they advertised this land for sale under the deed of trust. Shortly thereafter, and before the day of sale, the appellants paid the taxes.

The question here presented is whether or not, under the clause of the deed of trust above quoted, the appellees had a right to declare a forfeiture and sell the lands. Technically speaking, taxes are due December 15. If not paid by February 1, a penalty accrues. The taxpayer, however, has the right to pay the taxes at any time before the land is sold. This clause is a penal one, and must be strictly construed against the creditor, and liberally construed in favor of the debtor. Since the debtor has the right to pay these taxes at any time before the lands are sold, a forfeiture under this clause of the deed of trust cannot be declared, at least, until the day of the sale of the land. The chancellor so held upon this question.

Mortgage-default in payment of taxwhen occurs.

The note in this case was payable to the order of S. E. Cobb, and was indorsed as follows:

"Pay to the Kaw Investment Company without recourse.

"[Signed] S. E. Cobb."

This indorsement was not noted on the record of Hinds county within thirty days from its execution. It is contended by the appellants that, under § 2296 of Hemingway's Code (§ 2795, Code 1906), because of this failure, the owners of the notes forfeited to the mortgagors 10 per cent of this indebtedness. This section reads as follows: "All assignments in whole or in part of any indebtedness secured by mortgage, deed of trust, or other lien of record, shall be entered on the margin of the record of the lien within thirty days from the day of said assignment, or said assignment shall be acknowledged and filed for record within said time, and if the assignee of said indebtedness fail to comply with the provisions of this section he shall

forfeit to the debtor ten per cent of the amount of said indebtedness."

The question here presented is whether or not this

without re

statute applies to Bills and notesnegotiabilitythe indorsement of indorsement a negotiable instru- course. ment. It was passed when our anticommercial statute was in full flower. Under that statute all notes were non-negotiable, except those payable to bearer; consequently, a negotiable instrument was not within the terms of the statute. There is a difference between "assignment" and "indorsement." Indorsements of negotiable instruments are of various kinds, as especially pointed out in our Negotiable Instrument Acts. A note made payable to order and indorsed in blank thereafter passes by delivery. If this statute were applicable to negotiable instruments, it would depend upon the nature of the indorsement as to whether the penalty applied. If the note were indorsed in blank, neither the taker from the indorser, nor any other taker, could be liable under the statute, for the reason that it was not specifically eo nomine made payable to him. On the other hand, if it were made payable to one by name, as in this case, the statute would apply. In other words, the nature of the indorsement, under that theory, would determine the liability of the indorsee to the penalty. This is not the law. While the word "assignment" is a broader term than the word "indorsement," and sometimes includes it, this section was dealing solely with non-negotiable instruments, and the assignment therein referred to was the assignment necessary to non-negotiable instruments, and not the indorsement of a negotiable instrument.

"Assignment' is a broader term than 'indorsement,' and is more comprehensive than the term 'indorse,' 'negotiate,' or other like words, as applied to commercial paper. Assignment is generally used to signify the transfer of non-negotiable instruments, while 'indorsement' is