of ordinary prudence under like circumstances; so, if intoxication 20. NEGLIGENCE-CONTRIBUTORY-TRAPDOORS.-A truck- 21. A CHILD IS PRESUMED TO POSSESS ONLY SUCH DIS- 22. CONTRIBUTORY NEGLIGENCE CANNOT BE IMPUTED to 23. CHILDREN, NEGLIGENCE, WHEN WILL NOT BE IM- 24. NEGLIGENCE-CONTRIBUTORY-ALLOWING INFANTON 25. PLEADING-NEGLIGENCE, CONTRIBUTORY, ON THE 26. NEGLIGENCE-PLEADING.-An allegation specifying the See Appeal, 14, 15; Carriers, 3, 4, 9; Custom; Damages, 17; Injunc NEGOTIABLE INSTRUMENTS. 1. ONE OF SEVERAL MAKERS OF A NOTE IS ENTITLED TO 2. NEGOTIABLE INSTRUMENTS-WHO IS MAKER AND NOT A SURETY.-A buyer of cotton who signs a note with the seller for the purpose of satisfying a third person's claim to, or lien upon, the cotton bought, is a maker of the note, and not a surety thereon, as he is directly interested in, and benefited by, such settlement. (Wimberly v. Windham, 70.) 3. NEGOTIABLE INSTRUMENTS.-AS BETWEEN TWO INDORSERS, whose names appear on the back of a promissory note, parol evidence is admissible to prove their agreement that each should be liable for one-half only. (Kiel v. Choate, 936.) 4. NEGOTIABLE INSTRUMENTS-SECURITY AS DISCHARGE OF INDORSER.-The giving of a judgment or other security by the maker or a prior indorser of a note does not discharge a subsequent indorser. (First Nat. Bank v. Peltz, 686.) 5. NEGOTIABLE INSTRUMENTS-INDORSEMENT BY MAKER AND PAYEE.-If the maker of a note, who is also its payee, puts his name upon its back, he intends to assume the responsibility of second indorser, and not guarantor. (Hately v. Pike, 304.) - IN 6. NEGOTIABLE INSTRUMENTS INDORSEMENT STRUCTIONS.-An instruction that the indorsement of a note before delivery is a guaranty of its payment is clearly inapplicable to a note payable to the order of the maker. (Hately v. Pike, 304.) 7. NEGOTIABLE INSTRUMENTS-INDEMNITY-EVIDENCEESTOPPEL.-If a note is made payable to the order of the payee, who indorses it, and, after procuring a third person to indorse it for his accommodation, discounts it at a bank, and it is not paid at maturity, such third party indorsing may, in an action against him on the note by the bank, prove that he has been indemnified against liability on the note by a judgment against the payee, and that he has satisfied that judgment by the procurement of the bank whereby he has not only lost his security for indemnity, but the bank has advanced its own judgment against the payee to the position of a prior lien. These facts, if proved, would raise an estoppel against the bank. (First Nat. Bank v. Peltz, 686.) 8. NEGOTIABLE INSTRUMENTS, BLANKS IN, RIGHT OF HOLDER TO FILL UP.-If a promissory note is executed with a blank therein appropriate for designating a place of payment, and the holder subsequently fills up this blank so as to make the note payable at a specified bank, and negotiates it to an innocent holder, its enforcement cannot be resisted in his hands on the ground of an unauthorized and unlawful alteration thereof. (Cason v. Grant County etc. Bank, 418.) 9. NEGOTIABLE INSTRUMENTS-DEFENSES-BREACH OF WARRANTY.-In an action on a non-negotiable promissory note, given for the purchase price of a stallion sold for breeding purposes, an answer setting up a breach of the implied warranty that the horse is reasonably fit for such purposes is sufficient, where the note is subject to equities. (Merchants' etc. Bank v. Fraze, 341.) 10. NEGOTIABLE INSTRUMENTS-NON-NEGOTIABLE NOTE -EQUITIES-DEFENSES.-A promissory note, though payable to order at a bank in this state, which contains a clause waiving all defenses based upon any extensions of time for its payment that may be given by its holder to the maker, is not negotiable, under the statute, as an inland bill of exchange. Such a clause destroys the negotiability of the instrument, and an indorser for value, before maturity, takes it subject to, and charged with, all the equities and defenses against it. (Merchants' etc. Bank v. Fraze, 341.) See Agency, 3; Corporations, 16, 17; Evidence, 14-17; Limitations of Actions, 8; Suretyship, 3-5. NEW TRIAL. 1. APPEAL-ASSIGNMENT OF ERROR-NEW TRIAL.-It is not proper practice to assign as error that which is cause for a new trial, such as a refusal to give correct instructions submitted. (Merchants' etc. Bank v. Fraze, 341.) 2. NEW TRIAL-WANT OF EVIDENCE.-The insufficiency of evidence to sustain answers to interrogatories which could in no event control the general verdict, is not ground for a new trial for want of evidence. (Grand Rapids etc. R. R, Co. v. Diether, 385.) 3. NEW TRIAL MAY BE GRANTED SOLELY FOR THE PURPOSE of correcting error in instructions as to the amount of damages which the plaintiff is entitled to recover. (Farmers' etc. Mfg. Co. v. Albemarle etc. R. R. Co., 606.) 4. NEW TRIAL MAY BE GRANTED SOLELY upon the ground of error in instructions as to the amount of damages to which plaintiff is entitled, but the new trial thus granted is for inquiry into that subject alone. (Pickett v. Wilmington etc. R. R. Co., 611.) 5. JURY TRIAL-VERDICT, EXCESSIVE.-In an action to recover for personal injuries suffered by the plaintiff, a verdict in his favor will not be set aside as excessive, unless the sum awarded is so great as to furnish ground for the belief that the jury were actuated by partiality or prejudice. (Richmond Ry. etc. Co. v. Garthright, 839.) 6. NEW TRIAL-EXCEPTIONS TAKEN JOINTLY.—If an exception is taken to several acts of the court jointly, or, if several acts of the court are assigned, as a cause for a new trial jointly and not severally, all of the acts complained of must be erroneous, in order to sustain the exception, or cause for a new trial. (Gray v. Elzroth, 400.) 1. NOTICE, See Appeal, 13. NONRESIDENTS. See Limitations of Actions, 2-7. NOTICE. PURCHASER OF REAL PROPERTY is deemed to have constructive notice of all conveyances of record made by any of the persons from whom he derives title. (Pillow v. Southwestern etc. Imp. Co., 804.) 2. NOTICE.-POSSESSION TO BE CONSTRUCTIVE NOTICE OF CLAIM OF TITLE must be open, visible, and exclusive, and is shown by any use of the land that indicates an intention to appropriate it for the benefit of the possessor. Such use may be any to which the land is adapted, and is calculated to apprise the world that the property is occupied. (Tate v. Pensacola Gulf etc. Co., 251.) See Injunctions, 1; Police Power, 4; Receivers, 1; £tatutes, 19, 20; Vendor and Purchaser, 2. NUISANCE. NUISANCE-WHAT WILL NOT EXCUSE.-Pecuniary interest will not excuse a nuisance which endangers public safety. (Mayer v. Thompson-Hutchinson Building Co., 88.) See Municipal Corporations, 20. OBSTRUCTIONS See Highways; Municipal Corporations, 24, 25; Waters, 8, 4, 6. OFFICERS. 1. ELIGIBILITY TO OFFICE MEANS qualified to take office at 2. JUDICIAL DUTIES, WHAT ARE.-Where an inquiry to be 3. PUBLIC OFFICER, WHEN MAY NOT ACT BY DEPUTY.- See Injunctions, 4; Quo Warranto; States, 2. PARENT AND CHILD. PARLIAMENTARY LAW. 1. PARLIAMENTARY LAW.-A QUORUM OF A LEGISLA 2. PARLIAMENTARY LAW-QUORUM.-Although a quorum of 3. PARLIAMENTARY LAW-QUORUM PRESUMPTION.—If 4. PARLIAMENTARY LAW-QUORUM - PRESUMPTION.-It PARTITION. 1. PARTITION OF LANDS IN ANOTHER STATE cannot be 2. PARTITION-ADVERSE POSSESSION.-The fact that the de- a joint heir with the complainant, or with those under whom the 3. CONSTITUTIONAL LAW-PARTITION-JURY TRIAL.-A 4. PARTITION-LACHES.-A complainant in a suit for partition PARTNERSHIP. 1. A PARTNERSHIP CANNOT BE FORMED FOR AN ILLE- 2. A PARTNERSHIP OR ASSOCIATION, FORMED FOR THE See Corporations, 25, 28; Pleading, 12. PAYMENT. See Suretyship, 5-7; Tender, 2. PERCOLATION. PLEADING. 1. PLEADING.-ALLEGATA AND PROBATA MUST CORRE- 2. PRACTICE. THE DEFENSE that a partnership or association See Deeds, 8; Fraud, 3, 4; Landlord and Tenant, 6; Negligence, 25, 26. PLEDGE. PLEDGE, WHAT IS.-Under the Civil Code of California every See Banks, 1-3; Interest, 2. POLICE POWER. 1. POLICE POWER-DEFINITION.-The limit of the exercise of |