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of ordinary prudence under like circumstances; so, if intoxication
reuders a person reckless or indifferent to consequences, or inadvert.
ent, or thoughtless, and he fails to exercise due care, his failure or
omission will not he excused, because superinduced by his intoxica-
tion. (Johnson v. Louisville etc. R. R. Co., 39.)

20. NEGLIGENCE-CONTRIBUTORY-TRAPDOORS.-A truck
man who enters a store, upon invitation of the owner, to obtain re-
ceipts for goods delivered is not required to watch for an open trap-
door on the premises, of the existence of which he has no knowl-
edge or notice. His failure to watch for and to see such door is
not contributory negligence. (Pelton v. Schmidt, 462.)

21. A CHILD IS PRESUMED TO POSSESS ONLY SUCH DIS.
CRETION as is common to children, and is, therefore, held answer.
able only to the exercise of such care as is reasonably to be expected
from children of his age and capacity. (Railroad Co. v. Mackey,
641.)

22. CONTRIBUTORY NEGLIGENCE CANNOT BE IMPUTED to
a child four and one-half years of age. (Evers v. Philadelphia Trac-
tion Co., 674.)

23. CHILDREN, NEGLIGENCE, WHEN WILL NOT BE IM-
PUTED TO.-A child under fourteen years of age will not be pre-
sumed, as a matter of law, to be capable of contributory negligence.
Therefore, the absence of such negligence need not be averred in a
complaint to recover for personal injuries suffered by him from the
negligent act of another. (Railroad Co. v. Mackey, 641.)

24. NEGLIGENCE-CONTRIBUTORY-ALLOWING INFANTON
STREET-QUESTION FOR JURY.-Whether the parents of a child,
four and one-half years old, are guilty of contributory negligence pre-
venting recovery for his death by being killed by an electric-car, 18
for the jury to determine, when it appears that such parents had
eight children and were in reduced circumstances, and that the child
killed was permitted to go to a coal-box on the street while his
mother was attending to another child, and that the child was killed
after another child, under direction of the mother, bad attempted to
take him home, and before she could return after the failure to so
get him bome had been reported to her. (Evers v. Philadelphia Trac-
tion Co., 674.)

25. PLEADING-NEGLIGENCE, CONTRIBUTORY, ON THE
PART OF A CHILD, WHEN NEED NOT BE DENIED.-A com-
plaint averring an injury to a child of tender years in permitting &
train of cars to remain for more than five minutes obstructing a
crossing and then negligently starting them up without warning, need
not negative the presumption of contributory negligence on its part.
(Railroad Co. v. Mackey, 641.)

26. NEGLIGENCE-PLEADING.-An allegation specifying the
act, the doing of which caused an injury, and averring generally that
it was negligently done, states a cause of action, though it is not
apparent from the complaint how the injury resulted from the negli-
gence alleged. (Railroad Co. v. Mackey, 641.)
See Appeal, 14, 15; Carriers, 3, 4, 9; Custom; Damages, 17; Injune

tions, 10; Master and Servant, 1, 10; Suretyship, 2.

NEGOTIABLE INSTRUMENTS.
1. ONE OF SEVERAL MAKERS OF A NOTE IS ENTITLED TO
PAY IT, and to proceed against his comakers for contribution, and it
the creditor refuses to accept sucb payment such maker is thereby
released, as to the part due from the comakers, if they subsequently
become insolvent. (O'Conor v. Morse, 155.)

2. NEGOTIABLE INSTRUMENTS-WHO IS MAKER AND NOT A SURETY.-A buyer of cotton who sigus 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, 301.)

6. NEGOTIABLE INSTRUMENTS INDORSEMENT IN 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 stat. ute, 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 de fenses 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 18 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. Diệther, 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 eso ception 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.)

See Appeal, 13.

NONRESIDENTS.
See Limitations of Actions, 2-7.

NOTICE. 1. NOTICE. CONSTRUCTIVE.-EVERY 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; Statutes, 19, 20;

Vendor and Purchaser, 2.

NUISANCE. NUISANCE-WHAT WILL NOT EXCUSE.-Pecunlary 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
the time when the official term begins, and does not require such
qualification to exist at the time of the election to such office. (Kirk-
patrick v. Brownfield, 422.)

2. JUDICIAL DUTIES, WHAT ARE.-Where an inquiry to be
made involves questions of law, as well as of fact, and fixes a legal
right, and its decision may result in terminating or destroying that
right, the powers to be exercised and the duties to be discharged are
essentially judicial. (Payton v. McQuown, 437.)

3. PUBLIC OFFICER, WHEN MAY NOT ACT BY DEPUTY.--
When an official duty is not ministerial, it cannot be performed by a
deputy. Therefore, though the clerk of a court is authorized to grant
injunctions, and the statute provides that any duty enjoined thereby
upon a ministerial officer, and any act permitted to be done by him
may be performed by his legal deputy, such statute relates only to
the discharge of ministerial duties, and does not authorize a deputy
to perform the duty of determining whether an injunction shall is.
sue. (l'ayton v. McQuown, 437.)

See Injunctions, 4; Quo Warranto; States, 2

PARENT AND CHILD.

See Trusts, 6.

PARLIAMENTARY LAW.
1. PARLIAMENTARY LAW.-A QUORUM OF A LEGISLA.
TIVE BODY is a majority of all the members thereof, in the absence
of constitutional provision or rule prescribed by the power creating
the body. (State v. Ellington, 580.)

2. PARLIAMENTARY LAW-QUORUM.-Although a quorum of
a body is actually present at the time a vote is taken, the presiding
officer is powerless to make the members vote, or to count those not
voting for the purpose of making up a quorum, in the absence of a
rule or express authority to that effect. (State v. Ellington, 580.)

3. PARLIAMENTARY LAW-QUORUM – PRESUMPTION.-If
the records of a legislative body show that less than a quorum of its
members were present when the roll was called and a vote taken, the
presumption that a quorum shown to be present earlier in the day
continued present when such vote was taken is overcome. (State v.
Ellington, 580.)

4. PARLIAMENTARY LAW-QUORUM PRESUMPTION.-It
being shown that there was a quorum of a legislative body present
In the morning, and it not appearing that there had been an ad-
journment, it is presumed that there continued to be a quorum pres-
ent when certain proceedings were had that day. (State v. Elling-
ton, 580.)

PARTITION.
1. PARTITION OF LANDS IN ANOTHER STATE cannot be
made by a court of equity by compelling the parties to execute con.
veyances to one another in pursuance of the partition, though they
are cotenants under the same source of title to a whole tract, a part
only of which lies in the state wherein the suit is pending. (Pillow v.
Southwestern etc. Imp. Co., 804.)

2. PARTITION-ADVERSE POSSESSION.–The fact that the de-
fendant is in adverse possession of property sought to be partitioned,
claiming title thereto in severalty, does not prevent a court of equity
from proceeding with the suit for partition, and determining all the
questions which may arise therein, if he claims under one who was

AX. ST. REP., VOL. LIII. - 65

a joint heir with the complainant, or with those under whom the
complainant claims. (Pillow v. Southwestern etc. Imp. Co., 804.)

3. CONSTITUTIONAL LAW-PARTITION-JURY TRIAL.-A
statute authorizing courts of equity, in suits for partition, to settle al
questions of law which may arise in the case, and which is con-
strued as permitting them to proceed though the defendant holds
adversely and in severalty, is not unconstitutional, though it may
result in denying the defendant the right to try his title before a
Jury. (Pillow v. Southwestern etc. Imp. Co., 804.)

4. PARTITION-LACHES.-A complainant in a suit for partition
is not guilty of such laches in asserting his rights that a court of
equity should deny him relief, where he has commenced his suit
before the statute of limitations bas extinguished his title, and it is
of record. (Pillow v. Southwestern etc. Imp. Co., 804.)

PARTNERSHIP.
1. A PARTNERSHIP CANNOT BE FORMED FOR AN ILLE-
GAL PURPOSE or one contrary to public policy. (Jackson v. Brick
Assn., 638.)

2. A PARTNERSHIP OR ASSOCIATION, FORMED FOR THE
ILLEGAL PURPOSE of controlling and enhancing the price of brick,
and in restraint of trade therein, cannot maintain an action in the
partnership or association name for brick sold and delivered. The
remedy, when one exists, is by an action in the names of the several
persons constituting the unlawful association. (Jackson V. Brick
Assn., 638.)

See Corporations, 25, 28; Pleading, 12

PAYMENT.
Seo Suretyship, 5-7; Tender, 2

PERCOLATION.
See Waters, 18-20.

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PLEADING.
1. PLEADING.-ALLEGATA AND PROBATA MUST CORRE-
SPOND, and however full and convincing may be the proof as to any
essential fact, this alone is insufficient unless the fact is averred.
(Tate v. Pensacola Gulf etc. Co., 251.)

2. PRACTICE.—THE DEFENSE that a partnership or association
was formed for illegal purposes, when it does not appear on the face
of the complaint, may be interposed by answer. (Jackson v. Brick
Assn., 638.)
See Deeds, 8; Fraud, 3, 4; Landlord and Tenant, 6; Negligence, 25, 26.

PLEDGE.
PLEDGE, WHAT IS.-Under the Civil Code of Californla every
contract by which the possession of personal property is transferred
u security only is a pledge. (Anderson v. Pacific Bank, 228.)

See Banks, 1-3; Interest, 2.

POLICE POWER.
1. POLICE POWER-DEFINITION.-The limit of the exercise of
police power has not been defined with precision; but it is determined
by "the gradual process of judicial inclusion and exclusion." (Chle
cago etc. R. R. Co. v. State, 557.)

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