100. of state. Mills V. the current expenses of the government, and The ordinary expenses of a state include debts to mature during the current fiscal year. State v. Leaphart, 11 S. C. 458, 469. provided that the expenditures of the vil- expense of building a town hall. lage should be denominated "ordinary ex- Richland Tp., 40 N. W. 183, 186, 72 Mich. penditures" and "extraordinary expenditures," and that ordinary expenditures should be those necessarily incurred to carry out and enforce the rules, by-laws, and ordinances which the trustees are authorized to adopt, and to give force to the powers therein conferred, except as such expenditures may be specifically enlarged or diminished or controlled by other provisions of the act, and providing that no ordinary expenditure for any specific act, object, purpose, or thing, except the lighting of streets, should exceed the sum of $500, and providing also that the trustees should have power to raise money for an extraordinary expenditure for any village purposes by assessment and tax, by submitting a resolution stating the amount to be raised, etc., to the annual election or to a special election, it was held that the difference between the ordinary and extraordinary expenditures was not in their nature, but in their amount, and that upon a vote of the electors of a village, duly taken, bonds might be issued under such act for any expenditure for village purposes exceeding $500 in amount. Village of Arverne-by-the-Sea v. Shepard, 46 N. Y. Supp. 653, 654, 20 App. Div. 12. ORDINARY EXPENSES. Of municipality. Where the charter of a corporation authorizes the levy of a tax sufficient to defray the ordinary expenses of the corporation, such phrase meant expenditures necessary to carry into effect the ordinary powers of the corporation, and the term was used in contradistinction to "extraordinary expenses." Intendant and Town Council of City of Livingston v. Pippin, 31 Ala. 542, 550. Any expense that recurs with regularity and certainty, and is necessary for the existence of the municipality, or for the health, comfort, and perhaps convenience of the inhabitants, may well be called an ordinary expense of the municipality. Brown v. City of Corry, 34 Atl. 854, 855, 175 Pa. 528. The "ordinary expenses of a township," within the meaning of How. St. 88 671, 750, authorizing the township board to vote taxes for the necessary sums to defray the ordinary township expenses, has never been very satisfactorily defined; but it may well be said that such expenses cannot include less than the necessary expenses incurred in administering the government of the township under the statutes creating it and relating thereto, in such manner as will best promote the convenience, peace, health, prosperity, and happiness of the people residing therein. The term does not include the expense of establishing lost section corners, nor the Const. art. 11, § 1, provides that the Legislature shall provide for an annual tax sufficient to defray the ordinary expenses of the state. Held, that the term "ordinary expenses" was practically defined in article 12, § 2, to be the ordinary current expenses of the executive, legislative, and judicial departments of the state, the current expenses of state institutions, interest on the public debt, and for the common schools, such section providing that the general appropriation bill shall embrace nothing but appropriations for ordinary expenses of the executive, legislative, and judicial departments of the state, the current expenses of state institutions, interest on the public debt and for common schools; and that all other appropriations shall be made by separate bills, each embracing one object, etc. In re Limitation of Taxation, 54 N. W. 417, 419, 3 S. D. 456. An item for the salary of a clerk in the offices of the Supreme Court prothonotary is intended to pay for part of the regular and ordinary work of such offices, and therefore is for their ordinary expenses, within the meaning of the Constitution, limiting general appropriation bills to the ordinary expenses of the executive, legislative, and judicial departments. Commonwealth Gregg, 29 Atl. 297, 298, 161 Pa. 582. ORDINARY FENCES. V. In a statute relating to unruly cattle, that will not be restrained by ordinary fences, the term "ordinary fences" does not mean lawful fences. "Ordinary," in such a connection, means common, and the meaning of the word as there used is different from that of the word lawful as used in the statute providing for lawful fences, inasmuch as fences which are lawful when made are constantly, by settling and otherwise, becom ing unlawful. There is therefore a class of common fences to which the term "ordinary," in contradistinction to "lawful," can properly apply. Hine v. Wooding, 37 Conn. 123, 126. ORDINARY FLOODS. Ordinary floods, within the rule that a railroad company constructing an embankment is liable for failing to provide means to prevent damages by the collection of waters caused by ordinary floods, means floods, the occurrence of which may be reasonably anticipated from the general experience of men residing in the regions where such floods happen. They are distinguished from extraordinary floods, which are floods of such unusual occurrence that they cannot be foreseen by men of ordinary experience and ordinary prudence. Gulf, C. & S. F. R. Co. v. Pool, 8 S. W. 535, 537, 70 Tex. 713. ÖRDINARY FORM. An allegation in the petition in an action on notes that they were "drawn in the ordinary form" is to be understood as meaning that they were payable in dollars. Sessions v. Peay, 21 Ark. 100, 105. ORDINARY GRANT. By an ordinary grant there is a transfer of title or estate or ownership from one to another, and the grantor, having parted with what he had, can give nothing by a second deed. Western Electric Co. v. Sperry Electric Co. (U. S.) 59 Fed. 295, 296, 8 C. C. A. 129. ORDINARY INSPECTION. The rule that a railroad company is bound to make a "reasonable and ordinary inspection" of foreign cars received for transportation means such an inspection as the time, place, means, and opportunity, and the requirements and exigencies of commerce, will permit. Louisville, N. A. & C. Ry. Co. v. Bates, 45 N. E. 108, 111, 146 Ind. 564. ORDINARY JURISDICTION. The jurisdiction of a court of equity is termed ordinary where a person holding the legal title of property for the use of another refuses to discharge the obligation, or forfeits his right to do so, and the court appoints another trustee. This jurisdiction is confined to the selection of the instrument to apply the property to the object. The ordinary jurisdiction is here limited to the mode. United States v. Late Corporation Church Jesus Christ, 31 Pac. 436, 441, 8 Utah, 310. ORDINARY LANGUAGE. Code, § 149, requiring that answers that set up no denial must contain a statement of new matter constituting a defense or counterclaim, in "ordinary and concise language," without repetition, means the established and customary form when the Code was enacted. "Ordinary" means that which has been established and is customary. Bell .. Yates (N. Y.) 33 Barb. 627, 629. ORDINARY LOW WATER. In construing an instruction that "the boundary line described in the treaty of cession from Georgia to the United States as running up the said river and along the banks thereof, was a line impressed upon the land by ordinary low water," the court said: "Ordinary low water,' like 'low water,' is a relative term, and in the abstract, and without practical application, has no definite meaning, and furnishes no satisfactory guide by which to ascertain or determine the line in question." Howard v. Ingersoll, 54 U. S. (13 How.) 381, 425, 14 L. Ed. 189. Ordinary low water of a river is not the water line in an extremely dry time. Hamilton v. Pittock, 27 Atl. 1079, 1080, 158 Pa. 457. ORDINARY MAN OR PERSON. The use of the expression "such care as an ordinary man," or "an ordinary business man," would use, in an instruction defining the degree of diligence and care required of a railroad company to avoid liability on a charge of negligence, and in determining the question of contributory negligence, is improper. Houston & T. C. Ry. Co. v. Smith, 13 S. W. 972, 973, 77 Tex. 179. The expression "ordinary persons," in common parlance, means men of ordinary care and diligence in relation to any particular thing. City of Kinsley v. Morse, 20 Pac. 217, 220, 40 Kan. 577. ORDINARY METHOD. The fact that the usual, customary, and ordinary method of handling a locomotive was being pursued at the time a fire was set by it does not necessarily show that the prudent and careful way was being pursued, especially if the wind was blowing hard at the time, and the land adjacent to the roadway was covered with very combustible material. It might well be contended that more than ordinary care and caution was required. Solum v. Great Northern Ry. Co., 65 N. W. 443, 444, 63 Minn. 233. ORDINARY NAVIGATION. See "Ordinary Navigation." Ordinary navigation is established or regular navigation. Johnson assigns to the word "ordinary" the meaning of "established, regular, common, usual." Crenshaw v. Slate River Co. (Va.) 6 Rand. 245, 263. ORDINARY NEGLECT. By "ordinary neglect" is meant the want of that care and diligence which prudent men usually bestow on their own concerns. Baltimore & O. R. R. v. Rathbone, 1 W. Va. 87, 107, 88 Am. Dec. 664. "Ordinary neglect" is said to be such neglect as would not be suffered by men of common prudence and discretion. Where a bank receives from a customer bonds and other securities as collateral security for loans and discounts, the bank is not a gratuitous bailee, but is liable for the want of ordinary and reasonable care in the custody of such securities. Ouderkick v. Central Nat. Bank, 119 N. Y. 263, 271, 23 N. E. 875. "Ordinary neglect" is understood to be the omission of care which every man of good prudence takes for his own concerns. The directors of a corporation are bound to exercise such care in regard to the corporation property. Scott v. Depeyster (N. Y.) 1 Edw. Ch. 513, 543. ORDINARY NEGLIGENCE. Ordinary negligence is the want of such care and diligence as reasonably prudent men generally exercise. Fordyce v. Culver, 22 S. W. 237, 239, 2 Tex. Civ. App. 569. Ordinary negligence is that absence or want of that degree of care which men of common prudence generally exercise in their own affairs. Sweeney v. Merrill, 16 Pac. 454, 38 Kan. 216, 5 Am. St. Rep. 734; Dreher v. Town of Fitchburg, 22 Wis. 675, 677, 99 Am. Dec. 91. It is the want of such care as the great mass or the majority of mankind observe in the transactions of human life. Dreher v. Town of Fitchburg, 22 Wis. 675, 677, 99 Am. Dec. 91. Ordinary negligence is the want of that diligence which the generality of mankind use in their own concerns. McGrath v. Hudson River R. Co., 19 How. Prac. 211, 220 (quoting Jones, Bailm. 22); Moore v. Cass, 10 Kan. 288, 291. Ordinary or common negligence is the want of that degree of care which ordinarily prudent men would ordinarily exercise under like circumstances. Union Pac. Ry. Co. v. Henry, 14 Pac. 1, 3, 36 Kan. 565; Chicago, K. & W. R. Co. v. Fisher, 30 Pac. 462, 467, 49 Kan. 460. Ordinary negligence is a disregard of those rules of conduct that a man of ordinary prudence would have followed. Tyler v. Nelson, 109 Mich. 37, 43, 66 N. W. 671, 673. Ordinary negligence is the failure to exercise ordinary care, or, in other words, that degree of care which an ordinarily prudent person would exercise under like circumstances, although the party has exercised some care, and it may be only slightly less than ordinary care. Chicago, K. & N. Ry. Co. V. Brown, 24 Pac. 497, 499, 44 Kan. 384. Ordinary negligence is the want of such care and diligence as reasonably prudent men generally, in regard to the subject-matter of inquiry, under similar circumstances, would of. Toncray v. Dodge County, 51 N. W. 235, use to prevent or avoid the injury complained 237, 33 Neb. 802. Ordinary negligence, as used in an action for a negligent destruction of the property of another, is want of such care and diligence as reasonably prudent men generally, in regard to the subject-matter of inquiry, under such circumstances as those under consideration, would have used to prevent or avoid the injury complained of. Toncray v. Dodge County, 51 N. W. 235, 237, 33 Neb. 802. Where there is a want of such care as persons of ordinary prudence observe in the performance of duty, the same has been designated by this court as "ordinary negligence"; and that includes not only mere inadvertence or inattention to duty, resulting in an injury to another, but also a want of the means or capacity to prevent such injury when the same is known to be imminent. Lockwood v. Belle City St. Ry. Co., 65 N. W. 866, 871, 92 Wis. 97. "Ordinary negligence" is the want of ordinary care or of the degree of diligence which men in general exert in respect to What constitutes orditheir own concerns. nary care in respect to property depends upon the value, character, and situation of the property in question; the question in each case being what care would usually be exercised by men of ordinary prudence in respect to property of the same kind, and similarly situated. Ward v. Milwaukee & St. P. Ry. Co., 29 Wis. 144, 148. Ordinary care is the opposite of ordinary There can be negligence less negligence. than ordinary negligence. East Tennessee, V. & G. Ry. Co. v. Bridges, 17 S. E. 645, 647, 92 Ga. 399. It was not improper to use the term "ordinary negligence" in an instruction that plaintiff, suing for personal injuries, must establish negligence on the part of the defendant, and that he did not contribute to the negligence by his own ordinary negli gence. In 1 Shear. & R. Neg. § 86, the term "ordinary negligence" is treated as equivalent of "want of ordinary care," and, when used in that sense, it is not improper, although perhaps not the best means of expressing the thought intended to be conveyed. Kerns v. Chicago, M. & St. P. Ry. Co., 62 N. W. 692, 693, 94 Iowa, 121. Ordinary negligence is the absence of ordinary care. The attempt to distinguish different degrees of negligence has been much criticised, but it is said that the expression "ordinary negligence" in a charge is not mis leading. Lake Shore & M. S. Ry. Co. v. I these expressions are indicative rather of the Murphy, 33 N. E. 403, 405, 50 Ohio St. 135. Ordinary negligence consists in the want of ordinary care and diligence. Rev. St. Okl. 1903, § 2784; Rev. Codes N. D. 1899, § 5111; Chicago, K. & W. R. Co. v. Fisher, 30 Pac. 462, 467, 49 Kan. 460; Union Pac. Ry. Co. v. Rollins, 5 Kan. 167, 180; Whiting v. Chicago, M. & St. P. Ry. Co., 37 N. W. 222, 224, 5 Dak. 90; Chicago, B. & Q. R. Co. v. Johnson, 103 Ill. 512; Thackston v. Port Royal & W. C. Ry. Co., 18 S. E. 177, 178, 40 S. C. 80. Ordinary negligence is a want of ordinary care. Chicago, K. & N. Ry. Co. v. Brown, 24 Pac. 497, 499, 44 Kan. 384. Gross and slight negligence distinguished. concerns. "Sir Wm. Jones distinguishes between ordinary negligence, gross negligence, and slight negligence thus: 'Ordinary neglect is the omission of that care which every man of common prudence and capable of governing a family takes of his own Gross neglect is the want of that care which every man of common sense, how inattentive soever, takes of his own property. And slight neglect is the omission of that diligence which all circumspect and thoughtful persons use in securing their own goods and chattels.' And Mr. Justice Story gives, in substance, the same definition of these terms: 'Ordinary negligence may be defined to be the want of ordinary diligence; gross negligence, to be the want of slight diligence; and slight negligence, to be the want of great diligence.' Story, Merchants, 17. French v. Buffalo, N. Y. & E. R. Co., *43 N. Y. (4 Keyes) 108, 113. See, also, Litchfield V. White, 7 N. Y. (3 Seld.) 438, 442, 57 Am. Dec. 534. Strictly speaking, the expressions "gross negligence" and "ordinary negligence" are indicative rather of the degree of care and diligence which is due from a party, and which he fails to perform, than the amount of inattention, carelessness, or stupidity which he exhibits. If very little care is due from him, and he fails to perform that little, it is called "gross negligence." If very great care is required, and he fails to come up to the mark, it is called "slight negligence." And if ordinary care is due, such as a pruIdent man would exercise in his own affairs, failure to bestow that amount of care is called "ordinary negligence." In each case the negligence, whatever epithet we give it, is failure to give and bestow the care which the situation demands; and hence it is more strictly accurate, perhaps, to call it simply "negligence," and this seems to be the tendency of modern authority. Briggs v. Spaulding, 11 Sup. Ct. 924, 931, 141 U. S. 132, 35 L. Ed. 662. In speaking of an alleged legal distinction between gross and ordinary negligence, the court observes that, strictly speaking, degree of care and diligence which is due from a party, and which he fails to perform, than of the amount of inattention, carelessness, and stupidity which he exhibits, and ed, it is under such name a failure to betherefore, by whatever name it may be callstow the care and skill which the situation demands, and hence it is more strictly ac curate, perhaps, to call it simply negligence. Atchison N. R. Co. v. Washburn, 5 Neb. 117, 120. ORDINARY OBSERVATION. "Ordinary observation," as used in the statement that the statute prohibiting the carrying of concealed weapons is violated by the carrying of such a weapon where it cannot be seen by ordinary observation, is hardly capable of an exact definition, meaning all the varying conditions under which a pistol may be carried, but it may be said that the meaning generally is that the weapon must be open to the ordinary observation of those who come in contact with the person carrying it. In the usual and ordinary associations of life, if a person with a pistol on his person approach another, or pass him on the street or public highway, or is otherwise thrown with the other in social contact, and has the pistol on his person, so that it may be seen without inspection or examination of his person for that purpose, and from ordinary observation, as persons usually observe each other, then the pistol is not concealed; but if, on the other hand, the pistol is carried on the person under such conditions that it is hidden from view and from the observation of persons coming in contact with the person carrying it, casually observing his person, there is concealment. Driggers v. State, 26 South. 512, 513, 123 Ala. 46. ORDINARY PLACE. The words "ordinary place," in a statute prohibiting gambling in an ordinary race field or any other public place, described a tavern. Wortham v. Commonwealth (Va.) 5 Rand. 669-675. ORDINARY PRECAUTIONS. The term "ordinary precautions," in the meaning of a covenant in a coal lease by which the lessor agrees to protect the lessee from damages resulting from mining, providing the lessee takes all ordinary precautions usually taken in mining and removing coal, includes the requirement that the lessee give proper support to the overlying surface. Youghiogheny River Coal Co. v. Hopkins, 48 Atl. 19, 20, 198 Pa. 343. ORDINARY PROCEEDING. An attachment is not an ordinary proceeding in the action, but an extraordinary and collateral proceeding, within the mean- | ORDINARY PURPOSES. ORDINARY PROCESS OF LAW. The phrase "ordinary process of law," found in the statute providing that the cost of street work shall be assessed, and the bill be delivered to the contractor, who shall proceed to collect the same by ordinary process of law, does not mean ordinary personal judgment and execution, but such process as is adapted to enforce a lien or specific charge on the property specially assessed. Neenan v. Smith, 50 Mo. 525, 529. ORDINARY PRUDENCE. "Ordinary prudence" means such care and prudence as the average prudent man would exercise under like surroundings and in the like situation. Fassett v. Town of Roxburg, 55 Vt. 552, 556. The expression "ordinary prudence and caution," as used in an instruction that the degree of care required under certain circumstances is such care as men of ordinary prudence and caution would have exercised under similar circumstances, is but a synonym for "ordinary care." Blyth v. Proprietors of Birmingham Waterworks Co., 11 Exch. 781. In a contract to furnish all gas for ordinary purposes connected with the house, "ordinary purposes" will be held to include the use of gas for gas range, fireplace, and street lamps in front of the house. Graves v. Key City Gas Co., 61 N. W. 937, 938, 93 Iowa, 470. ORDINARY RAINFALL. In an action against a railroad company for damages occasioned by water claimof the company in failing to provide suffied to have been caused by the negligence cient culverts, the court submitted to the jury the question whether the defendant maintained the tracks or embankments of its railway in such condition as to prevent the passage of such amount of surface water as is caused by the ordinary rainfall of this country, and said: "By the 'ordinary rainfall' and the 'ordinary flow of surface water' I mean such fall of rain as is liable to occur in the ordinary course of nature in this climate and country, and such flow of surface water as would be caused thereby." This instruction was held to be correct. Cornish v. Chicago, B. & Q. R. Co., 49 Iowa, 378, 380. Ordinary rainfalls are such as are not unprecedented and extraordinary, and hence floods and freshets which habitually occur, though at irregular and infrequent intervals, are not extraordinary or unprecedented. Cairo, V. & C. R. Co. v. Brevoort (U. S.) 62 Fed, 129, 133, 25 L. R. A. 527. ORDINARY REPAIRS. In marine insurance it is held that a ship is a total loss when she has sustained such extensive damage that it would not be reasonably practicable to repair her. The ordinary measure of prudence which the courts have adopted is this: If the ship, when repaired, will not be worth the sum which it would be necessary to expend upon her, the repairs are, practically speaking, impossible, and it is a case of total loss. The above doctrine applied to a case of fire insurance on a building, in order to determine whether or not there was a total loss thereof. Corbett v. Spring Garden Ins. Co., 50 N. E. 282, 283, 155 N. Y. 389, 41 L. R. A.ter of a city providing that the expense of The term "ordinary repairs," in the char 318. ORDINARY PURCHASER. The term "ordinary purchaser," within the rule that the test of infringement of a patent is whether ordinary purchasers would be likely to mistake the one design for the other, does not mean a dealer who is presumably informed as to the various designs, and their resemblances and differences, but is applicable to the general purchasing public who buy the article under the ordinary conditions under which such purchases are ordinarily made. Britton v. White Mfg. Co. (U. S.) 61 Fed. 93, 98. All buildings are subject, more or less, to and "ornatural and unavoidable decay; dinary repairs," when used in reference to buildings, means expenses reasonably incurred in keeping the property in good condition and order. Abell v. Brady, 28 Atl. 817, 820, 79 Md. 94. all new street work or improvements or alterations not in the nature of ordinary repairs shall be assessed and be a lien upon the property benefited, naturally suggests to the mind the idea that only such work as would be necessary to preserve the highway in its usual condition, with no material change in its grade, was intended. It does not apply to the grading of an avenue. Brenn v. City of Troy (N. Y.) 60 Barb. 417, 421. The difference between work upon highways, which is spoken of as ordinary and extraordinary in Rev. St. 1881, § 5069, providing that road superintendents shall in certain months put all the roads in their |