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different from mere desire for the payment of , ness, and hence, the market having advanced, a specified sum at a specified time. The main defendants could not exercise the option that purpose is to preserve the legacies until the they might sell the malt at a profit. Hettiger beneficiaries attain majority, and advance- v. Davenport Malt & Grain Co., 139 S. W. ment may be made from time to time as a 1072, 1073, 145 Ky. 39. sound judgment and wise discretion may dictate, in the light of all attendant circum- NEEDED REPAIRS stances. Smith v. Haynes, 89 N. E. 158, 160, If one county resolves upon such a 202 Mass. 531.

course, and proceeds to replace three wooden The words, “the ties you may need" dur- spans with steel at three times the cost necing 1899, or "ties as needed," as used in a essary to rebuild them as originally constructcontract for the furnishing of ties for the con- ed, there being seven or eight times that struction of a railroad, though plain in their many spans in the entire bridge, it cannot reordinary meaning, are susceptible of various cover from the other county as for “needed meanings, accordingly as the context in repairs.” Platte County v. Butler County, which they appear may throw light upon

135 N. W. 439, 440, 91 Neb. 132. them or the subject-matter with respect to

NEEDFUL BUILDINGS which they are used. Laclede Const. Co. v. T. J. Moss Tie Co., 84 S. W. 76, 90, 185 Mo. 25. buildings," for the erection of which, as well

Post offices are among the other "needful The word “needed,” as used in Ballin- as of "forts, magazines, arsenals, dockyards,” ger's Ann. Codes & St. § 4156, declaring that it is assumed that land will be bought, and the right given to condemn the use of water for which land has been bought, by the govshall not extend further than to the riparian ernment all over the United States, pursurights of persons to the natural flow of water ant to Const. art. 1, § 8, cl. 17. Battle v. through lands on or abutting on streams or United States, 28 Sup. Ct. 422, 423, 209 U. S. lakes as the same exists at common law, and 36, 52 L. Ed. 670. is not intended to allow the taking of water from any person that is used by the person NEEDS himself for irrigation or that is needed for

See Buyer's Needs. that purpose, meant water necessary to irrigate the land of a littoral or riparian owner which he has under irrigation at the time NEEDLE his rights are sought to be condemned, or

See Hand Sewing Needle. which he intends to and will place under irrigation within a reasonable time, and that,

Manufactures of, see Manufactures

Manufactured Articles. as to such water, no condemnation could be had. State ex rel. Liberty Lake Irr. Co. v.

NEEDLE CASES Superior Court for Spokane County, 91 Pac. 968, 969, 47 Wash. 310.

Not dutiable as articles composed in part

of steel, see Articles within Tariff Act. A request for bids for coal for a city asked for coal to be delivered “as needed" and also as fast as "required.” The bids of- NEGATIVE fered to deliver at such times and in such quantities as the city might direct, and the

NEGATIVE EASEMENT body of the contract stated in one place that

A "negative easement" is a right in the the coal should be delivered promptly “as or

owner of the dominant tenement to restrict dered," and in another, that on failure to the owner of the servient tenement in respect make delivery "as ordered,” the city might of the tenement in the exercise of general and either forfeit the contract or buy coal at the natural rights of property, such as rights of contractor's expense in the open market. light and air. Bernerov. McFarland Real Held, that the words "order" and "direct" Estate Co., 114 S. W. 531, 534, 134 Mo. App. should be construed as synonymous with the 290. word “require,” and that the word “require" The right of an owner of a dominant was used as the substantial equivalent of tenement to restrict the owner of the ser"need.” McLean County Coal Co. v. City of vient tenement in the exercise of general and Bloomington, 84 N. E. 624, 627, 234 Ill. 90.

natural rights of property, is sometimes callDefendants, who were operators of a ed a "negative easement.” Such an easebrewery, contracted for 6,000 bushels of malt ment was created where the owner of a to be delivered "as needed,” and at the end building conveyed three inches of land to of the contract plaintiff granted defendants an adjoining owner, with the right to use an option to receive 2,000 bushels more at the his party wall, in consideration of a covesame rate "in case same is needed.” Held, nant by the grantee, stipulated to run with that the word “needed" was not used in the the land, that she would not during a specisense of "desired” or “wanted," disconnected fied time use the building to be erected for with the conduct of defendants' business, but a saloon. Uihlein v. Matthews, 64 N. E. 792, meant required for defendants' brewery busi- ) 793, 172 N. Y. 154.


in form a "negative pregnant.” J. I. Porter Testimony that a fact did not occur, Lumber Co. v. Hill, 77 S. W. 905, 906, 72 founded on a witness' failure to hear or Ark. 62. see a fact which he could supposedly have A finding by a jury that a sheriff had heard or seen if it had occurred, is based on not neglected and failed to present and have what is called “negative knowledge.” Cot- approved his official bond as sheriff, and take ton v. Willmar & Sioux Falls Ry. Co., 109 N. the oath of office, within the time prescribed W. 835, 837, 99 Minn. 366, 8 L. R. A. (N. S.) by law, amounts to a “negative pregnant," 643, 116 Am. St. Rep. 422, 9 Ann. Cas. 935 and should be treated as an admission of the (citing 1 Wigmore, Ev. § 664; 2 Elliott, Ev. implied fact. State ex rel. Russell v. Box, § 969; 6 Thomp. Neg. s 7865; 5 Current | 78 S. W. 982, 984, 34 Tex. Civ. App. 435. Law, 1369).

Under Municipal Court Act (Laws 1902, "Negative knowledge" is the testimony p. 1538) $ 150, providing that the answer that a fact did not occur, founded on the must contain a denial of each material alwitness' failure to hear and see a fact which legation of the complaint controverted, a he would supposedly have heard or seen it complaint alleging that in the month of it had occurred, and the only requirement is April, 1904, plaintiff did work, etc., for dethat the witness should have been so situat- fendants, is not sufficiently denied by an ed that, in the ordinar course of events, he answer denying that in the month of April, would have heard or seen the fact, had it | 1904, plaintiff did work, etc., for defendants, occurred. Hoffard v. Illinois Cent. Ry. Co., but failing to deny that he did so at any 110 N. W. 446, 449, 138 Iowa, 543, 16 L. R. A. other time; it constituting a "negative preg(N. S.) 797 (quoting and adopting definition nant.” Levin & Meyer Contracting Co. v. in Wigmore, Ev. § 664).

Jackson, 92 N. Y. Supp. 307, 308, 46 Misc.

Rep. 445.
A “negative pregnant" is such form of a

NEGATIVE TESTIMONY negative expression as may carry with it an Where one of two witnesses, having affirmative. Lemke v. Lemke, 111 N. W. 138, equal facilities for seeing or hearing a thing, 139, 78 Neb. 525.

swears that it occurred, and the other that

it did not, the testimony of neither is negaA "negative pregnant” in a pleading is a negative implying also an affirmative, and is tive, within the rule that the existence of a such a form of negative expression as may

fact testified to by a positive witness is rath

er to be believed than that of one who swears carry with it an affirmative. Nobach

that it did not occur. Civ. Code 1895, $ 5165. Scott, 119 Pac. 295, 297, 20 Idaho, 558.

Hunter v. State, 62 S. E. 466, 4 Ga. App. 761. A "negative pregnant” is a denial pregnant with an admission of a substantial fact that defendant drew his pistol and had it in

Where the witnesses of the state testified which is apparently controverted, or which, though in form of a traverse, really his hand during the difficulty, and defend

ant's witnesses testified that they did not see admits the important fact contained in the allegation. Electrical Accessories

him have any pistol, it was error to charge

Co. Mittenthal, 87 N. E. 684, 685, 194 N. Y. 473. that if some witnesses were present and had

opportunity to know the facts, and there was Under the system of code pleading, a another class of witnesses who testified that general denial is as broad as the allegations they did not know, the law requires the jury denied, and a general denial of an allegation to believe the positive testimony, and that of value or damages cannot be treated as a “positive testimony" is that of witnesses who “negative pregnant,” and an admission of know the facts, and “negative testimony" is any value or damages less than the sum al- that where the witness "doesn't know the leged. McGrath v. Valentine, 167 Fed. 473, facts, or didn't see it.” Daniel v. State, 62 476, 93 C. C. A. 109.

S. E. 539, 4 Ga. App. 843. A denial that the defendants are indebt

On an issue whether a gong of defended to plaintiff in the precise sum charged in ant's street car, by which plaintiff was the petition, and that the use and occupation struck, was sounded as the car approached of the premises is worth the sum mentioned a crossing, a police officer on the car, who in the petition, is a “negative pregnant," and saw the motorman set the brake when the is no denial at all; and where such a plead accident occurred, testified that no gong was ing is filed by way of an answer the allega- sounded, because as soon as the accident haptions of the petition are treated as admitted. pened he remembered the fact, and knew that Jackson v. Green, 74 Pac. 502, 503, 13 Okl. the question of warning by bell or gong was 314.

an important one; that he supposed the inWhere a plaintiff alleges that he is and jury was caused by car going in the opposite has been for the last 10 years the owner and direction, because no gong was sounded on in possession of land, an answer denying that the one he was on; that his hearing was plaintiff is and has been for the last 10 years good, and his attention was not diverted. the owner and in possession of the land, is Plaintiff testified that he was listening for a




car coming in the opposite direction from the “The word 'neglect,' as sometimes used, one from which he had alighted just prior imports an absence of care or attention in to his injury, because he knew one might be the doing or omission of a given act, or it coming at any time, and that he heard no may be used in the sense of an omission or gong or bell. Held, that such testimony was failure to perform some act. To neglect is not negative in the sense that it was over- not always synonymous

with to omit. borne, as a matter of law, by testimony of Whether the use of the term is intended to defendant's employés that the gong was express carelessness or lack of attention resounded. Testimony is negative only when quired by the circumstances, or to express it tends to prove the nonexistence of a fact merely a failure to do a given thing, depends by reason of a mere failure of a witness to upon the connection in which the term is observe and remember its existence, but, if used and on the meaning intended to be exthe evidence asserts such an observation as pressed. * * * In Webster's Dictionary the to the existence of the fact and the recollec- verbneglect' is defined as meaning ‘not to tion of what that observation was, denial of attend to with due care or attention; to forits existence based thereon is affirmative er- bear one's duty in regard to; to suffer to idence that the fact does not exist. Coel v. pass unimproved, unheeded, undone.' In the Green Bay Traction Co., 133 N. W. 23, 25, 147 Standard Dictionary the word is defined as Wis. 229.

meaning 'to fail to perform through ca reless

ness'; and in the Century Dictionary: (1) In a prosecution for homicide, the court To treat carelessly or heedlessly; forbear to properly defined and distinguished positive attend to or treat with respect; be remiss in and negative testimony: “The testimony of attention or duty toward. (2) To overlook or those witnesses who swore positively that omit; disregard. (3) To omit to do or perthey saw the pistol in the hand of the pris form; let slip; leave undone; fail through oner, and that he fired the fatal shot while heedlessness to do or in doing (something).' the pistol was in his hand, is what the law As defined in the penal statutes of several terms 'positive testimony.' They, swear posi- of the states, the word 'neglect' is said to tively that they saw the existence of a fact. import 'a want of such attention to the naThe testimony of the witnesses who said ture or probable consequences of the act or that they saw the prisoner and the deceased omission as a prudent man ordinarily bein a struggle at the time when the last shot stows in action in his own concerns.'" H. was fired, but they did not see the pistol, Hackfeld & Co. v. United States, 25 Sup. Ct. and did not know in whose hand the pistol 456, 458, 197 U. S. 442, 49 L. Ed. 826 (quotwas, is what the law terms 'negative testi- ing 5 Words and Phrases, p. 4740). mony.' The reason the law gives greater weight to positive testimony than to nega- The absence of “ordinary diligence," detive testimony is because the witnesses who fined by Civ. Code 1893, § 2898, as that care swore to positive testimony swore to what is which every prudent man takes of his own a fact, an existing fact, or else they delib- property of a similar nature, is termed "negerately swore to a falsehood, while those who lect.” Objection has sometimes been made swore to negative testimony may be telling to the qualifying words “slight," "ordinary," the truth, and yet the fact may exist which and “gross," as applicable to negligence, and they did not see. If one witness swears that the courts of some jurisdictions have prehe saw Sheriff Markham in the courthouse in ferred to use the term "ordinary neglect," Durham on a certain date, the sheriff was or "negligence," as applicable to a want of there, or else the witness told a lie. Anoth- due care under the circumstances, maintainer witness might say: 'I was in the court- ing that at last “ordinary diligence" in the house on that occasion, but I did not see light of the circumstances is all that is reSheriff Markham in there.' That witness quired. Southern Railway Co. v. Davis, 65 may be telling the truth and may be con- S. E. 131, 132, 132 Ga, 812. scientious, and yet it may be a fact, notwith

The word "neglect," as used in Rev. St. standing, that Sheriff Markham was in the Idaho, § 4100, providing that, when a percourthouse. And for that reason the law son's death is caused by the wrongful act says you must attach greater weight to posi- or neglect of another, his heirs and personal tive testimony than to negative testimony.” representatives may maintain an action for State v. Murray, 51 S. E. 775, 139 N. C. 540. damages against the person causing the

death, stands in the same category with NEGLECT

wrongful act, and implies some omission of

duty. The death of a free passenger on a See Culpable Neglect; Excusable Neg- railway train, not due to the omission on the

lect; Failed and Neglected; Inadver- part of the railway company of any duty owtence, Surprise, and Excusable Neg- ing to deceased, cannot be considered as causlect; Omissions, Neglects, and De- ed by the neglect of the railroad company, faults; Ordinary Neglect; Wanton and hence the heirs or personal representaNeglect; Willful Neglect.

tives of the deceased cannot maintain an acGross neglect, see Gross Negligence. tion under the section. Northern P. R. Co. v.


Adams, 24 Sup. Ct. 408, 409, 192 U. S. 440, / and mean something more than an unavoid. 48 L. Ed. 513.

able and accidental violation of the statute. "Care" and "carefulness" are antonyms

Chesapeake & O. R. Co. v. Commonwealth, 84 for “neglect” and “negligence." Negligence S. W. 566, 568, 119 Ky. 519. is a conclusion of law, and so also are state- The purpose of Rem. & Bal. Code, & $631, ments in the findings by the jury that work providing that if any railroad company shall was done carefully. Avery v. Nordyke & “refuse or neglect” to obey any order of the Marmon Co., 70 N. E. 888, 893, 34 Ind. App. Railroad Commission, the company shall be 541.

subject to a penalty, is to impose a penalty The "neglect” mentioned in the statute for neglect or refusal, and where a company defining the liability of a city for injuries to fails to perform an act required by an order pedestrians on defective sidewalks means the within the time specified therein, it is imwant of ordinary care, and the city must, material whether the failure resulted from to escape liability, use ordinary care to keep willful refusal or neglect, or from mere misdefects out of its streets. Berry v. City of management; the word "neglect" meaning Greenville, 65 S. E. 1030, 1031, 84 S. C. 122, omission, or forbearance to do a thing that 19 Ann. Cas. 978.

can be done, or that is required to be done,

and it does not generally imply carelessness An instruction in an action against a

or imprudence, but simply an omission to town for injuries to a traveler, caused by perform. State ex rel. Railroad Commission a defective bridge, that it was the duty of of Washington v. Great Northern Ry. Co., the town to keep the bridge reasonably safe 123 Pac. 8, 12, 68 Wash. 257. for the amount and kind of travel that might be expected to pass over it, and that, if the

As used in Gen. St. 1902, 2499, authoriz. town was chargeable with any fault in re-ing an action by a wife against her husband spect of such duty, the liability attached, and for support when he neglects to support her, the town was liable for accidents caused by "neglect” means more than a mere omission

It imports omisreason of defects existing through the fault or failure without fault. of the town, "and this without notice to it sion accompanied by some kind of culpability or regardless of the question of 'neglect,''

in the conduct of the husband; the design of etc., was not erroneous because of the use

the statute being to compel the unwilling, of the quoted phrase; the word “neglect" and not to constrain those who have acted therein being used in its ordinary legal sense, fairly and reasonably in the performance of and it being apparent that the part of the the duty. Lathrop v. Lathrop, 63 Atl. 514, charge quoted was intended to mean that 515, 78 Conn. 650. the liability of the town was not to be made "Neglect," within Rev. St. 1899, § 2228, to depend on the question whether or not it declaring that every able-bodied married man had exercised ordinary care in the mainte- who shall “neglect” or “refuse" to support nance of the bridge. Graves V. Town of his family shall be deemed a "vagrant," arisWaitsfield, 69 Atl. 137, 140, 81 Vt. 84.

es from an inattentive state of mind, want Since in this state the liability of a mu

of care for, and utter disregard of the obliganicipal corporation for injuries caused by de- tion resting on the husband to support his fects in street and sidewalks is absolute, an

family, whereas the word "refuse” imports instruction that this was a latent defect, for obligation; and hence where a physician of

a willful disavowal or disregard of such which the defendant was responsible by reason of its neglect in not repairing the side good habits endeavored to establish a pracwalk, the word "neglect” could not have been for patients, and attended to such calls as

tice, maintained an office where he waited used in its ordinary legal sense, and must be he had, contributing his entire income from deemed to have been used to signify mere his practice to the support of his wife and failure to repair, although it did not appear himself, he was not a "vagrant,” so as to en. that the corporation had had any knowledge title his wife to a divorce under section 2921, of the defect. Campbell v. City of Elkins, declaring that when the husband shall be 52 S. E. 220, 222, 58 W. Va. 308, 2 L. R. A. guilty of such conduct as to constitute him a (N. S.) 159.

“vagrant," within the meaning of the law R. L. 1905, § 3696, in limiting the time respecting “vagrants," the wife may be diwithin which the priorities of right of ad- vorced, though he did not succeed in earning ministration thereby conferred must be as- enough to support both of them, and she serted, uses the word "neglect” synonymously was compelled to contribute to their support with "fail." In re Lis' Estate (Minn.) 139 N. from her separate means. Gallemore v. GalW, 300, 307.

lemore, 91 S. W. 406, 410, 115 Mo. App. 179. The words "fail," "refuse,” and “neg

Of official duty lect," as used in St. 1903, $$ 795, 797, pro- Under Rev. St, 1895, art. 790, providing viding that any railroad company which that no county shall be sued unless the claim “shall fail, refuse and neglect to comply with on which such suit is founded shall have the provisions” of the act shall be guilty of first been presented to the county commisa misdemeanor, are used interchangeably,' sioners' court for allowance, and such court

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shall have neglected or refused to audit the time is satisfactorily excused; the terms “to same, “neglect” is sufficiently shown by evi- neglect” and “to omit" not being synonymous, dence that the court has been given a rea- since to neglect is to omit by carelessness or sonable time within which to act, and has design, while an omission may be involuntary failed to allow the claim. Williams v. Bowie and inevitable. In re Chadbourne's Estate, County (Tex.) 123 S. W. 199, 200.

114 Pac. 1012, 1013, 15 Cal. App. 363. Under a statute providing that, if any As surprise commissioner or other county officer shall

See Surprise. "neglect” to perform any act which it is his duty to perform, he shall forfeit his office and NEGLECT AND REFUSAL be removed, the duty must be personal, and See, also, Refuse--Refusal. the act must be one which the officer has the

Plaintiff contracted to procure consignlegal capacity and authority to perform, or he cannot be guilty of neglect. The purpose ment to defendant of some of the product of of the statute is to prevent persons from silk mills, and defendant argeed to pay comcontinuing to hold office whose inattention missions on the sale of the product consignto duty endangers the public welfare, and ed. The contract was to continue for a year, the “neglect” contemplated must disclose ei- and thereafter from year to year until terther willfulness or indifference to duty so minated by notice, and it provided that on

“neglect and refusal" of plaintiff to perform persistent or in affairs of such importance that the safety of public interests is threat- his agreement, and at the expiration of the ened. Irregularities in the publication of agreement, defendant might sell the goods on statements of sums of money allowed and ed to consign any product to defendant so

hand. The company owning the mills refusin advertisements for bids for bridge repair work, failure to publish estimates of expen- and defendant was so notified. Held, that

long as plaintiff was retained as sales agent, ditures upon which tax levies were made, and failure to advertise for bids for the re- plaintiff, on being unable to continue to conpair of a bridge do not constitute legal causes sign goods, was guilty of a breach of confor the removal of a county commissioner tract, the inability to continue not being from office on the ground of neglect of duty. I neglect and refusal," and defendant was State v. Kennedy, 108 Pac. 837, 841, 82 Kan. justified in canceling the contract for the 373.

future, and might enter into a contract with

the company for the consignment of future A sheriff, who, notwithstanding public feeling against a negro charged with murder, goods. Napier v. Spielmann, 111 N. Y. Supp.

1009, 1016, 127 App. Div. 711. failed to order the jail doors closed, or to take any precaution to prevent a lynching, being NEGLECT TO TAKE OATH under Code 1907, 88 132, 7191, the legal cus- Under Const. art. 1, § 7, which provides todian of the jail chargeable with the duty that an officer who refuses or neglects to of excluding intruders, was subject to im- take the oath or affirmation of office shall be peachment under Const. 1901, $ 138, provid- deemed to have refused the office, and a new ing that, when any prisoner is taken from selection shall be made, and under Code jail and killed owing to the neglect of the 1912, art. 20, § 1, which requires constables sheriff, the sherit may be impeached, for to so qualify within 30 days after their ap"neglect," as applied to a public officer, means pointment, neglect of a constable to take the a failure on his part to perform some of the oath, etc., within that time, deprives him of duties of his office. State ex rel. Garber v. the office; the term "neglect to take the Cazalas, 50 South. 296, 162 Ala. 210, 19 Ann. oath,” as used in the Constitution, meaning Cas. 886 (quoting 5 Words and Phrases, p. neglect of an appointee to take the oath 4740).

within the time required by law. Little v. Omission distinguished

Schul, 84 Atl. 649, 653, 118 Md. 454. Code Civ. Proc. $ 1511, provides that, "if an executor


neglects for two months after his appointment to give notice

The words “neglected children,” as used to creditors as prescribed, * the court in Act No. 82, p. 134, of 1906, entitled "An must revoke his letters” and appoint anoth- act defining the power of the district courts er executor. Pen. Code, § 7, subd. 2, pro- of this state and the city courts, with refervides that the term “neglect” imports a want ence to the care, treatment, and control of of such attention to the nature or probable dependent, neglected, incorrigible, and deconsequences of the act or omission as a pru- linquent children, under the age of 16 years," dent man ordinarily uses in acting in his mean any children who are destitute, home

Held that, construing section | less, abandoned, or depending on the public 1511 in view of the policy of the law to ef- for support, or who have not proper care or fectuate testator's expressed will as far as guardianship. In re Parker, 43 South. 54, possible, it gave the court a wide discretion 55, 118 La. 471. in removing executors thereunder, and an ex- Laws 1907, C. 41, § 1 (Burns' Ann. St. ecutor should not be removed if the failure 1908, § 1642), defines a “dependent child" as to publish the notice within the required 'one under the age stated who is dependent

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own concerns.

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