different from mere desire for the payment of a specified sum at a specified time. The main purpose is to preserve the legacies until the beneficiaries attain majority, and advancement may be made from time to time as a sound judgment and wise discretion may dictate, in the light of all attendant circumstances. Smith v. Haynes, 89 N. E. 158, 160, 202 Mass. 531. The words, "the ties you may need" during 1899, or "ties as needed," as used in a contract for the furnishing of ties for the construction of a railroad, though plain in their ordinary meaning, are susceptible of various meanings, accordingly as the context in which they appear may throw light upon them or the subject-matter with respect to which they are used. Laclede Const. Co. v. T. J. Moss Tie Co., 84 S. W. 76, 90, 185 Mo. 25. The word "needed," as used in Ballinger's Ann. Codes & St. § 4156, declaring that the right given to condemn the use of water shall not extend further than to the riparian rights of persons to the natural flow of water through lands on or abutting on streams or lakes as the same exists at common law, and is not intended to allow the taking of water from any person that is used by the person himself for irrigation or that is needed for that purpose, meant water necessary to irrigate the land of a littoral or riparian owner which he has under irrigation at the time his rights are sought to be condemned, or which he intends to and will place under irrigation within a reasonable time, and that, as to such water, no condemnation could be had. State ex rel. Liberty Lake Irr. Co. v. Superior Court for Spokane County, 91 Pac. 968, 969, 47 Wash. 310. ness, and hence, the market having advanced, defendants could not exercise the option that they might sell the malt at a profit. Hettiger v. Davenport Malt & Grain Co., 139 S. W. 1072, 1073, 145 Ky. 39. NEEDED REPAIRS If one county resolves upon such a course, and proceeds to replace three wooden spans with steel at three times the cost necessary to rebuild them as originally constructed, there being seven or eight times that many spans in the entire bridge, it cannot recover from the other county as for "needed repairs." Platte County v. Butler County, 135 N. W. 439, 440, 91 Neb. 132. NEEDFUL BUILDINGS buildings," for the erection of which, as well as of "forts, magazines, arsenals, dockyards," it is assumed that land will be bought, and for which land has been bought, by the government all over the United States, pursuant to Const. art. 1, § 8, cl. 17. Battle v. United States, 28 Sup. Ct. 422, 423, 209 U. S. 36, 52 L. Ed. 670. Post offices are among the other "needful NEEDS See Buyer's Needs. NEEDLE See Hand Sewing Needle. NEEDLE CASES Not dutiable as articles composed in part of steel, see Articles within Tariff Act. NEGATIVE EASEMENT 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 body of the contract stated in one place that the coal should be delivered promptly "as ordered," and in another, that on failure to make delivery "as ordered," the city might either forfeit the contract or buy coal at the contractor's expense in the open market. Held, that the words "order" and "direct" should be construed as synonymous with the word "require," and that the word "require" was used as the substantial equivalent of "need." McLean County Coal Co. v. City of Bloomington, 84 N. E. 624, 627, 234 Ill. 90. A "negative easement" is a right in the owner of the dominant tenement to restrict the owner of the servient tenement in respect of the tenement in the exercise of general and natural rights of property, such as rights of light and air. Bernero v. McFarland Real Estate Co., 114 S. W. 531, 534, 134 Mo. App. 290. Such an ease The right of an owner of a dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property, is sometimes called a "negative easement." ment was created where the owner of a building conveyed three inches of land to an adjoining owner, with the right to use his party wall, in consideration of a covenant by the grantee, stipulated to run with the land, that she would not during a speci Defendants, who were operators of a brewery, contracted for 6,000 bushels of malt to be delivered "as needed," and at the end of the contract plaintiff granted defendants an option to receive 2,000 bushels more at the same rate "in case same is needed." Held, that the word "needed" was not used in the sense 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. NEGATIVE KNOWLEDGE Testimony that a fact did not occur, founded on a witness' failure to hear or see a fact which he could supposedly have heard or seen if it had occurred, is based on what is called "negative knowledge." Cotton v. Willmar & Sioux Falls Ry. Co., 109 N. W. 835, 837, 99 Minn. 366, 8 L. R. A. (N. S.) 643, 116 Am. St. Rep. 422, 9 Ann. Cas. 935 (citing 1 Wigmore, Ev. § 664; 2 Elliott, Ev. § 969; 6 Thomp. Neg. § 7865; 5 Current Law, 1369). "Negative knowledge" is the testimony that a fact did not occur, founded on the witness' failure to hear and see a fact which he would supposedly have heard or seen if it had occurred, and the only requirement is that the witness should have been so situated that, in the ordinary course of events, he would have heard or seen the fact, had it occurred. Hoffard v. Illinois Cent. Ry. Co., 110 N. W. 446, 449, 138 Iowa, 543, 16 L. R. A. (N. S.) 797 (quoting and adopting definition in Wigmore, Ev. § 664). NEGATIVE PREGNANT A "negative pregnant" is such form of a negative expression as may carry with it an affirmative. Lemke v. Lemke, 111 N. W. 138, 139, 78 Neb. 525. A "negative pregnant" in a pleading is a negative implying also an affirmative, and is such a form of negative expression as may carry with it an affirmative. Nobach V. Scott, 119 Pac. 295, 297, 20 Idaho, 558. A "negative pregnant" is a denial pregnant with an admission of a substantial fact which is apparently controverted, or one which, though in form of a traverse, really admits the important fact contained in the allegation. Electrical Accessories Co. V. Mittenthal, 87 N. E. 684, 685, 194 N. Y. 473. Under the system of code pleading, a general denial is as broad as the allegations denied, and a general denial of an allegation of value or damages cannot be treated as a "negative pregnant," and an admission of any value or damages less than the sum alleged. McGrath v. Valentine, 167 Fed. 473, 476, 93 C. C. A. 109. in form a "negative pregnant." J. I. Porter Lumber Co. v. Hill, 77 S. W. 905, 906, 72 Ark. 62. A finding by a jury that a sheriff had not neglected and failed to present and have approved his official bond as sheriff, and take the oath of office, within the time prescribed by law, amounts to a "negative pregnant," and should be treated as an admission of the implied fact. State ex rel. Russell v. Box, 78 S. W. 982, 984, 34 Tex. Civ. App. 435. Under Municipal Court Act (Laws 1902, p. 1538) § 150, providing that the answer must contain a denial of each material allegation of the complaint controverted, a complaint alleging that in the month of April, 1904, plaintiff did work, etc., for defendants, is not sufficiently denied by an answer denying that in the month of April, 1904, plaintiff did work, etc., for defendants, but failing to deny that he did so at any other time; it constituting a "negative pregnant." Levin & Meyer Contracting Co. v. Jackson, 92 N. Y. Supp. 307, 308, 46 Misc. Rep. 445. NEGATIVE TESTIMONY Where one of two witnesses, having equal facilities for seeing or hearing a thing, swears that it occurred, and the other that it did not, the testimony of neither is negative, within the rule that the existence of a fact testified to by a positive witness is rather to be believed than that of one who swears that it did not occur. Civ. Code 1895, § 5165. Hunter v. State, 62 S. E. 466, 4 Ga. App. 761. that defendant drew his pistol and had it in ant's witnesses testified that they did not see his hand during the difficulty, and defendhim have any pistol, it was error to charge that if some witnesses were present and had opportunity to know the facts, and there was another class of witnesses who testified that they did not know, the law requires the jury to believe the positive testimony, and that "positive testimony" is that of witnesses who know the facts, and "negative testimony" is that where the witness "doesn't know the facts, or didn't see it." Daniel v. State, 62 S. E. 539, 4 Ga. App. 843. Where the witnesses of the state testified On an issue whether a gong of defendant's street car, by which plaintiff was struck, was sounded as the car approached a crossing, a police officer on the car, who saw the motorman set the brake when the A denial that the defendants are indebted to plaintiff in the precise sum charged in the petition, and that the use and occupation of the premises is worth the sum mentioned in the petition, is a “negative pregnant," and 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 allegations of the petition are treated as admitted. Jackson v. Green, 74 Pac. 502, 503, 13 Okl. 314. Where a plaintiff alleges that he is and has been for the last 10 years the owner and in possession of land, an answer denying that plaintiff is and has been for the last 10 years the owner and in possession of the land, is sounded, because as soon as the accident happened he remembered the fact, and knew that the question of warning by bell or gong was an important one; that he supposed the injury was caused by car going in the opposite direction, because no gong was sounded on the one he was on; that his hearing was good, and his attention was not diverted. Plaintiff testified that he was listening for a car coming in the opposite direction from the one from which he had alighted just prior to his injury, because he knew one might be coming at any time, and that he heard no gong or bell. Held, that such testimony was not negative in the sense that it was overborne, as a matter of law, by testimony of defendant's employés that the gong was sounded. Testimony is negative only when it tends to prove the nonexistence of a fact by reason of a mere failure of a witness to observe and remember its existence, but, if the evidence asserts such an observation as to the existence of the fact and the recollection of what that observation was, denial of its existence based thereon is affirmative evidence that the fact does not exist. Coel v. Green Bay Traction Co., 133 N. W. 23, 25, 147 Wis. 229. In a prosecution for homicide, the court properly defined and distinguished positive and negative testimony: "The testimony of those witnesses who swore positively that they saw the pistol in the hand of the prisoner, and that he fired the fatal shot while the pistol was in his hand, is what the law terms 'positive testimony.' They, swear positively that they saw the existence of a fact. The testimony of the witnesses who said that they saw the prisoner and the deceased in a struggle at the time when the last shot was fired, but they did not see the pistol, and did not know in whose hand the pistol was, is what the law terms 'negative testimony.' The reason the law gives greater weight to positive testimony than to negative testimony is because the witnesses who swore to positive testimony swore to what is a fact, an existing fact, or else they deliberately swore to a falsehood, while those who swore to negative testimony may be telling the truth, and yet the fact may exist which they did not see. If one witness swears that he saw Sheriff Markham in the courthouse in Durham on a certain date, the sheriff was there, or else the witness told a lie. Another witness might say: 'I was in the courthouse on that occasion, but I did not see Sheriff Markham in there.' That witness may be telling the truth and may be conscientious, and yet it may be a fact, notwithstanding, that Sheriff Markham was in the courthouse. And for that reason the law says you must attach greater weight to positive testimony than to negative testimony." State v. Murray, 51 S. E. 775, 139 N. C. 540. NEGLECT See Culpable Neglect; Excusable Neglect; Failed and Neglected; Inadvertence, Surprise, and Excusable Neglect; Omissions, Neglects, and Defaults; Ordinary Neglect; Wanton Neglect; Willful Neglect. Gross neglect, see Gross Negligence. "The word 'neglect,' as sometimes used, imports an absence of care or attention in the doing or omission of a given act, or it may be used in the sense of an omission or failure to perform some act. To neglect is not always synonymous with to omit. Whether the use of the term is intended to express carelessness or lack of attention required by the circumstances, or to express merely a failure to do a given thing, depends upon the connection in which the term is used and on the meaning intended to be expressed. * ** In Webster's Dictionary the verb 'neglect' is defined as meaning 'not to attend to with due care or attention; to forbear one's duty in regard to; to suffer to pass unimproved, unheeded, undone.' In the Standard Dictionary the word is defined as meaning 'to fail to perform through carelessness'; and in the Century Dictionary: (1) To treat carelessly or heedlessly; forbear to attend to or treat with respect; be remiss in attention or duty toward. (2) To overlook or omit; disregard. (3) To omit to do or perform; let slip; leave undone; fail through heedlessness to do or in doing (something).' As defined in the penal statutes of several of the states, the word 'neglect' is said to import 'a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in action in his own concerns.'' Hackfeld & Co. v. United States, 25 Sup. Ct. 456, 458, 197 U. S. 442, 49 L. Ed. 826 (quoting 5 Words and Phrases, p. 4740). H. The absence of "ordinary diligence," defined by Civ. Code 1895, § 2898, as that care which every prudent man takes of his own property of a similar nature, is termed "neglect." Objection has sometimes been made to the qualifying words "slight," "ordinary," and "gross," as applicable to negligence, and the courts of some jurisdictions have preferred to use the term "ordinary neglect," or "negligence," as applicable to a want of due care under the circumstances, maintaining that at last "ordinary diligence" in the light of the circumstances is all that is required. Southern Railway Co. v. Davis, 65 S. E. 131, 132, 132 Ga. 812. The word "neglect," as used in Rev. St. Idaho, § 4100, providing that, when a person's death is caused by the wrongful act or neglect of another, his heirs and personal representatives may maintain an action for damages against the person causing the death, stands in the same category with wrongful act, and implies some omission of duty. The death of a free passenger on a railway train, not due to the omission on the part of the railway company of any duty owing to deceased, cannot be considered as caused by the neglect of the railroad company, and hence the heirs or personal representatives of the deceased cannot maintain an action under the section. Northern P. R. Co. v. Adams, 24 Sup. Ct. 408, 409, 192 U. S. 440, [ and mean something more than an unavoid48 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 statements in the findings by the jury that work was done carefully. Avery v. Nordyke & Marmon Co., 70 N. E. 888, 893, 34 Ind. App. 541. The "neglect" mentioned in the statute defining the liability of a city for injuries to pedestrians on defective sidewalks means the want of ordinary care, and the city must, to escape liability, use ordinary care to keep defects out of its streets. Berry v. City of Greenville, 65 S. E. 1030, 1031, 84 S. C. 122, 19 Ann. Cas. 978. An instruction in an action against a town for injuries to a traveler, caused by a defective bridge, that it was the duty of the town to keep the bridge reasonably safe for the amount and kind of travel that might be expected to pass over it, and that, if the town was chargeable with any fault in respect of such duty, the liability attached, and the town was liable for accidents caused by reason of defects existing through the fault of the town, "and this without notice to it or regardless of the question of 'neglect,'' etc., was not erroneous because of the use of the quoted phrase; the word "neglect" therein being used in its ordinary legal sense, and it being apparent that the part of the charge quoted was intended to mean that the liability of the town was not to be made to depend on the question whether or not it had exercised ordinary care in the maintenance of the bridge. Graves v. Town of Waitsfield, 69 Atl. 137, 140, 81 Vt. 84. Since in this state the liability of a municipal corporation for injuries caused by defects in street and sidewalks is absolute, an instruction that this was a latent defect, for which the defendant was responsible by reason of its neglect in not repairing the sidewalk, the word "neglect" could not have been used in its ordinary legal sense, and must be deemed to have been used to signify mere failure to repair, although it did not appear that the corporation had had any knowledge of the defect. Campbell v. City of Elkins, 52 S. E. 220, 222, 58 W. Va. 308, 2 L. R. A. (N. S.) 159. R. L. 1905, § 3696, in limiting the time within which the priorities of right of administration thereby conferred must be asserted, uses the word "neglect" synonymously with "fail." In re Lis' Estate (Minn.) 139 N. W. 300, 307. The purpose of Rem. & Bal. Code, § 8631, providing that if any railroad company shall "refuse or neglect" to obey any order of the Railroad Commission, the company shall be subject to a penalty, is to impose a penalty for neglect or refusal, and where a company fails to perform an act required by an order within the time specified therein, it is immaterial whether the failure resulted from willful refusal or neglect, or from mere mismanagement; the word "neglect" meaning omission, or forbearance to do a thing that can be done, or that is required to be done, and it does not generally imply carelessness or imprudence, but simply an omission to perform. State ex rel. Railroad Commission of Washington v. Great Northern Ry. Co., 123 Pac. 8, 12, 68 Wash. 257. As used in Gen. St. 1902, § 2499, authorizing an action by a wife against her husband for support when he neglects to support her, "neglect" means more than a mere omission or failure without fault. It imports omission accompanied by some kind of culpability in the conduct of the husband; the design of the statute being to compel the unwilling, and not to constrain those who have acted fairly and reasonably in the performance of the duty. Lathrop v. Lathrop, 63 Atl. 514, 515, 78 Conn, 650. "Neglect," within Rev. St. 1899, § 2228, declaring that every able-bodied married man who shall "neglect" or "refuse" to support his family shall be deemed a "vagrant," arises from an inattentive state of mind, want of care for, and utter disregard of the obligation resting on the husband to support his family, whereas the word "refuse" imports a willful disavowal or disregard of such obligation; and hence where a physician of good habits endeavored to establish a praetice, maintained an office where he waited for patients, and attended to such calls as he had, contributing his entire income from his practice to the support of his wife and himself, he was not a "vagrant," so as to entitle his wife to a divorce under section 2921, declaring that when the husband shall be guilty of such conduct as to constitute him a "vagrant," within the meaning of the law respecting "vagrants," the wife may be divorced, though he did not succeed in earning enough to support both of them, and she was compelled to contribute to their support from her separate means. Gallemore v. Gallemore, 91 S. W. 406, 410, 115 Mo. App. 179. Of official duty The words "fail," "refuse," and "neglect," 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 commis. a misdemeanor, are used interchangeably, sioners' court for allowance, and such court 1 shall have neglected or refused to audit the same, "neglect" is sufficiently shown by evidence that the court has been given a reasonable time within which to act, and has failed to allow the claim. Williams v. Bowie County (Tex.) 123 S. W. 199, 200. Under a statute providing that, if any commissioner or other county officer shall "neglect" to perform any act which it is his duty to perform, he shall forfeit his office and be removed, the duty must be personal, and the act must be one which the officer has the legal capacity and authority to perform, or he cannot be guilty of neglect. The purpose of the statute is to prevent persons from continuing to hold office whose inattention to duty endangers the public welfare, and the "neglect" contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of public interests is threatened. Irregularities in the publication of statements of sums of money allowed and in advertisements for bids for bridge repair work, failure to publish estimates of expenditures upon which tax levies were made, and failure to advertise for bids for the re pair of a bridge do not constitute legal causes for the removal of a county commissioner from office on the ground of neglect of duty. State v. Kennedy, 108 Pac. 837, 841, 82 Kan. 373. A sheriff, who, notwithstanding public feeling against a negro charged with murder, failed to order the jail doors closed, or to take any precaution to prevent a lynching, being under Code 1907, §§ 132, 7191, the legal custodian of the jail chargeable with the duty of excluding intruders, was subject to impeachment under Const. 1901, § 138, providing that, when any prisoner is taken from jail and killed owing to the neglect of the sheriff, the sheriff may be impeached, for "neglect," as applied to a public officer, means a failure on his part to perform some of the duties of his office. State ex rel. Garber v. Cazalas, 50 South. 296, 162 Ala. 210, 19 Ann. Cas. 886 (quoting 5 Words and Phrases, p. 4740). Omission distinguished * * Code Civ. Proc. § 1511, provides that, "if an executor * * neglects for two months after his appointment to give notice to creditors as prescribed, * the court must revoke his letters" and appoint another executor. Pen. Code, § 7, subd. 2, provides that the term "neglect" imports a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily uses in acting in his own concerns. Held that, construing section 1511 in view of the policy of the law to effectuate testator's expressed will as far as possible, it gave the court a wide discretion in removing executors thereunder, and an executor should not be removed if the failure to publish the notice within the required time is satisfactorily excused; the terms "to neglect" and "to omit" not being synonymous, since to neglect is to omit by carelessness or design, while an omission may be involuntary and inevitable. In re Chadbourne's Estate, 114 Pac. 1012, 1013, 15 Cal. App. 363. As surprise See Surprise. NEGLECT AND REFUSAL See, also, Refuse-Refusal. Plaintiff contracted to procure consignsilk mills, and defendant argeed to pay comment to defendant of some of the product of missions on the sale of the product consigned. The contract was to continue for a year, and thereafter from year to year until terminated by notice, and it provided that on "neglect and refusal" of plaintiff to perform his agreement, and at the expiration of the agreement, defendant might sell the goods on ed to consign any product to defendant so hand. The company owning the mills refusand defendant was so notified. long as plaintiff was retained as sales agent, Held, that plaintiff, on being unable to continue to consign goods, was guilty of a breach of contract, the inability to continue not being "neglect and refusal," and defendant was justified in canceling the contract for the future, and might enter into a contract with the company for the consignment of future goods. Napier v. Spielmann, 111 N. Y. Supp. 1009, 1016, 127 App. Div. 711. NEGLECT TO TAKE OATH Under Const. art. 1, § 7, which provides that an officer who refuses or neglects to take the oath or affirmation of office shall be deemed to have refused the office, and a new selection shall be made, and under Code 1912, art. 20, § 1, which requires constables to so qualify within 30 days after their appointment, neglect of a constable to take the oath, etc., within that time, deprives him of the office; the term "neglect to take the oath," as used in the Constitution, meaning neglect of an appointee to take the oath within the time required by law. Little v. Schul, 84 Atl. 649, 653, 118 Md. 454. NEGLECTED CHILD The words "neglected children," as used in Act No. 82, p. 134, of 1906, entitled "An act defining the power of the district courts of this state and the city courts, with reference to the care, treatment, and control of dependent, neglected, incorrigible, and delinquent children, under the age of 16 years," mean any children who are destitute, homeless, abandoned, or depending on the public for support, or who have not proper care or guardianship. In re Parker, 43 South. 54, 55, 118 La. 471. Laws 1907, c. 41, § 1 (Burns' Ann. St. 1908, § 1642), defines a "dependent child" as one under the age stated who is dependent |