this act is constitutional, and complies with the requirements of the constitution as to subject and title. Rushville G. Co. v. Rushville, 388.

9. MUNICIPAL CORPORATION HAS POWER to issue bonds in payment for properrty which it has authority to purchase, unless there is some statutory or constitutional prohibition. Id.

10. WATER RATES, Power of Courts to InteRFERE WITH ACTION OF SUPERVISORS IN FIXING. - The use of water for sale is a public use, and the price at which it shall be sold is a matter within the power of the board of supervisors to determine; and the constitution of California does not, in terms, confer upon the courts of the state any power or jurisdiction to control, supervise, or set aside any action of the board in respect to such rates. If the board has fairly investigated and exercised its discretion in fixing the rates, the courts have no right to interfere on the sole ground that, in the judgment of the court, the rates fixed are not reasonable; to justify interference by the courts, there must be actual fraud in fixing the rates. or they must be so palpably and grossly unreasonable and unjust as to amount to the same thing. But the power to regulate water rates conferred by the constitution upon boards of supervisors is not a power to confiscate nor to take the property of a water company without just compensation; and whether such power be judicial, legislative, or administrative, it is not above the control of the courts, if it is arbitrarily exercised without a fair investigation, and the rates are so fixed as to render it impossible to furnish the water without loss, so that their action would amount to a palpable fraud, and almost certainly work injustice. Spring Valley Water Works v. San Francisco, 116.

11. REASONABLE AND JUST WATER RATES, WHAT ARE, WITHIN Meaning of CONSTITUTION. When the constitution provides for the fixing of rates or compensation for the use of water, it means reasonable rates and just compensation; and for a board of supervisors to fix rates not reasonable, or compensation not just, is a plain violation of its duty. It has no right to fix rates arbitrarily and without investigation, or without exercising its judgment or discretion to determine what is a fair and reasonable compensation. Id.

12. POWER OF COURTS OVER PROCEEDINGS OF MUNICIPAL CORPORATIONS.A subordinate municipal body, although clothed to some extent with legislative and even political powers, is nevertheless, in the exercise of all its powers, just as subject to the authority and control of courts of justice as any other body or person, natural or artificial. Id.

13. MAYOR Need not be Made PARTY TO ACTION brought by a water company against a city and county and its board of supervisors to obtain a judgment setting aside and declaring void an ordinance of said board, and compelling it to pass a new ordinance, as required by the constitution. Id.

14. NOTICE OF INTENTION TO FIX WATER RATES NEED NOT BE GIVEN TO WATER COMPANY. -The constitution does not require a board of supervisors to give notice to a water company of its intention to fix water rates; but it is, nevertheless, its plain duty to use all proper means to obtain the information necessary to enable it to act intelligently and fairly in fixing the rates; and a failure to perform this duty may defeat its action. Id.

15. WATER-METERS, ORDINANCE FIXING RATES MAY REQUIRE. — An ordinance of a board of supervisors fixing water rates may require the water company to furnish a water-meter to each householder at his option, and

to collect only for the water furnished at meter rates, which are different from the house rates. A regulation requiring the party furnishing water to furnish the means necessary for its measurement, so that the quantity furnished and to be paid for may be known, is not unreasonable. The expense of furnishing such meters cannot be imposed upon the consumer. Id.

16. DAMAGES ABUTTING LOT-OWNER. In order to justify a recovery for damages by an abutting city lot-owner against a railroad company authorized to construct and operate its road along a street, there must be such a practical obstruction of the street in front of the lots that the owner is denied ingress to and egress from them. Kansas etc. R'y Co. v. Cuykendall, 479.

17. THE INDIANA ACT OF MARCH, 1883, CREATING A BOARD OF METROPOLITAN POLICE in all cities having a population of twenty-nine thousand or more inhabitants, is constitutional and capable of being enforced, except in so far as it makes a residence of three years in the city in which he is appointed next preceding his appointment a condition of a police commissioner's eligibility, and in so far as it provides for the appointment of officers equally from the two leading political parties. State v. Blend, 411.

See EMINENT DOMAIN.

MURDER.

See CRIMINAL LAW, 21-23.

NEGLIGENCE.

1. WHEN AN ACCIDENT HAS OCCURRED, and an action is on trial to recover damages for injuries sustained thereby, and the accident is alleged to have been the result of negligence, proof of any facts and circumstances attending the accident is competent and proper. Illinois Central R. R. Co. v. Slater, 242.

2. EVIDENCE OF THE SPEED OF A RAILWAY TRAIN IS COMPETENT AND MATERIAL in an action to recover damages for injuries to one run over by such train from the alleged negligence of the person in charge thereof. Id.

3. RAILROADS. - It is negligence in a railway company to leave holes between the cross-ties on its track, after being warned of the danger, and a car-coupler in its employ, who is injured while the track is in such condition, without negligence on his part, may recover, and if the evidence as to his contributory negligence in the matter is conflicting, the question of negligence should be submitted to the jury. Missouri P. R'y Co. v. Jones, 897.

4. WHERE THE Concurrent Negligence of two or more persons results in the injury of a third person, each is answerable therefor. Hence one who, without any negligence on his part, is pushed or jostled off of a sidewalk which is more than six feet above the ground, and is not protected by any railing or guard, may recover from the village whose duty it was to have kept such sidewalk properly guarded. Village of Carterville v. Cook, 248.

5. NEGLIGENCE OF PARENT NOT IMPUTABLE TO MINOR CHILD. An administrator may recover for fatal injuries to his intestate, an irrespon sible child incapable of cominitting negligence, when such injuries are

caused by the wrongful and negligent acts of the child's parents, or of others having him in charge, even though the negligent parents will inherit the amount recovered. Wymore v. Mahaska County, 449.

6. THE CARE EXERCISED BY A CHILD SHOULD be Measured by the degree of capacity he is found to possess. Hence it is proper to instruct a jury "that the rule of law as to negligence in children is, that they are required to exercise only that degree of care and caution which persons of like capacity and experience might be reasonably expected to naturally or ordinarily use in the same situation and under like circumstances, provided that the person or persons having control of such children have not been guilty of want of ordinary care in allowing them to be placed in such situations." Illinois C. R. R. Co. v. Slater, 243. 7. CONTRIBUTORY NEGLIGENCE DANGEROUS POSITION VOLUNTARILY AsSUMED. Where a shipper is accompanying his stock on a freight train, and, being ordered or directed by the conductor to "get on top of the cars and signal," voluntarily assumes such position, knowing it to be peculiarly dangerous and perilous, and that it is not necessary for him to be there to care for his stock, or as a passenger, he is guilty of such contributory negligence that he cannot recover for injuries received in falling or being thrown from the train while in such position, in the absence of gross negligence or malice on the part of the employees in charge of the train. Atchison etc. R. R. Co. v. Lindley, 515.

8. CONTRIBUTORY NEGLIGENCE-CHARGE RELATING TO, WHEN NEED NOT BE REPEATED. - In a case involving contributory negligence, where the charge on that question as given is clear and unambiguous, it is unnecessary to repeat it when stating the elements which plaintiff must prove to make out his case; and if counsel are apprehensive that the jury has lost sight of the charge as to contributory negligence, the attention of the court should be called to it before the case is finally submitted. Knowles v. Mulder, 627.

9. COMPLAINT CHARGING NEGLIGENCE against a bicycle-rider must state the particular acts constituting the negligence in the riding of the bicycle, that defendant may know with what particular acts of negligence he is charged. Holland v. Bartch, 307.

10. PLEADING. - Where the pleadings show that plaintiff's injury was the proximate result of defendant's negligence, this is sufficient without direct averment to that effect. Wabash County v. Pearson, 325.

11. WHERE NEGLIGENCE AGAINST COUNTY IN CONSTRUCTING BRIDGE causing an injury is alleged, it is unnecessary to state that the county had notice of its unsafe condition at the time of the injury. Id.

See ANIMALS, 1-3; CARRIERS, 1-4, 11-19; COUNTIES, 1-5; DAMAGES, 5; ELEVATORS, 1; HIGHWAYS, 2; LIMITATIONS OF ACTIONS; MASTER AND SERVANT, 8-18; Pledge, 5, 7, 8; TELEGRAPH COMPANIES.

NEGOTIABLE INSTRUMENTS.

1. DELIVERY, ACTUAL OR CONSTRUCTIVE, of a note is as essential to its validity as the signature of the maker. Purviance v. Jones, 319.

2. DELIVERY- WHAT SUFFICIENT. While actual or manual delivery in not indispensable to the validity of a note, still it must appear that the maker, in some way, evinced an intention to make it an enforceable obligation against himself, according to its terms, by surrendering control over it, and intentionally placing it under the control of the payee, or of some third person for his use. Id.

3. DELIVERY, WHEN INSUFFICIENT. - Where there is nothing to indicate that

the maker ever surrendered control of his note, or that it was ever within the power or control of the payee, or of any person for his use or benefit, there is no delivery, and the note is a nullity. Id.

4. COMPELLING DELIVERY - STATUTE OF LIMITATIONS. - Party who has advanced money on the faith that a note has been delivered to a third person for his benefit may compel the delivery to be perfected, or if he has been induced to abstain from enforcing his claim until it is barred by the statute of limitations on the faith of such assurance, he may compel the delivery of the note, or require it to be treated, in an equitable suit, as having been delivered as represented after the death of the maker, with the note still in his possession. Id.

5. A PROMISSORY NOTE containing a condition stating that the consideration therein is "part payment of rent of certain pasture fields," and that the note shall not be paid unless the maker has the use of the premises, is neither negotiable at common law nor under the Colorado statute. Jennings v. First National Bank, 210.

6. PROOF BY ASSIGNEE OF NON-NEGOTIABLE NOTE NECESSARY TO ENABLE HIM TO RECOVER. The assignee of a non-negotiable note payable on a contingency to recover thereon must prove his ownership of the note, that it is supported by a consideration, and that the contingency has happened. Id.

7. PROMISSORY NOTE - EVIDENCE TO SHOW CAPACITY IN WHICH PRRSONS SIGN. A promissory note in the ordinary form, reading, "we promise to pay," and signed, "Belle Plaine Canning Co., A. J. Hartman, President, H. Wessel, Secretary," in the absence of a clause showing the capacity in which the parties signed, binds all the persons signing, including the corporation, and extrinsic evidence is inadmissible to show the intention of the parties who signed the note. McCandless v. Belle Plaine C. Co., 429.

8. NEGOTIABILITY DOES NOT CEASE WHEN PAPER MATURES. It is only subject to such equities as exist against the paper at the date when negotiated, and the equities which affect the indorsee are only such as attach directly to the note itself, and do not include collateral matters. penter v. Greenop, 662.

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9. PARTNERSHIP NOTE - RIGHTS OF HOLDER. A holder by indorsement of a partnership note given to a partner for money loaned by him to the firm, and purchased after maturity in good faith while the firm was still in business, may maintain an action thereon against the firm before its dissolution and final accounting, when the partner taking the note was not indebted to the firm at the time the note was indorsed, and no equities existed against him at that time which did not exist when the note was executed. Id.

10. WHEN NEGOTIABLE PAPER HAS BEEN OBTAINED FROM ITS MAKER BY FRAUD OR DURESS, a subsequent indorsee, to entitle himself to recover upon it, must show that he was a bona fide purchaser. Vosburgh v. Diefendorf, 836.

11. PURCHASER BONA FIDE, WHO IS.

Plaintiff does not establish that he is

a bona fide purchaser of negotiable paper merely by proving that he paid value therefor before its maturity. He must go further, and show that he had no notice of the fraud with which the instrument was tainted from its origin. Id.

12. PURCHASER BONA FIDE, PRESUMPTION CONCERNING. -A plaintiff suing upon a negotiable note or bill is presumed, in the first instance, to be a bona fide holder, but when the maker has shown that the note was obtained by fraud, the plaintiff may then be required to show under what circumstances and for what value he became the holder. Id.

13. BURDEN OF PROOF IS UPON THE INDORSEE OF A NEGOTIABLE NOTE WHICH IS SHOWN TO HAVE BEEN OBTAINED FROM THE MAKER BY FRAUD, to establish that he took it for value in good faith before maturity. Id. 14. BONA FIDE HOLDER OF A NEGOTIAELE NOTE MAY TRANSFER GOOD TITLE thereto to one who has notice of the fraudulent character of the paper. Id.

15. BILL OF EXCHANGE, WHAT IS. A written order on a bank or banker to pay a sum of money at a day subsequent to its date and to the date of its issue is not a check, but is a bill of exchange, and entitled to grace. Harrison v. Nicollet Nat. Bank, 718.

16. CHECK, WHAT ESSENTIAL TO CONSTITUTE. — It is requisite to a check that it be drawn on a bank or banker, and that it be payable on demand. Id. 17. PURCHASER OF CERTIFIED NEGOTIABLE DRAFT OR CHECK WHO OBTAINS TITLE WITHOUT THE INDORSEMENT OF THE PAYEE holds it subject to all equities and defenses existing between the original parties, though he has paid full consideration therefor, without notice of the existence of such defenses or equities. Goshen Nat. Bank v. Bingham, 765. 18. TRANSFER OF CERTIFIED NEGOTIABLE CHECK, PAYABLE TO THE ORDER OF THE PAYEE, BUT WITHOUT THE LATTER'S INDORSEMENT, vests title thereto in the transferee, subject to all equities and defenses existing in favor of the maker or acceptor against the previous holder, though the payee intended to indorse the check at the time he transferred it. Id. 19. RELATION OF INDORSEMENT. - The indorsement of a negotiable draft or check, made after its transfer, in good faith and for full consideration, does not relate back to such transfer so as to give the transferee a title paramount to equities and defenses of which he had notice before such indorsement, but after such transfer to him. Id.

20. ESTOPPEL. - CERTIFIED NEGOTIABLE CHECK OR DRAFT, TRANSFERRED WITHOUT INDORSEMENT to an innocent holder for full consideration, does not estop the bank certifying it from resisting payment on the ground that it had been obtained by fraud and misrepresentation. Id.

21. BANK INDUCED TO CERTIFY NEGOTIABLE CHECK BY THE FRAUD OR MISREPRESENTATION OF THE PAYEE, who transfers it to a third person without indorsement, cannot maintain an action against the latter for the possession of such check; neither can he, if he had notice of the fraud before the indorsement, though after such transfer, maintain an action against the bank thereon. Id.

22. THE INDORSEMENT OF A CHECK BY ONE APPARENTLY IN HIS PERSONAL CAPACITY CANNOT BE SHOWN to have been the indorsement of his principal, when the latter has not in any way adopted the act. Nat. City Bank v. Wescott, 771.

23. When a CHECK HAS BEEN Indorsed for COLLECTION, THE RIGHT OF THE INDORSEE IS LIMITED to presenting the check and receiving payment thereof; and if he presents it for payment by an agent, the latter has no authority to represent the indorsee in the transaction beyond what is requisite to the performance of the duties of a collection agent; and if he should indorse such check, the indorsement will not enable the bank paying it to recover the amount paid, if it should subsequently be dis