VII. ASSIGNMENT OF THE ORDER.-An order for the payment of money out of a particular fund being an equitable assignment of the fund, or so much thereof as it calls for, is itself assignable in equity; and in some of the States it is provided by statute that non-negotiable instruments may be assigned, and that the assignor may sue upon them in his own name.1 But the endorsement of an order by the payee will not render it negotiable.2 1. Endorsee's Rights-Defenses Which May be Made Against Him. -The endorsee at common law could not sue the drawer of a non-negotiable bill in his own name, nor did the endorsement render the drawer liable to the endorsee.3 The endorsee might always, however, sue in equity in his own name, and might sue at common law in the name of the payee. An order or non-negotiable bill is subject, in the hands of an endorsee for value, to all equities between the payee and the drawer of such order or bill; that is to say, that the order in his hands is subject to all defenses originally existing against the payee, or arising before notice of transfer.5 But an endorsce conditional; and the acceptor's liability thereon is dependent on the contingency that, according to the terms of the contract, anything would be due the drawer thereon. Gerow v. Riffe, 29 W. Va. 462. 1. Halsey v. Dehart, 1 N. J. L. 93; Maxwell v. Goodrum, 10 B. Mon. (Ky.) 286; Goodman v. Fleming, 57 Ga. 350; Cohen v. Prater, 56 Ga. 203. See also ASSIGNMENTS, vol. 1, p. 826; PARTIES TO ACTIONS. art. 267, 268, of the Rev. Stats. of Texas provides that in order to hold the assignor of a non-negotiable instrument liable as surety for its payment, the assignee shall use due diligence to collect the same; and that parol testimony shall be inadmissible to prove that the assignor, drawer or endorser of such instrument has released the holder from his obligation to use due diligence to collect it. The court in Kampmann v. Williams, 70 Tex. 568 says: "The diligence required under this statute is the same as that required in negotiable instruments under the law-merchant. It was held, in that case, that the holder of an order, not having brought suit until the third term of the court after the cause of action had accrued, and no excuse for the delay being alleged in the original petitions, could not maintain his action upon the order. See also Thompson v. Payne, 21 Tex. 625. 2. Rand Com. Paper, § 177; Gregg v. Johnson, 37 Tex. 558. 3. Randolph on Com. Paper, § 656; Hill v. Lewis, 1 Salk. 132; Noland v. Ringgold, 3 Harr. & J. (Md.) 216; 5 Am. Dec. 435; Fernon v. Farmer, I Harr. (Del.) 32; Pratt v. Thomas, 2 Hill (S. Car.) 654; Maule v. Crawford, 14 Hun (N. Y.) 193; Backus v. Danforth, 10 Conn. 297; Warren v. Scott, 32 Iowa 22; Hackney v. Jones, 3 Humph. (Tenn.) 612; Reed v. Murphy, 1 Ga. 236; Hosford v. Stone, 6 Neb. 380; Johnston v. Speer, 92 Pa. St. 227; 37 Am. Rep. 675; Sanborn v. Little, 3 N. H. 539; Wiggin v. Damrell, 4 N. H. 69; Conine v. Junction etc. R. Co., 3 Houst. (Del.) 288; S9 Am. Dec. 230; Pratt v. Thomas, 2 Hill (S. Car.) 654; Costelo v. Crowell, 127 Mass. 293; 34 Am. Dec. 367. See also Sutton v. Owen, 65 N. Car. 123; Douglass v. Wilkeson, 6 Wend. (N. Y.) 637; Gerard v. Le Coste, 1 Dall. (U. S.) 194; I Am. Dec. 226; Raymond v. Middleton, 29 Pa. St. 529. 4. Story on Promissory Notes, § 128; Randolph on Commercial Paper, § 656; Matlack v. Hendrickson, 13 N. J. Eq. 263; Truscott v. Hull, 17 Johns. (N. Y.) 284. 5. Randolph on Commercial Paper, 657; Dyer v. Homer, 22 Pick. (Mass.) 253; Sanborn v. Little, 3 N. H. 539; Summers v. Hutchson, 48 Ind. 228; Herod v. Snyder, 48 Ind. 480; Haskell v. Brown, 65 Ill. 29; Havens v. Potts, 86 N. Car. 31; Cohen v. Prater, 56 Ga. 203; Reddish v. Ritchie, 17 Fla. always has recourse to his immediate endorser upon default of the drawer. The endorsee may sue the endorser in his own name. The endorser is not liable as endorser but as assignor, unless he has made his note "with recourse," or in some other way indicated his intention to bind himself as endorser.3 The endorser's liability is absolute, and is not conditioned upon demand and protest as is the case with negotiable instruments. The endorsee must use due diligence to collect from the drawer.5 VIII. POSSESSION OF THE ORDER BY THE DRAWEE.-Possession of an order for the payment of money or delivery of personal property by the drawee, is prima facie evidence that he has paid the money or delivered the goods. IX. CONSTRUCTION-ADMISSION OF PAROL EVIDENCE.-It is the duty of the court to interpret an order, and to instruct the jury as to its legal effect. Parol evidence is admissible to explain any ambiguity in the order, often to explain those orders which are frequently given by a contractor upon the person for whom he has contracted to build.8 867; Miller v. Bomberger, 76 Pa. St. 78; White v. Heylman, 34 Pa. St. 142. Especially where the holder is merely in possession of the paper and offers no evidence showing himself the holder for value. Bircleback v. Wilkins, 22 Pa. St. 26; Guerry v. Perryman, 6 Ga. 119; Willis v. Twambly, 13 Mass. 204. 1. Randolph on Commercial Paper, 658; Byles 149; Chiddy 226; 1 Daniel, 591; 1 Edw. 350; Story on Promissory Notes, 128; Hill v. Lewis, 1 Salk. 132; Smallwood v. Vernon, I Stra. 478; Smith v. Kendall, 6 T. R. 123; Jones v. Fales, 4 Mass. 245; Sweetser v. French, 13 Met. (Mass.) 262; Aldis v. Johnson, i Vt. 136; Parker v. Riddle, 11 Ohio 102; Snyder v. Oatman, 16 Ind. 265; Smurr v. Forman, 1 Ohio 272; White v. Low, 7 Barb. (N. Y.) 204; Long v. Smyser, 3 Iowa 266. 2. Jones v. Fales, 4 Mass. 245; Leidy v. Tammany, 9 Watts (Pa.) 353. 3. Trevall v. Fitch, 5 Whart. (Pa.) 325; 34 Am. Dec. 558; Gray v. Donahue, 4 Watts (Pa.) 400; Kline v. Keiser, 87 Pa. St. 485; Campbell v. Farmers' Bank, 10 Bush (Ky.) 152; Story v. Lamb, 52 Mich. 525. 4. Plimley v. Westley, 2 Bing. N. C. 249; Peddicord V. Whittam, 9 Iowa 47; Seymour v. Van Slyck, 8 Wend. (N. Y.) 403; Cromwell v. Hewitt, 40 Ind. 491; Gilbert v. Seymour, 44 Ga. 63; Castle v. Candee, 16 Conn. 223. See, however, Aldis v. Johnson, i Vt. 136. 5. Plimley v. Westley, 2 Bing. N. C. 249. 6. Greenleaf on Ev., vol. 2, §§ 5-18 and 114. Possession of an order by the maker of a note, drawn upon him by the payee of the note, is prima facie evidence that he has paid the order according to its tenor. Lane v. Farmer, 13 Ark. 63. The possession of an order by him on whom it was drawn, is prima facie evidence that the articles therein specified were delivered according to request. Kincaid v. Kincaid, 8 Humph. (Tenn.) 17. A gave to B an order on C for certain hides, and B endorsed on the order a receipt for the hides. Held, in an action by C against A, that B's receipt, so endorsed, was prima facie evidence of the delivery of the hides pursuant to order. Rawson v. Adams, 17 Johns. (N. Y.) 130. Compare Price v. Justiobe, Harp. (S. Car.) 111. See also EVIDENCE, vol. 7, p. 42; SECONDARY EVIDENCE. 7. H. G. Olds Wagon Works v. Combs, 124 Ind. 62. 8. Where an order was drawn upon defendant in the following terms: "Pay to the order of A $500,charge the same to the account of B," and was accepted "to be paid out of the last pay. ment" it was held, the words "to be paid out of the last payment" are ambiguous without some extrinsic explanation and that parol evidence was ad X. ORDER FOR MERCHANDISE-PRESUMPTION OF CREDIT.-If a party on whom an order for merchandise is drawn accepts the same, and thereupon proceeds to pay the amount of the order to the person in whose favor it is drawn, the presumption is that the credit was given to the drawer of the order, unless the holder, by some act of his own, rendered himself liable.1 But where the drawee of an order for merchandise refused to deliver the merchandise to the payee as the order directed, but credited the payee with the amount of the order, on an old account for which he was in the drawee's debt, it was held that the drawer was not liable upon the order.2 missible to show their meaning. Proctor v. Hardigan, 143 Mass. 462. Plaintiffs furnished brick to a subcontractor to be used in building a house. Defendants, principal contractors, had agreed to pay the subcontractor when the building was completed and the work accepted. Defendants after a portion of the brick had been furnished, accepted an order on them by the sub-contractor requesting payment to plaintiff of $100 on the estimate of that month; also for "the balance due" [plaintiffs] “for brick, said amount, when ascertained, to be taken out of the estimate or estimates" to the sub-contractor. Afterwards plaintiff furnished the balance of the brick. There was evidence that the order was intended to cover all the brick which should be purchased of plaintiffs for the building. Held, that a judgment for the plaintiffs for the price of all the brick furnished by them would not be disturbed. Brown v. Doren, 76 Mich. 482. A building contract provided for alterations, deviations or additions, and for the payment thereof. Held, that the holder of an order drawn by the builder on the owner for extra work, “and to charge the same to account of contract," was entitled to priority over another claimant who held a subsequent order drawn expressly for extra work. Dunn v. Stol:ern, 43 N. J. Eq. 401. The plaintiff gave an order to W upon the defendants to pay her all "moneys de him after labor pay rolls were paid." Vgave her a receipt in full for the above account and all demands except $350 held subject to garnishee proceedings. Held, that the description of the subject matter referred 234 to in the order and receipt standing by itself was incomplete, uncertain and ambiguous, hence extrinsic evidence was admissible to aid in their construction and rightful application. Lynch v. Henry, 75 Wis. 63. Where checks were drawn "to be paid as soon as we settle with the county," it was competent, for the interpretation of these words, to show by parol that it was understood by the drawers, drawee and payees that the checks were to be paid out of a particular fund due the drawers from the county, and which the drawers had previously assigned to the drawee of the checks as security for advances. Des Moines Co. v. Hinckley, 62 Iowa 637. See also PAROL EVIDENCE. Where there is an agreement to pay $500 in an order on B and T, parol evidence was held admissible to show that the order was to be paid in sash and blinds and not in money. Hinneman v. Rosenback, 39 N. Y. 98. A contractor drew an order upon his employer in favor of material men to be paid upon completion of houses numbers 424 and 426 Sumner ave. The contractors had an agreement with the drawee to build houses on lots numbered 416, 418, 420, 422, 428 and 430 on the same street, and afterwards gave an order to the same parties to be paid on completion of houses numbered 416, 418, 428 and 430 "north and south pair houses on Sumner ave." In absence of evidence that the parties had any other dealings, the first order will be held to have referred to houses numbered 420 and 422. Wakeman v. Noble (N. J.), 20 Atl. Rep. 388. 1. Camp v. Sadler, 21 Neb. 732. 585. ORDINANCES (See IMPROVEMENTS, vol. 10, p. 281; INTOXI CATING LIQUORS, vol. II, p. 614; LICENSE, vol. 13, p. 529; MUNICIPAL CORPORATIONS; SUMMARY PROCEEDINGS). I. Definition, 235. II. Ordinances and Resolutions, 235 III. Authority to Make, 236. IV. Enactment, 237. 1. Generally, 237. 2. Meetings of Council, 239. 3. Number Necessary to En- 4. Notice, 239. 8. Recording, 243. V. Form of Ordinance, 244. 2. Enacting Clause, 245. VI. Repeal or Modification, 245. 247. 3. By Implication, 247. VII. Reasonableness, 247. VIII. Must be Consistent with Gen tion of Private Nuisance, XIV. On Whom Binding, 254. 1. Generally, 255. 2. Fines, 256. 3. Payment of Fines, 257. 5. When Fines Refunded, 258. XVI. Forfeiture, 258. XVII. Repetition of Offenses, 259. (a) Furisdiction, 263. Brought in Corporate Name,264. 2. Construction, 264. (a) Generally, 264. (b) Void in Part, 265. 3. Evidence, 266. (a) Generally, 266. (b) Record of Council Proceedings, 267. (c) Publication, 268. (d) Corporate Existence, 268. 4. Judgments, 268. XIX. Review of Proceedings, 269. 1. Certiorari, 269. 2. Habeas Corpus, 269. 3. Injunction, 269. 4. Appeal, 270. 5. Record, 270. XX. Costs, 271. I. DEFINITION.—Municipal ordinances are laws passed by the governing body of a municipal corporation for the regulation of the affairs of the corporation. The term ordinance is said to be analogous to if not entirely identical with by-law.2 II. ORDINANCES AND RESOLUTIONS.-An ordinance prescribes a permanent rule of conduct or government. A resolution is of a temporary character and prescribes no permanent rule of govern 1. Bills v. Goshen, 117 Ind. 221; Robinson v. Mayor etc. of Franklin, 1 Humph. (Tenn.) 156; s. c., 34 Am. Dec. 625; Blanchard v. Bissell, 11 Ohio St. 96; Kepner v. Com. 40 Pa. St. 130. In Citizens' Gas & Min. Co. v. Elwood, 114 Ind. 336, ELLIOT, J., said: "The word 'ordinance' is a term of settled meaning. It means a local law prescribing a general and permanent rule." 2. See Kepner v. Com., 40 Pa. St. 124; Taylor v. Lambertville, 43 N. J. Eq. 112. In State v. Lambertville, 45 N. J. L. 282, DIXON, J., said: "The language, ordinances, rules, regulations, and bylaws is certainly to some extent tauto ment.1 Where a common council is authorized to do an act but the mode of doing it is not prescribed, it may be done by resolution as well as by ordinance.2 So matters upon which the council wishes to legislate must be put in the form of an ordinance and all acts that are done in its ministerial capacity may be in the form of resolutions. 3 III. AUTHORITY TO MAKE.-Ordinances passed by a municipal corporation under the powers conferred by its charter derive. their authority from the legislative power of the State, and not merely from the municipal authority passing them. The legisla ture of a State may delegate to municipal corporations the power to make by-laws and ordinances, and when so passed they have the force and effect of the legislative act within the limits. prescribed for it.4 The extent of the power of a city to pass ordinances depends upon the provisions of its charter. The power to make ordinances, when not expressly given, is implied as incident to the very existence of a corporation, but in the case of an express grant of the power to enact by-laws limited to certain specified cases and for certain purposes, the corporate power of legislation. is confined to the objects specified. The enumeration of special logical, for ordinances and by-laws are not distinguishable, and it is doubtful whether rules and regulations on the subjects embraced in this section are not merely equivalent words." "The term ordinance' is now the usual denomination of such acts, although in England and in some of the States the technically more correct term 'by-law' or 'bye-law' is in common and approved use. The main feature of such enactments is their local as distinguished from their general applicability of the State laws; hence the word 'law' with the prefix 'by' or 'bye' should in strictness be preferred to the word 'ordinance.'" Per OLDS, J., in Bills v. Goshen, 117 Ind. 221. 1. Blanchard v. Bissell, 11 Ohio St. 96. 2. Butler v. Passaic, 44 N. J. L. 171. Power to purchase apparatus may be exercised by the common council either by resolution or by ordinance, when by the charter that body is not restricted to a particular method. Green v. Cape May, 41 N. J. L. 45. So it is not necessary that the common council should decide by ordinance that a sewer should be built-it may be done by resolution. State v. Jersey City, 27 N. J. L. 493. 3. Horr & Bemis, § 210; Quincy v. Chicago etc. R. Co., 92 Ill. 21; Butler v. Passaic, 44 N. J. L. 171; Grimmell v. Des Moines, 57 Iowa 144; Green v. Cape May, 41 N. J. L. 46; Burlington v. Dennison, 42 N. J. L. 165. 4. State v. Williams, 11 S. Car. 288; Taylor v. Carondolet, 22 Mo. 105; Heland v. Lowell, 3 Allen (Mass.) 407; McDermott v. Board of Police, 5 Abb. Pr. (N. Y.) 422; Jones v. Firemens' Fund Ins. Co., 2 Daly (N. Y.) 307; St. Louis v. Mfrs. Bank, 49 Mo. 574; St. Louis 7. Boffinger, 19 Mo. 13, 15; Presbyterian Church v. Mayor etc. of New York, 5 Cow. (N. Y.) 538; Mason v. Shawneetown, 77 Ill. 533; Starr . Burlington, 45 Iowa 87; Indianapolis v. Indianapolis Gas Light & Coke Co., 66 Ind. 396; State v. Tryon, 39 Conn. 183; Des Moines Gas Co. v. Des Moines, 44 Iowa 508; s. c., 24 Am. Rep. 756; Milne v. Davidson, 5 Mart., N. S. 409; Gabel v. Houston, 29 Tex. 336; Bearden v. Madison, 73 Ga. 184; Hopkins v. Swansea, 4 M. & W. 621; Burmeister v. Howard, 1 Wash. Ter. 207; Wright 7. Chicago etc. R. Co., 7 Ill. App. 438; St. Louis 7. Foster, 52 Mo. 513; Bott . Pratt, 33 Minn. 323; s. c., 53 Am. Rep. 47: Jones v. Firemens' Fund Ins. Co., 2 Daly (N. Y.) 307; Wheeler v. Cincinnati, 19 Ohio St. 19; s. c., 2 Am. Rep. 368; Smith v. Marston, 5 Tex. 426. 5. State v. Ferguson, 33 N. H. 424. See Child v. Hudson Bay Co., 2 P. Wms. 207. |