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a waiver of the right to a lien, unless there is an express understanding to that effect, or it can be implied from the acts of the parties: Hoagland v: Lusk, (Neb.), 50 N. W. Rep. 162. Payment is, of course, a bar to a lien, and the acceptance of a note as payment, whether it be that of the owner or of a third person, will be a waiver of the right to file a lien: Smith v. Parsons, 37 Neb. 677; S. C., 56 N. W. Rep. 326. So, too, the fact that the creditor discounted the note affords a strong presumption that he accepted it as payment of the debt, and will amount to a waiver, where it is not in his possession or control at the time of suing out the lien: McDuffee v. Rea, 13 Pa. C. C. R. 261. But the lien is not waived, if the circumstances attendant upon the taking of the note are not inconsistent with its retention: Kilpatrick v. Kansas City & B. R. R., (Neb.), 57 N. W. Rep. 644; Jones v. Moores, 67 Hun. 109; S. C., 22 N.. Y. Suppl. 53; and the fact that, after the note was negotiated, the creditor redeemed it, and surrendered it, will show an intention to preserve the right to the lien: Davis v. Parsons, 157 Mass. 584; S. C., 32 N. E. Rep. 1117. The taking of a note as collateral security merely suspends the enforcement of the lien until the note is payable: Keogh Mfg. Co. v. Eisenberg, 27 N. Y. Suppl. 356. But it has been held in Canada, that when the lien is thus suspended during the currency of a note, it is absolutely gone; Edmonds v. Tiernan, 21 Can. S. C. R. 406.


The Irish Chancery Division, in Biddulph's Estate, [1894] 1 I. R. 488, has recently decided, that an agreement by B. with A., as follows: "In consideration of the advances this day made by you, I hereby agree that in case I fail to pay you any promissory note or bill of exchange of mine when due, I shall, upon demand, execute to you a mortgage on all my houses and lands, to secure to you the payment of all sums of money advanced, or to be advanced, by you to me, on my promissory notes, or bills of exchange, with interest, till paid, at such rate as may, in each case, be provided by such promissory notes or bills of exchange," creates, without any demand, a valid equitable mortgage on

lands, the property of B. at the time of the agreement, for the amount of notes or bills unpaid at maturity; the words, "on demand," having reference to the execution of a legal mortgage.

The Supreme Court of Louisiana has again asserted the rule, that the power vested in a municipal corporation by the legislature, to make by-laws for its own governMunicipal Cerporations, ment and the regulation of its police, includes the Ordinances power to punish violations of its ordinances, though the offence, (e. g., carrying concealed deadly weapons,) is also denounced by state law: Board of Police of Opelousas v. Giron, 16 So. Rep. 190. See 1 Am. L. Reg. & Rev. (N. S.) 669.


The Supreme Court of Nebraska, in Foley v. State, 60 N. W. Rep. 574, while acknowledging the general rule to be, that the courts will not take judicial notice of Judicial Notice municipal ordinances unless required so to do by special charter or general law, very wisely rejected the weight of authority, and held that an exception to that rule should be recognized, in favor of courts of municipal corporations, which will take notice of ordinances of their own municipalitics, since they stand in the same relation to those ordinances as courts of general jurisdiction to the general laws of the state; and that, therefore, such ordinances need not be set out in an information preferred in a municipal court.

This, however, must be understood to apply only to purely municipal courts of limited jurisdiction, and not to courts of general jurisdiction, which may happen to be located within the bounds of the municipality.


According to a recent decision of the Supreme Court of Wisconsin, when a telephone company negligently leaves a wire connecting plaintiff's building with another, Act of God and a pole on the latter is struck by lightning, which is conducted along the wire to plaintiff's building, and sets it on fire, so that it is burned, the company cannot claim that the lightning was the act of God, as by its negligent act

it so arranged that the stroke could destroy plaintiff's building: Jackson v. Wis. Tel. Co., 60 N. W. Rep. 430.

Among the many subdivisions of the general subject of negligence, that of imputed negligence is fast becoming one of Imputed the most prominent. Several decisions on this Nexligence, point have been published during the past month.

Husband and

Wife The Supreme Court of Indiana has decided, that the negligence of a husband, driving his wife over a railroad crossing, where she is injured, cannot be imputed to her, so as to bar her recovery: Lake Shore & M. S. Ry. Co. v. McIntosh, 38 N. E. Rep. 476. To the same effect are Louisville, New Alb. & Chic. Ry. Co. v. Creck, 130 Ind. 139; S. C., 29 N. E. Rep. 481; Chic., St. L. & Pits. Ry. Co. v. Spilker, 134 Ind. · 380; S. C., 33 N. E. Rep. 280, rehearing denied, 34 N. E. Rep. 218. But the negligence of the husband has been imputed to the wife, who remained seated in the carriage at a railroad station, while he held the horse, "because she was in his care:" Toledo, St. L. & Kansas City Ry. Co. v. Crittenden, 42 Ill. App. 469. As if the understanding between the parties could relieve the railroad company from liability for its own negligence!

The Court of Civil Appeals of Texas has recently passed upon two cases on the question of the imputation of the negli

Parent gence of a parent to a child, and in both cases and Child held the negative. In Houston City Ry. Co. v. Richart, 27 S. W. Rep. 918, it ruled, that when a father and minor son, both members of the city fire department, are both injured by the overturning of a hose cart, driven by the father, caused by the defective construction of a street railway track at a street crossing, the negligence of the father, if any, cannot be imputed to the son; and in Allen v. Tex. & Pac. Ry. Co., 27 S. W. Rep. 943, that in an action by a child, through its father as next friend, against a railroad company, for personal injury, the negligence of the father, in whose care the child was travelling, cannot be imputed to the latter. These are the more remarkable, as the same court, in Johnson v. Gulf, C. & S. F. Ry. Co., 21 S. W. Rep. 274, held that the negligence of the father was to be imputed to a blind son, of age of dis

cretion, who was unable to take care of himself, and, of his own volition, entrusted his safety to his father. Similarly, the negligence of the mother is not to be imputed to a child: Tex. & Pac. Ry. Co. v. Fletcher, (Tex.), 26 S. W. Rep. 446. See Murphysboro v. Woolsey, 47 Ill. App. 447; St. L., I. M. & S. Ry. Co. v. Rexroad, (Ark.), 26 S. W. Rep. 1037.

The negligence of the driver of a vehicle, with whom the person injured is riding at his invitation, and over whom he has no control, is not to be imputed to the latter: Al. & V. Ry. Co. v. Davis, 69 Miss. 444; S. C., 13 So. Rep. 693; B. & O. R. R. v. State, (Md.), 29 Atl. Rep. 518; contra, Whittaker v. City of Helena, (Mont.), 35 Pac. Rep. 904. The negligence of the driver of a street car is not to be imputed to a passenger: Little Rock & M. R. Co. v. Harrell, 58 Ark. 454; S. C., 25 S. W. Rep. 117. And the negligence of a wife, which caused her injury, is not imputed to the husband, so as to bar his recovery for those causes of injury peculiar to himself, such as the loss of her society and aid in household affairs, and medical expenses: Honey v. C., B. & Q. Ry. Co., 59 Fed. Rep. 423. But the negligence of a nurse, in charge of a child, will be imputed to its parents, so as to bar a recovery by them for its death: Schlenks v. Central Pass. Ry. Co., (Ky.), 23 S. W. Rep. 589. And the negligence of a gripman, under the control of the conductor of a car, will be imputed to the latter, so as to bar his recovery from a third person, whose acts contributed to the injury: Minster v. Citizens' Ry. Co., 53 Mo. App. 276.

There is a full annotation on this subject in 32 Аx. L. REG. 763.

In the opinion of the Court of Appeals of New York, when an instrument is in all other respects a negotiable promissory note of a corporation, the fact that a seal is

Negotiable Instrument

affixed thereto, purporting to be the seal of the corporation, but unaccompanied by any recital or act showing that the officers of the corporation intended, or, in fact, did affix it, does not destroy its negotiability: Weeks v. Esler, 38 N. E. Rep. 377.

The Chancery Division, in Lambton v. Mellish, [1894] 3 Ch. 163, has lately applied the principle that the acts of two or. more persons may, taken together, constitute such a nuisance that the court will restrain all from doing the acts constituting the nuisance, although the annoyance occasioned by the act of any one of them, if taken alone, would not be a nuisance, to the case of two proprietors of merry-go-rounds, who used organs as an accompaniment to their amusement; and enjoined them both.


The Supreme Court of Iowa has reasserted the somewhat harsh doctrine, that a parent is liable for necessaries furnished to a minor son, while living away from home with her consent, though the son was able to work, and controlled his own carnings: Cooper v. MacNamara, 60 N. W. Rep. 522.

Parent and


The same court has also held, that it is within the scope of the partnership business to borrow money to pay the firm debts: Buettner v. Steinbrecher, 60 N. W. Rep. 177; Partnership and that one who loans money to a member of a mercantile firm, and receives from him a note, executed in the name of the firm, has a right to presume that the note was made in the course of the partnership business: Platt v Kochler, 60 N. W. Rep. 178.



The Supreme Court of Nebraska, while admitting that it seems to be the better opinion that the plaintiff, in an action for personal injuries, may be compelled to submit Civil. to a personal examination, is of opinion that a Examination judge of the district court has no jurisdiction, at chambers, outside of the county in which the cause is pending, to make an order requiring the plaintiff to submit his body to such an examination by a board of physicians, appointed by the judge for that purpose: Ellsworth v. Fairbury, 60 N. W. Rep. 336. There is an excellent annotation on the right to enforce personal examination, in 32 Am. L. Reg. 550.

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