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a waiver of the right to a licn, 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 licn: Smith v. Parsons. 37 Neb. 677 ; S. C., 56 N. W. Rep. 326. So, too, the fact that the creditor discounted the notc 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 licn: McDuffie v. Ria, 13 Pa. C. C. R. 261. But the lien is not waived, if the cir. cumstances 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 Ilun. 109; S. C., 22 N. Y. Suppl. 53; and the fact that, after the note was negotiated, the creditor redecmcd it, and surrcndered it, will show an intention to preserve the right to the licn : Dairis 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: Kough alfg. Co. v. Eisenberg, 27 N. Y. Suppl. 356. But it has been held in Canrda, 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) II. R. 488, has recently decided, that an agreenicnt by B.
with A., as follows: “In consideration of the Mortgage
advances this day made by you, I hereby agree that in case I fail to pay you any promissory note or bill of cxchange of inir.c when due, I shall, upon demand, cxccute 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 cach case, be provided by such promissory notes or bills of cxchange." crcates, without any demand, a valid cquitable 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 inunicipal corporation by the
legislature, to make by-law's for its own governMunicipal Corporations, ment and the regulation of its police, includes the
power to punish violations of its ordinances, though the offence. (c.8.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 gencral 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 gencral 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 gencral jurisdiction, which may happen to he 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 Negligence,
wire connecting plaintiff's building with another,
and a pole on the latter is struck by lightning, which is conducted along the wirc to plaintiff's building, and sets it on fire, so that it is bumed, the company cannot claim that the lightning was the act of God, as by its negligent act
Act o dod
it so arranged that the stroke could destroy plaintiff's building : Jackson v. Il'is. Tel. Co., 60 N. W. Rep. 430.
Among the many subdivisions of the general subject of ncgligence, that of imputed negligence is fast becoming one of
Imputed the most promincnt. Several decisions on this Negligence,
point have been published during the past month.
The Supreme Court of Indiana has decided, that the negligence of a husband, driving his wise over a railroad crossing, where she is injured, cannut be imputed to her, so as to bar her recovery: Lake Shore & M. S. Rr. 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. & Pilts. Ry. Co. v. Spilker, 134 Ind. 380; S. C., 33 N. E. Rep. 280, rehearing denicd, 34 N. E. Rep. 218. But the negligcncc of the husband has been imputed to the wife, who renained scated in the carriage at a railroad siation, while he held the horse, because she was in his care:" Toledo, St. L. & Kansas City Ry. Co. v. Crittenden, 42 III. App. 469. As if the understanding between the partics 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
gence of a parent to a child, and in both cases
held the negative. In Houston City Ry. Co. v. Richart, 27 S. W. Rep. 918, it ruled, that when a father and ininor 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
Parent and Child
cretion, who was unable to take care of hímıself, 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: Ter. & Pac. Ry. Co. v. Flischer. (Tex.), 26 S. W. Rep. 446. See Murphy'sboro v. IVoolsey, 47 III. App. 447; St. L., 1. 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 inputed 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 strect car is not to be impiited to a passenger: Little Rock & M. R. Co. i. Harrell, 58 Ark. 454; S. C., 25 S. W. Rep. 117. And the negligence of a wise, 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. & l. 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. Citisens' Ry. Co., 53 Mo. App. 276.
There is a full annotation on this subject in 32 An. L. REG. 763
In the opinion of the Court of Appeals of New York, when an instrument is in all other respects a negotiable promis Negotiable
sory note of a corporation, the fact that a seal is Instrument affixed thereto, purporting to be the seal of the corporation, but unaccompanied by any rccital 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. Mellisk. (1894) 3 Ch. 163. has latcly applied the principle that the acts of two or.
morc persons may, taken together, constituto such
a nuisance that the court will restrain all from doing the acts constituting thc nuisance, although the annoy. ance occasioned by the act of any one of them, if taken alone, would not be a nuisance, to the case of two proprictors od merry-go-rounds, who used organs as an acconpaniment w thcir amusement; and enjoined them both.
The Supreme Court of lowa has rcasscrted thc somcwhat harsh doctrine, that a parcnt is liable for necessaries furnished
to a minor son, while living away from home with Parent and
her consent, though the son was able to work, Necessaries
and controlled his own carnings : Cooper v. Alac. lamara, 60 N. W. Rep. 522.
The Riime court has also held, that it is within the scope of the partnership business to borrow moncy to pay thc firm
debts: Buetiner 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 Kochlir, 60 N. W. Rep. 178.
The Supreme Court of Nebraska, while admitting that it scums to be the better opinion that the plaintiff, in an action Practice,
for personal injuries, may be compelled to submit
to a personal examination, is or opinion that a Personal Examination judge of the district court has no jurisdiction, at chambers, outside of the county in which the cause is pending, to makc 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 An. L. REG. 550.