Vol. I.] DIGEST OF CASES. [No. 4. and gave a receipt in full and surrendered the policy: Held, that the plaintiff could not recover under an assignment from Parker to her, after he had been paid by the company the full amount he claimed. Ib. See PLEADING AND PRACTICE, 10, 12. INTERNAL REVENUE LAW. 1. PROMISSORY NOTE. On a criminal information for issuing without a stamp, and with intent to evade the provisions of the internal revenue act of 1866, the following instrument: IRON CLIFFS COMPANY. [Five. NEGAUNEE, Mich., Jan. 30, 1870. Pay to the order of E. B. Isham, supt., or bearer, FIVE DOLLARS, Value received, and charge to account of E. B. ISHAM. TO CHARLES J. CANDA, Esq., New York. Countersigned: E. S. GREEN, Clerk. Held, That the instrument was, in form, a draft or order for the payment of money drawn upon another than a banker or trust company, and not subject to the stamp duties imposed upon a promissory note. The United States v. Isham, Int. Rev. Rec., March 14, 1874. 2. SUITS BY GOVERNMENT.-The government is not prohibited by anything contained in the act of July 13, 1866, from employing any common law remedy for the collection of its dues. The rule that statutory remedies exclude the common law remedy is for others not for the government, it being settled that so much of the royal prerogative as belonged to the king in his capacity of parens patriæ, or universal trustee, enters as much into our political state as it does into the principles of the British Constitution, which establishes the principle that the king is not bound by any act of parliament unless he be named therein by special and particular words, Dollar Savings Bank v. United States, Int. Rev. Rec., March 21, 1874. - See BANKS, 3. JUROR. DISQUALIFICATION OF. A juror, who has formed an opinion as to the guilt or innocence of the prisoner, which it would take some evidence to remove, is disqualified. Staup v. Commonwealth, Leg. Int., March 20, 1874. LEASE. SURETY. — A was surety on a lease renewable from year to year, and having given six months' notice that he would not continue surety after the end of the current year; held, that he having died in the mean time, his estate was not liable for any rent in arrear after that date. Estate of De Silver, Leg. Int., March 20, 1874. LICENSE. See PLEADING AND PRACTICE, 3. Vol. I.] DIGEST OF CASES. [No. 4. LIEN. MECHANIC'S LIEN. Under the act of February 17, 1858, a lien was filed for a patent hoisting and dumping cage, against the entire leasehold estate of a colliery. Held, That the act of assembly gave the mechanic no such lien. It confines the lien clearly to the interest of the lessees in the improvement and machinery upon which his labor and services were bestowed. St. Clair Coal Co. v. Martz, Leg. Chron., March 21, 1874. LIFE INSURANCE. See INSURANCE, 1, 2, 3; PLEADING AND PRACTICE, 10, 12. LIMITATIONS. 1. STATUTE FIXING BAR WHERE CAUSE OF ACTION HAS ALREADY ACCRUED. On the 16th day of March, 1869, the Legislature of Georgia passed an act providing that all suits of whatever nature, in which the cause of action accrued prior to the 1st day of June, 1865, should be barred, unless brought by the 1st day of January, 1870. The period thus allowed for bringing suits was nine months and fifteen days. This is held to be a reasonable period in ordinary cases. Marsh v. Burroughs, Cent. L. J., March 12, 1874. 2. TWELVE MONTHS' EXEMPTION IN FAVOR OF ADMINISTRATORS. -By the Georgia Code, § 2548, an administrator is not liable to suit until one year from the date of his qualification. It is held that this exemption is not repealed by the act of March 16, 1869. If the latter act had such an effect, it would probably be in contravention of the Constitution of the United States; but as it does not, it is a valid enactment. Ib. 3. COMPUTATION OF TIME UNDER THE TWO STATUTES. . In computing the time which will bar an action, with reference to these two statutes, it is held that the administrator is entitled, first, to the one year's exemption allowed by § 2548 of the Code, and then that the creditor of the estate is entitled to the nine months and fifteen days of the act of March 16, 1869, added thereto, in which to bring his suit, although the time within which suit may be brought may thereby be extended beyond the 1st day of January, 1870. lb. 4. CONSTRUCTION OF. In construing a statute of limitations, it must, so far as it affects rights of action in existence when the statute is passed, be held, in the absence of a contrary provision, to begin when the cause of action is first subjected to its operation. Sohn v. Waterson, Leg. Gazette, March 20, 1874. 5. TIME THE STATUTE BEGINS TO RUN. Hence when a right of action accrued in 1854, and a statute of limitations passed in 1859 barred all actions of its kind not "" commenced within two years next after the cause or right of such action shall have accrued:" Held, that the cause of action began to run from the date of the statute, and that suit might have been brought any time within two years from that date, and accordingly, that the statute had not summarily cut off existing rights, thus making itself unconstitutional. Ib. Vol. I.] DIGEST OF CASES. [No. 4. MASTER AND SERVANT. 1. LIABILITY FOR DEFECTIVE TOOLS. -A master bricklayer is responsible for an injury caused by defective tools in the hands of his employés. Milk v. Boorse, Leg. Int., March 13, 1874. 2. WHEN THE RELATIONSHIP CEASED IS A QUESTION OF FACT FOR JURY. — A man standing on a wharf was hired by the mate of a boat desiring to sail soon, and which was short of hands, to assist in lading some goods, which were near the wharf, he not having been in the service of the boat generally, though he had been occasionally employed in this sort of work. He assisted in lading the goods, an employment which continued about two hours and a half. He was then told to go to "the office," which was on the boat, and get paid. He did so, and then set off to go ashore. While crossing the gang-plank, in going ashore, the boat hands pulled the plank recklessly in and from under his feet, and he was thrown against the dock, injured, and died from the injuries. On a suit under a statute, by his administratrix, for the injuries done to him; the declaration alleging that he had been paid and discharged, and that after this, and when he was no longer in any way a servant of the owners of the boat, he was injured; the defence was that he had remained in the service of the boat till he got completely ashore, and that the injuries having been done to him by his fellow-servants, the owners of the boat (the common master of all the servants) were not liable. There was no dispute as to the facts, unless the question as to when the relationship of master and servant ceased was a fact. This question the court left to the jury. Held, that there was in this no error. Packet Co. v. McCue, Int. Rev. Rec., March 14, 1874. The 3. INJURY BY FELLOW-SERVANT.-F., a boy of tender years, had been engaged, by a company owning it, in a machine shop, as a workman or helper under the superintendence of C., and required to obey his orders. After being employed for a few months chiefly in receiving and putting away mouldings as they came from a moulding machine, the boy by the order of C., ascended a ladder to a great height from the floor, among rapidly revolving and dangerous machinery, for the purpose of adjusting a belt by which a portion of the machinery was moved, and while engaged in the endeavor to execute the order had his arm torn from his body. jury, by a special verdict, found that the order was not within the scope of the boy's duty and employment, but was within that of C.; that the order was not a reasonable one; that its execution was attended with hazard to life or limb, and that a prudent man would not have ordered the boy to execute it. Held, that the company was liable in damages for the injuries, and that the rule that the master is not liable to one of his servants for injuries resulting from the carelessness of another, when both are engaged in a common service, although the injured person was under the control and direction of the servant who caused the injury - whether a true rule or not - had no application to the case. Railroad Co. v. Fort, Int. Rev. Rec., March 21, 1874. MECHANIC'S LIEN. See LIEN; PLEADING AND PRACTICE, 7. Vol. I.] DIGEST OF CASES. [No. 4. MISDEMEANOR. A MISDEMEANOR is an act or omission for which a punishment other than death or imprisonment in the state prison is denounced by law. The breach of a city ordinance, as against drunkenness, is not a misdemeanor. Pillsbury v. Brown, Pac. Law Rep., March 10, 1874. MORTGAGE. 1. IMPEACHMENT OF JUDGMENT ON MORTGAGE. A judgment on a mortgage given by a wife without joining her husband, on land to which she held the legal title and her husband had the equitable estate, cannot be impeached collaterally except for fraud. Appeal of Butterfield's Executors, Pittsb. L. J., March 25, 1874. - 2. DISTRIBUTION OF FUND REALIZED FROM SALE. - In distributing the fund realized from its sale on a judgment against both, the amount of the wife's interest in the land should be appropriated to the judgment sur mortgage according to its priority. Ib. 3. A MORTGAGE IN FEE IS A CONVEYANCE IN FEE within the meaning of the statute concerning conveyance. The terms of the mortgage purporting to convey in fee are equivalent to a covenant of general warranty of title running with the land, and the mortgagor cannot defeat the mortgage by asserting an after acquired title. Viejo Land Asso. v. Viera, Pac. Law Rep., March 10, 1874. See EQUITY, 3, 5; SALES, 1, 2. MUNICIPAL GOVERNMENT. - AWARDING CONTRACTS. The head of a department of the municipal government cannot refuse to award a contract to the lowest bidder because of irregularity in not conforming to the notice for bids. If there has been a substantial conformance to the laws and ordinances relating to such matters, the court will not use the writ of mandamus, which is a discretionary writ, to compel the acceptance of the next bidder. People v. Green, Chicago L. N., March 21, 1874. NEGLIGENCE. 1. POLICE OFFICER. The city of Philadelphia is not responsible for the negligence of its police officers while engaged in the enforcement of a city ordinance. Elliott v. City of Philadelphia, Leg. Int., March 20, 1874. 2. As a general rule a question of negligence must be submitted to a jury. Where the measure of duty is ordinary and reasonable care, it is always a question for the jury. There is no absolute rule as to what constitutes negligence. Where the measure of duty is not unvarying, where a higher degree of care is demanded under some circumstances than under others, where both the duty and extent of its performance are to be ascertained as facts, a jury alone can determine what is negligence, and whether it has been proved. Where negligence is concurrent a child will not be held to the exercise of Vol. I.] DIGEST OF CASES. [No. 4. the same degree of care and discretion as an adult. Crissy v. Hestonville, &c. Railway Co., L. Chron., March 14, 1874. 3. NEGLIGENCE OF MASTER OF VESSEL. Nuts in bags and boxes were shipped at New York to be delivered at San Francisco. It was shown on the trial that if nuts are stowed in the hold on this voyage they are very liable to be injured by sweat; that it is the almost invariable practice to carry them in the cabin, or cabin state rooms, and to enter them on the bill of lading as to be thus carried; and that if they are carried in the hold they are sometimes inclosed in water-tight oil casks, in order to keep them in proper condition. The packages in this case were all marked " in cabin state room." The contract of the bill of lading was that the goods should be delivered in San Francisco "in good order and condition, dangers of the seas, fire, and collisions excepted." The goods were placed in the hold without notice to the shippers, and were damaged on the voyage by sweating. Held, that in view of the almost invariable practice as to the stowage of nuts on this voyage, of the well known fact that if stowed in the hold they are extremely liable to be injured by sweat, and of the marks and directions on the packages in question in this case, it was culpable negligence in the master of the vessel to stow them in the hold, and that the vessel was liable accordingly. The Star of Hope, Leg. Gazette, March 20, 1874. PLEADING AND PRACTICE. 1. AMENDMENT. It is not competent to amend a joint libel against three vessels by substituting the name of the owner of one vessel for the vessel, and as to her changing it from a libel in rem to one in personam. The Young America, Chicago L. N., March 14, 1874. 2. ACTIONS IN REM AND IN PERSONAM. A libel in rem cannot be changed into a libel in personam against the owner. A joint action for collision cannot be maintained in rem against one vessel and in personam against the owner of another. Ib. 3. LICENSE TO THEATRES. As there are two acts of assembly requiring licenses to theatres, an indictment against the proprietor of a theatre should allege under which act the charge is made. Commonwealth v. Fox, Leg. Int., March 13, 1874. 4. NON EST FACTUM.- Where the judgment entered on a judgment note is opened, the plaintiff cannot prove the execution of the note, if there is a plea of non est factum, by the record of the judgment merely. West v. Irwin, Leg. Int., March 13, 1874. 5. SATISFACTION OF A JUDGMENT. — If a vendee fails to pay the amount due and surrenders back the possession of the property, he cannot be compelled to satisfy a judgment which was to have been a part payment for the property. - Arnold's Administrators v. Fitzgerald, Leg. Int., March 13, 1874. 6. SUPREME COURT. Where the supreme court do not think the facts alleged make a substantial matter of dispute, they will not reverse the court below and direct the register's court to frame an issue. Haven's Appeal, Leg. Int., March 20, 1874. - De 7. SCIRE FACIAS.-MECHANIC'S LIEN. After pleading payment to a scire facias on a mechanic's lien, no question as to the sufficiency of the |