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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.

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. The 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.

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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

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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. Înt., 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. De Haven's Appeal, Leg. Int., March 20, 1874.

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

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lien can be raised. St. Clair Coal Co. v. Martz, Leg. Chron., March 21, 1874.

66

8. EJECTMENT. — Under a statute which requires that in actions of ejectment where the premises are actually occupied, the declaration shall be served by delivering a copy thereof to the defendant named therein, who shall be in the occupancy of the premises, or, if he be absent, by leaving the same with some white person of the family, of the age of ten years or upwards, " at the dwelling-house of such defendant;" a leaving of the declaration with such a white person of the family when he is at a distance of one hundred and twenty-five feet from the house, and in a corner of the yard of the house, is not a compliance with the requirement of the statute. Kibbe v. Benson, Leg. Gazette, March 13, 1874.

9. JUDGMENT SET ASIDE. - Judgment obtained by default, on such a service, the defendant not having had actual notice of what was done, and averring a good title in himself, set aside on bill in equity. 1b.

10. LIFE INSURANCE. — When, under the terms of a policy of life insurance, the representative of the party assured is to furnish, within a certain time after the death of the assured, " due proof of the just claim of the assured," if the party claiming the insurance money have within the time furnished answers written out in the presence of the insurer's agent, to certain printed questions usually furnished by the insurer, for the purpose of seeing whether the claim is just or not, and the insurer receive and keep the questions and answers without any suggestion that such preliminary proofs are insufficient, either in form or substance, - the court, on a suit for the insurance money, has no right to determine as matter of law, that the questions and answers do not establish the justice of the plaintiff's claim, and that the plaintiff is not entitled to a verdict. Questions and answers so given furnish some evidence that the claim is just; and the matter is proper for the jury, even though the contents of the paper do not as yet appear. Life Ins. Co. v. Francisco, Leg. Gazette, March 20, 1874.

11. A RULE OF COURT that "in causes tried by a jury, any special charge or instruction asked for by either party must be presented to the court in writing directly after the close of the evidence, and before any argument is made to the jury, or it will not be considered," is a reasonable rule; and the enforcement or disregard of it is matter of discretion with the court making it, and, therefore, not the subject of a writ of error. 1b. 12. INSTRUCTIONS TO JURY. Where a medical man testifies that the "disease" of a person who had died, and on whose death a claim for insurance was made, " had been indigestion, torpid liver, and colic, and that he died of acute hepatitis," and several other persons, the acquaintances of the deceased, testify that they had never known him to be unwell, or if so more than very slightly, and that they considered him to be a healthy man, an instruction to the jury that the evidence was not sufficient to enable the plaintiff (who was suing for the insurance money on a policy of life insurance, previous to the grant of which the decedent had answered, in reply to the usual questions, that he had "no sickness or disease ") to recover, was held to have been rightly refused; and that the jury were rightly instructed that it was for them to determine whether the deceased

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had been afflicted with any sickness or disease, within the meaning of the terms as used in his answers to questions put to him prior to the issue of the policy. Ib.

13. CHARGE TO JURY. It was not error for the court below to charge the jury, that upon proof that the plaintiff in error, having received a $50 note, out of which to take pay for a glass of soda water, had appropriated the entire note to his own use, could convict him of larceny. Hilderbrand v. The People, Daily Reg., March 24, 1874.

14. WRIT OF ERROR. The return to a writ of error need not, necessarily, by requirement of statute, contain an entry of the fact that the accused was or was not asked whether he had anything to say why sentence should not be pronounced, although at common law he is entitled to have such question put to him. Ib.

But even if it appeared by the return that the putting of such question was omitted, the omission would only affect the sentence, and not the conviction. Ib.

See EQUITY; FEDERAL COURT; SHERIFFS, 1.

1. NOTICE.

dorser.

PROMISSORY NOTE.

Actual notice is all that is required to charge an inCake v. Stidfole, Leg. Int., March 20, 1874.

2. AFFIDAVIT OF DEFENCE. -Statements on information made in an affidavit of defence should be averred to be believed by defendant. Ib. 3. CONSIDERATION. RELEASE OF DOWER. The plaintiff below, a married woman, released her right of dower in certain real estate, owned by her husband and defendant below, the consideration for so doing being a promissory note given to her by them jointly: Held, that her release of her right of dower was a good consideration for the giving of the promissory note. Sykes v. Chadwick, Leg. Gazette, March 13, 1874.

4. WIFE'S SEPARATE PROPERTY.-The note being her separate property, not acquired by gift or conveyance of her husband, she is entitled to the benefit of the statute in reference to the exclusive possession and enjoyment of the note, and to the exclusive right of suing upon it. Ib. See INTERNAL REVENUE LAW.

RAILROADS.

The more satisfac

1. FENCING TRACK WITHIN CORPORATE LIMITS. tory rule relating to statutes requiring the fencing of railroad tracks holds that they do not apply where it would be illegal or improper that the road should be fenced, as at the crossings of streets and alleys in a city or town, or at mills, &c., where public convenience requires the way to be left open. This, however, is the limit of the exception; and the track within the corporate limits of a city or town, at points where no such reasons apply, is as much within the statute as the track elsewhere. Indianapolis, &c. R. R. Co. v. Parker, 29 Ind. 471; Jeffersonville, &c. R. R. v. Parkhurst, 34 Ind. 501. Any exceptional case, must be proved by the railroad company, and cannot be inferred. Flint, &c. Railway Co. v. Lull, Cent. L. J., March 12, 1874.