2. Where a party employed receives a regular specific monthly salary for his services, the presumption of law is, that all services rendered by him for his employer during that period, which are of nearly a similar nature to those of his regular duties, are paid for by his salary. And to overcome this presumption, he must show an express agreement for extra pay; otherwise he cannot recover. Cany v. Halleck, Executor, 198.

CONVEYANCE.
See DEED.

CORPORATION.

See RAILROAD, 1, 2, 3.

1. Where A received an assignment of stock in a corporation, and the stock was subsequently attached under a judgment against the vendor, and afterward the stock was regularly transferred to A, who then obtained an assignment of the judgment under which the stock was attached: Held, that the assignment of the judgment at once merged the lien in the higher right, and that A, as regarded third parties, became the absolute owner of the stock. Strout v. The Natoma Water and Mining Company, 78.

CORPORATION, MUNICIPAL.

See PLEADING, 18, 19, 20, 21, 22, 23, 24.

1. PER FIELD, J.-A municipal corporation, outside of its governmental capacity, is, in many respects, to be regarded the same as a private corporation, and its officers and agents, through whom it acts, must be presumed to know the contracts it enters into, the purchases it makes, and the property it uses. The knowledge of such matters must rest with some of its officers, and the corporation cannot shelter itself under an assertion of ignorance. San Francisco Gas Company v. The City of San Francisco, 453.

2. Under some circumstances, a municipal corporation may become liable by implication. The obligation to do justice rests equally upon it as upon an individual. It cannot avail itself of the property or labor of a party, and screen itself from responsibility under the plea that it never passed an ordinance on the subject. As against individuals, the law implies a promise to pay, in such cases, and the implication extends equally against corporations. Ib.

3. A corporate act is not essential, in all cases, to fasten a liability, and if it were necessary, the law would sometimes presume, in order to uphold fair dealing, and prevent gross injustice, the existence of such act, and estop the corporation from denying it. Ib.

4. Where the contract is executory, the corporation cannot be held bound, unless the contract is made in pursuance of the provisions of its charter; but where the contract has been executed, and the corporation has enjoyed the benefit of the consideration, an implied assumpsit arises against it. Ib. 5. It will be presumed, for the purposes of justice, that the authority exercised by the officers of the corporation was properly delegated to them, and that contracts made by them, without authority, have been ratified. Ib.

6. A municipal corporation cannot take private property for public use without making compensation in advance, or providing a fund out of which compensation shall be made as soon as the amount to be paid can be determined. Colton v. Rossi et al., 595.

7. And if failure be made in paying or providing such compensation, the party may retake possession of his property. Ib.

8. A town, whose act of incorporation has been decided to be unconstitutional by the Supreme Court, has no legal existence as a corporation, and a judgment against it would be a mere nullity. Ib.

COSTS.

See FEES.

COUNTY CLERK, RECORDER, AND AUDITOR.

1. In counties where the offices of county clerk and county recorder are united, the officer performs the functions of auditor as recorder, and not as clerk. People ex rel. v. Darrach, 324.

2. It follows that where the offices have been separated in a county where they had been previously joined, the recorder becomes auditor. Ib.

COUNTY COURT.

See NEW TRIAL, 7; COURT OF SESSIONS, 1, 2, 3, 4.

1. The County Court has the sole appellate jurisdiction in all cases, civil and criminal, arising in Justices' Courts, subject to such restriction as the Legislature may impose by making the decisions of the justice final in such cases as may be determined by law. People v. Fowler, 85.

COUNTY JUDGE.

See COURT OF SESSIONS, 2, 3, 4.

COURT OF SESSIONS.

1. The Court of Sessions has no appellate jurisdiction in either civil or criminal cases. Their jurisdiction is original, not appellate. In all cases where an appeal lies from a Justice's Court, it must be taken to the County Court. People v. Fowler, 85.

2. The Court of Sessions is composed of the County Judge and two Associates; and the presence of all is necessary to the transaction of business. People v. Barbour, 230.

3. Therefore, an entry in the records of the Court, when only the County Judge and one Associate were present, that the absent Associate had resigned and the appointment by the Court of a justice of the peace in his stead, is a nullity. Ib.

4. Where an indictment is presented to a Court consisting of the County Judge and two justices of the peace of the county, the legal presumption is in favor of its validity. Ib.

CRIMINAL LAW.

See INDICTMENT.

1. An indictment must contain a statement of the facts constituting the offense charged against the defendant. The defects of an indictment are not cured by a verdict. People v. Wallace, 30.

and

2. In an indictment for murder, a statement of the manner of the death, the means by which it was effected, is indispensable. It is also necessary to state the time and place, as well of the infliction of the wound, as of the death of the party, in order to fix the venue, and that it may appear on the record that the deceased died within a year and a day after receiving the injury. Ib. See People v. Cox, 32.

3. It is unnecessary, in an indictment for murder, to state the degree of the offense. People v. Lloyd, 54.

4. Under our Statute, the essential averments of an indictment should be the same as at common law; every averment that is substantially necessary for the information of the defendant, so that he may know the particular circumstances of the charge alleged against him, and how to defend himself, is still necessary. Ib.

5. It must be alleged that the wound was mortal, and that the party died of the wound. Ib.

6. It is no error for the Court, in a criminal case, to set a day for pronouncing sentence, in the absence of the prisoner. It is only requisite that he should be present when the sentence is pronounced. People v. Galvin, 115.

7. The reading of the Statute law and decisions of the Supreme Court, to the jury, without exceptions taken, is no ground of error. Ib.

8. A party cannot be convicted of larceny for taking his own property. People v. McKinley, 250.

9. Where the defendant was indicted for the crime of an "assault with a deadly
weapon with the intent to inflict great bodily injury." and the jury found
him "guilty of an assault with a deadly weapon: Held, that it was error
in the Court, to sentence the prisoner to two years in the State Prison.
People v. Wilson, 259.

10. It is not error in the Court, on a trial for murder, to postpone the considera-
tion of a motion on the part of the defendant, for a change of venue, until
an attempt is made to empannel a jury. People v. Plummer, 298.
11. Where a motion is thus postponed, and counsel for prisoner afterward de-
clines, on the intimation of the Court, to renew the motion, he cannot take
advantage, on appeal, of the failure of the Court to order a change of
venue. Ib.

12. The declaration of a juror, before trial, that "the people ought to take
prisoner out of jail and hang him," renders him incompetent to try the case;
and where a verdict of guilty has been found by such juror, the Court should
grant a new trial. Ib.

13. An indictment for murder which charges, at a time and place mentioned, defendant feloniously assaulted, cut and stabbed the deceased, and inflicted on him one mortal wound, of which mortal wound he, on the same day, died, is sufficient. A description of the weapon used is not material. An objection that the indictment does not state the length and depth of the wound, nor in what part of the body it was inflicted, goes to the form rather than the substance of the indictment. People v. Steventon, 273.

14. The facts necessary to constitute the crime of murder are, that a wound was inflicted with a felonious intent, that the wound was mortal, and that death ensued from the effects of the wound within a year and a day. Ib.

15. As a general rule in criminal cases, this Court will not review, on appeal, an order refusing a new trial moved for on the ground that the verdict is against the evidence, unless the record contains a statement setting forth all the material portions of the testimony. People v. York, 421.

16. But when the record states that it gives "in substance all that was proven on the part of the State," it is sufficient. The facts, as proved, being given, there is no necessity of setting forth the testimony. Ib.

DAMAGES.

1. Where, from the nature of the contract, it is not practicable to ascertain the amount of damages sustained by a breach of contract, the measure is the price agreed to be paid. Coffee v. Meiggs et al., 365.

2. The rule is, that when property converted has a fixed value, the measure of damages is that value, with legal interest from the time of its conversion; when the value is fluctuating, the plaintiff may recover the highest value at the time of its conversion, or at any time afterward. Douglass v. Kraft, 562. 3. Where A agreed with his tenant, who was occupying a wooden building, that, if he would give up his lease, A would erect a brick building, to cover such portion of the lot as would be satisfactory to the tenant, and would give him possession within three weeks, and a lease of the premises for six months, with the privilege of twelve months, or, on failure so to do, would pay the tenant five hundred dollars damages: Held, on breach of the contract on the part of A, that the sum named was a penalty, and not liquidated damages. Nash v. Hermosilla, 584.

DECLARATIONS.

1. Where A, the owner of property, represents that certain property in his possession belongs to B, and that representation coming to the ears of C, a creditor of B, who sues out an attachment against B, and seizes the property: Held, that A is estopped from setting up a claim to the property. Mitchell v. Reed, 204.

2. Where the express declaration of a third party is not confidential, but general, and this is afterward acted on by others, the party making the declaration is estopped. Ib.

3. The intention with which the declaration is made is not material, except, perhaps, when the communication is confidential. It is the fact that the declaration has been acted upon by others, that constitutes the liability to them. Nor does it make any difference whether the thing admitted was true or false. Ib.

4. The declarations of the master of a steamboat, whilst running the river, respecting fire communicating from the chimneys of the boat to the crops of grain on the banks of the river, by which the crop was consumed, are admissible to establish the liability of the owners, in an action against them to recover damages for the destruction of the crop. Gerkee v. California Steam Navigation Company, 251.

5. Where the declarations of a party in a conversation are given in evidence, the whole conversation must be taken together, but the jury are not bound to give the same weight to all parts of it; they are at liberty to consider how much, under the circumstances, is entitled to credit. Thrall v. Smiley et al., 529.

DECREE.

See SERVICE OF PROCESS, 2.

1. A decree cannot be impeached collaterally, because The remedy is by a direct proceeding in the action. Wife, 315.

entered prematurely. Alderson v. Bell and

2. A decree adjudging that a partnership existed between two of the parties to the action, and that another partnership existed between one of them and another party to the action, each partnership embracing all business and property, both real and personal, of the parties, and deciding that the one partnership is subject to the other, and directing an account to be taken,

there being other parties to the action representing the interest of one of the partners in each partnership, is interlocutory, and not final. Gray v. Palmer et al., 616.

3. Such a decree does not ascertain the specific sum due to any of the partners, nor direct the disposition of the partnership property. It does not settle the present condition of the partners, but only the original terms of their partnership. Ib.

DEED.

See SHERIFF'S SALES, 2, 3, 4; EXECUTION, 3; HUSBAND AND Wife, 4. 1. It is not in the power of a Court of Equity to compel a married woman to correct an insufficient acknowledgment to a deed for which she and her husband have received the consideration. Her consent must be perfectly free. She can make no contract to bind herself, except in the manner prescribed by law. The provisions of the Statute must be strictly pursued. Barrett v. Tewksbury et al., 13.

2. An action for a false and fraudulent representation as to the naked fact of title in the vendor of real estate cannot be maintained by the purchaser, who has taken possession of the premises sold, under a conveyance with express covenants. Peabody v. Phelps, 213.

3. All previous representations pending the negotiation for the purchase are merged in the conveyance. The instrument contains the final agreement of the parties, and by it, in the absence of fraud, their rights and liabilities are to be determined. Ib.

4. If a party takes a conveyance without covenants, he is without remedy in case of failure of title; if he takes a conveyance with covenants, his remedy, upon failure of title, is confined to them. Ib.

DEMURRER.

See PLEADING, 1, 4, 16, 28, 29; PRACTICE, 2; JUDGMENT, 12, 13.

DEPOSITION.

1. When the deposition of a witness is taken, objections to his competency must be taken at the time, and not reserved till the trial, or they will be deemed waived. Jones et al. v. Love et al., 68.

DIAGRAM.

1. It is not error to exclude from the jury a diagram, where no drawing is necessary to illustrate the fact asserted. Thrall v. Smiley et al., 529.

DISTRICT COURTS.

1. District Courts have no power to restrain the execution of the judgments or orders of Courts of co-ordinate jurisdiction. Gorham et al. v. Toomey et al., 77.

2. All proceedings to enjoin judgments must issue from the Court having the control of such judgments. Ib.

3. Where suit was brought in the District Court on an undertaking on appeal to the Supreme Court, given in the sum of three hundred dollars, conditioned to pay all damages and costs, not exceeding the three hundred dollars which may be awarded by the Supreme Court, and the damages and costs so awarded were only thirty dollars and fifteen cents: Held, that the District Court had no jurisdiction. Page v. Ellis, 248.