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mand, for the purpose of determining the Judgment reversed, and a new trial orquestion of jurisdiction in an action of dered. disseizin. The value of the land sued for Opinion by Smith, J.; Mullin, P. J., is no necessary part of the case. Any and Gilbert, J., concurring.

evidence regarding it is unnecessary, and superfluous, unless it is made material, and put in issue, by a plea to the jurisdiction.

Judgment affirmed.

Opinion by Foster, J.

LABOR AND SERVICES.
N. Y. SUPREME COURT, GENERAL TERM,
FOURTH DEPT.

Sullivan, respt., v. Sullivan, applt.
Decided January, 1876.

To entitle a daughter to recover of her father, for wages for her labor and services, the contract to pay her must be clearly proved.

The plaintiff in this action is the daughter of defendant, and they had lived together and kept house, plaintiff acting as housekeeper for many years. They had lived in N. Y., and had generally lived alone. Defendant paid all plaintiff's expenses, and supported her all the time she lived with him. Plaintiff brings this action for her wages, &c.

Johnson & Hoyt for plff.
Ruger & Jenny for deft.

Held, That plaintiff should have been non-suited. The evidence of the plaintiff clearly shows that the relation of master and servant never existed between plain.tiff and defendant.

ATTORNEY.

SERVICES.

SUPREME COURT OF MISSOURI. Southgate v. Atlantic and Pacific Railroad Company.

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The answer was a denial of all the allegations contained in the petition. The bill of particulars accompanying the first count referred to certain specific cases atsel and services as an attorney generally tended to, and stated a demand for counfrom March 15th, to October 15th, 1867. behalf, and stated that the services were The plaintiff gave testimony in his own. performed, and that he was employed by the superintendent of the road, and that he at different times corresponded with

The relation the parties bore to each other, was clearly that of parent and child.

That where members of a family live together, the law will not imply a promise to pay for board on the one side, nor the various officers and managers of the wages on the other. road, and that they recognized him as an An express, distinct, and well under-attorney and acquiesced in his employstood bargain should be proved before any such claim should be allowed. Robinson v. Cushman, 2 Den. 152; Williams v. Hatilimen, 3 Coms., 312.

ment.

He also proved by a witness, against the objection of the defendant, that the services of a good attorney at the place

where plaintiff was, would be reasonably the time the injuries were received plainworth two hundred dollars per month. tiff was five years and three months old, There was a verdict and judgment for and resided with his mother in a tenement plaintiff. house, on the first floor, in rooms leading It is insisted by the defendant that be- into the back yard, and also into the street, fore the plaintiff could recover, it was down some stairs. Plaintiff had been playnecessary for him to show that the offi- ing with other children in the back yard, cers who employed him had authority and came in for a drink of milk; the from the corporation to make the employ-mother gave it to him, and he sat at the ment. table to drink it, when the mother passed into the bed-room adjoining, leaving the door open, and telling plaintiff to go back into the yard, and in five minutes notice was brought her that the child had been injured. The mother testified that the child had never before been in the street. The evidence tended to show that the child passed out into the street, and in attempting to cross defendant's track was struck by one of the horses; that the car was being driven at an unusual rate of speed, and that the driver was engaged in conversation with persons standing on the platform, and was not looking at or giving any attention to his horses or persons crossing the street. The court charged the jury that if the mother omitted to exercise such care in respect to the child as persons of ordinary prudence would exercise under the circumstances, or if the child omitted to exercise such care as might be reasonably expected from one of his age, the verdict should be for the defendant. The jury brought in a verdict for the plaintiff.

Held, 1. The rule is that not only the appointment, but the authority of the agent of a corporation may be implied from the adoption or recognition of his acts by the corporation.

Managing officers of corporations have power to employ attorneys and counsellors, without express delegations of power, or formal resolutions to that effect.

2. The evidence of the witness as to the value of the services was improper. He testified that the services of a good attorney wou'd be reasonably worth $200 per month; his attention should have been called to the services rendered, and his opinion asked as to what they were reasonably worth.

Judgment reversed.
Opinion by Wagner, J.

NEGLIGENCE.

N. Y. COURT OF APPEALS. Fallon by Guardian, &c., respt., v. Central Park N. & E. R. R. Co., Applt. Decided January 18, 1876. Contributory negligence cannot be charged against a child of tender years, where its parents exercise such care in respect to it as persons of ordinary prudence would exercise under the circumstances, and where it exercises such care as might reasonably be expected from one of its

age.

This action was brought to recover damages for injuries received by plaintiff through the alleged negligence of defendant. It appeared upon the trial, that at

Edward McCarthy for respt.
A. J. Vanderpoel for applt.

Held, No error; that the jury were jusfied in holding that plaintiff's mother

under the circumstances had no reason to suspect, that he would go into the street, but had a right to presume the child would obey her direction and go into the back yard, and that she used ordinary care, (38 N. Y., 455,) that the charge of the judge upon the question of the negligence of plaintiff and his mother was correct; that although a child five years old cannot be regarded as sui juris, it possesses in some

degree reason and judgment, capable of pointment; so, also, proof that defendant was in actual exercise of the duties of the office of collector was prima facie evidence of his official character, and dispensed with the necessity of showing his appointment. But the effect of this evidence was overcome by the proof on cross

understanding what was said, and may be made subject to the will, and direction of those having it in charge, and a mother may be assumed from natural love and affection, to be vigilant in protecting it from harm,

Judgment of General Term, denying a examination of the trustee, that he did new trial, affirmed. not make or sign any written appointment for defendant, and did not file any in the proper clerk's office, as required by law.

Opinion by Church, C. J.

OFFICER APPOINTMENT.

That defendant was not an officer de jure; that his acts as an officer de facto may be valid, so far as the public and

N. Y. SUPREME COURT-GEN'L TERM third persons are concerned, but when the

FOURTH DEPT.

officer himself does an act for which he is sued, he can establish his justification only on proof that he is an officer de jure. The judgment must be reversed. Opinion by Gilbert, J.; Mullin, P. J.,

Burditt, applt. v. Barry, respt.

Decided January, 1876.

The presumption is that a public offi-
cer performs his duty.
This presumption may be overcome by and Smith, J., concurring.
evidence.

Appointment of a collector of a school
district by parol not good.
An officer to justify his acts must be
an officer de jure.

This action was originally brought before a Justice of the Peace, and was for a wrongful conversion of personal property.

Defendant justified as collector of a school district, and by virtue of a tax list and warrant. He was appointed by the trustee of the said school district as such collector by parol. His appointment was not in writing, or signed by the trustee, or filed in the clerk's office, as required by law. Defendant had acted as such col

lector for some time prior to this alleged

conversion.

There was judgment before the justice for plaintiff; there was judgment in the County Court for defendant, and from such judgment plaintiff appeals.

F. Brundage, for respt.
James F. Fitts, for applt.

CONDITIONAL SALE.

N. Y. SUPREME COURT-GEN'L TERM.
FOURTH DEPT.

This was an action to have a deed de

clared a mortgage, &c., &c. Plaintiff sold absolute on its face. At the time of the certain premises to defendant by a deed sale defendant gave back to plaintiff a writing, in and by which it was provided that the property might be sold within one year for not less than $4,000, being an advance of $1,500 over the price paid Held, That the legal presumption by the defendant, and that in case of such which exists in favor of the due perform-sale as above, the profits arising upon such ance of duty by a public officer, prima sale should be divided between the defacie, established the validity of his ap- fendant and his grantor, &c. It was also

Macauley, applt. v. Porter, respt. Decided January; 1876. When the parties to a sale of real estate stipulate at the time of sale, that on a resale, the grantor is to have a portion of the profits, such stipulation is legal, but the grantor has no right to insist on a sale, after the stipulated time. Such a transaction is not a mortgage.

provided that if this property should not

EMBEZZLEMENT.

be sold within one year, all interest in the N. Y. SUPREME COURT, GENERAL TERM -FIRST DEPARTMENT. grantor should close, &c. The evidence, on the trial, did not show that the deed was given for or intended to be a mortgage.

Held, That nothing short of evidence which shows the existence of the relation of debtor and creditor between the parties to an absolute conveyance, and that it was in substance a security for a debt, will turn it into a mortgage. That a conveyance, coupled by a stipulation by the grantee that the grantor may have the right to buy back the property within a certain time, or to participate in the proceeds of a sale thereof is not forbidden by law, and where such a contract is made, the parties must abide by it; but such grantor has no right to insist on a resale after the stipulated time, nor is such a transaction a mortgage or any thing else than what it purports to be, viz: a sale with the privilege reserved to the seller of repurchasing the property sold, or of showing the profits which may accrue from another sale.

That there is a recognized distinction by the courts between an absolute conveyance intended to be a mortgage merely, and a conditional sale or a sale with with the reservation of the privilege mentioned. Hill v. Grant, 46 N. Y., 496, and 55 N. Y., 637.

That the paper given by the grantee, and accompanying the conveyance does 'not in terms qualify the latter.

That the evidence shows that a mortgage was not intended, and the paper itself is quite incompatible with the idea that any estate or interest in the lands remained in the grantor. Judgment affirmed. Opinion by Gilbert, J.

In the matter of John L. Swan.
Decided March 7, 1876.

Facts sufficient to establish embezzle

ment.

A declaration in the recognizance by
which the prisoner is released on his
own signature, that he elects to be
tried by the Court of Special Ses-
sions, no subsequent demand for
trial by jury being made, is a waiver
of the right of trial by jnry.
The court may correct an erroneous sen-
tence any time during the term and
before the Sheriff has proceeded to

execute sentence.

Certiorari to the Court of Special Sessions to review a conviction for embezzlement.

It appeared from the evidence, on the trial, that the relator had been in the employment of the complainant, Dorlan, for

some years.

An

The latter had reason to believe that some one in his employment was embezzling his money, and he asked one of his debtors, a Mr. Sutton, to set aside for the payment of his bill certain bank notes which, by his mark, could be identified. They were so marked by Mr. Sutton in the presence of Dorlan. employee of Dorlan's, named Conklin, was sent to collect the bill. It was his habit to make returns to Swan, who had charge of the money. He collected the amount of the bill and divided it with Swan, in pursuance of a proposition made by the latter that he should do so. Conkling was acting under the instructions of his employer, and who, in doing what he did, was aiding in the development of Swan's dishonesty. Swan kept the money, and when charged with the conversion. denied it. The bills marked by Sutton and received by Swan, were found on the latter when arrested.

It was claimed by the relator the conviction was erroneous, for the following reasons, viz:

1. That the Court of Special Sessions

COMPOUND INTEREST.

had no jurisdiction to try the prisoner, a N. Y. SUPREME COURT, GENERAL TERM, trial by jury not having been waived.

2. That the evidence was not sufficient to establish proof of the crime.

3. That the prisoner was twice sentenced.

James Orton, for the relator.

B. K. Phelps, for the people.

Held, That the evidence was sufficient to establish the crime, as the arrangement between Conklin and Swan was sufficient to establish the intent upon the part of the relator to convert the money to his own use, and the possession of the money of his employer was found on the person

of the relator.

FOURTH DEPARTMENT. Young, applt., v. Hill, respt. Decided January, 1876. Compound interest is only recoverable on a special agreement to pay such interest upon interest after the latter has become due.

A

final account made by a party, in which he includes interest on interest on his own bond, is such a special agreement as binds him to pay compound interest,

One F. was for many years agent for one P. who resided in England. In 1817 F. gave his bond to P. for $6,000 at six That a trial by jury was waived by the per cent interest, and from about the prisoner; that prisoner declared in his time he gave it, he held the same in his recognizance by which he was set at lib-possession, with other property of 'P.'s, erty, signed by himself and his surety, all these accounts, he charged himself and annually sent his account to P. In that he elected to be tried by the Court of Special Sessions, and he at no time subwith interest on interest on such $6,000. sequent withdrew his election, then made, $40,000, and plaintiff in the same year In 1871 such bond amounted to nearly and demanded a. trial by jury. Court of Special Sessions had jurisdiction died, and before his death, by himself, he to try the prisoner. The alleged error in the sentence is unavailing.

The

made and sent an account to P., and in it stated:

have been settled and liquidated, and the "The foregoing accounts and amounts balance due to the Rev. R. F. F. Pultney is $70,000, subject to correction for errors and omissions, &c."

In this account the amount of the bond

In pronouncing it the court imposed at irst a fine of $250, but it was immediately and before the prisoner left the Court corrected, and the fine o $100 im posed, which was the maximum allowed by the statute. The relator was recalled for the purpose. The right of the Court at about $40,000 was included. then and there to correct the sentence This action was brought for an acinadvertently pronounced cannot be ques-counting, and on the trial this item, so tioned successfully. The power thus ex- far as it included any compound interest, ercised may be employed, it seems, at any was struck out. time during the term and before the sheriff has proceeded to execute the sentence. Miller v. Finkle, 1 Parker Cr. Rep. 37.

Wm. Rumsey for applt.
Brown & Holden for respt.

Judgment affirmed.

Held, That compound interest is not recoverable except upon a special agree

Opinion by Brady J.; Davis, P. J., and ment to pay interest upon interest. Fall Daniels J., concurring.

v. Hilton, 11 Paige, 228.

That such agreement can be implied from an account stated, and need not be expressly proved in writing, separately

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