able footing. In Bolton v. Corporation of Liverpool, 1 My. & K. 88; Hughes v. Biddulph, 4 Russ. 190, and some other cases of about the same date, the doctrine of protection was expressed in terms which had a tendency to narrow its scope. But in these cases a decision on the general question was not required; and the subsequent case of Pearse v. Pearse, 1 De G. & Sm. 12, clearly showed that the tide had turned. The case of Minet v. Morgan, coming at the end of a series of authorities tending in the same direction, seems to place beyond question the doctrine that whether the solicitor or the client be the party interrogated it is sufficient for the protection of communications that they should pass as professional communications between the party or his predecessor in title and his solicitor acting in a professional capacity, and that it is not necessary that they should be made either during or relating to an actual or even an expected litigation. Thus a simple principle has superseded a number of partial rules and arbitrary distinctions.

THE INNS OF COURT.

Our

Staines Brocket Brocket, Esq., whose death has just been recorded, was, and had been almost from a time to the contrary of which the memory of man runneth not, the Senior Bencher of the Middle Temple. It is now more than sixty years since Mr. Brocket was called to the bar. His first brief must have been held when Eldon was Chancellor and Ellenborough Lord Chief Justice. Those days have long since faded away into the domain of history, and we, with a Selborne for our Lord Chancellor and a Cockburn for our Lord Chief Justice, look back with blank astonishment at "all the oppression that was done" under the joint reigns of John Scott and and Edward Law. Yet there are things which even time is slow to touch. chancery procedure has been reformed, our commonlaw procedure amended. But our inns of court, like the pyramids of Egypt, still hold their own, superior to every change. It is now more than six centuries and a half since John of England pledged himself to his barons, at Runnymede, that common pleas should not thenceforth follow the court, but be held in some certain place. By common consent, both of suitors and lawyers, Westminster was fixed upon as the "certain place" at which common pleas were henceforth to be heard; and so it came about that there gathered together in the metropolis a body of lawyers, who began to settle themselves down about the western gate of the city, as being "the place best suited to their studies, practice and conferences." The necessity of a definite and organised system of legal education soon began to be felt, for those were the days in which books were not, and the pupil had to sit at his master's feet. Where, then, were the students of the law to betake themselves? The universities, older far than the inns of court, were barred against them. The ecclesiastics, who engrossed all education, and who alone were competent to instruct in the "arts" or litteræ humaniores, had as unconquerable an aversion to the common law as has his Holiness Pio Nono to comteism. The old feud between ecclesiastics and lawyers finds its fit expression in the pious wish "that every lawyer may kill a parson and be hanged for it;" nor is it to be wondered that the proud prelates and abbots, upon whose jurisdiction common pleas" encroached, should, from mere jealousy of the newly-established courts at Westminster, have thrown every possible

66

obstacle in the way of their supporters. The lawyers, however, were not to be so easily beaten. When the universities turned a deaf ear they opened a university of their own. "Hostels of Court," or hospitia curia, giant legal caravanserai, were instituted, attached to and dependent upon the Westminster courts, huge unendowed colleges, filled with lawyers of every rank and grade. Of these "Inns," one, called Johnson's Inn, was at Dowgate, another at Fewter's or Fetter's Lane, and a third at Paternoster-row. In and about them lived, taught and transacted business, the counsel learned in the law, until, in the twentieth year of Edward III, the Knights Hospitallers of St. John of Jerusalem, to whom had been granted the forfeited estates of the Templars, demised the buildings, church, gardens, and all the appurtenances that belonged to Templars in London" to certain students of the common law, whom tradition reports to have been originally located in "Thave's Inn," in Holborn.

What a history is that of the Inns of Court! Mr. Brocket was himself the direct successor in power and office of Plowden, the great pleader; of the gentle Sir Walter Raleigh, who dates his poem to Gascoigne from "ye Middle Temple; " of Sir Thomas Overbury; of Sir John Davys, the poet; of John Ford, the dramatist; of Lord Chancellor Clarendon; of Bulstrode Whitelock; of Ireton, Cromwell's son-in-law; of Evelyn, of Lord Keeper Guilford, of Lord Chancellor Somers, of Wycherley, of Shadwell, of Congreve, of Southerne, of Edmund Burke, of Brinsley Sheridan, of William Blackstone, of Dunning Lord Ashburton, of Lord Chancellor Eldon, and of the great Eldon's yet greater brother, Lord Stowell. A noble list of predecessors this, and one to which a man may well look back with pride. It carries our memory to the old days spoken of by Fortescue, the subtle-minded author of the "De laudibus legum Anglia," when

the Temple, pleasantly situated out of the city and the noise thereof, and in the suburbs of London, between the city of Westminster, the place of holding the King's court, and the city of London, for advantage of ready access to the one and plenty of provisions in the other," was frequented by "worthy practisers of the law who lived in peace and quiet." In those, the stormy times of Henry VI, the Inns of Court were the first university of all Europe, and were frequented by "noble scions of the haughtiest families in England." So they flourished on down to the days of Stow himself, who speaks of them as "a whole university of students, practisers, or pleaders and judges of the laws of this realm." Since that period the great university has dwindled away; and Clement's Inn, where Shallow "lay," when he was "a mad fellow" in his youth, has diminished into a mere set of chambers. Templars and Alsatians no longer indulge in deadly conflict at the foot of Ludgate-hill, and the "young Templar" has long ceased to be a hero of romance. The old "disputations" in hall in presence of the benchers have died out; and the sole relic that now remains of the noble legal university of London is the daily dinner in Hall, where the benchers sit solemnly upon the dais, and the students below, impartially divided into fortuitous messes of four, partake of roast leg of mutton, apple pasty, and bread and cheese, washing the fare down with huge draughts of small beer and fiery port wine fresh from the wood.

Like Rip Van Winkle, the Inns of Court have for some decades gone to sleep. Like Rip Van Winkle, they will soon awake and return to their own.

For

more than a hundred years the duties of a bencher have been the purest possible sinecure. The Inns are rich, it is said; but then their large property gives little trouble. The benchers collect their rents, and out of the proceeds first pay the officers and the current expenses of the inn, and then put by the balance in some sound investment; they call deserving students to "the dignity of the outer bar;" and they are good enough to dine in the common hall upon such days as it pleases them. This, the usual routine of their duties, is occasionally varied when a barrister who has sinned against the boni mores of his profession is " mentioned" to the bench of his inn. Fortunately for the honor of an honorable profession, such cases are excessively rare. It is, indeed, difficult to conceive a trusteeship more totally free from care than that exercised by a bencher; and there is some truth in the rough old proverb which defines the happy man as "a bencher of his inn, a fellow of his college, and a warden of his company." Alas! in these days of progress not even the bench itself is sacred. It has been suggested by rough and irreverent critics that the bencher is, or rather ought to be, a sort of college tutor in the laws of England; and that, if he does not lecture himself, he ought to pay a deputy to lecture for him. Strange to say, the bench itself has not taken this "good-natured advice" in bad part. The Inns of Court are, to do them justice, endeavoring to summon back into existence the great law university of London, once the first and most brilliant university of all Europe. Professors are being appointed, lectures are given, scholarships are awarded; and it is perfectly possible that, within a few years, Oxford and Cambridge will be comparatively deserted by aspirants to the long robe, while the twin temples, Lincoln's Inn and its "silent sister" in Holborn will be crowded with students. Reforming the internal administration of the Inns of Court will be, after all, but part of a great movement, in which the codification of our law and the simplification of our present cumbrous system of procedure are parallel steps.-Telegraph.

1. Constitutionality of acts: "local acts:" Code of Procedure. - Chapter 741, Laws 1870, being an act amendatory of the Code of Procedure, cannot in itself be claimed to be a local act, and therefore unconstitutional. Nor is section four of that act (§ 66, Code) local within the definition in The People v. Supervisors of Chatauqua, 43, N. Y. 21, for it is not limited to any portion of the people. Any one who has occasion can avail himself of the jurisdiction conferred. The Code, in many places (as Title V), contains clauses relative to tribunals whose jurisdiction does not extend throughout the State. They are not, therefore, unconstitutional. Ib.

making of the lease, the length of the term, the rent, the assignments, if any, the occupation, the non-payment of rent, the demand and the notice. Ib.

3. Form of notice in dispossession proceedings. — The notice requiring the payment of rent was not irrregular for stating the amount of interest owing upon the rent. The payment required was expressly of the "rent," and the case of Griffin v. Clark, 33 Barb. 46, is conclusive on that point. Ib.

4. Regularity of jury. The justice, under the statute, nominated twelve jurymen. It appeared that they had not been properly summoned. He then nominated twelve others. Only eight attended, and six of these were drawn to compose the jury.

Held, that it was proper to issue a new venire (9 Wend. 231, cited), and there is nothing in the statute which affirmatively requires that the names of all who were summoned should be placed in the box. Ib.

Also, see Former Adjudication.
See Usury.

LEX LOCI CONTRACTUS.

MANDAMUS. See New York City.

MARRIED WOMEN. See Evidence.

NEW YORK CITY.

1. Powers and duties of the dock commissioners and the comptroller: mandamus. - This is an appeal from an order denying a mandamus, to the comptroller, to pay over to the commissioners of docks certain moneys for which a requisition had been made on him. The motion was denied on the ground that the requisition of the commissioners was not accompanied by any certificate or statement of the purposes for which the sum drawn for was required.

Held, that it is proper that the commissioners should state the purposes for which money is required, viz. : If it is for the payment of salaries and employees they should make their requisition of a gross sum for that purpose; in like manner, if for the purchase of land or any other purpose within the law. They are not required to present any further account or vouchers, save the general certificate above stated. No such certificate having been furnished, the order is affirmed. People ex rel. Agnew and others, Commissioners of Docks, v. Green, Comptroller, etc. Opinion by Ingraham, P. J. 2. The commissioners of docks have authority to expend annually upon the piers, docks and bulkheads of the city, under the provisions of the charter, a sum not exceeding $3,000,000, for which the comptroller is directed to issue and sell the bonds to that amount. There is no control over that board, as to the purposes for which the money is to be expended or the amounts to be applied to each purpose, provided they confine their expenditures to the objects specified in the statute. Ib.

3. The learned judge delivering the concurring opinion says: That the several provisions of the charter which place the finances of the city under the control of a single head require that the dock commissioners should present, with their requisitions, the proper vouchers to be audited and approved, as is provided in respect of other claims and accounts in which the corporation is concerned as a debtor. Order below should be affirmed, for the reason that no such vouchers were presented, as well as for the reasons assigned in the opinion of the presiding justice. Ib. Opinion by Davis, J.

NOTES, BILLS, ETC. See Evidence; Usury.
NOTICE. See Landlord and Tenant.

PLEADINGS.

Failure to answer: averments of complaint, when admitted.-Plaintiff brought action for the recovery of interest in and expenditures upon a certain vessel. Defendants demurred and judgment was given against them on the demurrer, and a referee was named to take the account. Upon appeal from the judgment entered on referee's report:

Held, that as to the repairs stated in the complaint, and not denied by defendants, plaintiff is entitled to judgment. As to the profits, if a proper answer had been put in, it might be questionable whether plaintiff could recover the whole amount of his claim from all the defendants, but the averments that all the defendants had received the profits, being admitted, conclude defendants on this point and leave no question to be contested on this reference. Judgment affirmed. Darling v. Brewster et al. Opinion by Ingraham, P. J. See Contracts; Sheriffs.

REAL ESTATE.

RECEIVERS.

Power of court over receivers: order to refer claims. In this case claims are presented by the receiver of the Guardian Savings Institution as against the receiver of the Bowling Green Savings Bank, and the special term ordered the receiver of the Bowling Green bank to enter into an agreement to refer, and in case of refusal, referring it to some person to settle the form of such agreement and to cause the receiver to sign the

same.

Held, that the court has full power over receivers appointed by it; it can control them in the settlement of all claims against the property they hold. They must obey the orders of the court, and in case of refusal they should be removed. It is the duty of the court to compel the settlement of such claims in the most expeditious and least expensive way, and it may order a reference for this purpose with or without the consent of the receiver. No agreement to refer is necessary. The order to refer, to ascertain all the facts, should be made at once. Order so modified. In re Guardians' Savings Institution v. Bowling Green Savings Bank. Opinion by Ingraham, P. J.

REDEMPTION. See Landlord and Tenant.

REFERENCE.

1. Improper conduct of referee will cause report to be set aside.- Appeal from an order made at special term denying a motion to set aside the report of the referee in favor of the plaintiff. It appears that while the cause was pending before the referee, who was a practicing attorney, the plaintiff employed him to prosecute and collect two demands against other parties, on one of which he brought suit, and the other remained in his hands unprosecuted at the time the report was made. The referee had not been the attorney or counsel of the plaintiff prior to his appointment as referee in this action.

Held, that the fact that the referee, while acting in the trial of the cause, as an officer of the court, accepted the retainer of, and became, in respect to other matters, the attorney and counsel of the plaintiff, will, ipso facto, avoid his report as referee. This rule should be inflexible, regardless of the injury, whether he was affected favorably or not in making his report by such retainer. Order reversed and new trial ordered. Stebbins v. Brown. Opinion by Davis, J.

2. Evidence of custom not admitted to vary special agreement: innkeepers: evidence varying written instru

ments. Appeal from a judgment in favor of plaintiff, entered on the report of the referee. (The report of referee was set aside for irregularity on a motion heard concurrently with this appeal. Vide, supra.) Several exceptions were taken as to the admission or rejection of evidence by the referee. The errors complained of are mentioned in the holding of the general term.

Held, that it was not competent to meet defendant's evidence, tending to show an express agreement that his absences should be deducted from the charges for board made him by plaintiff, by proof that it is the custom of hotels not to allow such deductions. The claim of the defendant, as well as his right to the deduction, stood upon the alleged express agreement, and such agreement, if made, could neither be disposed of nor altered by proof of custom. The defendant should also have been allowed to show why the note of a third party, taken by him, while attorney for the plaintiff, was taken in his own name instead of plaintiffs. The defendant claimed an offset in this action for his services as attorney for plaintiff, while plaintiff claimed that such services had been paid for by the note in question, Such proof did not contradict the written instrument. It was competent to show that it was made to defendant for convenience and not as payment for services rendered. Judgment reversed. Stebbins v. Brown. Opinion by Davis, J.

Also, see Receivers.

REVIVOR.

Abatement and revivor. In this case the order of Justice Brady set aside the report of the referee herein, and the judgment entered thereon, and vacated the order of reference and restored the case to the calendar for trial. While the case stood in this position, and pending an appeal from the order, the plaintiff died. Without knowledge of this fact, either on the part of counsel or of the court, the appeal was moved to argument and heard and decided, and the order of Justice Brady was vacated in part, and modified so as to set aside the judgment already entered, and direct the entry of another judgment on the report of the referee. Subsequently it was learned that the plaintiff had deceased as above stated, and, thereafter, an order was made by Justice Barrett at special term, setting aside all proceedings subsequent to the death of the plaintiff, and bringing in the petitioner, who had been appointed administrator of the estate of the deceased, as plaintiff. On appeal from this last named order, Held, that its effect is to bring in the administrator as party plaintiff, and to leave the case as it stood before the hearing at general term, upon the appeal from the order of Justice Brady. The order of Justice Barrett was properly made and should be affirmed. Order affirmed. In re Alker, Public Adm'r, etc., in Marsh v. Soloman. Opinion by Davis, J.

SALES. See Contracts.

SHERIFFS.

1. Sheriffs deeds of real estate: effect of its recitals: assignments of certificates of sale: construction of statutes: evidence. Appeal from judgment in favor of plaintiff entered on the report of the referee. This action was brought to compel the specific performance of a contract for the sale of certain lots in the city of New York. The defendant, the purchaser, refused to accept the conveyance on three grounds: 1st. That there was no legal evidence, by record or otherwise, that any writ of fieri facias had been issued to the

sheriff upon the judgment under which the premises had been sold; 2d. That the sheriff's deed to Wisewall (the plaintiff's grantor), was invalid, because executed before Wisewall had caused the assignments to herself and to other intermediate assignees, to be acknowledged or proved, and filed in accordance with the provisions of chapter 189 of the laws of 1835; 3d. That the sheriff acted without authority of law in executing the deed to Wisewall, inasmuch as it appeared by the certificate of sale, that he sold the premises to Robert and Underhill, there being no legal evidence proving any assignment of the certificate of sale from Robert and Underhill to Wisewall. It was admitted that plaintiff's title appeared to be perfect on the records, except for the defects alleged above. The sheriff, who made the sale and executed the deed in the year 1835, was produced as a witness before the referee. The sheriff's deed was also produced. It contained recitals of the fi. fa. of the sale, and of the various assignments.

Held, that though the recitals of the sheriff's deed may not be sufficient proof on that subject (4 Rob. 35; 7 Cow. 88, cited), yet as in this case, there was direct and affirmative proof by the sheriff, that the recited writ was issued and delivered to him, and that he made the sale under it, and this proof was corroborated by the prodution of the official entries of the delivery of the execution made contemporaneously in the register of the sheriff, this proof does not fall within the cases cited. The neglect of the sheriff to return the execution, and its probable loss through the carelessness of his deputy, ought not to be held to affect the rights acquired by a purchaser at a sale regularly made under the writ. This would be to put purchasers at sheriffs' sales, at the mercy of the subsequent negligence of that officer. The first objection is not well taken.

The other objections relate to the failure to properly prove and file the assignments of the certificates of sale. They were, with one exception, made before the passage of the act of 1835. That act took effect May 22, and the deed is dated May 28, 1835. In any case the recital of the assignments in the sheriff's deed and the making of it to Wisewall is a waiver on his part of his right to insist on the proof and filing. That act was for the protection of sheriffs, and the sheriff could waive it, and if he did so and conveyed to an actual assignee, the title of his grantee would not be effected by the omission of the proof and filing. 45 N. Y. 368; 4 Denio, 484, and other cases cited. The People v. Rawson, 2 Comst. 490, does not conflict with this rule. The substantial contents of the assignment were sufficiently proved by the recitals of the deed (45 N. Y. 368, cited), and their existence before its execution, and their subsequent loss and destruction were properly shown by the testimony of the sheriff. Judgment affirmed. Phillips v. Schiffer. Opinion by Davis, J.

SPECIFIC PERFORMANCE. See Contracts.

SUMMARY PROCEEDINGS.

Pendency of another action when not a bar to proceeding in dispossession. — Appeal from an order sustaining a demurrer to the complaint, also from an order granting defendant an extra allowance. The action was commenced to abate dispossession proceedings commenced against plaintiffs by defendant, and to obtain an injunction against such proceedings in future. The plaintiff's demand this relief on the ground of the pendency of action of ejectment, against them by

defendant, in the superior court, for the recovery of the same property. The superior court, at special term (Stuyvesant v. Grissler, 12 Abb. N. S. 6), held, that the lease remained in existence and Stuyvesant could only re-enter as landlord, and that those actions must fail.

Held, that the mere continuance of the actions in the superior court furnish no sufficient reason for the injunction sought. Stuyvesant cannot succeed in the dispossession proceedings without establishing the relation of landlord and tenant as existing between the parties. If he establishes that he has a right to the remedy. Grissler et al. v. Stuyvesant.

Also, see Landlord and Tenant.
SURRENDER.

See Former Adjudication.

USURY.

Bills, notes, etc.: lex loci contractus: conflict of laws: cases reviewed. On appeal from judgment in favor of defendant. This action is brought by the plaintiff as holder and owner to recover upon certain drafts dated at Boston, drawn by one Gould, to his own order, and indorsed by him and another on defendant. The drafts were accepted by defendant payable in the city of New York. They were negotiated in Boston and sold to plaintiff at a rate of discount usurious in the State of New York, but allowed by the laws of Massachusetts. Several exceptions as to the admissibility of testimony were taken below, but the main exception is the refusal to direct a verdict for the plaintiff, on the ground that the validity of the acceptances were to be determined by the laws of Massachusetts, and the laws of that State preclude the defense of usury. The jury found the drafts to be accommodation paper.

Held, that in this State it has been settled by repeated decisions that the law of the State where the contract is dated and is to be performed is to govern as to its construction and validity. 5 N. Y. 178; 6 id. 124; 13 id. 290; 15 id. 291; 19 id. 436; 22 id. 472; 30 id. 259; 45 id. 113, cited. The plaintiff relies upon the cases of Balme v. Wombough, 38 Barb. 352; Bank of Georgia v. Lewin, 45 id. 340; also, 6 Paige, 634; 7 id. 632. The principle held in these cases is that parties might agree upon a rate of interest in the State where the contract was made, if in accordance with the laws of that State. The true rule to be drawn from all these cases is that where the note is dated and made payable in one State and taken out of that State into another for negotiation or sale, it is still to be considered as a contract made subject to the laws of the State where dated, and made payable. But where the note is made in one State payable in another State, negotiated and sold in the State where made, at a rate of interest allowed by the laws of the State where made and sold, then the same is to be governed by the laws of that State and not of the State where it is payable. The rule of lex loci contractus seems the better and more equitable one in all cases of this character, but the remedy is with the court of appeals and not with the other courts. New trial grauted. Hildreth v. Shepherd. Opinion by Ingraham, P. J.

WILLS.

Probate of wills: conflict of testimony. - On appeal from the decree refusing to admit to probate the will of Mathew McBride. The probate was contested on the grounds of mental incompetency and undue influence. The testimony of the subscribing witnesses and of the counsel who drew the will were strongly in favor of supporting it. The testimony was generally conflicting.

1. To recover moneys paid for liquors, etc. - The defendant was an innkeeper, the plaintiff a man of wealth who frequented defendant's inn for the purpose of a continual debauch of several weeks, but not as a guest. During this period plaintiff incurred large obligations for wines, liquors and money lent him. In a sober interval he gave defendant various checks to pay his indebtedness, which defendant used and applied on his account.

Held, that it appearing that plaintiff gave the checks knowing for what purpose they were given, and while sober, that an action will not lie to recover the amount thus paid. Hayes v. Huffstater. Opinion by E. D. Smith, J.

2. Injunction: municipal corporation. — An action I will not lie nor an injunction be sustained at the instance of a resident in, or citizen or tax payer of a municipal corporation against said city or the authorities thereof, to restrain their action in reference to the sale of property of the corporation, where said citizen has no private right or interest affected. He must have some individual interest distinct from that of citizens and tax payers generally. Tift v. City of Buffalo. Opinion by E. D. Smith, J.

ASSIGNEE.

Power of attorney. An agent under a full power of attorney to sell or lease lands, and to demand all moneys due on contracts of sale, and to prosecute suits in respect to such, and employ attorneys as should be requisite, assigned a right of action for trespass, which right was pre-existing at the time of the assignment. In an action by the assignee he was nonsuited upon the ground that the power of attorney did not authorize an assignment of the right of action.

Held, that powers of attorney are to be construed strictly. The agent had the right to prosecute and settle such cause of action, but had no power to assign the same. Judgment affirmed. Girger v. Bowles. Opinion by E. D. Smith, J.

BONDING CERTIORARI.

It is provided by law that, on the application of not less than twelve freeholders of any town in certain counties in this State, near and along the line of the Midland railroad, to the county judge of such county, or the supreme court, etc., not more than three commissioners, residents and freeholders of said town, may be appointed for the purpose of issuing the bonds of said towns, in aid of the said Midland railroad or its branches. The commissioners were not authorized to issue said bonds or borrow any sum of money on the credit of said town until the consent, in writing, of a majority of the tax payers of the town, representing a majority of the taxable property appearing on the last assessment roll of said town, had been obtained. The said consents must be proved and

acknowledged in the same manner as conveyances of real estate are required to be acknowledged. The consents were required to state the amount of money authorized to be raised. The fact that a consent of a majority of the tax payers representing a majority of the taxable property has been obtained, and acknowledged or proved, should be proved by the affidavit, in writing, of the assessors, etc., indorsed on such consent, and such consents are to be filed. By an act passed in 1867, the directors of the Midland Railroad Company were authorized to construct a branch road through certain counties, and among others the county of Cayuga, to the city of Auburn, whenever, in their judgment, it should be for the interest of said company so to do, and the towns along the line of said branch are interested in the construction thereof should have authority to issue bonds in the aid of the construction of said road, in the manner above provided. The branch road was to be constructed in such manner and on such a route as the directors of said Midland Railroad Company deem most feasible for the interest of said company.

Upon the application of the required number of tax payers of the town of Scipio, in Cayuga county, commissioners were appointed to issue the bonds of said town, to the extent of $30,000. A paper purporting to be the consent of the tax payers of said town was filed in said county, and indorsed on it was an affidavit by the assessors of said town, stating that on the 26th of August, 1871, they met at the town of Scipio, and had present the last preceding assessment-roll of said town, together with the consents, and that after due examination, computation and deliberation, and from their own knowledge of the persons whose names were signed to said consent, they adjudged that it was signed by the requisite number, representing the requisite amount of taxable property, and that the signatures had been duly proved. These matters were brought up on a certiorari. The defendant first objects that there is no proper relator; that a tax payer has no such status as entitles him to bring a certiorari.

Held (1), That a certiorari in this case is proper, the relator cannot restrain the collection of the tax. A certiorari is the only remedy he has. That the town has no interest in the proceedings to bond. It is not bound to pay the bonds. By the bonding law the tax payer must pay the bonds, and he must be the proper relator. If the town only could bring the certiorari, the tax payer would be remediless. To authorize a suit to be brought in the name of a town, permission must be given by a majority of the votes of a town meeting; and as a majority of the tax payers must consent to bond, they would not consent to institute proceedings to set aside the bonds. (2). That the writ in equity is a bar to the remedy by certiorari. (3). That a tax payer, not having the power to maintain an action in equity to restrain the collection of a tax, or to set aside a municipal act affecting all the tax payers alike, the suit in equity is no bar to the certiorari. The relator's first point is, that the assessors had no jurisdiction to make the affidavit on the consent, as it does not appear that the Midland road is located in the town of Scipio, or in the county of Cayuga.

Held, that the evidence to be given before the assessors, to give them jurisdiction, is what is required by the statute, and no other or further evidence can be required. The statute requires no proof that the Midland road is incorporated or lies in the town of Scipio. Under the statute the assessors have no power to ad