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a procureur-général, two deputies, and two barristers known as avocats généraux, public officers appointed and paid by the government. Barristers and solicitors are alone heard, and the costs of the most trifling matter amount to £12 exclusive of the "honorarium" of the avocat. There are twenty-eight courts of appeal in France. The court of cassation has a chief, three presidents of the chamber, fifty councillors, one procureur-général, and six avocats généraux. The practice in this court is confined entirely to one class of professional men, avocats speciaux, who combine the functions of solicitors and barristers. This court is located at Paris.

Now, as to the tribunals of commerce. They number 218. No public officer is attached to these courts, but for some years past it has been contemplated to appoint to each court a procureur de la république and a deputy, selected from the bar, in order to secure as nearly as possible the due administration of law, which the tribunals of commerce, as at present constituted, do not sufficiently consider. Each tribunal has at least one president, two judges, and two assessors (juges suppléants); and the largest court comprises a president, fourteen judges and fourteen assessors. They all serve gratuitously, so that only rich merchants can aspire to the position. The president and the judges are appointed for two years; they may be once reelected, and then they must be replaced by others, and can only be elected again after a lapse of one year.

In practice, this system has many drawbacks, the principal being that considerable practical experience is required to enable a judge to perform his duties efficiently, but he has no sooner acquired some knowledge of his business than his term of office expires. In England, even the advantage arising from constant service for two years would not be realized, inasmuch as the members of the tribunal are to be a fluctuating body. The French public has felt this defect, and in the towns in the provinces more particularly, the choice of the electors always falls upon the same persons, who consequently obtain a monopoly of the judicial office, which they do not fail to turn to their own advantage. It is customary, however, before appointing a man a commercial judge to appoint him for two, four or even six years an assessor, so that he has attained a certain amount of experience by the time he becomes a judge. The president is always chosen from the oldest judges, and consequently he will have sat five or six years as an assessor and as judge before being raised to the presidential chair.

The judges of the tribunals of commerce being, as we have said, chosen from the most eminent men of the commercial class, comprise directors of the Compagnies Anonymes, stock brokers, and experienced sea captains. They are elected at a meeting of the leading merchants, called and presided over by the prefect, or sub-prefect, or some one delegated by them, assisted by the two oldest and the two youngest electors present. The number of the electors ought to be one-tenth of the recognized merchants, and cannot be less than fifty nor more than 1,000, except for the department of the Seine, where the limit is 3,000. It will thus be seen that the electoral list is very limited, since only one in ten can be an elector. Thus, in the country particularly, a true commercial aristocracy is created altogether contrary to the prevailing idea of universal suffrage. And, besides this, the list of eligible merchants is revised every year by a commission composed of the president of the tribunal, and one

judge, the president of the chamber of commerce, and three councillors-general, the president of the counseil de prud-hommes, and the maire of the town, so that it is the candidates of the future, so to say, who choose their electors, because, this same list serves for the election of members of the chambers of commerce.

This system is objectionable, moreover, in another respect, namely, that the merchants who are not within the class of notables, are under the impression that the judges are disposed to favor the class which elects them. And, further, it is felt that an evil attending the election of merchants to serve as judges is that their judicial opinion must often be in opposition to their personal interests as merchants, and thus they are exposed to suspicion of bias, if one of the parties before them happens to be a customer. The necessary conclusion is that, if an impartial commercial tribunal is to be constituted, only retired merchants should be appointed judges, and, whenever possible, those should be chosen who had carried on business in a town other than that in which they are to act as judges.

It has been painfully discovered by those who have to submit to tribunals of commerce, that the law is a difficult science; that it takes a long time to acquire a knowledge of the principles and customs which enables a judge to decide satisfactorily disputes arising out of transactions with foreigners, as well as among natives. It is obvious that a merchant engaged actively in business cannot acquire this knowledge, and consequently the judges of the tribunals of commerce are generally incompetent, and the courts of appeal have three times as much work to do in reviewing the decisions of tribunals of commerce as they have in reviewing those of the civil tribunals. It is for this reason that it has been contemplated, as we have stated, to appoint a public officer in connection with the tribunals to explain points of law, but the project has fallen through, owing to the differences existing-described to us as “antagonism"-between the traders and the judges. Another result of the incompetence of the judges is that almost every case presenting any difficulty is referred by the tribunals to experts or arbitrators. Such references increase enormously the costs, and make the proceedings more lengthy than they are before the civil tribunals, so that economy and dispatch, the two principal considerations in establishing tribunals of commerce, are sacrificed. References to arbitrators and experts have another drawback; out of every hundred awards, ninety-six are confirmed, whence it follows that the parties have their causes decided by a single judge, the arbitrator, instead of by the three judges of the tribunal, as intended by law. These referees, moreover, refuse to hear a case until they have been paid, and the suitor who pays the most, and pays it promptly, is the more likely to induce the arbitrator to decide in his favor. Such a practice is entirely opposed to the spirit of the law, and it is a consequence of the indisposition to work and the incompetency of the unpaid judges.

Solicitors and barristers are not allowed to practice in tribunals of commerce; the suitors must appear in person, or by an authorized agent, as before the justices of the peace. The process is by summons, the parties are heard, and the judge delivers judgment; the costs ought, therefore, to be the same as in the court of the justices. But the causes which the tribunals of commerce have to try are generally considerably more important, and the suitors have found it necessary that they should be assisted by an adviser. The employ

ment of professional advisers not being obligatory, they were not usually engaged, and thus neither the suitors nor the tribunal had any guarantee that those who were engaged were competent. That is the reason why of late a practice has sprung up of allowing a certain number of barristers (avocats speciaux) to practice in the tribunals, and they are recognized as attached to the jurisdiction under the name of avocats-agrées, or advocate-attorneys. This practice has become so general that the position of the agrées is regarded as a privileged office, and it is difficult to obtain. Suitors very rarely appear in person, and more rarely still are they assisted by any adviser other than an agrée, these latter only having "the ear of the court."

The simplicity of the procedure has its disadvantages, as a party is apt to be taken by surprise, no notice to the other side of the documents to be used being given, and it being impossible always to meet Before the the case which may be raised in answer. ordinary civil tribunals, on the other hand, no document can be put in evidence unless notice has been given to the other side at least three days beforehand; so that, when the cause is heard, both sides are as nearly as possible aware of the case which is to be made and to be met. The necessity of rapid thought and action on the part of the avocats-agrées in the tribunals of commerce makes their profession almost a speciality, and advocates, who are strange to the tribunal of commerce, however able, find a difficulty in contending with them. To this is owing the maintenance of the privileged class of avocats-agrées, notwithstanding the constant complaints of their excessive fees, and that their functions are opposed to the intentions of the legislature. A claim for a debt of £60 before a tribunal of commerce, entails a cost of £10 or £15 in Paris, and £6 or £8 in the provinces.

The jurisdiction of these tribunals embraces all disputes between merchants, arising out of their business, and all disputes between other persons in matters in which the law declares to be commercial- actes de commerce. It also decides bankruptcy cases, and exercises a surveillance over trustees in bankruptcy. In every bankruptcy the tribunal of commerce appoints one or more trustees, and a judge, whose business it is to look after the management of the estate by the trustee, and to preside at all meetings of creditors. The juges-commissaires, as they are called, act with great advantage to both the debtor and his creditors; they prevent the abuse of his office by the trustee and irregularity in the management of the estate, and assist the debtor in obtaining a settlement of his affairs, so that much of the delay and loss usually attendant upon a failure is obviated, and fraudulent preferences are in a large degree avoided.

This is one

of the most useful functions of a judge of a tribunal of commerce.

In the districts in which there are no tribunals of commerce, the ordinary civil tribunals appoint one or two days a week on which they take commercial cases, adopting the procedure of the tribunals of commerce, and applying commercial law. In this manner they have all the advantages, and none of the disadvantages, attendant upon the tribunals of commerce; very seldom is a cause referred; the judges are paid and do their work- they are impartial, or believed to be so, because they have no interests in common with the suitors, either commercially or with a view to the elections. They are better educated than the commercial judges, and, which is more important, as they are

continually required to deal with commercial causes, they at length become as familiar with commercial customs as the merchants themselves. And lastly, the costs in these tribunals are much less than in the tribunals of commerce.

It follows from all that we have said that the idea of diminishing the cost of the trial of commercial causes, and accelerating such trials, by the establishment of tribunals of commerce, can only be realized by appointing barristers or solicitors as judges, and admiting to plead before them barristers and solicitors, or a class which might in time be recognized as prototypes of the avocats-agrées. The avocat, under whose guidance this article has been written, concludes: " Que le négociant reste à son comptoir, le magistrat sur son siège, et l'avocat à la barre -advice in which we thoroughly concur. - Law Times.

THE STUDY FOR YOUNG LAWYERS. Judge Sharswood, in speaking of the studies for a young man just admitted to the bar, says:

"He cannot be faithful to his clients unless he continues to be a hard student of the learning of his profession. Not merely that he should thoroughly investigate the law applicable to every case which may be intrusted to him, though that, besides its paramount necessity to enable him to meet the responsibility he has assumed to that particular client, will be the subsidiary means of important progress in his professional acquisitions. 'Let any person,' says Mr. Preston, 'study one or two heads of the law fully and minutely, and he will have laid the foundation or acquired the aptitude for comprehending other heads of the law.' But, besides this, he should pursue the systematic study of his profession upon some well-matured plan. When admitted to the bar a young man has just begun, not finished, his legal education. If he has mastered some of the most general elementary principles, and has acquired a taste for the study, it is as much as can be expected from his clerkship. There are few young men who come to the bar who cannot find ample time, in the first five or seven years of their novitiate, to devote to a complete acquisition of the science they profess, if they truly feel the need of it and resolve to attain it. The danger is great that, from a faulty preparation — from not being made to see and appreciate the depth, extent and variety of the knowledge they are to seekthey will mistake the smattering they have acquired for profound attainments. The anxiety of the young lawyer is a natural one, at once to get business-as much business as he can. Throwing aside his books, he resorts to the many means at hand of gaining notoriety and attracting public attention, with a view of bringing clients to his office. Such an one, in time, never fails to learn much of his mistakes, but at a sad expense of character, feeling, and conscience. He at last finds that in law, as in every branch of knowledge, a little learning is a dangerous thing;' that what he does not know falsifies often, in its actual application, that which he supposed he certainly did know; and after the most valuable portion of his life has been fritted away upon objects unworthy of his ambition, he is too apt to conclude that it is now too late to redeem his time; he finds that he has lost all relish for systematic study, and when he is driven to the investigation of particular questions, is confounded and embarrassed, unable to thread his way through the mazes of authorities, to reconcile apparently conflicting cases, or deduce any

satisfactory conclusion from them. In short, he has no greater aptitude, accuracy, and discrimination than when he set out in the beginning of his studies. No better advice can be given to a young practitioner than to confine himself generally to his office and books, even if this should require self-denial and privation; to map out for himself a course of regular studies, more or less extended, according to circumstances; to aim at mastering the works of the great luminaries of the science, Coke, Fearne, Preston, Powell, Sugden, and others, not forgetting the maxim melius est petere foulis quam sectari reviedos, and to investigate for himself the most important and interesting questions by an examination and research of the original authorities. He that researcheth deepest seeth the amiable and admirable secrets of the law;' and thus may the student proceed in his reading with alacrity and set upon and know how to work into with delight these rough mines of hidden treasure.'"

COMMISSION OF APPEALS ABSTRACT.*

ASSESSMENT ROLL-SUPERVISORS ASSESSMENT.

1. The duties imposed by the tax laws upon boards of supervisors, of examining the assessment rolls, and equalizing the valuation of the real estate in the different towns and wards (1 R. S. 395, § 31), and of estimating and setting down in the assessment rolls the respective sums to be paid as taxes (§ 33) are quasi judicial and cannot be delegated, but must be performed by the boards as such; after the different questions, as to what changes, if any, are to be made in the valuations, and those upon which depend the amount of money to be raised are determined, the insertion of what is necessary in the rolls to carry out such determinations is clerical, but the rolls must be completed before the warrants required to be issued (§ 36) are annexed thereto. Bellinger v. Gray, impleaded. Opinion by Lott, Ch. C., and Reynolds, C.

2. Where it was determined by the board of supervisors to increase the valuation of the real estate of a town, by adding a certain per cent thereto, but the warrant was attached to the assessment roll before it was completed, by inserting the increased valuation and extending the tax, and it was delivered thus incomplete to the supervisor of the town, who, after the board adjourned, filled up the blank columns in the roll and delivered it with the warrant to the collector, with directions to collect the tax:

Held, that the assessment roll and warrant were void, and the supervisor was liable for trespass for property seized thereunder, although the roll was completed in accordance with the determination of the board. Ib.

3. Plaintiff placed before the collector upon his counter, in a package, the amount of a tax against him, but forbid his taking it, and notified him that he would be held responsible therefor, claiming that the warrant was defective. The collector took the package.

Held, that this was not a voluntary payment, and did not estop plaintiff from disputing the legality of the warrant. Ib.

4. An assessment against an individual for "circulation notes and profits," is illegal, and such an assess

The abstract of Prouty v. Swift, ante, p. 152, was incorrect in so far as it stated that the court held that "the arrangement was one of copartnership." The arrangement was not one of copartnership. Will our subscribers note the correction ?-ED. A. L. J.

ment appearing on the roll, the warrant was void on its face. (Reynolds, C.) Ib.

5. An assessment not verified by one of the assessors, and not accompanied by a certificate of the other assessors stating the cause of such omission (1 R. S. 394, § 30), is defective, and the omission to properly verify it is fatal to its validity. (Reynolds, C.) Ib.

6. Upon a tax warrant issued by the board of supervisors of Herkimer county, an impression was made with a die, upon which was engraved the words "Seal, Herkimer County Board of Supervisors." No other seal was attached. Held, that the warrant was imperfectly sealed. (Reynolds, C.) Ib.

CONTRACT.

Damages.-Plaintiff conveyed to defendant a certain piece of land, with the right of ingress and egress to and from said land to plaintiff's land. In consideration thereof defendant made a parol agreement to deliver to plaintiff for temporary safe keeping all the stock transported on its road eastward from the Niagara river. Defendant performed its agreement for a little more than a year and then repudiated it. Plaintiff brought an action to recover the land conveyed.

Held, that plaintiff was entitled to recover the value of the land, deducting therefrom the profits he has realized from the business while defendant performed his part of the agreement. As the profits received were part of the consideration, a tender of them by plaintiff to defendant was not necessary before bringing the suit. Day v. N. Y. C. R. R. Co. Opinion by Earl, C.

FRAUDULENT ASSIGNMENT — JURISDICTION.

1. Action to set aside an assignment of a bond and mortgage as fraudulent. Plaintiff brought an action on a promissory note against D, a non-resident. An attachment was issued to Tompkins county and served on one M, to attach a debt claimed to be due from him to D, and secured by bond and mortgage. Plaintiff obtained judgment, issued execution thereon to the sheriff of Tompkins county, which is still in his hands unreturned. After the giving of the note, and before the commencement of the suit, D assigned the bond and mortgage to J. This assignment is claimed to be without consideration and fraudulent as to creditors. Held, that the fraudulent assignment of a bond and mortgage by a debtor does not prevent his creditor from acquiring a lien by attachment; and where such a lien has been acquired by the service of the attachment, with the proper notice, upon the obligor and mortgagor, the attachment creditor, after perfecting judgment and issuing execution, may maintain au equitable action in his own name to enforce the lien, by setting aside the fraudulent transfer. Mech. & Tr. B'k of Jersey City v. Dakin et al.* Opinion by Hunt, C. 2. A court of equity has an original jurisdiction, independent of the statute in relation to attachments, to take cognizance of actions of this character. Ib.

NUISANCE.

Notice. In an action to recover damages for injuries to plaintiff's road-bed, the complaint alleged that an embankment and bridge built and constructed for defendant's railroad, dammed the stream, so as to produce the flood and injury. It appeared that the bridge and embankment had been erected before the con

*This case is directly in conflict with Thurber v. Black, 50 N. Y. 80. We are advised that the attention of the commission was not called to the latter case.-ED.

veyance of the road to defendant, by a previous owner, who continued it as it was at the time it acquired title. Held, that in order to maintain an action for damages resulting from the nuisance, it was necessary to show that before the commencement of the action defendant was notified or had knowledge of its existence; but proof of a request to abate it was not necessary. The Conhocton Stone Road v. Buff., N. Y. & Erie R. R. Co. Opinion by Lott, Ch. C.

REWARD.

In an action to recover a reward offered for the recovery or information leading to the recovery of a stray

mare:

Held, that the person claiming the reward, to entitle him to it, must show a rendition of the services required, after a knowledge of, and with a view of obtaining the offered reward. One who finds the property and advertises the same, without knowledge of the offered reward, or who gives information of its whereabouts, which information does not, in fact, lead to its recovery, is not entitled to the reward. Howland v. Lounds et al. Opinion by Gray and Reynolds, CC.

STATUTE OF FRAUDS.

Action for an alleged breach of a parol contract for the sale and delivery of five cargoes of brick at Brooklyn, for $10 per thousand. Plaintiff was to provide a suitable place for prompt delivery. Defendant sent a cargo which arrived July 13, 1866. On the morning of the 14th, before any were delivered, defendant served a notice, directed to plaintiff Harteau, on the person who was giving directions as to where the bricks should be unloaded, to the effect, that if plaintiff did not discharge the bricks on the 14th the agreement would be considered broken, and defendant would not send another cargo. Harteau did not receive this notice until after the delivery of a portion of the bricks. Only a portion of the bricks were discharged on the 14th, and the day after defendant withdrew his vessel and refused to deliver any more of the bricks. Defendant claimed the contract was void under the statute of frauds.

Held, that the partial delivery of the bricks made the contract valid, and the notice not having been received by the plaintiffs until after the delivery was commenced, it did not modify or affect the contract or qualify the delivery; and, therefore, a non-compliance by plaintiffs with the terms of the notice was no defense. Harteau et al. v. Gardner. Opinion by Earl, C.

GENERAL TERM ABSTRACT.

FOURTH DEPARTMENT, JUNE TERM, 1873.

COMMON CARRIER.

One N delivered to the New York Central R. R. Co., at Victor, in this State, a box of goods, owned by and addressed to the plaintiff Noah Root, at Burr Oak, Branch county, Mich. The goods were never delivered to plaintiff, and this action was brought for their value. Burr Oak is situated on the line of the M. S. & N. I. R. R. Co., which joins defendant's road at Detroit. On the trial, a book purporting to belong to the defendant and made by one Peters, a freight agent or clerk of defendant, was produced, containing an entry as follows, viz.: Car 303. Apr. 21, 1866. Noah Root, Branch county, Mich. "One box goods." proved by one C, who was a clerk, etc., of the M. S. & N. I. R. R. Co., that the defendant brought its freight

It was

across the river at Detroit, and delivered it to the M. S. & N. I. R. R. Co. That one P had charge of defendant's freight, books, etc., and that the book produced was one of defendant's freight books; that he was not positive it was in P's handwriting. It was also proved by one D, an employee of the M. S. & N. I. R. R. Co., that he never received the goods, that it was his duty to receive them, and that the defendant had made claim against the M. S. & N. I. Co. for back freight on said goods, and that the M. S. Co. had refused to pay, etc. There was judgment for the plaintiff.

Held, (1) That owing to the difficulty of forwarders fastening the liability of the loss of goods on common carriers, etc., the rules in reference to the admission of evidence must be modified. That evidence of the course of business adopted by connecting lines of railway must be received as competent evidence on the question of the receipt or delivery of property by the one to the other. That books kept by the agents of a company, in which are entered the receipt and delivery of property to and by such company in its business, are prima facie evidence of the facts and entries therein stated. It is not necessary to prove that the entry is in the handwriting of any agent of the company, provided there is enough shown to prove the book used by the company in its business and that the entries are made by an authorized agent. (2) That the book in this action was properly received, and proved the receipt of the property by defendant. (3) That defendant having appeared and answered, it was not necessary for plaintiff to prove its incorporation. If it was necessary, the production of the statutes of Canada was sufficient to prove defendant's incorporation. Judgment affirmed. Root v. The Great Western R. R. Co. of Canada. Opinion by Mullin, P. J.

EJECTMENT.

1. Guardian in socage. One S, an infant, was entitled to the possession of certain premises from and after July 1, 1870. This action was commenced in September, 1870, for the possession, etc., by a guardian ad litem of the infant. The infant's mother is still alive.

Held, (1) That this action could only be maintained by a guardian in socage or general guardian; a guardian ad litem was not a proper party plaintiff. (2) That the objection to plaintiff's capacity to sue should have been taken by demurrer. The defect was apparent on the face of the complaint, and not having demurred, defendant waived all objection. Judgment reversed. Leaton by Guardian ad litem v. Davis. Opinion by Mullin, P. J.

2. There was no count in the complaint for mesne profits.

Held, that defendant not having objected to the evidence as to value of the mesne profits, etc., waived all objections to the defect in the complaint. Ib.

3. The referee allowed plaintiff the value of certain apples taken by defendant from the premises after the 1st July, 1870, and after said infant's right to the premises accrued.

Held error. No such measure of damages allowed on ejectment. Defendant's right of possession was terminated by the death of plaintiff's ancestor. Held, that defendant. was not entitled to notice to quit. Ib.

INFANT.

Waste: damages. - One T died, seized of certain real estate. He left him surviving, a widow and the

plaintiff, his heir at law. He also left certain real estate which was heavily timbered. The defendant was appointed administrator of the said T, and the widow, under the statute, was guardian in socage of the infant. The widow, as such guardian, gave defendant permission to, and he did cut and sell the timber on said land. In 1867 the widow was appointed general guardian of said infant and had a settlement with defendant and gave him a release in full for all claims of said infant against him. This action was brought by plaintiff, on attaining his majority, for damages for the cutting and carrying away of said timber. The defendant's defense is the release by the widow, and a confirmation

of such release and settlement with plaintiff on his arriving of age. The evidence as to the license to cut and sell the timber was rejected as was the release by the widow to defendant. There was a judgment for the plaintiff.

Held, (1) That the offer to prove by parol a license from the widow as guardian to cut the timber was properly rejected. The guardian had no authority to give such a license, and being by parol, was void, if given. (2) That the release was properly rejected. Defendant paid nothing for it. It does not appear that defendant had any claim against plaintiff at the time the release was executed and which defendant pretended to release, that could furnish a consideration for the release of defendant. It was incumbent on defendant to prove the facts necessary to make the release operative against the plaintiff. That the evidence to prove a ratification of the release, etc., by plaintiff, was too loose and uncertain. Judgment affirmed. Torrey v. Black. Opinion by Mullin, P. J.

LEASE.

Subletting: forfeiture. — Plaintiff leased on the 30th December, 1863, certain premises to S. & Co., for ten years, from April 1, 1863, and, in the lease, S. & Co. were prohibited from reletting or subletting said premises or any part thereof, without the consent of plaintiff, in writing, etc. S. & Co., on the 7th day of September, 1867, sublet a portion of said premises to one B. for two years and seven months, and on such lease S. & Co. procured plaintiff to indorse his consent to such subletting. In such sublease was a clause, that on giving two months' notice, such sublessee could extend such lease from the expiration of the said two years and seven months for four years, be assigned to P. & Co. P. & Co. afterward assigned to defendant, and defendant gave the two months' notice required in order to continue said lease for the four years longer. Plaintiff brings this action of ejectment against the defendant to recover the possession of said premises on the ground that the lease is forfeited, etc. Plaintiff insists that the clause giving the lessee in the sublease from S. & Co. the privilege, on giving notice, to extend the term four years, etc., was not in the lease when he consented to it, but was inserted by S. & Co. afterward, and was in fraud of his rights and void, and that the lease was thereby forfeited, etc. The four years in addition to the two years and seven months named in said sublease, was the whole of S. & Co.'s time under their lease from plaintiff in the premises covered by it.

On the trial the jury, in answer to specific questions, found that when plaintiff consented to the subletting by S. & Co. the said sublease did not contain the clause granting the privilege to extend four years. That it was inserted afterward without plaintiff's

knowledge or consent, etc. That plaintiff did not know of the existence of this clause until January, 1870. There was judgment for the plaintiff.

Held, (1) That defendant had rights as a bona fide holder, but as the question was not raised on the trial, it is too late to raise it here. (2) That the lease of S. & Co. to B., after notice therein required was given, was for the whole interest of S. & Co. in the premises covered by it, and was, in law, an assignment of S. & Co.'s interest and not a subletting, and being an assignment was not a forfeiture. This question was not raised on the trial, it was waived and is too late to raise it now. Judgment affirmed. Collins v. Hasbrouck. Mullin, P. J.

PAUPERS.

1. Practice. Amasa Lamb was a pauper, and the defendant is his son. An order was made by the court of sessions of Cayuga county requiring defendant to pay $5 per week for the support of said pauper. The defendant, with the approval of the superintendent of the poor of said county, took said pauper to his own house and supported him there for nearly two years. Said Amasa then left defendant's house and went into the town of Sterling in said county, and was there a town charge until he died. Said Amasa left defendant's house without any just cause, and defendant was always ready and willing to receive him back.

This action was brought to recover under said order of the court of sessions $5 per week for Amasa's support for the time he remained in the town of Sterling till he died.

Held, (1) That although the order of sessions required the payment of $5 per week for the support of said pauper, such payment was conditional on the neglect or refusal of defendant to support said pauper in such place and manner as approved by the overseer or superintendent of the poor of said county. That as defendant was always ready and willing to receive back and support said pauper after he had left, he was not liable for his support nor for the weekly sum allowed by said order of the court of sessions. Converse v. McArthur, 17 Barb. 410. (2) The court of sessions can only prescribe the penalty for neglect to support, not the place or the manner in which such pauper shall be supported. (3) That after defendant had received said pauper into his house pursuant to said order, and the pauper had left without the fault of defendant, and defendant stood ready and willing to receive him back, no notice of such willingness was necessary to the overseer. They were bound to return such pauper or support him. Judgment affirmed. Duel v. Lamb. Opinion by Mullin, P. J.

2. The complaint set up certain facts, the answer did not deny these facts, but set up an affirmative defense, the facts were antagonistic to those in the complaint. On the trial witnesses proved the facts, in the answer without objection that an opposite state of facts was admitted, because not denied by the answer.

Held, that it is now too late to insist that the allegations thus contradicted by the defendant were admitted. We must treat the allegations of the complaint as denied by the answer. Ib.

RECSISSION OF CONTRACT.

Commissioners of highways.—The plaintiffs are commissioners of highways. They made a contract with defendant to furnish a certain quantity of lumber at a price that a certain man should say it was worth. The lumber was for a bridge, and was to be of a certain length and quality. Defendant showed the tim

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