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. 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.

The

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 plaintiffs 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 granted. Hildreth v. Shepherd. Opinion by Ingraham, P. J.

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 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

minister oaths; they cannot perpetuate evidence; and, in such case only, the proof required by the statute is necessary. The legislature is responsible for this legislation. It is not necessary that the road should have been constructed in the town of Scipio. Under the statute the directors of the Midland road were authorized to construct branches, etc., as they deemed feasible; and the towns along or near the line of said road, or its branches, were authorized to issue bonds in aid of said company (Midland) on the construction of said branches. The road to be aided is the Midland, and the money raised is to be applied in aid of the Midland, which includes the branches. The money raised is not to be used in the construction of the branches only. The relator's second point is, that the acts under which the town of Scipio is bonded are unconstitutional and void, because they embrace more than one subject not expressed in the title, and are local bills. The title of the act is, "An act to facilitate the construction of the New York and Oswego Midland Railroad Company, and to authorize towns to subscribe to the capital stock thereof." Held, not unconstitutional. The relator's fifth point is, that the assessors could not adjudge and determine, from their own knowledge, the identity of the persons whose names were signed to the consents, with the names on the assessment rolls. Held, that, as the statute provided no means for proving those facts, the personal knowledge of the assessors was sufficient. The statute not requiring any particular evidence, the action of the assessors was valid, however the evidence may be obtained.

Held, that from the very necessity of the case, the affidavit and determination of the assessors is conclusive in this proceeding as to the facts therein stated. The proceedings and determination of the county judge affirmed. The People ex rel. Aiken v. Morgan. Opinion by Mullin, P. J.

CERTIORARI.

The respondents were railroad commissioners under an act of the legislature authorizing certain towns to bond themselves in aid of a railroad. They proceeded in conformity with the statute and issued the bonds of the town. More than two years after the making of the affidavit required by the statute, and the issuing of the said bonds, the writ of certiorari was issued in this proceeding.

Held, that the allowance of the writ rests in the sound discretion of the court, and even if it will lie it does not follow that it will be awarded in every case where a relator may have some ground of complaint, and that where more than two years have elapsed since the filing the affidavit required by the statute, and the issuing of the bonds, before the writ was issued, and new rights have been acquired, the writ should be dismissed and quashed. People ex rel. Davis v. Hill. Opinion by E. D. Smith, J.

COMPLAINT.

Joinder of actions.- The complaint in this action in the first count alleges that, on the 11th day of December, 1861, defendant, for value, etc., assigned to plaintiff a certain judgment. That said defendant, on the 11th day of April, 1865, discharged said judgment of record, and that some of the defendants in said judgment, subsequent to the discharge of said judgment, were the owners of certain personal property which, but for the said discharge of said judgment, would have been liable to execution and sale, and that said defendants in said judgment are now insolvent, and

that plaintiff was injured by said discharge, etc. The second count in said complaint contains an ordinary count for money had and received. Defendant demurs to complaint, on the ground that two causes of action have been improperly joined, viz.: one for a tort, and one on contract. The judge at special term overruled the demurrer.

Held, that the first count contains a cause of action in tort; to make it a count on contract the pleader should have alleged that the defendant undertook and promised not to assign said judgment. That there was no implied promise by defendants not to assign said judgment. That if there was an implied promise by the bank not to assign, plaintiff should have alleged such promise. 20 Wend. 94. The second cause of action being on contract, causes of action were improperly joined. Demurrer sustained. Booth v. The Farmers' National Bank. Opinion by Mullin, P. J.

DAMAGES.

Plaintiff was an employee of a railroad company, and employed in coupling cars. Defendant wantonly, and with the malicious purpose of injuring the property of the company, secretly uncoupled some of the cars and threw away the pins used in coupling them. Plaintiff's hand was injured in consequence of such uncoupling. In an action at the circuit the plaintiff had a verdict. The circuit judge charged the jury, "that if the defendant took the pins out of the cars in the loaded trains, and in the ordinary use and management of the trains, without any want of care or inattention on the part of the plaintiff, or any other person in charge, or management or use of the train, the plaintiff sustained the injury by reason of such removal of the pins from the cars, as described by the witnesses in the effort to couple the cars, and in the ordinary discharge of his duties to the railway company, then the defendant is liable."

Held, that the charge is substantially correct aud sound. Where a person commits, as defendant did in this case, a willful and malicious trespass upon the property of another, under circumstances involving unavoidable injury to persons and property, the law is well settled that he is responsible to any person injured by such trespass. It is not necessary that he should intend to do the particular injury which follows. Judgment affirmed. Munger v. Baker. Opinion by E. D. Smith, J.

DEMURRER.

Defendant sold to W. McL. and D. his interest in a certain lease of oil lands, and represented that the lease was good, and that he owned it, etc. The representations were false and the lease was valueless. The lease was purchased of defendants in the name of D., but for the benefit of D., McL. and W. McL. and W., before the commencement of this action, assigned all their rights, legal and equitable, in and to the money paid by defendant to plaintiff, and D. released defendant from all demands he had against him growing out of the matters in suit. The first count in the complaint contained a cause of action for damages, for fraud and deceit in the sale of the lease to W. McL. and D. The second count was on an implied averment that defendant had an interest in said lease that he pretended to sell to W. McL. and D.

The third and fourth counts were for money paid to defendant by W. and McL. respectively, and assigned to plaintiff, and stated that plaintiff was indebted to

W. and McL. "as above stated," referring to the first count.

The defendant demurred on the ground of the misjoinder of the parties plaintiff that several causes of action were improperly joined, and that facts sufficient to constitute a cause of action were not stated. The special term overruled the demurrer.

Held, (1) That the first count contains a cause of action for deceit, and that it was assignable; that defendant having released D. the action was thereby severed, and the other injured parties may maintain actions for their damages; (2) That the second count does not contain a cause of action; (3) That the allegations in the third and fourth counts, that defendant is indebted to plaintiff for money, etc., had and received by defendant of W. and McL. (plaintiff's assignees) "on, etc., as above stated" in first count, incorporated the allegations of the first count in the one containing such reference, and renders them counts for money had and received by means of false and fraudulent representations, and as the liabilty grows out of the same transaction as is alleged with that contained in the first count, they are properly recited. Order of the special term affirmed. Woodlary v. Deloss.

DOWER.

Emblements. - One C. died, leaving certain real estate, and a widow and heirs at law. C. entered into a contract with certain parties to seed down a certain part of his lands on shares, and in pursuance of this agreement the land was seeded before C.'s death. Subsequent to C.'s death a portion of this land so seeded was assigned to the widow as her dower. The crop on the said land was harvested, and the proceeds taken by C.'s administrators, of whom the widow was one, as assets of the estate of C., and said administrators paid all the expenses of harvesting said crop. The widow did not object to the appropriation of the proceeds of said crop by the said administrators. The widow died, and when the administrators of C. came to settle their accounts the surrogate charged them with the proceeds of said crop. The administrators appeal from the decision of the surrogate, on the ground that the proceeds of said crop belonged to said widow, and that her representatives may claim it. Held, that a widow is entitled to the crops growing on the land assigned to her for her dower, and she takes whatever is on the freehold at the time of her husband's death. (2) That the crops in question belonged to the widow, and her neglect or failure to claim the proceeds does not affect the right of her representatives to demand the avails now. By allowing the proceeds of the crop to go into the assets of the estate of C., without objection, did not affect her rights to claim the proceeds. The widow neither said or did any thing which estopped her during her life, or her representatives, since her death, from demanding the avails of the crops. Decree of the surrogate reversed. Clark v. Battorf. Opinion by Mullin, P. J.

EJECTMENT.

Boundary line: adverse possession. - Plaintiff and defendant each claimed title to a strip of land which was covered by defendant's deed, but which had been occupied by plaintiff and his grantors for many years, under claim of title, supposing it covered by his deed. The supposed line between the parties was different from the line as expressed in the deeds of the respective parties. Defendant moved the fence forming the supposed line; hence this action.

Held, that the charge of the circuit judge to the jury: "that if the division line was established by the grantors of the plaintiff and defendant respectively, or those under whom they claimed, and they possessed and occupied respectively up to such time, recognizing it as the true boundary, and such occupation and acquiescence by them and their successors continued twenty years or more, prior to the removal of the fence by the defendant, the plaintiff claiming up to said line, then the plaintiff was entitled to recover, otherwise not," was correct. Robinson v. Phillips. Opinion by E. D. Smith, J.

EXECUTION.

Sheriff's fees: liability of attorney on.― The defendant, as attorney for one T, commenced an action against the N. Y. C. R. R. Co. to recover penalties for illegal fare collected, etc., and recovered a judgment against said railroad company of $4,328.48, which judgment was affirmed by the general term. Defendant, as attorney, issued an execution against said railroad company for said amount and gave it to plaintiff herein, as sheriff of Monroe county to collect. Sheriff made his levy and before the execution was satisfied the said judgment was modified by the court of appeals and reduced to about $128. Notice of modification was served on plaintiff, as sheriff, and he was notified to collect the amount of the judgment as modified and return the execution as satisfied. The sheriff returned the said execution and the amount collected thereon as modified and retained his fees for poundage on such sum, and demanded his poundage on the entire amount of the execution, viz.: on $4,378.48. This action is brought by plaintiff, as sheriff, against defendant, as attorney, etc., to recover the amount of the entire poundage on the whole $4,328.48. There was a judgment for the plaintiff.

Held, (1) That an attorney is liable to a sheriff for his poundage on an execution; (2) That when a judgment has been reduced by the court on appeal, even after levy on an execution under it, the sheriff is entitled to his fees or poundage only on the amount to which said judgment has been reduced. Judgment reversed. Campbell v. Catheron. Opinion by Mullin, P. J.

GUARDIAN.

Action on bond given by special guardian of infant.— Held, that his omission and neglect to account for the balance of the purchase-money of the infant's estate (after paying widow's dower interest), and to invest the same according to the terms of the sale and the order of the court, was a clear breach of his duty as such special guardian, and of the condition of his bond.

Held, also, that the court has still jurisdiction over the proceedings instituted by or on behalf of the infant for the sale of her real estate, and notwithstanding the verdict against the defendant in the action on the bond, if said verdict does him any injustice, it might still allow him to make a report of the sale and account for the proceeds thereof. Hunt v. Hunt. Opinion by E. D. Smith, J.

JUSTICE COURT-PRACTICE.

Plaintiff was a workman in employ of the Buffalo and Troy Towing Company, a joint-stock association under the laws of this State. Defendant, as president, was sued in justices' court for wages due plaintiff by the association. Defendant plead a general denial, but offered no evidence, on judgment by justice, in favor of plaintiff. Defendant appealed to the county court obviously to delay the plaintiff in getting his wages. The first specification in the notice of appeal is, that the judgment is against law and evidence.