Page:Federal Reporter, 1st Series, Volume 3.djvu/62

IRWIN ». TOWN OV OHTASIO. 83 �prove, by the assessors who made the foregoing afiBidavit of August 30, 1870, (one of whom was called by the defendant and swom as a witness,) that at the time when said afSdavit -was so subscribed and swom to by them the same was on a eeparate sheet of paper, unattached to any of the consents of the tax payera, or any other paper, and that none of such «onsests were present at the time of such subscription and verification. The plaintiff objected to the evidence, and it was excluded by the court, and the defendant excepted. The defendant then offered to prove that the total number of persons subscribing such consents, as appeared by said bond- ing roll, was less than one-half of the tax payers of s^id town, AS appeared by said assessment roll. The plaintiff objected to such evidence on the ground that it was immaterial, and the court excluded it, and the defendant excepted. The de- fendant then rested. The defendant then requested the court to instruct the jury to render a verdict for the defendant, on the . ground that the affidavit of the assessors did not comply with Uie statutein the respect before set forth, and also on the ground that it appeared, by a oomparison of the names on the said so- «alled bonding roll with the names of the tax payers in the said assessment roll, that a majority of the tax payers of said town had not given their consent that any debt should be contracted by said town, or bonds issued by it, according to the requirements of the statute. The motion was reserved by the court, and the defendant excepted. The court in- structed the jury to render a verdict for the plaintiff for the amount of said coupons and interest, to which instruction the defendant excepted. �The verdict before named was then rendered. �The act of May 11, 1868, (Laws of New York, 1868, e. 811,) as amended by the act of April 19, 1869, (Laws of New York, 1869, c. 241,) provides in section 1 for the appoint- ment of railroad commissioners for the town by the county judge. Section 2 is as follows : "It shall be lawful for said commissioners to borrow, on the faith and credit of their re- spective towns, ineorporated villages, and eities aforesaid, «uch sums of money, not exeeeding 20 per cent, of the valua- ����