premises, but connected with the premises "by employment in any business for which the premises were used." None of these prerequisites were established. The service was not good and the justice acquired no jurisdiction. Act of 1868, supra. 1 Hill, 512. The counsel for Mordaunt objected preliminarily to the sufficiency of the affidavit of the service of the summons. The objection was overruled and the counsel excepted. The respondent urges that by the appearance of the tenant and undertenant the irregularity, if any, was waived. Held, This view is erroneous. It is not sustained by authority, and cannot rest on principle. The question of jurisdiction is open to examination at all stages of a controversy, unless waived, which does not always follow from an appearance when the objection is taken, overruled and exception noted. The proceedings were erroneous and the result must be reversed and restitution ordered with costs. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. COSTS. N. Y. COURT OF APPEALS. Powers et al., applts. v. Gross, respt. Decided June 13, 1876. In an action to recover damages for the conversion of chattels, where plaintiff claimed $500 and recovered $35, defendant is entitled to costs. Plaintiff cannot by an excessive claim oust a justice of the peace of jurisdiction and thereby entitle himself to costs. The verdict is conclusive as to the amount in controversy and in determining whether a justice of the peace would have jurisdiction. This action was brought to recover $500 damages for the conversion of chattels, stated to be worth $146. A verdict of $35 was rendered for the plaintiff. Both parties claimed to be entitled to costs. The clerk refused to tax plaintiff's costs, but did adjust the defendant's under objection from plaintitt's counsel. A motion was made at Special Term for an order setting aside the taxation of costs in favor of defendant, and directing the clerk to adjust costs in favor of plaintiff, which motion was denied, and on appeal to the General Term the order denying judgment. was affirmed. Estes & Barnard, for applts. Held, no error. That by the provis ions of 305 of the Code, defendant was entitled to costs; that the cause of action was of the class within the jurisdiction of a justice of the peace (Code § 23); that plaintiffs could not, by an excessive claim of damages, oust a justice of the peace of jurisdiction and thereby entitle themselves to full costs in a higher court upon recovery of a nominal sum. That the verdict was conclusive as to the amount in controversy and in determining whether a justice of the peace would have had jurisdiction, and as affecting the question of costs. Order affirmed. Opinion by Allen, J. PRINCIPAL AND AGENT. SUPREME COURT OF PENNSYLVANIA. Wray, pl. in error v. Evans, deft. in error. Decided Jnn. 6, 1876. The immediate employer of the agent or servant who causes the injury, is alone responsible for such injury; to him alone the rule of respondeat superior applies, and there cannot be two superiors severally responsible. Error to the Court of Common Pleas No 2, Alleghany County. jury; to him alone the rule of respond- By agreement between the Pittsburgh Gas Company and James T. Wray, the latter undertook to dig a trench, in which to lay the gas pipes of said company, in Gas street and Second avenue, from the works of said company to the gas holder, in the 14th Ward of the city of Pittsburgh. This work was to be done under the supervision of the company's engineer. It was also part of the contract, that should Wray, at any time, neglect or refuse to supply a sufficiency of mate-contract should be forfeited by non-perrial or workmen to properly execute the formance. work, the company might furnish the same, after giving three days notice, and charge the same over to Wray. By a sub-contract similar in its terms, except that if the work was not done to the satisfaction of the gas company's engineer, the contract was to be forfeited on two days notice, Wray passed the job to Michael Davis. Each of the contracts contained a covenant that the contractor should be responsible for all losses, damages, fires, and recoveries that might happen or be had by reason of the carrying on of sai' work, arising through negligence, mistake or otherwise. Again, beyond controversy, Davis was, in this case, liable for the negli gence of his employees in the prosecution of the work; hence, to charge this negligence over to Wray is to make two superiors severally liable for the same injury or misfeasance. This, however, violates the rule already referred to, which negatives such a proposition. Judgment reversed, and a venire fa cias de novo awarded. Opin on by Gordon, J. TOWN BONDS. BONA FIDE TRICT OF NEW YORK. Manassah Bailey v. The Town of Lansing. In execution of his contract with U. S. CIRCUIT COURT-NORTHERN DISWray, Davis proceeded to dig the trench along Second avenue, into which, on the night of October 9th, 1873, the plaintiff fell and broke his leg. The evidence shows that Davis employed and supervised the hands who did this work, and that Wray had no control whatever over them. Held, That the immediate employer of the agent or servant, who causes the injury, is alone responsible for such in Where a county judge has decided that town bonds shall be issued for railroad purposes, and appointed commissioners for that purpose, and a certiorari is granted to review his decision, and the commissioners afterwards issue the bonds to the railroad company, both parties having knowledge of the certiorari, the rail- Supreme Court reversed the judgment. road company acquires no title to This reversal, in legal effect, vacated the bonds which they can enforce the entire proceedings taken before the against the town. An innocent purchaser of such bonds county judge. The certiorari was the would acquire the rights of a bona common law writ. After it was issued fide holder of commercial paper and and notice thereof given to the comcould recover, but the burden of missioners, and before the commissionproof is upon him to show that he is ers had taken the oath of office rea purchaser in good faith and for value; he cannot rely upon the pre- quired by law preliminarily to entering sumption derived from his posses- upon the duties of their trust, they exsion of the coupons before they be ecuted and delivered the bonds to the came due. railroad company, the latter having full The facts of the case appear in the notice of the certiorari, and giving the opinion. commissioners a bond of indemnity. Wallace, J. This action is brought upon interest coupons originally attached to bonds issued in aid of the Cayuga Lake Railroad Company by commissioners appointed for that purpose by the county judge of Tompkins County, under the provisions of the bonding acts of 1870 and 1871 of the State of New York. It does not appear how plaintiff acquired title to the coupons in suit, but does appear that they were in his possession before they tell due. It does not appear whether or not he ever owned the bonds to which the coupons were originally attached. Upon these facts, I do not think the plaintiff is entitled to recover. The bonds were These acts authorize the county judge, originally negotiated between the comupon the presentation of a petition by missioners and the railroad company in the requisite number of the tax-payers violation of good faith. The parties of the county, to ascertain by judicial to the transaction were aware that proinquiry if the majority of the tax-pay- ceedings were pending to annul the ers in number and in taxable property desire the town to issue its bonds in aid of the railroad, and if he ascertains such to be the case, he is to appoint three commissioners to execute and issue bonds in behalf of the town and invest them in the stock or bonds of the railroad company. authority of the commissioners to issue the bonds. When the certiorari issued, the judgment and proceedings upon which it was founded were removed to the Supreme Court, and all proceedings under the judgment which had not actually been put in motion were suspended. The decisions of this State The county judge having entertained are uniform that upon the allowance of the petition of the tax-payers and ta- a certiorari the effect of the judgment ken proofs, adjudged that the bonds which it is taken to review, except in should be issued, and appointed com- the single exception of an execution missioners for the purpose. Opposing already issued and in the process of tax-payers contested the proceeding, being executed, is suspended as to all and, pursuant to the statute, obtained a proceedings under it and as to all colwrit of certiorari for the review of the lateral matters. The judgment is not decision of the county judge by the even evidence in a case between the Supreme Court. Upon review, the same parties. It is as completely sus pended as though it had never been ATTORNEY'S COSTS. SETTLE rendered. Lannitz v. Dixon, 5 Land., 249. MENT. N. Y. SUPREME COURT. GENERAL TERM Decided June, 1876. settlement made after suit is com menced and without notice to an attorney is not good, and the attorney may either prosecute the action or sue the parties making such fraudu lent settlement. Plaintiff was injured on defendant's road. After the injury an attorney called on him and offered to prosecute Under these circumstances, the commissioners were no more justified in attempting to issue bonds in behalf of the town than they would have been if their agency had been revoked; and the railroad company, having knowl-A edge of the fact, acquired no title to the bonds which they could enforce as against the town. The case is not analegous to that where property has been sold under an execution upon a judgment subsequently reversed. I do not intend to intimate that if the bonds had been issued by the commissioners the action against said Railroad Coinafter the certiorari, and came to the hands of an innocent purchaser, the latter would acquire no title. Although the authority of the commissioners to act as agents of the town was suspended, such a purchaser would acquire the rights of a bona fide holder of commercial paper, and could recover a gainst the principal as though the authority once conferred upon the agent had never been revoked. But in such case it would be incumbent upon the plaintiff to show that he had purchased innocently, relying upon the ostensible authority of the agent. Coddington v. Bay., 20 John. 636. These views lead to the conclusion that when it appeared that the bonds were issued in fraud of the rights of the defendant, the burden was cast upon the plaintiff to show that he was a purchaser in good faith and for value. He could not rest upon the presumption derived from his possession of the coupons before they became due. Regers v. Morton, 12 Wend., 484; Smith v. Sac County, 11 Wall., 139. ant Judgment is ordered for the defend pany to judgment in consideration of receiving one-half the recovery, and the attorney was to pay all the expenses. The action was commenced by the service of a summons on a director of defendant. When the summons was served, the director was notified of the claim of the attorney and the nature of it, and the General Superintendent of defendant was also notified of the attorney's claim. After the summons was served and after this notice, defendant settled with plaintiff for $1000. The attorney then prosecuted the action, and in its answer defendants set up the release of plaintiff, and offered same in evidence on trial. The referee, to who m the action was referred found the release fraudulent and void as against the attorneys. That the attorneys had no notice of the settlement. That they had a written agreement with plaintiff to prosecute said action and pay expenses. That plaintiff sustained damages by reason of the accident to the extent of $1000. The plaintiff appeals. Strong & Goodyear, for applt. spt. LEGISLATURE. N. Y. COURT OF APPEALS. Decided May 23, 1876. Held, That although generally an QUO WARRANTO. POWER OF attorney has no lien for his costs until the recovery of a judgment or verdict, the court will protect the attorney against a fraudulent or collusive settlement between his client and the adverse party, by setting aside any release that may have been given, or where the right to costs has not become complete by reason of there being no recovery entitling the attorney to his costs, the attorney will be permitted to proceed in the action as if no release had been given, until the costs are collected. That if the fraudulent release is given on the fraudulent settlement made before verdict, and the case is one in which the damages in the case must be ascertained before the right of the attorney to costs is determined, the relief he is entitled to is to prosecute the action to judgment, or where that cannot be done, to prosecute a new action against whoever may be legally liable to redress the wrong done him. That The People having, through their con- This was an action in the nature of a quo warranto to test the title of defendant to the office of Justice of the Tenth Judicial District Court of the City of New York, which district is composed of the three towns set off from Westchester county and annexed to the city of New York by chap. 613 of the Laws of 1873, passed May 23, 1873. The 5th section declared what terri the attorney is this case is allowed to go tory should constitute the district, and on with the action so far as is necessary that "at the next general election," to protect him. That the release having been set up in the answer, the referee was justified under the code in trying the question whether or not the same was fraudulent, and any matter constituting a defense to such part of the answer was compe tent. That it was the duty of the referee, having found the release fraudulent, to have complied with the request of the plaintiff's attorney and ascertained the damages sustained by the plaintiff, and to have given judgment against the defendant for one-half the amount thereof. Judgment reversed. there should be elected a justice of said district. Section 18 declared that the act should take effect January 1, 1874, "except as to such parts as are otherwise provided for, and as to such parts it shall take effect at the time or times in this act specified." Defendant was elected at an election in 1873, at which the candidates for the office were put up and voted for. He entered upon the discharge of his duties January 1, 1874, and has continued to discharge them since that time, and there is no other claimant for the office. In 1874 another act was passed, Chap. 329 of the laws of 1874, which re-enacted, with some amendments, said chapter 613, Laws of 1873, |