Page:Federal Reporter, 1st Series, Volume 3.djvu/67

 60 r-EDERAIi REPORTER. �the consent papers when the two were filed togetlier in the county clerk's office. The affidavit states that the consent in writing has been obtained of persons owning, etc., ' which consent has been proved and acknoAvledged according to the provisions ' of the two acts, specifying them detinitely. It does not state otherwise what the consent is to be for or about. But in view of the attachments of the consents to the affida- vit, and of the contents of the affidavit, and of the con- tents of the consents, it must be held that the 'consent' referred to in the affidavit is sufficiently designated therein as being the consent referred to in l;he statute and the consent specified in the consent papers." In so far as any views expressed in Smith v. The Town of Ontario, 15 Blatchf. C. C. E. 267, by Judge Wheeler, differ from those expressed by me in Phelps v. The Town of Lewision, it is to be remarked that the decision in the Phelps case was made prior to the decision in the Smith case, and that the decision in the Phelps case does not appear to have been brought to the notice of the court before the Smith case was decided. �The Phelps case was decided in August, 1878, and the Smith case in September, 1878. In October, 1879, the Bmith case was again brought before Judge Wheeler, after the judgment for the defendant in the case for costs had been paid and satisfied, and he was asked leave to re-argue a mo- tion for a new trial in the case. He denied the case for want of power, although the Smith suit was a suit against the same town as the present suit, and was founded on the eame bonding proceedings and the same issue of bonds; yet it appears, from the last decision filed in the Smith case, that the record on which the action for a new trial in that case was had showed that some of the consents were filed in the county clerk's office on different days from others, in December, 1870, and that the affidavit was filed there at Bometime in that month, without showing on what day, and that when the application for leave to re-argue the motion for a new trial was made it still appeared that the affidavit and each consent was filed separately, as if it came from dif- ����