speaking through Shaw, C. J., after referring to the decision in Chapman v. Forsyth, said: "We have no doubt that this is the true construction of the law." In Austill v. Crawford, 7 Ala. 435, and in Commercial Bank v. Buckner, 2 La. Ann. 1023, the same views were expressed, though the contrary was held in Matteson v. Kellogg, 15 Ill. 547, and in Flagg v. Fly, 1 Edm. N. Y. Sel. Cas. 206.

Under the act of 1867 a series of diverse rulings by different courts arose on the subject; one class treating agents, factors, commission merchants, etc., as acting in a fiduciary character under the act, on the view that the act was conceived in broader and more general terms than the act of 1841; the other class taking the view that the act of 1867 used the phrase, "acting in any fiduciary character," in the sense which it had received by construction in the act of 1841. The cases on both sides of the question are collected in Bump's Law of Bankruptcy, under sec. 33 of the original Bankrupt Act of 1867, sec. 5117 of the Revised Statutes, pp. 742-745 (10th ed.) Those taking the first view are In re Seymour, 1 Benedict, 348; In re Kimball, 2 id. 554; S. C., 6 Blatch. 292; Whitaker v. Chapman, 3 Laus. 155; Lemke v. Booth, 47 Mo. 385; Gray v. Farran, 2 Cin. 426; Treadwell v. Holloway, 12 Bank. Reg. 63; Meader v. Sharp, 54 Ga. 128; S. C., 14 Bank. Reg. 192; Benning v. Bleakley, 27 La. Ann. 257. Those taking the other view are Woolsey v. Cade, 15 Bank. Reg. 238; Owsley v. Cobia, id. 489: Cronan v. Cutting, 104 Mass. 245. We have examined these cases, and others bearing on the subject, but do not deem it necessary to refer to them more particularly, inasmuch as the question has recently been fully considered by this court, and the decision in Chapman v. Forsyth has been followed.

We refer to the case of Neal v. Clark, 95 U. S. 704, reversing the decision of the Court of Appeals of Virginia in Jones v. Clark, 25 Gratt. 642. This case involved the meaning and application of the word "fraud" in the clause under consideration-" no debt created by fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged," etc. An executor sold certain bonds which he had received on the sale of the property belonging to the estate, the proceeds of which the will directed him to distribute in a certain way. The sale of the bonds was held by the State court to have been a misappropriation of them, amounting to a devastavit, in which Neal, the purchaser, was held to be a participant, and liable to account for the value of the bonds purchased; not because he was guilty of any actual fraud, but because in view of the circumstances attending his purchase he had committed constructive fraud. Neal had in the meantime obtained his discharge in bankruptcy, which he pleaded in bar to a recovery against him; but the State court held that "fraud," in the 33d section of the Bankrupt Act (of 1867), included both constructive and actual fraud, and overruled his plea. We reversed the judgment of the State court on this point, and decided that Neal was entitled, under the circumstances of the case, to the benefit of his discharge in bankruptcy. Adopting and applying the reasoning of the court in Chapman v. Forsyth we said, "that in the section of the law of 1867 which sets forth the classes of debts which are exempted from the operation of a discharge in bankruptcy, debts created by fraud' are associated directly with debts created by 'embezzlement.' Such association justifies, if it does not imperatively require, the conclusion that the 'fraud' referred to in that section means positive fraud, or fraud in fact, involving moral turpitude or intentional wrong, as does embezzlement; and not implied fraud,

or fraud in law, which may exist without imputation of bad faith or immorality."

The question came before us again in Wolf v. Stix, 99 U. S. 1, in which a sale of goods to Wolf by an insolvent firm was set aside as fraudulent against creditors, and Wolf and his sureties were then sued on the bond given by him for a return of the goods when attached at the commencement of the proceedings. Wolf having in the meantime become bankrupt, and obtained his discharge, pleaded the same in bar of the action. We held the plea to be a good one to the action on the bond.

The present case is not precisely like either that of Chapman v. Forsyth, or Neal v. Clark, but it is very difficult to distinguish it in principle from the cases of commission merchants and factors failing to account for the proceeds of property committed to them for sale. There is no more-there is not so much-of the character of trustee in one who holds collateral securities for a debt as in one who receives money from the sale of his principal's property-money which belongs to his principal alone, and not to him, and which it is his duty to turn over to his principal without delay. The creditor who holds a collateral, holds it for his own benefit under contract. He is in no sense a trustee. His contract binds him to return it when its purpose as security is fulfilled; but if he fails to do so, it is only a breach of contract, and not a breach of trust. A mortgagee in possession is bound by contract, implied, if not expressed, to deliver up possession of the mortgaged premises when his debt is satisfied; but he is not regarded as guilty of breach of trust if he neglects or refuses to do so, but only of a breach of contract.

The English authorities are more in accord with the decisions in this country, which take a different view from our own on this question. The Debtor's Act of 1869 (32, 33 Vict., ch. 62) abolished imprisonment for debt, except in the case of statutory penalties, and when arising from the default of a trustee or person acting in a fiduciary capacity, who has been ordered by a court of equity to pay money in his possession or under his control; and except defaults of attorneys aud solicitors and some other special delinquents. The Bankrupt Act of the same date (32, 33 Vict., ch. 71) declares that the order of discharge of a bankrupt shall not release him from any debt or liability incurred or forborne by means of any fraud or breach of trust. (Sec. 49.) Under those statutes, where an agent failed to pay over moneys collected for his principal, Sir George Jessel said, "No doubt this debt was incurred by fraud." Pashler v. Vincent, 8 Chan. Div. 825. The same doctrine was held in Morris v. Ingram, 13 Chan. Div. 338, where a son was in the management of his father's farm, and sold part of the stock and received the proceeds. After his father's death, being ordered to pay over the money, and failing to do so, he was held to be a person acting in a fiduciary capacity. In Middleton v. Chichester, 19 Week. Rep. 369, Lord Hatherly said that "the exceptions [in the Debtor's Act] are all referable, not to debts payable simpliciter, but to debts contracted in a manner in some degree subject to observation as being worthy of being treated with punishment. ** * In every case we find some shade of misconduct; something of the character of delinquency, though varying in description."

For other English cases arising under the acts referred to, see Wood's Case, Ex parte Chapman, 21 W. R. 71; Hooson, Ex parte Chapman, 21 W. R. 152; S. C., 8 L. R., Ch. 231; Cobham v. Dalton, Ex'r, 10 L. R., Ch. 655; In re Deere, Atty., id. 658; Halford v. Jacobs, 19 L. R., Eq. 436; Phosphate Co. v. Hartmount, 25 W. R. 743; Earl of Lewes v. Barnett, 6 Ch. Div. 252; Barrett

ground of paramount necessity. The law does not contemplate such an exigency, and therefore does not provide for it. If it did it would no longer be the undefined law of necessity. Nelson, J., in People v. Corporation of Albany, 11 Wend. 540.

resolution, and he does not claim that he was. His claim is that his property has been unlawfully destroyed. If it was not in fact a nuisance, then no ground for its destruction existed, and the plaintiff has been unlawfully deprived of his property. It would be strange indeed if he cannot, under such circumstances, recover a just and adequate compensation. Rounds v. Mansfield, 38 Me. 586; Green v. Underwood, before cited. We are not called on to determine from whom he may recover, nor must we be understood as

cise power, and no more, is conferred by the statute on cities and towns. In Wood Nuis., § 740, it is said: "If the authorities of a city abate a nuisance under authority of an ordinance of the city, they are subject to the same perils and liabilities as an individual, if the thing in fact is not a nuisance." See also Clark v. Mayor, 13 Barb. 32; Welch v. Stowell, 2 Doug. (Mich.) 332; Underwood v. Green, 42 N. Y. 140; Yates v. Milwaukee, 10 Wall. 497; Haskell v. New Bedford, 108 Mass. 208; Wreford v. People, 14 Mich. 41; Everett v. Council Bluffs, 46 Iowa, 66; City of Salem v. Eastern R. Co., 98 Mass. 431. The last case was an action brought to recover the expense of removing an alleged nuisance caused by the defendant, who had no opportunity to be heard as to the question whether a nuisance in fact existed; and it was held that the defendant was not concluded by the findings and adjudications of the corporate authorities, but it could contest all the facts upon which its liability depended. Cities and towns may undoubtedly define, and by ordinance declare, what shall constitute a nuisance, and their legislative discretion in this respect cannot be controlled. If a nuisance is created or erected after the passage of the ordinance, and it is then provided that it may be abated, we are not prepared to say this may not be done, or the person erecting the nuisance punished as prescribed in the ordinance. Ordinarily, before property is destroyed on the ground that it is a nuisance, the owner should have the opportunity to be heard in some manner in accordance with the usual forms prescribed by law; and this is true where the property has been summarily destroyed, and he seeks to recover damages sustained by its destruction.

2. Counsel for the defendants insist that the only remedy the plaintiff had was to test the validity of the action of the town council by certiorari, and cites State v. Roney, 37 Iowa, 30; Iske v. City of Newton, 54 id. 586; 7 N. W. Rep. 13; Stubenranch v. Neyensch, 54 Iowa, 567; 7 N. W. Rep. 1. These cases are clearly distinguishable. It may be conceded that the plaintiff could have thus proceeded, but he was not bound to do so, and after the destruction of his property such a proceeding would have been useless. It may be the plaintiff had two remedies-one by certiorari, and the other the one adopted in this case. Both these remedies are legal, and not equitable, and he could adopt either.

3. Counsel further claim that the members of the council are not individually liable, because what they did was done in a judicial capacity; that is, that the determination of the question as to the existence of the nuisance was of a judicial character. In support of this proposition Walker v. Hallock, 32 Ind. 239; Baker v. State, 27 id. 485; Harvey v. Dewoody, 18 Ark. 252; Nolan v. Mayor, 4 Yerg. 163, are cited.

The first two cases grew out of the same facts. The nuisance complained of was the erection or continuance of a market-house, and it was sought to make the members of the city council individually responsible therefor. This is a very different question from the one before us. In the Arkansas case it was determined that a nuisance in fact existed, and therefore responsibility for its abatement did not attach. The case last cited has no application whatever to the case at bar. The plaintiff was not damaged by the passage of the

ance. This was a question for the jury under proper instructions by the court. We think the court erred in instructing the jury as above stated, and also erred in refusing to instruct in substance as asked in some of the instructions presented by counsel of plaintiff. Reversed.

CONTEMPT-COURT MAY REVOKE ORDER.

CIRCUIT COURT, DISTRICT OF MASSACHUSETTS. APRIL 2, 1884.

HENDRYX v. FITZPATRICK.*

An order committing a defendant for contempt in refusing to pay a sum of money is civil, and not criminal, in its nature, and the court which committed him is at liberty to release him again in case he shows himself unable to comply with the requirements of the court.

N the Matter of Contempt of Court.

T. W. Porter and J. McC. Perkins, for complainants.

A. H. Briggs, for defendant.
Before LOWELL and NELSON, JJ.

en

LOWELL, J. In this case the defendant was joined from infringing a patent, pendente lite, because, though the court had serious doubts of its validity, the defendant had himself sold the pateift to the plaintiffs for a considerable sum of money, and it was thought no more than justice that he should refrain from violating his own implied warranty until the final hearing. Afterward proceedings for contempt for a violation of the injunction were prosecuted by the plaintiffs, and after evidence taken and a hearing, the defendant was ordered to pay the fees of the master by a certain day, the costs of the proceedings, and certain profits assessed by the master, by certain other days, and in default of payment to be committed. These last two sums, when paid in, were to be paid out to the plaintiffs. The defendant failed to make the last two payments, and was committed to prison. After he had been in confinement for about two weeks the District judge, with my approval, though I was unable to sit in the case, permitted the defendant to go before the master and prove, if he could, in proceedings like those under the poor-debtor law of Massachusetts, that he had no property which he could apply to the payment of his debts. The plaintiffs were duly notified of the hearing before the master and did not attend, and the master admitted the defendant to take the poor-debtor's oath; and thereupon the court discharged him upon his own recognizance.

The plaintiffs now move that the defendant may be recommitted under the original order. They argue that every order since made in the cause is ultra vires and void, because the first order was a final decree in a criminal case, and could not be varied after the term; and because the defendant could only be discharged from arrest by the pardon of the president.

*19 Fed. Rep. 810.

It would be a sufficient answer to this argument, that if the order was a criminal one, having the consequences contended for, the fine should have been made payable to the United States, and the plaintiffs would have no concern with it; but we will explain why all the orders are, in our opinion, proper. The original order was an interlocutory civil order, for the benefit of the plaintiffs; and the commitment was for failure to pay the money, not for the original contempt. While therefore the imprisonment may not have been strictly and technically within our poor-debtor law (Rev. Stat., § 991), which however we think it was, yet it should, at all events, be governed by similar rules. It was made in this way, because the master found that the contempt was not willful, and I thought that no punishment was necessary. The process of contempt has two distinct functions, one, criminal, to punish disobedience, the other, civil and remedial, to enforce a decree of the court and indemnify private persons. In patent causes it has been usual to combine the two, and to order punishment if it is thought proper; or indemnity to the plaintiff, if that is all that justice requires; or both. Re Mullee, 7 Blatchf. 23; Doubleday v. Sherman, 8 id. 45; Schillinger v. Gunther, 14 id. 152; Phillips v. Detroit, 3 Ban. & A. 150; Dunks v. Gray, 3 Fed. Rep. 862; Searles v. Worden, 13 id. 716; Matthews v. Spangenberg, 15 id. 813.

We are aware that it was at one time the opinion of Judge Blatchford that a sum of money ordered to be paid to a plaintiff, in a cause of this kind, was a criminal fine, which could only be remitted by a pardon; but we are of opinion that such a fine for the benefit of a private person cannot be remitted by the president, and is a debt of a civil nature; and that Judge Blatchford has so treated it in the latest case which has come before him. His first opinion is stated in Mullee's case, 7 Blatchf. 23, and Fischer v. Hayes, 6 Fed. Rep. 63; but when the latter case came before the Supreme Court, they expressed a significant doubt whether the order to pay money for the use of the plaintiff was not an interlocutory decree in a civil cause (Hayes v. Fischer, 102 U. S. 121), and when the case came back, Judge Blatchford admitted the defendant to bail (Fischer v. Hayes, 7 Fed. Rep. 96), which he could not have done if the judgment were criminal in its nature. The doubt of the Supreme Court might well have been even more strongly expressed. An order upon a defaulting trustee, assignee in bankruptcy, or other person subject to account, to pay money into court, is civil, and may be waived by the party adversely interested, and is a debt to which a bankrupt law, discharging the debt, and an insolvent law, discharging the person, are applicable. See Baker's case, 2 Strange, 1152; Ex parte Parker, 3 Ves. 554, and the decisions hereinafter cited.

In McWilliams' case, 1 Schoales & L. 169, a defendant in contempt for not paying a legacy into the court of chancery in obedience to its order was attached while attending the commissioner to be examined as a bankrupt. His arrest was lawful, if the contempt was a criminal offense. That very learned chancery lawyer, Lord Redesdale, said that it was merely a mode of enforcing a debt; that if it were not so he had no right to make the original order; that the substance and not the form of the proceeding must govern, and its substance was not criminal. The petitioner was discharged. The same point was decided iu the same way in Ex parte Jeyes, 3 Dea. & Ch. 764; and Ex parte Bury, 3 Mont. D. & D. 309.

The remark of the lord chancellor in Mc Williams' case, that he had no right to make an order of this sort for the benefit of a private person, excepting as a civil remedy, is highly pertinent to this case.

Where a person had been committed to prison for nine months for contempt in not paying money into a

County Court, sitting in bankruptcy, James, L. J., said: "The order, on the face of it, is wrong, for it is an absolute order of commitment for contempt of court for non-payment of money. This is a penal sentence. The court of chancery never made an order in this form." And again: "The order of commitment was such as had never been made in the court of chancery, and was justly characterized by the chief judge as novel and surprising." Ex parte Hooson, L. R., 8 Ch. 231. This distinction is preserved in our Revised Statutes. The courts have power to punish for coutempt (§ 725), but all forms and modes of proceeding which are usual in equity may be followed in cases in equity. Section 913.

By virtue of section 725 the District Court may pun ish contempts. Like power is given the District judge when sitting in chambers in bankruptcy, by section 4973; and the cognate but distinct power of enforcing his decrees" by process of contempt, and other remedial' process," is recognized by section 4975. See In re Chiles, 22 Wall. 157.

Some of the older cases hold that in contempt in civil cases at common law, the proceedings, after the order of attachment, should be on the crown side of the court; that is in the name of the sovereign. The King v. Sheriff of Middlesex, 3 T. R. 133; Same v. Same, 7 id. 439; Folger v. Hoogland, 5 Johns. 235. This is still the better practice, or at least a good practice, if punishment is asked for. Cartwright's case, 114 Mass. 230; Durant v. Suprs., 1 Woolw. 377; United States ex rel. v. A., T. & S. F. R. Co.,16 Fed. Rep. 853. If this was ever the rule of chaucery, it has long since ceased to be so, when the sole purpose of the attachment'is to enforce a decree or order, such for instance, as to sign an answer, to make a conveyance, to pay money, etc. All such orders may be waived or condoned by the private person interested in them, and are civil and remedial. Ex parte Hooson, supra; Ex parte Eicke, 1 Glyn. & J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Green, 1 De Gex & J. 410; Buffum's case, 13 N. H. 14; People v. Craft, 7 Paige, 325; Jackson v. Billings, 1 Caines, 252; Anon., 2 P. Wms. 481; Const v. Ebers, 1 Mad. 530; Smith v. Blofield, 2 Ves. & B. 100; Brown v. Andrews, 1 Barb. 227; Ex parte Muirhead, 2 Ch. Div. 22; Lees v. Newton, L. R., 1 C. P. 658; Re Rawlins, 12 Law T. (N. S.) 57.

In patent cases it has been usual to embrace in one proceeding the public and the private remedy-to punish the defendant if found worthy of punishment, and at the same time, or as an alternative, to assess damages and costs for the benefit of the plaintiff, as is seen by the cases cited in the beginning of this opinion. A course analogous to this has been said, obiter, to be proper, by Miller, J., in Re Chiles, 22 Wall. 157, 168. "The exercise of this power has a twofold aspect, namely, first, the proper punishment of the guilty party for his disrespect of the court and its order; and the second, to compel his performance of some act or duty required of him by the court which he refuses to perform," citing Stimpson v. Putnam, 41 Vt. 238, where a defendant was, at the same time, fined $50 for the benefit of the State, and $1,170 and interest and costs for that of the party injured by breach of an injunction. The chancellor in that case said: "This proceeding for contempt is instituted not only to punish the guilty party, but also, and perhaps chiefly, to cause restitution to the party injured." Such we repeat, has been the practice in patent causes. It is used in other cases, as in the familiar one of a witness neglecting to answer a summons, who may be fined for his disobedience, and also be required to testify.

If the proceedings should be criminal in form it would make no difference. A criminal sentence, for the benefit of a private person, is to be treated as civil

to all intents and purposes. It is beyond the king's pardon, and within the equitable jurisdiction of the court at all times. 4 Bl. Com. 285. At this place the author, speaking of disobedience to any rule or order of court, of the sort we are considering,

says:

"Indeed the attachment for most part of this species of contempts, and especially for non-payment of costs and non-performance of awards, is to be looked upon rather as a civil execution for the benefit of the injured party, though carried on in the shape of a criminal process for a contempt of the authority of the court. And therefore it hath been held that such contempts, and the process thereon, being properly the civil remedy of an individual for a private injury, are not released or affected by the general act of pardon."

Where a defendant had been convicted of an offense against the laws prohibiting lotteries, and had been sentenced to a term of imprisonment, which had expired, and to pay costs for the use of the prosecutor, and had not paid them, he was discharged from custody under the lord's act, which was an early insolvent law, like our poor-debtor laws, so far as the discharge of the person is concerned. Cowp. 136.

Rex v. Stokes,

Aston, J., after saying that an attachment is an execution for a civil debt, and that the public offense had been purged by the imprisonment, added: "This stage of the cause therefore is merely of a civil nature, and a matter solely between party and party, unconnected with the offense itself; " that it comes within the insolvent debtor's act: "If not, the consequence must be imprisonment for life; for a general pardon would not extend to him; " that is, would not release him from costs due a private person, or from impris onment on account of them, "as was agreed in Rex v. Stokes, 23 Geo. II." So where a penalty was inflicted by a criminal proceeding, but for the benefit of a private person, and an attachment was issued for want of a sufficient distress, Buller, J., said that the proceeding was like a civil action, and that Ex parte Whitchurch, 1 Atk. 54, where attachment for not performing an award was held to be criminal, was no longer law. It was held therefore that the defendant could not be attached on Sunday. The King v. Myers, 1 T. R. 265. We do not mean to be understood that the court has a general discretion to annul orders passed for the benefit of a party to the suit; but that where inability is shown to comply with the order, as for instance, insanity, if the decree requires an act to be done, or poverty, if the decree is for the payment of money, it is according to the course of the court, and of all courts, to discharge the imprisonment, of which the end is proved to be unattainable. See besides the cases already cited, Wall v. Court of Wardens, 1 Bay, 434; Re Sweatman, 1 Cow. 144; Kane v. Haywood, 66 N. C. 1; Galland v. Galland, 44 Cal. 478; Pinckard v. Pinckard, 23 Ga. 286.

Where an attorney of any court fails to pay over money to his client, the court may, after due proceedings, commit him for a contempt. This was formerly considered to be criminal, and is fully explained in 2 Hawk. P. C. 218 et seq. But it has long since been settled that it is of a civil character. Ex parte Culliford, 8 Barn. & C. 220; Rex v. Edwards, 9 id. 652. The lord chief justice in the latter case said that it had "always" been held that attachments for nonpayment of money were in the nature of civil pro

cess.

In Reg. v. Thornton, 4 Exch. 820, and The Queen v. Hills, 2 El. & Bl. 175, costs in a criminal case were in question, and the defendant was discharged-in one, because the prosecutor had proved for the amount in bankruptcy, and thus waived the attachment, and in

the other because the defendant had been discharged as an insolvent. In the former of these cases, it was said by Pashley, arguendo, that the courts had exercised the power to discharge a defendant in such a case, on account of poverty, as early as 29 Edw. I.

It was admitted, in argument, in the case before us, that the court would not have been justified in imposing a pecuniary fine upon the defendant if he had proved his poverty before the order was made, but that afterward it was too late. We are of opinion that no such distinction can be maintained, but that the defendant should be released from imprisonment in such a case, though his evidence is produced while the order is in process of enforcement against him. Petition denied.

UNITED STATES SUPREME COURT ABSTRACT.

MUNICIPAL CORPORATION--BONDS-POWER TO ISSUE UNDER CODE OF TENNESSEE-BONA FIDE HOLDER.Mere political bodies, constituted as counties, are for the purpose of local police and administration, and having the power of levying taxes to defray all public charges created, whether they are or are not formally invested with corporate capacity, have no power or authority to make and utter commercial paper of any kind, unless such power is expressly conferred upon them by law, or clearly implied from some other power expressly given, which cannot be fairly exercised without it. Our views on this subject were distinctly expressed in the case of Police Jury v. Britton, 15 Wall. 566, where, speaking of the power of local political bodies to issue commercial paper, we said: "It seems to us to be a power quite distinct from that of incurring indebtedness for improvements actually authorized and undertaken, the justness and validity of which may always be inquired into. It is a power which ought not to be implied from the mere authority to make such improvements. It is one thing for county or parish trustees to have the power to incur obligations for work actually done in behalf of the county or parish, and to give proper vouchers therefor, and a totally different thing to have the power of issuing unimpeachable paper obligations which may be multiplied to an indefinite extent. If it be once conceded that the trustees or other local representatives of townships, counties and parishes have the implied power to issue coupon bonds, payable at a future day, which may be valid and binding obligations in the hands of innocent purchasers, there will be no end to the frauds that will be perpetrated. We do not mean to be understood that it requires in all cases express authority for such bodies to issue negotiable paper. The power has frequently been implied from other express powers granted. Thus it has been held that the power to borrow money implies the power to issue the ordinary securities for its repayment, whether in the form of notes or bonds payable in the future." Pp. 571, 572. In Mayor v. Ray, 19 Wall. 468, the following remarks were made, which were quoted with approval in the subsequent case of Wall v. County of Monroe, 103 U. S. 78: "Vouchers for money due, certificates of indebtedness for services rendered, or for property furnished for the use of the city, orders or drafts drawn by one city officer upon another, or any other device of the kind, used for liquidating the amounts legitimately due to public creditors, are of course necessary instruments for carrying on the machinery of munici pal administration, and for anticipating the collection of taxes. But to invest such documents with the character and incidents of commercial paper, so as to render them in the hands of bona fide holders absolute obligations to pay, however irregular or fraudulently is