Moran vs. Commissioners of Miami County.

The bonds were delivered to the Railroad Company, were received by it in payment of the certificate of stock, and the County of Miami was credited with $20,000 upon the certificate The Railroad Company then offered them for sale, transferred them to purchasers as commercial securities by endorsement, and the plaintiff in error bought them in the full confidence that the consideration for which they had been issued was truly expressed on the face of the bonds. The county retained the stock certificate and voted it on the election for directors as its own. Thus matters stood between the Railroad Company and the County of Miami, both being satisfied with what had been done, and that they had acted conformably to their respective powers, until the Railroad ceased to pay to the holders the interest

warrants.

Upon the trial of the case, the defendants filed a plea of nonassumpsit, and the plaintiff joined issue by a similiter. At the same time the defendants put in several pleas, affirming that several irregularities had been committed by the Board of Commissioners of Miami County and the Railroad Company, in their negotiation and proceedings for the issue of the bonds and interest warrants, by the force of which it is declared that the bonds were void at law, and that they were purchased by the plaintiff with notice of these irregularities.

We have examined these pleas critically, and find the facts stated in each to be imputations, only calculated to raise sup posed equities between Miami County and the Railroad Company, in which the plaintiffs in error, as the legal holders of the bonds and coupons, can in no event have any concern, even if it be admitted that they had notice of such irregularities when they bought, as all of them relate to circumstances contradic tory to the declarations upon the face of the bonds.

Though the proposals, or contract as it is termed in the record, for additional subscriptions of stock are confusedly expressed. there can be no doubt that it was its intention to solicit subscriptions, and that it was so understood by the Board of Commissioners of Miami County when it issued the bonds; and that in furtherance of suca purpose, the parties proceeded to devise the

Moran vs. Commissioners of Miami County.

means to pay for the subscription by borrowing money. In doing that there was nothing irregular in the transaction. Both parties seem to us to have acted within their respective powers; the Railroad within its charter to allow the counties to subscribe for stock in it, and the County of Miami to do so and according to the power given to it to borrow money. When the Railroad undertook to pay the interest upon the treasury bonds and the principal also when that became due, it was substantially a loan to the county from the time of the execution of the bonds until their maturity, though it was provided that the county might then upon the cancellation of these bonds decline to return the certificate of stock which had been issued to it.

The narrative of the negotiation which led to the issue of the bonds and interest warrants, brings the case, by the declaration in the bond as to the object and purpose for which they were issued, so entirely within what we have shown to be the law in such cases as to the inference which may be made from the face of the bond, of its having been regularly executed by the party having authority to do it, that we are relieved from the task of considering much of the argument made to us by counsel; and from examining the special pleas which were put in by the defendant, or the reasoning of the Court upon the third and fourth pleas upon which it rested its judgment for the dismissal of the plaintiff's case. If the contract and bonds are considered in connection with the authority of the Board of Commissioners of Miami County to issue them, it must be obvious that several of the points presented to us by the counsel of the defendant do not arise in the case. For instance, whether the Board of Commissioners of Miami County had power to issue them at the time and for the purpose for which in was done, or that the bonds and interest warrants, by having been endorsed to the plaintiff by the Railroad Company were subjected to the revised statutes of Indiana, making certain promissory notes, &c., negotiable by endorsement thereon, so as to vest the interest in the contract to the assignee, and permitting the obligor to set up any defence to the obligation against the assignee, that he could have done against the original obligee. or that it was necessary to them

Moran vs. Commissioners of Miami County.

that the bonds were issued by virtue of a special statute, and if that did not exist, that the bonds may be held to be void.

It is true that all of these points were as well argued by the counsel of the defendants as the circumstances of the case per mitted, but in every instance, either of argument or of pleading, the point of estoppel, as made by the plaintiff's counsel in the Court below, and renewed here by him with vigor by the citation of many cases, was not directly met by the counsel of the defendant. The first point of the plaintiff's counsel was, that even if the bonds had been issued irregularly, and not in strict conformity with the power of the county to borrow money, that the defendant is, nevertheless, estopped by the bonds themselves, which, on their face, express that they were issued for a loan of the amount to the county, as authorized by the Act of the General Assembly to borrow money, and that such bonds being habitually received and passed as commercial securities, and being bona file in the hands of the plaintiff, that they were entitled to recover the amount of interest sued for, notwithstanding there might be equities between the original parties to the transaction. It is not necessary for us to follow out the plaintiff's argument in this particular, thinking it, as we do, conclusive. We think that the bonds in this case, with interest warrants annexed, are commercial securities, though they are not in the accustomed forms of promissory notes or bills of exchange; that the parties intended them to be passed from hand to hand to raise money upon them, so that a full title was intended to be conferred on any person who became the legal holder of them, and that the original maker under such circumstances has no equity to prevent the recovery of the interest.

But the real point in this case, as made by the counsel of the plaintiff in error, and sustained in argument by numerous adjudicated cases, was, that as it is declared in the bonds that they were issued by the Board of Commissioners of Miami County by order or resolution, pursuant to the statute authorizing the County to borrow money, passed at a regular meeting of the Board, to be used by the Peru and Indianapolis Railroad, payable to the Company, or bearer, for a loan to the County that

Moran vs. Commissioners of Miami County.

the bona fide holders of the bonds, whether so by endorsement or delivery, had a right to infer that the bonds had been lawfully issued, by which the County of Miami is estopped in a suit for the recovery of the interest from denying by pleas that its bonds had been issued to the Peru and Indianapolis Railroad for a loan of money to the County of Miami. We think and adjudge that the recitals in the bonds are conclusive, constituting an estoppel in pais upon the defendants in this suit. In support of this conclusion, we cite the following cases: Girard vs. Bradley, (7 Ind., § 600); Reeves vs. Andrews, (Ibid., 207); Frances vs. Porter, (213); May vs. Johnson, (3 Ind., 448); Trimble vs. State, (4 Black, 435); (8 Blackford, 258); Ryan vs. Vanladingham, (7 Ind., 416; 24 How., 375); (23 How., 381); (29 Connecticut Rep.); Society of Saving vs. City of New London, (103); (1 Vesey, senior, 123, 8 Blackf., 47). It is the opinion of this Court that the defendant is estopped from setting up the defences taken as set forth in the transcript of the record of this case, and that the judgment of the Court below sustaining the demurrer should be, and is hereby reversed and annulled, and that the case should be remanded to that Court, with directions to award a venire facias de novo.

INDEX

OF THE

PRINCIPAL MATTERS

ADMIRALTY.

▲ decree for the payment of money in an admiralty suit in personam, stands as a lien, on the same footing as a decree in equity.

Ward v. Chamberlain, 430. Where judgments and decrees in equity of State Courts, are by State laws, liens upon land, decrees in admiralty by the courts of the U. S. stand on the same basis, and are equally binding. Ib.

Rights of libellant and respondent, where such lien is established. Ib. The amount of a libellant's claim for repairs of a vessel, can only be con tested by claimant in this Court, upon specific objections taken in the court below. Ship Potomac, 581.

General exceptions to a master's report, will be overruled as frivolous. Ib (See Practice-Chancery-Lien-Blockade.)

AGENT. See Principal and Agent.

APPEAL.

A general decree of a Court of Equity, providing for the distribution of funds not collected, but secured by judgments, and appointing a master to state an account, is not a decree from which an appeal will lie. Ogilvie v. Knox Insurance Company, 539. An order of a Circuit Court to put a purchaser of property sold under its direction into possession, is not a decree from which the tenant can appeal to this Court. Callan v. May, 541.

If the tenant claimed the right to remain, under an agreement with the purchaser, his remedy was a bill for an injunction, on which a final decree could have been made, and an appeal taken. Ib.

The order of a judge granting an appeal, is no proof that he concedes or even favors appellant's claim. Ib.

Within what time an appeal must be taken to this Court.

Dismissal the consequence of delay. Ib. ASSIGNMENT.

Mesa v. The United States, 721.

What words make an assignment fraudulent under the laws of Wisconsin. Sumner v. Hicks, 532.

Where two assignments are made, the first void, the second free from objection, and made before any creditor has acquired a lien, the latter is valid. Ib.