Such preventive remedies are provided for in every commonwealth in the country, and the courts are always prompt and vigorous in action to afford the proper relief and prevent the intended wrong, when appealed to for that purpose. The issuance of bonds for a legal purpose will also be restrained by the courts when the requirements of the law are not being substantially complied with in proceedings preliminary to, and in their issuance, or when the amount of the proposed issue is beyond what the statutes or the Constitution permit. Persons who are interested as taxpayers, and who would be prejudiced by any such improper issuance of negotiable bonds by the corporate officers, their agents, who fail to protect their rights and interests in the way suggested, have little cause to complain of the rule that protects the bona fide holder of bonds so issued, and compels them, the taxpayers, to contribute to their payment. But few of such cases have been prosecuted in the Federal courts, as in most instances those courts are without jurisdiction, on account of the citizenship of the parties. 929. (Mo. 1877.) A county was held to be estopped by acts of the county officials in the issuance of bonds under the circumstances stated. “Upon the clearest principles of justice, the taxpayers of Ray county are concluded by the acts of their official agents, and by their own failure, either intentionally or from neglect, to assert, by appropriate proceedings, their legal right, (if any they ever had) to prevent the transfer of their original subscription to the company, which, by the construction of its road, gave them greater railroad facilities, and at no greater cost, than they could have obtained under the contract with the North Missouri Railroad Company." County of Ray v. Vansycle, 96 U. S. 675, 24 L. Ed. 800. Remedy of municipality for irregular and fraudulent conduct of its officers in delivery of bonds to railroad company in violation of conditions. 930. (Ill. 1878.) When bonds have been issued on behalf of a town by the proper officers thereof, without compliance with conditions imposed by the voters, and have been delivered to the railroad company in violation of special conditions of which the pur- Action by taxpayers to compel return "Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county or the illegal creation of a debt which they in common with other propertyholders of the county may otherwise be compelled to pay, there is at this day no serious question. The right has been recognized by the State courts in numerous cases; and from the nature Failure to enjoin issue of bonds for irregularity. 932. (Kan. 1885.) "It is further to be said, that if there was, in fact, any want of proper notice of the election, the omission was only an irregularity in the exercise of an express power of the powers exercised by municipal corporations, the great danger of their abuse and the necessity of prompt ac tion to prevent irremediable injuries, it would seem eminently proper for courts of equity to interfere upon the application of the taxpayers of a county to prevent the consummation to issue the bonds, an irregularity in of a wrong, when the officers of those corporations assume, in excess of their powers, to create burdens upon property-holders. Certainly, in the absence of legislation restricting the right to interfere in such cases to public officers of the State or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate powers. The courts may be safely trusted to prevent the abuse of their process in such cases. Those who desire to consult the leading authorities on this subject will find them stated or referred to in Mr. Dillon's excellent treatise on the Law of Municipal Corporations." Crampton v. Zabriskie, 101 U. S. 601, 25 L. Ed. 1070. respect to a step forming part of preliminary conditions, and that the failure of the municipality and of the taxpayers to enjoin the issue or use of the bonds during the long period from the day of the election, September 13, 1869, until the bonds were registered in March, 1872, when they still belonged to and were in the hands of the company, coupled with the annual payment by the county, for ten years, of the interest on the bonds, are sufficient grounds for holding that the municipality is estopped from defending on the ground of such noncompliance with a condition precedent as is set up in this case, after the bonds have been negotiated for value by the company.' Anderson County Comrs. v. Beal, 113 U. S. 227, 5 Sup. Ct. Rep. 433, 28 L. Ed. 966. CHAPTER XV. PARTIES, PLEADING, PRACTICE AND EVIDENCE IN MUNICIPAL BOND CASES. A. Parties, pleading, and practice in municipal bond cases. B. Evidence in municipal bond cases. The rules of pleading, practice, and evidence in municipal bond cases are not so peculiar or distinctive as to require special consideration. The treatment of these subjects is not within the scope of this work, but we have thought it not improper to cite in this chapter the cases involving municipal bonds in which questions of pleading, practice, and evidence have been considered by the Supreme Court and the Circuit Courts of Appeals. In civil actions at law, the Circuit Courts of the United States follow the forms and rules of practice prevailing in the courts of the respective States, except in such matters as are provided for by Congress. The Revised Statutes of the United States provide (§ 914) that "the practice, pleadings, and forms and modes of proceeding in civil causes, other than equity and admiralty causes, in the Circuit and District Courts, shall conform, as near as may be, to the practice, pleadings, and forms, and the modes of proceeding existing at the time in the courts of record of the State within which such Circuit or District Courts are held, any rule of court to the contrary notwithstanding." A. Parties, Pleading, and Practice in Municipal Bond Cases. Bill of exceptions unnecessary. 933. (Wis. 1865.) "It is well settled that the ruling of the Circuit Court in sustaining or overruling a demurrer to a declaration and rendering judgment for the wrong party may be reexamined in this court by a writ of error without any formal bill of exceptions. Reason for the rule is, that the error is apparent on the record; and it is generally true that where the error is apparent on the face of the record a bill of exceptions is unneces sary." Rogers v. Burlington, 3 Wall. 654, 18 L. Ed. 79. Affirmed in Mitchell v. Burlington, 4 Wall. 270, 18 L. Ed. 350. Pleading in suit on interest coupons. 934. (Wis. 1869.) Recurring again to the declaration, we have said that the preamble, or inducement, was unnecessary, and might well be rejected as surplusage. As we have seen, it recites, in very general terms, the bonds to which the several coupons in suit were annexed. Now, each coupon itself contains substantially on its face, ⚫ [284] all this information. It is issued for was properly sustained." McClure v. interest due at a certain day and place Township of Oxford, 94 U. S. 429, 24 on a bond, giving its number and date. L. Ed. 129. Another form adds the amount, but this is unimportant as the bond is Demurrer to answer to petition on sufficiently identified without it. The bonds. production of the coupon, therefore, at the trial, will show the relation it bears to the bond, and, if our opinion is sound, that in this connection it cannot be legally severed from it till the interest is paid, a count upon the coupon is all that can be material." The City (of Kenosha) v. Lamson, 9 Wall. 477, 19 L. Ed. 725-730. General denial in answer to petition. 935. (Iowa, 1870.) "The denials of the first part of the answer, though not strictly in the form required by the rule, put in issue every material fact alleged in the petition. It therefore made an issue on the plaintiff's allegation that he became the holder of said coupons before maturity, and that he paid value therefor, so far as that might become material to be shown on the trial." Smith v. Sac County, 11 Wall. 139, 20 L. Ed. 102. 936. (Wis. 1872.) A judgment will not be reversed by a reviewing court for technical errors of the trial court when they were not prejudicial to the party complaining. Grand Chute v. Winegar, 15 Wall. 355, 21 L. Ed. 170. Trial court directing verdict. 937. (Kan. 1876.) "Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence." Comrs. of Marion County v. Clark, 94 U. S. 278, 24 L. Ed. 59. Copy of bonds in declaration; irregularity in issue shown thereby; demurrer that declaration does not set forth good cause of action: sustained. 938. (Kan. 1876.) "As the declaration sets out a copy of the bonds with all the recitals, and the recitals show that the bonds were irregularly issued and not binding upon the township, it follows that the declaration does not set forth a good cause of action against the defendant, and that the demurrer 939. (Mo. 1876.) Plaintiff alleged in his complaint that the defendant county issued certain bonds, which recited that they were issued pursuant to an order of the County Court made on a date named by authority of an act mentioned, that he was the owner for value of coupons of said bonds and entitled to recover thereon. The county answered, besides denying its promise to pay the bonds or coupons and that plaintiff was the owner for value of the coupons, that no orders for their issuance were made by the County Court, but that two of the justices of the court fraudulently and corruptly, but not as a court, made certain orders set forth, but upon conditions which were not complied with. On a general demurrer to this answer, held that, if the answer contained any good defense, the demurrer must be overruled. "We think the plaintiff erred in demurring to the answer and thus admitting that the County Court had never exercised its power." Held, also, 66 The plaintiff's case is not aided by the allegation that he is a holder for value of the coupons. A holder for value is not affected by any irregu larities or frauds or unfounded assumption of authority on the part of the agents of the town or county. But good faith is unavailing where there is an entire want of authority in those who profess to act." "The answer expressly denies that the plaintiff is a holder for value of the coupons." County of Dallas v. McKenzie, 94 U. S. 660, 24 L. Ed. 182. Judgment against county on bonds of township. 940. (Mo. 1877.) Held, that suit was properly brought against the county on bonds issued by the County Court on behalf of a township of the county. County of Cass v. Johnson, 95 U. S 360, 24 L. Ed. 419. Filing instruments sued on with declaration. 941. (Ill. 1878.) By the statute of Illinois in regard to practice in courts of record the plaintiff in a suit upon a written instrument is re quired to file with his declaration a Bank, 10 Wall. 604." Orleans v. Platt, copy of the instrument sued upon. In 99 U. S. 676, 25 L. Ed. 404. obedience to this statute the plaintiff in this case filed with his declaration copies of the bonds and coupons declared upon. In this way we think the bonds became a part of the pleadings in the case. Demurrer to plea, when sustained. "The bonds upon their face refer to the ordinance of the city council authorizing their issue, printed on the back; and in the ordinance it is distinctly recited that the election required by law was held pursuant to notice given in accordance with the provisions of the act authorizing a subscription, and that upon a canvass of the votes it appeared that there had been cast for subscription a large majority of the votes of said city, the number of votes given being a large majority of all the votes polled at the last general election in said city, and a much larger vote than that required by the act aforesaid to authorize said subscription.' With this recital, in effect, upon the face of the bonds in the hands of an innocent holder, it was certainly not error in the court below to sustain a demurrer to the second, third, fourth, and fifth pleas, which simply tendered an issue as to the authority of the city to issue the bonds, and as to the fact of the election." Nauvoo v. Ritter, 97 U. S. 389, 24 L. Ed. 1050. Charge to the jury. 942. (N. Y. 1878.) "Where the testimony is all one way and is conclusive in its effect, a party has no right to ask a charge which assumes that it is otherwise. It would tend to create a doubt where none existed, or ought to exist, and might mislead the jury." Directing verdict. "The last assignment complains that the court directed the jury to find for the plaintiff. It is well settled in the jurisprudence of this court, that if the facts are clearly established and are undisputed, it is competent for the court to give such a charge. In one of the cases brought before us, where it had been done, the practice was commended, and it was remarked that 'it gives the certainty of applied science to the results of judicial investigation.' Merchants' Bank v. The State Pleading; sufficiency of pétition on bonds; pleading precedent conditions. 943. (Mich. 1880.) Held, that in an action on bonds of a municipal body issued in pursuance of legal authority it was unnecessary to plead the performance by the municipality of precedent conditions, such as a popular vote, etc. "The township had authority by law to issue its bonds by way of donation to a railroad. It did issue its bonds. They got into circulation as commercial securities, and were purchased by the plaintiff. All the plaintiff had to do in case of nonpayment was simply to sue on the bonds. If there was any defense to them by reason of want of performance of any of the requisites necessary to give them validity, or for any other cause, it was for the defendant to show it. A bond, especially a negotiable bond, is a prima facie obligation of the obligor, if he has capacity to make it; and is binding according to the terms and conditions apparent on its face until the contrary be shown. Whether an alleged defense, when set up, is or is not good against the particular holder, it is to be determined by the court in each case. How far, as against a bona fide holder, the obligor may, in any case, go behind the obligation itself, for the purpose of showing a failure to pursue the law authorizing its issue, is not yet, perhaps, clearly determined." Lincoln v. Iron Co., 103 U. S. 412, 28 L. Ed. 518. |