or special verdict, but may be required by the court, in any case in which they render a general verdict, to find specially upon particular questions of fact to be stated in writing." Gantt's Digest, sec. 4697.

Such requirement may be very proper in some cases, but wholly useless and unnecessary in others, and only the court trying the case can judge of the expediency of it.

For the error in giving the plaintiff's instructions the judgment is reversed, and the cause remanded.

See note, vol. 6, p. 17.

1. In a suit to enforce the issuing of bonds by a municipality for its use, the
burden of proof is upon the railroad company to show affirmatively that the issue
of the bonds was authorized by a vote of the people, had, pursuant to a law pro-
viding therefor, prior to the adoption of the present constitution, and the law
under which the election is held must be substantially complied with, or the elec-
tion will confer no authority. Chicago, etc., R. R. Co. v. Mallory, 139.

2. Where a law for an election to determine whether a subscription, etc.,
shall be made by a town to aid a railroad corporation, provides that "such elec-
tion shall be held and conducted, and returns thereof made, as is provided by the
Township Organization law in towns organized under said law," an election held
on the question, as in the case of an ordinary town meeting, presided over by
one moderator only, with only one clerk, is void, and will confer no authority to
issue the bonds of the town. Such a provision_requires the election to be held
by three judges and two clerks, as in general elections. The words "town
meeting," and the word "election," as used in the Township Organization law,
are not convertible terms. Id.

3. The words "town meeting" have a definite and well settled meaning in the
Township law, and are always used to describe the annual town meetings of the
electors of the town for the purpose of electing town officers, and transacting
such other business as the electors are authorized to transact, or special meetings
of the electors for such purposes called pursuant to law. Such meetings are
clearly distinguishable from " elections," when there is no other business trans-
acted but to elect officers. Id.

4. The act of Missouri, of January 4, 1860, authorizing the inhabitants of a
certain "strip of country" to subscribe to the stock of a railroad passing
through it, and to levy a tax to pay the subscription, does not authorize the issu-
ing of bonds to pay such subscription by so anticipating the tax. Ogden v.
Daviess Co., 145.

5. Neither the act of March 3, 1868, amended March 24, 1870, authorizing
"municipal townships" to pay former subscriptions to railroad stock in bonds,
nor the act of March 24, 1868, authorizing "counties, cities and towns" to do
the same, authorizes the issue of the above-mentioned bonds, as these acts apply
only to such public corporations as entireties, and not to a strip of country"
containing the aggregation of many parts of such townships, etc. Id.

6. The issue of such bonds being wholly unauthorized, and ultra vires, they
are void even in the hands of a bona-fide holder.

BOND-Continued.

7. There can be no bona-fide holder of town bonds within the meaning of the
law applicable to negotiable paper, as they can only be issued by virtue of spe-
cial authority conferred by some statute, and are only binding upon the town
when issued in the way pointed out by the statute. Cagwin v. Hancock, 150.

8. All persons, therefore, taking such bonds are chargeable with knowledge of
the statute under which they were issued, must see to it that its provisions were
complied with; and in the absence of some provision making the action of the
officer or agents of the town binding and conclusive, the fact that the holder of
such bonds purchased for value and in good faith, does not preclude the town
from showing that they were illegally issued. Id.

9. Under the provisions of the act of 1866 (§ 2, chap. 398, N. Y. L. of 1866)
authorizing certain towns to subscribe for the stock of the N. Y. and O. M. R.
R. Co., and to issue bonds for moneys borrowed to pay therefor, provided the con-
sent in writing of a majority of the tax-payers, owning more than one-half of the
taxable property of the town shall first have been obtained, and provided that the
fact that such majority has been obtained, shail be proved by affidavit, in
writing," of one of certain specified town officers, and declaring that such affi-
davit or a certified copy thereof shall be evidence of the facts therein con-
tained," the affidavit is not conclusive, but only prima-facie evidence of the
facts and may be disputed. Id.

10. Accordingly held, in an action to recover the amount due upon certain in-
terest coupons cut from bonds issued by railroad commissioners appointed for
defendant under said act, and which had been purchased for value and in good
faith, that defendant was not precluded by an affidavit of its assessor from show-
ing that in fact the consent of a majority of the tax-payers of the town had not
been obtained. Id.

11. The court is inclined to hold that the act of February 28, 1869, amenda-
tory of the charter of the Illinois South-eastern Ry. Co., in so far as it autho-
rizes towns, etc., along or near the route of the road to subscribe to the stock of
the company, or make donations and issue bonds therefor, is in violation of sec-
tion 23, art. 3, of the constitution of 1848, which declares that no private or
local law shall embrace more than one subject, which shall be expressed in the
title. Welch v. Post, 158.

12. Making donations to railway companies and issuing interest-bearing bonds
in payment thereof, are not among the usual or implied powers possessed by
municipal corporations, and without express power given by statute to issue
such bonds they will be void in the hands of any and all persons. Id.

13. Where a railway charter authorized any incorporated city or town on the
line of the proposed road to make donations to the company, not exceeding
$10,000, to be paid by immediate taxation, giving no power to issue bonds in
payment, and an amendment to the charter named villages, counties and town-
ships as corporations to which power was given, on a vote of the people, to
make donations to the proposed railroad, and to issue interest-bearing bonds in
payment thereof: Held, that bonds issued by an incorporated town after the
passage of the amendatory act of 1869, upon a vote for a donation to the railway
company, were illegal and void, being issued without sanction of law. The
word town being omitted from the act authorizing the issue of bonds, cannot be
supplied by judicial construction. Id.

14. While it may be that a court of chancery has no jurisdiction to declare mu-
nicipal bonds void which are held by non-residents who do not appear in the suit,
yet the court has jurisdiction as to any such holder who appears and contests
the bill on its merits, and also to enjoin the local officers from the collection of
taxes, to pay such bonds or the interest thereon. Id.

15. The recital in the entry of a board of county commissioners, ordering an
election in a township upon a petition therefor to vote aid for the construction
of a railroad, and proof being made that twenty-five of the petitioners are
freeholders of Clinton township," is sufficient to show that such board found
that the petition was signed by twenty-five freeholders of the particular town-
ship of their own county, and the mere fact that such recital was interpolated

BOND-Continued.

after the other parts of the entry had been completed does not affect the validity
of the entry or the part interpolated. Goddard v. Stockman, 165.

16. While it is the better practice that the record of the proceedings of a
board of county commissioners should be signed by the members thereof, yet
unsigned orders of the board are not void, and, when properly signed within a
reasonable time, become valid from the time when made.

Id.

17. A petition asking for an appropriation to aid in the construction of a rail-
road is not invalid for the reason that it does not ask for the annexing of condi-
tions to the appropriation. The act of March 8, 1879, Acts 1879, p. 46, enables
petitioners and voters to annex conditions to appropriations, but does not com-
pel them to do so if they do not desire any conditions. Id.

18. While the law for contesting elections is not applicable to elections held
for the purpose of voting aid for the construction of a railroad, yet the board
of county commissioners has the right to go behind the canvass of the vote and
inquire into the truth of the return made by the canvassers; and any individual
interested may appear before the board and contest the result of the election,
and if aggrieved at their decision may appeal to the circuit court, and in this
way the validity of the result of such election, as to the legality of the votes
cast, may be contested, but not by a suit to enjoin the collection of the tax
levied in pursuance thereof. Id.

19. If, in such case, the one per cent levied for the current year amounted to
less than one half of the amount of the donation asked, the remedy therefor is
by appeal from the order whereby the levy was made. Id.

20. The recital in the record of the order of the board of commissioners mak-
ing such an appropriation, that “it is hereby ordered that a special tax of one
per cent
be, and the same is hereby levied, for the purpose of rais-
ing one-half of the amount specified in said petition," is a sufficient granting of
the prayer of the petition. id.

21. If, in making the levy for such donation, certain taxable property of the
township was omitted from the assessment, the tax upon all other property that
has been assessed is not thereby rendered invalid. Id.

22. Where bonds of a corporation which have passed into the hands of a bona
fide holder recite on their face that all the conditions precedent to their lawful
issue have been complied with, this recital is conclusive and binding on the cor-
poration. Co. of Clay v. Society for Savings, 170.

23. The want of performance of conditions precedent is a matter of defence
for the corporation to allege and prove, in case of suit on the bonds. Id.

24. The general statute of Illinois of November 6, 1849, in relation to county
subscriptions to railroad stock, is not repealed, so far as it concerns the Illinois
South-eastern Ry. Co., by section 7 of the act of February 26, 1867, to incor-
porate that company; i.e., by these two acts a county is not forbidden to sub-
scribe to the capital stock as well as to make a donation to the said com-
pany. Id.

25. Nor are the above acts repealed, so far as they concern the said company,
by section 10 of the amendatory act of February 24, 1869. Id.

26. Where a donation by a county to a railroad had been voted and the dona-
tion made on the books of the railroad previous to 1870, and the company had
by that time partly done the work required by the county as a condition, this
created a contract between the railroad and the county; and the bonds issued
after 1870 to carry out that contract are not invalidated by the provisions of the
Illinois Constitution of 1870 forbidding such subscription. Id.

27. The payment of interest on its bonds for a long period is a waiver by the
corporation of irregularities in their issue, when sued on by a bona fide holder
for value. Id.

28. Section 7 of chapter 90 of the Kansas Laws of 1870, p. 90 (and of chapter
84, Comp. Laws of 1879, pp. 796, 797), so far as it attempts to divert any portion
of the general county tax or general township tax to the payment of a certain
class of township railroad bonds, is void, being in contravention of section 4
of article 11 of the constitution, which provides that "no tax shall be levied
except in pursuance of a law, which shall distinctly state the object of the same;

BOND-Continued.

to which object only such tax shall be applied." National Bank v. Barber, 181.
29. Under the Illinois constitution of 1848, the legislature could properly con-
fer upon a city the power to incur indebtedness and issue its bonds for a corpo-
rate purpose, without any vote of the people, but it could go no further. It
could not compel a city or incorporated town to incur a debt, unless the legisla-
tive department of the city or town saw proper to do so. Chicago, etc., R. R.
Co. v. Aurora, 191.

30. Where an act conferring power upon a city council to incur an indebted-
ness and issue its bonds therefor is silent in regard to the time when the bonds
shall be made payable, and in regard to the terms and conditions upon which
they shall be payable, such matters will be left to the city and the person to
whom the bonds are to be issued, to be settled, and when agreed to, the city
may make the payment of such bonds depend upon conditions mutually as-
sented to. Id.

31. Where a bond contains two conditions, one authorized by law and good,
and the other unauthorized and bad, and the conditions are in their nature
severable, the latter may be rejected and the other held good and the bond sus-
tained. Id.

32. The city of Aurora, under an act of the legislature authorizing it to issue
its bonds as a donation to a railway company to secure the location of its
machine shops in the city, passed an ordinance for the issue of such bonds, to
be conditioned that both the principal and interest should be paid out of moneys
to be raised by special tax, to be levied and collected of property in the east
division of the city, and that if such a tax could not be legally assessed, the
obligees should procure the passage of a law authorizing the levy of such a
special tax, and that if any of the conditions were not fulfilled, the bonds should
be void. Under this ordinance the city issued her bonds, conditioned as the
ordinance required. It was contended by the holder of the bonds, that the
condition being void, for the reason the city could not, under the constitution,
levy and collect a special tax except over its entire territory, therefore the bonds
were payable as though there was no condition: Held, that the conditions were
such as the city had the right to impose, and it being the intention of the parties
that they should not be obligatory if the conditions could not be performed, the
bonds were not collectable. Id.

33. In the construction of all written contracts, the controlling consideration
always is to arrive at the intent of the parties, and in doing this every part of
the instrument is to be considered and properly weighed. So the condition of
a bond may be considered to explain the obligatory part. Id.

34. In actions brought to restrain defendants from transferring, and to com-
pel the cancellation of bonds issued by plaintiff under the act of 1869 (chap.
314, N. Y., L. of 1869), authorizing it to subscribe for stock of the C. L. R. R.
Co., it appeared that revocations of consents of tax-payers of the town, exe-
cuted and acknowledged with the same formalities as the consents, were deliv.
ered to the assessors while they had the consents before them, and before they
had acted upon them, and that the residue were insufficient to constitute the
majority required by the statute; also that the assessors disregarded the revoca-
tions and wrongfully made and filed the statutory affidavit. Held, that the
omission to file the revocations did not render them ineffectual; that their
delivery made them effectual and withdrew from the assessors the authority to
make the affidavit. Springport v. Teutonia Sav. Bank, 199.

35. Also, held, that such omission did not estop the plaintiff; that, assuming
the tax-payers, who signed consents, and then revoked them, could be es-
topped by their acts or omissions, they could not estop the whole body of tax-
payers. Id.

36. Also, held, that a tender, before the commencement of the action, of the
stock received for the bonds was not necessary; that defendants could not re-
quire a tender to themselves, as they were not received from them and they
had no title thereto. If they had any right to them (as to which quære), all
they could claim was an equitable right of subrogation on cancelling their
bonds; if the claim was that the stock should have been surrendered to the