corporation, when sued or suing in a Circuit Court of the United States, is composed of citizens of the State which created it, and that therefore such a corporation is itself deemed to come within that provision of the Constitution of the United States which confers jurisdiction upon the Federal courts in "controversies between citizens of different States," applies only when the incorporators are natural persons; when, therefore, the act of incorporation purports to create a new corporation out of the corporation of another State, the new corporation for purposes of Federal jurisdiction must be regarded as a citizen of the same State as that of the constituent corporation. Ib. 3. Where one corporation is vested by legislative enactment with the power to guarantee the bonds of another corporation the power to acquire stock therein is to be implied from the power to guarantee. Ib. 4. Under the provisions of the act of April 7, 1882, of the legislature of Kentucky, 2 Laws of 1881-1882 (Private Acts), p. 251, c. 870, the Louisville, New Albany and Chicago Railway Company, the Kentucky corporation, had the unrestricted power to place a guaranty upon the bonds of the Richmond, Nicholasville, Irvine and Beattyville Railway Company, and to acquire its stock as a consideration therefor, without respect to any limitation imposed by the act of March 8, 1883, of the legislature of Indiana, General Laws of 1883, p. 182, c. 127, on the constituent Indiana corporation, and such guaranty was, therefore, a valid obligation of the Kentucky corporation enforceable against its property in Kentucky. Ib. 5. Where two corporations have the same name and management and are identical in every respect except in the origin of their powers, and in effect are general agents of each other, the presumption from the use of the common name must be that both are intended to be bound, in the absence of some specific restriction in the obligating instrument. Ib. 6. While an act which is plainly ultra vires a corporation cannot be made valid by the acquiescence of all the stockholders, one merely extra vires the directors but intra vires the corporation may be made valid by their acquiescence. Ib. 7. Where an act of a corporation is seemingly defective because of a failure to comply with some preliminary condition upon which the authority of those acting for the corporation is made by the charter to depend, one of the public dealing with the corporation in such a case has the right, in the absence of notice to the contrary, to presume that the condition has been complied with, and, in case he advances money on the faith of it, to hold the corporation in spite of the defect. Ib. 8. The maxim omnia præsumuntur rite et solemniter esse acta, donec probetur in contrarium is applicable to everything done by a corporate officer, and when one in good faith has advanced value on the faith of the presumption of the regularity of the acts of a general agent of a corporation whose authority depends on compliance by himself or other members or agents of the corporation with prelimi nary regulations, the presumption of regularity against the corporation is conclusive. Ib. 9. A private corporation is bound by the knowledge of its officer or agent which has come to him while concerned for the corporation and in the course of the very transaction which is the subject of the suit, or so near before it that he must be presumed to recollect it. Ib. 1. This court, having in Tefft v. Stern, 43 U. S. App. 148, reversed an order of the trial court allowing certain costs and expenses for the reason that a subsequent opinion of the state court of Michigan had held that such costs and expenses were not allowable under section 8098 of Howell's Annotated Statutes of the State of Michigan of 1882 when construed with section 8073 thereof, which decision was held to be binding upon this court, now refuses to modify its former opinion so as to adjudge that no costs of this court should be allowed against the defendant in error, holding that the ground on which the application was made, namely, that the application in the court below was made in good faith by the defendant for the allowance of his costs and expenses, could not make any difference in the adjudication of costs in this court, as it must be assumed that all judgments obtained in the court below are applied for in good faith. Tefft v. Stern (2), 442. 2. In this case this court refused to apportion costs in this court on the ground of its impracticability, and because it would throw upon the court the burden of separating and apportioning the costs as between plaintiffs in error and defendants in error in all cases where a part of the judgment of the lower court was adjudicated to be correct and other parts erroneous, and a reversal had thereon. Ib. See GARNISHMENT, 1, 2. COUNTERCLAIM. See ARBITRATION. COUNTY. See JUDGMENT, 3; TAX AND TAXATION, 1. COUNTY BONDS. Under the provisions of the Kentucky act of May 15, 1886, Private Acts of 1885-86, p. 702, c. 1159, the county of Mercer was authorized to subscribe to the capital stock of the Louisville Southern Railroad Company and to pay for the same in its negotiable coupon bonds. To secure the county against failure to complete the road all power to issue bonds was made dependent on the actual construction of the road "through" the county. To secure the railroad in obtaining the bonds when actually earned it was provided that, when a favorable vote of the people had been cast and a subscription made, the bonds should be prepared and formally executed and deposited with a trustee, who should hold them in escrow and deliver them only when the railroad company had actually performed all precedent conditions. The act further provided in plain terms that the bonds should not be valid obligations until the completion of the road, and further, that the trustee should give a bond for the due discharge of his trust. Under this act the county issued bonds, in form negotiable securities, each of which recited that it was "issued pursuant to the authority conferred upon the said county" by the said enabling act of May 15, 1886, which was the only recital in the bonds concerning the authority for their issuance. The bonds were deposited in the hands of a trustee, who before the road had been completed through the county delivered them to the railroad company and received from it a certificate of certain shares of its capital stock. The road as constructed ran from a boundary line of the county through the county nearly twenty miles to a town where a junction was made with another railroad about two miles from the nearest point on another boundary of the county. For a time after their issuance the county levied an annual tax to meet the interest on the bonds and paid interest thereon, but afterward defaulted. This action was brought against the county by a trust company on past-due coupons of certain of the said bonds which it had bought. Held, (1) That the provisions in the enabling act of May 15, 1886, that the bonds should not be valid obligations of the county, and that the trustee should not deliver them, until the railroad should have been constructed "through" the county, were imperative, and limited the power of the county and of the trustee to the issuance of bonds only when the requisite facts existed; (2) that the legislature had undoubted authority to impose the condition that the bonds should not be valid obligations until the railroad should have been constructed "through" the county; (3) that the construction of the railroad to a point within two miles of the statutory requirement was not a substantial compliance with the condition; (4) that the trustee, in delivering the bonds before the condition had been complied with, did so in viola tion of his duty and acted without authority of law; (5) that the recital in the bonds concerning the authority for their issuance must be referred to the acts which, under the enabling act of May 15, 1886, were to precede the execution and deposit of the bonds in escrow, and did not operate as a recital of facts which could not have existed when the bonds were made; (6) that there was no estoppel by recital, because there was no statement in the bonds implying that the railroad had been completed "through" the county, as required by the provisions of the enabling act of May 15, 1886, and because the trust company, in buying the bonds, was bound to look to the enabling act, which operated as notice to it that the bonds were not binding and valid obligations when placed in escrow, and would not become valid and legal securities until the railroad should have been completed "through" the county; (7) that it could not be sucessfully contended that the absence of recitals in the bonds was immaterial, because the circumstances attending the execution of the bonds were such that there could be no recitals on the face of the bonds importing the performance of conditions which were to be complied with after their formal execution and deposit in escrow, and that the decision of the trustee before delivering them to the railroad company that all precedent conditions had been complied with precluded the county from contradicting that decision after the bonds had passed into the hands of an innocent purchaser, because to support this position it was necessary to construe the enabling act of May 15, 1886, as not only empowering the trustee to ascertain and determine whether all conditions subsequent to such deposit had been performed, but that such determination should estop the county as against an innocent purchaser of the bonds, although no such determination appeared on the bonds, either through a recital or an indorsement, - a construction of the act for which no express authority existed; (8) that the fact that the enabling act of May 15, 1886, authorized the making of "negotiable bonds" furnished no basis for the contention that authority in the trustee to decide whether all conditions subsequent to the deposit of the bonds had been performed was to be implied, and that his decision should be conclusive, but that the mere fact that the bonds had been issued and were in form negotiable securities, if entitled to any significance whatever, only raised a presumption that they had been delivered to the railroad company by the trustee in compliance with the terms of the law, but that such a presumption would not be conclusive, and that the county would not be estopped, even as against one who bought in actual ignorance of the facts; (9) that the authority of the trustee to deliver the bonds depended on the same principles that determine such authority in other contracts, and was not aided by the doctrine that, when once lawfully made, negotiable paper has a more liberal protection than other contracts in the hands of an innocent holder, and that the fact that the bonds were negotiable bonds did not relieve the trust company from the duty of looking to the authority of the trustee to deliver them; (10) that the fact that the trustee was required to give a bond for the due discharge of his trust did not imply that the county was to look to this bond in case of an unauthorized delivery; (11) that the county could not be held responsible upon the principle that, whenever one of two innocent persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it, because the trust company could not be regarded as an innocent purchaser, as it was constructively chargeable with all that inquiry would have disclosed, and because the bonds, as bonds of a municipal corporation, were invalid for want of power to issue them until the actual completion of the railroad in aid of which they were authorized; and (12) that, as no power to issue the bonds existed when they were issued, they were not rendered valid by the payment of interest for a time after their isuance. Mercer County, Kentucky, v. Provident Life and Trust Company of Philadelphia, 21. 1. A Circuit Court of Appeals is not authorized to weigh the evidence in a case; that is the province of the jury. City of Findlay v. Pertz, 383. 2. This court will not consider a specific objection when the assignment of error under which it is claimed the objection is made is too broad and general under Rule 11 of this court to bring up such objection. Ib. |