made in 1858. This was offered as color of title to support the defence of the statute of limitations. The only evidence of possession was, that the defendants had permitted the city of Louisiana to build a hog-pen on the center of the block in controversy, which had been occupied about two years, and had then been abandoned and gone to decay, and that the defendants had paid taxes for ten consecutive years. Held

1. That there was no evidence of a continuous adverse possession ten years, so that the bar of the statute of limitations would attach. The continuous payment of taxes is not of itself sufficient to show adverse possession.

2. There being no evidence of a continuous adverse possession during the time prescribed by the statute of limitations, it was not error to refuse to permit the tax deed to be read in evidence. Supreme Court, Mo., Oct.

Term, 1873.

Outstanding Title.—Another point made in last case, related to the rejection of evidence that the former owner had conveyed the land in controversy by parol, for the purpose, it would seem, of showing an outstanding title in a third party. The rejection of this evidence was held proper. Since the introduction of the common law, lands cannot be conveyed in this state by parol.

Railway Negligence; Killing Stock.-Where it was proved that the plaintiff's cow was killed by being run over by a train on defendant's railway track, at a point where it passed through the open prairie, and where there was no fence nor crossing;-held, that in such cases, the law presumes negligence, and it does not devolve on the plaintiff to prove it. All that the plaintiff was required to show was, that the cow strayed upon the track, without his fault, or by reason of the track not being fenced. Lantz v. St. L., Kan. City and Northern Railway Co., Sup. Court Mo. Oct. Term, 1873.

her outcry or complaint; and the complaint would be constrained without it. It is because it is natural for a female to make immediate complaint, when so violated, that the law calls upon her to show the fact of such complaint, and the law will not require her to make a complaint that is unnatural and constrained. We think the court did not err in admitting the testimony."

Quo Warranto; Pleading.—The enquiry in proceedings by information in the nature of quo warranto is limited to the charges in the information; and matter set up by way of plea is only material in so far as it shows warrant in law for the exercise of the authority alleged in the information to be usurped. State ex rel., etc. v. Cincinnati, 23 Ohio State, 445.

An information which charges a corporation with usurping certain fran

chises by acting through other parties, calls in question only the authority of the usurping corporation, and cannot be extended so as to include authority not derivable from the corporation, and which such parties exercise in their own right. Ibid.

Partnership; Dissolution; Preference of Creditors in Distribution of Assets. The preference which creditors of a partnership may have over those of an individual partner, in the distribution of the assets of the firm, cannot be defeated by a mere executory agreement between the partners, for the sale, or transfer, of the assets of the firm to one of them, unaccompanied by any actual delivery or transfer. A delivery, or transfer, in such cases, will not be presumed, but must be shown, in order to defeat this right of the creditors of the firm; and, therefore, where such purchasing partner dies before the time fixed for the delivery or transfer of the property, assets of the firm subsequently found in the hands of the surviving partner, who is also executor of the deceased, will be presumed to be held by him in his character of surviving partner, and not as executor.

Thus, two partners, A. and G., agreed that the firm should be dissolved at a specified future time, and that A. should then take and own all its property and effects, and should pay all its debts. Before the time named,

Consideration; Compounding Debt Due by Insolvent.—Where the plain- A. died insolvent, having by his will, appointed G. and another person his

tiffs and other creditors of the defendant, who was in insolvent circumstances, without any fraud, agreed to accept fifty cents on the dollar in full satisfaction of their respective claims, and the plaintiffs had been paid such composition in full, and had surrendered to the defendant the note held by them upon him in pursuance of such agreement-held, that they cannot maintain an action to recover the unpaid balance of such debt. Murry et al. v. Snow, Sup. Court Iowa, Dec. Term, 1873; 7 Western Jurist, 685.

Tender; Admission.-An answer averring a tender of a sum to the plaintiff, and that it is brought into court, is a good plea of tender, and operates as an admission that the sum tendered is due the plaintiff, and authorizes a verdict for the plaintiff in an amount which the jury may find due him, which cannot be less than the sum tendered. Babcock v. Harris, Sup. Court Iowa, Sept. Term, 1873, 7 Western Jurist, 687.

Rape; Evidence of Immediate Outcry.-In Burt v. The State, 23 Ohio State, 394, which was an indictment for rape, the state was permitted to prove that the prosecutrix made declarations soon after the alleged assault, charging the defendant with being the guilty party. The part of the testimony indicated by the italics was objected to, and it was urged by defendant's counsel that, although it was competent to admit her declarations immediately after the offence, to show the fact that an offence had been committed upon her, yet that it was incompetent to admit her declaration that a particular person had committed it. But the supreme court held that there was no error in admitting the testimony. WELCH, J., said: "Undoubtedly the safer and better rule, in the generality of cases is, to limit the prosecution to a general statement of the fact that complaint was made, or the substance of her declarations, and leave the prisoner to bring out the details, if he chooses to do so. How far the prosecution shall be permitted to go into details, in giving the declarations of the female, must, to a great extent, at least, be left to the discretion of the court. Whether the court might, in any given case, so far abuse that discretion, as to render the proceedings erroneous, we need not now decide. It is enough for this case, to say that we are by no means prepared to lay down as law, the rule insisted upon by counsel, namely, that in proving her declarations, the fact that the prosecutrix charged the crime upon the prisoner, should be suppressed. If she was acquainted with the party, and recognized him at the timo, his name would be almost the first word she would utter, in making

executors. Money belonging to the firm was placed by G. in bank in the
name of the firm, subject to be checked out in that name, and was so
checked out by G. in payment of debts of the firm with the knowledge
and consent of his co-executors. Held, that so far as regards the rights of
creditors so paid, the money is to be considered as assets of the firm, not-
tors that it belonged to the estate.
withstanding any private agreement or understanding between the execu-
Kreis v. Gorton, 23 Ohio State, 468.

Gift from Husband to Wife of Mortgaged Property; Subsequent Insolvency of Husband; Payment of Mortgage Debt Fraudulent as Against his Creditors.-Where a husband purchased lands subject to a mortgage and paid the purchase money less the amount of the mortgage debt, and for the purpose and with the intention of making a gift to his wife, procured the deed of conveyance to be made by the vendor to her, subject to the outstanding mortgage, and at the same time promised the vendor to pay the mortgage debt upon maturity: Held, that upon delivery of the deed to the wife she became seized of the equity of redemption only as a gift executed; that the promise of the husband to pay the mortgage debt for her benefit, did not inure to her as a gift, either of an interest in the land or of the money promised to be paid until payment in fact was made; and that, in case the husband became insolvent before payment of the mortgage, the payment thus made was fraudulent as against then existing creditors, although they became such after the delivery of the deed to his wife, and after the promise to pay the mortgage debt was made. Oliver v. Moore, 23 Ohio State, 473.

Book Notice.

A Digest of the Laws of Texas, Containing the Laws in Force and the Repealed Laws on which Rights Rest. By George W. Paschal of Austin, Texas. Vol. I., Containing the Laws from the Foundation of the Republic of Texas; until 1864 Vol. II, from 1864 to 1872. Third Edition. Washington: W. H. & O. H. Morrison, 1873.

We have had frequent occasion to consult the first volume of Paschal's Digest of Laws, and speak with some degree of knowledge as to its merits. We are aware that Judge Paschal takes pains, in the preface to these books, to set forth their good points, of which he shows plainly that he entertains a favorable opinion; and this fact has led some reviewers to dis miss him with little better than a meer. We do not share in this feeling.

We think that Judge Pascha! has, in these books, done
may be justly proud. We think it no exaggeration. to
volume stands unrivalled among the Americar codes. It possesses more!
elements of usefulness than any book of the kinc we have eve had occa-
sion to use.

ap

work of which he in Florida recruiting, his health, and Judge Ripley has been stricker with
say tha. his first paralysis. All opinions of any value determined, up to this time will
bear in the 19th Minnesota, which is nearly ready fo: issuance. It is not
probable that any nors opinions will be lec. before Apri. next.
-THE circui cour. a. Murphysboro, Il, ha jus decided against the va
lidity o certair ponds issued r compliance with ar agreemen, entered into
between the city o Carbondale and the Southerr Illinois Norma' Uni-
versity commissioner, to secure the location o tha institution in Carbon-
ale. The case will probably be taken to the supreme cour.

Nothing is more perplexing to the practitioner, thar 2 body of statute law built upon the basis of a highly refined and cultivatec analysis, like that of Blackstone's Commentaries. Ada to this the entire absence c cross-references, and the poor indexes which characterize many of the codes, and the difficulties of using them becom almost insurmountable. Judge Pascha' has wisely arranged his titles alphabetically, and has kep up 2 thorough system of polyglo: references between kindred subject, so as almosɩ to dispense with the necessity of ar index.

—THE presiden has nominated so United States attorney for the eastern district of Virginia, M. Jame, Lyons.

-THг. new constitution of Pennsylvania has been adopted by over 150,000 majority.

-THL new constitution to be submitted to the people of Michigan, pro

Immediately under the laws ir force, are printed the repealed statutes on the same subject, or which rights may be supposed to be stil' pending. The old law and the new thus stand side by side, the ola frequently fuvides for an appointed judiciary. nishing a key to the interpretatior of the new. The work also contains a system of exhaustive notes, embracing not only the decisions expounding both the old law and the new, but also, in many cases, extracts from public documents and other historica! and politica' data-making a running commentary upon the text, acquainting the reader with the history and policy of the laws before him, and the exposition they have received in the supreme court of Texas, and in the courts of the United States.

We have but one complaint to make. The notes in the firs: volume are run together without much apparent system; and, with the eviden view of saving space, are packed, so to speak, in very fine type, withou paragraphs, and without catch-words to indicate the various subdivisions of the subjects treated of.

ཀ

-THE Kentucky legislature has passed a bill providing for a constitutional convention. The Courier Journal says: "The friends o constitutional reform achieved victory in the Kentucky legislature Wednesday, which s of the arst significance. The initiatory step o the calling of a converior to revise ou organic law was adopted in the senate by a vote o twenty. hree to eleven, and in the house by a vote o. fifty-eigh. to thirty-nine—a majority of democrats voting fo the measure. I will be seen the in the house sever votes mor? thar necessary were cas. fo the bill, and of those presen, there was a majority of eighteen. This resul. gives promise of a new and brigh caree for Kentucky. Those who argued and labored for the measure deserve the highes, praise."

In the second volume the notes are thrown into paragraphs, but we miss-MR. GAGE, the defaulting treasure of Chicago, accounted for the inthe catch-words; which, though they might diminish the artistic appearteres in the public money in his hands, which his predecessors pocketed. In this way he saved for the city, during his term of office, abou. $150,ance of the pages, would nevertheless add to the usefulness of the book. 000. His sureties now propos?, in case they are sued for the amount of The publishers have done their share of the work well. The second n's defalcation, to endeavor to have the interes. so accounted for, deducted volume, in particular, is a model of typographical excellence. as an offse from the amoun of thei: liability. And it is said that legal opinior is divided as to whether this can be done.

Notes and Queries.

EDITORS CENTRAL LAW JOURNAL-You would greatly oblige me, -As instances of the extent to which the spirit of reform will go when it you would give me your opinion (or refer me to authority) upon the fɔi- | gets started, and of the rapid progress which it sometimes makes, particulowing: Has a non-resident, owning property within the corporate limiarly when dealing with subjects with which the reformer is not fully conof a town, the right to go into the federal court to test the validity o, c tax. versan, we may note the following: which the state courts, having jurisdiction, have decided said corporation has a right to levy.

In the Indiana State Farmer's Grange, which met the other day at Valparaiso, a resolution was introduced, and (we believe) passed, urging ANSWER-If the tax upon the non-resident exceeded $500, we think hena. the trial of all offences punishable by fine and imprisonment in the could file a bill in the federal circuit court, if he could bring his case within county jaii, be committed to justices of the peace. some recognized head of equity jurisdiction; bu. if the supreme court o the state had already decided the tax to be valid, and if this decision in volved simply a construction of the local laws of the state, the federal cour would follow the decisions of the state court.

Thanks.

We return thanks to the following publishers and reporters for sending us exchanges and advance sheets of reports in advance of our first issue: To Messrs. King & Baird, 608 and 609, Sansom street, Philadelphia, for the Legal Gazette.

In the Illinois farmer's convention, which recently met at Springfield, the following resolutions were offered :

"WHEREAS, Our courts, as operated at present, are one of the most gre vious burdens borne by the people, and are governed in their action to a great degree, by antiquated precedents of the dead past, in cases having often bu little resemblance to the issues c the living presen, and are a tigma on the boasted intelligence and progress of the American people, costing 2 vas amount of money to all tax-payers, simply, in many cases, to gratify a morbid taste for practicing the tricks, and for the beautiful uncertainties of the law; therefore,

"Resolved, As the sense of this convention, tha the people should imper

To J. W. & J. S. Murray, 73 Gran: street, Pittsburgh, for the Pittsburgh atively demand immediate legislation for the reconstruction c

Legal Gazette.

To J. M. Power Wallace, Esq., 132 South Sixth street, Philadelphia, for the Legal Intelligencer.

To Messrs. Mills & Co., Des Moines, Iowa, fo the Western Jurist. To John M. Shirley, Esq., of Andover, N. H., Reporter for that state, for advance sheets of Vol. 52 of the New Hampshire Reports.

To Messrs. Robert Clarke & Co., of Cincinnati, for advance sheets of Vol. 23 of the Ohio State Reports.

Legal News and Notes.

-THE Supreme Court of the United States adjourned on the 24th of December until the 5th of January.

our courts

or. principles of commor sense, prominen among which shall be a provision setting apar 2 portion of the time of each sessior, fo the hearing of case: presented by parties in person making join issue, the decision of the cour to be final.”

Resolved, That the doctrine of vested rights, by which railroad corpoations claim exemption from legislative contro', belongs to pas age, and, it canno exis without infringing on the rights of citizens generally, it has no legitimat place in the jurisprudence of a free people.”

We have not learned what was done with the last two resolutions. It would be well for those who, without being familiar with the presen: laws or with legal or constitutional history, propose the most radical and fundamental changes in the law, to remember the suggestion of Herbert Spen-THE supreme court of Missouri meets at Jefferson City on the 5th of Jan. cer, that the substitution of new laws for old ones, not only does not, in many cases, remedy existing evils, but sometimes brings a train of new -THE supreme court of Minnesota is not in session. Judge McMillan is evils, entirely unexpected and unprovided for.

uary.

The National Banks not subject to the Bankrupt now located, with the approval of the Secretary of the Interior, be extended

We print elsewhere an able opinion pronounced by Judge BLODGETT in the United States District Court at Chicago, on the 30th ult., determining that the national banks in case of insolvency are not liable to be proceeded against under the bankrupt law. The novelty and great importance of this case induces us to publish it in full, notwithstanding the fact that in order to do so, we are obliged to continue a part of another very important case to our next number. At the conclusion of the reading of Judge BLODGETT'S opin- occurred. The Dutch bondholders, who have put some $15,ion, the attorneys for the petitioner gave notice that a petition|

3. Whether, under the circumstances, the bank obtained by the levy and execution a valid lien on the goods as against the assignee in bankruptcy.

We have not yet received an authenticated copy of the opinion of the Supreme Court, but they are reported to have said, that in their opinion, something more than the passive non-res stance of the insolvent debtor to regular judicial proceedings, in which a judgment and execution are had when Be it enacted by the Senate and House of Representatives of the United States the debt is due, and he is without just defence to the action, of America in Congress Assembled, That the time for the completion of the railroad from St. Anthony to Brainerd, in the state of Minnesota, as now limi-is necessary to show a preferment of a creditor, or a purpose ed by law, and of the railroad from St. Cloud to St. Vincent, in said state, as to defeat or delay the operations of the bankrupt act; that

favor of the proposition, when the canvass appears upon its face to be partial and not to include the returns from some townships, does not conclude the county, as to the vesting

as to the actual state of the vote; and when the returns from the uncounted townships are filed in the county clerk's office, on the very day after the canvass, and are placed

sult of the election.

12. Statute Construed-Curative Act of 1868.-The curative act of 1868, applied

14. No Recitals in Bonds-Holders Chargeable with Notice of Court Records. Where bonds purporting to have been issued by a county, contain no recitals of an election, or of proceedings and orders of the county board, but are naked promises to

the fact that the debtor under such circumstances does not file a petition in bankruptcy, is not sufficient evidence of of authority in the commissioners, and is notice sufficient to put every one on enquiry such preference, or desire to defeat the operations of the act; tlt though the judgment creditor in such a case may know with the other returns, and so remain, every one is charged with notice of the actual rethe insolvent condition of the debtor, his levy and seizure are not void under the circumstances, nor any violation of the bankrupt law; that a lien thus obtained by him, will not be only to cases where " a majority of the persons voting" voted in favor of the subscription. It aimed to sustain, not to defeat, the will of the majority. displaced by subseqent proceedings in bankruptcy against a 13. Statute Construed-Question of Subscribing Stock to two or more Corpor. debtor, though within four months of the filing of the bill. ations.-The statute does not authorize the submission to a single vote, of the question of subscribing stock and issuing bonds to two or more corporations. The question o These propositions require the questions certified to be anmaking the subscription to each corporation, must be submitted separately. swered-the first two in the negative, and the third in the affirmative. This decision is supposed to overrule, or largely qualify, what was said by Justice CLIFFORD, in delivering the pay, every purchaser and holder of these securities, is chargeable with notice of whatopinion of the Court, in the case of Buchanan v. Smith, reported in 16 Wall. 277. Evidently the opinion in this case is of great moment, in fixing the scope of the bankrupt act, and particularly of the thirty-fifth section; and on the assumption | that the views of the Supreme Court are correctly indicated above, its judgment will somewhat surprise those who have derived their notions upon the subject of illegal preferences under the act, from the opinions of the district, and even the circuit courts, upon the subject. We shall place before our readers at an early day, the text of this important and, doubtless, weil-considered opinion.

1. Contracts -- Province of Courts.-It is not the province of courts to make contracts between parties, but only to enforce contracts already made.

2. Principal and Agent-Estoppel.-A principal is not bound by the acts of his agent, unless authorized, or unless his own acts and representations. estop him from denying the authority.

3. County Bonds --Justice to Tax-payers.- In controversies between a county and the holder of its supposed securities, good faith to the tax-payers requires that no charge be left on his property unless legally placed there, and that no contract be en

forced unless legally made.

4. Issuing Bonds and Subscribing Stock - Form of Proceeding. The form of proceeding in the submission of the question, of subscribing stock and issuing bonds to

a railroad corporation, are designed as a protection to the tax-payers; and a due observ

ance of those forms is essential to valid action.

5. To Whom issued-Corporation Must be in Existence.-Under the act of 1866, an existing corporation must be named as the recipient of the proposed subscription and bonds; and a submission of the question of issuing bonds to "any corporation now organized, or that hereafter be organized," that shall construct a certain line of roads, is unauthorized and void.

6. Power to Subscribe construed Strictly.-The grant of power to a municipality, to subscribe to the stock of a private corporation, is the delegation of an extraordinary power, and should not be extended beyond the fair import of the words used.

7. Necessity of Legislative Sanction.-Without legislative sanction,the assent of a majority of the voters would not authorize a municipality to make such a subcription.

8. Nature of the Authority Given by the Statute.-The authority given by the statute is not to give so much or pledge so much for the construction of a railroad, but to take so much stock in a railroad corporation.

9. Election on Question of Subscription-Canvassing Vote.-The statute does not make the county commissioners the canvassing officers, nor designate the time and

place of making the canvass of votes cast at an election held on the question of subscribing of stock in a railroad corporation.

10. Majority of Votes-Condition Precedent.-A majority of the votes cast at such clection is a condition precedent to the vesting of any authority in the commissioners to make the subscription.

II. Result of Election-Fraudulent Canvass - Returns from uncounted

Townships are Notice to the World-Where the commissioners omit to prescribe by

order the time and place of making the canvass, and where a majority of the votes cast are against the proposition, a canvass made by the commissioners which shows a majority in

ever appears upon the face of the county records.

If,

15. The Same-Want of Authority shown by County Records a Defence.

in such case, it appears upon the face of the county records, that the commissioners had no authority to issue the bonds, the county may avail itself of that want of authorias a defence to an action even of a bona fide holder.

ty,

16. Holder chargeable with Notice of Record referred to in Law.-Where a bond or other instrument purports to have been issued by virtue of a certain

order, named and referred to, but not copied or described, every one claiming any rights by virtue of that bond or instrument, is chargeable with notice of the contents of

the order.

17. Holder Chargeable with Notice of what Appears on Public Records.- .

Purchasers of negotiable paper issued by an agent, the nature and extent of whose au.

thority must by law appear upon the face of the public records, are chargeable with

notice of whatever appears upon those records.

All the justices concurring in the above syllabus.

BREWER, J., delivered the opinion of the court.

This is an application to this court for a writ of mandamus, commanding the levy of a tax to pay the coupons on certain bonds issued by the county of Bourbon to the Tebo and Neosho Railroad Company, and by it sold and transferred to the plaintiff. Two questions exist and are discussed by counsel in their briefs with great ability. First, Had the commissioners the authority to issue these bonds? and, Second, If not, can this want of authority be set up as a defence to an action by the present plaintiff, who claims as a bona fide holder for value?

The material facts are these: On the 8th of March, 1867, without any prior petition therefor, the county commissioners of Bourbon county, ordered "that an election be called on the first Tuesday in May, 1867, for the purpose of submitting the question of voting $150,000 to any railroad running east to connect with the Tebo and Neosho railroad, as per order published." The order published proposed to subscribe $150,000 to the capital stock of any railroad company now organized, or that shall hereafter be organized, that shall construct a railroad commencing at a point on the Tebo and Neosho railroad, running westward via Fort Scott, and that the bonds of said county be issued to said com. pany for the same." On the 10th of May thereafter, being the Friday next succeeding the first Tuesday of May, the commissioners' record shows a canvass of the votes. In this canvass appears in one column the names of the townships, and in columns opposite the number of votes for and against the proposition. The columns are added and show 468 votes for the bonds, and 442 against. Then follows this recital: Majority for bonds, 26 votes. And it was declared that there was a majority of twenty-six votes cast for railroad bonds. And, it is also further certified, that there was no evidence of an election having been held in the township of Franklin and Walnut." This record is not signed by the commissioners, nor attested by the clerk. The poll-book from Franklin township was filed in the county clerk's office on that day, placed with the poll books from the other townships, and has been there kept ever since. It appears, however, from the testimony, that it did not reach the county clerk's office, and was not filed, until after the commissioners had left the office. This poll book showed 4 votes for, and 134 against the proposition, which, with the votes already counted, would make a majority of 104 against the bonds.

"

.

On the 23d of July, 1869, more than two years after this elec-o when so connected with other considerations as to present a tion, the record of the commissioners shows that application was made by the officers of the Tebo and Neosho railroad for a subscription to the capital stock of that company in pursuance of this vote, and that the board resolved that it was not advisable then to make the subscription. At the same time, an order was made, submitting to the voters the question of issuing bonds to a company building a road west from Fort Scott. At the close of that order appears the following recital: "And, whereas, some question has arisen as to the propriety and legality of subscribing the stock and issuing the bonds provided for by the election of the 7th of May, A. D., 1867, to the Tebo and Neosho railroad; and, whereas, it is considered that the foregoing order, in addition to the one affirmed on the 7th of May, 1867, aforesaid, will be generally satisfactory to the people of this county: It is therefore ordered and provided, that the decision of this question by the qualified voters of said county, at the said election, in favor of such subscription, shall be also a decision in favor of the former subscription of the 7th of May, 1867, being made at once to the Tebo and Neosho Railroad company, and the Board of Commissioners will accordingly, in such case, make the subscription authorized by said election of May 7th, 1867, and will issue the bonds therein provided for, as soon as the terms and conditions of said subscription are complied with by said railroad company." A canvass of the votes cast at this election, showed 1428 votes for, and 703 against the proposition. This result was declared by the canvassers, and thereafter the bonds were issued, and for value transferred to the plaintiff.

case of equitable estoppel, that the courts can interfere. Courts will never make a contract, because they think the parties ought to have made one. Again, in cases like this, the bondholder is not the only party who can rightly press the demands of good faith. The tax-payer is entitled to equal consideration. He is guaranteed protection in property as well as person. He may not be heard in the courts to restrain the issue of these securities. If the authorities, through stupidity or collusion, are placing a burden upon his estate, he is powerless to prevent it. Craft v. Jackson County Commissioners, 5 Kansas, 518. A new election may enable him to change these officials, but the wrong is already done. He has a right, then, in the name of good faith, to demand of the courts that no charge shall be left on his property unless legally placed there, and that no contract shall stand, unless legally made. More than that he has no right to ask; less than that he ought not to receive. True, he is not a nominal party to this action, but he is the real party in interest. The simple enquiry, then, in cases of this kind, should be, whether the forms of law have been so far complied with, that a valid contract has been made. It they have, then the contract should be sustained, and the bondholder have his judgment. If they have not, then the county should have judgment. No considerations of supposed good faith will justify a court in making and then enforcing a contract between the parties. As protection to the tax-payers, the law has prescribed certain forms of proceeding that nothing be done without their consent. These forms are all the protection the tax-payer has; and it is only by insisting on

Upon these facts, four questions are raised as to the authority an observance of these forms as a condition of valid action, that of the commissioners to issue these bonds:

1. Was the presentation of a petition signed by one-fourth of the qualified voters a condition precedent to any action by the commissioners, and without which no power to issue bonds passed to the county authorities?

2. Did the failure to name the railroad corporation avoid the whole proceedings? Or, as counsel have stated the question in their brief, could a subscription be made to the stock of the Tebo and Neosho Railroad Company under and by virtue of the order of March 8th, 1867, and the vote of May 7th, 1867, that corporation not being named as the recipient of the proposed subscription? This question is discussed more fully by counsel in a case submitted subsequent to this, that of the Missouri River, Fort Scott and Gulf railroad company v. Miami County, and we may have occasion to refer to the briefs and arguments in that case. 3. A majority of votes having been cast, as a matter of fact, against the proposition, were the county Board authorized to sub

scribe the stock and issue the bonds.

any security is offered him. If they are to be frittered away by judicial sanction, it were better to dispense with them altogether, and give the authority to the commissioners to act without the delay and expense of first consulting the voters.

We shall not stop to discuss the firs! question raised; simply saying, that if this were the only objection, we should deem it cured by the act of 1868 (Gen. Stat., p. 892).

No corporation was named in the proceedings of March, 1867, as the recipient of the proposed subscription and bonds. The proposition in effect was, whether authority should be granted to the commissioners to take stock in any corporation now organized, or that might hereafter be organized, that should construct a railroad from the Tebo and Neosho railroad westward via Fort will not sustain a a subscription to another, even though the latScott. That a vote authorizing a subscription to one corporation ter build the very line of road contemplated by the former, and sought to be secured by the vote, is settled. St. Joe & D. C. R. R. Co. v. Commissioners of Nemaha County, 11 Kas. See also Marsh v. Fulton county, 10 Wall. 676. The question now is,

4. If no authority existed therefor, did the proceedings of whether, under the statute, the people must select the corporation, July 23d, 1869, and the subsequent vote, confer authority?

Before noticing these specific questions, it may be proper to consider an ar gument which is often used in cases of this kind and pressed with great force and ability by counsel in this, the argument of good faith. The county gave the bonds to obtain the road; it has obtained the road; therefore, in good faith, it should pay the bonds. The company has fully complied with its contract; the county ought to do the same. The public conscience is weakened, and public morals suffer whenever a municipality avoids its contract through any technicality. Credit is shaken and confidence undermined whenever promises to pay are repudiated. Considerations of this kind, however, appropriate for individual consciences and as a guide to individual action, can never overthrow settled rules of law. A party may have given to another his note; every consideration of honor and good faith may demand that he pay it; but if suit be not brought till five years from its maturity have passed, and the statute of limitations be pleaded, the courts must sustain the

or may they delegate authority to the commissioners to make the selection. The statute reads, "That the board of county commissioners of any county to, into, through, from, or near which, whether in this or any other state, any railroad is or may be located, may subscribe to the capital stock of any such railroad corporation, in the name and for the benefit of such county, not exceeding in amount

-, but no such bonds shall be issued until the question shall be first submitted to a vote of. the qualified electors of the county," etc. This statute grants to the commissioners an extraordinary power. The constitutionality of such legislation has been questioned, though sustained. Its wisdom has been denied, even where its constitutionality has been sustained. · To prevent abuse of this power, a specific, express authority from the voters is required. The manner of proceeding to obtain this authority is prescribed. Without legislative sanction, the assent of a majority of the voters would not bind the county, nor make valid, bonds issued in pursuance thereof. Pendlet: n county v. Amy, 13 Wall. 304. The assent of a majority binds