Thereupon the defendant introduced one Falconett, who testified that he was engineer of the Tennessee and Pacific R. R. Co.; that as such he had made an experimental survey of the entire line of the road from Nashville to Knoxville, before any application was made to the county to order an election, as provided by the statute, to determine whether it should subscribe to the capital stock of the company, and if so, on what terms the subscription should be made; that the survey of one hundred and eighty one miles was not final, but that by it the line was substantially, and the main points of said road definitely, located, and an approximate estimate of the cost of the road made; that he afterwards had located finally and definitely about one-half of the entire line, and made a report thereof to the directors of the company.

It was after this report that application was made to the defendant as per statute in that case made and provided, to order an election and subscribe stock, etc., for the payment of which the bonds sued on were issued.

The plaintiff proved in rebuttal the payment of interest on the bonds by the county for several years. This was all the evidence in the case.

The court charged the jury as follows:

"1. That the defendant county had legislative authority to issue the bonds declared on, upon the conditions prescribed in the acts having reference to the matter, and that if the jury find from the evidence adduced in the case that said bonds had been issued by the county judge and clerk as alleged and verified by the county seal, and that plaintiff was a bona-fide holder for value without notice, that the same was issued by virtue of an election ordered and held before a final and definite survey and location of the line of said road had been made, the same would be valid in the plaintiff's hands, and the jury ought to find a verdict against defendant.

"2. That if the evidence of Falconett were true, the condition contained in the acts aforesaid, requiring a survey and location of the line of said road, and an estimate of the cost thereof made before an election to determine whether the county should subscribe stock in said railroad, etc., could be lawfully ordered and held, had been substantially complied with, and there was nothing in Falconett's testimony militating against plaintiff's right to recover."

The jury found a verdict for the plaintiff, on which judgment was rendered. To reverse this judgment this writ of error is brought.

The plaintiff in error claims that it is apparent on the face of the declaration that the Circuit Court was without jurisdiction, because both the parties were citizens of the State of Ten

nessee.

Sect. 629 of the Revised Statutes of the United States declares that the circuit courts shall have original jurisdiction as follows: "Tenth. Of all suits by or against any banking association established in the district in which the court is held, under any law providing for national banking associations."

This section gives the circuit courts jurisdiction of suits brought by or against a national bank, without regard to the citizenship of the parties, and it has been so held by this court. Kennedy v. Gibson, 8 Wall. 498.

The jurisdiction of the Circuit Court was, therefore, clear.

It is next claimed that the bonds sued on were not negotiable paper, and that, therefore, the plaintiff below showed no right of action in itself.

In order to make a promissory note or other obligation, for the absolute payment of a sum certain, on a certain day, negotiable, it is not essential that it should in terms be payable to bearer or order. Any other equivalent expressions demonstrating the intention to make it negotiable will be of equal force and validity. Com. Dig., Merchant, F. 5; 3 Kent. Com., lect. 44, p. 77; Chitty, Bills, c. 5, p. 180 (8th ed.); Bayley, Bills, 120 (5th ed.); Story, Prom. Notes, sect. 44..

The purpose of the plaintiff in error that the bonds on which. the suit is brought should be negotiable is perfectly clear. They are payable to the railroad company or holder if the bond is transferred by the signature of the president of the company.

This is equivalent to making the bonds payable to the company or order, provided the "order" or indorsement is made by the president of the company. They bear his indorsement transferring them to bearer. On what ground their negotiability can be denied it is difficult to imagine. They are in precisely the same plight as a promissory note payable to order and indorsed in blank, or to bearer, the title to which passes by mere delivery. Chitty, Bills, 252, 253 (8th ed.); Bayley, Bills, c. 1, sect. 10, p. 31 (5th ed.).

It is next objected that the court erred in sustaining the demurrer of the plaintiff to the fourth, fifth, sixth, seventh, eighth, ninth, and tenth pleas.

It is quite evident, however, from the record that all the defences set up in these pleas were allowed to be made under the other pleas, to which the demurrers were overruled. Whether the court was right or wrong in its judgment on the demurrers is, therefore, entirely immaterial. "There must be some injury to the party to make the matter generally assignable as error." Greenleaf's Lessee v. Birth, 5 Pet. 132; Randon v. Toby, 11 How. 493.

It is next alleged as error that the court instructed the jury that the county of Wilson had legislative authority to issue the

bonds sued on, upon compliance with the conditions prescribed by the law.

There is certainly no express provision in chap. 3, art. 3, of the code which authorizes the issue of bonds. It has been so held by the Supreme Court of Tennessee. Justices of Campbell Co. v. Knoxville and Kentucky R. R. Co., 6 Cold. (Tenn.) 598. The implication against the power to issue bonds is very persuasive. The act contemplates the payment of the stock subscribed for in instalments, and provides the means of payment, as they fall due, by a special tax. The bond of the officer who collects this tax requires him to pay it over to the railroad company. If the purpose of the act had been to authorize the payment of the stock in bonds, the county, after paying in bonds, would not have been required to pay over to the railroad company the railroad tax collected to satisfy the bonds. In other words, the county would not have been required to pay twice for its stock-once in bonds and once in money. See Wells v. Supervisors, 102 U. S. 625. S. C. 2 Am. & Eng. R. R. Cas. 605.

But the act of Dec. 16, 1867, to incorporate the Lebanon and Gallatin Ry. Co., some of the provisions of which have been stated, clearly implies the power in the county authorities to subscribe stock in the Tennessee and Pacific R. R. Co., and to issue bonds in payment therefor.

Sect. 4 declares that subscriptions to the capital stock of the railroad company may be taken in county bonds, and sect. 19 authorizes the commissioners provided for in sect. 3 to apply for a subscription to the capital stock of the railroad company, payable in the bonds of the county, whereupon the county authorities are required to cause an election to be held, first causing thirty days' notice of such election, the amount of stock to be subscribed, for what purpose, and how and when payable, to be given, as required in county elections.

There can scarcely be a stronger implication of the power to issue bonds.

What is implied in a statute is as much a part of it as what is expressed. United States v. Babbit, 1 Black, 55; Gelpcke v. City of Dubuque, 1 Wall. 175.

We think, therefore, that the power of the county, under the act of Dec. 16, 1867, to issue bonds in payment of stock taken by it in the Tennessee and Pacific R. R. Co. is beyond question, and that the Circuit Court did not err in saying to the jury that such power existed.

Plaintiff in error claims next that there was evidence tending to show that the bonds in suit were issued by virtue of an election ordered and held before a final and definite survey and location of the railroad had been made, and that the court erred in instructing the jury that, if plaintiff was a bona-fide holder without notice of

that fact, the bonds would be valid in his hands, and there should be a verdict against defendant.

The charge was not erroneous, because the law does not require that there shall be a final and definite survey and location of the road before an election is held to decide whether or not the county shall subscribe stock. Its requirement is that the entire line of the road shall be surveyed by a competent engineer, and substantially located by designating the termini and approximating the general direction of the road. The evidence of Falconett, the engineer, showed that this had been done.

The law even contemplated that this survey might be made before the railroad company was organized, for it declared that the application to the county authorities to order an election might be made by the commissioners appointed to open subscription books for the stock of such road, or by the board of directors if the company was organized. It would be a strange enactment, indeed, which should require a final and definite survey and location of the line of a railroad before any company had been organized to construct it.

The next complaint of the plaintiff in error has reference to the charge of the court to the effect that, if the evidence of Falconett, the engineer, were true, the election to decide whether the county would subscribe to the stock of the railroad company was lawfully held.

The contention seems to be that before an application could be made to the county authorities to order an election to decide whether or not the county should subscribe to the stock of the railroad company, an estimate in linear and cubic feet and yards of the embankment, grading, and masonry should be made, on oath, and filed with the application. It is asserted that no such estimate of quantity was made, but merely an estimate of the cost, and that this was not a compliance with the law.

We think the Circuit Court gave a correct construction of the law in instructing the jury substantially that it was an estimate of the cost and not of the quantity of the grading, embankment, and masonry that was required to be made by the engineer. The point upon which information was necessary to enable the people of the county to vote intelligently on the question whether or not they should subscribe to the stock of the railroad company was what would the road cost, and not how many yards of embankment or excavation or what quantity of masonry would be required to construct it.

If we are right in these views, then all the conditions precedent upon authority of which the power to issue bonds depended were performed, and there being legislative authority for the issue of the bonds upon such performance, no valid objection can be raised to their enforcement. Judgment affirmed.

ELIJAH SMITH, RECEIVER OF THE BURLINGTON AND SOUTHWESTERN RAILWAY COMPANY

v.

WARREN MCCULLOUGH, et al.

(Advance Case, U. S. Supreme Court.

October Term, 1881.)

Under the rule that the whole of an instrument should be construed together, and not detached parts, a clause of a mortgage conveying all the "property" of a railroad, the word "property" being followed by the qualify ing phrase "that is to say," accompanied by a detailed description of specific things, such as enter into the construction of a railroad, Held, not to pass county bonds previously granted to the road to aid in its construction.

A receiver has no power, unless authorized by the court appointing him, to contract for municipal aid in order to complete the railroad.

APPEAL from the Circuit Court of the United States for the Western District of Missouri.

P. Henry Smith, L. T. Hatfield, and H. M. Pollard, for appellant.

A. W. Mullins, John P. Butler, and F. M. Cockrell, for appellees.

HARLAN, J.-The case presented on this appeal is an outgrowth of a suit in equity, instituted in the court below, for the foreclosure of a mortgage executed on the first day of April, 1872, by the Burlington and Southwestern Ry. Co., to the Farmers' Loan and Trust Co., to secure the payment of certain bonds issued by the mortgagor corporation. A decree of foreclosure having passed, the appellant, who was receiver in that suit, filed his petition therein (to which the necessary parties defendant were made), asserting his right, as such receiver, to certain county bonds, or their proceeds, constituting a part of an issue of $200,000 by Sullivan county, Missouri, in payment of its subscription, made in 1871, in aid of the construction of the Linneus Branch of the Burlington and Southwestern Ry. The entire issue of county bonds, conformably to the contract of subscription, was originally deposited in the hands of the appellee, McCullough, as trustee for the county and the railway company, with authority to deliver them, in instalments of $40,000, as the work of construction progressed. By the terms of that contract the railway company was entitled to receive the last instalment when the branch road was completed and paid for by the company, with the iron and rolling-stock thereon. Prior to appellant's appointment as receiver in the foreclosure suit, all of the $200,000 of bonds had been delivered, except the last instalment of $40,000, which the railway company had not earned, and which, by reason of its insolvency, it had, as is claimed, become unable to earn.