party who has innocently made these innocent representations suffers the other party to continue in error, and to act on the belief that no mistake has been made, this, from the time of the discovery, becomes, in the contemplation of this court, a fraudulent misrepresentation, even though it was not originally."

This principle applies with greater force where the representation was originally false. If the party making it repent, he must fully undo the consequences of his wrong. Vague hints and more doubtful warnings will only aggravate the wrong, and will furnish no protection if the fraud continues to mislead, and was an inducement to action. We find no evidence in this case of any effort to undeceive complainant, but much calculated to throw him off his guard and continue the deception. The conclusion upon the whole case is that the decree of the circuit court must be reversed. The prayer for relief as against defendant Watrous must be granted, with interest from date of each payment to him. Defendant Van Deusen must account for the proceeds of all shares sold by him, with interest, and all shares standing yet in his name will be canceled. Defendants will pay the costs of the cause.

EXCHANGE NAT. BANK OF ATCHISON v. WASHITA CATTLE CO. (Circuit Court, E. D. Missouri, E. D. April 27, 1894.)

PRACTICE-PRODUCTION OF BOOKS AND PAPERS.

The power given the federal courts to order the production of books and papers (Rev. St. § 724) includes power to grant an inspection before trial, with permission to make copies.

This was an action by the Exchange National Bank of Atchison, Kan., against the Washita Cattle Company. Plaintiff moves for an order for the inspection of books and papers.

McDonald & Howe, John T. Cochran, and B. P. Waggener, for plaintiff.

Lee, McKeighan & Priest, for defendant.

THAYER, District Judge. This is a motion by the plaintiff to obtain an inspection of the defendant's books and permission to take copies of entries therein, the case being now at issue. The jurisdiction to make such an order must be derived from section 724, Rev. St. U. S. as the state statute is not applicable. Gregory v. Railroad Co., 10 Fed. 529. The statute (section 724) says nothing about an order for the inspection of papers and permission to take copies of entries, etc., but it must be presumed that the purpose of compelling a party to produce his books is to enable the opposite party to examine them, and, if necessary, to make copies of entries. Therefore it is reasonable to hold, and the court so decides, that the power to order the production of books includes the power to grant an inspection; and so it was ruled by Judge Love in Gregory v. Railroad Co., supra. In some cases it has been decided that, on motions of this kind, the proper order to be entered is to require the production of the books at the trial. Merchants' Nat. Bank v.

State Nat. Bank, 3 Cliff. 201, Fed. Cas. No. 9,448, and Iasigi v. Brown, 1 Curt. 401, Fed. Cas. No. 6,993. Other courts have adopted the practice, which seems to me more reasonable, of granting an inspection previous to the trial. Bank v. Tayloe, 2 Cranch, C. C. 427, Fed. Cas. No. 2,548; Jacques v. Collins, 2 Blatchf. 23, Fed. Cas. No. 7,167; and Gregory v. Railroad Co., supra.

Upon the whole, I conclude that an order of inspection, with permission to take copies, should be granted.

Ordered on the written application of the plaintiff by its attor ney, due notice of which has been given, that the plaintiff's attor neys have leave to inspect the records of the Washita Cattle Company containing the proceedings of its stockholders and board of directors, and to take copies of such entries or proceedings therein as they may deem necessary, such examination to be made at the defendant's office or elsewhere between the hours of 9 a. m. and 3 p. m. on any week day or week days, between April 30, 1894, and May 14, 1894, and said defendant, its officers and agents, having the custody of such records or books, are hereby required to permit such examination to be made.

BRECKINRIDGE COUNTY v. MCCRACKEN et al. (two cases).

(Circuit Court of Appeals, Sixth Circuit.

Nos. 113 and 142.

March 6, 1894.)

1. RAILROAD COMPANIES-MUNICIPAL AID-PARTS OF COUNTIES. The charter of a railroad company (Act Ky. Feb. 24, 1888) provided that any county through which it might pass, or any magisterial precinct or precincts of such county, might subscribe to its capital stock (section 9); that, when any precinct or precincts made such subscription, bonds of the county should be issued, showing on their face the precincts making the subscription, which alone should be bound to pay the bonds (section 10); and that its provisions should not apply to a defined portion of R. precinct in a county named (section 19). Held, that the residue of R. precinct, not excepted from the provisions of the act, might join with another precinct of such county in making a subscription, and joint bonds be issued therefor. 2. SAME-BONDS-TAXES TO PAY-ASSESSMENT.

The charter of a railroad company (Act Ky. Feb. 24, 1888) authorized the magisterial precincts of counties through which it should pass to subscribe to its capital stock (section 9), and provided that such subscriptions should be paid by taxes levied in such precincts alone. Such a subscription was made jointly by one precinct and part of another, the residue having been expressly excepted from the operation of the charter. Held, that the assessor might be required to list separately the property of the district making such subscription, and liable to a tax therefor, under Acts Ky. 1891-93 (volume 1, p. 283, § 4). which requires him to make separate books for each "taxing district of his county, by wards or other subdivisions, as convenience may require."

& SAME DELIVERY-CONDITIONS.

Act Ky. April 9, 1873, which provides that, before county bonds issued in aid of a railroad are delivered, the president of the road shall give bond for the faithful application of their proceeds to the construction of the road, has no application where the road has been completed before the bonds are delivered.

4. SAME-ACTION ON BONDS-PLEADING.

In an action on railroad aid bonds, a simple allegation in the petition that "an election was duly held" to determine whether the subscription should be made is sufficient; and any irregularities in the mode of holding such election are matters of defense.

5. SAME-RESERVATION IN BONDS.

In an action on county bonds issued in aid of a railroad, plaintiff need not allege a reservation made in the bonds by the county as to the time of payment, where there was no such reservation in the act authorizing the subscription, for the power to issue the bonds was in no wise affected thereby.

6. SAME-COUNTY BONDS-JUDGMENT.

The charter of a railroad company (Act Ky. Feb. 24, 1888) authorized magisterial precincts of any county through which it passed to subscribe to its capital stock (section 9), and provided that the bonds of the county should be issued in payment of such a subscription in every respect as if such subscription was made by the county, but that such precincts should be alone bound to pay such bonds (section 12). Held, that the county is liable to actions on such bonds, but judgment against it is to be satisfied out of a tax levied on such precincts alone.

In Error to the Circuit Court of the United States for the District of Kentucky.

The case first named was a suit brought by McCracken and others, partners under the name of W. V. McCracken & Co., and citizens of the state of New York, against the county of Breckinridge, one of the counties of the state of Kentucky. The subject-matter of the suit was 180 coupons of $30 each, being for three installments of interest accruing upon certain bonds issued by the defendant county as obligor for certain unincorporated precincts of said county. The county filed a general demurrer to the petition of plaintiffs, which being overruled, it declined to further plead. Thereupon, the cir cuit court rendered a special judgment against the county, to be paid only by levy and collection of a tax upon the property of the tax districts for which the bonds had been issued. Subsequently, a petition for a writ of mandamus was filed, by which it was sought to compel the levy and collection of a special tax upon the property of the precincts issuing the bonds to pay off that judgment. The county answered this petition. A demurrer to the answer was interposed and sustained. The county refusing to further plead, the circuit court granted a writ of mandamus as prayed. The county of Breckinridge has sued out a writ of error in each case.

The bonds in question were issued to the Louisville, Hardinsburg & Western Railway Company in payment of a subscription to the capital stock of that company of $60,000, made by the Hardinsburg and Rough Creek precincts, except a definite part of the latter especially excluded under the act authorizing the subscription, they being precincts of Breckinridge county. The charter of said railway company was granted February 24, 1888. The parts which affect the questions to be decided are sections 9, 10, 12, 14, and 19, and are as follows:

"Sec. 9. That any county through which the Louisville, Hardinsburg and Western Railway, or any branch or branches of same, may be constructed or propose to be constructed, and any cities, towns or magisterial precinct or precincts of said counties, may subscribe to the capital stock of the said railway company, as herein provided and may pay therefor in the negotiable coupon bonds of said counties, cities, towns or magisterial precinct or precincts payable not more than thirty (30) years after date, and bearing interest at a

rate not exceeding six per cent per annum, payable semi-annually, and which bonds and interest shall be payable at a place designated therein. "Sec. 10. Whenever application shall be made to the county judge with reference to counties or parts of counties, or to the city council with reference to cities, or town trustees in reference to towns, by said railway company, requesting that the question of subscribing to the capital stock of said railway company, upon the terms and conditions set forth in said application, be submitted to a vote of the legal voters of said county, part of county, city or town, the county judge, when directed so to do by a majority of a county court composed of the justices of the peace in commission, living within the bounds of the territory in each county to which the question of taxation shall be submitted, it being in the discretion of said justices of the peace to so submit or not; and the city council or town trustees to whom said application is addressed may, in their discretion, order an election to be held in such county, part of county, city or town, as the case may be, on a day named in the order (not later than fifty days after the making of said order), to ascertain the sense of the legal voters in the territory to be affected upon the question of making such subscription, and to cause notice thereof to be published in such county in a newspaper published therein not less than thirty days, and to be posted at the court-house door in such county and at such other public places therein as may be directed by said order; and at such election votes shall be received (for the railway subscription and against the railway subscription). Officers of such election shall, when the territory to be affected is a county or magisterial precinct or precincts therein, be appointed and hold such election, and make return thereof to the county judge thereof in the manner provided in ordinary county elections; and when the territory to be affected is a city or town, in the manner provided for officers of elections in cases of city or town elections."

"Sec. 12. Whenever any magisterial precinct or precincts in any county shall subscribe to the stock of said company, under the provisions of this act, it shall be the duty of the county judge and clerk of such county to sign, execute, issue or deliver the bonds of such precinct or precincts in payment thereof, in every respect as if such subscription had been made by the county, except that the bonds shall show on their face the precinct or precincts for which they are issued, and such precinct or precincts shall be alone bound to pay said bonds and their interest."

"Sec. 14. An annual tax sufficient to pay the semi-annual installments of interest on such bonds, and the principal, when it shall become due, shall be collected and paid out by the officers of such county, city or town, as provided in the case of other county, city or town taxes.”

"Sec. 19. Provided, the provisions of this act shall not apply to the magisterial district of Bowleyville, Cloverport, Union Star or Hudsonville, in the county of Breckinridge, nor to any city or town embraced therein, nor shall its provisions apply to that portion of the Forks of Rough or McDaniel's magisterial district, in Breckinridge county, included within the following boundary, to-wit: Beginning at the mouth of the North Fork of Rough creek; thence up the same to the mouth of Calamese creek; thence up said creek to the line between Hudsonville and McDaniel's voting precinct; thence with said line to the South Fork of Rough creek to the beginning. The provisions therein in reference to the Union Star," etc.

J. Proctor Knott and T. J. Edelen, for plaintiffs in error. David W. Fairleigh and James P. Helm, for defendants in error. Before TAFT and LURTON, Circuit Judges, and RICKS, District Judge.

LURTON, Circuit Judge (after stating the facts as above). A number of objections have been urged as operating to avoid liability upon the coupons in suit, which will be considered in such order as is most convenient.

v.61F.no.2-13

The first and most serious defense is as to whether the act authorizing a subscription to the stock of the Louisville, Hardinsburg & Western Railway Company, by the "magisterial precincts" of any county through which that road should be constructed, authorized a joint subscription by two precincts, or by one and a fraction of another. A justice's district, or "magisterial precinct," is a local subdivision of a county, and has no corporate autonomy. Its boundaries are fixed by the county court, and serve to define the territorial jurisdiction of justices of the peace and constables. It generally constitutes an election district, and the county assessment rolls are made out by precincts, as is the case with the wards of cities. The relation of such a precinct to the county under the law of Kentucky is substantially that of a ward to a city. While not an autonomous, self-governing body, it is a geographical and semipolitical entity. There can be no serious question, under the decisions of the supreme court of Kentucky, that the legislature of that state has the constitutional power to authorize any subdivision of a county to subscribe for the stock, of a railway company, and to issue bonds in payment of such subscription. So it may authorize a county to impose a special tax on the district making such subscription, and issuing such bonds, to pay the interest and principal thereof. To this end the legislature may create a political district with corporate powers, or it may authorize magisterial districts, constable districts, or carve out a special district, and confer authority upon such territory by vote to charge such district with a subscription. So it may empower the county, of which such district is a part, to issue such bonds in behalf of the.territory empowered to charge itself, the bonds to be payable only out of taxes levied and collected from the taxables of that tax district.. The Kentucky decisions clearly settle these propositions. City of Lexington v. McQuillan's Heirs, 9 Dana, 513; County Judge of Shelby Co. v. Shelby R. Co., 5 Bush, 226; Kreiger v. Railroad Co., 84. Ky. 66; Allison v. Railway Co., 10 Bush, 1; Carter Co. v. Sinton, 120 U. S. 518, 7 Sup. Ct. 650; Hancock v. Railroad Co., 145 U. S. 414, 12 Sup. Ct. 969.

The contention here involves solely a construction of the act under which the coupons in suit were issued. The contention of appellant is: (1) That the charter in question only authorized a subscription by separate action of each precinct desiring to aid in the construction of the road authorized by the charter; that an election jointly held by two or more districts or precincts, and bonds issued by two districts acting as a unit, would not be a valid exercise of any power conferred by the charter. (2) That, even if two entire precincts could combine for such a purpose, it was not lawful for a portion of Rough Creek precinct to combine with the Hardinsburg. precinct. A careful reading of the sections heretofore set out seems to indicate that the parts of the county subscribing should act together as a taxing district, and that but one election was contemplated. That part might be but one precinct, or it might be several. The territory to which the proposition was to be submitted might embrace all the precincts permitted by the charter to subscribe, or it might embrace but one or two of the whole number entitled to