Statement of Facts.

railway stock his bonds, and to register the same, and directed the auditor to notify the officers issuing the bonds of the registration of the same; and further, directed such officers to enter the fact in a book kept by them for the purpose; and then provided that "the bonds shall thereafter be considered registered bonds:" Held, That until the notice to the township officers, and their entry of the registration in their books, the bonds were not to be regarded as registered bonds within the intent of the statute, and as entitled to the benefits of the act; and that no estoppel against disputing the validity of the bonds by reason of a certificate of registration arose. Lewis v. Commissioners of Barbour County, 105 U. S. 739, distinguished from this case.

This was an action brought by the plaintiff in error to recover the amount of certain interest coupons attached to municipal bonds, which, it is alleged in the petition or complaint, were made, issued, and delivered by the defendant, a municipal corporation of Kansas, to aid in the construction of a railroad running within and through its corporate limits, under and in pursuance of an act of the legislature of the State of Kansas entitled "An Act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same," approved February 25th, 1870, under and in pursuance of an order of the board of county commissioners of the county of Cherokee, and under and in pursuance of a vote of more than three-fifths of the qualified voters of the township, voting at an election duly held therein for such purpose, being negotiable bonds payable to bearer. It was further alleged :

"That afterwards, to wit, on December 15th, A. D. 1871, each of the said bonds, with all the interest coupons thereto attached, was put upon the market and sold and delivered to bona fide purchasers for value, the same passing from hand to hand like other negotiable securities.

"That afterwards, to wit, on April 11th, A. D. 1872, each of the said bonds, with all the interest coupons thereto attached, was duly registered in the office of the auditor of the State of Kansas, according to law, and the fact that each of the said bonds was so registered was then and there, under the hand and official seal of the said auditor, in writing duly certified and indorsed upon each of the said bonds, a copy of which said certificate and indorse

Statement of Facts.

ment is filed herewith, made part hereof, and marked 'Exhibit B.'"

It was also alleged that after the issuing and delivering of the said bonds, and before the maturity, either of the bonds or of any of the coupons sued upon, they were sold and delivered to the plaintiff for the price of ninety cents on the dollar thereof in cash.

The following is the form of the bond:

66 COUNTY OF CHEROKEE, STATE OF KANSAS.

"Spring Valley Township Bonds.

"Know all men by these presents that Spring Valley Township, county of Cherokee, State of Kansas, acknowledges itself and is firmly bound to the Atlantic and Pacific Railroad Company in the sum of one thousand dollars, which sum the said township therein promises to pay to the said Atlantic and Pacific Railroad Company, or bearer, at the office of Northrop & Chick, in the city of New York and State of New York, on the fifteenth day of December, 1886, together with the interest on the first day of July in each and every year until this bond matures, at the rate of seven per cent. per annum, which interest shall be payable annually on the presentation and delivery at said office of the coupons of interest hereto attached.

"This bond being issued under and pursuant to an order of the board of county commissioners of Cherokee County, in the State of Kansas, by virtue of an act of the legislature of the State of Kansas, approved February 25th, 1870, entitled 'An Act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same;' and authorized by a vote of the people taken on the 4th day of February, 1871, as required by law, upon the proposition to subscribe one hundred and fifty thousand dollars to aid in the construction of the said railroad, which proposition was voted upon on the day aforesaid, and three-fifths of the votes of said township being cast in favor of said proposition.

"In testimony whereof the said board of county commissioners of Cherokee County have executed this bond by the chairman of

Statement of Facts.

said board, under the order thereof, signing his name hereunto, and by the clerk of said board attesting the same and affixing the seal of said board.

"This done at Columbus, Cherokee County, this 15th day of December, 1871.

44 SEAL OF CHEROKEE COUNTY, KANSAS.

WM. H. CLARK,

“Chairman Board of County Commissioners.

"J. G. DUNLAVY, County Clerk."

The certificate of registration was as follows:

“I, A. Thoman, auditor of the State of Kansas, do hereby certify that this bond has been regularly and legally issued, that the signatures thereto are genuine, and that such bond has been duly registered in my office in accordance with an act of the legislature entitled 'An Act to authorize counties, incorporated cities, and municipal townships to issue bonds for the purpose of building bridges, aiding in the construction of railroads, or other works of internal improvement, and providing for the registration of such bonds, the registration of other bonds, and the repealing of all laws in conflict therewith, approved March 2d, 1872. "Witness my hand and official seal this 11th day of April, 1872. "[SEAL.] A. THOMAN, Auditor of State."

The defendant in answer to the petition pleaded the following defence:

"That it ought not to be charged with the said supposed debt by virtue of the said supposed bonds and coupons, because it, by its attorneys, says that J. G. Dunlavy, whose name appears on said bonds and coupons as county clerk, never signed his name thereto or thereon, nor ever authorized any party or parties to sign his name thereto or thereon, and that said signature is not his signature.

"Nor did he affix or authorize to be affixed the seal of said county of Cherokee to said bonds or coupons."

To this the plaintiff demurred. The demurrer was overruled, and the plaintiff declining to reply, judgment was rendered for the defendant, to review which this writ of error was

Argument for Plaintiff in Error.

prosecuted. The assignment of error relied on was that this defence being insufficient in law the demurrer thereto should have been sustained and judgment rendered for the plaintiff.

Mr. Alfred Ennis for plaintiff in error, among other contentions made the following: The seal of the county being affixed to the bonds, was prima facie evidence that it was so affixed by the proper authority, and the burden is upon the defendant in error to establish the contrary. 1 Kyd on Corporations, 268; Angell and Ames on Corporations, § 224; Lovett v. Steam Saw Mill Association, 6 Paige, 54, 60; Clark v. Imperial Gas Light and Coke Company, 4 B. & A. 315; Solomon's Lodge v. Montmollin, 58 Ga. 547; Reed v. Bradley, 17 Ill. 321; St. John's Church v. Steinmetz, 18 Penn. St. 273. The bonds having been issued and delivered by the legal representatives of the defendant in error, with the name of the county clerk signed, and the seal of the county affixed thereto, estops the defendant in error from denying the genuineness of the signature of such clerk, or the authority for affixing such seal, as against the plaintiff in error, a bona fide holder for value. Town of Weyauwega v. Ayling, 99 U. S. 112. The recitals upon the face of the bonds that they were issued according to law, and that the board of county commissioners had executed the same by the chairman of the board, under the order thereof, signing his name thereto, and by the county clerk attesting the same and affixing the seal of the county thereto, estops the defendant in error from denying the facts so recited, as against the plaintiff in error, a bona fide holder for value. Insurance Company v. Bruce, 105 U. S. 328; Harter v. Kernochan, 103 U. S. 562; Menasha v. Hazard, 102 U. S. 81; Hackett v. Ottawa, 99 U. S. 86; Town of Weyauwega v. Ayling, 99 U. S. 112; Supervisors v. Galbraith, 99 U. S. 214; Wilson v. Salmanca Township, 99 U. S. 499; County of Warren v. Marcy, 97 U. S. 96; San Antonio v. Mehaffy, 96 U. S. 312; Town of Coloma v. Eaves, 92 U. S. 484; Town of Venice v. Murdock, 92 U. S. 494; County of Moultrie v. Rockingham Ten Cent Savings Bank, 92 U. S. 631; Marcy v. Township of Oswego, 92 U. S. 637; Humboldt Township v. Long, 92 U. S.

Opinion of the Court.

642; Pompton v. Cooper Union, 101 U. S. 196; The Mayor v. Lord, 9 Wall. 409; Supervisor v. Schenck, 5 Wall. 772; Moran v. Commissioners Miami County, 2 Black, 723; Bissell v. Jeffersonville, 24 How. 287; Knox County v. Aspinwall, 21 How. 539. The registration of the bonds in the office of the auditor of State, according to law, was a final and conclusive determination that the same had been regularly and legally issued, and that the signatures thereto were genuine, and such facts cannot now be inquired into, as against the plaintiff in error, a bona fide holder for value. See Bigelow on Estoppel, 464; Herman's Law of Estoppel, 509 and 512; Moran v. The Commissioners of Miami County, 2 Black, 722; Zabriskie v. Cleveland, &c., Railroad Company, 23 How. 400; Commissioners of Knox County v. Aspinwall, 21 How. 539; Rogers v. Burlington, 3 Wall. 654; Pendleton County v. Amy, 13 Wall. 297; Keithsburg v. Frick, 34 Ill. 405; Royal British Bank v. Turquand, 6 El. & Bl. 327; Hale v. Union, &c., Insurance Company, 32 N. H. 295; Trustees v. Mayor et al. of Aberdeen, 13 S. & M. 645.

Mr. W. H. Rossington, Mr. J. R. Hallowell, and Mr. Chas. B. Smith, for defendant in error.

MR. JUSTICE MATTHEWS delivered the opinion of the court. After stating the above recited facts he continued:

The plaintiff in error contends that this judgment is erroneous on several grounds, which we proceed to consider in their order.

1. It is claimed, in the first place, that the defence is not sufficient, because the signature of the county clerk is not essential to the validity of the bonds, nor that the county seal should have been affixed thereto by him.

The statute of Kansas, Laws of Kansas of 1870, ch. 90, p. 189, under which the bonds in question purport to have been issued, contains the following provisions;

"SECTION 1. Whenever fifty of the qualified voters, they being freeholders, of any municipal township in any county in the State, shall petition in writing the board of county commissioners