on the twenty-seventh day of March, 1873, when the bonds in suit were issued, the calculation must be based upon the assessment for the year 1872, because, according to the provisions of the Code then in force, the assessment for 1873 could not be completed until after the first of August. The amount of taxable property within the district for the year 1872 was $41,426, and 5 per cent. upon this sum would be $2,071.30. When the plaintiff was about to purchase these bonds she was bound to know the limit of indebtedness which the constitution of Iowa imposed upon the district, and she was likewise bound to take notice of the amount of taxable property within the district, as shown by the state and county tax-lists. Buchanan v. Litchfield, 102 U. S. 278; Dixon Co. v. Field, 111 U. S. 83; S. C. 4 Sup. Ct. Rep. 315. In other words, she was bound to know, and must be held to have known, when these bonds were offered for sale to her, that in March, 1873, the limit of the indebtedness which the district could lawfully incur was $2,071.30. As the bonds, without interest, which she purchased amounted to $2,500, she was charged with notice of the fact that the constitutional limitation had been exceeded. Further inquiry would have disclosed the fact that before any of these bonds were issued the limit of lawful indebtedness had been passed, and that no part of the bonds offered for sale were legal and valid. Under such a state of facts, it cannot be held that the plaintiff is an innocent purchaser, but, on the contrary, it appears that she bought the bonds under circumstances charging her with notice of the illegality thereof. On part of the plaintiff it is, however, contended that the defendant, by reason of the adjudication in the case brought upon the coupons attached to bonds 14 and 15, in the court at Des Moines, is now estopped from asserting that the bonds are illegal and void in the hands of plaintiff; and, upon the trial, all the evidence introduced by the defendant was objected to by the plaintiff for that reason. In support of this position counsel for plaintiff mainly rely upon the cases of Aurora v. West, 7 Wall. 82, and Beloit v. Morgan, Id. 619.

In the case of Geneva Nat. Bank v. Independent School-Dist. of Riverside, ante 629, just decided, I have considered these cases in the light of the opinion in the later case of Cromwell v. Sac Co., 94 U. S. 357, reaching the conclusion that, if the cases are not conflicting, at least the general statements found in the former cases are greatly modified and restricted in the latter case. According to the doctrine laid down in Cromwell v. Sac Co., the judgment in the prior case brought at Des Moines upon the coupons attached to bonds 14 and 15 is conclusive, so far as those coupons are concerned; and in a second suit between the same parties, upon other bonds or coupons belonging to the same series, is conclusive upon all issues which were in fact heard and determined in the former suit. In effect, what was determined in the former suit between the present parties was that plaintiff was an innocent holder for value of the coupons sued on,

and, as such, was entitled to recover, notwithstanding the fact that it appeared from the evidence that the indebtedness of the district exceeded the constitutional limit at the time the coupons sued on were issued. The question upon which the judges were divided in opinion was whether the recitals in the bonds were of such a character as that plaintiff had the right to rely t ereon as evidence of the fact that the bonds were within the constitutional limit, and therefore valid. It is evident that the decision in that case turned upon the question whether plaintiff was or was not an innocent holder of the coupons sued on; the judgment deciding that she was. According to the ruling in Cromwell v. Sac Co., this judgment does not estop the defendant from contesting the question whether the plaintiff is an innocent holder of the bonds involved in the present suit.

The present suit is not based upon the same coupons that were declared on in the former action; and in that proceeding the question whether plaintiff was or was not an innocent holder of bonds Nos. 14, 15, 16, 17, and 18 was not involved nor determined. This question is therefore open for determination in the present case.

The evidence now introduced shows that plaintiff, outside of the recitals of the bonds, was charged with knowledge of a state of facts which conclusively proved that the bonds exceeded the constitutional limit. No matter, therefore, how clear the recitals in the bonds might be, she could not rely thereon in making the purchase, because she knew, or was charged with knowledge, of such a state of facts as precluded the idea that the bonds were within the constitutional limit. In other words, she knew, or was bound to know, that in March, 1873, the independent district could not lawfully incur an indebtedness in excess of $2,071.30, and the bonds offered to her for purchase amounted to $2,500. This fact was sufficient to put her upon inquiry, and any reasonable inquiry would have disclosed the fact that the district was already indebted to an amount in excess of the legal limit, and that, consequently, the bonds were wholly void.

Counsel for plaintiff, in their argument upon the question of the amount of indebtedness due and owing by the district when the bonds in suit were issued, claim that there may have been money enough. in the treasury of the district to pay off the existing indebtedness; and that therefore the actual indebtedness may have been within the constitutional limitation; and cite in support thereof the case of Dively v. Cedar Falls, 27 Iowa, 227, in which it was held, "that if a municipal corporation has the money in its treasury to meet its indebtedness, the issue of warrants to the amount of $20,000, or any other sum, however great, over five per cent. of its taxable property, would not be a violation of the constitution. In such a case it would not become indebted' within the meaning of the clause under consideration." It will be remembered that under the laws of Iowa warrants are the authority for the payment of money by the treasurer. The money may be in the treasury to meet a given debt, but the cred

itors must procure a warrant therefor, before the treasurer is authorized to make the payment. Therefore the mere facts that certain warrants are drawn in favor of A., B. and C., on a given day, upon the treasurer of a city or county, does not necessarily imply that thereby the indebtedness of the corporation has been increased by the amount of the warrants.

Just as the supreme court of Iowa holds in Dively v. Cedar Falls, if the money is in the treasury to pay the warrants, the drawing of the warrants does not create a debt within the meaning of the constitutional limitation. If, however, bonds are executed payable 10 years after date, these are evidence of an actual indebtedness, not to be paid at once out of money now in the treasury, but to be paid. when they mature in the future, and it is questionable whether the same rule is applicable thereto. Thus, if it appeared in a given case that the amount of indebtedness that the district could incur was $10,000, and there was $10,000 in the treasury liable to be used for current expenses, and the district should issue $20,000 in bonds payable in 10 years, it would certainly be a grave question whether such an issue would not exceed the limitation of the constitution. But however this may be, in the case now before the court the defendant put in evidence the secretary's and treasurer's books belonging to the district, which was the best evidence attainable, and from these it did. not appear that there was on hand any sum of money applicable to the payment of the outstanding indebtedness.

From the entire evidence, the court is justified in finding that the actual indebtedness of the district when the bonds were issued exceeded the constitutional limit, and that they are therefore void. Judgment must therefore be entered for the defendant, and it is so ordered.

WILKINSON, Receiver, etc., v. CULVER.

(Circuit Court, S. D. New York. December 7, 1885.)

RECEIVER-ACTION IN CIRCUIT COURT ON JUDGMENT OBTAINED IN STATE COURT. A receiver appointed by a state court for a corporation organized under the state laws may sue in the circuit of the United States for another state on a judgment obtained in the state court upon promissory notes, as in such case he sues, not as receiver, but as a judgment creditor.

At Law. On demurrer.

Cortlandt Parker and Edgar P. Hill, for plaintiff.

R. Floyd Clarke, Frederic F. Culver, and James W. Culver, for defendant.

COXE, J. The plaintiff declares upon a judgment recovered by him, as receiver of the American Trust Company of New Jersey, in the supreme court of that state upon certain promissory notes made by

the defendant. The defendant demurs upon the ground that the plaintiff is the receiver of a New Jersey corporation, appointed by a court of chancery of that state, and, as such receiver, cannot maintain an action in this court.

The position of the defendant, in this respect, is sustained by the following authorities: Booth v. Clark, 17 How. 327; Peale v. Phipps, 14 How. 368; Holmes v. Sherwood, 16 Fed. Rep. 725; Olney v. Tanner, 10 Fed. Rep. 101; Hazard v. Durant, 19 Fed. Rep. 471. The plaintiff, though not admitting the accuracy of this contention, insists that it is not applicable to the present controversy for the reason that he is not suing as receiver, but as an individual. It is argued that the addition of the words "receiver, etc.," to the plaintiff's name in the title of the cause is mere descriptio persona, and may be rejected as surplusage. It is thought that this position is well founded. A judgment upon a note merges the note, and no other suit can be maintained on the same instrument. Such a judgment, when binding personally, can be relied on as a bar in a second suit upon the note. Eldred v. Bank, 17 Wall. 545; Ries v. Rowland, 11 Fed. Rep. 657; Connecticut Mut. Life Ins. Co. v. Jones, 8 Fed. Rep. 303.

The plaintiff does not sue because he is receiver, but because he is a judgment creditor. The action is on the judgment. He must, in order to recover, prove the judgment. He is not required to prove his title as receiver; that was done in the action in New Jersey upon the notes. It was necessary there, in order to obtain the judgment; but, having obtained it, the plaintiff, as an individual, can maintain the present suit. That such is the law in the case of an administrator is very clear.

In Talmage v. Chapel, 16 Mass. 71, the court says:

"The action is on a judgment already recovered by the plaintiff, and it might have been brought by him in his own name, and not as administrator. For the debt was due to him, he being answerable for it to the estate of the intestate; and it ought to be considered as so brought, his style of administrator being merely descriptive, and not being essential to his right to recover. It is important to the purposes of justice that it should be so; for an administrator appointed here could not maintain an action upon this judgment, not being privy to it. Nor could he maintain an action on the original contract; for the defendants might plead in bar the judgment record against them in New York. The debt sued for is in truth due to the plaintiff in his personal capacity. For he makes himself accountable for it by bringing his action; and he may well declare that the debt is due to himself."

To the same effect are Biddle v. Wilkins, 1 Pet. 686; Bonafous v. Walker, 2 Term R. 126; Freem. Judgin. § 217. Which one of these arguments does not apply to the case at bar? The reasoning is, it would seem, as applicable to a receiver as to an administrator.

The demurrer is overruled. The defendant has 20 days in which to answer.

CLARK, Adm'x, v. AMERICAN DOCK & IMPROVEMENT CO.

(Circuit Court, S. D. New York. November 25, 1885.)

COSTS-WITNESS FEES-WITNESS NOT EXAMINED.

Witness fees are taxable for necessary and proper attendance in court, although the witnesses were not actually called and sworn on the trial.

Appeal from Taxation of Costs.

WHEELER, J. The clerk has taxed for witnesses not actually called and sworn on trial. No facts are reported as found as a ground of taxation or for refusing taxation. It is taken from the fact of taxation that all facts necessary were found; and no question arises except whether witnesses can be taxed for upon any state of facts when they are not called. Witness fees are taxable for attendance in court. Rev. St. § 848. This of course means necessary and proper attendance in good faith, which the clerk must have found. Taxation of clerk approved.

*

VIRGINIA COUPON CASES.

FAURE v. SINKING FUND COM'RS.

(Circuit Court, E. D. Virginia. August, 1884.)

1. VIRGINIA COUPONS-"RIDDLEBERGER ACT"-CONSTRUCTION.

Clause a of section 5 of an act of Virginia, called the "Riddleberger act," to "ascertain and declare Virginia's equitable share of the debt created before the partition of her territory," etc., passed February 14, 1882, construed. 2. SAME-REFUNDING COUPONS.

Coupons maturing after July 1, 1882, held to be fundable, dollar for dollar, in the bonds authorized by the said act, as well as coupons which matured before that date. But the legislature may provide otherwise as to coupons maturing after it so provides.

3. STATUTORY CONSTRUCTION.

Where any clause of a statute is free from ambiguity, it is not admissible to go out of that clause, and to search in the act at large for provisions which might tend to render ambiguous the plain terms of the clause under interpretation.

This is a petition for a mandamus. The case is submitted on printed briefs; that for the sinking-fund commissioners being presented by the attorney general of Virginia. The case was removed into this court from the circuit court of Richmond, and motion is made to remand.

Leigh R. Page, for plaintiff.

F. S. Blair, Atty. Gen., for defendants.

HUGHES, J. Before the year 1882 the state of Virginia had issued bonds which had assumed four or five different forms. The aggregate amount of all, principal and interest, was about $34,500,000. The principal of the debt represented by these bonds was all created before the late war, while Virginia and West Virginia were one state. v.25F,no.11-41