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material both non-combustible and a non- | ing it in a second tub containing paint, conductor.
| and finally passing it through jaws to It is clear that none of these Engiish scrape off the surplus paint and compress patents can be claimed as anticipations, | it. As this method of insulation, howsince they all relate to the protection of ever, does not resemble so closely the land or submarine telegraph cables; and Cowles patent as that employed by Mr. the use of paint, so far as it was used at Holmes, it is unnecessary to notice it furall, was simply as a water-proof covering ther. for a braided wire. There is nothing to Practically the only difference between indicate that the paint, as used by them, the Holines and Cowles insulators is in the was applied in the manner indicated by fact that the coat of paint applied to the the patent, or that it made the covering first braid in the Holmes process was alnon-combustible, or was intended at all lowed to dry before the second coat of for that purpose.
| braid was applied, and thereby the braid The most satisfactory evidence of the was not so thoroughly permeated with use of a non-combustible covering for the paint as is the case in the Cowles pat. electric wires is found in the testimony of ent. That the idea of applying the secEdwin Holmes, nianufacturer of an electric ond coat of braiding upon the interposed burglar alarm, who states that when he insulating material, while such material first commenced using electric conductors wus wet or unset, is not in itself a nuvel "the wire was insulated by winding a one, is evident from the English patents thread, larger or smaller, as the case to Brown and Williams, to Duncan and might be, around the wire, and that to Henley, all of which describe a method thread was covered with paint, "and thut for insulating conductors by applying all his wires were “insulated in that way | a layer of fibrous material, a layer of inuntil paraffine was substituted for the sulating material, and a second layer of paint.” The paint was applied by drawing | fibrous material upon the foriner, before the wire through a vessel containing the the insulating material is set ur hardpaint, and then through a piece of thick ened. Indeed, it is doubtful whether rubber or gutta-percha, which removed the Cowles considered this feature of his prosurplus paint and left a sinooth surface on cess as of any great importance at the time the thread which covered the wire. He he made his application, since he speaks of began to cover his wires in this way as it only as a "preferable" method, and early as 1860, and says that he accom Huys that he does not limit himself in this plished his insulation "sometimes by cov. particular, “as the paint may be dried, os ering the wire with a thicker thread and partially so, before the next layer of braid. two coats or more of paint; sometimes ing is applied.” But, however* this may.. by a thread covering and a coat of paint, be, the method described by Cowles dif. then apother thread covering and a coat fers only in degree, and not in kind, from of paint on that.” And upon being asked that described by Holmes. In other to describe the condition of the first coat- words, it is a more thorough doing of ing of paint when the second coating of that which Holmes had already done, fibrous material and paint was put on, he and therefore involving no novelty within said: “The Orst coat was partially dried, the meaning of the patent law. Indeed, 89 as to keep its place, but would admit we are not satisfied that the method erpof an impression from the next covering ployed by Holmes did not, for all pracof thread.” On being called upon subse-| tical purposes, saturate the first layer of quently for an affidavit to be used on an braid as completely as if the second coat application for a rehearing, he stated that had been applied while the first was still his object was not to produce a non wet. The process and the results in both inflammable wire, and that the wire used cases are practically the same, viz., proby him was not non-combustible or non-tection, insulation, and incombustibility.
inflammable, and was no better adapted | There were certain affidavits introduced Slor electric light conduction than the which tended to show that the Holmes
para fine-coated wire. He further stated insulator was not incombustible; but, in that when the second layer of braid was view of the experiments made by Mr. laid on, the condition of the first layer Earle, the defendant's expert, by apply. was not such as to cause the threads of ing the same current of electricity to the second layer to force the paint into wires insulated by these different meththe interstices, and so load the wire with ods, we incline to the opinion that the an abnormal quantity of paint, as is done method practiced by Mr. Holmes was in the process described in the Cowles pato nearly, if not quite, as efficient in this ent. The substance of bis testimony in particular as the other. If his testimony this particular was that the coating of be true, (and no attempt is made to show paint upon his first layer was allowed to that it is not,) it is difficult to see, even harden before the second layer was ap- | if his insulator were not incombus plied, so that the application of the sec that Mr. Cowles did more than make use of ond layer would not cause the paint upon his process in a somewhat more efficient the first layer to be forced into the inter- | manner. stices of that layer ur to ooze through the In the case of Gandy v. Belting Co., 12 braiding of the second layer.
Sup. Ct. Rep. 598, (recently decided,) the Thomas L. Reed, another witness, gave patentee found that the canvas thereto. & somewhat similar experiment of the fore manufactured was unfit for use as method of insulating wires by passing the belting by reason of its tendency to paked wire through a tub containing stretch, and to obviate this he changed paint, then braiding it, and then immers. | the constitution of the canvas itself by
latter power was expressly or by reason that the issuing and disposal of bonds in able implication conferred by statute. In market, though in common parlance, and the opinion in the case of Norton v. Dyers sometimes in legislative enactment, called ourg, the case of Claiborne Co. 8. Brooks, a sale, is not so in fact; and that the 80111 U. S. 400, 4 Sup. Ct. Rep. 489, was cited called purchaser who takes the bond and with approval.
advances his money for it is actually a In Young v. Clarendon Tp., 132 U. S. 340, lender, as much so as a person who takes 10 Sup. Ct. Rep. 107, it was held to be set a bond payable to bin in his own name. tled law that a municipality has no pow. The opinion then stated that the logical er to issue its bond in aid of a railroad, result of the doctrines announced in the except by legislative permission; and in five cases which it cited clearly sbowed. the opinion of the court, delivered by Mr. that the bonds sued on in the case of Justice LAMAR, the cases of Claiborne Co. v. Merrill v.* Monticello wera invalid, and* Brooks and of Kelley v. Milan were cited added: “It does not follow that, because and approved.
the town of Monticello had the right to In Hill v. Memphis, 134 U. S. 198, 203, 10 contract a loan, it bad, therefore, the Sup. Ct. Rep. 562, the opinion of the court right to issue negotiable bonds, and put being delivered by Mr. Justice FIELD, it them on the market as evidences of such was held that the power conferred by a loan. To borrow money, and to give a statute on a municipal corporation to bond or obligation therefor which may subscribe for the stock of a railroad com circulate in the market as a negotiable pany did not include the power to issue security, freed from any equities that may negotiable bonds representing a debt, in be set up by the maker of it, are, in their order to pay for that subscription; and nature and in their legal effect, essentially it was said that that rule was well set. different transactions. In the present tled. It was added: “The inability of case, all that can be contended for is that municipal corporations to issue negotiable the town had the power to contract a paper for their indebtedness, however in. loan, under certain specified restrictions curred, unless authority for that purpose and limitations. Nowhere in the statute is expressly given or necessarily implied is there any express power given to issue for the execution of other express pow negotiable bonds as evidence of such loan. ers, bas been affirmed in repeated decis Nor can such power be implied, because ions of this court;" and the cases of Po. the existence of it is not necessary to lice Jury V. Britton, Claiborne Co. v. carry out any of the purposes of the muBrooks, Kelley v. Milan, and Young v. nicipality. It is true that there is a con. Clarendon Tp. were cited with approval. siderable number of cases, many of which
In Merrill V. Monticello, 138 V. S. 673, are cited in the brief of counsel for plain 687, 691, 11 Sup. Ct. Rep. 441, it was held tiff in error, which hold a contrary docthat the implied power of a municipal trine. But the view taken by this court corporation to borrow money to enable in the cases above cited and others seems it to execute the powers expressly con to us more in keeping with the well-recog, ferred upon it by law, if existing at all, nized and settled principles of the law of did not authorize it to create and issue municipal corporations." pegotiable securities to be sold in the We therefore must regard the cases of market and to be taken by the purchaser Rogers v. Burlington and Mitchell y. Bur. freed from the equities that might be set lington as overruled, in the particular rtup by the maker; and that to borrow ferred to, by later cases in this court. See money, and to give a bond or obligation | 1 Dill. Mun. Corp. (4th Ed.) $$ 507, 507a. therefor wbich might circulate in the The case of Dwyer v. Hackworth, 57 market as a negotiable security, freed Tex. 245, is relied upon by the plaintiff. from any equities that might be set up In that case Dwyer, a tax-payer, brought by the maker of it, were essentially differ- suit against Hackworth, assessor and col. ent transactions in their nature and legal lector of taxes of the city of Brenham, to effect. In the opinion of the court, which enjoin the collection of certain taxes aswas delivered by Mr. Justice LAMAR, the sessed against Dwyer, to pay the interest cases of Police Jury v. Britton, Claiborne on the bonds involved in the present suit. Co. v. Brooks, Kelley_v. Milan, Young v. Iu the district court of Washington counClarendon Tp., and Hill v. Memphis were ty, Tex., in which the suit was brought, cited with approval. It was added : “It the defendant bad judgment, sustaining is admitted that the power to borrow the legality of the taxes and dismissing money, or to incur indebtedness, carries the plaintiff's suit. The case was carried with it the power to issue the usual evi. by the plaintiff to the supreme court of dences of indebtedness, by the corpora Texas, and in the opinion of that court it tion, to the lender or other creditor. Such is said that the city of Brenhain had auevidences may be in the form of promis. thority under its charter to borrow sory notes, warrants, and, perhaps, most money for general purposes, “and did so o generally, in that of a bond. But there is borrow, by selling its bonds, to the a marked legal difference between the amount* of $15,000.”. This expression iso power to give a note to a lender for the urged by the plaintiff as recognizing the amount of money borrowed, or to a cred. lawfulness of the issue of the bonds; but itor for the amount due, and the power to the court, while reversing the judgment issue for sale, in open market, a bond, as below, said that it could not enjoin the a commercial security, with immunity, in collection of the taxes on the ground of the hands of a bona fide holder for value, the invalidity of the bonds, without makfrom equitable defenses. The plaintiff in ing the bolders of those bonds parties to error contends that there is no legal or the suit, citing Board v. Railway Co., 46 substantial difference between the two; Tex. 316. There was therefore no adjudi.
cation in that case as to the validity of the to the full amount authorized by the ordi. bonds, and the reinark of the court that nance, were issued by the city in 1879, and the city borrowed money by selling its the coupons held by the German-american bonds to the amount of $15,000 is of no Bank were from the bonds so issued force on the question of the validity of the The court does not hold that the issuing bonds. Lewis v City of Shreveport, 108 of these bonds was in violation of tne conU. S. 282, 287, 2 Sup. Ct. Rep. 631.
stitution of Texas adopted in 1876. But It is also to be remarked that the ordi. it does hold that while the city, under its nance of June 7, 1879, provided that the power to borrow, could give to the lender city should have the right to redeem the non-negotiable paper as a voucher" for bonds “at any time after five years from the repayment of the money borrowed, it date, while each bond on its face states could not legally issue negotiable instruthat it is redeemable by the city “after ments or bonds as evidence of the loan. the expiration of ten years from date This view is conceded to be in conflict bereof. The officers of the city had no with Rogers v. Burlington, 3 Wall. 654, power to depart from the terms of the and Mitchell v. Burlington, 4 Wall. 270. ordinance by varying the time limited for But it is said that later adjudications of* redemption.
this court have, in effect, overruled those We see nothing in the provisions of the
We cannot give our assent to the constitution of Texas of 1876, before doctrine announced in the present case. cited, to aid the power of the city to Nor, we submit with some confidence, is issue these negotiable bonds.
that doctrine sustained by any decision of We cannot regard the provision in the this court which has been cited. charter of the city, that bonds of the cor What was the case of Rogers v. Burlingporation of the city “shall not be subject top? Besides the general powers apper. to tax under this act, as recognizing the taining to municipal corporations, the validity of the bonds in question. What. city of Burlington had express power, by ever that provision may inean, it cannot its charter, "to borrow money for any include bonds unlawfully issued.
public purpose, the matter being tirst As there was no authority to issue the submitted to popular vote. The people bonds, even a bona fide holder of them having voted, by the requisite majority, cannot have a rigbt to recover upon them in favor of issuing and lending $75,000 in or their coupons. Marsh v. Fultou Co., 10 the bonds of the city to a particular railWall. 676; East Oakland v. Skinner, 94 U. road company, bonds for that amount, S. 255; Buchanan v. Litchfield, 102 U. S. negotiable in form, were issued. The 278; Hayes v. Holly Springs, 114 U. S. 120, court held the construction of a railroad 5 Sup. Ct. Rep. 785; Dariess Co. v. Dickin. to be a public purpose, within the meanson, 117 U. S. 657, 6 Sup. Ct. Rep. 897; Hop- ing of the charter of the city, and that it per v. Covington, 118 V. S. 148, 151, 6 Sup. made no difference whether the bonds Ct. Rep. 1025; Merrill v. Monticello, 138 Ù. were sold in the market by the officers of S. 673, 681, 682, 11 Sup. Ct. Rep. 441.
the municipality, or were first delivered As the action here is directly upon the to the company and sold by its agents for coupons, and there is no right of recovery the same purpose. “Technically speakupon ther, the judgment must be re ing," the court observed, “it may be said versed, and the case reinanded to the cir that the transaction, as between the comcuit court, with a direction to sustain pany and the defendants, was, in form, the defendant's general demurrer and spe a contract of lending; but, as between cial demurrer and exceptions to the plain the defendants and the persons who pur. tiff's original petition, and to sustain the chased the bonds in the market, it was special exceptions and demurrers of the undeniably a contract of borrowing defendant to the plainti!l'8 supplemental money; and the same remark applies to petition, and to enter judgment thereon the transaction in its practical and legal in favor of the defendant, and dismissing effect upon all subsequent holders of the both of said petitions, with a general securities who have since become such for judgment for the defendant.
value, and in the 11sual course of busi
ness. MR. Justice HARLAN, (dissenting.)
The minority dissented, not upon the Mr. Justice BREWER, Mr.Justice Brown, ground that an express power in a munici. and myself being unable to concur in the pal corporation to borrow money did opinion just rendered, the grounds of our not give authority to execute negotiable dissent will be stated.
instruments for the inoney borrowed, The charter of the city of Brenham, althougb that question was upon the vers granted in 1873, provided that “the city face of the case,- but upon the ground council shall have the power and au that the transaction was not one of borthority to borrow, for general purposes, rowing money. Mr. Justice FIELD, speak. pot exceeding fifteen thousand dollars, on ing for the minority, said: “Here the au. the credit of said city;" also that the thority conferred is to borrow money; yet "bonds of the corporation of the city of po money wus borrowed, but the bonds Brenham shall not be subject to tax under of the city were lent. 'Borrowing money' this act.” Sp. Laws Tex. pp. 14, 23. and lending credit' are not convert
I'nder the authority conferred by this ible terms. The two things which they incharter, the city council in 1879 passed dicate are essentially distinct and differ-2 an ordinance, entitled “An ordinance to ent." Mr. Justice* MILLER, in a separate* provide for the issue and sale of fifteen dissenting opinion, called attention to the thousand dollars in coupon bonds of the fact that the supreme court of Iowa had city, to borrow money for general pur. then recently held the bonds, involved in poses. Bonds, negotiable in form, and that suit, to be void, upon the ground
that the transaction“ was a loan of credit, ries with it authority to issue negotiable and not a borrowing of money. The securities for the amount borrowed. principle announced in Rogers v. Burling. In Claiborne Co. v. Brooks the question ton was applied in Mitchell v. Burlington, was whether the power in a county to 4 Wall. 270.
contract for the erection of a court-house The cases decided since Rogers v. Bur- implied authority to issue negotiable lington, which have been cited, in the bonds of a commercial character in payopinion of the court, as announcing the ment for the work. The court, speaking doctrine that an express power given to a again by Mr. Justice BRADLEY, held that it municipal corporation to borrow money did not, and said: “Our opinion is that does not authorize the execution of nego. mere political bodies, constituted as coun. tiable instruments for the money so bor. ties are, for the purpose of local police and rowed, are Police Jury V. Britton, 15 administration, and having the power of Wall. 566, 570, 572; Claiborne Co. S. levying taxes to defray all public charges Brooks, 111 U. S. 400, 406, + Sup. Ct. Rep. created, whether they are or are not form489; Concord v. Robiuson, 121 U.S. 165, 167, ally in rested with corporate capacity, 7 Sup. Ct. Rep. 937; Kelley v. Milan, 127 U. have no power or authority to make and S. 139, 150, 8 Sup. Ct. Rep. 1101; Norton v. 11tter conimercial paper of any kind, unless Dyersburg, 127 V'. S. 160, 175, 8 Sup. Ct. such power is expressly conferred upon Rep. 1111; Young v. Clarendon Tp., 132 U. them by law, or clearly implied from some S. 340, 10 Sup. Ct. Rep. 107; Hill v. Mem other power expressly given, which cannot phis, 134 U. S. 198, 203, 10 Sup. Ct. Rep. be fairly exercised without it, "-referring 562; and Merrill v. Monticello, 138 U. S. to the same clauses in the opinion in Po673, 686, 187, 11 Sup. Ct. Rep. 441.
lice Jury R. Britton, above quoted, as em. In Police Jury v. Britton it appeared bodying a distiuct expression of the views that a police jury, in a parish of Louisi. of the court. ana, charged with the supervision and re In Concord y. Robinson it was decided pair of roads, bridges, causeways, dikes, that “the grant to a inunicipal corporalevees, and other highways, was prohibito tion of power to appropriate moneys in ed by statute from contracting any debt aid of the construction of a railroad, acor pecuniary liability without fully pro- companied by a provision directing the viding in the ordinance creating the debt levy and collection of taxes to meet such the means of paying the principal and in appropriation, and prescribing no other terest of the debt su contracted. And the mode of payment," did notimply authori. question arose as to whether it could ty to issue negotiable bonds on account of rightfully issue negotiable bonds to take such appropriation; in Kelley V. Milan, the place of certain orders previously that “a municipal corporation, in order given hy it for work done on levees in the to exercise the power of becoming a stockparish. The case involved no question as holder in a railroad corporation, must to the scope and effect of an express power have such power expressly conferred upon in the parish to borrow money. Mr. Jus it by a grant from the legislature, and tice BRADLEY, speaking for the court, after that even the power to subscribe for such ubserving that the police jury had no ex stock does not carry with it the power to press authority to issue bonds, and that, issue negotiable bonds in payment of the it it existed, it must be implied frow the subscription, unless the power to issue geueral powers of local administration such bonds is expressly or by reasonable with which they were invested, said: | implication conferred by statute;" in Nor"We have therefore the question directly ton v. Dyersburg, that “the mere authori. presented in this case whether the trus. ty given to a municipality to subscribe for tees or representative officers of a parish, stock in a railroad company did not carry county, or other local jurisdiction, invest. with it the implied power to issue bonds ed with the usual powers of administra. therefor, especially where, as in the pres
tion in specific matters, and the power of ent case, special provisions were made for a levying taxes to defray the necessary ex paying the subscription by taxation;"
penditures of the jurisdiction, have an im- in Young v. Clarendon Tp., authority to plied authority to‘issue negotiable securi. make the municipal bonds there involved ties, payable in future, of such a character was conceded, and the case turned upon as to be unimpeachable in the hands of the question whether their execution was bona fide holders, for the purpose of rais pot subject to the restrictions and direcing money or funding a previous indebt. tions of the act which authorized them to edness." This question was answered in be issued; and in Hill v. Memphis, that the negative. But, to prevent any possi. | “the power to subscribe for stock does ble misapplication of the principles an not of itself include the power to issue nounced, the court said: “We do not bonds of a town in payment of it," and mean to be understood that it requires, in that “the inability of municipal corporaall "ases, express authority for such tions to issue negotiable paper for their bodies to issue negotiable paper. The indebtedness, however incurred, unless power has frequently been implied from authority for that purpose is expressly other express powers granted. Thus, it given or necessarily implied for the execuhas been held that the power to borrow tion of other express powers, has been ap. money implies the power to issue the or proved in repeated decisions of this court. dinary securities for its repayment, It thus appears that in no one of the whether in the form of notes, or bonds above cases, decided since Rogers V. Bur. payable in future.” It thus appears that lington, was there any question as to nePolice Jury v. Britton distinctly declares gotiable securities being issued under an that case not to be within the rule that express power to borrow money; and an express power to borrow money car that some of them concede that such a
power carries with it authority to give a not advanced directly to the city, but, up. negotiable paper for money borrowed. on its assurance of repayment, to the rail.
The case which seems to be much relied road company, is not a departure eren upon to support the present judgment is from the letter of the law, much less from Merrill v. Monticello. But we submit that its meaning; nor does the fact that the it does not sustain the broad doctrine money was advanced partly on the credit that negotiable securities may not be is. of the railroad company diminish the presued in execution of an express power to sumed reliance of the purchaser upon that borrow money. What could or could not of the city, with which it was joined. It be done, under such a power, was not a is difficult to conceive of language more question involved in that case. The quer comprehensive than that employed, to tion was whether authority in the town embrace every form of security in which of Monticellu to issue negotiable bonds the faith and credit of the city might be could be iinplied, not from an express, but embodied; and that in such cases it is from an implied, power to borrow money. not important to the character of the After observing that, under the laws of transaction that the money is obtained in Indiana, the proposition that a towu has the first instance by the railroad coman implied authority to borruw money or pany, upon the credit of the city, was di. contract a loan, under the conditions rectly ruled in Rogers v. Burlington, 3 and in the manner expressly prescribed, Wall. 654, and affirmed in Town of Venice was not to be controverted, the court, v. Murdock, 92 U. S. 494.” Of course, if speaking by Mr. Justice LAMAR, said: the city of Savannah, having the power “But this only brings us back to the ques. “to obtain money on loan," could guartion, does the implied power to borror anty negotiable bonds, issued by the railmoney or contract a loan carry with it a road coinpauy for the purpose of raising further implication of power to issue fund. money to be contributed to works of ining negotiable bonds, for that amount, ternal improvement in which the city was and sell them in open market?” The interested, the city could have made the question in that case, as framed by the loan directly upon its own negotiable court, clearly shows that it was only con bonds. sidering whether an authority in a munic It is, perhaps, proper to say that our ipal corporation to issue negotiable secu views find support in the admirable com. rities could be implied from a power to mentaries of Judge Dillon on the Law of borrow which was itself to be implied Municipal Corporations. The court refers from other powers granted. This, also, to sections 507 and 507a of those commenappears from the following clause in the taries. But those sections do not, in any opinion: “It is admitted that the power | degree, support the conclusion reached in to borrow money or to incur indebtedness this case. The doctrine which the learned carries with it the power to issue the us author declares, in those sections, to be ual evidences of indebtedness by the cor alike unsound and dangerous, is "that a poration to the lender or other creditor, public or municipal corporation possesses Such evidences may be in the form of the implied power to borrow money for promissory notes, warrants, and, per- its ordinary purposes, and as incidental haps, most generally, in that of a bond. thereto the power to issue coin mercial reAnd it is further shown by the fact that curities, that is, paper which cuts defenses the opinion, referring to the clause in Po. when it is in the hands of a holder for lice Jury v. Britton, above quoted, which value acquired before it is due. But states that authority in a municipal cor: Judge Dillon, while agreeing that the poration to issue negotiable securities power to issue commercial paper, unimmay be implied from an express power to peachable in the hands of a bona fide holdborrow money, states that it has no ap- er, is not among the ordinary incidental, plication to the case then before the court, powers of a public municipal corporation, in which the attempt was made to imply and must be conferred expressly, or by authority to issue negotiable bonds sim. fair implication, says, after a careful reply from an implied power to borrow view of the authorities: “Express power money.
to borrow money, perhaps, in all cases, Another case in this court, not referred but especially if conferred to effect objects to, is very much in point. It is City of for which large or unusual sums are reSarandah v. Kelly, 108 U. S. 184, 190, 2 quired, as, for example, subscriptions to Sup. Ct. Rep. 468. A railroad corporation, aid railways and other public improvewhose principal and beginning point was ments, will ordinarily be taken, if there be that city, issued its negotiable bonds up- nothing in the legislation to negative the on which to raise money to pay debts for inference, to include the power (the same construction, and for future improve as if conferred upon a corporation organments. The city, owning some of the ized for pecuniary profit) to issue negotia. capital stock of the corporation, guaran ble paper with all the incidents of negotiatied the payment of those bonds. The | bility.” 1 Dill. Mun. Corp. (4th Ed.) § 125. bonds, so guarantied, were put upon the It is eminently just to apply that rule in
market and sold. The question was as the present case, because the act giving to the authority of the city to make this the city of Brenham authority to borrow, guaranty under the power conferred upon not exceeding $15,000, for general purit by an act of the legislature,«" to obtain poses, expressly provided that its bunds money ou loan, on the faith and credit of should not be subject to tax under that Baid city, for the purposes of contributing act. Such a provision could have had ref. to works of internal improvements." Mr. erence only to negotiable bonds, which Justice MATTHEWS, speaking for the court, would be put upon the market for the gaid that the fact that the money “was purpose of raising money.