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PENDLETON COUNTY V. AMY, 80 U. S. 297 (1871)

U.S. Supreme Court

Pendleton County v. Amy, 80 U.S. 13 Wall. 297 297 (1871)

Pendleton County v. Amy

80 U.S. (13 Wall.) 297


1. On suit upon the coupons of railroad bonds payable, both bonds and coupons, by their terms, to the bearer -- the declaration alleging the plaintiff to be owner, holder, and bearer of the coupons -- a plea that the plaintiff was not, either at the time when the declaration or when the plea was filed, the owner, holder, or bearer, is a traverse of a material allegation of the declaration, and though faulty as argumentative, must, on general demurrer, be held good.

Page 80 U. S. 298

2. So, on like sort of demurrer, a plea that at the times named, the bonds and coupons were all the property of one A. R., a citizen of B. (the same state of which the defendant was a citizen), and not of any other person.

3. So, on like sort of demurrer, when the declaration alleged that the coupons sued on were for interest on bonds that had been issued by a county and delivered by it to a certain railroad company in payment by the county of a subscription to stock of the road under an authority given by acts of the legislature, a plea that the county did not sign, seal, or deliver the bonds and coupons to the company as in the declaration alleged, and "so that the alleged acts and coupons are not its acts and deeds."

4. A county issuing bonds to a railroad company in payment of stock in the road, which subscription the county was authorized by legislative enactment to make and to pay for by the issue of the bonds only after certain things directed had been performed, may be estopped against asserting that the conditions attached to a grant of the power were not fulfilled. Where the issue of the bonds without such previous fulfillment would be a misdemeanor, by the county officers, it is to be presumed, though perhaps not conclusively, that the conditions were fulfilled. And an estoppel would take place where the county had received the proper amount of stock for which the bonds were issued, had held it for seventeen years, and was actually enjoying it at the time when pleading want of authority to subscribe.

Amy brought suit in April, 1869, against the County of Pendleton, in Kentucky, to recover the aggregate amount of certain coupons or interest warrants attached to fifty bonds of $1,000 each. The bonds were dated October 15, 1853, payable thirty years after date, and were alleged in the declaration to have been made and issued by the county of Pendleton in virtue of authority conferred by the legislature of the state. The declaration averred the execution of the bonds with interest warrants attached to each, payable to the bearer semiannually on the 15th days of April and October of every year, and also that they had been delivered to the Covington and Lexington Railroad Company in payment of a subscription made by the county to the capital stock of the company, under authority given by acts of the legislature. It further averred that the bonds were received by the railroad company, and that a certificate for the shares of stock subscribed, as aforesaid, was issued to the county,

Page 80 U. S. 299

and was received by it, and that it was still owned by the county, and further that the bonds were afterwards sold by the railroad company for $50,000 and delivered to the purchasers with the coupons attached; that the plaintiff subsequently became the owner, holder, and bearer of them all, and that from the 15th day of October, 1864, inclusive, until the commencement of the suit, the county had neglected and refused to pay the coupons, though often requested to pay them.

To the cause of action thus set forth the defendant pleaded four pleas:

1st. That the plaintiff was not, at the time of filing his declaration, or at the time of entering the plea, the owner, holder, or bearer of the said alleged bonds and coupons or of any or either of them, as in the declaration mentioned.

2d. That at the time of filing the declaration and plea, the bonds and coupons were all the property of one Augustus Robins, a citizen of the State of Kentucky, and not then or now the property of any other person.

3d. That although the legislature, by one act, empowered the county to subscribe to the stock of the company, and to borrow money to pay the subscription, yet the authority was coupled with a proviso that the real estate holders residing in the county should so vote, by a majority, at such times as the county court might appoint, and that

"the question of subscribing stock, or of borrowing money to pay the same, never was submitted to the real estate holders residing in the County of Pendleton, to be determined by vote of a majority of them, as authorized and required by the act, before any stock had been subscribed to or for said county, or any money borrowed to pay the same."

The plea then averred that subsequent acts of the legislature (enacted before the subscription was made) which authorized the levy of a tax for the purpose of paying the subscriptions to the stock of the said company, also provided that before a subscription should be made and a tax levied, the question of levying the tax should be submitted to the voters of the county, and if a majority of the votes cast should be in favor of the tax, it should be levied, and the subscription should be made; and

Page 80 U. S. 300

the plea denied that the question whether the tax or the subscription authorized by these acts, or whether any tax for payment of a subscription of stock in said company should be imposed in the county, had ever been submitted to, or voted upon, by the voters of Pendleton County in conformity with said acts. The plea further averred that no other acts of the legislature authorized the county, or anyone for it, to subscribe stock for it in said company, or to levy a tax for payment, or to borrow money, or to issue bonds and coupons for the payment of any subscriptions of stock therein.

4th. That the county did not sign, seal, or deliver the bonds and coupons to the railroad company or to any person or corporation as in the declaration alleged, nor authorize anyone to do so; "and so the defendant says that the alleged acts and coupons are not its acts and deeds."

To all these pleas there were general demurrers, and these demurrers being sustained and judgment given for the plaintiff, the county brought the case here.

Page 80 U. S. 303

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