WILKINSON '11. CULVER.
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. J udgment must therefore be entered for the defendant, and it is so ordered.
Receiver, etc., v.
(Oircuit Oourt, S. D. New York. December 7, 1885.)
RECEIVER-ACTION IN CmCUIT 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, 8S 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 personce, 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. BrInk, 17 Wall. 545; Ries v. Rowland, 11 Fed. Rep. 657; Oonnecticut 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 recEjiver; that was done in the action in New Jersey upon the notes. It was nece&sary there, in order to obtain the judgment; but, having obtained it, the plaintiff, as an individual, can maintain the present snit. 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 adminis· trator 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 agaimt 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; Bonafou8 v. Walker, 2 Term R. 126; Freem. Judgm. § 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.
VIRGINIA COUPON CASES. CLARK, Adm'x, v. AMERICAN DOCK & IMPROVEMENT CO.
(Circuit Oourt, S. D. New York. November 25, 1885.)
COSTs-WITNESS FEES-WITNESS NOT EXAMINED.
Witness fees are taxable for necessary and proper attendance in court, altbough 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 ()OUPON CASES. FAURE v. SINKING FUND COM'as.
(Oircuit Oourt, 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. 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. 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 underinterpre· tation.
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