The cash paid the subcontractors, $834, is a proper element of plainti ffs" damage;' but I do not think the proof justifies me in sustaining the item for $2;500 for loss ofiIilaterials purchased. ,The plaintiffs were bridge-builders, and there is no proof in the case showing, or tending to show, that this bridge was so different from other truss-bridges and drawbridges/that 80 large It loss would be sustained in adapting the material purchased· to use in other bridges. The item for the construction of patterns is also disallowed, forl 'cahnot conceive that such patterns could be entirely useless in the business of the plaintiffsjandso also as to the large claim for expenses of plaintiffs in obtaining this contract, submitting their plans and specifications, telegraphing, traveling expenses, etc. This leaves the plaintift's'damages $11.750, for which judgment will be entered. " .
lETNA L:ti'E INs. Co. 'V.:TOWN OF MIDDLEPORT and others.
(Oircuit OOflll't, N.1J.lllinoill. July 5,1887.)
LmITATIOlr OJ! AtrJ:ioNS",;",PRoMI8E. NOT, IN. ,wRrTING-.A,1'PllOPRIATION IN RAILROAD. '.' ,
In an action against a town to recover the amount of certain bonds issued by its supervisor and town clerk, U :appeared that tl1e' town was authorized by statute to appropriate money,,,,,nd levy a tax to aidinthe construction of a ,railroW,1Jpon the vote of a majority of the lefalvoters in favor of the measllre;: tllllot.t aPllropriated 3. Bubsidy by a lega vote; that, when the subsidy feU due on completion oftl1e railroad, the supervisor and town clerk executed bonds to the railroad company for the amount of the appropriation, which bonds were assigned by the railroad to plaintiff. :.The supreme court, in the case of Middleport v. Alltna Life Ins. 00., 82 Ill. 562, held these bonds void as being'unauthorizedbY the statute authorizing the appropriation, and pll1ointi1f'brought action to recover the appropriation. Held, that plaintiff's cla:iin being Ij8sed on no written contract, was barred by section 2 of minois act of Novelri1Jer, 1849, amending'the law concerning' the limitation of actions, (Purple, St. Ill. 731,)which limits actions on accounts or p:\,omises not in writing to tiveleare, and neither the record of the vote of the subsidy, nor the issuance 6 bonds by the town officers, made a written contract with the railroad company which woiildtake the case out of the ,statute.
Bailey &:Sedgwick, for complainant. Dewitt' a. JriMB, for defendant.'
BLODGET'r"J·. This pill charges, in substance, that at an election of the legal votersofthe defendant town, held on the eighth day of June, 1867, it appropriatethesum of $15,000 to aid intheconstruction of'the Chicago, Danville & Vincennes Railroad, such election being held and appropriation made in pursuance of an act of the general assembly'or'the state of Illinois approved March 'J, 1867, entitled "An act to cities, or townships lying within certain limits to appropriate mOfiey and levy a tax to aid in the construction of the Chicago, DanviUe&Vincennes Railroadj"that, by said act, said legal voters were empowered to bind the defendant town for the payment ofthesnm so
BTNA LIFE INS,' CO', fI, TOWN OF MIDDLEPORT.
appropriated as soon' as said railroad should be laid ouf and constnwted through the said town, and did so bind the town by said vote; that the railroad company duly accepted the conditions of said appropriation, and laid out,constructed, and completed its track through said town on the faith of such appropriation; that the railroad was so completed, on or before the twenty-fourth day of March, 1871, and the appropriation of said aid in the construction thereof became and was due and payable on said day, and that afterwards, and on the 24th day of March, 1871, the supervisor and town clerk of the defendant town, for the purpose of paying such appropriation, executed and delivered to said railroad company 15 bonds for the sum of $1,000 each, dated on the last-mentioned day, bearing interest at the rate of 8 per cent, per annum, payable on the first day of June in each year,-the principal sum of three of said bonds being payable June 1, 1876; three, June 1, 1877; three, June 1, 1878; four, June 1, 1879; and two, June 1,1880; and that during the month of June, 1871, the complainant, without notice of any want of power in the town to issue the same, purchased the said 15 bonds from the said railroad company, and paid therefor the sum of $14,700, and said bonds were delivered to complainant, and complainant has ever since been the holder and owner in good faith, for value so paid; that by said purchase and acquirement of said bonds from the railroad company, complainant became in all respects the equitable assigilee of the sum so appropriatedby the town to aid in the construction of said railroad; that after the issue of 'said bonds, and the purchase thereof by complainant, the defendant town paid all the interest thereon as' the same fell due, according to the tenor of the bondS, up to and including the interest due July 1,1876; that about the twentieth day of June, 1876, the defendant town filed its the equity side of the circuit court of Iroquois county, in which county said town is situated, against the complainant, as holders of the bond in question, and divers other 'persons whom it is not material hereto mention; charging that such .bonds were made and de:' livered without authority of law,and were void; and praying the court to sodecrtle, and to enjoin complainant from collecting said bonds; and that. such proceedings were had in said cause; that on the twelfth day of September, 1876, the supreme court of lliinoi1'l adjudged that said bonds were void as issued without authority of law; whereupon said circuit court, passed and entered a decree in cQnformity with the judgment of the supreme court, adjudging the bonds void, and enjoining the complainant from collecting the same; which judgment and decree has ever since remained, and is now, in full force. n is further charged that the adjudication as to the validity of the bonds proceeded solely on the ground of want of power to issue them in payment of the appropriation voted to aid in the construction of said I'ailroad by the voters of the town, but did not hold or adjudge that the appropriation so voted was not valid and binding on the town; that no part of the principal sum of said appropriation has ever been paid by the defendl;l.ot town,; and t.hat, by reason of the premises, the said appropriation is now due and payable to the complainant, as the equitable
assignEle thereof from said railroad company; wherefore a decree is prayed subrogating the complainant to all the rights of the railroad company, and directing that the town 'proceed without delay to levy and collect a tax sufficient to pay such appropriation, and that the same be paid to the complainant. To this bill the defendant town opposes a demurrer on the ground: (1) that the bill is without equity; (2) that it is multifarious; (3) that all right of action was barred by the statute of Illinois in five years from the time appropriation became payable; (4) that the right of action is so barred by the statute of illinois in 10 years from the time the appropriation became due; (5) that the complainant has been gnilty of such laches as to defeat this suit, even if a right of action had ever existed in favor of complainant. I do not deem it necessary to discuss all the points made on the demurrer, as it seems to me, if the defense of the statute of limitations is good, no other defense need be considered. The rule is undoubtedly well established in the federal courts that the defense of the statute of limitations or of laches, if it appears clearly on the face of the bill, may be taken advantage of by demurrer. Judge Story says:" A court of equity will not entertai.n a suit for relief if it would be barred by law," Story, Eq. PI. § 503; Maxwell v. Kennedy, 8 How. 218; Badger v. Badger, 2 Wall. 87. Here complainant seeks to be sUbrogated to the rights.of the railroad company; and, if the rights of the railroad company are barred, then those of the complainant,as equitable assignee, must also be barred. The dealings between the complainant and the railroad company, by which the complainant claims to have become the equitable assignee of the appropriation voted by the town to the railroad company, does not change the natu1'e of the obligation of the town. If it was originally a demand which could only have been enforced by a suit at law, its character in that regard is not so changed as to defeat any legal defense which the town could have against the railroad company. It is emphatically a case where equity will follow the law, because the only ground for equitable cognizance is the alleged equitable transfer to the complainant of the right to this appropriation which entitles the complainant to be subrogated to the rights of the railroad company; and, if that right should be decreed, a court of equity, having taken jurisdiction for the purpose of subrogation, may, in its discretion, retain it to do complete justice betwet':l the parties. ' So much of the act of March 7, 1867, under which this liability was incurred by the defendant town, reads as follows: "Eection 1. That all incorporated towns and cities. and towns acting un,ger the township organization law. which lie Wholly or partly within twenty )fiiles of the east line of this state. and also between the city of Chicago and the southern boundary of Lawrence county. be. and thesame are hereby. severally authorized to appropriate such sum of money as they may deem proper to the Chicago, Danville & Vincennes Hailroad Company, to aid in the construction of the road of said company. to be paid to said company as soon as the track of saill road shall have been located and constructed through said
JETNA LIFE INS. CO. f1. TOWN OF MIDDLEPORT.
city, town, or township respectively: provided, however, that the proposition to appropriate moneys to said company shall be first submitted to a vote of the legal voters of said respective townships, towns, or cities, at a regular anor special meeting, by least ten days' notice thereof; and a vote shall be taken thereon by a ballot at the usual place ()f election; and, if majority of votes cast shall be in favor of the approPriation, then the samB shall be rriade;otherwise not. " I "Sec. 2. The authorities of said townships, towns; or cities, respectively. are hereby authorized and required to levy and collect a tax, and make such provisions as may be uecessary and proper for the prompt payment of the, propriation under the provisions of this law." In the case referred to in the bill, where the ,bondsjnquestion were adjudged void by the supreme court of this state, (Middleport v.A!Jtria Life ' Ins. Cu., 82'il1. 562,) the supreme court of Illinois says: ,. All these bonds recite upon their face the several ,acts of the legislature under which they were issued, and that they were issued in accordance with a vote of the electorsof the towni;lpip ,at an election on the eighth day of Juqe, 1867. The present of the bonds are chargeable, therefore, with no· tice of the fact whether there was any authority at law for ii;li;lulng. such bonds. Under the decisions of this court, if there was a total'watltof thority in the municipal 'officers to issue such bonda, they are void, no'matter if they came into the hands of the present holders for fullvalue paid. ".. "" · This ,brings I1S to the important inquiry, what authority had the officers, assuming to act on behalf town of Middleport, to issue the bonds are the subject of this litigation? Clearly they derived no authority whatever from the act of March, 1l:!67, under which the election as to the propriety of making the approptiation to the railroad company was held. That' aCt did not purport to give either the township or its officers power to borrow money, or to issue bonds in payment· of any appropriation that might be voted. by the legal voters of the town to the railroad company. Such appropriations or do· nations were to be paid by a tax, which it was made the duty of the rate authorities to levy and collect. 'Where one mode of payment of municipal indebtedness is fixed by statute. by implication it excludes all others. The electors gave their consent to the statutory mode of the appropriation voted, viz., by taxation, and none other; and the corporateauthotities of the town were not at liberty to adopt any othermode.. ,,",; "" The electors. of: the township under the act of March 7, J867, had voted a sum. of money as an appropriation or donation to the railroad company to be paid by taxation, and in no other way. They never gave their consent to any ,other mode of payment. · '" · l'ayment of intetestfora series of years upon donations voted, or discount to make the donations equal to ready money in the market,was a burden the people of the township had never assumed. and no power existed anywhere to impose it upon them without their consent." If I rightly construe this opinion,it holds that neither the 'railroad company nor the complainant acquired any right against the town by-the issue ofthese bonds; and the right of the railroad company to be'paid the appropriation is in no wayafJected by this void act of itSofflcers in issuing these bonds. It follows, then, I think, that from the most favorable view;which can be taken in favor of the complainant, 'this case must be considered precisely the same as if the railroad company had, in the month of June,. 1871, assigned to the complainant all its rights to this donation, nnd it may, for the purposes of this demurrer, be considered that the railroad was then completed througbthe town, so 'that the
appmpPl\.pon v-oted was tpep anP payable, and il<n action might halVe beett, maintained· therefor. '. There was. no agreement in. writing betweeJi,thl1 town and the railroad:company for the payment of this appropriation. ··The vote' of,the electors clothed the proper officers of the town mth authority to pay thisSUIn to' aid in the of this railroad j and riuide it the duty of the officers of the town tol.evy and collect a tax sufficient to secure if,& prompt paymllntj and, Rf!.the law made the appropriation payable "as soon as the railroad' shall have been located and consttllcUld through\ the town/it is probable the law would imply a promise on the part of the town to pay when the road was so completed j lind the right then accrued to the railroad company to sue for and colledt this approprianon,-thusCle8idy bringing the case within the second section of the act of November, 1849, entitled "An act ;to amend the laWl.concerning.the,limitation of actions," (Purple, St. Ill. 731,) which Iimit8'all; actions founded upon: accounts, bills of exchange,. orders, or prorilise.S'ribf in ",riting, express 'or iUlplied,' to five yeats after the C8iUS0 f?t", action shaIljlaye aqcrued.TMre was here no agreement in writing to ,but the voters of. tile town, acting under the authority of de lElga1ied .to their. proper .officers the '8iuthorlty to pay it; =and we may say;it became under the duty of these officers to Ie"y and ()ollect,ti tax and pay therrtoney whentbe road was completed .th!oughtbe town;' The time of payment, or whetherthe$,um so apprbdue was wholly, uncertain, and rested 'qPOU,thlil as, to when, j f railroad should be so conthe town,'""'"'":'tbus time when the payment shot,lld be due, if it ever 'became due,to be determined wholly by out.' done by the voters at their election, although -enfered'upori'the towl'i records, does' not make:a contract In writing with of' 'any pers?>n for the of this la'W'lllay perhaps besaIg.to llnply 'an to pay thIS .,moMyfr<lm the vote' of the electots, and the completion .of the road. made and recorded ,their own will in theil' own record-book; \IDd the law"said that .this direction of the will 'of the voters should' be into' effect when the r0l,\d"r,ds cowpleted. , Were,fore seems to tow,n <lfficers ill. the be lor. affect rt ,D;l/.lst have com,. !Dlenced ,tQrun,',QcQording, to. the spi:tifl1nd teachings'of the ,opinion of tlte."supremef:ebwrt from which, I,; have 'quoted, as'SOO'll.',ag the railroad lCR.mpany,.lla<;l,/t,rightofaction agaj!].st,th,e townj/lond"being only It right .resft\ng ·pn. parol, or.w thE;t J!Lw;woulp:.inmJy from certain agreeri:HlUt it.mqa-t be,controlled and section .of'the,act .Qf 1849; W which I have re-
9f,theopinionth.at any right to wbich,thecom.plainunderthill; b.ill is barred .by .thestatute. of lim,!1ati911S; tbittis, if the .complainant, by thE: decree oUhis court to }pe placed to-dl;ty, in the Ejhoes of the railroad company, aJ;ld to be held. to .l»e assignl,*l 9f all the rights of of the .railroad compa.ny, such
right of action would be barred by'the to ivhibh I have referred. 'The to the bill is therefore sustained, and the bill dismissed for want of equity.
! , , ,. ' ·
1Ertu. LIFE INs. Co.
TowN Olf MILFORD.
11. ,ToWN OF
, (Oirtmit Oowrt, No D. lUmM,. July 5, ,1887.) ,
BLODGETT, J. ThE! suits brought by the same complainant against the Milford and the Wwn of Belmont have been submitted on demurrers, and present precisely the same questions, which 'are presented in the case just considereld;; .and these demurrers will therefore be sustained, and the bills .dismissed for want
OF aLiENs:':"'TOONGDECLAItATION AT PR'rvATE llil:emENOB;' Tlie :elerkof the United States'llil'cuit court hall no authority,to take from an of intention to 1)ecome a of the UnitElq at the. party, and for that purpose to carry the re,cords 6fthe court'from the clerk's office to such residence. ", ".,.,!,
In the cifcuit court of the United ,States for the-district of California, 'deciaratiobsbyaliens of their i'nteiltion to, become citizens of the United ''States arecohtained' in: bound'volumes, which constitute records of: the court. Printed forms of declaration., with blanks' to be filled with. the name of a:pplicant and of the country of which he is a oitizen, or -of whose ruler he is 'a subject,' are bound in the volume, and ate filled l1p"and \.lSoo as applicatiens are ·made. On the twenty-eighth' of June, '1'8S7', Emilie Charlotte Langtry, III subjeot of the <1uoon of Great Britain, 'madeappFcation to become 'a citizen of the 'Pnited States, and on'e'of ,these volumes'; of which one-third of the blanks had been used and constituted the original declarations of intention of the different applicants, _W,as,taJten fromthlil clerl,\.'s.,office at Francisco by and to, resi(Ience of ':Mrs. Langtry, in the city, and tqere heir declarationvvaijl, made and oath, bef()re the deputy-clerk.'This fact coming to the knowledge of Mr. Justice: FIELD, of the Unite<lStatessuwith Circuit Judge SAwYER the circuit court ,at San Francisco. the following proceedings were had in the' circuit court on the nineteenth of July, 1887. FIELD, Circuit Justice, addressing Mr. Barnes, a counselor olthe circuit ,court, inquired whether he was counsel for Mrs. Langtry. Mr. Barnes replied that he was not such counsel, although he had given her advice as :to making a declaration to become a citizen. The justice then said that