be paid with the county bonds, payable to bearer in thirty years, and that the stock and bonds should be issued and delivered when the railroad should be completed and in full operation from Lawrence to the eastern boundary of Douglas County. The road was thus completed and put in operation; the County received the $125,000 of stock; and the bonds were sold by the railroad company to the contractor for building the road, and delivered to him, after its completion, by direction of the defendants. The bonds were executed by the Board of County Commissioners of the County of Doug-panies, the Board might subscribe and pay the las, who by law are constituted the financial agents of the County. They were made payable to bearer, and each contains the following recital: This bond is executed and issued by virtue of and in accordance with the Act of the Legislature of the State of Kansas, entitled An Act to Authorize Counties and Cities to Issue Bonds to Railroad Companies,' approved April 10, 1865, and the other laws of said State, and in pursuance of and in accordance with the vote of a majority of the qualified electors of said County of Douglas, at a special election, regularly called and held on September 12, 1865." This recital, it will be perceived, asserts legislative authority for the issue of the bonds, found in the Statute of April 10, 1865, and other laws of the State. Referring to the Act of 1865, it is there enacted that the " Board of County Commissioners of any county to, into, through, from, or near which, whether in this or any other State, any railroad is or may be located, may subscribe to the capital stock of any such railroad corporation, in the name and for the benefit of the county, not exceeding in amount the sum of $300,000 in any one corporation, and may issue the bonds of said county in such amounts as they may deem best, in payment for said stocks; Provided, That said bonds shall be issued only in payment of assessments made upon all the stocks of such railroad com pany, which bonds shall bear interest at a rate not exceeding seven per cent. per annum, and shall be payable within thirty years. But no such bonds shall be issued until the question shall be first submitted to a vote of the qualified electors of the county at some general election or at some special election to be called by the Board of County Commissioners, * * and, in submitting such question, said Board of Commissioners shall direct in what manner the ballot shall be cast. If a majority of the votes cast at such election shall be in favor of issuing such bonds, the Board of Commissioners of the county shall issue the same.' Stats. Kan., 1865, p. 41. This statute plainly gives to the Board plenary authority to subscribe for stock of a railroad corporation, and to issue county bonds in payment of the subscription, though whether such authority in any case may be exercised or not is made to depend upon the collateral question whether the result of a popular election has indicated an approval of the pro posed issue. And the Board of Commissioners is the tribunal contemplated by the laws to determine whether the contingency of fact has occurred, a determination necessary to be made preparatory to their issuing the county bonds. The Act of 1865 was followed by the Act of February 25, 1868, which was in force when the stock subscription above mentioned was made, and when the bonds of Douglas County were executed and delivered. This later Act was even more liberal in its grants of authority than the former was. It referred to elections held before its passage, and to irregular elections, which might not have been in compliance with the statutes. It enacted, in substance, that whenever there had been an election called by the Board, at which a majority of the persons voting had voted in favor of subscribing stock and issuing bonds to any railroad company or comsubscription, by issuing to each company the bonds of the county, whether such orders and elections, or either of them, had been in compliance with the statutes in such cases made and provided or not, or whether the proposition submitted at the election was for the subscription for stock and issuance of bonds to one or more railroad companies. The purpose of this Act was evidently to cure irregularities and invalidities of prior elections, and to enlarge the powers of County Boards. Still, under this Act as under the former, the Board was to judge whether the precedent condition had been complied with in substance. (Gen. Stats. Kan., 892.) Such, then, having been the authority of the Board of Commissioners of Douglas County when the bonds now under consideration were issued, what must be the effect of the recitals they contain? The question has been frequently before us for decision, and it is no longer open for debate. In the late case of Coloma v. Eaves, 92 U. S., 484 [XXIII., 579], we considered it fully, and reviewed many of our former judgments. We there held that when, by legislative enactment, authority has been given to a municipality, or to its officers, to subscribe for the stock of a railroad company, and to issue municipal bonds in payment, but only on some precedent condition, such as a popular vote favoring the subscription, and where it may be gathered from the enactment that the officers of the municipality were invested with power to decide whether that condition had been complied with, their recital that it had been made in the bonds issued by them and held by a bona fide purchaser, is conclusive of the fact and binding upon the municipality, for the recital is itself a decision of the fact by the appointed tribunal. The recitals we have now before us are, that the bonds were executed and issued not only in virtue of but in accordance with the Acts of the Legislature, and in pursuance of and in accordance with the vote of a majority of the qualified electors of the County. They are untrue, if the Board had not followed the directions of the law, and if there had not been a popular vote at an election, approving the issue of those bonds. The truth or falsehood of the assertion cannot be inquired after here; for, as we have said, the recitals are practically an annunciation of the judgment of the Board, that all the steps required by the law had been taken. Behind such a recital as we have seen, a bona fide holder for value paid is bound to look for nothing except legislative authority given for the issue of municipal bonds to railroad com. panies. He is not required to examine whether the conditions upon which such authority may be exercised have been fulfilled. He may rely upon the decision made by the tribunal selected | been completed and which the county now enby the Legislature. joys. The bonds have not been misappropriated or squandered. They have been applied to the purpose for which they were made. By direction of the County, they were paid to the contractor who built the road, after his contract was completed and, as intended, they have gone into the hands of remote purchasers. In addition to this, the County received in exchange for them an equal amount of stock of the railroad company: and, so far as it appears, it holds that stock still. And it has acted as the owner, by assenting to a consolidation of the company with another. Common honesty demands that a debt thus incurred should be paid. Do, then, the plaintiffs below stand in the position of bona fide holders for value paid, and without notice of any defect or irregularity in the proceedings anterior to the issue of the bonds? In view of the findings of the circuit court, very plainly they do. They are the holders of the coupons in suit taken from those bonds, some of which they purchased without notice of any defense. The residue of those held by them are owned by other persons, who deposited them with the plaintiffs for collection, taking a receipt. There is no evidence when or for what consideration those other persons purchased, and no evidence of actual notice to them or to the plaintiffs of any of the facts anterior to the issue of the bonds. The findings of the court exhibit no fraud in the inception of the contracts, nor any thing that casts upon the holders of the bonds or coupons the burden of showing that they are bona fide holders for value. The legal presumption, therefore, is that they are. But the plaintiffs are not forced to rest upon mere presumption to support their claim to be considered as having the rights of purchasers without notice of any defense. They can call to their aid the fact that their predecessors in ownership were such purchasers. To the rights of those predecessors they have suc ceeded. Certainly, the railroad company paid for the bonds and coupons by giving an equal amount of their stock, which the County now holds; and nothing in the special facts found shows that the company knew of any irregular ity or fault in the issue. And still more; the contractor for building the railroad received the bonds from the County in payment for his work, either in whole or in part, after his work had been completed. There is no pretense that he had notice of anything that should have made him doubt their validity. Why was he not a bona fide purchaser for value? The law is The judgment is affirmed. 107 U. S., 160, 540; 109 U. S., 356, 738 111 U. S., 94; 4 Cited-97 U. S., 104; 98 U. S., 102; 106 U. S., 186; Dill., 157; 5 Dill., 336; 15 Blatchf., 152, 287; 82 N. Y. 230. THE ATLANTIC AND PACIFIC RAIL- V. H. S. HOPKINS. (See S. C., 4 Otto, 11-13.) Final judgment-state decisions. 1. An order in a proceeding in aid of execution, under section 490 of the Civil Code of Kansas, directing a garnishee to pay to the judgment creditor money which he owed the judgment debtor, is not an adjudication between the parties, and does not determine the ultimate rights. the State, are binding upon the courts of the United Argued Dec. 19, 1876. Decided Jan. 15, 1877. ERROR to the Circuit Court of the United undoubted, that every person succeeding him I States for the District of Kansas. in the ownership of the bonds is entitled to stand upon his rights. It is, therefore, manifest that the plaintiffs have the rights of bona fide purchasers, even if the burden of showing it be regarded as resting on them. What we have said is sufficient to show that the coupons of the first class of bonds, viz.: those dated July 1, 1869, are valid evidences of debt as between the plaintiffs and the defendants and that the former are entitled to a judgment for the amount of them. It is unnecessary to remark at length upon the second class of bonds and coupons, those dated July 1, 1872. The considerations we have suggested, respecting the first. apply in full force to the second, and the defendants have no defense to a suit for their recovery brought by the plaintiffs. The first and fourth questions certified from the circuit court are, therefore, answered in the affirmative, and the remaining questions in the negative. This leads to an affirmance of the judgment. Happily, such a result is in accordance with the plainest justice. The case is not one in which the municipality has incurred a debt, without securing the object sought by it. Pop ular votes approved the issue of the bonds to fur ther the construction of the railroad, which has The case, which arose in the court below, is sufficiently stated by the court. Messrs. John P. Usher and C. E. Bretherton, for plaintiffs in error. Messrs. L. B. Wheat and Clough & Wheat, for defendant in error. Mr. Chief Justice Waite delivered the opinion of the court: The Supreme Court of Kansas, since the order complained of in this case was made, has decided that an order in a proceeding in aid of execution, under section 490 of the Civil Code of that State, directing a garnishee to pay to the judgment creditor money which he owed the judgment debtor, was not a judgment, and did not determine finally the liability of the garnishee. The language of the opinion is as follows: "The making of it [such an order] is not an adjudication between the parties. It does not determine their ultimate rights. It simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It is, in effect, only an assignment of the claim from the debtor to the creditor. The creditor gains no more or greater rights than the debtor had, and the garnishee loses no rights. And the payment of the money can be enforced from the garnishee to the creditor only by an ordinary action." Bd. of Ed. v. Scoville, 13 Kan., 32. In a previous case, Arthur v. Hale, 6 Kan., 165, it was held to be error to award execution against a garnishee to collect the money in case he failed to make payment according to the order. As the practice in the courts of the United States must conform as near as may be to that in the courts of the State, R. S., sec.914, these decisions construing the practice Acts of the State are binding upon the courts of the United States. It follows that the Circuit Court erred in directing that execution might issue in this case against the garnishee if payment should not be made according to the order. To that extent the order of the Circuit Court is reversed, but in all other respects affirmed; the defendant in error to pay the costs in this court. The cause is remanded, with directions to modi fy the order complained of by striking out all that part thereof which directs that execution may is [No. 9. Orig.] in view of this principle, to place the most liberal construction upon the statutes regulating the right of appeal. Westcot v. Bradford, 4 Wash., C. C., 492; Blossom v. R. R. Co., 1 Wall., 655 (68 Ú. S., XVII., 673); Withenbury v. Ú. S., 5 Wall., 820 (72 U. S., XVIII., 613); Stratton v. Jarvis, 8 Pet., 4; Crawshay v. Soutter, 6 Wall., 739 (73 U. S., XVIII., 845); Bronson v. R. R. Co., 2 Wall., 302 (69 U. S., XVII., 728); Cork v. Youghal R. Co., L. R., 4 Ch. App., 753; McVeigh v. U. S., 11 Wall., 267 (78′ U. S., XX., 81); R. R. Co. v. Morgan, 10 Wall., 258 (77 U. S., XIX., 892); The Burns, 9 Wall., 239 (76 U. S., XIX., 621). Messrs. James O. Broadhead, W. M. Evarts and M. Blair, for respondents. Mr. Chief Justice Waite delivered the opinion of the court: George E. Ketcham, on his own behalf and on behalf of all others holding third mortgage bonds of the Pacific Railroad, filed a bill in the Circuit Court of the United States for the Eastern District of Missouri, November 11, 1875, against the Pacific Railroad and certain other defendants, to foreclose a mortgage given to secure the payment of such bonds." On January 8, 1876, Thomas P. Akers, astockholder of the Pacific Railroad, filed a motion for leave to come and defend in the action, on the ground that the officers and directors of the Company, being themselves interested in the mortgage, did not intend to resist the foreclos ure, when, as he alleged, there was a good and valid defense. February 7, by leave of the court, he filed an answer and cross-bill in the cause. At the same time the Company filed an answer, substantially admitting the allegations in the bill, but concluding as follows: tion of said stockholders claim that they [the But, it says, that it is informed that a porthird mortgage bonds] are fraudulent and void, Argued Nov. 28, 1876. Decided Jan. 15, 1877. and that the directors of this defendant are PETITION for a writ of mandamus. The case is fully stated by the court. Messrs. Henry Crawford and N. A. Cowdrey, for petitioners: guilty of fraud in issuing the same. Therefore, this defendant asks this honorable court to permit any of the stockholders aforesaid to become a party defendant to this suit, upon a proper showing, and make such defense in the prem It is not necessary that the party who ap-ises as they may see proper." peals should be actually a party to the record; provided that he has an interest in the question, which may be affected by the decree or order appealed from." 2 Dan. Ch. Pr., 1460. Any person, a quasi party may, if aggrieved by any order in the suit, present a petition for rehearing in the usual manner. Ellison v. Thomas, 1 DeGex, J. & S., 18; Kidd v. Cheyne, 18 Jur., 348; Barker v. Barker, 39 N. H.,408; Kellogg v. Forsyth, 24 How., 186 (65 U. S, XVI., 654). In one case, Ld. Redesdale allowed a case to stand over, with liberty to a petititioner to make himself a party to a cause after decree, by supplemental bill, for the sole purpose of appealing and impeaching the decree. And the House of Lords, on the advice of the Lord Chancellor of England, made an order permitting such procedure. Giffard v. Hort, 1 Sch. & L., 409; Osborne v. Usher, 6 Bro. P. C., 20. It has been the uniform practice of the court, See 4 OTTO. U. S., BOOK 24. March 10, Ketcham, the complainant, moved the court for an order that the answer and cross-bill of Akers be withdrawn from the files. March 25, Peter Marie, Frank A. Otis, Robert L. Cutting, Jr., James D. W. Cutting and George R. Fearing, representing themselves to be stockholders of the Company, on leave filed a petition in the cause, stating That Thomas P. Akers, a stockholder of said Company, has filed his answer and cross-bill to the bill of complaint, filed by complainant in this cause, and in said answer and cross-bill avers that he files the same, not only for his own benefit as such stockholder, but for the benefit of all other holders or owners of the shares of said capital stock who may come in and contribute to the cost and expense necessary to the prosecution of the same," and praying "that they may be allowed to come in and defend the said suit, and be made co-defendants herein with said Thomas P. Akers, and be joined with him as parties defendant herein, with such other stockholders as may desire to join them as defend * ants;" and "that they may be allowed to adopt April 25, Akers and St. Louis County filed their amended answer and cross-bill pursuant to this leave; but, June 6, they appeared, and by further leave of the court dismissed their cross bill and withdrew their answer. This being done, the court, on the same day, "being fully advised in the premises, and by consent of the parties to this suit, through their solicitors of record," entered a decree of foreclosure and sale in accordance with the prayer of the bill. Neither Cowdrey nor any one of the present petitioners objected or in any manner interposed against the decree. * * bill in equity in this court against the Pacific 66 that This petition concludes with a prayer, as follows:" "Your orators humbly pray the honorable court to take their case into consideration and, upon finding their allegations and averments to be true, to make an order of this court that your orators may be allowed to intervene as parties defendants in this cause, and they be authorized to make answer, plead, demur, or to appeal, as they by their counsel shall be advised; and that the decree of June 6, 1876, and sale thereunder, be set aside, and for nothing had. or that you will grant such other relief as to equity appertains.' Oct. 3, the following order was made: "The motion of said Cowdrey and others, for liberty to intervene to set aside the decree and sale herein, was argued by counsel and submitted to the court; on consideration whereof, and being fully advised in the premises, it is ordered by the court that said motion be de The same parties then made a motion for leave to file a petition to intervene in the cause, and that the decree and sale thereunder be set aside and the cause dismissed for want of jurisdiction; and this motion was denied. Oct. 7, they again appeared, and made "application for an order allowing an appeal to the Supreme Court of the United States from the order of this court in the matter of N. A. Cowdrey and others;" which was also denied. Immediately after the decree was entered the court adjourned for the Term. On the first day of the next Term, September 18, a motion was made to confirm a sale which had been made un-nied." der the decree, September 6, and which was reported September 15. On the next day, September 19, N. A. Cowdrey, Robert L. Cutting, Jr., Peter Marie, Frank A. Otis, Jacob Cromwell, George L. Kingsland and George R. Fearing, acting "Not only for their own benefit, but for the benefit of all other holders or owners of the capital stock of said Pacific Railroad, who come in and contribute to the cost and expenses necessary for the prosecution of this suit," filed a motion and petition "for liberty to intervene to set aside the decree of June 6, 1876, and sale, and for liberty to demur, answer, plead or appeal, as advised." In this petition they set forth, among other things, that they, as owners in their own right, and as a committee or agents of others, represented $3,500,000 out of the $7,000,000 or thereabouts of the capital stock of the Company; that the decree of June 6 had been improvidently entered; "That, at the time or just previous to said order of sale [decree of June 6] being made, the County of St. Louis withdrew its answer to the complaint, and also a cross-bill filed by them, which was pending in this case, without any notice to your orators or to the stockholders of the Pacific Railroad; that also Thomas P. Akers, Esq., had filed an answer and a cross bill on his own behalf and on behalf of all the other stockholders, which was then pending in this court, and which, upon said 6th day of June, he withdrew, with out any notice to the stockholders represented by him;" "That on or about the 2d day of February, 1876, they authorized N. A. Cowdrey, one of the present petitioners for leave to intervene in this cause, to commence a suit by The suit of Cowdrey, referred to in the petition filed Sep. 19, was commenced Nov. 13. 1875. The appearance of the defendants was entered Dec. 3. The suit was prosecuted by Cowdrey and others, whose names are not disclosed; but, Dec. 6, the complainants moved for leave to strike out the names of Thomas P. Akers and John S. Vogel, as complainants, and to discontinue the suit as to them. This motion was granted Dec. 11. Jan. 7, an amended bill was filed by leave of the court, to which answers were filed by some of the defendants, Feb. 5. A second amended bill was filed Feb. 7; to which answers were filed by some of the defendants, and demurrers by others, Feb. 7, March 11, March 20, and, by leave, Sep. 13. No motions or other proceedings were ever had in the case, nor any matters therein set down for hearing or testimony taken. To entitle the petitioners to the writ asked for in this case, they must show that they have a clear right to an appeal which has been refused by the Circuit Court. The office of a mandamus is to compel the performance of a plain and posi tive duty. It is issued upon the application of one who has a clear right to demand such a performance, and who has no other adequate remedy. It is never granted in anticipation of an omission of duty, but only after actual default. This application is for a writ commanding the Judges of the Circuit Court, or one of them, to allow the petitioners an appeal from the decrees in the cause, and a supersedeas. This is the only specific relief asked; and, in support of the application, it is insisted that Marie, Otis, Cutting Jr., Cutting and Fearing were admitted as parties to the suit March 25, when they filed their petition therefor; and that, consequently, they were in a position to demand an appeal as parties. It would, perhaps, be a sufficient answer to this position to say that no one of these petitioners has ever made application to the Circuit Court or either of the judges for the allowance of an appeal in his favor as a party to the suit. They have only asked to be permitted to intervene and become parties, in order that they might appeal. But, if this were otherwise, the result would not be different; for the persons presenting the petition of March 25 never did, in fact, become parties, and it is apparent from the record that their present claim in that regard is an afterthought. They filed their petition to be made defendants in the suit, but it was never granted. Not only was no express order made to that effect, but there is nothing to show that they were ever in any manner recognized as parties, or that they ever supposed they were parties. Formal orders were made and conditions im posed upon the admission of Akers and St. Louis County as defendants. But they afterwards withdrew, and neither Cutting nor any of his associates attempted to act in their stead. Subsequently he and some of his co-petitioners united with other persons in another petition for leave to intervene, without in any manner claiming advantage from their former action, or even alluding to it. We are aware that there are cases in which persons have been treated as parties to a suit after having filed a petition for leave to come in, when no formal order admitting them appears in the record, but in all such cases it will be found that they have acted or have been recognized as parties in the subsequent proceedings in the case. Thus, in Myers v. Fenn, 5 Wall., 205 [72 C. S., XVIII., 604]. "The petitions were filed without any order of the court, but no objection was made, and the hearing went on as if an order had been granted:" and in Harrison v. Nixon, 9 Pet., 491, "Inquiries were made as to the respective claims," as asked for, and "as to all parties who were claimants before the court by bill, petition, or otherwise, their complaint, petition, and proceedings were dismissed." So, in Ogilvie v. Ins. Co., 2 Black, 539 [67 U. S., XVII., 349]. petitions were filed by certain creditors praying to be made parties, and that a receiver might be appointed, which was done; and in Bronson v. R. R. Co., 2 Wall., 304 [69 U. S., XVII., 729], certain stockholders in a corporation were permitted to appear in a cause to which the corporation was a party, and present their several claims by answer in the name of the corporation; but this having been afterwards found to be irregular, the answers were considered "rather by indulgence than a matter of strict right as the answer of the individual stockholders." Upon the same principle, it was held in R. R. Co. v. Bradleys, 7 Wall., 575 [74 U. S., XIX., 274], that where an appeal had been prayed for, and subsequently an appeal bond, approved by one of the judges, had been filed in the court, it would be inferred that an appeal had been allowed, although there was no express order to that effect in the record. From this it is apparent that if one wishes to intervene and become a party to a suit in which he is interested, he must not only petition the court to that effect, but his petition must be granted; and while it is not necessary for him to show that he has actually been admitted by an express order entered upon the record, he must at least make it appear that he has acted or has been treated as a party. That, as we have seen, is not the case here. These petitioners seem to have been content to leave their interests in the hands of Akers; and when he went out they went with him. That the court understood this to be so is apparent from the following statement made by the judges in their return to the rule to show cause: "On June 6, 1876, * * * said Akers and said St. Louis County withdrew their answers and dismissed their cross-bills, both said Akers and said St. Louis County purporting to act for themselves as stockholders, and for all other stockholders who might join them." Upon this state of facts it is impossible to say that the petitioners, or any of them, have established their right to appeal as actual parties to the suit before the decree. No appeal lies from the order of October 3, refusing them leave to intervene and become parties; for that was only a motion in the cause, and not an independent suit in equity appealable here. Neither can these petitioners appeal as stockholders. Only parties, or those who represent them, can appeal. The stockholders do not represent the Corporation, but for some purposes the Corporation represents them. They are sometimes admitted as parties to a suit, for the purpose of protecting their own interests in the Corporation against unfounded and illegal claims against it, but this "remedy is an extreme one, and should be admitted by the court with hesitation and caution." Bronson v. R. R. Co., [supra]. It is always addressed to the sound judicial discretion of the court. That we cannot control by mandamus. We need not consider what rights these petitioners would have if Akers had not withdrawn his intervention before the decree. After his withdrawal, they had no representative stockholder party to the suit, and their position is the same it would have been if no parties had ever intervened in their interest. The petition for mandamus is denied. Cited 104 U. S., 400; 109 U. S., 173. MILTON HUMES, Assignee of JOHN W. SCRUGGS, a Bankrupt, Appt., v. NARCISSA SCRUGGS ET AL. (See S. C., 4 Otto, 22-28.) Pleadings, denial by-judgment-married woman's property-when liable for husband's debts-void conveyance. |