160 HARVARD LAW REVIEW. ordained, that when said bonds are issued they be placed in the hands of J. C. W., a member of the Board of Trustees, for negotiation and sale. And be it further ordained, that said bonds shall not be sold at a price less than ninety-four cents on the dollar." At the date when the bonds in suit were issued, the town treasury- had $3,047.85 and no more as a special fund to pay the $20,000 ten per cent, school-bonds then outstanding and about to mature. By law a sufficient sum to pay that indebtedness could not have been raised before their maturity, on the taxable property of the town. The funding bonds were delivered to J. C. W. (a member of the Board of Trustees) for sale. He sold those on which this suit was brought, to a firm in Indianapolis, converted the proceeds to his own use, and fled the country. The town subsequently recovered $6,988.43 from a bank in which J. C. W. had a deposit It also recovered judgment against the sureties on J. C. W. 's official bond ; but the judgment was reversed on appeal, and a new trial ordered. The town later dismissed its suit. Plaintiff bought his bonds in Boston, as an investment, with no notice of any irregularity as to their issue. A demurrer to the answer was overruled by Judge Gresham, on the ground that the town had no power to issue bonds to fund its indebtedness. 1 A demurrer to plaintiff's reply was overruled by Judge Woods, who upheld the.validity of the bonds. 2 Upon a trial before the two judges, waiving a jury, judgment was for defendant. No certificate of division was given, but Judge Woods subsequently granted a new trial, it seems, pro forma, to allow the case to be taken to the Supreme Court. He filed certain findings of fact, and entered judgment thereon in favor of the defendant. The writ of error was argued before six of the justices in December, 1890, the Chief Justice and Mr. Justice Brewer not sitting. Mr. Justice Brown was not at that date a member of the court. The opinion by Mr. Justice Lamar delivered, as already stated, March 2, 1891, opens as follows: — ' ' The decisive question presented by the record in this case is — Did the town of Monticello have authority, under the laws of Indiana, to issue for sale in open market negotiable securities in the forms of the bonds and coupons on which recovery is here sought?" 1 14 Federal Reporter, 628. 2 22 Federal Reporter, 589.
