Hopper v. Covington

This was an action by a citizen of New York against a town in Indiana upon certain bonds and coupons. The complaint alleged 'that said defendant is a municipal corporation, organized and existing under and by virtue of the laws of the state of Indiana, with full power and authority, pursuant to the laws of said state, to execute negotiable commercial paper; that, pursuant to the laws of said state regulating the execution of such negotiable commercial obligations, said defendant, on the first day of October, 1878, by its proper officers and agents, executed its negotiable commercial bond payable to bearer ten years after date at the Farmers' Bank, in Covington, Indiana, which bank then was a bank of deposit and discount at said town of Covington, Indiana; that thereafter, and before the maturity of said bond, plaintiff purchased the same for a valuable consideration, and is still the owner thereof. A copy of said bond is filed herewith, and hereby made part of this complaint, marked 'Exhibit A,' to-wit:

'No. 21. UNITED STATES OF AMERICA. $500.

'The town of Covington, state of Indiana, will pay, ten years after date, to the bearer, five hundred dollars, with interest at eight per cent. per annum, the interest payable as designated by coupons hereto attached, and the principal upon presentation of the bond when the same shall have become due. This bond shall be payable after five years from the date hereof, at the option of the town of Covington. Payable at the Farmers' Bank, in Covington, Indiana. Each coupon attached shall be prima facie evidence of payment of the accrued interest.

'In witness whereof the corporation seal of said town is hereto affixed, and this bond is signed by the president of this board of trustees, and attested by the clerk thereof, this first day of October, A. D. 1870.

[Seal.]

'A. GISII, President.

'Attest: FRANK M. HICKS, Clerk.'

The complaint then alleged that the plaintiff was the owner of 39 other bonds of precisely like tenor and effect, except that they were differently numbered, and that 20 of them were for $100 each, (stating the numbers and amounts of each,) and that he purchased each before maturity, and for a valuable consideration. 'Plaintiff says that said bond, (Exhibit A,) and each of said other bonds, is past due, and wholly unpaid. Wherefore plaintiff prays judgment for twenty thousand dollars against said defendant, and for all proper relief.'

The complaint also contained a count, with similar allegations, upon coupons for interest, attached to such bonds at the time of their execution, and in this form:

'$40.

COVINGTON, IND., October 1, 1879.

'One year after date the town of Covington, Ind., will pay to the bearer, in the city of New York, forty dollars, being one year's interest on bond No. 21.

A. GISH, Pres't.

'Attest: FRANK M. HICKS, Clerk.'

The defendant demurred to the complaint because it stated no cause of action against the defendant; because it did not allege under what law, or for what purpose, the bonds and coupons sued on were issued; because it contained no allegation showing authority in the defendant to make the bonds and coupons sued on; and because the allegation in the complaint of power and authority in the defendant to make the bonds and coupons in suit was an averment of a legal conclusion. The court sustained the demurrer, and rendered judgment for the defendant, and the plaintiff sued out this writ of error.

J. E. McDonald and John M. Butler, for plaintiff in error.

''Thos. F. Davidson'', for defendant in error.

Mr. Justice GRAY, after stating the case as above reported, delivered the the opinion of the court.