Page:Federal Reporter, 1st Series, Volume 1.djvu/361

 GAOSB V. OITT OP OLAEKSVILLB. S53 �Gausb r. City of Clabksvillb. (Circuit Court, E, D. Miesouri. March 9, 18S0,, �MCTîICrPAL CORPOKATIOK — VOID BoNDS— APPLICATION OF MONBT.— �Wliere a city without power to make negotiable obligations sells ita void bonds, and, receivlng the money theref or, appliea it to its legitiraate corporale uses, an action will lie to recoverthe money so received and applied. �BAME — ASSIGNMBNT OF BoNDS— ACTION BT ASSIGNEE. — The right to re- �cover money so received is transferred by the transfer of the bonds, and can be enforced by the last holder of such bonds as the assignee thereof . Wood V. Lcmisiana, (MS.) U. S. Circuit Court, B. D. Missouri, Septem- ber term, 1878, alBrmed. �Same — VoiD BoKDs— Action by Holder. — Where a bond is made by a city for two considerations, as to one of which it has power to make a bond, but as to the other has none, such bond is wholly void. The holder cannot recover on the bond as such. His remedy is an action for money had and received. �Valid Bond Sdbhesdeued fob Void Bond— Action on Bubkenderbd Bond. — Where the holder of a valid bond presents it when due to the maker, and receivea in payment a renewal bond, which for any reason is void, then the old bond, though surrendered for cancellation, is not extinguished, but recovery may be had on it the same as if the new bond had not been given. �City Ordinance— Issue of Bonds — ^Recital — Estoppel.— A city ordi-' nance, authorizing a subscription to stock of a road company and issue of bonds to pay same, recited that the authority prescribed by the law as a prerequisite of such subscription had been given by an election lield for the purpose. In a suit upon such bonds, hdd, that the city was estopped by such recital to show that the voters at such election were not duly sworn, and the election therefore void. Principle of estoppel by recitals in bonds applies to recitals in an ordinance authorizing the issue of bonds. �Flea in Abatbmbnt— Jurisdiction — Capacity to Bub. — Ail matters which go to challenge the jurisdiction of the court, or the capacity of the plaintifE to sue, should bepresented by plea in abatement, in advance of hearing on the merits, unless the want of jurisdiction is put in issue by some pleading. Evidence tending to show cause is irrelevant and wiU not be heard. �Action upon 27 negotiable bonds of defendant, payable to bearer, of divers dates' alid amounts, and acquired by plaintiff after due. The amended petition contained 27 special counts based on said several bonds, respectively, together with two �v.l.no.6— 23 ��� �