Page:Federal Reporter, 1st Series, Volume 1.djvu/362

 354 FBSBBAIi BEPOBTKB. �common counts for money had and received, etc. The bonds described in counts 1 to 11, inclusive, were therein alleged, and by the evidence were shown, to have been given for money borrowed by defendant from the original payees, for the purpose either of building or improving its wharves or streets, or of paying for a city cemetery, and to have been actually used for those purposes. �Upon demurrer to like counts in the original petition ail these bonds were held to be void, for want of an express grant of power in the charter of defendant to make bonds or bor- row money. �The bonds described in counts 12 to 17, inclusive, were therein alleged to have been made either in direct pay- ment of subscriptions made by defendant to stock of cer- tain road companies, organized under the laws of Missouri to build gravel roads leading from the defendant city to o,her places in Missouri, by virtue of an act approved in 1857, (Sess. Acts Mo. 1857, p. 302,) or in renewal of other bonds originally so given in payment of such subscriptions. The evidence showed that the allegations as to ail of these bonds were true, with the exception of those described in counts 12 and 13. As to these it appeared that while eight-tenths of their consideration was the payment or renewal of bonds so given in payment of road subscriptions^ the remaining two- tenths was money borrowed from the holders of said bonds, and applied to the general uses of defendant. �As to the bond described in the fourteenth count, it also appeared that when due it was surrendered to defendant by its then holder in exchange for a new bond of like amount, and bearing a like rate of interest, but which was made on April 20, 1872, and had not been registered aecording to the law of Missouri passed March 30, 1872, which required ail bonds issued after its passage to be registered. Sess. Acts 1872, p. 66, § 4. It also appeared that after the old bond had been surrendered it came again into possession of its holder at maturity, who transferred it to the plaintiflf, who, at the trial, produced it, together with the void renewal bond, and offered to surrender the latter to defendant. The bonds de- ��� �