US SUPREME COURT DECISIONS

The judgment of a state court in Missouri adverse to the validity of bonds issued by a county in that state in payment of the subscription to stock in a railroad company, which judgment was made in a suit brought by citizens and taxpayers against county officers in order to enjoin the issue of the bonds, and to have them declared invalid, is a binding adjudication in a suit against the county by a holder of the bonds who took with notice of the pendency of the suit. The fact that this Court in another case on a different state of facts held the issue to be valid does not affect this result.

An offer of proof being made and rejected, and exceptions duly taken, the appellate court must, in the absence of an indication in the record of bad faith in the offer, assume that the proof could have been made if allowed.

This action was brought to recover on bonds of the same issue sued upon in County of Scotland v. Thomas, 94 U. S. 682. It differs from that case in this: the fourth plea avers that after the bonds from which the coupons sued for were cut had been executed by the officers of the county court, they were placed in the hands of Charles Metz, as trustee of the county; that on the 11th of September, 1871, while they were in his hands, Levi Wagner and other citizens and taxpayers of the county brought a suit against him, the justices of the county court, the treasurer of the county, and the Missouri, Iowa and Nebraska Railway Company, in the circuit court of the county, the object and purpose of which was to enjoin Metz from delivering the bonds to the railroad company, and to have them declared void and cancelled for want of authority in the county to subscribe to the stock of the company; that all the defendants were served with process and appeared in the suit; that a preliminary injunction was allowed as prayed for, and that, upon final hearing, a decree was rendered which was afterwards affirmed by the supreme court of the state, declaring the bonds void for want of authority in the county to subscribe chanrobles.com-redchanrobles.com-red

Page 112 U. S. 184

to the stock of the railroad company, and directing that they be delivered up for cancellation. The plea then further avers that Metz delivered the bonds to the railroad company after this suit was begun and after the preliminary injunction was granted, and that Hill the plaintiff, and all the persons who have ever held the coupons sued for, took them without giving value therefor, "and with full, actual notice of every fact" in the plea set forth. Issue was taken on this plea, and at the trial, the county offered in evidence the record in the Wagner suit. To the introduction of this evidence the plaintiff objected

"on the ground that the bonds were delivered to the railroad company before any injunction was issued, and that the bond is a legal act of the county and valid in anybody's hands."

This objection was sustained. The county then offered in evidence, after due proof of execution, a bond executed by the railroad company to Metz on the September 21, 1871, to indemnify him

"against all damages, costs, expenses, etc., which the said Metz, as trustee of the County of Scotland, aforesaid, . . . may incur by reason of certain injunction suits now pending in the Scotland County Circuit Court or by reason of any petition for injunction which may be filed before Judge E. V. Wilson, in Clark County, Missouri, on September 22, 1871."

This was objected to, and the objection sustained.

The defendant then

"offered to prove by Charles Metz, the agent named in the pleadings, that he had actual notice of the pendency of the aforesaid suit of Levi Wagner et al. v. Metz et al. at the time he delivered the instruments [described in the defendant's pleading] to the Missouri, Iowa, and Nebraska Railway Company, and offered to prove that the Missouri, Iowa, and Nebraska Railway Company, and each subsequent holder, received the instruments referred to in the plaintiff's petition with actual notice of the pendency of the aforesaid suit . . . as set up in the fourth count of this answer."

This was also objected to and the objection sustained. To all these rulings, excluding testimony exceptions were duly taken, and error is assigned here thereon. chanrobles.com-redchanrobles.com-red

Page 112 U. S. 185