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The judgment of affirmance by the District Court and the judgment affirmed are reversed, and the District Court and the Court of Common Pleas will be directed to proceed no further in the suit.

226*] *In the Act of Congress of 1866, 14 | because the first judgment had been vacated, Stat. at L., 306, the language used in this con- the first verdict set aside, and a new trial nection is, "at any time before the trial or final granted, as before stated, when the cause was hearing." If the difference in the Act of 1867 removed to the circuit court. be material, it is fair to presume that the change was deliberately made to obviate doubts that | might possibly have arisen under the former Act and to make the latter more comprehensive. The fact that, under our construction, a case which has made progress, however far, if it has not passed the final trial, is liable to be removed, has little weight as an adverse argument. Under the Judiciary Act of 1789, 1 Stat. at L., 13, cases that have reached their termination in the highest courts of the States, may be brought here by a writ of error for review, and THE LOGANSPORT GAS-LIGHT & COKE the practice in conformity to that section has been constant from the organization of this court down to the present time. If the Act be unwise, the remedy lies with the Legislative and not the Judicial Department of the government.

ALFRED H. KNOWLES, Plff. in Err.,

v.

COMPANY.

(See S. C., 19 Wall., 58-62.)

Sheriff's return of service-when may be contradicted in action on judgment.

Of the constitutionality of this Act we entertain no doubt. The question is not an open one in this court. A few remarks will be sufficient to dispose of the subject. The 3d Article of the Constitution declares that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time establish, and that it shall extend, among other things, to "controversies" "between citizens of different States." As regards the inferior courts authorized to be established, Congress may give them such jurisdiction, both original and appel- Submitted Dec. 22, 1873. Decided Mar. 2, 1874. late, within the limits of the Constitution, as it may see fit to confer. How their appellate

1. A return to a summons by the sheriff, that he has served the defendant personally therewith, is sufficient without stating that the service was made in his county. This will be presumed. 2. But in an action on a judgment rendered in another State, the defendant, notwithstanding the record shows a return of the sheriff that he was personally served with process, may show the contrary, namely: that he was not served, and that the court never acquired jurisdiction of his person. The previous decision in Thompson v. Whitman, 21 L. ed. U. S. 897, affirmed and applied. [No. 477.]

jurisdiction shall be exercised, is not declared.IN ERROR to the Circuit Court of the United

The whole subject is remitted to the unfettered discretion of Congress. It may be applied to any other inferior Federal Court, and to any State Court where a case is presented which, by reason of the character of the parties or a question involved, falls within the scope of such judicial cognizance. Courts of the States and those of the nation are alike within its sphere, and its exercise may be authorized before or after judgment in the tribunals over which it

is extended.

227*] *This Act is confined to controversies between citizens of different States, and the power given to the circuit court is appellate. The jurisdiction involves the same principle, and rests upon the same foundation with that conferred by the 25th section of the Judiciary Act of 1789. The constitutionality of that provision has been uniformly sustained by the unanimous judgment of this court, whenever the subject has been presented for adjudication. The 12th section of the Act of 1789, and the 3d section of the Act of the 2d of March, 183, 34 Stat. at L., 632, relating to revenue of ficers, present the same question. We are not aware that a doubt of the validity of either has ever been expressed by any Federal Court. The acquiescence is now universal. The subject was elaborately examined in Martin v. Hunter, 1 Wheat., 333; Mayor v. Cooper, 6 Wall., 247, 18 L. ed. 851.

The 7th Amendment to the Constitution, touching the re-examination in the Courts of the United States of facts which have been tried by a jury, has no application to this case,

States for the District of Minnesota.
The case is stated by the court.

Mr. Horace R. Bigelow, for plaintiff in

error:

We claim that the record should show on its

face that the court had jurisdiction of the person of the defendant, and that this record fails in this respect.

Allen v. Blunt, 1 Blatchf., 480; Dunn v. Dunn, 4 Paige, 425; Arnold v. Tourtellot, 13 Pick., 172; Fenton v. Garlick, 8 Johns., 194.

We feel confident in saying that the rule is settled, that when a judgment rendered in one the jurisdiction of the court that rendered it, State is sued upon in another, the question of either over the person of the defendant or the and that this is so, as well when the record subject of the action, is open to investigation, avers jurisdiction as when it is silent; as well when the jurisdiction is made to appear by the return of an officer as by a recital in any part of the record. In fact, we assert that no form of record can be devised that will conclude the defendant from testing the question of jurisdiction

*Headnotes by Mr. Justice BRADLEY.

NOTE. Presumption of regularity of appoint

ment and due qualification of officer and that he acted within his jurisdiction; certificate evidence of authority--see note to Fenwick v. Sears, 2 L. ed. U. S. 101.

Service of notice to appear and defend, when necessary to validity of judgment-see note to Hollingsworth v. Barbour, 7 L. ed. U. S. 922.

Conclusiveness of record as to jurisdiction in suit on judgment of another State; fraud as a plea to judgment of another State--see note to Christmas v. Russell, 18 L. ed. U. S. 475.

when that record is attempted to be enforced | had, in the matter set forth in the record, exagainst him in another State.

Williamson v. Berry, 8 How., 540; Glass v. The Betsey, 3 Dall., 6; Rose v. Himely, 4 Cranch, 241; Elliott v. Piersol, 1 Pet., 328; Wilcor v. Jackson, 13 Pet., 499; Shriver v. Lynn, 2 How., 59; Lessee of Hickey v. Stewart, 3 How., 750; Adams v. R. R. Co., 10 N. Y., 328; Starbuck v. Murray, 5 Wend., 158; Foot v. Stevens, 17 Wend., 482; Hart v. Seixas, 21 Wend., 40; Dozier v. Richardson, 25 Ga., 90; Bissell v. Briggs, 9 Mass., 462; Shumway v. Stillman, 4 Cow., 292, 6 Wend., 447; Bradshaw v. Heath, 13 Wend., 407; Kerr v. Kerr, 41 N. Y., 272; Hoffman v. Hoffman, 46 N. Y., 30; Noyes v. Butler, 6 Barb., 613; Aldrich v. Kinney, 4 Conn., 380; Curtis v. Gibbs, 1 Pen. (N. J.), 399; Thurber v. Blackbourne, 1 N. H., 246; Whittier v. Wendall, 7 N. H., 257; Holt v. Alloway, 2 Blackf., 108; Kimball v. Merrick, 20 Ark., 12; Braswell v. Downs, 11 Fla., 62; Whittaker v. Murray, 15 Ill., 293; Thompson v. Emmert, 15 Ill., 415; Rape v. Heaton, 9 Wis., 328; Pollard v. Baldwin, 22 Ia., 328; Harshey v. Blackmarr, 20 Ia., 161; Wilson v. Bk., 6 Leigh, 570; Wynn v. Wyatt, 11 Leigh, 584; Arnott v. Webb, 1 Dill., 362; Mitchell v. Gray, 18 Ind., 123; Bliss v. Wilson, 4 Blackf., 169; Smith v. Myers, 5 Blackf., 223; Horner v. Doe, 1 Ind., 130; 22 Ind., 628; Cheever v. Wilson, 9 Wall., 108, 19 L. ed., 604.

Mr. F. R. E. Cornell, for defendant in er

ror:

The sheriff returns that he personally served Knowles and Harvey, and that Bain, another defendant, cannot be found within his bailiwick. By necessary inference, the parties served were within his bailiwick. As to sufficiency of return, we cite: Colerick v. Hooper, 3 Ind., 316; Adams v. Kerns, 11 Ind., 346; Casteel v. Hiday, 13 Ind., 536.

The decision of the court below, excluding the evidence offered to contradict the record of the Indiana Court, is not error. The answer of defendant, Knowles, does not contain a sufficient denial of the jurisdiction of the Indiana Court. It is as follows: "And defendant denies that said court ever had jurisdiction of the person of this defendant in said pretended action, as alleged in said complaint or otherwise, and denies that said court ever had jurisdiction of this defendant by the service of any process on this defendant in said action, or by the appearance of this defendant in said action, or by attorney, or in any manner whatever." To raise the question of the jurisdiction of the court in which the judgment relied upon is rendered, it must be alleged, not only that there was no service of process and no appearance of defendant, but also that defendant was not within jurisdiction of the court at the time when the action was commenced, or the judgment was rendered.

Holt v. Alloway, 2 Blackf., 108; Bimeler v. Dawson, 4 Scam., 536; Welch v. Sykes, 3 Gilm., 197; Wiley v. Pratt, 23 Ind., 628; Ins. Co. v. French, 18 How., 404, 406, 15 L. ed., 452. The offer of evidence goes no further than the denial in the answer.

The case of Williamson v. Berry, 8 How., 495, referred to by counsel for plaintiff in error, is a case where the record showed upon its face that the Court of Chancery of New York

ceeded its jurisdiction. No attempt was made to contradict the record. The decision of the case was made upon an inspection of the record itself.

In D'Arcy v. Ketchum, 11 How., 165, the record showed that plaintiff in error was not served with process and did not appear..

Webster v. Reid, 11 How., 437, has no bearing upon this case.

In Harris v. Hardeman, 14 How., 334, the record showed that there was no legal service of process.

Christmas v. Russell, 5 Wall., 290, 18 L. ed., 475, mainly discusses the effect of a state Statute of Limitations. So far as it has any application to the case now before the court, it is not unfavorable to the decision of the court below.

In Cheever v. Wilson, 9 Wall., 108, 19 L. ed., 604, cited by counsel for plaintiff in error in his brief, we simply desire to quote a few words of the decisions which precede those quoted in brief of counsel on the page referred to. The court says: "Whether this finding is conclusive, or only prima facie sufficient, is a point on which the authorities are not in harmony. We do not deem it necessary to express an opinion upon the point." Then follows the language quoted by counsel for plaintiff in er

ror.

Bigelow, in his Work on Estoppel.

After discussing the decisions of various courts in cases where the record of the judgment of a State in the Union contains a statement of matters sufficient to constitute jurisdiction, the learned author says, on p. 236: "But, upon principle, we do not see how the doctrine in Starbuck v. Murray can be sustained. The Act of Congress so frequently referred to, declares in effect that the judgments of courts in each State shall have the same effect as they would have where rendered. No less, no greater."

The author concludes (p. 237): "We then should state the rule to be, that where the record contains an allegation of specific facts sufficient to constitute jurisdiction, parties and privies are estopped to deny jurisdiction in a suit for the same cause of action, unless the record would be inclusive upon an action upon the judgment in the State in which it was rendered."

In Wiley v. Pratt, 23 Ind., 628. Shelton v. Tiffin, 6 How., 163; Lincoln v. Tower, 2 McLean, 473.

Mr. Justice Bradley delivered the opinion of the court:

This was an action on a judgment recovered by the defendant in error against the plaintiff in error and one Harvey in the Circuit Court for Cass County in the State of Indiana. The defense was that that court did not have jurisdiction of the person of the defendant.

The record produced on the trial was somewhat anomalous. Three defendants were sued in the Cass County Court, Bain, Knowles and Harvey, none of whom resided in Indiana. Bain was served with process in New York and, after a long struggle to get the proceedings dismissed as to himself, removed the cause into the Circuit Court of the United States, under

.

But the defendant also offered to prove, by himself and Harvey, that neither of them had ever in fact been served with process, and that, in consequence, the court had never, as to them, acquired jurisdiction of the person.

As this subject has been lately considered by us in the case of Thompson v. Whitman, 21 L. ed. U. S. 897, it is unnecessary to go over the subject again. In our opinion, the defendant had a right to show by proof that he had never been served with process, and that the Circuit Court of Cass County never acquired jurisdiction of his person. As this was refused him on the ground that the evidence was inadmissible, the judgment must be reversed. We do not Al-mean to say that personal service is in all cases necessary to enable a court to acquire jurisdiction of the person. Where the defendant resides in the State in which the proceedings are had, service at his residence, and perhaps other modes of constructive service, *may be [*62 authorized by the laws of the State. But in the case of non-residents, like that under considac-eration, personal service cannot be dispensed with unless the defendant voluntarily appears. Judgment must be reversed, and a venire de novo awarded.

the Act of 1866, and obtained a judgment in
his favor. The cause was then remanded to
the Cass County Court, and judgment by de-
fault was rendered against Knowles and Har-
vey. In some respects, the proceedings seem
to have been conducted as a suit on attachment,
the property of the defendants, who resided in
Minnesota, being attached, and other creditors
being allowed to come and participate in the
proceeds. Nevertheless, the records of the pro-
ceedings contain, among other things, the copy
of a summons in the case issued to the sheriff
of Cass County against all the defendants, and
a return thereto in the following words: "I
do hereby certify that I served the within writ
on the 14th day of September, 1865, upon
fred H. Knowles and Thomas Harvey, person-
ally, by reading the same to them. And I fur-
ther certify that John M. Bain cannot be found
in my bailiwick." The return was signed by
the sheriff's deputy. This is all that appeared
in the record on the subject of service of proc-
ess on Knowles and Harvey, or in reference to
their appearance or non-appearance to the
tion. The defendant, on the trial of the pres-
ent action, contended that the return of the
sheriff was insufficient to charge him person-
ally in the former action, inasmuch as it did
not show that service had been made in the
proper county, or where it was made; and being
overruled on this point, he offers to prove, by
himself and Harvey, that neither of them had
in fact been served with process, and that the
return was false. The evidence was excluded
on the ground that the record could not be con-
tradicted in a collateral proceeding.

The case is brought here in a bill of exceptions. Upon the first point, that the return was insufficient, the plaintiff in error relies on a decision of Mr. Justice Nelson, at the circuit, in the case of Allen v. Blunt, 1 Blatchf., C. C., 480, in which it is supposed to have been held that a return of service by the United States Marshal, without showing that the service was made in his district, was insufficient to give the 61*] court *jurisdiction of the person. What Justice Nelson held in that case was this: that, inasmuch as the 11th section of the Judiciary Act declares that "No suit shall be brought before either of said courts against an inhabitant of the United States by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ;" therefore, the jurisdiction of said courts depends on service or inhabitancy in the district, one of which should appear of record; and inasmuch as the record in that case contained no allegation on the subject, and the jurisdiction of the court depended entirely on the Marshal's return to the

process, the return was insufficient to give it This authority, therefore, is not in point. The case was in the United States Court, and depended upon the peculiar phraseology of the Act of Congress referred to therein; whereas, the case in Cass County, now.under consideration, was in a state court; and it is familiar law that a court of general jurisdiction will be presumed to have had jurisdiction of the cause and the parties until the contrary appears. In our judgment, therefore, the return, on its face, shows no ground of error. It will be presumed that the service was made in the proper county.

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1. This court has not the power to direct a tax to be levied for the payment of a judgment against a municipality.

2. The appropriate remedy of the plaintiff is a writ of mandamus. This may be repeated as often as the occasion requires.

3. Where the writ of mandamus is unavailing, this court has no authority to appoint its own officer to execute the duty of levying a tax when it is neglected by the municipal authorities. 4. The remedies for the collection of a debt are essential parts of the contract of indebtedness, and those in existence at the time it is incurred, must be substantially preserved to the creditor. 5. A debt against a municipality cannot be collected by a remedy which is in direct violation of a statute in existence when the debt was incurred, and made known to the creditor with the same solemnity as the statute which gave power to contract the debt.

6. A court of equity cannot, by avowing that there is a right but no remedy known to the law, create a remedy in violation of law, or without the authority of law.

[No. 219.]

Argued Jan. 28, 29, 1874. Decided Mar. 2, 1874.

ed States for the Western District of WisAPPEAL from the Circuit Court of the Unitconsin.

The case is stated by the court.

The court below dismissed the bill, the judges being divided in opinion on the following questions:

First. Whether, when the principal and interest on the bonds issued by the City of Watertown, as well as the judgment, as stated in the bill, there being no property on which to

ment against municipality see notes to 25 C. č. NOTE.-Mandamus to enforce payment of judg A. 475; 19 L. ed. U. S. 704.

levy an execution, the plaintiff is confined to a remedy at law by mandamus or otherwise, to enforce the payment of his judgment recovered in this court.

Second. Whether it was competent for the court, as a court of equity, on the failure of the officers of the City of Watertown to levy the tax as required by law, referred to in the bill of complaint, through their neglect, refusal, absence, or resignation, to appoint the Marshal of the court to levy and collect the tax to pay the judgment.

Third. Whether it was competent for the court, as a court of equity, to subject the taxable property situate within the corporate limits of the City of Watertown, in any way to an 111*] assessment, *in order to pay the judg ment of this court referred to in the bill of complaint.

The allegations of the bill on this subject were as follows:

Your orator further states that, for the purpose of preventing the payment of said indebtedness, and thwarting all the efforts of their creditors to collect the same, the said City and its citizens have, from time to time, procured from the Legislature of the State of Wisconsin, divers amendments of their charter, and other acts craftily devised for the purpose of hindering, delaying and defrauding their creditors, making the collection of such taxes difficult or impossible and thwarting whatever process might be issued by courts to compel the pay ment of such indebtedness; and among others they have procured the passage of the following described Acts and provisions, to wit:

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ing $50,000 of new bonds, to extinguish its entire indebtedness.

Chapter 61 of the private and local laws of 1867.

This provides that any officer may resign by a writing addressed to the Mayor, and that such resignation "shall take effect from the time of filing the same.' ." It also provides that the annual tax shall not exceed one fourth of one per cent., and that, on the application of any taxpayer, injunctions may issue to restrain the levy or collection of any tax when the proceedings are not in pursuance of law.

Chapter 236 of the private and local laws of 1868.

This provides that "all laws, resolutions, etc., assessing a tax, etc., shall be passed by an affirmative vote of a majority of all the members composing the Common Council," and by ayes and noes; provided that in all other matters, an affirmative vote of a majority of a quorum shall be sufficient.

Chapter 227 of the private and local laws of 1867 makes further provision of the same kind, and provides for injunctions upon tax proceedings.

Chapter 453 of the private and local laws of 1869 provides for a compromise of the city debt, but restricts the amount to be paid to fifty per cent. of the principal.

Chapter 72 of the private and local laws of 1870, to enable the City to compromise its debts.

This Act provides for the issue of new bonds "to the amount in all of fifty per cent. of the principal of all bonds outstanding," and pro1861-vides that in no case shall more than fifty per cent. of the principal be paid," exclusive of all unpaid interest coupons or judgments." Chapter 163 of the private and local laws of 1870.

Chapter 124 of the General Laws of An Act to Enable Said City to Compromise with its Creditors.

This Act provides, among other things, that new bonds not exceeding $80,000 in all, may be issued to take up the old ones, which were then more than four times that amount, but they were only to be issued upon such a compromise that the $80,000 new bonds would take up all the old ones, and the penalty of fine and imprisonment was imposed for delivering them on any other terms.

Chapter 233 of the General Laws of 1865amended and consolidated charter.

Section 2 of chapter 5 provides that the tax annually levied for general city purposes and to defray the expenses of the city general fund shall not exceed one fourth of one per cent. per annum. This sum was barely sufficient to pay the current expenses of the City. Section 12, chapter 9, of the same Act repeals section 9 of chapter 127 of the private and local laws of 1856, being that by which the faith of the City was irrevocably pledged for the payment of this indebtedness, and by which it was made the duty of the Mayor and Council to levy and collect taxes for the payment of it.

Chapter 163 of the private and local laws of 1866.

This provides that no execution shall issue against said City until ninety days after judgment, and then only on special application to the court. It also again repeals said section 9 of chapter 123 of the Laws of 1853.

Chapter 449 of the private and local laws of 1866, to enable the City to compromise its debts. This Act provides for the issue of not exceed

This provides that when any taxes are levied to pay anything on city bonds, coupons or judg ments, such a tax shall be put in a separate list, and all proceedings thereupon shall be carried on separately and in a different way from those in regard to other taxes. It provides that if no bid shall be made for any lot offered for sale for such taxes, the treasurer shall adjourn such sale from time to time, not exceeding six months at a time; the former provision requiring the county to bid in when there was no other bidder, is abrogated. The Act further provides for injunctions to restrain any tax proceedings when not in pursuance of law. It also provides that all laws, ordinances, resolutions or orders levying or assessing a tax "shall be passed by an affirmative vote or a majority of all the fourteen Aldermen constituting the Common Council," but that in other proceedings "an affirmative vote of a majority of a quorum shall be sufficient." It also provides that when there is not a quorum, seven Aldermen may audit accounts for repairs of bridges and streets, and in case of vacancy in the office of Mayor, they may draw orders on the treasurer for the amount so audited. Several other provisions of like character and tending to the same end, are embodied in the law above referred to and in other Acts.

Proof was given tending to show that the indebtedness of respondent is about seventy per cent. of the assessed value of all the property

within its corporate limits; that it was fraudu- | the recusant Aldermen, which were ordered to lently voted on its people largely by non-resi- be applied in discharge of the costs of the prodent railroad laborers, and the bonds were sold ceedings. at about ten per cent. of their face, and have always been sold at a small fraction of their face value, and that a large share, three fourths or two thirds, of the property in said City is exempt from all legal process; and that one half of it is owned by persons having none but ex-cancies of the Aldermen so resigning, but no empt property, and only about one tenth of its people have any property not exempt under the general statutes of the State from every process a court can issue; that the collection of the whole debt by taxation is impossible; that the effect of such an attempt would be to drive personal property out of the City and depreciate the realty; but that efforts have been made to compromise it, with partial success, still leaving the percentage of indebtedness as above stated.

Messrs. H. W. & D. K. Tenney and S. U. Pinney, for appellant.

Messrs. D. Hall and H. L. Palmer, for appellee.

Mr. Justice Hunt delivered the opinion of the court:

The plaintiff was the owner of certain bonds issued by the City of Watertown, to the Watertown and Madison Railroad Company, and by them sold for their benefit. The plaintiff recovered three several judgments in the United States Court on these bonds, amounting to nearly $10,000. Afterwards he brought another suit in the United States Court for the Western District of Wisconsin, upon these several judgments, and on the 3d of February, 1871, recovered a judgment for $11,066.89.

In the summer of 1868, he issued executions upon the two judgments first obtained, which were returned wholly unsatisfied.

In November of the same year, he procured from the United States Circuit Court a peremptory writ of mandamus, directing the City of Watertown to levy and collect a tax from the taxable property of the City to pay the said judgments. But as the plaintiff alleges, before the writ could be served, a majority of the members of the City Council resigned their offices. This fact was returned by the marshal, and proceedings upon the mandamus thereupon ceased. In May, 1869, another Board of Aldermen having been elected, the plaintiff procured another writ of mandamus to be issued, which writ was served on all the Aldermen except one, Holger, was was sick at the time of the service upon the others. No steps were taken to comply with the requisition of the writ. An order to show cause why the Aldermen should not be punished for contempt in not complying with its requirements was obtained, but before its return day, six of the Aldermen resigned their offices, leaving in office but one more than a quorum, of whom the said Holger, upon whom the writ had not been served, was one. Various proceedings were had, and various excuses made, the whole resulting in an order that the Aldermen should at once levy and collect the tax; but before the order could be served on Holger, he resigned his office, and again the Board was left without a quorum. Nothing was accomplished by their effort in aid of the plaintiff, but fines were imposed upon

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In October, 1870, the plaintiff obtained a third writ of mandamus which resulted as the former ones had done and by the same means on the part of the officers of the City. A special election was ordered to be held, to fill the vavotes were cast except three in one ward, and the person for whom they were cast refused to qualify. There is a very limited denial in the answer of some of these allegations, but their general truth is not denied. It is certain that no part of the debt of the plaintiff has ever been paid, and that, with an accumulation of fourteen years' interest, the same remains wholly due and that the plaintiff's efforts to obtain satisfaction of his judgments have failed.

The bill sets forth certain Acts of the Legislature of Wisconsin, which it is alleged were intended to aid the defendant in evading the payment of its debts, and which, it can scarcely be denied, have had that effect, whatever might have been the intent of the Legislature in passing them.

The plaintiff asks the aid of the court to subject the taxable property of the City to the payment of his judgments, alleging that the corporate authorities are trustees for the benefit of the creditors of the City, and the property of the citizen a trust fund for that purpose, and that it is the duty of the court to lay hold of the property and cause it to be justly applied. He asks specifically that a decree may be made subjecting the taxable property of the citizens, to the payment of his judgments, and that the marshal of the district may be empowered to seize and sell so much of it as may be necessary, and to pay over to him the proceeds of such sale. This case is free from the objections usually made to a recovery upon municipal bonds. It is beyond doubt that the bonds were issued by the authority of an Act of the Legislature of the State of Wisconsin, and in the manner prescribed by the statute. It is not denied that the railroad, in aid of the construction of which they were issued, has been built, and was put in operation.

Upon a class of the defenses interposed in the answer and in the argument it is not necessary to spend much time. Thus it is alleged that the City of Watertown contains a population of but 7,553 inhabitants; that the value of its property is assessed at but little over $1,000,000; that the debt of the City is $750,000; that it is impossible for the City to pay this debt; that it was expected and provided that the railroad company would pay the bonds in question; but the roads have been foreclosed and sold; that the City has compromised and settled a portion of its indebtedness; that it. has levied the taxes necessary to effect such compromise; and that it is ready to compromise all outstanding bonds and judgments at as high a rate as can be collected of the people of Watertown; that there is no law to compel the retention of the office by Aldermen to levy taxes; that the plaintiff took his chance of its being voluntarily done, and that not being voluntarily done, there is no violation of law. These theories are vicious. They are based upon the idea that a refusal to pay an honest debt

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