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No. 11 is attached hereto, marked Exhibit B, except as to numbering. A true copy of bond No. 18 is attached hereto, marked Exhibit C, and made a part of this petition. That the , bonds so purchased as aforesaid are the property of this plaintiff, and the plaintiff is entitled to the interest thereon. The said bonds were issued With interest coupons attached, pay able semiannually, bearing 6 per cent. interest, and the defendant has paid with reasonable promptness to this plaintiff all interest coupons on the aforesaid bonds so purchased for its agricultural college endowment fund up to and including the interest coupons pertaining to the aforesaid bonds 11, 12, 13, 14, 15, 16, and 18 which matured on July 10, 1902; and the defendant has made default in payment of all the interest coupons of said bonds numbered 11, 12, 13, 14, 15, 16, and 18 aforesaid, which have matured since July 10, 1902, and the defendant has refused, and still refuses, to pay the same.

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“Wherefore, there is due this plaintiff from the defendant, on this cause of action, the sum of thirty dollars on said coupon, and interest thereon at seven per cent. per annum since the maturity of said coupon set out in this cause of action.”

IHere follow causes of action numbered from second to forty-second, inclusive, of the same general character as the first cause of action, and the petition continues thus:

“That the aggregate sum of all the interest coupons due and unpaid as aforesaid in plaintiff's several causes of action above set forth against this defendant is $1,098.00. Wherefore, plaintiff prays judgment against said defendant in the sum of one thousand ninety-eight dollars, with interest on $183.00 thereof at the rate of 7 per cent. per annum from January 10, 1903, with interest on $183.00 thereof at the rate of 7 per cent. per

annum from July 10, 1903, With interest on $183.00 thereof at the rate of 7 per cent. per annum from January 10, 1904, with interest on $183.00 thereof at the rate of 7 per cent. per annum from July 10, 1904, with interest on $183.00 thereof at the rate of 7 per cent. per annum from January 10, 1905, with interest on $183.00 thereof at the rate of 7 per cent. per annum from July 10, 1905, and for costs of this suit. C. C. Coleman, AttorIney General of IKansas, and John S. Dawson, Attorneys for Plaintiff.”

- Exhibit A.

“In the District Court, Fifth Judicial District, and for Day County, Oklahoma Territory. In the Matter of the Funding of the Judgment Indebtedness of the County of Day and Territory of Oklahoma.

“Journal Entry.

“Now, on this 10th day of July, A. D. 1900, this matter came on to be heard, by the court upon application of the board of county commissioners of Said county to make a showing and have the court determine the amount of the judgment indebtedness of said county and sign the judgment funding bonds to be issued for paying same, and the board of county commissioners of said county, and the county clerk thereof and by the county attorney of said county, and by counsel and the following judgment creditors by counsel, to wit, Charles S. Hinchman, F. M. Hubbell, George Theis, Jr., and A. Ferguson. And the Clerk of the district court, and the sheriff of Day county, being present, and the publication notice required by statute being here made and approved. And the evidence having been heard by the court, the court finds the amount of judgment indebtedness of said Day county to be the sum of $16,738.23, which is wholly unpaid and owing to the several judgment creditors as follows, to Wit:

Charles S. Hinchman. . . . . . . . - - - $10,170 37 F. M. Hubbell. . . . . . . . . . . . . . . . . . . 5,845 60 George Theis, Jr.. . . . . . . . . . . . . . . . 61S 40 A. Ferguson. . . . . . . . . . . . . . . . . . . . . 103 S6

“And the court further finds that said judgment creditors, and each of them, and Said board of county commissioners of said Day County, have agreed that bonds should be issued by said board of county commissioners of said Day county and accepted by the creditors in satisfaction of said judgments, dollar for dollar, and that publication of notice required by statute prior to the application to issue said bonds has been duly made, and that one-third of the judgment indebtedness of said county cannot be paid from the sinking fund in any one year by a levy of five mills on the dollar, as ShoWn by the last preceding assessment of said county. And the court further finds that all things precedent to the issuance of said bonds have been duly done and performed. And the court further finds that the amount of outstanding bonded indebted

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91 PACIFIC REPORTER.

last assessment valuation of the assessors for

said county, and the bonds being presented, form and amount duly signed by the chairInall Of the board Of County COImmissioners of I)ay county and by the county clerk of said county, the court is satisfied that they are of the class and character authorized by statute, and said bonds are approved in form, classes and amounts, and therefore said bonds are signed by the judge of said court

to the amount as evidenced by the face thereof ($16,738.23) sixteen thousand seven hun

dred thirty-eight and twenty-three one-hundredths dollars, and said bonds being signed are delivered to the county treasurer of said county in open court, and the same are receipted for to the judge of said court. “John L. McAtee, Judge. “Attest : “J. P. Renshaw, Clerk District Court, “By O. H. Richards, Deputy.” “Territory of Oklahoma, Day County—ss.: “I, J. P. Renshaw, clerk district court of the Fifth judicial district of the territory of Oklahoma, do hereby certify that the within and foregoing to be a full, true and complete copy of the original journal entry in the matter of issuing bonds in said county on the 10th day of July, 1900, as the same now appears on file and record in my office, in the town of Grand, county of Day, and territory of Oklahoma. Witness my hand and official Seal, at my Office at Grand, in the County of Day and territory of Oklahoma. “J. P. Renshaw, Clerk District Court, “[Seal.] O. H. Richards, Deputy.”

“Office of Edson L. Mead, County Clerk, Day County.

“Territory of Oklahoma, Day County—ss. :

“I, Edson L. Mead, county clerk in and for Day county, Oklahoma, do hereby certify that the assessed valuation of the taxable property in and for said county as shown by the last assessment of said county amounts to the sum of ($.501,156.00) five hundred and one thousand one hundred and fifty-six dollars; and that the total amount of outstanding indebtedness of said county of Day, from all sources, amounts to ($19.800.00) nineteen thousand eight hundred dollars. Given under my hand, whereunto I have affixed the seal of my office, this 10th day of July, A. D. 1:)00.

“I’dson L. Mead,

County Clerk of Day County.”

County of Lo

“[Seal.] “Territory

gan—SS. :

“, S. M. Hopkins, auditor in and for the territory of Oklahoma, do hereby certify that

of Oklahoma.

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the hereto attached and foregoing papers are a true and Correct copy of all the paper's On file in my office in the matter of the issuance of judgment funding bonds in the amount of $16,738.23, by Day county, Oklahoma, and, further, that the sworn statement, as made by the county clerk to this office, shows the total outstanding indebtedness of said county amounts to $19,800 and the assessed valuation to $501,156. I further certify that the omission of the judge's signature to the colny of the findings hereto attached was a mistake. In testimony whereof, I have this day set my hand and affixed the official seal of my office, at Guthrie, Okl., this 31st day of July, 1900. “[Seal.] S. N. IIoplvins, Auditor, By E. P. McCabe, Deputy Auditor.”

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“Know all men by these presents. That the county of Day, in the territory of Oklahoma, acknowledges itself to be indebted, and for value received hereby promises to pay to the bearer the Sum of one thous:und dollars ($1,000), lawful money of the United States of America, on the tenth day of July, A. D. 1910. However, this bound is subject to call and payment at any time at the option of said county, together with interest on said sum from date hereof, until paid at the rate of six per centum per annum, payable semiannually on the tenth days of January and July, respectively, in each year, upon presentation and Surrender of the interest coupons hereto attached, as they severally become due, both principal and interest payable at the Western National Bank, in the city of New York and state of New York, and for the prompt payment of this bond, with interest as aforesaid, at maturity, the full faith and credit of said eounty of Day, in the territory of Oklahoma, is hereby irrevocably pledged.

“This bond is issued by the said county of Day, aforesaid, for the purpose of funding and paying valid and existing outstanding judgments recovered against said county, in the courts of competent jurisdiction within the said territory of Oklahoma, and having jurisdiction both of the person of said county and of the subject-matter of the actions prosecuted against said county, resulting in the rendition of said judgments, and is issued by virtue of the authority conferred by article 11, Chapter 5, of the Session Iaws of the territory of Oklahoma for the year 1897, being an act of the territorial assembly of said territory, entitled ‘An act providing for the issuance of bonds in 11:lyment of judgments against counties and other municipal corporations,’ approved on the 12th day of March, 1897, and subject to its provisions. And it is hereby recited, certified and warranted that all acts, conditions and things re-" quired to be done precedent to and in the issuing of this bond have been properly done and performed in regular and due form required by law; and that said county has duly proved to the satisfaction of the district court of the county of Day and territory of Oklahoma, the existence, validity, force and legality of said judgment indebtedness; and that the said judgment indebtedness reImains unpaid at the date of the issuance of this bond; and that an agreement has been made for the settlement of such judgments by the issuance of this bond; and that all other requirements of the said act a foresaid. together with all other requirements of law in the premises, have been duly complied with in tlle issuance of this bond; and that no congressional or statutory limritation of the amount of the indebtedness of Said IluuluiciIoality is exceeded by this issue. “In witness whereof, the said county of I lay and territory of Oklahoma has caused this bond to be signed by the chairman of its board of county commissioners and its county clerk, under the seal of said county, this

tently day of July, A. D. 1900, and the Hon

orable Jolin L. McAtee, the judge of the district court of said county in open court, as the act of said court, has also signed these Iresents on the said day and date. “Cosmo Falconer, “Chairman of the Board of County CommisSiOllerS. "Attost: Edson L. Mead, “[Seal.] County Clerk. “Signed in open court by the district court of the county of Day, Oklahoma Territory, this tenth day of July, A. D. 1900. “Jno. L. McAtee, “Judge of the District Court of Day County. ** Attest: J. P. Renshaw, “Clerk of the I)istrict Court of Day County, “[Seal.] Hy O. H. Richards, Deputy.”

Indorsed oil the back thus: “Territory of Oklahoma. “Office of the Torritorial Auditor. “I. S. N. Hopkins, auditor of the territory of Oklahoma, do hereby certify the within bond to be legally and regularly issued, and has been registered in my office this day. loursuant to an act of the legislative assenbly of the territory of Oklahoma, entitled, ‘An act I)roviding for the iSSu:lince of bonds in layment of judgments against counties and other municipal corporations,’ approved March 12, 1897. Witness my hand and of icial seal, done at my office in the city of Guthrie, Oklahoma Territory, this 12th day of July. “S. N. Hopkins. Territorial Auditor. “[Seal.] By E. P. McCabe, Ireputy.”

Also indorsed on back thus:

“No. 11. Iłay county. Oklahoma Territory, judgment funding bond 1,000 dollars. Lated July 10, 19ts), due July 10, 1910. Interest 6 per cent. Iner annum. payable semi-annually ou the tellth days of January aud July of

each year, at the Western National Bank, in the city of New York and state of New York.”

Exhibit C.

“United States of America, Territory of Oklahoma. *No. 1S. 100 Dollars.

“Day County Judgment Funding Dond.

“Know all men by these presents: That the county of Day, in the territory of Oklahoma, acknowledges itself to be indebted, and for value received promises to pay to the bearer, the sum of one hundred dollars ($100). lawful money of the United States of America, on the tenth day of July, A. D. 1910. HOWever, this bond is subject to call and payment at any time at the option of said county, together With interest on Said Sum from the date thereof. until paid, at the rate of six per centum per annum, 10ayable semi-annually on the tenth days of January and July, rerespectively. of each year, upon presentation and surrender of the interest coupons hereto attached, as they severally become due, both principal and interest payable at the Western National Bank, in the city of New York and state of New York, and for the prompt payIllent Of this bond. With interest as aforesaid, at maturity, the full faith and credit of said county of I)ay, of the territory of Oklahoma, is llereby irrevocably pledged.

“This bond is issued by the said county of Day, aforesaid, for the purpose of funding and paying valid and existing outstanding judgments recovered against said county, in the courts of competent jurisdiction within the said territory of Oklahoma, and having jurisdiction both of the person of the said County and Of the subject-matter of the action prosecuted against said county, resulting in the rendition of said judgments, and is issued by virtue of the authority conferred by article 2. chapter 5, of the Session Laws of the territory of Oklahoma, for the year 1897, being an act of the territorial assembly of said territory, entitled ‘An act providing for the issuance of bonds in payInent Of judgments against Counties and other municipal col'10rations, approved on the 12th day of March. 1807, and subject to its proviSions. And it is hereby recited, certified and warranted that all acts, conditions and things required to he done precedent to and in the issuing of this bond have been properly done aul I ersorined in regular and Clue sorru required by law: and that the said county has duly proved to the satisfaction of the district court of the county of I)ay and territory of Oklahoma, the existence, validity, force and legality of said judgment indebtedness; and that the said judgment indebtedness remains unpaid at the (late of time issuance of this lond: and that an agreement lias heen made for the settlement of such judgments by the issuance of this lond; and that all other requirements of the said act aforesaid, together with all other requirements of law in the preluises, llave been sully complied with in the issuance of this bond; and that no congressional or statutory limitation of the amount of the indebtedness of said municipality is exceeded by this issue. “In witness whereof, the said county of Day" and territory of Oklahoma has caused this bond to be signed by the chairman of its board of county commissioners and its county clerk, under the seal of said county, this tenth day of July, A. D. 1900, and the Honorable John L. McAtee, the judge Of the district court of said county, in open court, as the act of said court, has also signed these presents On the Said day and date. “Cosmo Falconer, “Chairman of the Board of County CommisSiOllerS. “Attest: Edson L. Mead, “[Seal.] County Clerk. “Signed in open court by the district court of the county of Day, Oklahoma Territory, this tenth day of July, A. D. 1900. “Jno. I. McAtee,

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Also indorsed on back thus: “No. 18. Day county, Oklahoma territory, judgment funding bond. One hundred dollars. Dated July 10, 1900, due July 10, 1910. Interest 6 per cent. per annum, payable semi-annally on the tenth days of January and July of each year, at the Western National Bank, in the city of New York, and state of New York.” To which petition the defendant answered as follows: “The defendant comes, and for his answer to the plaintiff's petition filed herein denies each and every allegation therein contained, and not hereinafter admitted. “For a second and further defense to plaintiss's petition, the defendant alleges that the bonds mumbered 11, 12, 13, 14, 15, and 16, and 18, and the interest coupons thereto, at the time attached, and of which the plaintiff at the time of bringing of this action

claimed to be the owner, were not issued pursuant to any law or authority of the territory of Oklahoma, and were at all times and now are illegal and void and are not a binding obligation against this defendant. The defendant alleges that on the 10th day of July, 1900, the district court of the territory of Oklahoma was not in session, open or otherwise, and there was no sitting of the said court in said county in the month of July, 1900, and that no judgment indebtedness of said Day county, and particularly the indebtedness mentioned in Exhibit A to plaintiff's petition were proved by the defendant before the district court of Said Day county, nor did the judge of said court thereof, in open session or otherwise, on the 10th day of July, 1900, or at any other time, find any amount of judgment indebtedness of said county to exist, and have effect and be in force against the said county; and that said district court nor the judge thereof did not, on the said day, to wit, July 10, 1900, nor at any other time, in open session of said court, nor at all cause to be made on the record of said court, a statement and findings of the evidence of any judgment or judgments, and the said county by and through its board of county commissioners in which the holders of said judgmentS agreed to accept, and ille Said county agreed to have issued, the bonds in question in payment of said judgments or any of them in Settlement of Said judgments or any of them before the signing of said bonds by the judge of the said district court, Inor at any other time, and that the said judge of the district court of said county was at the time of the signing of sail bonds, and at all times prior and subsequent thereto, without authority or jurisdiction to sign the same. “For a third and further defense defendant says that at all times ment (oned in plaintiff's petition the county seat of Day county, Oklahoma Territory, was legally at Ioland, Where the Same had been established by the Congress and the Secretary of the Interior of the United States, and that the district court of said county could only be legally held at said county seat, and that all notices and proceedings had about the issue of the bonds in question or other bonds should have been given from and referred to the said Ioland, the county seat of said county. That there was no term of the district court in the year 1900 held at said Ioland, the county seat of said county, nor was any notice given of any bonding proceedings nor the funding of any judgment indebtedness of said county into bonds to be had at said county seat. That no proof was made before the judge of the district court, in open court or otherwise, in said Iolan: , the county seat of the said Day county, of any judgment indebtedness against Said County, nor were any bonds issued or sign.cd by the chairman of the board of county commissioners of said county at Ioland, in the county of Day, on the 10th day of July, 1900, or at any other time. That no finding was made by the district court of said county nor the judge thereof, in open session or otherwise, of any judgment indebtedness against said county of Day, and which he caused to b:: entered upon the record of said court at Ioland, the county seat of said County, or other place therein, and that all said bonds are void, and were at all times since their pretended issue. That the couponS Sued upon herein are for interest accrued upon the principal bonds claimed to be held and owing by the plaintiff. That they derived their validity, if any, from the validity of the parent bond from which they were clipped. “For a fourth and further defense, the defendant says that in the month of July, 1900, the last-assessed valuation of the property of said county for taxes was $469.289.77. That four per cent. of said amount is $18,771.54, and said last-named sum was the limit for which said county could become indebted in said year. That at the time of the pretended issue of said bonds in question, there were outstanding bonds of said county in the sum of $7,500.00, exclusive of interest, and warrant indebtedness in the sum of $5,700.00. That said bonds and warrants were legal and valid issue of Said county and part of its indebtedness. That at the time of the issue of the bonds in question, $16,800.00 were issued legally or illegally, and upon the Coupons for interest of six of Said bonds plaintiff seeks to recover in this action. That of moneys in the treasury of said county and belonging thereto, taxes levied and uncollected and all other property, money and resources belonging to said county at the time of the issuance of said bonds on July 10, 1900, was the sum of $5,700.00, and deducting said annount from the bond and warrant indebtedness of Said county as aforesaid, the said county could only have issued on said date, to wit, July 10, 1900, bonds to the amount of $11,200.00, whereas the said county issued $16,800.00 in bonds, which amount exceeded the amount the county might have issued, $5,600.00, and that $5,600.00 of said bonds are illegal and Void. Defendant further says that because of the facts aforesaid the said county could not, at the time of the issue of the bonds in question, legally issue to exceed $11,200.00 of the bonds of said county and that the excess of said amount, to wit, $5,600.00, was and is illegal and void for being in excess of four per centum of the last-assessed valuation of the property of said county for taxation preceding the issue of said bonds, and that said amount of illegal issue affects and enters into each of the bonds of said issue, and should be apportioned to and among each and all said bonds. That defendant makes the second count of this answer a part of this count.

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“For a fifth and further defense, and by way of cross-petition against the plaintiff, the defendant says that it has paid, and the

plaintiff has received, interest paid on the

seven bonds it holds and which are described in its petition, the sum of $122.00; that said interest payments were made under the mistaken belief of the defendant that the bonds on which it was paid were legal and binding obligations of the said county of Day for their face value; and that, since the discovery by the defendant that said bonds were illegal in Whole or in part, the defendant has not paid any interest upon the same. The defendant says that it makes the second and fourth counts of this answer a part of this Count. “Wherefore, the defendant prays judgment against the defendant that the interest Coupons sued on be decreed and adjudged illegal and void, and the petition of plaintiff be dismissed, and that the defendant recover the interest heretofore paid on said bonds in amount $122.00, and that, if said bonds be found in part legal and part illegal, the defendant have judgment that the interest paid on the amount of said bonds found to be illegal be credited on the interest due and OWing thereon, for costs, and all other proper relief. “E. S. Sharp, County Attorney, “Cowgill & Dunn, “Attorneys for Defendant. To which answer plaintiff replied as follows: “Comes now the plaintiff, and, after leave of court first had and obtained, filed its amended reply to the defendant's answer in this cause. First, plaintiff denies each and every allegation in defendant's answer so far as the same are inconsistent with the allegations of plaintiff's petition. Second, replying further to defendant's answer, plaintiff says that it relied implicitly and absolutely upon the recitals in the bond to which the coupons in controversy pertain, and relied implicitly and absolutely on the recitals on the back of the bond as certified by the auditor of Oklahoma Territory.” After the issues in the cause were joined as heretofore shown, the cause coming on to be heard, the plaintiff filed the following motion for judgment upon the pleadings: “Comes now the said plaintiff, the state of Kansas, and exhibits to the court the petition of the said plaintiff, the answer of the said defendant, and the reply of the plaintiff thereto, and ShoWS to the court that the said petition of the plaintiff alleges and sets forth a good and valid cause of action against Said defendants; and that all the allegations, aVerments and Statements of the said answer are not sufficient to constitute any defense against the said cause of action of the plaintiff; that it appears from the said petition and answer that the sqid defendant has no good, valid and Sullicient defense to the

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