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Opinion of the Court.

much louder, and the tone more full, clear, resonant and brilliant than that of defendant's banjo, which is comparatively weak, colorless, and sharp or tinny."

William Becker, an expert called by the defendant, testified that "I think the Dobson banjos are more adapted for large audiences, ball-rooms, theatres, etc., while the Cubley banjo would better meet the trade for home amusement and parlor use." And again: "It is well known that wood-rim banjos covered with metal have a sharp, shrill tone, where a hollowshell rim will give a metal tone."

George Van Zandt, a witness for the defendant, testified that "the tone of a banjo is a very essential feature in reference to its value as a musical instrument, but there are various kinds of tones, and for some uses one kind may be preferred to another, and for other uses, vice versa. For a concert room a strong, loud tone is desirable, and for a smaller room a soft and mellow tone would be preferred. The tone of the Dobson banjo is a loud, strong one, especially in the high notes. The one of the Cubley banjo is softer and more enduring, especially in the lower notes. For accompaniment and for use in the parlor by amateurs, probably the Cubley banjo would be preferred. By professional players, for brilliant effects, perhaps the Dobson banjo would be the best."

Without expatiating on this "strange difference twixt tweedle-dum and tweedle-dee," we think we see in the testimony of the respective witnesses on the merits of their favorite instruments a recognition of an obvious difference in the quality and characteristics of their tones. Differing, then, as we have seen they do, in their mechanical devices and in the material of the sounding boxes, and in the quality and character of their musical effects, we conclude that the Cubley banjo cannot be deemed an infringement of either of the Dobson banjos.

The contention that the Dobson banjos exhibit no patentable novelty has not been much pressed. At all events, we think that their additional devices are obvious improvements, and justify the granting of letters patent.

As the court below reached the same conclusion, 39 Fed. Rep. 276, its decree is Affirmed.

Syllabus.

CAIRO v. ZANE.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.

No. 210. Argued April 13, 14, 1893. -Decided April 24, 1893.

In accordance with a previous resolution of the city council of Cairo, Illinois, an election was duly held there on the 28th of May, 1867, "for the purpose of voting upon the question of the city's issuing $100,000 in twenty-year bonds, drawing eight per cent interest, as a subscription to the capital stock of the Cairo and Vincennes Railroad"; and it was, by a vote of 695 to 1, "declared to be the wish of the people that the said sum of $100,000 be so subscribed." Such subscription was accordingly made. In November following the railroad company and the city further agreed that the railroad company should commence work within six months and push it with dispatch; that the city should issue its bonds to the amount of $50,000, when the road should be completed to the boundary line between Alexander and Pulaski Counties, and a like amount when it should be completed to the boundary line between Pulaski and Johnson Counties, and that each amount when issued should be delivered to the railroad company in exchange for a like amount of its stock; and that the city should, as each issue of stock was made, sell it to the railroad company for the sum of $2500 in bonds of the city. In July, 1871, an ordinance was passed authorizing this contract to be carried out; and in December, 1872, the city, by its trustee, delivered to the railroad company bonds to the amount of $100,000, the company delivered to the trustee for the city certificates of stock to the like amount and bonds of the city to the amount of $5000, and the trustee thereupon transferred the certificates of stock to the company. The mayor of the city then, on the 14th of December, 1872, reported to the auditor of the State of Illinois an issue of bonds of the city to the amount of $95,000 for subscriptions to the stock of the railroad company, and the bonds were certified by the auditor as registered pursuant to the laws of Illinois, "to fund and provide for paying the railroad debts of counties, townships, cities and towns." The bonds were sold by the company and passed into the hands of innocent holders for value. The city having failed to pay the coupons on said bonds as maturing, one of the holders brought suit to recover the same. Held, (1) That the executed agreement on the part of the city to subscribe for stock, and on the part of the company to receive bonds in payment therefor, was not affected by the further act of the city in parting with its stock to the company in consideration of a return of a portion of the bonds; and that whatever wrong might have

Statement of the Case.

been committed by the city council in the latter transaction, did not vitiate the bonds issued under the former, after they had passed into the hands of a bona fide holder;

(2) That, as the statute of the State had provided for the registry of municipal bonds in such cases and a certificate thereof, such certificate should be held to be sufficient evidence to a purchaser of the existence of the facts, upon which alone the bonds could be registered;

(3) That the bonds were valid in the hands of a bona fide holder; (4) That under the laws of Illinois, governing the issue, the city had the power to make the bonds payable in New York;

(5) That under the settled rule in Illinois the coupons drew interest after maturity.

ON August 3, 1883, defendant in error commenced suit in the Circuit Court of the United States for the Southern District of Illinois, on certain coupons attached to bonds issued by the city of Cairo, plaintiff in error. After answer had been filed a trial was had, which resulted in a judgment in favor of plaintiff for $8556.36. This judgment was entered on February 27, 1888, and to reverse such judgment the city sued out a writ of error from this court.

The facts as developed in the case are these: On May 28, 1867, a resolution passed the city council of the city of Cairo, ordering a special election "for the purpose of voting upon the question of the city issuing $100,000 in twenty-year bonds, drawing eight per cent interest, as a subscription to the capital stock of the Cairo and Vincennes Railroad." An election was duly had, at which 695 votes were cast in favor of the subscription and one vote against. At a meeting of the council on July 1 the vote was canvassed, and a motion carried" that it be declared the wish of the people that the said sum of $100,000 be so subscribed." On November 5, 1867, the journal of the proceedings of the city council contains this record:

"A proposition was received from the Cairo and Vincennes Railroad Company proposing to purchase from the city of Cairo the $100,000 capital stock of said company subscribed by said city, accompanied by the following contract for consideration, viz. :

"This contract, made and entered into by and between the

Statement of the Case.

city of Cairo, Illinois, party of the first part, and the Cairo and Vincennes Railroad Company, party of the second part, witnesseth:

"That whereas heretofore, to wit, on the first day of July, 1867, by a vote of the electors of the city of Cairo, Illinois, at an election held in said city, the mayor and city council of Cairo were authorized to make a subscription of one hundred thousand dollars to the capital stock of the Cairo and Vincennes Railroad Company, and to pay for said stock in bonds of the city of Cairo of the denomination of five hundred dollars, with the bonds to run for twenty years and to bear interest at the rate of eight per centum, payable half yearly, on the first days of January and July of each year, in the city of New York, said city of Cairo being required by the laws of this State to issue instalments of said bonds from time to time, as assessments may be made upon said stock by said railroad company;

"And whereas the said railroad company proposes to guarantee that work on said road shall be commenced at Cairo within six months from the date of this contract, and that the construction of the road-bed and laying the track from Cairo northward shall be pushed with reasonable dispatch, and also to release the city of Cairo from the obligation to issue any part of said bonds until said railroad shall be built from Cairo to the boundary line between Alexander and Pulaski Counties, and also to purchase of the city of Cairo the stock to be issued to said city upon the delivering of the city bonds aforesaid, it is therefore hereby stipulated and agreed by and between the parties aforesaid as follows:

"ARTICLE 1. The party of the second part agrees that work on said road shall be commenced at Cairo within six months of the date of this contract, and that the construction of the road-bed and laying of the track from Cairo northward shall be pushed with reasonable dispatch.

"ARTICLE 2. The party of the second part agrees that, instead of the city of Cairo issuing bonds in payment for stock upon assessments made from time to time by said railroad company, the city of Cairo shall issue fifty thousand dollars of bonds

Statement of the Case.

and deliver the same to said company in payment for stock when the track of said road shall have been laid to the boundary line between the counties of Alexander and Pulaski and cars shall have run thereon, and the said city shall issue fifty thousand dollars of bonds as aforesaid and deliver the same to said company in payment for stock when the track of said company shall have been laid and cars shall have run thereon from the city of Cairo through Pulaski County to the boundary line between that county and Johnson County, Illinois.

"ARTICLE 3. The party of the first part hereby agrees to issue the fifty thousand dollars of bonds of the city of Cairo in payment for fifty thousand dollars of stock of said Cairo and Vincennes Railroad Company, and deliver said bonds to said company whenever the railroad track of said company shall be laid from Cairo to the boundary line between Alexander and Pulaski Counties and cars shall have run thereon; and also to issue fifty thousand dollars of said bonds in payment for stock as aforesaid, and deliver the same to said company whenever the railroad track of said company shall have been laid from the city of Cairo to the boundary line between Pulaski and Johnson Counties and cars shall have run thereon.

"ARTICLE 4. And whereas the early construction of said road is of vast importance to the city of Cairo, therefore, in consideration of the stipulations made by the party of the second part in articles first and second of this contract and in consideration of the sum of five thousand dollars to be paid by the said party of the second part as hereinafter stated, the party of the first part hereby agrees to sell and transfer to said party of the second part the one hundred thousand dollars stock of said railroad company to be issued to the city of Cairo, Illinois, in payment for one hundred thousand city bonds, at and for the sum of five thousand dollars, as follows: When fifty thousand dollars of the stock of said company shall be issued to the city of Cairo, the party of the first part agrees to transfer and assign the same to the party of the second part on payment of twenty-five hundred dollars in Cairo city bonds,

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