defendant in the present action. This presents two questions for determination: First. What is the true meaning of the recitals in the bonds? Second. Can the recitals, even if clear and specific, estop the defendant from showing what the assessed value of the taxable property of the district was when these bonds were issued? To estop a party from showing what the truth is in a given case, the statement or recital relied on as working an estoppel should be clear and unambiguous; or, in the language of the supreme court of the United States in School-district v. Stone, 106 U. S. 183; S. C. 1 Sup. Ct. Rep. 84.

"Where the holder relies for protection upon mere recitals, they should, at least, be clear and unambiguous, in order to estop a municipal corporation, in whose name such bonds have been made, from showing that they were issued in violation or without authority of law."

Where the bonds have recited that they were issued "in pursuance of," or "in conformity with," or "by virtue of," or "by authority of," a given statute, it has been ruled that thereby a compliance with the provisions of the statute would be inferred in favor of a bona fide holder; but, as is stated in School-district v. Stone, supra, “in all such cases, as a careful examination will show, the recitals fairly imported a compliance in all substantial respects with the statute giving authority to issue the bonds."

The recital relied upon in the present case is that the bonds were issued "under provisions of sections 1821, 1822, and 1823, of the Code," etc. Does the word "under" mean the same as the phrases "in pursuance of," "in conformity with," "by virtue of," or "by authority of ?" These all fairly imply a compliance with the provisions of the statute, because it cannot be justly said that bonds issued in violation of a statute are issued "in pursuance of," or "in conformity with," or "by virtue of," or "by authority of," the statute thus violated. The word "under," however, has a different signification. Primarily it is the correlative of "over" or "above," and signifies being in a lower condition or position; and, secondarily, it indicates a relation of subjection or subordination to some superior power, higher authority, or controlling fact. Thus, when it is said that the citizens of a given state are living under the constitution and laws of the state, it is not asserted that all such citizens are living in conformity with such constitution and laws, but only that they are subject to such constitution and laws. They may live under them and conform thereto, or may live under and violate them. When it is asserted that certain bonds are issued in pursuance of, or in conformity with, the provisions of a given statute, this is an assertion that in issuing the bonds the provisions of the statute have been followed or conformed to; but when the recital is only that the bonds are issued under the provisions of a given statute, this simply asserts that the bonds are subject to or controlled by the provisions of the statute named; or, in other words, the purchaser is thereby informed where he should look in order to

learn what the provisions of the statute are which confer and limit the power to issue the bonds.

An examination of the statutes of Iowa shows that the Twelfth, Fourteenth, Fifteenth, Sixteenth, Seventeenth, and Eighteenth general assemblies had each passed acts providing for the issuing of bonds by school-districts, or amending the statutes already passed, so that when the bonds in question were issued a good reason existed why it should be stated under which act the right to issue the bonds was claimed. Thus part of the bonds recite that they were issued under certain sections of the Code, and others recite that they were issued under the provisions of chapter 132 of the Acts of the Eighteenth General Assembly. In order that intending purchasers might be advised as to the provisions of law controlling the issuance of the several series of bonds, the officers of the district recite where such provisions may be found, but the recital does not fairly assert that the provisions of the statute have been complied with. If it is urged that such a construction of the recitals, though justified by the literal meaning of the words employed, is too strict, and not in accordance with the probable intent of the officers executing the bonds, and should not, therefore, be adopted, the answer is found in the language of the supreme court in School-district v. Stone, supra, wherein it is said:

"This construction of the words employed in the bonds is characterized by counsel for the defendant in error as too narrow and technical. It may be a strict construction, and such, it seems to the court, ought to be the rule when it is proposed by mere recitals upon the part of the officers of a municipal corporation to exclude inquiry as to whether bonds issued in its name were made in violation of the constitution and of the statute, of the provisions of which all must take notice."

The conclusion reached upon this question is, that in none of the bonds owned by plaintiff to which the coupons sued on are attached is there any recital touching the amount of the indebtedness owing by the school-district when these bonds were issued, and consequently the defendant is not estopped from showing that the bonds are void by reason of the fact that when they were issued the indebtedness of the district was then in excess of the constitutional limit. Granting, however, that the recital in the bonds is in effect a statement that the bonds were issued in conformity with the provisions of the statute and of the constitution, the question would then arise whether such recital would estop the defendant from showing that the bonds. created an indebtedness in excess of the constitutional limitation, and are therefore void. In the case of Buchanan v. Litchfield, 102 U. S. 278, the supreme court passed upon a similar question arising under the constitution of the state of Illinois, which contains a provision identical with that found in the constitution of Iowa. The court held that, in determining the amount of the indebtedness which could be lawfully incurred, reference must be had to the source of information expressly named in the constitutional limitation, to-wit,

the last assessment for county and state taxes; or, to quote the exact language of the decision:

"In determining whether the constitutional limit of indebtedness has been exceeded by a municipal corporation, an inquiry would always be necessary as to the amount of taxable property within its boundaries. Such inquiry would be solved, not by information derived from individual officers of the municipality, but only in the mode prescribed in the constitution; that is, by reference to the last assessment for state and county taxes for the year preceding the issuing of the bonds. The purchaser of the bonds was certainly bound to take notice, not only of the constitutional limitation upon municipal indebtedness, but of such facts as the authorized official assessments disclose concerning the valuation of taxable property within the city for the year 1873."

When, therefore, the bonds in question in this action were offered for sale, the purchaser was bound to know that the constitution of the state limited the amount of indebtedness that could be legally incurred by the school-district issuing the bonds to 5 per cent. of the assessed value of the taxable property lying and being within the limits of the district, as shown by the last assessment thereof for state and county purposes; and he was further bound to know what such. assessment in fact amounted to, the constitution pointing out to him the source from which he was bound to acquire the information, towit, the official assessment. The purchaser, therefore, knew, or was bound to know, that the school-district could not lawfully incur an indebtedness exceeding in round numbers $2,400. Had the amount of bonds offered to and purchased by the plaintiff or his vendor been below this limit, then it might be that, under the doctrines announced in Buchanan v. Litchfield, and other cases therein cited, the purchaser might have relied upon the recitals of the bond, if any such existed therein, as showing that the indebtedness did not exceed the constitutional limit, and was therefore valid; but that question does not arise under the facts of this case. The evidence shows that the plaintiff procured these bonds from one D. B. Knight. The latter testifies that he bought the bonds of one Carpenter; that he first bought three or four thousand dollars' worth, and then finding that more could be purchased, he caused an examination to be made into the condition of affairs, found that the district owed about $24,000; that the recitals in the bonds were all right, and then purchased the remainder of the bonds, swelling the aggregate up to 13 bonds of $1,000 each, 9 for $500 each, and 3 for $200 each.

Under these circumstances, no matter what the recitals were in the bonds, he knew that the indebtedness of the district largely exceeded the amount which the district could lawfully incur, and he was not, therefore, an innocent purchaser. The same is true of the plaintiff, and therefore, upon this ground, the defendant is not estopped from proving the fact that the bonds held by plaintiff are void by reason of being in excess of the constitutional limitation. In other words, the plaintiff and his vendor, Knight, were bound to know the limit of

the indebtedness which the school-district could lawfully incur, and, as the bonds offered for sale to them exceeded this limit, they then knew, or were bound to know, no matter what the recitals in the bonds set forth, that the school-district could not legally issue these bonds. Judgment must therefore be entered for defendant.

KNAPP v. GERSON.

(Circuit Court, S. D. New York. October 19, 1885.)

ATTACHMENT-DEFENDANT NOT NON-RESIDENT.

G., from 1860 to April, 1885, had a place of Business in New York city, and only resided in Paris during a portion of that time for the purpose of purchasing goods for his New York house. In the fall of 1884 he announced his intention to his friends of removing to New York, shipped a large part of his furniture from Paris to New York, and notified his landlord in Paris that he would not need his apartments there after the spring of 1885. On March 17, 1885, he arrived with his family and occupied rooms at a hotel in New York until May 25, 1885, from which date he lived with his wife and child at a house on East Eighty-sixth street, New York city, declaring his intention to make New York his permanent residence. Held, that G. was not a non-resident, and that an attachment issued on that ground should be vacated.

Motion to Vacate Attachment.

I. Albert Englehart and A. J. Dittenhoefer, for the motion.
Franklin Bien, opposed.

COXE, J. This is a motion to vacate an attachment granted on the twenty-second day of April, 1885, by the city court of New York, upon the ground that the defendant was a non-resident. The sole. question now to be determined is whether upon that day he was a resident of the city of New York. The defendant presents positive testimony that he is an American citizen; that from 1860 to April, 1885, he had a place of business in the city of New York, and though for many years prior to the latter date he had resided in Paris, it was only for the purpose of purchasing goods for his New York house. In the fall of 1884 he announced to a number of his acquaintances. in New York his purpose to remove there the following spring. In pursuance of this design he shipped a large portion of his furniture from Paris to New York, and notified his landlord in the former city that he would not require his apartments there after the spring of 1885. On the seventeenth day of March, 1885, he arrived from Europe with his family and occupied rooms at the Hotel Royal, on Fortieth street, until he could procure a suitable house. Since the twenty-fifth of May, 1885, he has lived with his wife and child at the house No. 4, East Eighty-sixth street, in the city of New York. He also declares that since the fall of 1884 he intended, and now intends, to make that city his permanent residence.

This testimony is supplemented, upon the question of intent, by the affidavits of several respectable merchants of New York city, who affirm that the defendant told them in the fall of 1884 that it was his purpose to remove there the ensuing spring and reside there permanently. These statements are uncontradicted. Opposed to them the plaintiff presents a number of facts and circumstances which, alone and unexplained, might lead to presumptions in support of the theory upon which the attachment is based. But speculation and conjecture should never be permitted to take the place of evidence. An inference, though plausible, must give way when confronted with direct and positive proof. At the time the attachment was granted the defendant and his family had been for over five weeks in the city of New York. He had no other domicile. He had given up his home in Paris. It would require an ingenuity of more than ordinary capacity to discover for the defendant a residence other than New York city on the twenty-second day of April, 1885.

The circumstances disclosed by the papers naturally incline the court to sustain the attachment, but with the weight of evidence so overwhelmingly in his favor there can be no doubt as to the right of the defendant to have it vacated. The motion is granted.

PATENTS-PRACTICE-HOLDING CASE OPEN FOR DECISION UPON APPEAL TAKEN IN ANOTHER SUIT.

Where two suits were brought for the infringement of a patent, in different circuits,-one against the manufacturer of the infringing device, and the other against a dealer,-and the former was decided in the defendant's favor, and the latter thereafter, after remaining pending over four years, was heard, and was submitted upon the same evidence taken in the other case, and the complainant asked that the case might be allowed to remain open until an appeal from the decree in the suit against the manufacturer could be heard and determined, held, that there being no special reasons for granting the request, the case could not be kept standing open any longer, and that the bill should be dismissed.

In Equity.

The defense in this case was substantially the same as in the Indiana case referred to below, and the same evidence was introduced in both cases.

Wood & Boyd, for complainant.

Stein & Peck, for defendant.

BREWER, J., (orally.) The bill in this case will be dismissed.

It

is an action against a dealer for infringement. The action has been

1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.