James Moore Wayne

“ But it is now said, that such of the county bonds as were sold by the president and directors of the railroad at a discount are 'avoidable' in the hands of the purchasers of them, because the act for making and paying them to the company declares that the company shall not sell them 'at less than their par value.' Such are the words of the statute; and it was proved and conceded by the plaintiff that they were sold at a discount of twenty-five per cent. ”

“ The power to issue bonds is one thing; the exercise of that power is another. If there were power in the county to issue bonds, then the agreement of the parties might make bonds a manner of payment, but it is preposterous to say that the power was given merely because it was assumed. ”

“ Kennedy, (Brightley's Reports, 332,) which was taken to the Supreme Court and affirmed, is, that a municipal corporation, under a power to make such by-laws as shall be necessary to 'promote the peace, good order, benefit, and advantage of the borough,' and to assess such taxes as may be necessary for carrying the same into effect, is not authorized to levy a tax for the payment of a part of the expense to be incurred by a railroad company in bringing the line of their road nearer to the town than it had been originally located. ”

“ The Supreme Court of Pennsylvania occupies a peculiar position upon the question of the negotiability of securities similar to the bonds in controversy. In the case of Carr vs. Le Fever, (3 Casey, 413.) Mr. Chief Justice Lewis, in giving the opinion of the court, says: 'We do not desire to have any doubt on the question whether the holder of bonds issued by a corporation, payable to bearer, may maintain an action on them in his own name. Such bonds are not strictly negotiable under the law merchant, as are promissory notes and bills of exchange. ”

“ The power to issue the bonds in question is not given to the county by the act incorporating the railroad company. This is a power which must be given in the most direct and unmistakable manner, either in express words or by necessary implication. A doubtful charter does not exist, because whatever is doubtful is decisively certain against the corporation. ”

“ On the part of the defendant, it was not only proved, but it was conceded by the plaintiff to be true, that the presentment or recommendation of the grand jury was made before the railroad company was organized; that the subscription by the commissioners was made before the railroad was located, and that, in fact, the railroad or any part of it never was located within the limits of Lawrence county. ”

“ That this language, although general and somewhat indefinite, will include the power as exercised by the commissioners of Lawrence county in issuing the bonds in question in this case, and is intended so to do, hardly seems to admit of doubt. No one supposed that any county or municipal corporation could subscribe to the stock of any railroad company in any other way than by borrowing money upon its credit. ”

“ An instrument executed and delivered by the obligor, signed and sealed by him, not legally assignable in any but the one way provided by the act of 1715, that is, under the hand and seal of the obligee, before two credible witnesses, and when assigned, subject to all the equities then existing between the original parties:-such is a bond in law, in equity, and in the popular sense of the word. ”

“ It would be so understood by the members of the Legislature when they voted for the bill. It is a term of art, too; and terms of art are to be understood in their technical sense when used in a statute. Brockett vs. Ohio and Pennsylvania Railroad Co., (2 Harris, 143;) ”

“ And the conclusion is strengthened by consulting the sixth section of the act, giving to the company the right to pay an interest of six per cent. per annum to the stockholders, on instalments for subscription paid by them, until the railroad should be finished ”