Page:Federal Reporter, 1st Series, Volume 1.djvu/366

868 FEDERAL BBFOBTBB. �recovery; but that the plaintiff would be remitted to hia count for money had and received. �The demanda embraced in counts from 12 to 17, incluflive, are on bonds issued in payment for subscriptiofl to gravel roads, held by Judge Dillon to be a lawful exercise of munic- ipal authority, from which view I dissented. As his ruling must prevail, the only question open under this head is as to two of said bonds, whicb the evidence shows were issued on renewal, not for part payment of said subscription alone, but for an additional sum also, then borrowed for general uses of the city. It bas been contended that said bonds, tbough invalid, pro tanto, as to the amount in excess of what pertained to said subscription, should be held valid as to the amount included therein for which the city had authority to issue negotiable securities. If this were so, a suit on a specialty would necessarily require an examination into the various items of the consideration therefor, and thus, instead of proceeding as on a specialty, with the legal presumption arising therefrom, cause the single demand under one legal head to be split into an indefinite number of demands under various heads. �As to those two bonds of this laat named series, therefore, the recovery must be had under the count for money had and received; while on the other bonds the recovery will be had as on specialties, according, to their tenor. The counts from 18 to 27, inclusive, are also on subscription bonds. To these bonds it is objected that the required assent of the voters was not obtained, because, though numerically the needed vote was given, yet the voters were not registered, nor did they take the oath prescribed by the state constitution of 1865. It was conceded, but if not, such is the fa-ct, that the registration clause alluded to was not then in force. No doubt the prerequisite of the oath for qualification to vote was then in operation. Whether such oath was duly admin- istered or not to each voter is doubtful, in the light of the testimony ; and if not administered to ail, how many voters failed to take it is still more uncertain. It seems that the vote was nearly unanimoua in favor of the proposition; so ��� �