4. Where, by the laws of the State where the trial was, the execution of a written instrument cannot be questioned unless the defendant by a sworn plea denies its execution, and the only plea is the general issue, the objection that there was no evidence that the bonds were authorized to be issued by the defendants, or that the seal annexed was the seal of the defendants, was not valid.

5. The objection that there were no revenue stamps upon the bonds, as required by the Act of Congress, where the bill of exceptions is silent as to whether any or what stamps were on the bonds,

cannot be considered.

6. Where the constitutionality of the Act of the Legislature authorizing the issue of the bonds, by the municipality, has been examined by the Supreme Court of the State, and the Act has been held to be valid, such decision is binding upon this court. 7. Evidence in relation to the proposal for their issue offered by the defendant, but not offered as evidence of want of ownership or of good faith for value, or a knowledge of the defects alleged, was properly excluded.

[Nos. 80, 79.]

authority he claims to possess in regard to these bonds and coupons, by reason of his office as treasurer; neither do these instruments purport to have the seal of the "Court of County Com missioners of Chambers County," declared by statute to be a court of record, vested with exclusive jurisdiction in the municipal affairs of said County, and the only authority authorized by law to issue said bonds on behalf of said County. On the contrary, they bear the seal of the court of probate, another and distinct tribunal, having no authority whatever in the municipal affairs of said County, but exercising a totally different and distinct jurisdiction as a court of law, limited and defined by statute. Revised Code of Alabama, 1867, sec. 781. Mr. Samuel F. Rice, for defendants in error in No. 80:

States for the Middle District of Alabama. Suit was brought in each of these cases in the court below, by the defendants in error, upon certain bond coupons. Judgment having been given for the plaintiffs, the defendants sued out these writs of error.

The case is fully stated by the court. Mr. R. T. Merrick, for plaintiff in error in No. 80:

If, as the plea alleges, the bonds were issued without authority, and were void in law, and the plaintiffs were affected with knowledge of the invalidity by reason of their not being bona fide holders without notice, these were certainly valid grounds of defense which the defend ants should have been allowed to establish by testimony, if it could do so.

Whether the matters stated in the plea were or were not true in fact, was a question for the jury and not one of law proper, to be decided on demurrer.

The bonds and coupons were admitted in evidence, without any testimony whatever to show that they had been authorized to be issued by the County.

The corporate seals of the defendants, and the signatures of their authorized officers and agents, as well as their authority, must be proved before the Counties can be held liable.

But it is contended that the proof above indicated was not requisite, because the factum of the instrument sued upon was not put in is sue by the sworn plea of defendant.

Section 2,682, of the Code of 1867, provides that "All written instruments, the foundation of the suit, purporting to be signed by the defendant, his partner, agent or attorney in fact, must be received in evidence without proof of the execution, unless the execution thereof is denied by plea verified by affidavit.'

It is apparent that this provision does not apply to the instruments sued upon in this case, for these instruments do not purport to be signed by “the defendant,” nor by its agent," or attorney in fact"; they purport to be signed by one "John Appleby, Judge of Probate," without indicating in what relation said Appleby stands to said defendant, either personally or in his official capacity, and by one Jo. Grace, County Treasurer," without specifying of what county he is treasurer, or stating what

pp. 514, 520.

The constitutionality of that Act has been settled by the Supreme Court of Alabama, since its June Term, 1871.

Ex parte Selma and Gulf R. R. Co., 45 Ala., 696, 724; see, also, Lockhart v. Troy, 48 Ala., 579; Comrs. Court of Limestone Co. v. Rather, 48 Ala., 433.

Repeated decisions of the Supreme Court of the United States show that no such defenses as were disclosed in the primary court can be available against holders, for value of the coupons here sued upon, especially when, as here, the title of the holders accrued before the maturity of the bonds or coupons.

Grand Chute v. Winegar, 15 Wall., 355 (82 U. S., XXI., 170), and cases therein cited; Lynde v. The County, 16 Wall., 6 (83 U. S., XXI., 272); St. Joseph Township v. Rogers, 16 Wall., 644 (83 U. S., XXI., 328); Railroad Company v. Otoe, 16 Wall.,667 (83 Ú.S., XXI.,375).

The factum of no written instrument can be questioned unless the defendant has, by sworn plea, denied the execution of it. There was no such sworn plea here.

Sorelle v. Elmes, 6 Ala., 706; Lazarus v. Shearer, 2 Ala., 718.

(Opinion record is entitled in both Nos. 79 and 80.)

Mr. Justice Hunt delivered the opinion of the court:

Clews & Company brought their action at law, to procure payment for three hundred and seventy-two coupons attached to one hundred and fifty $1,000 bonds, issued by the County of Chambers.

The bonds purport to be issued in aid of a certain railway named in each of them, and to have been issued under the authority, and in pursuance of an Act of the Legislature of the State of Alabama, approved December 31, 1868.

The defendants pleaded the general issue and two special pleas. Special demurrers were in terposed to the special pleas and the demurrers were sustained. The cause was tried upon the general issue and a verdict was rendered and judgment given for the plaintiffs for the amount of their claim. The assignment alleges error upon the trial and in the judgment upon the demurrers.

The second plea alleges that the bonds were issued by the authorities of Chambers County, in payment of a subscription to the stock of the Eufala, Opelika, Oxford and Guntersville Railroad Company, under the Act of December 31, 1868, and that the said railroad company did not, prior to or since the issuing of the bonds by its president and a majority of its directors, propose to the defendants that they should take and subscribe for a certain amount of stock at a certain price per share and pay for the same in bonds of the County; that the bonds were issued without authority of law and are void, and that the plaintiffs are not bona fide holders thereof without notice.

This plea was demurred to specially, and the demurrer was sustained by the court. That the plea amounted to the general issue was not among the causes assigned for demurrer. We have held many times, in relation to bonds of this character, that where the persons appointed by law to certify that the preliminary requisites have been complied with, do so certify, that their certificate is conclusive in favor of the holder who, on the strength of such certificate, pays his money for the bonds without notice of the defect or illegality. Grand Chute v. Winegar, 15 Wall., 355 [82 U. S., XXI., 170]; Lynde v. Winnebago Co., 16 Wall., 6 [83 U. S., XXI., 272]; R. R. Co. v. Otoe Co., 16 Wall., 667 [83 U. S., XXI., 375]. We have never, however, held that such defect or irregularity could not be set up by the maker of the bonds where the suit upon them was brought by one who had not paid value for them, or who had notice of the defect or irregularity. In this lies the difficulty with the demurrer to the plea we are consider ing. The plea alleges in substance that no legal proposal was made to the County by the railroad in question. This proposal is undoubtedly a matter of substance. The statute authorizes a subscription and loan by the County only upon the basis of a proposal in writing, from the railroad company, made by the president and a majority of its directors, proposing that the County shall take an amount of its capital stock, to be named, at a certain price per share, and pay for the same in such bonds of the County as shall be specified in the proposal. This proposition is to be submitted to the qualified electors of the County for their acceptance or rejection. Notice of the terms and amount of the proposed subscription is required to be published. If a majority of the qualified voters shall vote for subscription, the proposition of the company shall be deemed to be accepted, and the subscription is authorized to be made in the manner and upon the terms set forth in the application, and the bonds may be issued in payment thereof. Stat. Ala., Dec. 31, 1868. The proposition is a necessary preliminary without which there can be no legal action in issuing the bonds. Where a plea avers that there was no such proposition, and avers also that the plaintiffs are not bona fide holders of the bonds without notice, a case is stated in which the validity of the bonds cannot be sustained by any holding of this court.

While we think there was error in the judgment upon this plea, it seems to have been a harmless one. The defendants had another plea which covered the same ground. In Grand Chute v. Winegar [supra], we held that where a plea

had been improperly stricken out, but no harm had resulted therefrom, that it was not cause for reversing the judgment.

The parties in this case went to trial on the plea of the general issue, without verification, and a jury was impaneled and sworn to try the issue as joined. The plaintiffs claimed to recover the amount of certain coupons "attached to ninety-three of the bonds of the said corporation." One of the bonds was set forth, purporting that the County of Chambers acknowledged its indebtedness for $1,000 as therein stated, the same being recited to be one of a series of bonds issued by the said County of Chambers under authority and in pursuance of an Act of the Legislature of the State of Alabama.

To this complaint the defendant answered that it did not undertake and promise in manner and form as the plaintiffs had complained against it, and of this it put itself upon the country, and the plaintiff did the like. This issue involved everything that was involved in the special plea. Neither of them involved the factum of the bonds. The special plea did not purport to deny their execution, but assuming such execution by the professed agents of the County, alleged that it was without authority of law and that the bands were void. The general issue did not involve it, as by the practice in Alabama the execution of a written instrument cannot be questioned unless the defendant by a sworn plea denies its execution. Clay, Dig., 340, sec. 152; Sorelle v. Elmes, 6 Ala., 706; Lazarus v. Shearer, 2 Ala., 718.

Both pleas did involve the question of authority. When the plaintiffs alleged that certain persons for the County of Chambers had issued their bonds, that they were the bonds of the corporation, they thereby alleged that the persons issuing them had power and authority to act for the County in issuing them. When the defendant denied that in fact it undertook and promised, as the plaintiffs in their complaint alleged, but not denying that in form its bonds were issued, it denied the authority of the persons who so professed to act in its behalf. The same issue in this respect was presented in the two pleas.

The issue of bona fides and notice was also presented by each of said pleas. The plaintiffs alleged in their complaint that they were the owners and holders of the bonds and coupons mentioned, and that they were purchased by them for value before any of them fell due." This allegation was specifically denied in the special plea, where it was averred that the plaintiffs were not bona fide holders without notice. It was also denied by the general issue, which denied the purchase and holding entirely, as well as the purchase for value before maturity. In assumpsit any matter which shows that the plaintiff never had a cause of action may be proved under the general issue. Sisson v. Willard, 25 Wend., 373; Brown v. Littlefield, 11 Wend., 467; Edson v. Weston, 7 Cow., 728.

The logical and orderly mode of a trial, where it was intended to investigate the issue we have been considering, would be this: to sustain their claim the plaintiffs produce the bonds and coupons. The execution not being put in issue, this establishes the plaintiff's case, and estab lishes presumptively that they are holders for

farther. See, however, Pugh v. McCormick, 14 Wall., 375 [81 U. S., XX., 791].

The constitutionality of the Act of the Legislature authorizing the issue of these bonds has been examined by the Supreme Court of Alabama, and the Act has been held to be valid. Ex parte R. R. Co., 45 Ala., 696; Lockhart v. Troy, 48 Ala., 579; Comrs. Ct. of Limestone Co. v. Rather, 48 Ala., 433.

These decisions are binding upon us, and we see no occasion to controvert them.

From the evidence given on the trial it would appear that such was the understanding of the parties. This is shown by what is said in the deposition of Mr. Clews, which was read without objection, wherein he stated, "Said ninetythree bonds of the County of Chambers were re ceived by my said firm in good faith and for value paid, both I and my firm relying upon the good faith and credit of said County of Chambers, that said bonds and the coupons thereto attached would be paid according to the tenor and effect thereof."

The defendant also proved by the president of the railroad company, That the plaintiffs got the bonds in April, 1870, from J. C. Stanton, to whom said bonds had been transferred on account of advances made by Stanton after the election in said County of Chambers, as to the subscription to the stock of said railroad company, but before the actual issue of said bonds, and on an agreement that said bonds should be transferred when issued. The plaintiff obtained said bonds in April, 1870, under advances made at that time and an agreement to make future advances which they have done to about $100,000, and hold said bonds as collateral security for such advances."

The third plea is not attempted to be maintained in the appellant's brief, and we do not, therefore, discuss it.

On the trial the plaintiffs produced the bonds and coupons and offered to read the same in evidence. To this the defendants objected, for the reason that there was no evidence that the bonds were authorized to be issued by the defendants, and that there was no evidence that the seal annexed was the seal of the probate judge or of the defendants. We have already considered this point, and have shown that the objection was not valid for either of the reasons mentioned. There was no issue upon the execution of the bonds.

It was further objected that there was no revenue stamp upon the bonds, as required by the Act of Congress. We have no knowledge whether there were stamps of any amount or to what amount upon these papers. The bill of exceptions is silent upon that point. Its assumption in an objection, as a ground of objection, is no evidence of the fact. R. R. Co. v. Gladmon, 15 Wall., 401 [82 U. S., XXI., 114]. The fact must appear by the record as an existing fact in the case. If the objector wishes the point to be passed upon by the appellate court, he must take care that the fact shall sufficiently appear in the record. We do not discuss the question

meaning to inquire, as we understand, whether evidence of want of ownership or of good faith for value, or a knowledge of the defects alleged was intended to be offered. The question was answered in the negative, and the evidence was excluded. We think this ruling was right.

None of the objections are well taken, and the judgment must be affirmed.

The case of The County of Lee, plaintiff in error, v. Clews, defendant (No. 79) involved the same questions and is decided by the same principles.

The judgment is affirmed.

HENRY MICHAELS ET AL. Appts.,

v.

HOYT POST, Assignee in Bankruptcy of HARLOW E. MACARY and HENRY S. MACARY.

(See S. C., 21 Wall., 398-429.)

Release obtained by fraud-evidence of-conclusive decree-fraudulent decree-impeachment of bankrupt decree-fraudulent preference.

1. When the discharge of a debt is procured by gross deception, misrepresentation and fraud, it is null and void, and such debt may be made the basis of a petition to declare and adjudgethe debtor a bankrupt.

2. Where it is objected that the decree adjudging a debtor to be a bankrupt was procured by fraud, such defects should be specifically pointed out; and if they consist of matters of fact, the evidence to support the objection should be the subject of distinct reference in the assignment of errors.

3. A decree of the district court in a bankruptcy case is conclusive of the fact decreed, except when it is called in question in the court where it was entered, or by some direct proceeding in some other court of competent jurisdiction.

4. Whenever a judgment or decree is procured through the fraud of either of the parties or by the collusion of both, for the purpose of defrauding some third person, such third person may escape from the injury thus attempted, by showing, even in a collateral proceeding, the fraud or collusion by which the judgment was obtained. 5. But a judgment is no more liable to collateral impeachment in proceedings under the Bankrupt Act, except for the purpose of showing that the avoiding the equal distribution of the debtor's esjudgment in question was designed as a means of tate among his creditors, than it is to such impeachment in the court where it was rendered. verity, and are no more liable to be impeached col6. Decrees in bankruptcy are entitled to the same laterally than any other judgments or decrees rendered by courts possessing general jurisdiction. 7. Creditors are forbidden to receive a preference in fraud of the Bankrupt Act from a debtor; and if the debtor shall be adjudged a bankrupt, the assignee may recover back the money or other propferred contrary to that Act, provided that the pererty so paid, conveyed, sold, assigned or transson receiving such payment or conveyance had