Opinion of Mr. Justice Hunt, concurring in the judgment. at the time of such sale (that is their reissue and sale), they will be in law payable on demand, and are not to be deemed dishonored so as to let in defences between the company and a subsequent holder of the paper until after the lapse of a reasonable time after their reissue for the making of such demand." All of the checks in question had been presented for payment. Payment was not made, but the time of presentation was noted in each instance, and interest was allowed upon the check from that date. The presentation and neglect to pay had been made in some instances nearly four months before such purchase, and the time of such presentation was noted upon the check by the city treasurer, and it bore interest from that date. A check requires no presentment for acceptance as distinguished from presentment for payment. If once presented and payment refused, it is dishonored.* To constitute a bonâ fide holder of a note or check it is necessary-1. That it should have been received before maturity; 2. That a valuable consideration should have been paid for it; and 3. That it should have been taken without knowledge of the defences sought to be made. Whatever defences could properly be made to these checks in the hands of the original holder could be made while they were in the plaintiff's hands. He was not a bona file bolder. Evidence to show fraud or corruption, or want of authority in their issue, should have been received at the circuit, and in excluding the offers made on that subject and in the charge in reference to the evidence given, I think there was error. Thus, the Sax check, it was alleged, had been issued without authority, hypothecated to secure a note of the city inade without authority, and sold in violation of the terms of the hypothecation. It was open to this defence in the hands of the plaintiff. In the case of another check it was offered to be proved that it was issued without authority and upon a corrupt contract, but the evidence was excluded. Chitty on Bills, 272, m. Opinion of Mr. Justice Hunt, concurring in the judgment. The court in another place charged the jury that "if it is the usage to reissue the securities by sale in the market, they will, when so sold, be obligatory upon the corporation." I cannot think that it is lawful for a municipal corporation to issue its checks, pay them, reissue them, and repeat this operation as often as its couvenience requires. This comes too near the character of a bank of issue and deposit. In the particulars following, my views are different from those expressed in the opinion of Justice Bradley. I hold it to be well established by the authorities that a municipal corporation may borrow money for the legitimate use of the corporation, and that it may issue its notes for the same unless expressly prohibited by its charter or by statute from so doing. The proposition that it cannot borrow money, unless by its charter expressly authorized to do so, is, in my opinion, unsustained by sound authority.* That the securities thus issued by municipal corporations are subject to the rules of commercial law when held by a bona fide holder has been repeatedly held by this court. Every recent volume of its reports contains authorities to this effect. The authorities of the State of Tennessee sustain these general views.† Checks of the city were issued for the payment of particular debts, and when paid should, no doubt, under ordinary circumstances, have been cancelled. A reissue of a paid check is an extraordinary proceeding. If done by an officer without the authority of the common council, it is a gross violation of duty. If with that authority, it is a loose prac tice, liable to abuse. Whether such reissue would be an act of positive illegality, ultra vires merely, or a bad practice simply, it is not necessary to decide. In neither case can the city repudiate the transaction. It is upon this point * Whitewater Valley Canal Company v. Vallette, 21 Howard, 424, and see 1 Dillon on Municipal Corporations, 82, 83, and notes, where the authorities are collected both from the State courts and from this court † Adams v. The Memphis and Little Rock Railroad Company, 2 Coldwell, 615. Opinion of Mr. Justice Hunt, concurring in the judgment. chiefly that I desire to express my dissent from the opinion just delivered. As to all the checks in question, the record shows that they were paid over by the collector of city taxes to the treasurer of the board of education, that they were by him sold to McCrory, at eighty cents on the dollar, and that the proceeds of such sales were applied to the uses of the city by an immediate payment of the wages due to the teachers in the public schools of the city. The city received this money upon the reissue of its checks. So far as McCrory is concerned, or the plaintiff who succeeds to his rights, the city now has the money in its treasury. It is a general rule, applicable to all persons and corporations, and is a dictate of plain honesty, that whoever, knowing the facts of the case, retains and uses money received by an agent for his account, cannot repudiate the contract. on which it is received.* Putting this transaction most strongly against the plaintiff, by assuming that this reissue was not ultra vires merely, but was positively prohibited by law, the city is still responsible to the holder of the checks for the money it has received and still retains. Conceding the illegal contract to be void, as forbidden by the legisla ture, it is to be remembered that the prohibition is upon the city only, and not upon the person dealing with it; the illegality is on the part of the city, and not of the person receiving the checks. The contract may well be void as to the city, and its officers punishable for the offence of making it, and yet it may stand in favor of innocent persons not within the prohibition. Such was the decision in Tracy v. Tul mage,† in Curtis v. Leavitt, and in The Oneida Bank v. The Ontario Bank.§ The latter case was briefly this: The general banking law of New York prohibited the issuance by a bank of a certificate of deposit payable on time. The cashier of the Ontario Bank received $5000 in cash from one Perry, and delivered to him a certificate of deposit post-dated about four weeks, for the purpose of raising funds for the bank. *Bissell v. City of Jeffersonville, 21 Howard, 300; Sedgwick on Statutory and Constitutional Law, 90. 14 New York, 162. 15 Id. 9. § 21 Id. 490. Statement of the case. This draft Perry transferred to the Oneida Bank, who brought suit upon it. It was held, assuming this draft to be void, that the party making the contract could reject the security and recover the money or value which he advanced on receiving it. It was held further, that the right of action to recover this money passed to the Oneida Bank upon the transfer of the certificate to them. The plaintiff recovered the money advanced to the bank upon the illegal certificate. Both of these principles were held with equal distinctuess in Tracy v. Tulmage, supra. They seem to me to be decisive of the right of the plaintiff to recover upon the checks, regarding them in their most unfavorable aspect, the amount of money advanced to and yet held by the city. For the reasons thus presented, I concur in the reversal of the judgment. JUDGMENT REVERSED, and a VENIRE DE NOVO AWARded. Mr. Justice CLIFFORD, dissenting: I dissent from the opinion and judgment in this case, chiefly upon two grounds: (1) Because I think the opinion restricts quite too much the powers of municipal corporations; and (2), because the doctrines of the opinion, as applied to negotiable securities of a commercial character, are repugnant to the well-settled rules of law established by the repeated decisions of this court. Mr. Justice SWAYNE and Mr. Justice STRONG also dissented. NOTE. Ar the same time with the preceding case, and by the same counsel, was argued the case of THE MAYOR v. LINDSEY. In error to the same Circuit Court, for the Middle District of Tennessee. In this case Lindsey sued the mayor of Nashville Statement of the case. on certain checks, similar in all respects, in form and inception, to the check issued to Julius Sax, and mentioned more particularly supra, p. 472. The checks now sued on had been pledged as collateral security for a loan of less amount than the checks pledged, and were sold soon after being pledged, and before the loan fell due; the transaction being effected by the chairman of the finance committee of the city council without other authority. Such at least was the tendency of the evidence, and the judge charged substantially as in the preceding case of Ray. Mr. Justice BRADLEY announced the judgment of this court, REVERSING THE JUDGMENT BELOW, with directions to award a VENIRE DE NOVO. UNITED STATES v. ARWO. Under the act of March 3d, 1825, 22, by which an assault on a person upon the high seas with a dangerous weapon is made an offence against the United States, and the trial of the offence is to be "in the district where the offender is apprehended, OR into which he may first be brought," a person is triable in the Southern District of New York who, on a vessel owned by citizens of the United States, has committed on the high seas the offence specified; has been then put in irons for safe-keeping has, on the arrival of the vessel at anchorage at the lower quarantine in the Eastern District of New York, been delivered to officers of the State of New York, in order that he may be forthcoming, &c.; and has been by them carried into the Southern District and there delivered to the marshal of the United States for that district, to whom a warrant to apprehend and bring him to justice was first issued. ON certificate of division in opinion from the Southern District of New York. A statute of March 3d, 1825,* makes an assault committed on the high seas with a deadly weapon a crime against the United States, and the act is made cognizable in virtue of prior law,t"in the district where the offender is apprehended OR into which he may first be brought." |