to the schooner on the part of the appellants, and that their title shall be thereby remitted to the appellees. The decree of the Circuit Court is reversed, and the case will be remanded to that court with directions to enter a decree in conformity to this opinion. 81*] *OLIVER T. MORGAN, Executor of the Succession of Oliver J. Morgan, Deceased, Piff. in Err., v. WILLIAM GAY. (See S. C., 19 Wall., 81-83.) Assignee of bill of exchange, when may bring action-pleadings-waiver of jury trial. 1. An assignee of inland bills of exchange, under the 11th section of the Judiciary Act of 1789, is not entitled to maintain his action in the circuit court, unless a suit might have been prosecuted in such court to recover the contents of the bills if no assignment had been made. 2. The pleadings must show the citizenship of the indorser of the bills, and that it be such as to give the court jurisdiction of the case. 3. Without any written agreement to waive a Jury trial, and in the absence of the defendant's counsel, it is not competent for the court to try the issue without the intervention of a jury. This action was commenced in the court be court has only a limited jurisdiction, it mu appear affirmatively that it may take cogn zance *of the controversy between the [8 parties. Turner v. Enrille, 4 Dall., 7. And i Turner v. Bk., 4 Dall., 8, it was distinctly rule that when an action upon a promissory note brought in a Federal Court by an indorse against the maker, not only the parties to th suit, but also the citizenship of the payee, an the indorser, must be averred in the record t be such as to give the court jurisdiction. Th same rule was asserted in Montalet v. Murray 4 Cranch, 46, in Mollan v. Torrance, 9 Wheat 537, and in Gibson v. Chew, 16 Pet., 315. Th judgment must, therefore, be reversed and th cause sent back, that amendment may be mad in the pleadings showing the citizenship of th indorser of the bills, if it be such as to give th court jurisdiction of the case. We may notice another error which will doubtless, be avoided should there be a secon trial. Issues of fact appear to have been mad up which were determined by the court in the absence of the defendant's counsel, and with out any written agreement to waive a jury trial. This was irregular. In the absence o such an agreement, and of the defendant's coun sel, it was not competent for the court to try the issue without the intervention of a jury Kearney v. Case, 12 Wall., 275, 20 L. ed., 395 The judgment is reversed, and the cause is remanded for further proceedings, in accordance with this opinion. low by Gay. The case is sufficiently stated in THE TOWN OF QUEENSBURY, Plff. in Err., the opinion. Messrs. J. A. Campbell and D. G. Campbell, for plaintiff in error. No counsel appeared for the defendant in error. Mr. Justice Strong delivered the opinion of the court: The plaintiff in the court below sued as indorsee of three several inland bills of exchange, drawn or accepted by Oliver J. Morgan, the decedent. Two of the bills were indorsed by the payees, and the third was also indorsed by its payee, and by other indorsers. v. ISAAC B. CULVER. (See 8. C., 19 Wall., 83–94.) Power of municipalities to aid railroads—donation to town liable for acts of its commissioners delivery of bonds. 1. A State Legislature may authorize a munic!pal corporation to aid in the construction of a railroad, in the absence of any express constitutional prohibition of such legislative action. 2. A municipal corporation may be empowered to donate its bonds to a railroad company and col lect taxes for the payment of the bonds, if ap proved by a popular vote. 3. Although coupons do not purport to be and were not made in the name of the town, the town is liable to an action at law for the failure to pay them, when made and issued by commissioners des ignated as agents of the town by the statute. 4. It is no objection to a recovery that no money was received for them by the commissioners, and that they were delivered directly to the railroad company, where it appears that delivery of the bonds to the railroad company was contemplated and authorized. [No. 207.] The plaintiff is an assignee of the bills within the meaning of the 11th section of the Judiciary Act of 1789, and by the express provisions of the section is not entitled to maintain his action in the circuit court, unless a suit might have been prosecuted in such court to recover the contents of the bills if no assignment had been made. But the petition does not show that the indorsers through whom the plaintiff claims were not citizens of Louisiana at the time the suit was brought. It is true, the citizenship of the defendant is averred to have been in Louisiana, and that of the plaintiff in Kentucky, but there is no averment of the citi-IN ERROR to the Circuit Court of the United zenship of the payees of the bills, or of the zenship of the subsequent indorsers. For aught that appears in the record, they may also be citizens of Louisiana and, therefore, incapable of suing in the Circuit Court for that district to recover the contents of the bill. As that NOTE.-Right to trial by jury in Federal Courtsee notes, 5 C. C, A. 603; 26 C. C. A. 528. Argued Jan. 23, 1874. Decided Mar. 3, 1874 States for the Northern District of New York. This was an action of assumpsit, brought in the court below by Culver, against the plaintiff in error, one of the Towns of the County of Warren, N. Y., upon certain interest warrants. NOTE. Suits on coupons detached from bondssee note to Kenosha v. Lamson, 19 L. ed. U. S. 725. The defendant pleaded non assumpsit, and upon the trial the court ordered a verdict for the plaintiff. A motion for a new trial was made and denied, and the case brought to this court by writ of error. In May, 1867, the New York Legislature passed an Act, known as chapter 919 of the Laws of 1867, vol. 2, p. 2294. The 1st section provides for the appointment of three Commissioners by the county judge, on the petition of twelve freeholders, to carry the Act into effect. The Supervisor of Queensbury and the President of the Board of Trustees of Glens Falls, were also to be commissioners ex officio. Sections 2, 3 and 4 were as follows: sum or sums of money as shall have been reported to the said Board of Supervisors, by the said Commissioners authorized by this Act, to be necessary, and the same, when collected, shall be paid to such Commissioners, and by them be applied to the payment of the bonds. with the interest. Section 5 provides that no money shall be borrowed until the question shall have been submitted to the taxable electors and affirmatively determined. The section provides for a special election, notice of the same, the appointment of inspectors, etc. Section 6 provides for the opening of subscription books. Section 7 provides for bonds of the Commissioners. Section 8 provides that the Company should not charge over six cents per mile for passengers. Section 9. This Act shall take effect immediately. Section 2. It shall be lawful, as hereinafter provided, for the said Commissioners to borrow, on the faith and credit of the Town of Queensbury, $100,000, for a term not exceeding ten years from the date thereof, at a rate of interest not exceeding seven per cent. per annum, and 85*] to execute *bonds therefor, under their respective seals and the signature of the town clerk. The bonds so to be executed may be in such sum and payable at such places, not exceeding ten years, and in such form as the said Commissioners shall deem expedient, and dur-pointment of the Commissioners; the order ing the time they run. Plaintiff gave evidence to prove the election under the law; the certificate of the inspectors of election, that a majority of the votes were cast for the railroad; the petition for the ap appointing Commissioners; the oaths of office of the Commissioners, their bonds and the approval of the bonds; the proof to the Commissioners that $100,000 had been subscribed and paid in, and that more than $100,000 had been actually expended in the construction of the road; the security given by the Company for the completion of the road, that the road was completed and in operation before any of the bonds or coupons became due; the meeting of the Commissioners and the issuing of the bonds with coupons attached. Section 3. The said Commissioners may dispose of such bonds to such persons or Corporation, and upon such terms, as they shall deem most advantageous for the Town, but not for less than par; and the money which shall be so raised, shall be donated to such railroad corporations or association as has now, or shall hereafter file articles of association to build and operate a railroad from the Village of Glens Falls to the Saratoga & Whitehall Railroad, and shall be employed and used in the construction of the said railroad, its buildings and necessary No money was raised by the Commissioners appurtenances, and for no other purpose what- upon the instruments in question, or the bonds ever. For the completion of said road, and the to which they were attached, but the bonds and expenditure of the sum so donated by said interest warrants were delivered by the ComTown, said Corporation shall give full and ade- missioners to the Railroad Corporation. Culver quate security to said Commissioners, and for was one of the contractors for the construction the more effectual enforcement of this Act, the of the road, and it appeared that he received Commissioners shall not pay over any money the bonds and coupons from the railroad on the or bonds to the said Railroad Corporation, un-construction contract. Neither of the bonds til they have been furnished with satisfactory issued by the Commissioners was given in evidence that the sum of $100,000 shall have evidence. been subscribed and paid in, and actually expended in the construction and building of the said road; and this Act shall not be construed so as to make the said Town a party to this Corporation; and the said Town shall not be taxed hereafter for any appropriation required for said road, besides the amount donated in the 2d and 3d sections of this Act, but such additional amount shall be raised by the said Corporation. Sec. 4. The Commissioners authorized by this Act shall report annually to the Board of Supervisors of the County of Warren, at the commencement of their regular annual session in each year, the amount required to pay the principal and the interest on the bonds authorized to be issued under and by virtue of this Act, and it shall be and is hereby made the duty of the Board of Supervisors, and they are hereby authorized and required to cause to be assessed, levied and collected, of the real and personal property of said Town of Queensbury, at the same time and in the same manner as other taxes are assessed, levied and collected, such Mr. Francis Kernan, for plaintiff in error: The Town of Queensbury is one of the political subdivisions of the State of New York. 3 R. S. N. Y., 1st ed., pp. 58, 59; 5th ed. of 1 R. S., 221, 223. It is a public Corporation, for certain special and limited purposes only. 1 R. S. of N. Y., 1st ed., p. 337; 1 R. S. of N. Y., 5th ed., p. 813; Denton v. Jackson, 2 Johns. Ch., 325; Lorillard v. Town of Monroe, 11 N. Y., 393; 2 Kent, Com., 275 (marg.). The Town had no power or authority to incur indebtedness or issue securities to aid in constructing a railroad, unless expressly authorized to do so by statute. See R. S., supra; Thompson v. Lee Co., 3 Wall., 327, 18 L. ed., 177; Police Jury v. Britton, 15 Wall., 566, 21 L. ed., 251; Marsh v. Fulton Co., 10 Wall., 676, 19 L. ed., 1040; Turnpike Corp. v. Gould, 6 Mass., 44. II. Conceding the statute relied upon by the plaintiff below to be valid, he was not entitled to recover in this action, and the judgment should be reversed. 1. The action is assumpsit. The instruments on which it is brought do not purport to be, and were not made by and in the name of the Town. None of the alleged bonds were given in evidence, nor was there evidence of their form and substance. There was no evidence of any promise, by the Town, to pay the amount sought to be recovered, and none from which a promise by the Town could be implied. 2. The Town is not liable in its corporate capacity to an action at law for the non-payment of the instruments, made and issued by the Commissioners. The statute which authorized the money to be borrowed on the credit of the Town, and instruments in question to be issued prescribes how they shall be paid; and the holder must pursue the remedy prescribed. 2 L. of N. Y., 1867, 2294, secs. 2, 4; Brady v. Supervisors of N. Y., 2 Sandf., 460; Brady v. Supervisors of N. Y., 10 N. Y., 260; Martin v. Board of Supervisors, 29 N. Y., 645. The power and duty to raise the money to pay these obligations is, by the statute authorizing them, vested in others than the Town or its officers. 2. The general rule of law is, that where a statute creates a right or imposes a duty which did not exist before, and prescribes a remedy, that remedy must be pursued. Edwards v. Davis, 16 Johns., 281; Almy v. Harris, 5 Johns., 175; Stafford v. Ingersoll, 3 Hill (N. Y.), 39. The remedy prescribed by the statute is adequate, and the only one which can be made efficacious. If the Commissioners or the Board of Supervisors omit to perform the duty enjoined upon them respectively, this gives no right of action against the Town. It is not the duty of the Town, nor have the town officers any power to compel them to act. The Town is not liable to an action for their default. Lorillard v. Town of Monroe, 11 N. Y. 392. The Town has not omitted to perform any act or duty enjoined upon it. How, then, can it be held liable in this action at law? III. In 1868, before the making of the instruments in question, an Act of the Legislature of New York, precisely like the Act under consideration was held to be void by the Supreme Court of that State. That adjudication has never been reversed or questioned. In the Matter of Swcet v. Hulbert, 51 Barb. 312. This adjudication by the Supreme Court of New York as to the validity of the local statute in question, is entitled to controlling weight in this court. This court will adopt and follow the decisions of the state courts in the construction of their own constitutions and statutes, no question being involved which is in conflict with the Constitution or laws of the United States. Nesmith v. Sheldon, 7 How., 812; Webster v. Cooper, 14 How., 488; Amey v. Mayor, etc., 24 How., 364, 16 L. ed., 614; Leffingwell v. Warren, 2 Black, 599, 17 L. ed., 261. IV. The Act of the Legislature in question is void. It is unauthorized by the Constitution of the State of New York. By the Constitution, the Legislative power of the State only is vested in the Senate and Assembly. Const., 1846, art. III., sec. 1. | This power does not authorize property to b taken from the owner and donated to anothe by legislative enactment. Without reference t express constitutional restrictions, such an en actment is void. Bowman v. Middleton, 1 Bay, 252; Calder v Bull, 3 Dall., 386; Denny v. Mattoon, 2 Aller (Mass.), 361; De Chastellux v. Fairchild, 1 Pa., 18; State v. Fleming, 7 Humph., 152 Wynehamer v. People, 13 N. Y., 390; Taylor v Porter, 4 Hill., 144, per Bronson, J.; Wilkin son v. Leland, 2 Pet., 657; see, also, Bradshaw v. Rodgers, 20 Johns. N. Y., 103. To hold that the mere Act of the Legislatur which deprives the citizen of rights of property is "due process of law," or "the law of the land," renders these provisions of the Constitu tion nugatory as against the arbitrary will of the Legislature, and is contrary to the settled meaning of these terms. Wynehamer v. People, 13 N. Y., 392-396; Taylor v. Porter, 4 Hill (N. Y.), 140, and cases cited; Norman v. Heist, 5 Watts & S., 171, Gibson, J. Conceding that this taking of property was for public use, there was no compensation, and none was to be made. This law requires it to be a donation. This is an express violation of provisions of the Constitution. Art. 1, secs. 6, 7, supra. The State had not power to compel the owners of land, situate in this Town and necessary for the track of the proposed railroad, to donate the same to the Company. Bradshaw v. Rodgers, supra. This Act of the Legislature cannot, it is respectfully submitted, be sustained as an exercise of the taxing power. Taxes are moneys exacted from individuals and corporations by Government for public use, for the use of the State. It is believed that all the adjudications are to the effect that a public use is essential to the validity of a tax, and that a law, directing a tax for any other than a public use, is void. Sharpless v. Mayor of Phil., 21 Pa., 167; People v. Township of Salem, 9 Am. Law Jour., 487, and cases cited; see, also, Allen v. Inhab. of Jay, 12 Am. Law Reg. (N. S.), 481, and note to same by Redfield. That the donee is a private Corporation cannot be successfully disputed. It is to be composed of stockholders, and the railroad to be constructed is to be operated for their individual profit. Ang. & Ames, Corp., secs. 30-36; Bk. of U. S. v. Planters' Bank, 9 Wheat., 904; Bonaparte v. Camden & Amb. R. Co., 1 Bald., 222; Bk. v. Knoop, 16 How., 380, per McLean, J. The business of the Corporation is to be that of a common carrier of persons and property, for hire. As such, it is liable at common law to certain duties and responsibilities, and doubtless may be subjected by statute to others. But its road is private property, and its business is private, and to be carried on for the private gain of its stockholders. Presbyterian Society v. R. Co., 3 Hill, 567, per Nelson, J.; Williams v. R. Co., 16 N. Y., 97. The fact that the Legislature, by virtue of the right of eminent domain, has authorize a railroad corporation to take land necessary for the construction of its road on making compensation therefor to the owner, does not aid the argument in favor of the valid ity of the law in question. An Act of the Legislature requiring the owner to donate the land, or authorizing the company to take it without compensation, would be void. Bloodgood v. R. Co., 18 Wend., 9, 12 Am. Law Reg., supra, 492; Bk. v. Knoop, supra. It is respectfully submitted that the Constitution of New York protects the citizens from legislative enactments like that in question. If not, the minority hold their property at the will of the majority. Messrs. Hughes & Northrup and J. P. Stockton, for defendant in error: Defendant moved for a nonsuit upon these grounds: First. The evidence did not establish any liability on the part of the defendant for or upon the instruments or coupons given in the evidence. Second. That the evidence did not establish that the Commissioners were authorized by said chapter 919 of the Laws of New York of 1867, to make or issue said coupons or instruments. Third. That there is no evidence of any understanding or promise by the defendant to pay the amount mentioned in the coupons or instruments; that these instruments do not purport to be made or issued by or on behalf of the defendants, and that the defendant is not liable for or upon the same. Fourth. That the defendant is not liable in an action at law for or upon the coupons or instruments; that the only remedy to enforce the payment by the defendant of the amount sought to be recovered, is to compel the amount to be assessed, collected and paid over as specified in the 4th section of said chapter 919. Fifth. That the Commissioners did not dispose of the bonds or raise the money thereon at not less than par; that there was no money received for or upon the same by the Commissioners; that they, in violation of said chapter, delivered these coupons or instruments, and any bonds to which they were attached, to the Railroad Company, and did not raise any money upon the same. Sixth. That the said law, chapter 919, is in violation of the Constitution of the State of New York, and of the United States, and is, therefore, invalid, and did not authorize the creation of any debt or obligation against or upon the defendant. Plaintiff proved all the matters required by the law to be done before the issuing of the bonds by the Commissioners. The bonds were to be issued "in such form as the Commissioners shall deem expedient." The Commissioners had determined the form of the bonds, and a part of the bonds were the coupons. The coupons on which this action is brought are commercial paper. Mercer Co. v. Hackett, 1 Wall., 95, 17 L. ed., 550; Gelpcke v. Dubuque, 1 Wall., 176, 17 L. ed. 520; Thompson v. Lee Co., 3 Wall., 327, 18 L. ed., 177; White v. Vt. and Mass. R. Co., 21 How., 575, 16 L. ed., 221; Lexington v. Butler, 14 Wall., 295, 20 L. ed., 812. The plaintiff is a bona fide holder for value before maturity and without notice of any defect of or defense to the coupons. They are presumed to have been received by plaintiff before maturity and for value and without notice. Goodman v. Simonds, 20 How., 343, 15 L. ed., 934; Bronson v. R. Co., 2 Wall., 283, 17 L. ed., 725; Lexington v. Butler, supra. If coupons are sought to be impeached, they must be impeached by specific allegations distinctly proved. Bronson v. R. R. Co., supra. The intent of the statute is to control; the plain intention of the Legislature is to be so construed as to carry out that intention, even if it be contrary to the letter of the statute. Holmes v. Carley, 31 N. Y., 289; People v. Potter, 47 N. Y., 379. That the bonds were not sold for cash, is no defense to a bona fide holder. Mercer Co. v. Hackett, supra; Rogers v. Burlington, 3 Wall., 667, 18 L. ed., 831. Nor that the power to execute bonds or coupons was not properly executed; Rogers v. Burlington, supra. Nor any defects in preliminary proceedings; Mercer Co. v. Hackett, supra; Van Hostrup Madison, 1 Wall., 291, 17 L. ed., 538; Lexington v. Butler, supra. v. Nor if fraudulently issued; Mercer Co. v. Hackett, supra; Grand Chute v. Winegar, 15 Wall., 355, 21 L. ed., 170; Nor if stolen by plaintiff's vendor; Turnbull v. Bowyer, 40 N. Y., 456. The act in question is a valid and constitutional law. It is not claimed to be in violation of any express provision of the Constitution of the State of New York. By the decisions of the highest court of the State of New York, the Legislature of that State had the power to enact this law. Starin v. Genoa, 23 N. Y., 439; Bk. v. Village of Rome, 18 N. Y., 38; Town of Guildford v. Chenango Co., 13 N. Y., 143; People v. Mayor, etc., of Brooklyn, 4 N. Y., 419; Brewster v. Syracuse, 19 N. Y., 116; R. Co. v. Brainard, 9 N. Y., 100; People v. Draper, 15 N. Y., 532; People v. Mitchell, 35 N. Y., 551; Wynehamer v. People, 13 N. Y., 378; People v. Orange Co., 17 N. Y., 235; Litchfield v. Vernon, 41 N. Y., 123. The decisions of the highest court of a State, that an Act of the Legislature is not in conflict with a provision of its Constitution, is conclusive upon this court. Gut v. State, 9 Wall., 35, 19 L. ed., 573; City v. Lamson, 9 Wall., 478, 19 L. ed., 725; Randall v. Brigham, 7 Wall., 523, 19 L. ed., 285; Prov. Inst. v. Mass., 6 Wall., 611, 18 L. ed., 907. If the coupons were valid when issued, no subsequent decision of the courts of New York can affect their validity. Chicago v. Sheldon, 9 Wall., 50, 19 L. ed., 594; City v. Lamson, supra; Gelpcke v. Dubuque, supra; Lee Co. v. Rogers, 7 Wall., 181, 19 L. ed., 160; Mitchell v. Burlington, 4 Wall., 270, 18 L. ed., 350, and Kennicott v. Wayne Co., 16 Wall., 452, 21 L. ed., 319; Olcott v. Fond du Lac Co., 16 Wall., 678, 21 L. ed., 382; and R. Co. v. Otoe Co., 16 Wall., 667, 21 L. ed., 375, all decided by this court at its last term. Mr. Justice Strong delivered the opinion of the court: In view of the numerous decisions made by the highest courts of most of the States, including New York, as also of those made by this founded. The bonds to which the coupons were attached do not purport to bind the Town. They acknowledge that the Town of Queensbury is indebted to the bearer or his assigns in the sum mentioned, for value received in money borrowed, payable on the 6th day of February, 1878, "with interest thereon at the rate of seven per cent., on presentation and delivery of the coupons for the same, thereto attached." They are signed by the Commissioners who were by the statute made agents of the Town for issuing them, and they are countersigned by the clerk of the Town of Queensbury. The coupons attached are all headed "Town of Queensbury Interest Warrant." They are in the form of orders signed by the Commissioners drawn upon the Town and accepted by the town clerk. Very plainly, therefore, both the bonds and the interest warrants are evidence of indebtedness by the Town. They appear to have been issued in strict compliance with all the requisitions of the statute. It is vain to say the statute imposed no duty upon the Town or its officers. No one can doubt that it is competent for the Legislature to determine by what agents a municipal corporation shall exert its powers. The statute in question did designate the agents; and their acts, within the authority conferred, are binding upon their principal, upon the Town of which they had been constituted the agents. court, it ought to be considered as settled that a State Legislature may authorize a municipal corporation to aid in the construction of a railroad, in the absence of any express constitutional prohibition of such legislative action. There is no such prohibition to be found in the Constitution of New York, and the courts of that State have many times held that the Legislature has power to authorize cities and towns to subscribe for stock of a railroad corporation, to incur indebtedness for the subscription, and to impose taxes for the payment of the debt incurred. It is true no case in the highest court of that State has determined the precise question now presented, namely: whether the municipal corporation may be empowered to donate 91*] its bonds to a railroad company and collect taxes for the payment of the bonds. But subscriptions for stock, equally with donations, are outside of the ordinary purposes of such corporations, and the design of both is the same. It is to aid in the construction or maintenance of a public highway. It is for the promotion of a public use. The inducement to a subscription may be greater than the inducement to a dona- | tion. In the one case there may be hope of re-imbursement by the stock obtained; in the other there can be no such expectation. In both, however, the warrant for the exercise of the power is the same. It may be a mandatory statute requiring a municipal corporation to Equally untenable is the position that an acsubscribe for stock in a railroad company, or to tion at law is not maintainable, because the contribute to the construction of the railroad of holders of the bonds and coupons are entitled such a company is not a legitimate exercise of only to that remedy for a default of payment legislative power, and that it is not even an act which is provided by the statute. There are of legislation. This was decided by the Court cases, it is true, which hold that where a statof Appeals of New York in the case of People ute creates a right and enjoins a duty, [*93 v. Bacheller, 8 Alb. Law. J., 120. But the nothing may be done agreeably to the provisions present is no such case. The legislative Act by of the common law to enforce the duty or which the Town of Queensbury was authorized assert the right further than is necessary to to issue bonds in aid of the railroad from the give effect to the statute. But we do not perVillage of Glen's Falls to intersect with the ceive that this principle has any bearing upon Saratoga and Whitehall Railroad, was not man- the present case. The 4th section of the Act datory. It was merely enabling. It authorized requires the Commissioners designated as the the issue and donation of the bonds, if approved agents of the Town to report, annually, to the by a popular vote. It was a mere grant of Board of Supervisors of the county, the amount power upon conditions, coupled with a prescrip- required to pay the principal and interest on tion of the mode in which the power granted the bonds authorized to be issued, and makes it might be exercised. And that it was a consti- the duty of the Supervisors to assess, levy and tutional exertion of legislative power must be collect of the real and personal property of the considered as settled affirmatively by the de- Town of Queensbury, such sum or sums of cisions of this court in R. Co. v. Otoe Co., 16 money as shall have been reported to them by Wall., 667, 21 L. ed., 375, and Olcott v. Superv. the Commissioners. The money thus collected, of Fond du Lac Co., 16 Wall., 678, 21 L. ed., 382. the Supervisors are required to pay to the ComIt cannot, therefore, be maintained, as contend-missioners, to be applied by them to the payed by the plaintiff in error, that the statute ment of the bonds and interest. These are all under which the coupons in suit were issued directions given to the town and county officers was transgressive of the power vested in the and agents-not to the holders of the bonds and Legislature. If the Court of Appeals of New coupons. They prescribe duties to be performed York had decided otherwise we should feel after the amount of the debt due by the Town constrained to follow its decision, but no such has been ascertained, either by agreement or determination has been made. by judgment. That amount may be contested. It has been in this case. It could only be determined by an action at law. Only after such a determination could the Commissioners report how much was required to be levied by taxation. The action, then, does not take the place of any remedy provided by the Legislature. At most, it is a step to give effect to the statutory provision. 92*] *It is next insisted that, even if the statute under which the bonds were issued be valid, an action of assumpsit cannot be brought to recover the sums due on the coupons. The reasons given in support of this proposition are that the coupons do not purport to be and that they were not made in the name of the Town; and that the Town is not liable to an action at law for the failure to pay the instruments made and issued by the Commissioners designated by the statute. Neither of these reasons is well The only other error assigned which requires notice is, that the court refused to direct a verdict for the defendants because the bonds were |