Opinion of the court

some discrepancy should exist in the statements of the governor at different times, with reference to a transaction which had occurred more than eighteen years before, is not surprising. His statements are consistent and positive to the effect that the alteration was made by his direction, and that the grant was delivered or redelivered afterwards; and they disagree only upon the point whether the alteration was made before or after the grant had been once delivered. The clerk in the office of the secretary, who attested the grant, corroborates the testimony of the governor, that the alteration was made by his direction. The juridical possession of the two leagues, delivered to the grantee soon after the execution of the grant, and the subsequent occupation by him of the premises until his death, a period of nearly twenty years, dissipates whatever doubt might otherwise exist as to the truth of the statement of the governor in this particular.

As pre

When the grant to Pacheco was issued there still remained another proceeding to be taken for the investiture of the title. Under the civil, as at the common law, a formal tradition or livery of seizin of the property was necessary. liminary to this proceeding the boundaries of the quantity granted had to be established, when there was any uncertainty in the description of the premises. Measurement and segregation in such cases therefore preceded the final delivery of possession. By the Mexican law various regulations were prescribed for the guidance in these matters of the magistrates of the vicinage. The conditions annexed to the grant in the case at bar required the grantee to solicit juridical possession from the proper judge. In compliance with this requirement, within four months after the issue of the grant, he presented the instrument to the judge of the district, and requested him to designate a day for delivering the possession. The judge designated a day, and directed that the adjoining proprietors be cited, and that measurers and counters be appointed. On the day designated the proprietors appeared, and two measurers and two counters were appointed, and sworn for the faithful discharge of their duties. A line

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Opinion of the court.

provided for the measurement was produced, and its precise length ascertained. The measurers then proceeded to meu sure off the land, the judge and the proprietors accompanying them. The measurement being effected, the parties went to the centre of the land, and there the judge directed the grantee to enter into the possession, which he did, and gave evidence of the fact "by pulling up grass and making demonstrations as owner of the land." Of the various steps thus taken, from the appointment of the day to the final act of delivery, a complete record was kept by the judge, and by him transmitted to the grantee after being properly entered upon the "book of possessions." This record was produced and admitted in evidence, no objection being taken to its genuineness or authenticity. The first document in this record is a copy of the original grant produced to the judge, which specifies two square leagues as the quantity granted. That portion of the record which specifies the quantity measured also declares it to have been two square leagues, or a little more on account of the irregularity of the land. The solemnities attending this official delivery of possession were well calculated to make an impression upon the minds of the spectators, and to preserve the recollection of the act. The ownership, extent, and general location of the land were matters thus brought within the knowledge of the neighborhood, and were no doubt afterwards the subjects of frequent reference among the adjoining proprietors. It is possible, but highly improbable, that serious alteration in the grant as to the quantity of the land, would have escaped observation and exposure. No suspicion on the subject having been suggested for eighteen years, is a circumstance of no little weight to show that no grounds for suspicion ever existed.

The decree of the District Court must be reversed, and that court directed to enter a decree confirming the claim of the appellants to two square leagues under the grant to Pacheco.

DECREE ACCORDINGLY

Statement of the case.

VAN HOSTRUP v. MADISON CITY.

1. An authority to a city to take stock in any chartered company for making "a road or roads to said city," authorizes taking stock in a road between other cities or towns, from the nearest of which to the city subscribing there is a direct road; the road in which the stock is taken being in fact a road in extension and prolongation of one leading into the city.

2. Where authority is given to a city to take stock in a road, provided the act be "on the petition of two-thirds of the citizens," this provisc will be presumed to have been complied with where the bonds show, on their face, that they were issued in virtue of an ordinance of council of the city making the subscription; the bonds being in the hands of bonâ fide

holders for value. In the case before the court the minutes of council recorded that the citizens, "with great unanimity," had petitioned.

ERROR to the Circuit Court for the District of Indiana. The suit was brought in the court below against the city of Madison, in Indiana, for moneys due upon coupons attached to certain bonds issued by the city authorities, signed by the mayor and the city clerk, and to which was affixed the seal of the corporation, by which the city acknowledged, that in virtue of an ordinance of the Common Council, passed 2d September, 1852, it owed and promised to pay the president of the Columbus and Shelby Railroad Company, or bearer, $1000, redeemable on the 1st of November, in the year 1872, with interest at the rate of six per cent. per annum, semiannually, on the first days of May and November of each year, from the date of the bonds, at the banking house of Winslow, Lanier & Co., in the city of New York.

These bonds were negotiated and put into circulation by the Columbus and Shelby Railroad Company, and purchased in the market by the plaintiffs, bonâ fide, and for a valuable consideration. They had been issued to the railroad company for stock subscribed in that company by the city of Madison, aforesaid.

As respected the authority of the city to subscribe, it ap peared that one section of its charter * authorized it "to take

* viii, subdivision 38.

Statement of the case.

stock in any chartered company for making a road or roads to said city, provided, that no stock shall oe subscribed, &c., unless it be on the petition of two-thirds of the citizens who are freeholders, &c., and provided, that in all cases where stock is taken, the Common Council shall have power to borrow money," &c.

INDIANAPOLS

COLUMBUS

At the time when the subscription to the Columbus and Shelby road was made and the bonds issued, a railroad called the Madison and Indianapolis Railroad, a road leading from Indianapolis, in the interior of the State, to Madison, was in operation, and brought down from one part of the interior where Indianapolis is, to MadiSHELBYVILLE Son, on the Ohio River, the products of the State. This road passed through Columbus. The Columbus and Shelby Company (the company to which the subscription was made), was organized to construct a road from Columbus to Shelby County, terminating at Shelbyville. But Columbus was forty-six miles from Madison; Shelbyville being about twenty-three north of it. Through Columbus, and by means of the connection with the Madison and Indianapolis road, the Columbus and Shelby road did lead to Madison and nowhere else; though if regarded as an independent and isolated road, and as one between Shelby and Columbus only, it could not be said to be a road to the city designated. The diagram will elucidate the matter.

MADISON

As respected the required "petition of two-thirds of the citizens," the matter rested apparently upon an entry on the minutes of the City Council, which stated that "the freeholders of the city of Madison, with great unanimity, had petitioned," &c.

The defences set up by the city, were "that the bonds were issued to the Columbus and Shelby Railroad Company, to pay for a subscription by the city to the capital stock of the said railroad company, and for no other consideration;

Argument for the City.

that the said Columbus and Shelby Railroad Company was not a chartered company for the purpose of making a road to the city of Madison aforesaid, but to make a road from Columbus to Shelbyville, the nearest terminus of said road being forty-six miles distant from Madison."

2. That the bonds were issued without the petition or me'morial of two-thirds of the freeholders of said city requesting the Common Council to take the stock and issue the bonds.

The court below gave judgment in the case, which was upon the pleadings wholly, for the city. On error here, the validity of the defences-as in the court below-were the points in issue.

Mr. Johnson, for the city of Madison: If these bonds were issued, as alleged, to the Columbus and Shelby Railroad Company, a company not chartered to make a road to Madison, but to other points,-they were void in the hands of said railroad company when delivered to it.* They appear on their face to be issued to such company, and every person must take notice of the charter of that company, and must know that it is a chartered company to make a road to Madison, because such charter is a part of the law of the land, and because it is the very thing that is required to exist to enable the city of Madison to act. Parties dealing with a corporation must know that the facts exist upon which its power to act is founded. The city of Madison, without special authority from the legislature, has no power to subscribe for stock in railroad companies. It cannot compel the citizens to become parties or stockholders in private corporations, nor pledge or incumber the individual property of the citizens in speculative undertakings. Its powers are only coextensive with its duties. The Common Council may borrow money for the special purposes of the trust and authority intrusted to them, and may levy taxes to raise money for these purposes, but none other.†

* Commonwealth v. Erie, &c., Railroad, 27 Pennsylvania State, 889. Beatty v. Knowler, 4 Peters, 153; Sharp v. Speir, 4 Hill N. Y., 87;