the Chancellor dismissed the bill. If there was "Where a written agreement exists, and one of the parties sets up an arrangement of a different nature, alleging conduct on the other side amounting to a substitution of this arrangement for the written agreement he must clearly show, not merely his own understanding as to the new terms of arrangement, but that the other party had the same understanding." Darnley v. Proprietors, etc., L. R., 2; H. L., 43, GO. The plaintiffs were not asked to assent expressly with respect to the waiver of the warranty, if it were demanded, and made no such answer. They were asked to "please examine," etc., and to telegraph the result. This they did. The dispatch was wholly silent as to anything else. That they understood the waiver was demanded as a sine qua non in no way appears. On the other hand, the contrary is clearly mani fest. The moment they had reason to appre49] hend that the bonds might be counterfeit, they notified the defendants; and, as soon as it became certain they were so, the defendants were advised of the fact, and that they would be looked to for indemnity. The defendants denied their liability by reason of their letter. In due time this suit was brought. Conceding that both parties have acted in good faith, it is clear that there was a misunderstanding between them as to the meaning and effect of the letter, and that the plaintiffs never understood and agreed to it as it is now interpreted and insisted upon by the defendants. The aggregatio mentium requisite to give that interpretation effect was, therefore, wanting. To constitute the abandonment of a contract, the act must be mutual. Robinson v. Page, 3 Russ., 122. It has been held that, to make a negotiation for the modification of a contract effectual, it must appear that it was the intention of the party proposing it wholly to abandon the original contract, if the modification proposed were not assented to. Murray v. Harway, 56 N. Y., 347; Robinson v. Page [supra]. "A waiver of a stipulation in an agreement, to be effectual, must be made intentionally and with knowledge of the circumstances." Darnley v. Proprietors, etc. [supra]; Howard v. Cerpenter, 22 Md., 259. When one party assents to a contract, relying upon the representations of the other, his assent is given upon the condition that the representations are true. Duncan v. Hogue, 24 Miss., 671. Mr. Justice Strong, dissenting: I dissent from the judgment given in this case. Before the plaintiffs received the bonds, and before they accepted or paid the draft drawn upon them by the defendants, they were notified that the defendants would sell without recourse, and that they were unwilling to run any risk. They were requested to examine, and telegraph to the defendants whether the bonds were genuine, and this is a precaution of the defendants against risk. The letter of the [50 defendants clearly manifested an intention not to deliver the bonds unless they were genuine, or unless the plaintiffs would take them at their own risk. On any other terms the plaintiffs had no right to take them. Inquiry and notice to defendants afterwards would have been idle, and would have been no precaution. Consequently the receipt of the bonds by the plaintiffs, after the notice given to them, can have no other meaning than that they took them at their own risk. My brethren, Clifford and Hunt, JJ., request me to state that they also dissent. a libel against 199 barrels of *distilled spirits seized at Galveston, Tex- [87 as, March 18, 1867, as forfeited to the United States. The causes of forfeiture alleged are: 1. That the spirits, being subject to the payment of internal revenue tax, were removed otherwise than into a bonded warehouse, without the payment of the tax. Upon the whole case we are of opinion that 2. That no lawful or genuine inspector's the judgment of the court below should be re-brand was ever put upon them, and they were versed and a judgment entered for the plaintiffs in error, and it is so ordered. The proper mandate will be sent to the circuit court. removed for sale in fraud of the law, and with intent to evade the payment of the taxes thereon chargeable by law, and were fraudulently and illegally marked and branded. 57 75 46 50 66 50 100 66 S. Y., 5 barrels. 3. That said barrels of distilled spirits, when | Galveston. To the introduction of such copies found and seized by the Collector of Internal Andre objected; but the objection was overRevenue had never been inspected, gauged. ruled, and they were admitted. The certificates proved or marked, as required by law, and were showed shipments from New York to Matafraudulently and illegally marked and branded. moras, with no record of drawbacks, as follows: To this libel a claim and answer were filed by October 1, 1864, B. G. H., 20 barrels. Charles Andre, a resident of Matamoras, Mexi- February 2, 1865, co, in which he alleged that all the requirements February 10, 1865, of the laws of the United States relating to the January 14, 1865, spirits had been complied with previous to the March 11, 1865, seizure that they had been duly proved and And from New marked, gauged and inspected, and the barrels February 4, 1865 <P> properly branded by the lawful officers of the These shipments all corresponded with the United States duly appointed for that purpose; specifications in the entry, except that marked and that all taxes required by law had been S. <A>. In the entry this *appeared to [89 paid thereon. He also stated that he purchased have been an exportation in the schooner Brazos, the spirits in open market at Matamoras, Mexi- but the certificates showed that it was in the co, in the regular course of business, between bark Mary Schofield. To explain this discrepthe 1st and 12th of February, 1867; that the ancy, Andre made affidavit that in his entry he same having been delivered to him in Mexico, gave the name of the schooner inadvertently, the he applied to the United States Collector of fact being that the exportation was in the bark. duties for the District of Brazos de Santiago It is further proved, that, when the spirits were for permission to import them in the packages seized in Galveston, the barrels were carefully as purchased, which permission was granted; examined; that many of them appeared to be that he accordingly transported them from old molasses barrels; that many had on them Matamoras to Brownsville, entered them at the the inspection marks of revenue inspectors at custom-house of that district, and by bond se- New Orleans and at Cincinnati; that the incured the duties therecn according to law, and spection marks if ever there were any on some that he secured from the proper officers of the of the barrels, had been covered with dirt, and custom-house the usual certificate given in such so obscured as to become illegible, but that most cases, and sent the spirits forward to Indianola of the barrels contained the inspection marks, and Galveston for a market. "manufactured prior to 1st September, 1866." Subsequently, when the barrels were taken out of the warehouse and delivered to the claimant, by order of the court, he affixed a new brand on the head of each barrel, to do which he had to wash the heads; and all but fifteen or twenty barrels were found to have been branded "tax paid." The evidence produced by the claimant shows that he entered the spirits at the custom-house upon his importation as of the growth, production and manufacture of the United States, exported on board of certain vessels named, from New York and New Orleans, upon which no 88 drawback, bounty or allowance *had been allowed, and re-imported from Matamoras, Mexico, free; that he executed a bond to the United States for the sum of $73,000, with approved sureties, "Conditioned that proper certificates to show that the articles were manufactured in the United States, and all taxes paid thereon, would be produced within six months thereafter, or that he would pay the customary custom-house duties required upon such articles of foreign manufacture;" that thereupon the proper landing certificate was issued, and the spirits were transferred from the forry-boat in which they had been imported, to the schooner Island Belle, for transportation to Indianola and Galveston. The evidence offered in support of the libel shows that Andre purchased the spirits at Matamoras, at the price of fifty-five cents per gallon; that they were shipped from New Orleans to Matamoras, June 20, 1866. on the British schooner Village Belle, and, after being duly entered at the custom-house at Matamoras, were landed at that port. The District Attorney of the United States then offered in evidence sworn examined copies of the original entry of the spirits by Andre at the Brownsville custom-house, together with sworn and examined copies of the bond given by Andre, and alFo of the certificates of the Collectors of the Ports of New York and New Orleans, upon which the bond was canceled, and proved that the originals of the entry, bond and certificates were on file at the custom-house in Brownsville, more than a hundred miles distant from Pending the suit, the property was appraised and delivered to the claimant, in accordance with the practice in such cases, upon the execution of a bond with sureties, conditioned to abide and answer the decree of the court in the premises. Upon this testimony the district court gave a decree of forfeiture July 21, 1868, and adjudged that the claimant pay into the registry of the court the appraised value of the spirits with interest from that date, and in default, that execution issue against him and his sureties. From that decree an appeal was taken to the circuit court, where a similar decree having been entered May 27, 1874, this appeal has been taken from the decree of the circuit court. The first ground of forfeiture in this case is based upon section 45 of the Act of July 13, 1866, 14 Stat. at L., 163. This provides that, upon seizures made for the causes there stated, the burden of proof is on the claimant to show that the requirements of the law have [90 been complied with. It is contended, however, that the passage of the spirits through the custom-house, even though it be duty free, establishes a prima facie case in favor of the claimant, and throws the burden of proof upon the United States. Without stopping to inquire whether this is so or not, it is sufficient to say that as between these parties the prima facie case made in this way has been completely overcome, and the burden again fairly cast upon the claimant. The prima facie case depends upon sustaining the statement made by Andre in his entry, that the identical spirits seized were exported | taken and filed because they were the identical from New York and New Orleans to Mata- papers Andre was to produce and deliver to the moras in the vessels named. without drawback collector in performance of the conditions of his for taxes paid. If this is disproved, the prima bond. 1 Stat. at L., 663, sec. 28. facie case as made has been met, and the burden placed where it was before. The certificates of exportation furnished by Andre to the collector in support of the entry do not identify the spirits exported with those seized, any further than by showing that the marks on the barrels exported correspond with those on the barrels seized. The shipments were all made late in 1864 and early in 1865, and from New York, except five barrels from New Orleans. Against this it appears that nearly or quite all the barrels when seized had upon them the inspection marks, "manufactured prior to 1st September, 1866." though the law requiring such marks was not passed until July 13, 1866, 14 Stat. at L., 163: that many of the barrels appeared to be old molasses barrels: that many had upon them the inspection marks of revenue inspectors at New Orleans and at Cincinnati; that one witness has sworn that the spirits were actually exported from New Orleans to Matamoras on the British schooner Village Belle, June 20, 1866; and that Andre purchased them at the price of fifty-five cents per gallon. With this evidence before us, it is impossible to believe that the spirits mentioned in the several certificates of exportation are the same as those that were seized. True, the inspection mark as to the date of the manufacture is as much inconsistent with an exportation from New Orleans, June 20, as with the exportation as claimed; but it shows that, if the statements of Andre are true. the inspection marks have 91] been tampered with, and that he may properly be called upon for explanations which he has not given. The evidence, therefore, as we think, clearly justified a decree of forfeiture upon the first ground alleged in the libel. It is true that the inspection marks, if spurious, may have been placed on the barrels while they were in Mexiand that, se ong as the spirits remained in Mexico, they could not be seized for any violation of law previous to their removal; but it is equally true that, although there could perhaps be no forfeiture for spurious brands affixed in Mexico, such brands may furnish evidence to be considered in determining whether the goods were subject to seizure for what had transpired in respect to them previous to their removal, and, that when brought again into the United States duty free, they were subject to sizure for any cause that existed before their exportation. The decree of condemnation was rendered in the district court July 21, 1868, and under the rule in The Diana, 3 Wheat., 58, the interest upon the appraised value was properly calculated and adjudged from that date. The decree is affirmed. NOTE. In the case of One Hundred Barrels of Whisky v. United States, No. 148, Mr. Chief Justice Waite, delivered the opinion of the court: This case differs from that just decided only in the fact that the barrels were seized at Indian-[92 ola instead of Galveston, and in that the marshal, instead of delivering to the claimant the whole one over only fifty-five, and paid him the proceeds of hundred barrels upon the order of delivery, handed the sale of the remaining forty-five barrels. As these proceeds amounted to more than the appraised below was rendered, we cannot see how the claimvalue of the property, for which alone the decree ant can now object, because he did not receive the spirits. The decree in this case is affirmed, for the reasons given in the other case. 3. Bonds executed by a municipal corporation to aid in the construction of a railroad, in pursuance of a power conferred by the Legislature, are valid commercial instruments, and the purchaser of them for value in the usual course of business before they are due, has a good title, free of prior equities between antecedent parties. 4. Where the bonds issued show by their recitals that they were issued in the manner required by the Legislature, and such recitals are made by the officers whose duty it was to ascertain their truth, they cannot be shown to be incorrect, in order to defeat the bonds. [No. 653.] In this view of the case, it is unnecessary to consider the objections raised to a recovery up- Submitted Jan. 10, 1877. Decided Jan. 20, 1877. on any of the other charges in the libel. The sworn and examined copies of the papers on file in the custom-house were admissible E evidence. So far as the bond and entry are concerned, further proof as to them by the UnitStates was unnecessary, because they had been already sufficiently established by the testiny in behalf of the complainant. The canelation certificates were admissible as declarations by the complainant in connection with the entry, and the prima facie case he insists he Lil made, and they were required by law to be Error to the Circuit Court of the United States for the District of Kansas. The defendant in error brought suit and recovered judgment in the court below, upon cer NOTE. When a verdict may be directed by the court. See note to Grand Chute v. Winegar, 21 L. ed. U. S., 174. Negotiability of railroad bonds. See note to White V. Vt. & Mass. R. R. Co., 16 L. ed. U. S., 221. Rights of purchaser of notes before maturity. See note to Mandeville v. Welsh, 5 L. ed. U. S., 87. tain bonds; whereupon the defendant sued out this writ of error. Mr. A. L. Williams, for plaintiffs in error. Mr. Alfred Ennis, for defendant in error. Mr. Justice Clifford delivered the opinion of the court: Power is vested by law in the constituted authorities of counties and other municipal corporations to subscribe for and take stock in any railway company duly organized under the law of the State or Territory, or to loan the credit of the municipality to such a railroad company, subject to the condition that the majority of the qualified voters of the same, voting at the election, shall, at a regular or a special election to be held therein, first assent to the proposal for such subscription; and the provision is that it shall be the duty of the municipal authorities, when the terms of the proposal are so approved, to make subscription to the stock of the railway company. Laws, Kan., 1869, 108. Sufficient appears to show that the railway company became duly incorporated for the purpose of constructing a railway from the northern to the southern line of the State through Davis, Marion and other counties named in the certificate of incorporation. Tax payers and citizens of the County of Marion petitioned the County Commissioners of the County to submit a proposition to the qualified voters of the County to subscribe for two thousand shares of $100 each of the capital stock of the railway company, to be paid for in thirty years seven per cent. bonds of the County. Pursuant to the prayer of those petitioners, the County Commissioners submitted that question to the qualified voters of the county, at a special election held at the time and place appointed in the order of the County Commissioners; and it appears by the record that the election was duly held at the time and place appointed, and that a majority of the votes cast at the election were in favor of the subscription by the County for two thousand shares of the capital stock of the railway company. By the terms and conditions of the proposition submitted and adopted, the stock to be subscribed was to be paid for in the bonds of the county, payable thirty years after their 280] date, with annual interest, at the rate of seven per cent. per annum; and the proposal was that the bonds should be delivered to the railway company as follows: (1) That, on the completion of the grading of the railway from the northern line of the county to Marion Centre, one half of the bonds should be due and deliverable under the contract. (2) That, upon the completion of the railway from Marion Centre to the Village of Peabody, other bonds to the amount of $75,000 should be due and deliverable as a second installment. (3) That, upon the completion of the railway to the south line of the county, the residue of the stipulated amount of the bonds should be due and deliverable. Due canvass of the qualified votes cast at the election was made by the County Commissioners, and they made the proper entry in their records that the subscription of the stock was then and there made by their Board for and in behalf of the County; and it appears that the Board did then and there elect one of their number to make the subscription, and that the member so elected entered the same in the books of the railway company. Beyond all doubt the subscription was legally made; and it is not controverted that the railway company graded their line of railway from the north line of the county to Marion Centre, and that the authorities of the County executed and delivered to the railway company the bonds of the County to the amount of $100,000, in pursuance of the terms of the subscription, with coupons attached for the payment of interest at the rate of seven per cent. semi-annually. Purchases of the bonds, with coupons annexed to a large amount. were made by the plaintiff from the First National Bank of Junction City, where they were deposited for sale. Payment of the interest coupons being refused, the plaintiff, as the owner and holder of the same, instituted a suit in the circuit court to recover the amount. Two other suits were subsequently instituted by him for a similar purpose; and the three suits in the course of their prosecution were consolidated, the claim of the plaintiff being for the amount of one hundred and ninety-four coupons, each for the sum of $35. Service was made, and the defendants appeared and set up the several defenses exhibited in the answer. Special reference to the separate defenses as set up in the [281 answers may be omitted, as the questions to be re-examined sufficiently appear in the bill of exceptions. Questions of fact were submitted to the jury; and the transcript shows that the verdict and judgment were for the plaintiff, in the sum of $6,703.54, and that the defendants excepted to the rulings and instructions of the court. Two thousand shares of the stock were subscribed; but the bonds were issued in shares of $1.000, with interest coupons attached. On the trial of the cause, the plaintiff to maintain the issue on his part, offered one of the bonds in evidence, with an overdue coupon attached; and the defendants objected to its admissibility, upon three grounds: (1) Because it was signed only by the chairman of the County Commissioners. (2) Because it was made due and payable thirty years and twenty-seven days after date. (3) Because the interest coupons attached provide for the payment of interest semi-annually instead of annually. But the court overruled the objections, and the bond with the coupon attached was admitted, subject to the objections of the defendants. Coupons of a similar character, to the number of one hundred and ninety-four in all, were also introduced in evidence by the plaintiff, subject to the same objections. Exceptions were duly taken by the defendants to the rulings of the court in admitting the bond and coupons, and the plaintiff rested his case in the opening. Evidence was then introduced by the defendants, consisting, in the first place, of the deposition of the plaintiff and a certified copy of the record of a suit previously instituted in the county court to cancel the bonds issued by the county and to restrain the First National Bank from transferring the same to the railway company. They also introduced a copy of the proposition submitted to the qualified voters of the County to subscribe for the capital stock of the railway company, in payment for which the bonds in question were executed and delivered, to which reference has already been made; but It also provides, that, before any county bonds should be issued and delivered, the railway company shall execute to the county a good and sufficient bond that the company will complete the railway as therein represented and proposed. 282] *Before the bonds were issued and delivered by the County, the railway company did execute a bond to the County in the sum of $0.000, conditioned that the company should fully complete and stock the railway, and put the same in running order, as required in the recorded conditions of the subscription. Both parties agree that bonds to the amount of $100,000, and no more, were issued by the County and delivered to the company; but the defendants insist that the authorities of the County were induced to issue and deliver the same by the misrepresentation and fraud of the railway company. Two suggestions in that regard are exhibited in the answer and in the assignment of errors: (1) That the railway company, when they applied for the bonds, concealed from the authorities of the county the fact that the company had been re-incorporated with an amended charter. (2) That the company, when they applied for the bonds, falsely and fraudulently represented that the sureties were good for the amount of the bond, and the defendants introduced evidence tending to show that the sureties were insolvent. They also gave evidence tending to show that the charter of the company was amended, and the nature and extent of the amendment made, before the company applied for the bonds, and that they gave no notice to the authorities of the county of the meeting of the directors of the company when those amendments were adopted. Three other defenses set up in the answer should be briefly noticed: (1) That the bonds were illegal, because issued for a longer time than thirty years. (2) That they were illegal, because the interest is payable semi-annually instead of annually, as stipulated in the proposition submitted to the qualified voters. (3) That the plaintiff is not a bona fide holder of the bonds, because he did not pay value for the same before they became due, without knowledge of the facts set up in these defenses; all of which is expressly denied by the plaintiff in his reply to the answer. Instructions were given by the court to the jury in substance and effect as follows: (1) That the plaintiff, when he introduced the coupons in evidence, made out a prima facie case. (2) That there is no evidence to go to the jury to 283] show that the First National Bank had Dotice, at or prior to the purchase of the bonds, of the fraudulent character of the representations made by the railway company which induced the authorities of the County to accept the bond given by the company to complete the milway, as stipulated in the proposition submitted to the qualified voters of the County. (3) That if the bank gave value for the bonds and purchased them before due, without notice of the fraud set up and relied on by the County in respect to the bond given in evidence, and sold the bonds in suit to the plaintiff, he is en Seasonable exceptions were taken by the defendants to the several instructions given to the jury and to the rulings of the court in admitting and excluding evidence in opposition to the objections made by the defendants, and they sued out a writ of error, and removed the cause into this court. Provided the bond was properly admitted in evidence, it is too plain for argument, that the first instruction is entirely correct, and the better opinion is, that the exception to it was only taken to exclude the conclusion that the objections previously made to the admissibility of the bond were not waived. 1. All of the bonds recite on their face that the County has caused the same "to be signed in their behalf by the chairman of the Board of County Commissioners, attested by the county clerk, and the seal of said County affixed." They bear date the 3d of September, 1872, but they were not issued and delivered until the 4th of November following. Instruments of the kind must be tested in that regard by the law of the jurisdiction where they are executed; and by the law of the State in force at that time it is provided that "Such bonds, if issued by a county, shall be signed by the chairman of the Board of County Commissioners, and be attested by the county clerk," which is all that need be said in response to the first objection. Laws, Kan., 1872, sec. 2, p. 111; Thayer v. [284 Montgomery Co., 3 Dillon, 389; Marcy v. Oswego, 92 U. S., 637, 23 L. ed., 748. 2. Enough has already been remarked to show that the second objection to the admissibility of the bond is without merit, as there is no excess in time beyond thirty years if the computation be made as it should be, from the time the bonds were actually executed, issued and delivered. L. Kan., 1872, sec. 2, p. 111. 3. Where a municipal corporation has power to borrow money, they may make the principal and interest payable when they please, which is a sufficient answer to the third objection. Meyer v. Muscatine, 1 Wall., 391, 18 L. ed., 566. Viewed in the light of these suggestions, it is clear that the bond was properly admitted in evidence, and that the exception to the first instruction given to the jury must be overruled. II. Matters of fact are involved in the exception to the second instruction. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. Ryder v. Wombwell, L. R., 4 Exch., 39. Decided cases may be found where it is held that, if there is a scintilla of evidence in support of a case, the judge is bound to leave it to the jury; but the modern decisions have estab |