respond with the officers' names as they were at the time the first set were made. 2. That at the time the bonds in suit were made, signed, and sealed, the said O. E. Gibson had possession of the seal of said village, and was acting as clerk of said village, at the request of the village officers."

The plaintiff also excepted specifically to certain of the findings made as follows: "1. To so much of the seventh finding of the court as finds that at the time the bonds in suit were executed the successor of O. E. Gibson had been elected and duly qualified, and that said bonds were executed without the direction or knowledge of the village council, as not being supported by the testimony. 2. To so much of the eighth finding of the court as finds that the bonds in suit were left with the express company in Ashley, to be sent to the Toledo Trust and Loan Company, as not being supported by the testimony. 3. To the finding of the court that the said bonds were issued without authority of law. 4. To the finding of the court that no person or officer was ever authorized to sign or issue the bonds on which this action is brought. 5. To the finding of the court that the president of the village had no authority to deliver or in any manner dispose of either the first or second set of bonds. 6. To the finding of the court that the officers, at the time they signed the same, were acting without the authority of the village, and without authority of law, and that the said bonds are absolutely void."

The requests for further findings and the exceptions to the findings made constitute the claimed errors, which have been fully argued in this court.

The several exceptions taken to the refusal of the court below to make other and additional findings of fact and law, and the exceptions to the seventh and eighth findings made by the court, need not be considered, as we think the plaintiff's case must stand or fall upon one question, and that is, whether the president of the village had authority to deliver the bonds in controversy, or the right in any manner to dispose of them.

The findings made by the court below are supported by the testimony returned that while the ostensible purpose of isBuing these bonds by the village was to build a system of water-works, yet it was understood by the people of the village and its officers that the real object was to give the bonds as a bonus to the railroad company that was then purposing to build a road from Muskegon to Ashley. This was well under

stood by the village officers to be unlawful, and that bonds so issued would be void upon their face. The effort was made by the people of the village and the officers in the call for the election by which the bonds were to be voted, and in the proceedings by the village trustees, to cover up the real purpose. for the issuing of the bonds, and the records from beginning to end disclose a lawful purpose for which they were to be issued, that is, the construction of the water-works, so that parties purchasing would have no means of ascertaining from the records the real object of the issue. These first bonds recited that they were made payable at the treasurer's office of the village of Ashley, and that they were issued in pursuance of the statutes of the state of Michigan and a resolution of the trustees of the village of Ashley, and were authorized by the legal vote of the qualified voters of said village at a meeting held November 29, 1886. The first issue was destroyed by the president of the village, but by whose authority does not appear. Mr. Chittenden was president, and in his testimony says that the bonds were destroyed and new ones issued for the reason that the first set was made payable at the office of the village treasurer, and they could be better disposed of if made payable at a bank, and that the second issue was made payable at the Wayne County Savings Bank, in the city of Detroit. The second issue of the bonds was signed by the president and clerk of the village some time in March, 1887, after the term of office of the village clerk had expired, and his successor had been elected. The bonds were dated back to the date of the first issue, but contained different recitals than the other bonds, both as to place of payment and the fact that all acts and things necessary to be done had been done and performed as required by law. These second bonds, upon their face, were regular, and, if the recitals were true, were of valid issue; but there is nothing upon this second set to show that the president and clerk of the village ever had authority to sign them, or to deliver any of them for any purpose whatever.

The village records were put in evidence, from which it ap pears that a resolution was passed December 1, 1886, as follows:

"Resolved, by the common council of the village of Ashley, now in session, that the president and clerk be authorized to sign the bonds of the village for water-works; said bonds. those voted for by the councilmen at the meeting held Novem

ber 18, 1886, also by the legal voters at the special election held November 29, 1886."

This is the last resolution passed by the council in reference to these bonds; and it nowhere appears from the records of the village that any authority was ever conferred upon the president and clerk to deliver the bonds to any person or for any purpose whatever, or to issue new bonds in place of those destroyed. The mere signing of the bonds did not bind the village to the payment of them. They were still incomplete, and remained in the hands of the village, subject to the direction and control of the council. The village council was the only power, under the statutes, which had authority to direct the issue or delivery for the purposes for which the bonds were executed. No direction whatever was given by it to deliver the bonds, and until authority was given by the council, the president had no more power to dispose of them than a stranger to the proceedings; and a disposition of them by the president would not confer upon the holder any greater right to enforce payment than though they were stolen from the village treasury. The public can act only through authorized agents, and it is not bound until all who are required to participate in what is to be done have performed their respective duties: Brown v. Bon Homme Co., S. D., July 8, 1890; 46 N. W. Rep. 173.

In Burson v. Huntington, 21 Mich. 415, 4 Am. Rep. 497, this court laid down the doctrine that there can be no such thing as an innocent purchaser of negotiable paper which never had an inception by delivery. It was said: "As a general rule, a negotiable promissory note, like any other written contract, has no legal inception or valid existence as such until it has been delivered in accordance with the purpose and intent of the parties."

The supreme court of Wisconsin followed the above rule in the case of Chipman v. Tucker, 38 Wis. 43, 20 Am. Rep. 1; and it was there said, citing from Chief Justice Dixon, in Walker v. Ebert, 29 Wis. 197, 9 Am. Rep. 548: "The inquiry in such cases goes back of all questions of negotiability, or of the transfer of the supposed paper to a purchaser for value, before maturity, and without notice. It challenges the origin or existence of the paper itself, and the proposition is to show that it is not in law or in fact what it purports to be, namely, the promissory note of the supposed maker. For the purpose of setting on foot or pursuing this inquiry, it is immaterial

that the supposed instrument is negotiable in form, or that it may have passed to the hands of a bona fide holder for value. Negotiability, in such cases, presupposes the existence of the instrument as having been made by the party whose name is subscribed; for until it has been so made, and has such actual legal existence, it is absurd to talk about a negotiation, or transfer, or bona fide holder of it, within the meaning of the law merchant."

The statute of this state in reference to the issuing of the water-works bonds vests that power in the village council, and until that body has met at a legal meeting, and voted to issue the bonds, or authorized their issue, one of the essential requirements of the statute has not been complied with; and these bonds, being issued without such direction, are not binding against the village. The plaintiff, in its purchase of these bonds, was bound to take notice of the statute and of the records of the village of Ashley relating to the matter, and had the plaintiff examined the records of the council, it would have been advised that the president and clerk of the village had no authority whatever to deliver the bonds to the loan and trust company at Toledo, Ohio, as the extent of the resolution of the council was a direction to the president and clerk to sign the bonds which had been voted at the special election held November 29, 1886.

The judgment of the court below must be affirmed, with costs.

MUNICIPAL CORPORATIONS - BONDS - DEFENSES AGAINST. - Municipal bonds are not negotiable paper in the hands of the holder so as to exclude inquiry into the legality of their issue, or to preclude defenses thereto: Newgass v. New Orleans, 42 La. Ann. 163; 21 Am. St. Rep. 368. There can be no bona fide holding of municipal bonds issued without authority: Sutro v. Pettit, 74 Cal. 332; 5 Am. St. Rep. 442; Steines v. Franklin County, 48 Mo. 167; 8 Ain. Rep. 87. County railroad-aid bonds, though negotiable instruments, are not binding upon the county, when there is no authority of law for their issuance: Clapp v. Cedar County, 5 Iowa, 15; 68 Am. Dec. 678, and note. See De Voss v. Richmond, 18 Gratt. 338; 98 Am. Dec. 646, and extended note, in which this subject is fully discussed. Where railroad-aid bonds have been issued and certified under apparent authority, they are valid in the hands of an innocent purchaser for value, notwithstanding the fact that there was a defect in their issue: North v. Platte Co., 29 Neb. 447; 26 Am. St. Rep. 395, and note. Purchasers of municipal bonds have a right to rely upon the facts asserted or appearing on the face of the bonds, made by any person or body authorized by law to pass upon and determine such facts: Gibbs v. School District, 88 Mich. 334; 26 Am. St. Rep. 295, and note. See also note to Hutchinson etc. R. R. Co. v. Board of Comm'rs, ante, p. 300.

CASES

IN THE

SUPREME COURT

MISSISSIPPI.

NESBITT V. CITY OF GREENVILLE.

MUNICIPAL CORPORATIONS

[69 MISSISSIPPI, 22.]

- DEGREE OF CARE OVER STREETS IMPOSED UPON. - Ordinary care over its streets is the measure of diligence im. posed upon a municipal corporation. It is not an insurer against injury to persons using its streets.

DEFECTS IN STREET OBSTRUCTION - MUNICIPALITY BOUND TO TAKE NOTICE OF SUCH AS ORDINARY CARE WILL DISCOVER. - Where an obstruction in a street is created by a city itself, or is permitted to be erected by another, the city must take notice of such defects in the obstruction as ordinary care will discover. STREET, STRUCTURE IN, MUST BE MADE AND KEPT REASONABLY SAFE. A structure in a public street must be erected in such a manner and with such materials as to be reasonably safe, and must be kept in a safe condition. It is as much the duty of the city to make proper repairs from time to time as to make the structure safe originally. MUNICIPALITY CHARGEABLE WITH COMMON KNOWLEDGE, SAME AS Natural PERSON: A municipal corporation is liable for injury resulting from its defective structures, when, by reasonable diligence, it might have acquired knowledge of the defect. The common knowledge of mankind as to the action of the elements, and the like, is to be attributed to mu nicipalities, just as to natural persons.

PEREMPTORY INSTRUCTION FOR DEFENDANT IMPROPER WHEN.

- In an ac

tion to recover damages for alleged negligence, where the defendant's freedom from culpability is not so manifestly clear as to leave no room for differences of opinion among reasonable men, the question of negli gence ought to be left to the jury, and it is error to instruct peremptorily for the defendant. CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY WHEN.-When contributory negligence is relied on as a defense, unless evidence thereof is so plain and convincing as to leave no doubt in the minds of reasonable men, it is error for the court to peremptorily instruct for the defendant.