32 ‘ FEDERAL REPORTER.-
man’s Insurance Company, and a credit given for. the amount already
paid by it as a contributing insurer and accepted by plaintid without
prejudice to his recovery of the whole amount of the policy.
HILL v. Curr or KAHOKA• Y
(Circuit Oourt, E. D. Missouri, E'. D. May 14, 1888.)
1. Rarnncm Comraurms-Mnrrrorun A11>—Lm1m.r·rY.
The town of K. was incorporated by two orders of the count; court, made,
respectively, June 8, 1869, and November 14, 1872, pursuant to Wag. St. Mo.
c. 134. The charter was forfeited for non—user, October, 1886; the creditors of
the town not being made parties to the proceedings. In the mean time the
town had exercise corporate functions, electing trustees, levying and collect-
ing taxes for municipal urposes, bringing and defending suits, and issuing
railroad aid bonds. n llovember, 1886, the city of K. was incorporated, em-
bracingsubstantially the same population and territory as the old town of K.
Held, t at the city was liable on the bonds.
8. Mlpmcrmr. Conroanxons — Dmracrrvn Inooaroaurron — Rarnnoan Am
onus. i l
The county court in granting incoiforation of a town under the Missouri
act of February 8, 1871, (2 Wag. St. 0. p. 1314,) acts judicially, and although
its decree erroneously embraces as a "common·" some 40 acres of agricultural
tland not subdivided into town lots, the decree is not rendered voi _ thereby.
but voidable only; and such error, so long as the state has instituted no pro-
ceedings to revo e the charter on that ground, is no defense to an action on
railroad aid bonds, otherwise valid, issued by such town. _
At Law.
Action upon certain railroad aid bonds issued by the town of Kahoka.
The town was incorporated under the act of February 8, 1871, (2 Wag.
St. Mo. p; 1314,) the first section of which, in part, is as follows:
"Whenever two-thirds of the inhabitants of any town or village within
this state shall present a petition to the county court of the county, set-
ting forth the metes and bounds of their village and commons, and pray-
ing that they may be incorporated, and a police established for their lo-
cal government, and for the preservation and regulation of any commons
appertaining to such town or village, and the court shall be satisfied that
two-thirds of the taxable inhabitants of such town or village have signed
such petition, and that the prayer of the petitioners is reasonable", the
county court may declaretsuch town or village incorporated, designating
in such order the metes and bounds thereof; and thenceforth the inhab-
itants within such bounds shall be a body politic and corporate by the
name and style of ‘The inhabitants of the town of ————’ (naming it)
etc." The supreme court of Missouri, in construing this statute, in State
v. McReynolrI.s, referred to in the opinion, where over 900 acres of farm-
ing lands were included in the town as incorporated, held that "the word
‘commons’ as used in that statute, meant lands included in or belonging
to a town, set apart for public use, and that the county court had no