The city is estopped from denying the truth of the recitals in its bonds. County of Moultrie v. Savings Bank, 92 U.S. 631; Town of Coloma v. Eaves, 92 U.S. 484; San Antonio v. Mehaffey, 96 U.S. 312; Nauvoo v. Ritter, 97 U.S. 389; Hackett v. Ottawa, 99 U.S. 86; Walnut v. Wade, 103 U.S. 683; County of Clay v. Society for Savings, 104 U.S. 579; Ottawa v. National Bank, 105 U.S. 342. The bonds themselves on their face recited the ordinance by date under which they were issued. The ordinance recites that the bonds were authorized for the redemption of city scrip and other indebtedness, and for the improvement of the streets.
The statutes of Illinois provide in the Practice Act, c. 110, sec. 18, that plaintiff shall file with his declaration a copy of the instrument of writing or account on which the action is brought, in case same be brought on a written instrument or account, and sect. 32 provides the same mode in case of set-off, and sec. 34 provides that a defendant shall not deny on trial the execution of any instrument in writing on which any action may have been brought or which shall be pleaded or set up by way of defence or set-off, or is admissible under the pleadings when a copy is filed, unless the person so denying the same shall, if defendant, verify his plea by affidavit. Streeter v. Streeter, 43 Ill. 155; Wilson v. King, 83 Ill. 232; Nauvoo v. Ritter, 97 U.S. 389. ( b) Meehan's deposition was improperly admitted, because it did not comply with the provisions of Rev. Stat. § 863. ( c) The record of the will and probate proceedings of Clark's estate were improperly admitted. They are not under the seal of the court. Rev. Stat. §§ 905, 906. ( d) Bunyan and Meehan's charges for moneys paid out for taxes and for redemption from tax sales after the date of sale under the trust deed were improperly allowed.
This is the only ground of irregularity and is the basis of plea of non est factum. Weyauwega v. Ayling, 99 U.S. 112; Walnut v. Wade, 103 U.S. 683; East Lincoln v. Davenport, 94 U.S. 801; Clay County v. Society for Savings, 104 U.S. 579; County of Moultrie v. Savings Bank, 92 U.S. 631; Nauvoo v. Ritter, 97 U.S. 389. The ordinance adopted by defendant city, September 13, 1883, became a part of the contract and was the authority to the then mayor, W.N. Hodge, and the secretary, to draft and sign the bonds, ready for delivery, before January 1, 1884.
He could not in one breath invoke the beneficence of the jurisdiction and in the other deny in toto its existence. Troxell v. Delaware, L. W.R. Co., 227 U.S. 434, 33 S.Ct. 274, 57 L.Ed. 586; Coburn v. Cedar Valley Land Cattle Co., 138 U.S. 196, 11 S.Ct. 258, 34 L.Ed. 876; Nauvoo v. Ritter, 97 U.S. 389, 24 L.Ed. 1050. Nor can any objection to the form of the proceedings, the presence or absence of formal pleadings defeat the power of the court; it acts summarily; it need have no pleadings before it, and any insufficiency in that respect cannot be urged as error in a reviewing court. Dean v. Davis, 242 U.S. 438, 37 S.Ct. 130, 61 L.Ed. 419.
" The reference in the allegation in the body of the bill to the exhibit which was filed with the bill had the effect of making what was contained in the exhibit a part of the pleading. Nauvoo v. Ritter, 97 U.S. 389, 24 L. Ed. 1050; Everglades Drainage League v. Napoleon B. Broward D. Dist. (D.C.) 253 F. 246. That the bonds secured by the mortgage had become due and payable in the way prescribed in the mortgage was sufficiently shown by allegations of the bill. The decree appealed from is attacked also on the ground that the appointment of the appellee as successor trustee under the mortgage was invalid.
The statute requires mere filing with, and not attachment as an exhibit to the declaration, and it has been consistently held by the Supreme Court of Florida not to result in making the paper a part of the declaration on demurrer. A contrary view of a similar statute was taken by the Supreme Court of the United States in City of Nauvoo v. Ritter, 97 U.S. 389, 24 L. Ed. 1050. Nevertheless, the practice of attaching exhibits to the declaration has been persisted in, and it is now held by the Florida court that an attached exhibit may by apt words in the declaration be made a part of it; and without such words, if it be so treated in the lower court the reviewing court will likewise so regard it. State v. Seaboard Air Line Ry., 56 Fla. 670, 47 So. 986; National Surety Co. v. Williams, 74 Fla. 446, 77 So. 212; Shelton v. Eisemann, 75 Fla. 644, 79 So. 75; Reinschmidt v. Crosby, 98 Fla. 365, 123 So. 755, 124 So. 4.
The effect of such recitals as an estoppel against the corporation issuing the bonds to set up mere irregularities in an attempt to render the bonds invalid has been passed upon many times by the courts. The following are but a few of the leading cases: Presidio County v. Noel-Young Bond Co., supra; Commissioners v. Rollins Sons, supra; City of Evansville v. Dennett, 161 U.S. 434, 16 S. Ct. 613, 40 L. Ed. 760; Sherman Co., Neb., v. Simonds, 109 U.S. 735, 3 S. Ct. 502, 27 L. Ed. 1093; Thompson v. Perrine, 103 U.S. 806, 26 L. Ed. 612; Pompton Twp. v. Cooper Union, 101 U.S. 196, 25 L. Ed. 803; Nauvoo v. Ritter, 97 U.S. 389, 24 L. Ed. 1050; Macon Co., Mo., v. Shores, 97 U.S. 272, 24 L. Ed. 889; San Antonio v. Mehaffy, supra; City of Lexington v. Butler, 14 Wall. 282, 20 L. Ed. 809; Marshall County v. Schenck, 5 Wall. 772, 18 L. Ed. 556; Myer v. City of Muscatine, 1 Wall. 384, 17 L. Ed. 564; Gelpcke v. City of Dubuque, 1 Wall. 175, 17 L. Ed. 520; Tyler Co., Tex., v. Branch-Middlekauff Co. (C.C.A.) 20 F.2d 504; City of Gainesville v. Brown-Crummer Co. (C.C.A.) 20 F.2d 497; Road Imp. Dist. 7 v. Guardian Sav. Tr. Co., 8 F.2d 932 (C.C.A. 8); Town of Aurora v. Gates, 208 F. 101 (C.C.A. 8) L.R.A. 1915A, 910, and note. In the recent case of Road Imp. Dist. 7 v. Guardian Sav. Tr. Co., supra, this court, speaking by Circuit Judge Sanborn, said:
In the eighth paragraph it is alleged that the claim was filed "timely under the statute"; but obviously that is a mere conclusion. On the other hand, an exhibit — whose recitals may be considered (Nauvoo v. Ritter, 97 U.S. 389, 24 L. Ed. 1050; Everglades Drainage League v. Napoleon B. Broward Drainage District [D.C.] 253 F. 246, 251) — shows unequivocally that the claim was not filed during the year. This exhibit says that the filing was not "until about fifteen months following the date of death."