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knowledge. But, however this may be, there is no trustworthy evidence that this knowledge was brought home to Burleigh at the time he purchased the bonds in the fall of 1875.
A suit was commenced in 1859 in the circuit court of Racine county, Wisconsin, the object of which was to obtain a decree of the court declaring that these bonds were veid, for the reason that at the time they were issued the law of 1856 had not been published, and therefore had not taken effect as an operative statute. In that case the town of Rochester, the Alfred Bank of Maine, and John H. Thompson were parties, service being had in Wisconsin upon the
resident of the bank and upon Thompson. They were made parties upon the ground that Thompson was the owner of the bonds, and had pledged them as collateral security for the payment of the debt which he owed to the Alfred Bank. The circuit court of Racine county decreed that the bonds were inoperative and void, and that decree was affirmed by the supreme court of Wisconsin in the case reported in 13 Wis. 432, (State v. McArthur.) This decree is admitted by the counsel of the plaintiff to be binding upon the Alfred Bank and upon Thompson, but it is denied that it is upon Mason or upon Burleigh. It should be stated that before Mason transferred these bonds to Burleigh he brought a suit in his own name in Wisconsin upon them, which was afterwards dismissed, for reasons which are not very fully or satisfactorily explained, although it is insisted by the defendant that the reason was because Mason was in no better condition in relation to these bonds than Thompson, as he has taken them with full knowledge of the decree of the Wisconsin courts.
Various defences bave been set up in opposition to plaintiff's case. It is claimed, in the first place, that Burleigh was not the real owner, and that in any event he was only a part owner of these bonds, Thompson, or his family, being jointly interested with him; and under the laws of Wisconsin, which require that the party really in interest should only bring suit, the plaintiff's action is not maintainable; but, as already stated, this objection must fail, because, under the evidence
as the court finds it, neither Thompson nor his family had any interest in these bonds.
It is insisted, in the second place, that the court has no jurisdiction of the cause, that objection being taken for the first time on the hearing. It is said that although this action was transferred from the state to the federal court under the second section of the act of 1875, that the transfer could not have been made unless the court would have had jurisdiction under the first section of that act. But conceding, for the sake of the argument, that that is the true construction of the act of 1875, I am of the opinion that the instruments upon which this suit is brought are, under the decisions of the supreme court of the United States, essentially promissory notes of the town of Rochester, and negotiable as such like ordinary promissory notes under the law merchant. It is true that they are called "town of Rochester bonds," but they are not issued under the seal of the town, nor indeed is there any seal whatever. It is simply declared that the town has caused these presents to be signed by the chairman of the board of supervisors, and countersigned, as required, by the town clerk thereof, and the form of the obligation is that the town of Rochester is justly indebted and promises to pay to the order of the Fox River Valley Railroad Company the sum of $500, with interest as set forth in the coupons.
It is claimed, in the third place, that the judicial proceed. ings which have taken place in Wisconsin upon the bonds are conclusive upon the plaintiff, and that as the circuit and supreme courts of Wisconsin have found that they were invalid, this court must also so find. By the constitution of Wisconsin, in force at the time this statute became a law, it was rerequired, before any general law took effect, that it should be published; and as there is nothing to show this law was published until the time certified by the secretary of state, on the third day of December, 1856, the argument is, and was, in the case already referred to, decided by the supreme court of Wisconsin, that this law had not taken effect. In view of this requirement of the constitution of Wisconsin, an act of the legislature had been passed, which was in force at the
time that the act of March 15, 1856, was passed, directing the secretary of state and the attorney general to classify the various laws; and, in pursuance of that requirement, the secretary of state and the attorney general classified this law as a local act, thereby not putting it in the class of general laws, as named in the constitution of the state. But prior to the decision of the case of The Town of Rochester v. Alfred Bank, 13 Wis. 483, the supreme court of the state had held that a case like this was a general law, and came within the terms of the constitution. State v. Leon, 9 Wis. 279; Clark v. Janesville, 10 Wis. 136. These decisions were followed in the case decided upon these bonds.
If this were an open question, I should think there was great force in the position originally taken by counsel in the Wisconsin cases, that a law like this could hardly be said to be a general law within the meaning of the constitution. It applied only to the towns of Burlington, Rochester, Waterford, Norway, in the county of Racine, and the town of Muskego, in the county of Waukesha. But, however this may be, the question is whether, under the case of Havermeyer v. Iowa County, 3 Wall. 294, the plaintiff is foreclosed by the decision of the supreme court of Wisconsin in the case reported in 13 Wis. 483. In the Havermeyer Case, the supreme court decided that, at the time these bonds were issued, the law, as held by the supreme court of Wisconsin, was not a general law, and so did not come within the language of the constitution; and that the principle declared in the case of Gelpke v. City of Dubuque, 1 Wall. 175, applied; and if these bonds constituted a valid contract, as the law and constitution were then expounded by the supreme court of the state, that it did not cease to be such because the highest court of the state had afterwards changed its ruling; and, I must confess, it seems to me, if the case of Havermeyer v. Iowa County was properly decided, and if it is binding on this court, as of course it is, it is conclusive of the question in this case, because every point in controversy there was the same as here. The cases which have already been referred to, in which the supreme court of Wisconsin decided that a law like this was a general
law, have all been determined since these bonds were issued, and the supreme court of the United States held that the law, as expounded by the supreme court of Wisconsin in the case of Hewett v. Town of Grand Chute, (decided in 1858,) 7 Wis. 282, operated upon the contract in that case; and, if so, on the same principle it operated on these bonds in this case.
The statute of limitations has been pleaded to the coupons attached to these bonds as another defence. That is a matter clearly within the province of the state, and a statute of limitations upon an action at law becomes the law of the federal court in a case heard in a state where the statute operates. Amy v. Dubuque, 98 U. S. 470. This action was brought, and the summons served, on the twenty-fifth of August, 1879. As already stated, these bonds were issued on the first of November, 1856, and were payable on the first of November, 1876. The statute of Wisconsin passed in 1872, re-enacted in the Revised Code of 1878, in section 4222, declares that any action upon any bond, coupon, interest warrant, or other contract for the payment of money, whether sealed or otherwise, made or issued by any town, county, state, village, or school district in this state, shall be brought within six years. Consequently, the limitation of the statute operates upon all coupons due prior to the twenty-tifth of August, 1873, the statute declaring that a suit shall be deemed to be commenced when a summons is served on the defendant. So that the statute would not, of course, run against the bonds, they not being payable until November 1, 1876, but it would run against all the coupons except the last four, to-wit, those payable on the first of November, 1873, 1874, 1875, and 1876.
V.5, no. 8-43
WILSON v. QUEEN INs. Co. OF LIVERPOOL AND LONDON.
(Circuit Court, W. D. Pennsylvania. January 21, 1881.)
Mutual mistake as to a material fact will avoid a contract. 2. SAME-SAME-EQUITY.
It is not necessary for either party to go into a court of equity for
the purpose of setting aside such contract. 3. SAME-SAME_INSURANCE POLICY.
Under such circumstances a contract for insurance would not avoid a prior policy containing the usual condition against other insurance. —[Ed.
Sur Motion of ex parte Defendant for a New Trial.
ACHESON, D. J. The policy of insurance sued on contains the usual condition against other insurance, and provides that a breach thereof shall avoid the policy. The defence relied on was that in violation of this condition the plaintiff took subsequent insurance in the Lycoming Mutual Insurance Company.
There was no conflict of evidence as to any material matter. The facts are as follows: On April 6, 1878, the plaintiff visited the office of E. B. Young, the agent of the Lycoming Mutual Insurance Company, in Wellsboro, Pennsylvania, in reference to insurance on other property. After he had transacted this business, and as he was hurriedly leaving to take a train to McKean county to attend a session of court, Young said to him that he had no insurance on the property, which afterwards burned, and suggested that he ought to have insurance on it. In response to this suggestion the plaintiff said that if he had no insurance on the property he wanted it insured, but he did not want the property insured twice. The plaintiff then signed a blank application for insurance and a blank premium note, which Young filled up and forwarded to the home office of the Lycoming Company. Shortly afterwards the company sent Young a policy to be delivered to the plaintiff.