| U.S. Circuit Court for the District of Massachusetts | May 15, 1869
LOWELL, District Judge.
The first de-fence taken in this case is the statute of limitations of Massachusetts, which requires actions against administrators to be brought within two years after they have given bond (Gen. St. c. 97, § 5). The seventh section of the same statute provides that, if an action is brought in due season, and is abated or defeated in consequence of any defect, &c., or of a mistake in the form of proceeding, the plaintiff may commence a new action for the same cause within one year after the determination of the original suit. In deciding whether the former action between these parties was defeated in consequence of a mistake in the form- of proceeding, we may well look at the decisions upon the corresponding section of the general statute of limitations, which is very similar in its terms, and has been longer upon the statute-book (Gen. St c. 155, § 11), and we shall find that the supreme court of Massachusetts have given to this exception a liberal interpretation in favor of meritorious creditors. The tendency of their decisions is to bring all mistakes which have defeated actions, independently of their merits, within the saving of the statute. Thus, a mistake in the residence of the defendant is held to be an unavoidable accident within that clause (Bullock v. Dean, 12 Mete. (Mass.) 15); a mistake of the clerk in not entering a writ, by reason of which the action was dismissed, was a matter of form (Allen v. Sawtelle, 7 Gray, 165); and where an action was dismissed for want» of jurisdiction, because brought in a county where neither of the trustees lived, it was held to be defeated for a matter of form (Woods v. Houghton, 1 Gray, 580). It was argued to us that the court in the case last cited had jurisdiction of the subject-matter and of the parties, and so a mistake of venue was a merely formal mistake. But it was a mistake which went to the jurisdiction of the court, in that county, and the fact that it was the same court, and not some other, that had jurisdiction in the proper county, was not of the essence of the decision. If the miscarriage here had been in the circuit court in Maine instead of New York, the cases would be exactly analogous, but the decision ought to be the same. It was said, indeed, that this was a more considerable mistake; but that is immaterial; the statute intends to guard suitors against mistakes which are not of substance, whether large or small. The mistake in the first, ease of Woods v. Houghton was one of law, and was patent on the writ, or it could not have been dismissed on motion. Indeed, the argument for the defendant in the second case was that a mistake of jurisdiction, patent on the writ, was not a mistake of form. We do not regard the difference in language between the two statutes to be
The defence upon the merits rests upon the effect attributed to the state of war which existed between the United States and the states in rebellion, during the time that most of the freight money was earned, and when the insurance contracts were made and the losses settled. It is argued that an express promise by Payne to pay the freight money to the plaintiff would have been illegal, and so an implied promise could not arise, for the law will not imply an illegal promise. This would have been a good de-fence to an action brought during the war. The law prohibits ordinary commercial intercourse between enemies on grounds oi public policy, and if Payne had expressly promised to pay, during the war, or had accepted a bill of exchange drawn at that time for „ the purpose of transferring the funds during war, the contract would have been illegal and could not be enforced even after the return of peace: Willison v. Pat-teson, 7 Taunt. 439. But war does not confiscate debts or property for the benefit of debtors or agents, but only suspends the right of action. It is no longer illegal for the defendants to pay the plaintiff, and the law will imply a promise to pay money when it ceases to be illegal to do so.
In respect to the insurance moneys it is said that the contract to insure the vessel of the plaintiff, or his freight, was illegal, and that the insurance companies could not have been obliged to pay the loss, and having paid it to Payne he cannot be obliged to account to the plaintiff. Assuming the illegality of the original contract, it by no means follows that the plaintiff cannot recover. If I employ an agent to rob or cheat my neighbor, I cannot oblige him to account to me for the spoil, because in order to do this, 1 must display the defect of my own title. But if I send a second agent to receive the money of the first, and he does receive it, my title as against him depends on his having received it in my name from a person who voluntarily paid it. So here Payne having collected the loss in behalf of the plaintiff cannot say that the insurance companies need not have paid it. The argument for the defence relies very much upon the fact that Payne procured the original insurance, that is, ordered the brokers to have it made; but this is immaterial; when made it was a contract between the plaintiff and the companies, and when Payne collected the <oss of the brokers, he was not concerned with the original contract. I do not mean to say that the brokers would have been in any different position. Making the contract and receiving the payment were distinct and independent acts of agency, which have no legal connection with each other. If indeed the insurers had been deceived and had paid the money in ignorance of facts which invalidated the policy, and had discovered the mistake before the brokers paid over to Tayne, an action might probably have been maintained against the brokers to recover back the sums so ignorantly paid. If the payment had already been made to Payne, it is more doubtful whether the action would have lain against him, because he never contracted with the companies. But waiving this point, the case before us does not show any ignorance or mistake in this behalf, and if it did the statute of limitations would protect these defendants; though the plaintiff might still be liable to the companies.
The parties have agreed that there should be but one bill of costs in the three suits, and that in the event of a decision for the plaintiff this action should be sent to a commissioner of this court to state an account. Order accordingly.