89 F. 79 | U.S. Circuit Court for the District of Western Virginia | 1882
I do not think the points relied upon by defendant in support of the plea of non est factum can be sustained. The military government of Virginia during the years 1867, 1868, and 1869 was a de facto government, whose acts have been recognized as authoritative in all matters of general administration ever since; and the magistrates appointed by Gen. Canby as commandant of the district were as competent to act for the counties in which they presided as their predecessors had been. Their acts must have been held to have been valid and authoritative.
- As to the question whether less than a majority of those could bind the county by an order for the issuing of county bonds, I think the great preponderance of authority is to the effect that when a county’s own agents execute bonds of the character of those sued upon here, and there is nothing on the face of the bonds showing that they were not to be issued except after forms and conditions of some sort had been complied with, and no steps had been taken by the authorities of the county itself to prevent or convict an irregular issue of its bonds, then the county is estopped from objecting to the regularity of the issue. The supreme court of the United States has gone very far in this direction, and the general preponderance of authority is in favor of such a ruling. Rock Creek Tp. v. Strong, 96 U. S. 271; San Antonio v. Mehaffy, Id. 312; Meyer v. City of Muscatine, 1 Wall. 385; Board of Com’rs v. Aspinwall, 21 How. 539; Moran v. Commissioners, 2 Black, 722; Redd v. Supervisors, 31. Grat. 695; and see authorities cited at the close of the last case.« See, also, Bigelow, Estop. 266.
I proceed, therefore, to the principal question in this case, which is whether the bonds which are the subject of this suit are negotiable instruments, and, as such, good in the hands of a bona fide holder as against all equities which the obligor might have had against any prior holder. It is a bond under seal, in the ordinary form of the single bill, long used in Virginia. It is payable to the obligee or assignee, which latter is the old term used in bonds under seal. A host of authorities might be cited to show that the assignee of a.chose in action in a court of law must bring the action in the name of the assignor for the benefit of himself, and that everything which might have been shown in defense against the assignor may be used against the assignee. Very many of the principal of these authorities are given in 1 Bouv. Law Dict. 151. See, also, Bebee v. Bank, 1 Johns. 529; Moore v. Holcombe, 3 Leigh, 597; Cary v. Bancroft, 14 Pick. 315. It is only by express statute that an assignee is authorized to sue in his own name in Virginia (Code 1873, c. 141, § 17), but he sues here subject to all the equities which the defendant may have had against the assignor before notice of the assignment. When there are no negotiable words in a bond, and it is not made payable to order or to bearer, but is made payable to assigns, the use of that word imports nonnegotiability, and is one of the distinguish
The defense then asked leave to file special pleas setting up with precision their grounds of defense on the merits. Counsel for plaintiff objected thereto, claiming that the request came too late, after the jury had heard the evidence, and the court had disposed of the prayers for
The pleas now offered go to the very merits of the case. They are offered in good faith, and not for the purpose of delay. The defendant is willing, if these pleas are admitted, to go on at once with the trial on the evidence already before the jury. To refuse permission to file these pleas would be a denial of justice.
There is another consideration which ought to weigh in this matter. The suit here is for the sum of about $2,000, and from the judgment of this court there is no appeal. Hot only is this large sum dependent upon the unreviewable ruling of this court, but the present is avowed to be a tentative 'action, brought to” test the liability of the defendant county for a large number of bonds outstanding, of which the two now in suit are a part. The pressure of business upon the supreme court of the United States is so great that congress has found it necessary to intrust final jurisdiction to the circuit courts of all suits involving values less than $5,000. This is a state of things quite anomalous in our country, and I think it incumbent upon these courts to allow liberal facilities of pleading in all cases where the good faith of the pleader is apparent, and where the result aimed at is to place the trial of causes on their very merits. I will allow the defendant to file the pleas which he has offered.
The plaintiff then moved for a continuance, which was granted as of right. Ho plea was offered raising the question of the jurisdiction of the federal court in the case, under the fifth clause of the first section of the judiciary act of 1875 (1 Supp. Rev. St. U. S. p. 174).