GRAND CHUTE

v.

WINEGAR. [AT LAW.]

Mr. Justice HUNT delivered the opinion of the court.

The first alleged error of which complaint is now made is the direction of the court to the jury that they find the issue for the plaintiff on the plea of abatement where issue had been joined and testimony taken. The defendant held the affirmative of the issue, and attempted to sustain his case by calling Winegar, the plaintiff on the record.

Winegar swore that he had purchased the bonds On which the suit was brought of Goodwin ; that he was the absolute owner of them; that he gave for them his notes for $5100, payable in one and two years, at seven per cent, interest, and that the purchase was made in good faith, with no knowledge or information that the bonds were not valid and with no reason to believe they were not. He testified also that he never had the bonds in his possession, that he had a bill of sale of them, and they were subject to his order, and that the bill óf sale was signed by Goodwin as the agent of Hewett, the seller. There -was no evidence here that would have justified a finding by the jury that Winegar was not the bond fide owner for value of the bonds in suit. He ivas the defendant’s witness, and no other witness was called upon the issue. If the jury had found otherwise it would have been the duty of the judge to set aside the verdict as unsupported by evidence and in hostility to all the evidence given. There ivas no error in this charge.

Upon the decision of the plea in abatement the plaintiff asked for final judgment in his favor upon the verdict. Of the refusal to comply with this request, the plaintiff makes complaint, but as he ultimately succeeded in the suit, that result wipes out all exceptions on his part. Upon this refusal the defendant interposed nine special pleas. The plaintiff moved to strike from the record the second of the said pleas as being inconsistent with the fact, and this motion was granted. The first of the said pleas was that the defendant did not owe the moneys demanded or any part thereof in manner and form as the plaintiff had complained against it. The second plea was that the said supposed writings were not, nor were any of them, the deed of the defendant. It is not easy to see the inconsistency of these two defences. If the defendant had never executed the bonds, it ivould be very likely it did not ow'e the moneys in them agreed to be paid. So again it might well be that if it did not owe the money it had never executed the bonds. If not an error in striking out the second plea, there certainly was an erroneous reason given for it. If any prejudice had occurred to the defendant from striking out the plea of non est factum there would be difficulty in sustaining the judgment. But the record shows none. Indeed it is evident that although the plea ivas technically excluded, no evidence was rejected on account of its absence, but that the defendant litigated every question of fact as far and as fully as it would have done if this pleading had remained. Numerous offers of evidence were indeed objected to by the plaintiff and rejected by the court, but the objection was, in a few instances, only based on the character of the pleadings and then in connection with the objection of irrelevancy and incompetency. In no instance was the rejection placed upon the absence of a proper plea. The objection was sometimes expressed to be on the ground of the irrelevance and immateriality of the evidence offered, and in the remaining instances it is,evident, from the nature of the offers, that the objection and decision were upon that ground. Among these were the offers of'the pleadings in the equity suit still undecided, and again after its dismissal, and including his own bill of complaint, also the book of records of the town clerk’s office, also the location of the plankroad, also that.it was changed to a different route for the benefit of the parties who procured the issuing of the bonds, and much other evidence of a similar character. It doe3 not appear that any evidence on the point of the actual signing and delivering of the bonds was rejected by the court, or that any harm was sustained by the defendant, from the absence of his plea of non e$t factum.

A further answer to this objection is given in the plaintiff’s brief, to wit: that the allowance of double pleas and defences is not a matter of absolute right, but of discretion in the court, and that the courts constantly exercise their discretion in controlling this privilege by disallowing sham or inconsistent pleas.*

The eighth plea was, on motion of the plaintiff, stricken out for the avowed reason that it embraced the same matters as had already been set up and passed upon in the plea in abatement. The pleas are the same in substance and effect. The eighth plea contains the same matter which is in the fifth, though in the eighth it is set forth with much fulness of detail, giving copies of the agreement with Ilewett, and specifying the mode aud manner in which the fraud, which both the pleas set up, was alleged to have been effected. The two pleas are, however, as has been already said, the same in substance and effect. A party having his plea in abatement passed upon by a jury, and found against him, is not permitted to set up the same matter in bar and again to go to the jury upon it.*

Numerous objections were taken, and in a variety of forms, which fall within the principles of Knox County v. Aspinwall,† Mercer County v. Hackett, ‡ and Meyer v. The City of Muscatine. § The most of the objections, which wo have airead}’ referred to, were decided not Upon the pleadings, but upon the principle of these cases. In Knox County v. Aspinwall Mr. Justice Nelson thus states the question: “The main ground of the defence relied upon to defeat the recovery is, that the defendant, the board of commissioners, possessed no authority to execute, or to authorize to be executed, the bonds in question, and hence that they arc obligations not binding upon the County of Knox, which this board represents. Our chief inquiry, therefore, will be whether or not these several obligations were executed and put into circulation as evidence of indebtedness by competent legal authority.” Upon the inquiry thus put the decision is stated by the reporter in the following language: “Where the statute of a State provided that the board of commissioners of a county should have power to subscribe for railroad stock, and issue bonds therefor, in case a majority of the voters of the county should so determine after a certain notice should be given of the time and place of election, and the board subscribed for the stock and issued the bonds, purporting to act in compliance with the statute, it. is too late to call in question the existence or regularity of the notices in a suit against them by the holders of the coupons attached to the bonds, who were innocent holders. In such a suit, according to the .true interpretation of the statute, the board were the proper judges whether or not a majority of the votes of the county had been cast in favor of the subscription . The bonds on their face import a compliance with the law under which they were issued, and the purchaser was not bound to look further for evidence of a compliance with the condition of the grant of the power.”

In Woods v. Lawrence County. * it was held that where the statute requires the grand jury to fix the amount of a subscription to railroad stock, and to approve of it, and upon their report-being filed empowers commissioners to carry the same into efl'ect by making its subscription in the name of the county, and if these things be done agreeably to the law, the county cannot afterwards deny its obligation to pay the amount subscribed. In a suit brought to recover the arrears of interest on such bonds, it is not necessary for the holder to show that the graud jury fixed the manner and terms of paying for the stock; nor is it a defence for the county to show that the graud jury omitted to do so. It is enough that the manner and terms of payment were agreed upon between the company and the commissioners. In a suit brought upon the coupons by a bond fide holder, his right to recover is not aflected by the fact that the railroad company sold the bonds at a discount of twenty-five per cent, contrary to the charter, which forbids the sale of them' at less than their par value.

In Mercer County v. Hacked,† it was held that where a county issues its bonds payable to bearer, and solemnly pledges the faith and credit and property of the county, under authority of an act of the Assembly, referred to on the face of the bonds by date, aud the bonds pass into the hands of a bond fide holder for value, the county is bound to pay them; that it is no defence that the act of the Assembly referred to on the face of the bonds authorized their issue only on, and subject to, certain “limitations, restrictions, and conditions,” which have not been formally complied with, nor that the bonds were sold at less than par when the act authorizing their issue declared that they should in “ no case,” nor “ under any pretence,” be so sold, and that the bonds ave in the nature of negotiable instruments. The same principles are announced in Gelpeke v. The City of Dubuque * and in Meyer v. The City of Muscatine. † In the latter case the court say that if the legal authority was sufficiently comprehensive, a bond fide holder for value has a right to presume that all precedent requirements have been complied with.

By the act of February 10, 1854, the legislatui’e of Wisconsin authorized the supervisoi’s of the town of Grand Chute to make a plaukroad subscription to the amount of ten thousand dollars. The bonds in' question were signed by the chairman of the board of supervisoi’s of that town, and recited that the subscription had been made by the supervisors of the town, and that these bonds were issued in pui’suance thereof for the pui’pose of canying out the provisions of that act. The plaintiff was the bond fide holder for value of the bonds in suit, and his title accrued befoi’e their maturity. The cases cited are an answer to the numei’ous offers to show want of compliance with the forms of law, or to show fraud iu their own agents. Thei’e are some other exceptions which it is not necessaxy to consider in detail.

After a careful examination of the whole case, we are of the opinion that the judgment should be

Affirmed.

* See the language of Mr. Justice Story in Ex parte Davenport, 6 Peters, 661. .

*

† 21 Howard, 539.

‡ 1 Wallace, 83.

§ Ib. 384.

* 1 Black, 386.

† 1 Wallace, 83.

* 1 Wallace, 175.

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