Clemens v. Mayor of Baltimore

Bartol, J., delivered the opinion of this court. This action was instituted by the appellees against the appellant. The declaration contains the common money counts, a count for work and labor, and an insimul computassent count. The defendant pleaded the general issue. ²¹¹ The bills of exceptions state: “That the plaintiff proved by Win.

H. Cowan, a competent, witness, that the defendant promised to pay the amount of the claim in this case, which amount the witness only knew from the bills that he had seen, some three or four of which bills he (witness) knew, had been served on the defendant, and he believed the amount to be about four hundred dollars; but that he knew well, the sum in the bills, and the inquisition heretofore taken in this case, correspond, and that the sum promised to be paid by the defendant, was some twenty-five dollars less than the amount of the said bills and inquisition. The cestuis que use were pavers, and the claim is for paving Fulton street for the plaintiff. The plaintiff then offered in evidence the following: (Here insert the record from the City Commissioners.) uMemorandum. — -The clerk having repeatedly called on the plaimifFs counsel for the record from the City Commissioners (referred to above) has been unable to obtain the same, up to the present time. “Before the reading of the record of the Commissioners of Streets, as produced by the clerk of said commissioners, he, the said clerk, deposed that the original papers and proceedings, in the matter of paving Fulton street, had been lost, and that he could not find them, though he had repeatedly made diligent search for them in the place where such papers should be. The defendant offered in evidence the Ordinance of the city of Baltimore, No. 15, entitled, ‘An Ordinance establishing a system for grading, paving and repairing the streets, lanes and alleys in the city of Baltimore.’ ” This constitutes the whole evidence in the case.

The defendant presented two objections to the record book of the city commissioners: 1st. That it was not evidence to prove to the jury that the proprietors of a majority of feet of ground on Fulton street, made an application to pave Fulton street, as in said book set forth. 2nd. That said book was not evidence that the Mayor of ²¹² the city of Baltimore approved, &c., as required by the 4th section of Ordinance, No. 15. These objections were overruled by the court below.

In the absence of the record book of the proceedings of the city commissioners, this court cannot decide upon the propriety