Keen v. Whittongton

Alvey, J., delivered the opinion of the Court. This was an action on an appeal bond. The declaration is in the usual form, assigning the breaches of the condition of the bond. The bond was conditioned for the due transmission of a transcript of the record of the judgment appealed from to the Court of Appeals, within the time prescribed by law; the prosecution of the appeal with effect, and the payment to the plaintiffs in the judgment the amount thereof, “ in case the said judgment should be affirmed” by the Court of Appeals, The breaches assigned were, that the defendants in the judgment never did cause a transcript of the record to be transmitted to the Court of Appeals, and did not prosecute their appeal with effect, hut dismissed the same ; and that they have not paid and satisfied the judgment recovered against them.

In the declaration, proferí was made of the bond, and, upon craving of oyer by the defendants, the bond was spread upon the record, and thus became part of the declaration. Step, on Pl., 71. To this declaration the defendants demurred. The grounds of the demurrer appeared to he, 1st, a supposed mistake or variance in the name of the corporation or association; 2nd, the failure to aver that the association was an incorporated body; and, 3rd, the omission to aver that the bond had been duly approved ⁴⁹⁵ according to law.

The demurrer was overruled by the Court below, and we think properly. As to the supposed mistake or variance in the name, the record discloses nothing within the scope of the demurrer from which it could be determined that the real name is different from that used in the bond and declaration. It is not shewn under what law or authority the association was incorporated, and we are not to assume that it has a different name from that by which it was sued, and which it has fully recognized as correct, by the recitals and description of itself, in the bond sued on in this action. It is estopped by such recitals and description of itself from alleging its name to be different from that given.

Lloyd vs. Burgess, 4 Gill, 187 ; Hardy vs. Coe, 5 Gill, 189 . And as the bond, by the profert and oyer, was made part of the declaration, the defendants are equally concluded as to the second ground of demurrer; that is, as to the failure to aver that the association was an incorporated body; for the bond professes, in terms, to be a corporate act of the association, and is executed under its corporate seal. And as to the last ground of demurrer, that of the omission to aver that the bond had been duly approved, we must, in determining this question on the demurrer, presume that the bond was legally approved. It was certainly executed and filed by the defendants, and though approval was essential to give the bond operation and effect as a stay of execution on the judgment, yet it is but rational to presume that it was approved before it was filed, as otherwise the filing would have been a nugatory act.

At any rate, we do not think it necessary to the sufficiency of the declaration that it should contain an express affirmative averment of the approval of the bond. If the bond has not been legally approved, that may be availed of by way of defence. Milburn vs. The State, I Md., 1, 15. The Court below having overruled the demurrer and given judgment of respondeat ouster, the defendant ten ⁴⁹⁶ dered and filed a plea in bar, verified by affidavit, as required by the practice Act of 1864, chapter 6; and, on the same day, upon motion of the plaintiffs, and notwithstanding the plea filed, judgment was rendered by default, and thereupon an inquisition was forthwith taken by jury.

A motion in arrest of judgment was made, founded upon the alleged irregularities of the proceeding. This motion was overruled, and final judgment entered on the inquisition. At the taking of the inquisition, the defendants offered prayers for instruction to the jury, which were refused, and the refusal of these prayers formed the subject of a bill of exception, to be found in the record. The judgment by default non obstante the plea, seems to have been entered upon the supposition that the defendants had lost their opportunity to plead, by allowing the rule day, under the Act of 1864, ch. 6, to poass before the plea was filed.

This renders it necessary that we determine whether