State ex rel. Mayor of Baltimore v. Norwood

Eccleston, L, delivered the opinion of this court. This suit was instituted in the name of the State for the use of the Mayor and City Council of Baltimore, against Lambert S. Norwood, Elizabeth Smith, Joshua M. Turner, and John W. Watkins, upon the official bond of Norwood, as clerk of the Court of Common Pleas for the city of Baltimore, dated the 29th of June 1853; the penalty of which is fifty thousand dollars. The nclr and the plea are similar to those in the preceding case, between the State for the use of the Mayor and City Council of Baltimore, as plaintiffs below, against L. S. Norwood, E. Smith, and J. M. Turner. In the case now before us, the record contains an agreement in the following language: “It is agreed that in this Case errors in pleading on both sides be waived, and that either party may give in evidence any testimony which might have been offered in any state of the pleadings.

The copy of the bond may be given in evidence without producing the original.” It appears from the record a jury was sworn, and their verdict, as stated, is, “that the defendants do not Owe to the said plaintiff the said sum of money, or any part thereof, in manner and form as the said plaintiff hath above alleged.” And thereupon the court., on the l2(h of December 1894, gave judgment in favor of the defendants; from which this appeal is taken by the plaintiff. The bill of exceptions shows that, upon the boiid being offered in evidence at the trial, the defendants’ counsel asked the counsel for the plaintiffs “for what purpose (he same was offered, and what breach of said bond it was intended to rely upon in this case, and, on the plaintiffs’ counsel refusing to answer that question, or declare on what breach he intended to proceed under said bond, the Court sustained the objection of the defendants’ counsel as to its being offered in evidence, and the same was ruled out, because the bond, oil its face, covering all the duties and liabilities of (he defendant, Nor-wood, as clerk of the Court of Common Pleas, unless it is offered with the intent to prove, under the breaches of it, some default in which the State is directly concerned and interested, ²⁰⁵ which intention is repelled by its being sued on for the use of the Mayor and City Council of Baltimore, if. is inadmissible in evidence under the act of 1844, ch. 280, and 1845, ch. 198, it further not appearing to the court, for want of breaches assigned in the pleadings, for what purpose the bond is offered in evidence.” To this ruling of the court, and refusal to admit the bond to be read in evidence, the plaintiffs excepted. In Laurenson vs. The State, &c., 7 H. & J., 339, in a suit upon a bond with a collateral condition, no breaches were assigned, but there was an agreement similar, in most respects, to the one in the present case. The court considered that a waiver of errors in pleading, and as dispensing with an assignment of breaches in the regular mode.

In delivering the opinion of the court, and whilst speaking of such a practice, the late Judge Mai'tin called it “a very loose course of proceeding,” and we think he gave it an appropriate name. The authority Of that, case, however, requires us to hold in this, that under the agreement thefe Was no need of suggesting breaches in the pleadings, or upon the roll. And we must also say, that the refusal of the counsel for the equitable plaintiffs to state what breach of the bond he intended to rely upon, when he was asked to do so, could not justify the court in refusing to admit that instrument to be read in evidence. If it had been admitted, it would still have been necessary for the equitable plaintiffs to show, by proof, that they had some valid claim for which the bond was responsible.

A further objection to the admissibility of the bond, mentioned by the court and insisted upon by the defendants’ counsel, is, that it was not stamped, as required by the laws existing at its date. The acts alluded to, were passed foi' the purpose of raising revenue for the State. They did not design or profess to confer upon the citizens of