Mayor of Newark v. Dickerson

45 N.J.L. 38

Opinion

The opinion of the court was delivered by

Dixon, J.

If any of the pleas demurred to presents a good defence, the defendant is entitled to judgment.

We think the tenth plea is sufficient. It alleges in substance that the obligees in the bond intentionally brought about the breach now complained of. They must therefore be estopped from complaint. The maxims “ volenti non fit injuria,” and “ nullus commodum capere potest de injuria sua propria,” are both in the way of a plaintiff so situated.

It is unnecessary to consider whether mere neglect of legal duty by the city, or active misconduct on the part of other city officers, would impair the obligations of the sureties.

■ Let judgment be entered for the defendants, unless the plaintiffs take leave to withdraw the demurrer and reply, on payment of costs.