M'Mechen v. Mayor of Baltimore

2 H. & J. 41

Opinion

•Chase, Ch. J.

delivered tiie opinion of the comí. The court cannot travel out cf the record, but will make every iv i: :rsary intendment iu support of the judgment of the inferior court

Footnotes

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(a.)

I he judgment by confession is an admission of the right, of v'.Y íhieffír and City Council of Baltimore to recover the penalty of the bond; and whether it is in their own right, or for the use of another, is not material, and cannot be a cause of reversing the judgment.

According to the record, and the nature of the transaction as disclosed by it, the legal and necessary intendment Is, (hat the bond and license were given on the same day', and that the execution of the bond preceded the granting of the license, because the nature of the transaction required ii.

The court cannot so construe, the recital in the bond as to defeat its operation, and render it a nullity; such an exposition would be a violation of the plainest principles of law and justice.

I! the fact was, that the license was obtained prior to the execution of the bond, it was capable of proof, and in the power of the plaintiff in error to have availed himself of it, by retaining his plea of general performance, and insisting on that fact in his rejoinder to the replication of the defendants in error assigning the breach.

That the security is not answerable beyond his engagement, is a position that cannot be controverted.

In this case the plaintiff in error, as security, reposed a confidence in the principals, the auctioneers, and not in the mayor: and actually engaged that (he auctioneers should pay and satisfy all just claims against them as auctioneers; and the judgment, by confession, admits the claim of Tfie Mayor and. City Council of Baltimore, against the plaintiff in error, to the extent of the penalty of the bond, subject to the release on the record.

The repealing ordinance cannot destroy or affect any right which was acquired by any person under the first ordinance before the repeal thereof.

JUDGMENT AEEIB.MED (a.)

) If by any means whatever the plaintiff can be supposed to have a title as laid in the declaration, as this is after verdict, vve will hold this judgment right, and there is no inconsistency. Wit*. 1. 3 Burr, 17¿5, 7,

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JTbe court were also of opinion, (though as this point was Slot before them, they omitted itin the written opinion which was delivered,) that every person who entrusted the auctioneers with the sale of goods, and had a claim against them lor money arising on the sale of the goods, has a right to. apply to the mayor and city council to direct a suit to be instituted on the bond of the. auctioneers for the recovery of his claim,, and the corporation could not, consistent with their duty under the ordinance, refuse such application, and might be enjoined, by suit in chancery,. Up-, allow the person to use their name to prosecute his claim*