Le Strange v. State ex rel. Roche, 58 Md. 26

58 Md. 26 | Md. | 1882

Alvey, J.,

delivered the opinion of the Court.

This is • an action on an injunction bond, given by the State, and in whose name the action is brought, as legal plaintiff, for the use of Emily A. Roche, wife of Michael Roche.

The questions involved on this appeal are mainly of a technical nature, and depend on the sufficiency of the pleading, including the declaration.

The declaration alleges, that an injunction Avas issued, in a cause pending in the Circuit Court of Baltimore City, wherein one of the present defendants, Patrick Le Strange; was complainant, and Michael Roche and Emily .A. Roche, his Avife, were defendants, “restraining the said defendants from building upon the property specified in said proceedings.” It then alleges the fact, that the bond sued on was given by the present appellants in pursuance of a special order of the Court, requiring a bond of an increased jDenalty over that first given upon obtaining the injunction;—profert ■ of the bond sued on being made, and a copy thereof filed with the declaration. The condition of the bond, as stated in the declaration, is, that if the said Patrick should prosecute the writ of injunction with effect, and satisfy and save harmless the defendants in the equity cause, if the injunction should not be prosecuted with effect; and, in such case, pay all costs and damages caused by the issuing thereof; then, the obligation to be void, otherwise to be of full force.

The breach of this condition, as assigned in the declaration, is, that the defendant Patrick did not prosecute the writ of injunction with effect; but, on the contrary, such proceedings were had in the cause, that the Court decreed the dissolution of the injunction, and dismissed the bill whereon the same was founded; whereby the injunction bond became forfeited, and by reason thereof an action has accrued; but that the defendants have failed to pay to the said Emily, for whose use the action is brought, the amount of the bond, &c.

The defendants demurred to the declaration, upon two distinct grounds: First, that the declaration failed to disclose and set forth such beneficial interest in Mrs. Roche, as to justify the prosecution of the suit on the bond for her use; and secondly, that the breach assigned is altogether too general and indefinite, and is not within the terms of the condition of the bond.

As to the first of these grounds of demurrer, the Code, Art. 16, sec. 108, provides that a Court of equity, whenever a bond is required to be given in any case, and it appears to the Court to be proper so to order, “may take such bond in the name of the State as obligee, and the same may be sued on by any person interested, as public bonds may, and a copy, certified, &c., shall be received in evidence, to the same effect as certified copies of public bonds.’’

Upon a bond thus taken, suit must be brought in the name of the State, as legal plaintiff. But the State in fact has no interest in the bond, and no cause of action ■can arise thereon until there be a breach of the condition affecting the interest or right of some party legally concerned; and it is only those having an interest in the subject-matter of the condition, and for whose benefit the bond is taken, that can put the bond in suit. The name of such party must appear in assigning the breach, and also the right and interest in respect of which he sues; and this not only that an opportunity may he afforded to the defendants of meeting and resisting the claim of the equitable plaintiff, hut that the bond may not be twice subjected to suit for one and the same cause. Boteler & Belt vs. State, use of Chew, 8 Gill & J., 359, 384; Ing & Mills vs. State, use of Lewis & McCoy, 8 Md., 287, 295.

But in this case, we think, both the name of the equitable plaintiff, and the right and interest in respect to which she sues, are sufficiently disclosed in' the declaration, though not, it is true, in a very formal manner. It is sufficient, however, to prevent surprise, and to identify the cause of action in respect to which the suit is1 brought.

Then, as to the second ground of demurrer. The breach of the condition of the bond is certainly assigned in very general terms. It is alleged that the injunction was not prosecuted with effect, hut that the same had been dissolved bymrder of the Court. The truth of this allegation is admitted by the demurrer, and this, of course, constituted a breach of the condition of the bond. And this short form of assigning a breach of the condition of an appeal or an injunction bond has been expressly sanctioned by this Court, in the cases of Karthaus vs. Owings, 6 H. & J., 134; same case on second appeal, 2. G. & J., 430, 441; and Burgess vs. Lloyd, 7 Md., 178, 195. In the case of Karthaus vs. Owings, as reported in 2 G. & J., the Court said, “we think the breach was properly assigned by a negative averment that he (the defendant) had not, in the language of the condition of the bond, 'prosecuted his suit with effect.’ In assigning breaches the general rule is, that they may be assigned,. By negativing the words of the covenant. The exception to this rule is, that when such general assignment does not necessarily amount to a Breach, the Breach must Be specially assigned.” To such general assignment, it is incumbent upon the defendant to plead specially, unless he thinks proper to rest his defence upon the simple affirmative allegation that he did prosecute the writ of injunction with effect. 1 Md., 191.

We are of opinion, therefore, that the demurrer to the declaration was properly overruled.

After the demurrer wras overruled, the defendants pleaded five pleas. The first three of these pleas were in effect pleas of nul tiel record, denying the existence and effect of the injunction. But as the Bond sued on expressly recited the pendency of the proceedings in which the injunction was ordered, as also the fact that the injunction had Been issued, and was in force at the time the Bond was given, the defendants were effectually estopped from denying those facts. Lloyd vs. Burgess, 4 Gill, 187, and Burgess vs. Lloyd, 1 Md., 179; Hardy vs. Coe, 5 Gill, 189. The plaintiff, however, thought proper to join issue on those pleas; and as such issues were only triable By the Court, upon an inspection of the record, the judgment of the Court Below, whatever it may have Been, has not Been embodied in a bill of exception and Brought to this Court for review. McKnew vs. Duvall, 45 Md., 501.

The fourth plea sets up as a defence, a provision of the City Code, whereby a permit from the city authorities is required to Be obtained for erecting such Building as that restrained By the injunction, and that no such license or permit had Been obtained by the defendants in the equity proceeding until after the injunction was dissolved.

And By the fifth plea, it is averred, “that the said Emily A. Roche, from the time of the making of the said Bond hitherto, hath not Been damnified By the failure of the said Patrick Le Strange to prosecute the said writ of injunction with effect.”

The plaintiff replied to, and also joined issue on, the fourth plea; and to the fifth plea there was a special replication, setting forth how, and to what extent, damage was sustained by the equitable plaintiff, by. reason of the injunction; the breach of the condition of the bond previously assigned being simply the failure to prosecute the injunction, with effect. Of course, if the injunction had been prosecuted with, effect, there could have been no such wrongful cause of injury as that set forth in the replication; and therefore the matters set forth are nothing more than a more special and particular assignment of the breach of the condition of the bond than had been made in the declaration.

To this latter replication the defendants demurred; and as this demurrer requires the Court to examine all the previous pleading, we must determine whether the fourth plea of the defendants constitutes a bar to the action.

That it does not, would seem to be too plain to admit of a question. For while it may be perfectly true that the defendants in the injunction proceeding had not obtained the supposed necessary permit at the time the injunction was ordered, it does not follow, nor is it to be assumed, that they would not have obtained it within the proper timé, but for the injunction. From the moment the injunction was issued, the permit was of no practical use or value until after the restraint of the injunction was removed. The erection of the building could not be proceeded with while the injunction was in force, whether the permit was obtained or not; and the fact that none was obtained until after the injunction was dissolved, was a matter entirely between the city and the party whose duty it was to procure the permit before erecting the building, or before applying the building to the particular use for which the permit was required. That plea, therefore, forms no Lar to the action, and is wdiolly immaterial.

And as to the fifth plea of the defendants, that of non damnificatus, it is somewhat difficult to discover upon what principle such a plea was pleaded to the breach assigned of the condition of the bond, except it be that the breach assigned was so general that a more particular assignment was required. It was certainly a departure from the established rules of good pleading. But as no objection is made to the plea on the part of the plaintiff, we shall treat it as properly pleaded: and so treating it, it follows necessarily, from the nature and object of such a plea, that the plaintiff must have either demurred, or replied specially, setting forth how she was damnified. Everett & Dilley vs. State, use of McKaig, 28 Md., 209; 1 Chit. Pl., (16th Ed.,) 612; Step. Pl., 360, 361. The latter course was pursued, and the plea specially replied to; and, after the demurrer to the replication was overruled, the defendants, in a short way, joined issue upon the matters set forth in this replication; and tliis was the only substantial issue of fact for trial in the ease. In overruling the demurrer, there was nothing of which the defendants can complain.

In the course of the trial before the jury, there were several hills of exception taken by the defendants; and the questions raised thereon must next be considered.

In the first exception, the simple question was, as to the admissibility in evidence of the equity proceedings in which the injunction was granted. It was agreed that the original papers should he used and have the same effect as a certified transcript; and we can perceive no possible objection to the admission in evidence of those proceedings, under the agreement. They were competent and admissible evidence to show upon what allegations of fact the injunction was granted, and in respect to what subject-matter it was intended to operate. The whole proceeding, so far as it related to the granting, continuance and dissolution of the injunction, was material, and therefore properly admissible. Jenkins & Hewes vs. Hay, 28 Md., 547; Wallis vs. Dilley, 7 Md., 246.

The question intended to be presented by the second bill of exception has already been disposed of, in passing upon the sufficiency of the defendants’ fourth plea. The plea forming no bar to the action, and being wholly immaterial, of course, the evidence offered in support of such plea would be inadmissible, and it was therefore properly rejected.-^

The third bill of exception was taken to the refusal of certain motions of the defendants to strike out particular portions of the evidence that had been offered by the plaintiff; and also to the granting of an instruction on the part of the plaintiff, and the refusal of instructions on the part of the defendants.

As to the motions to strike out the evidence, we can perceive no ground whatever upon which they should have been granted. In the first place, the evidence does not appear to have been received subject to such application to strike out; and, in the next place, there would seem to be no legal objection to its admissibility. Moreover, so far as the second motion is concerned, that relating to the contract with the carpenter, the fifth prayer of the defendants, which was granted, fully gratified all that was asked by the motion.

The single instruction granted on the part of the plaintiff is free from objection, notwithstanding the bill of complaint of the defendant Le Strange had been stricken from the evidence before the jury. The "injunction bond, with its recitals, the writ of injunction, and the orders of Court in relation thereto, were still in evidence ; and these, in connection with the other evidence, were ample upon which to found the instruction.

The first and second prayers on the part of the defendants were properly rejected. There was very ample evidence before the jury of the plaintiff’s right to recover; and it would have been palpable error in the Court below to have granted either of the prayers referred to. The other prayers offered by the defendants appear to have been conceded by the plaintiff, and were granted by the Court; and, by the third and fourth of those prayers, the liability of the defendants, on the bond, was carefully guarded and restricted to such damages as might be found to have resulted only and exclusively from the operation of the injunction.

After verdict for the plaintiff there was a motion in arrest of judgment; but most of the grounds assigned lor that motion have alre'ady been disposed of. The first ground alleged is, that the action was instituted by and for the use of a married woman, without the intervention of her husband or next friend;. and that the Court had improperly allowed an amendment to be made, whereby the name of the husband was inserted.

The question of the propriety of allowing the amendment to l)e made cannot be reached on motion in arrest of judgment; and that question, as we have already said, is not one for review by this Court.

But the question sought to be raised, both by the motion in arrest, and by the plea in abatement that was pleaded to the declaration, has long since, and by repeated decisions, been settled in this State. The action is in the name of the State, as legal plaintiff, and Mrs. Roche is only cest/id que use; and though she be feme covert, that fact did not make it necessary that the name of the husband should he used a°s next friend.

In the case of Fridge vs. State, use of Kirk, 3 G. & J., 103, the action was in the name of the State on a guardian’s bond, for the use of a female ward, brought before she had attained the age of twenty-one years, against one of tlie sureties on the hond. The question was distinctly made to and urged upon the Court, that the action could not be maintained, because of the inability of the infant ward to sue. But the Court held it to be wholly immaterial that she was under age. They said: “She is not the legal plaintiff; the bond is to the State, the suit was brought in the name of the State, the legal plaintiff, and she is only the cestui que use; and it was not necessary for the purposes of the suit, to enter the use at all. Though it is usually done in such cases, it might have been carried on as well without it, as with it. And being done, her non-age could not form the fit subject of a plea, the action not being brought in her name. We cannot distinguish this from the case of the State vs. Dorsey, 3 G. & J., 75.”

(Decided 2nd March, 1882.)

The motion in arrest was properly overruled; and upon review of the whole record, we are of opinion that the judgment should he affirmed.

Judgment affirmed accordingly.