Laurenson v. State ex rel. Levy Court

delivered the opinion of the Court. The defence in this case cannot be sustained. It would be contrary to every principle of law to allow a man to avail himself of his own wrong, and plead a breach of duty as an excuse for a gross fraud upon the public.

Keenan being regularly appointed collector under the act of 1794, ch. 53, having given bond, with security, for the faithful performance of his duty, and received from the levy court the necessary books to make his collection, will be presumed to have taken the oath prescribed by law, asa prerequisite to the performance of his official duties. It cannot be for him to say, a suit on this bond shall be defeated by his own neglect or malfeasance.

The securities, in point of law, must he placed in the same predicament. They have engaged that Keenan shall faithfully discharge his duty as collector, part of that duty was to take the oath prescribed by law, to enable him to make his collection, and they cannot be allowed, (in this respect,) a defence that is denied to the principal.

*344The appellant has also relied on errors in the pleadings— that this is an action on a bond with a collateral condition, and no breaches are assigned. This is fatal, unless cured by the agreement filed by the parties. By a paper signed by the counsel on both sides, it was agreed, in the several actions depending on the same bond against the sureties in the county court, “that, the defendants in these cases shall plead ml debet, and that on the trial of the issues on that plea they shall severally be entitled to make all such legal objections, and give all kinds of evidence, which they could be entitled to make or give by or under any mode or form of pleas or pleading which could be legally used.”

Whether the court are bound by a strict grammatical construction of this agreement, or may be permitted to look into the circumstances that gave rise to it to ascertain its true character, is the only difficulty presented by it. It is certainly a very loose course of proceeding, and the court cannot but express their regret, that instead of regular pleadings in the case, they are required to act on a substitute not free from ambiguity, and upon which the counsel cannot agree. See the case of Orme vs. Lodge, 3 Harr. & Johns. 83.

The court are of opinion, that this agreement ought to receive a liberal construction, to carry into effect what appears to have been the intention of the parties, and not one to defeat the plaintiff, whatever might have been the merits of his case. It is considered an agreement to waive all errors in the pleadings, and that instead of proceeding in the regular course, by praying oyer of the bond, pleading performance and assigning breaches, that the plea of nil debet shall be received, and under that plea the cause should be tried, as if all the pleadings had been regular. In this view of it, it would not be injurious to either party; its only effect would be to save trouble in pleading, and the merits of the case would come fairly before the jury.

If this was not intended to be its effect, it is difficult to conceive why the defendant did not avail himself of it in the court below. Both parties proceeded to the trial of the cause, under this state of the pleadings, and that affords strong evidence? that the agreement was considered as a toaiver of errors.

JUDGMENT AFFIRMED.