Laidler's Adm'x. v. State ex rel. Hawkins , 2 H. & G. 277 ( 1828 )

Dorsey, J.

delivered the opinion of the Court. The judgment of the county court must be reversed on various grounds. In the first place, the suit appears to have been brought by a creditor upon a testamentary bond, without showing any such justification for this proceeding, as is required by the act of 1720, ch. 24.

In the next place there are no pleadings in the cause, which •could warrant the court in rendering the judgment they have given. The agreement filed, which was designed to supply the want of regular pleadings, is so informal, uncertain and defective, as to be wholly insufficient for that purpose. To sustain a judgment ona testamentary, or any other bond with a collateral condition, obtained on verdict, by default, on nil di~ a case stated, or by confession, not ascertaining the sum on payment of which the penalty of the bond is to be released, the replication must set out a cause of action; or it must appear -on the roll with sufficient certainty by way of assignment of •breaches. The filing the account, which is set forth in the ’transcript, forms not any portion of the pleadings in the case; nor does it properly constitute any material fpart of the record. It can then furnish no aid to the equitable plaintiff by which he can extricate himself from’the incurable objection to his proceedings, which set forth, neither the nature nor amount of the claim, for the recovery-of which his suit was instituted. That judgments, not resting wholly on confession, will be reversed for •want of pleadings made out in due form, has been so frequently decided in this, and the former court of appeals, that to sustain such a position, a reference to decisions is no longer necessary.

There was error also in the opinion of the county court instructing the jury that the plaintiff was entitled'to recover tobacco, and that the jury were not at liberty to give their damages in money. For the reasons before stated, the plaintiff ’below could not have obtained a judgment for any thing; but if the pleadings in the cause would have sustained any judgment at all, as settled by this court in Lyles v Lyles’ Ex’rs. 6 Harr. & Johns. 273, it was competent for the jury to have ...given their damages in money instead of tobacco.

JUDGMENT REVERSED, AND'PROCEDENDO AWARDED. •