Laidler v. State ex rel. Hawkins , 2 H. & G. 281 ( 1828 )

Dorsey, J.

delivered the opinion of the Court. This caffe^ although upon the same bond and with the same pleadings, as the case of Laidler’s Adm’x. v The State, use of Hawkins, decided by this court at the present term, (ante 277, J must receive a different determination. There the judgment was rendered below, upon trial and verdict, without any admissions or consent of the defendant. Here the judgment was rendered by the county court, on the defendant’s confession, that the plaintiff had a right to recover; thereby admitting of record the compliance with the prerequisites of the act of 1720, eh. 24. And the confession also ascertains the precise sum, on payment of which the penalty recovered was to be released. This confession withdraws the plea of general performance, and admits every thing which the plaintiff desires to establish, or could be required to bring to issue by regular pleadings. Could it then, be necessary — is it consistent with any rule of pleading, that the plaintiff should file a replication, the statements in which, are neither an answer to, nor a denial or avoidance of, any of the matters alleged by the defendant? Where the court may be called on to pronounce an opinion on the plaintiff’s right to recover, where the intervention of a jury is necessary to assess the damages sustained, there an assignment of breaches, either in the declaration, or by way of replication, or entry on the roll, as the case may be, is indispensably necessary. But where every thing is confessed, where nothing is left for the decision of either court or jury, the assignment of breaches is an act of supererogation. And such is the effect of the decision of this court- in the case of M'Mechen v The Mayor, &c. of Baltimore, 2 Harr. & Johns. 41, where, in an action upon an auctioneer’s bond, the defendant pleaded general performance, but afterwards withdrew his plea and confessed judgment — On an appeal to this court,- where one of the errors assigned was thq want of a replication assigning breaches, the court affirmed the judgment:

The question as to the insufficiency of the pleadings, subsequent to the declaration, does not arise in this case, as the judgment was not rendered upon them, but upon the defendant’# confession.

JUDGMENT AFFIRMED*