Trippe v. State ex rel. Cox

Brent, J., delivered the opinion of the Court. We do not think the record in this case discloses any error committed by the Circuit Court in overruling the motion made by the appellants in arrest of judgment. The case, it is true, has been pending for a long period of time, but the parties have been duly represented in Court by their respective counsel, and the docket entries show that it is brought up by regular continuances to the term at which it was finally tried. In this respect there is certainly no irregularity.

The suit was originally instituted against William B. Clark and these defendants. Upon the suggestion of the. death of William B. Clark, at May Term, 1865, it was continued against them as surviving obligors. In July, 1810, the declaration was filed, together with the guardian bond of Clark upon which these appellants are sureties. The declaration contains a single count, averring that these appellants, by their written obligations, dated the sixth day of October, eighteen hundred and fifty-six, promised to pay to the State of Maryland, for the benefit of Mary H. P. Muse, now Mary H. P. Cox, and wife of L. P. Cox, the sum . of five thousand dollars, &c.

The defendants pleaded general performance. The plaintiff then replied, setting out the names of the obligors in the bond with particularity, stating the death of William B. Clark, the guardian, assigning breaches. To this replication issue was joined, and the case tried before a jury. It is here objected that the replication is a departure from the declaration, which refers to a writing obligatory of two joint obligors, while the replication sets out a bond by which a third party, not named in the declaration, is ⁵¹⁸ bound as principal and they as sureties.

What would be the effect of this objection in a different state of pleadings it is not necessary to examine, but upon the pleadings in this case we think it cannot be sustained. The case is brought to an issue upon the replication, and the questions thereby presented have been distinctly submitted to the jury and passed upon by them. The pleadings present a sufficient cause of action, and when the bond was offered in evidence there could have been no valid objection to it upon the ground of a