
    Laidler vs. The State, use of Hawkins.
    June, 1828.
    In an action on a testamentary bond, after the plaintiff had filed his decíaration, the defendant confessed a judgment for the penalty of the bond and costs, with an agreement that the judgment should be void, on payment" of 3900 pounds of nett crop tobacco, with interest until paid, and costs — Held, that this confession superseded the necessity of assigning breaches of the condition of the bond, and authorised a judgment for the plaintiff.
    Where the court may be called on to pronounce an opinion on the plaintiff’s right to recover, the intervention of a jury being necessary to assess the damages sustained, there an assignment of breaches, either ira the declaration, or by way of replication, or entry on the roll, as the case may be, is necessary; but where every thing is confessed, and nothing is left for the decision of either court or jury, the assignment of breaches is an act of supererogation.
    
      Appeal from Charles County Court. Debt upon the same testamentary bond as that mentioned in the preceding case of Laidler’s Admix, v 'The Slate, use of Haiukins, (ante 277,) brought against Catherine C. Laidler, (now appellant,) one of the sureties therein. This case, like that referred to, was continued for several terms under a rule on the defendant to plead to the declaration; and at August term 1819 the cestui que use filed the same account and proof as stated in the before mentioned case. The same agreement as to the pleadings, was also entered into; and at that term, (August 1819) the defendant confessed judgment to the plaintiff, which was entered for the penalty of the bond, (the debt declared for,) and costs; with an agreement that the judgment should be void on payment of 3900 pounds of nett crop tobacco, with interest from the 20th of August 1819 until paid, and costs. From which judgment the defendant appealed.
    The cause was argued before Buchanan, Ch. J. and Earlh, Martin, Archer, and Dorsey, J. by
    
      Ashton for the Appellant.
    No counsel argued for the Appellee.
   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*  