Clark ex rel. Gentry v. Murphy

M’Girk, C. J., delivered the opinion of the Court. This is an action of covenant, brought on an administrator’s bond. The deelaration states, that the said bond, or writing obligatory, was made to the Governor, &c., in the sum of three thousand dollars, with a condition, by which condition it was covenanted, &c.} by this it plainly appears, that the writing declared on, is nothing hut an administrator’s bond. The declaration set out several breaches; the defendants plead performance generally; to this plea the plaintiff demurs generally. On the trial the Court say, the demurrer is sustained, because the declaration is had, and yet go on to give judgment for the defendants, apparently because of the badness of' the declaration. The regular course would have been, to have overruled the demurrer for the fault in the declaration, and to have given judgment for the defendants.This Court is of opinion, that the judgment for the defendants is right, and although-we cannot see why the demurrer was sustained, because of the badness of the decíaration, yet we think, on this kind of bond, covenant will not liej hut the actiom should be debt. Let the judgment he affirmed.