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 difference between the allegata and probata. The defendants could have demurred to the replication upon the ground of a variance, and, if decided in their favor, a proper amendment of the pleadings could have been made before the case went to trial upon its merits. But having taken issue and the case having been decided against them, as it was presented by their pleadings, the objection made is not tenable upon a motion in arrest. The next objection is that there are no sufficient breaches set out in the replication. The defendants, by their bond, conditioned that the guardian should faithfully account with the Orphans’ Court of Dorchester County, as directed by law, for the management of the property and estate of the orphan under his care and deliver up said property agreeably to the order of said Court or the directions of law. A failure to do these things is certainly a breach of the bond. The replication avers a failure to account and the non-payment over of the money alleged to be due the ward. It is not well perceived how a more substantial breach could be alleged. It is also objected that the replication does not allege that the ward had become of age before suit brought. Demand and default to pay are alleged, and this is sufficient. If the party had no right to sue it could have been put in issue by.the pleading, and was the proper subject of proof. This objection is not tenable. [519] (Decided 13th June, 1877.) The next objection is that suit should have been prosecuted against the guardian, or his insolvency alleged, before the bond became liable to an action. The question is not an open one in this State. It was presented in the case of Jarrett vs. State, use of Stump, 5 G. & J., 27. It was there held that an action could be maintained upon a guardian bond without having previously sued the guardian. An allegation of insolvency is necessary only where suit is required to be first brought against a party, before an action can be maintained against his sureties. But as no such action is required to be brought against a guardian before suing his bond, the allegation is wholly unnecessary. Finding no error in the order of the Court overruling the motion in arrest, the judgment will be affirmed. Judgment affirmed.