Campbell v. Booth

8 Md. 107 | Md. | 1855

Eccleston, J.,

delivered tlie opinion of this court.

In the court below the defendant made a motion to quash the writ:

First, because it appears that a fieri facias had been issued which was levied upon certain real estate, and had not been countermanded nor in any way disposed of, but continued in full force and operation when the writ of scire facias issued.

Secondly, because the judgment on which the present writ issued was satisfied before tbe issuing of the writ.

The court sustained the motion by ordering tbe sci. fa. to be quashed; from which decision tbe plaintiff appealed. And he now says, the execution was not outstanding when the sci. fa. issued nor was tbe judgment satisfied. He also contends, that the grounds of defence relied upon could not be available under sucb a motion, but could only be taken advantage of by plea,

A question of this sort arose in the case of Holmes vs. Newlands, 5 Adol. & Ellis, N. S., 367, in 48 Eng. Com. Law Rep., 366. There a fi. fa. issued, which was returned nulla bona. Afterwards an alias fi. fa. was obtained and also a ca. sa. Tbe latter of these two writs was set aside for want of a return of tbe former. Subsequently, a scire facias being sued out, tbe defendant obtained a rule calling on tbe plaintiff to show cause why this writ should not be set aside on account of the previous proceedings. Tbe court discharged the rule because the sci. fa. could not be set aside in that summary manner,but such facts when relied on in defence should be pleaded. The case clearly shows, that where an outstanding execution, whether returned or not, is the ground of defence,- the party must plead it to make it available. And this is the rule in England, where it seems to be held, that a levy without a sale and no money is paid, under some circumstances, is a satisfaction of the judgment. If there a plea must be resorted to, wc think the present motion cannot be sustained upon either ground relied on by the defendant.

The case of Holmes vs. Newlands is also reported in 1 Davison & Meriv., 642, and a branch of it is to be found in 5 Adolp. & Ellis, N. S., 634.

In Sasscer vs. Walker's Ex'rs, 5 G. & J., 109, Chief Justice Buchanan says: “ The mere taking the property under the fieri facias was not itself equivalent to payment, and did. not amount to a satisfaction of the judgment. ’ ’ This principle is not intended to be impugned in any degree by our reference to Holmes vs. Newlands for the purpose of sustaining the position, that the court below were wrong in deciding the present motion to quash in favor of the defendant. It is deemed proper to make this remark, because the opinion of Lord Denman in that case, so far as relates to the effect of a levy or seizure under a fi. fa., may seem to be at variance with the principle announced in 5 G. & J.

Philpot vs. Manuel, 5 Dow. & Ry., 615, is an authority in support of the principle adopted in Holmes vs. Newlands, by discharging the rule because a plea was necessary.

Irregularities apparent upon the face of a sci. fa. may be taken advantage of by motion, and should it be conceded there are irregularities depending exclusively upon matters of record, but not appearing on the face of the writ, which may be made the ground of a motion to quash, yet whenever objections to the writ involve questions of fact only, or depend partly upon matters of record and partly upon matters in pais, then such objections should be presented by plea; otherwise, a plaintiff might be deprived of his right of trial by jury upon issues in fact, which the court is never disposed to do except -where it has been sanctioned by practice or by previous decisions. Believing that both objections now relied upon may, when fully disclosed by pleading, present issues in fact proper for the consideration of a jury, we think the motion to quash was not the proper mode of defence.

For the purpose of showing satisfaction of the judgment in support of the second ground of objection to the sci. fa., reliance is placed upon the compromise made with R. B. Fitzgerald, which it is said discharged him, and thereby his co-defendants were also" discharged. The evidence relating to which consists of the letter, dated tire 28th of May 1844, from plaintiff’s attorney to the attorney of R. B. Fitzgerald; the receipt from the former to the latter, dated the 7th of June 1844, for $348.03, and $6.25 costs; the filing of those two papers in court, on the 11th of the same month, together with the sheriff’s receipt for $10 costs, and the entry made the same day on the docket in the following words: {<Receipt, of plaintiff’s attorney for $348.03, and $6.25 costs, in full of judgment against R. B. Fitzgerald, and receipt of sheriff for $10, his costs, filed.”

Although the receipt states the amount paid to be in full of the judgment against R. B. Fitzgerald, yet as that amount is less than the sum due, the payment and receipt, unaided by any thing further, could not operate as a discharge or satisfaction of the judgment, even if R. B. Fitzgerald had been the sole defendant. This principle we need not stop to sustain by argument, because it has been fully recognised by numerous decisions in this State, and especially in the late case of Jones vs. Ricketts, 7 Md. Rep., 116, and the cases there referred to. But the appellee’s counsel says, that in addition to the payment of the money, 11. B. Fitzgerald, or his attorney for him, was required by the terms of the arrangement, as proposed in the letter, to give the plaintiff’s attorney, in writing, Mr. Speed’s agreement, that no advantage would at any time be taken by him in any manner of the compromise; that the required agreement w as given, is fully established by the speedy payment of the money and the receipt; and that a compliance with this part of the arrangement, superadded to the payment under the contract, released R. B. Fitzgerald, which operated as a release of all the defendants in the judgment. And if wrong' in this view of die subject, the appellee insists that the circumstances just alluded to, when considered in connection with the filing of the papers 'and the entry made upon the docket, which entry was permitted to remain without any effort to have it corrected up to the date of the sci. fa., are sufficient to sustain the second ground of objection to the writ.

It is of no importance whether the appellee is right or not, in assuming that the circumstances relied upon do prove the giving of Mr. Speed’s written agreement. If the evidence does not show it was given, of course the agreement can have no influence upon the subject. But let us see what is the effect of that instrument, considering it as having been executed and delivered. The record shows that Mr. Speed was attorney for the defendants when the judgment was confessed. That being the case, and not having the agreement before us or any proof showing what were its terms or its design, except what is to be derived from the letter; in this very unsatisfactory state of the evidence, we are disposed to consider Mr. Speed’s agreement as one entered into by him, as attorney for the defendants, that no advantage would “at any time be taken by hirn in any manner of this compromise” with one of the defendants; and that the object and design of the plaintiff in obtaining the agreement was, for the purpose of reserving and protecting his right to recover from the other defendants the balance of the judgment remaining unpaid, after deducting the amount to be paid under the compromise. Whether this view of the agreement may or may not be shown to be erroneous by further evidence on the subject, it is impossible for us at present to form any correct conjecture. If Mr. Speed executed the agreement as attorney for the defendants, and the design of the instrument was such as we have stated, then, so far from its operating to any extent as a release or discharge of the defendants, other than R. B. Fitzgerald, it was a reservation of the right of the plaintiff to hold them responsible, notwithstanding the compromise. To which reservation these defendants are to be considered as assenting, through their attorney, Mr. Speed. And it cannot be doubted, that where two or more persons are bound, jointly, the claimant may release one and reserve his remedy against the others, with their consent. The subject of releasing one party and reserving the remedy against others who are responsible under the same contract, is very fully treated of in Yates vs. Donaldson, 5 Md. Rep., 389. We also refer to that portion of the opinion of the court of Queen's Bench, in Price vs. Barker, 30 Eng. Law & Eq. Rep., 157, which relates to the effect of releasing one of several parties, bound as principals, and reserving the right to proceed against the others.

Should it be suggested, that as attorney, Mr. Speed had no authority to enter into such an arrangement, we need not enquire whether the suggestion is true; for if it is, then the plaintiff’s' attorney could not bind him by the compromise, and consequently it could not release the defendants.

’The entry on the docket, in addition to the other circumstances, the appellee’s counsel seems to consider as a complete discharge or satisfaction of the judgment, even if exclusive of the entry, the proof in the case does not amount to satisfaction. But we do not see how it can be so. We have said the payment and receipt, standing alone, do not amount to a release, and they cannot do so if Mr. Speed’s written agreement was executed and delivered to the plaintiff’s counsel in the manner and with the design we have slated. The entry is nothing more than a mere statement of the fact, that the receipt of the plaintiff’s attorney had been filed, which professes on its face to be in full of the judgment as against R. B. Fitzgerald. If, before filing and making the entry, the receipt was not in law a release or satisfaction, how could the mere filing, and the entry on the docket of such filing, impart to the paper any greater effect or influence upon the rights of the plaintiff than it possessed by virtue of its execution and delivery by the plaintiff’s attorney to the defendant, or his attorney? This is not an entry of satisfaction in the ordinary mode, under the sanction or order of the court. Nor can it be regarded as satisfaction of the judgment entered by a clerk, by order of the plaintiff or his attorney, under the act of 1840, ch. 96, which act should be strictly complied with when it is to be made a ground of defence. For without such a compliance, if not with it, the rights of plaintiffs in judgments will be exposed to considerable danger. The present paper is not an order to enter satisfaction, neither is it a release under seal, but merely a receipt for a less sum than was due, stating the same to be in full of the judgment against one defendant. We do not regard the entry as an act of the court but of the clerk, merely noticing the filing of the receipt, as usual in regard to papers filed.

. The entry itself shows the receipt to be for a sum less than the judgment and as being in full only in regard to R. B. Fitzgerald, and therefore certainly not designed by the plaintiff or his attorney as an order to the clerk to enter the entire judgment satisfied. The filing of such a receipt and the entry of the filing upon the docket by the clerk, cannot convert it into a release. If it. was not one before, it was not one subsequently.

■ As the judgment will be reversed because the writ could not be quashed upon the present motion, we refrain from expressing any opinion in regard to several points discussed in argument, for the reason, that when the case is fully disclosed by pleadings and evidence, it may present a very different aspect from what it now does.

Judgment reversed and procedendo ordered.