Washington Booth v. Campbell

15 Md. 569 | Md. | 1860

Bartol, J.,

delivered the opinion of this court:

This case was before this court, on the plaintiff’s appeal, at December term 1855, and will be found reported in 8 Md. Rep., 107, when this court reversed the judgment of the court below, and remanded the cause. On the former appeal it was decided that the matters of defence alleged and relied on by the defendant, could not avail in support of a motion to quash the ivrit of scire facias, but if available at all must be presented by pica. When the case was remanded to the Superior Court,, the defendant filed two pleas, to which the plaintiff demurred generally, and that court having given judgment, on the demurrer, in favor of the plaintiff, the case is now brought here on appeal by the defendant below, and presents for our consideration the question of the sufficiency of the defendant’s pleas.

The first plea alleges that tire plaintiff, before issuing the scire ficias in the case, caused to be issued a fieri facias on the judgment, which was levied upon the goods, chattels, lands and tenements of the defendants, that the sheriff made return thereof, together with a schedule of the property levied upon, that the said writ of fieri facias was no further executed, and that the same has not been quashed, countermanded, nor further proceeded in, but remains in full force and effect, &c.

We think this is a good plea to the scire facias, not upon the ground that the levy of an execution amounts to a satisfaction of the judgment, but because the plaintiff is not entitled to have two executions upon the same judgment at the same time.

It would be competent for the plaintiff, by taking issue on the plea or on replication, to show that the execution has been quashed, countermanded or abandoned, or that only part satisfaction has been had under it, and to obtain another execution for the residue, or maintain a scire facias for the renewal of the judgment. See Sasscer vs. Walker’s Executors, 5 G. & J., 109. Green vs. Burke, 23 Wend., 490. 3 G. & J., 384. 3 Gill, 346.

We are also of opinion that the matters alleged in the second plea are a valid defence to the scire facias, as showing an accord and satisfaction of the judgment by R. B. Fitzgerald, and that it was error in the court below to sustain the demurrer to the second plea.

The judgment was recovered against John B. Fitzgerald, Richard B. Fitzgerald, and the appellant, who were co-partners liable jointly on the judgment. A release or discharge of one of the defendants would operate as a discharge of all. This principle is so well settled as to require no authorities to be cited in its support. If the matters alleged in the plea are sufficient in law to operate a discharge of R. B. Fitzgerald from all liability upon the judgment, the inevitable consequence is, that it cannot be enforced against the appellant; for the just and sufficient reason, that he ought not to be compelled to pay the money, without being entitled to claim contribution from the other defendants, which he cannot do if they have been discharged from the judgment by the act of the plaintiff.

When this case was before this court on the former appeal, several of the facts, which are stated in the second plea, were relied upon by the defendant, in support of his motion to quash; it being then contended that the compromise made with R. B. Fitzgerald, by the plaintiff, the payment by him of the sum of $308.03, and costs, the receipt therefor acknowledging it to be in full of the judgment against him, the filing of the receipt in the clerk’s office, and the entry upon the docket, amounted in law to a satisfaction of the judgment against him. In the aspect, however, in which the case was then presented, it appeared that J. J. Speed, Esq., was the attorney of the defendants upon the record, and accompanying the compromise and forming a part of if was an agreement by Mr. Speed, “that he would take no advantage of the compromise,” thus made with II. B. Fitzgerald. It did not appear in what character Mr. Speed made the agreement. It was argued by the plaintiff’s counsel that in making the agreement Mr. Speed acted as attorney for all the defendants; there was nothing to show the contrary; and this court decided that the compromise did not of itself amount to a satisfaction of the judgment; and could not be taken advantage of by the defendants, in the face of an agreement by their counsel, that no such advantage should be taken of it. The defence now relied on, presents a very different case. It is alleged in the plea, and admitted by the demurrer, “that Mr. Speed had been before the date of the arrangement, the trustee for Emily J. Harper, for whose use this suit is prosecuted, that as such trustee he had loaned of the funds of the said Emily J. Harper, the money for which the judgment was confessed to the defendants, as co-partners in trade, of which the appellant was one, and the said Fitzgerald another, that the note given by said defendants to said Speed for the money so lent, before the institution of the suit, had been endorsed over by Speed to the plaintiff, (who had previously thereto been appointed trustee for Emily J. Harper, in lieu and stead of said Speed,) and that the agreement of said Speed, entered into with the plaintiff, not to take advantage of the compromise, was made by him, as such trustee, and in reference to his liability as such trustee, and in no other character or right, and as such was received and, accepted by the plaintiff ,” &c.

Although the law is well settled, that a mere naked receipt for a sum of money, which is less than the amount due, could not operate as a discharge or satisfaction of the judgment, (8 Md. Rep., 115; 7 Md. Rep., 116; 4 G. & J., 305; 5 Gill, 189,) yet it is equally well settled, that if in addition to the part payment, there be some other collateral consideration , such as in law is sufficient to support a contract, then the agreement to relinquish the residue is not nudwm pactum. Such collateral consideration, superadded to the payment of part, is a good accord and satisfaction. 5 East., 231. 11 East., 390. 14 Wend., 116. 20 Johns. 76. 4 G. & J., 309, 310.

(Decided June 1st, 1860.)

In this case the plea alleges such additional collateral consideration from Fitzgerald, in procuring and delivering to the plaintiff the written agreement of Mr. Speed, whereby his liability to his cestui que trust was continued, notwithstanding the relinquishment of the claim against the debtors in the judgment. Here was a burden and inconvenience to Fitzgerald, in procuring the agreement, and also a possible benefit to the plaintiff.

Judgment reversed.