Colegate v. Frederick Town Savings Institution

11 G. & J. 114

• Court: Court of Appeals of Maryland
• Decided: June 15, 1840
• Status: Published

Opinion

Archer, J.,

delivered the opinion of the court.

As there has been an assignment to the surety who paid the judgment, by the creditor, under the act of 1763, chapter 23, the rights of the surety to pursue the bail of the principal, must depend on that assignment. It is unnecessary, therefore, for us to determine, what would be the rights of the surety, as against such bail, where the surety had discharged the debt, either before or after the bail should have been fixed, and where there was no assignment to the surety.

The act of 1763, chapter 23, enacts that, where any person or persons shall recover judgment against the principal debtor, and surety, and such judgment shall be satisfied by the surety, that the creditor shall be obliged to assign such judgment to the surety satisfying the same, and that the assignee shall be' entitled unto, and have in his own name, as assignee, the same-execution against the principal debtor, in virtue of such assignment and this act, as the creditor might or ought to have had-, the* said assignment being first recorded in the said court wherein the judgment shall have been rendered or obtained.-

The-design of the Legislature by this provision, was-to place-the surety paying the debt, in the same situation with regard to the principal, as the creditor who had obtained the-judgment;- and to invest him with all the rights and powers-which the - creditor possessed, to enforce the payment of the judgment against the principal or, if necessary, against the' bail; or in other words, it was the design, that the assignment’ thus made should carry tire full fruits of the judgment, and the' means of reaping such fruits. Unless such power was imparted, the act would in many cases furnish no indemnity to-the surety. That the act provides for an execution against the-principal, and is silent as to any remedy against the bail, does-not militate against this construction of the’act. It was not intended by this, to restrict the rights of the surety under the assignment; but merely to point out a mode of enforcing an: execution against the defendant: that is, it gave him the pow-er of issuing an execution in his own name. Without this’ provision, as a legal assignee of the judgment, he could have used the name of the creditor in issuing an. execution, and in. proceedings against the bail. - It therefore, in fact, enlarged the power of the assignee, by giving him final process in his own name, and as execution was thus expressly given him, every incidental and consequential right, followed and passed with- it-

It is objected' that the proceedings do not show the issuing and return of a ca. sa. against the principal- The pleadings of the defendant do not appear to call-for such an averment on the part of the plaintiff; and we think it was wholly unnecessary in this case. The plea of payment enabled the defendant to plead non-payment, without any such necessity, most clearly; and if he could do so, he could with equal reason show by his replication, the facts upon which he relied to establish non-payment. The sci.fa. itself, which stands in this action in lieu of a declaration, according to the precedents, contains no such averment, and if the defendant pleads to the sci.fac. such a plea as calls in question the right of the plaintiff to issue his scire facias, upon other grounds than the failure to issue a ca. sa., and to have a return of non est, the omission in the replication to set out such ca. sa. and return, ought not to be considered a substantial defect; nor ought the plaintiffün replying to a defective plea to such a sci. fa. be compelled to precede •his demurrer with such an averment.

JUDGMENT AFFIRMED.