Flickinger v. Hull

5 Gill 60

• Court: Court of Appeals of Maryland
• Decided: June 15, 1847
• Status: Published

Opinions

Chambers, J.,

delivered the opinion of this court.

The bond of Hull, as guardian, and the fact of bis charging himself with the amount due from Snyder, the former guardian to whom he wras security, made him responsible to the ward for that amount. Where a person in one character is debtor, and the same person in another character is creditor, the law regards the debt as paid by the debtor capacity to the creditor.

This is on the same principle which governs in the case where a man has several capacities, and is found in possession of property, the law will attach the possession to the capacity in which, of right, it ought to be held j so also, where having various capacities, he executes an authority delegated to him in one of those capacities, the law will attribute the act to the proper authority, although the person does not profess to exercise it, in virtue of that particular power. It is said that this being, so far as the ward was concerned, equivalent to an actual payment by Hull, would entitle Hull to claim contribution from Flickinger, if at all, at that time, and by a suit at law. How far a principal in a bond, who had charged himself in the Orphans court with the receipt of a sum of money, could in a court of law, recover against a security on his own bond, upon the ground that the money was not received in fact, but only charged because both the principal and that surety were co-sureties of the former debtor, and therefore equally liable, might be a very questionable matter. Certainly the learned counsel has not produced such a case, and it is believed such an one cannot be produced. The case is very far from being an ordinary case of contribution. If suit at law would not have been entirely defeated by showing that the plaintiff was principal in the new bond, and the defendant his surety, and that the plaintiff had admitted the receipt of the whole sum, yet clearly, the defendant could, under the circumstances of this case, have restrained the plaintiff from enforcing the payment of the one-half of the gross amount, until it was ascertained in a due course of administration, how much Snyder’s estate would pay, and of course how much the ultimate loss would be, especially, as in the meantime no actual advance of the capital was required, and no actual loss sustained by the plaintiff.

It is a case now complicated by sundry payments and receipts running over quite a long period of time, and in adjusting which, accounts between the parties will be necessary to ascertain the true merits of their respective claims, if indeed the complainant shall ultimately be found to have a claim.

It is therefore the proper subject for a bill in Chancery, where the technical objection of the admission in the account passed by the complainant will not conclude him, and where a thorough examination of all the accounts can be had, and an opportunity afforded of proving the agreement, and remedy extended to suit all the circumstances of the case. It has ■been intimated that perhaps in equity, no claim for contribution could have been enforced at any period prior to the actual payment of the money by the appellee, the guardian. In that ■view of the case, there would be no pretence to allege that the claim was stale, but upon the ground even that a proceeding could have been instituted as soon as the appellee charged himself with the debt, yet the period has not elapsed which is considered as evidence of payment. That period has been fixed at twenty years, and ought not to be shortened, except •under peculiar circumstances; whereas in this case, there are peculiar circumstances to account for the delay, and of course to forbid the making the exception.

The case being before us on bill and answer, on motion to ■dissolve the injunction, must in reference to that motion be regarded as if there was no such agreement between the parties at the time Hull became guardian; the answer of defendant, having positively denied its existence. It is not however denied that there was a balance due from Snyder, for which both were equally liable; that Hull charged himself with this amount, without in fact receiving it, and that Snyder's estate was partially insolvent. These facts alone, exclusive of any agreement, would entitle Hull to contribution, and therefore would make it inequitable for Flickinger to issue an execution for and recover the whole of the balance paid by him on the ward’s judgment. The injunction therefore was properly continued to restrain him from such proceeding.

It is said that by the authority of 7 G. & J. 306, Planters Bank & Hodges, this court have required the injunction to go only for the amount claimed as a deduction, here the appellee ■claims “ nearly the whole,” the admission of a balance is in very equivocal terms, and a readiness is alleged to pay what may be found due. So far however as he admits a balance due to Flickinger, the court below should have passed an order directing the amount to be brought into court to be paid accordingly, and doubtless would have done, and will still do so at any time on a petition by the appellants to that effect.

It is not in this case a sufficient ground on which to dissolve the injunction. The answer sets up various matters by way of defence, but they are not responsive to the bill; and cannot of course affect the question of dissolution which is now before the court.

A question has been made in the argument on the conformity of the assignment stated in the proceedings to have been made by Rachner and wife, who were the beneficial plaintiffs in the judgment obtained against these parties on the guardian bond, to the provisions of the act of 1763, ch. 23, but the view taken of the case has rendered an opinion on that question unnecessary.

On the whole, this court is of opinion that the bill does contain matter fit for the jurisdiction of the court, and entitling the complainant to an injunction, and that the answer does not entitle the defendant below, the appellant here, to a dissolution of that injunction.

decree affirmed.