Hollingsworth's Adm'x. v. Floyd

2 H. & G. 87

• Court: Court of Appeals of Maryland
• Decided: June 15, 1827
• Status: Published

Opinion

Earle, J.

delivered the opinion of the court. The appeal is taken in this ease from a judgment of Saint Mary’s county' court, on a motion to set aside an execution. The testimony produced by the defendants, in support of the motion, is drawn up in the form of a bill of exceptions, and is signed by the judges. From this, and the record, it appears that Joseph P„ Floyd and William Floyd, passed a joint and several obligation to T. Hollingsworth for $1061 25, with interest; that-suits were brought on this obligation against them separately, and prosecuted to judgments; that each of those judgments were by them superseded, and that Henry Jlhell and Edward Spalding, Junr. were superseders for both of them; that after the supersedeas judgments were entered into, William Floyd-paid upwards of #1000 of the debt, and by an arrangement with the plaintiff’s counsel, issued for his use, a fieri facias on the supersedeas judgment of Joseph P. Floyd, against him and his superseders, telling the counsel, who was a witness for Joseph P. Floyd, that he was surety in the obligation to T. Hollingsworth, and wished reimbursement; and it appears that the fieri facias was laid on the property of Joseph P. Floyd, which was sold by the sheriff, and purchased in by William Floyd. The fieri facias, thus executed, was quashed by the court; and the plaintiff having excepted, now claims to have the judgment reversed by us. And were the court below wrong in ordering the fieri facias to be quashed? is the question to be-determined.

By the arrangement between William Floyd, and the counsel of Jinn Hollingsworth, administratrix of T. Hollingsworth, it would seem as if the process was issued for the benefit of both of them. Although the payment made was a handsome one, it was but a partial payment, and left a balance due to Jinn Hollingsworth, which it cannot be supposed her counsel intended to transfer to another, even if he had the power to do so. As to this balance <hen, the court were decidedly in error, in ordering the fieri facias to be quashed. And it remains' to be inquired, whether they were right as far as the interest of William Floyd was concerned? The information of the’ situation of William Floyd in relation to the bond, is derived from himself, but it is made testimony by the examination of the adverse party, and he will be considered by us as surety of Joseph P. Floyd, in our farther examination into this subject. Payments by sureties are highly favoured by our laws, and have been most liberally dealt with by this court. A payment in full entitles a surety to an assignment ofithe judgment against the- principal, by the act of 1763, ch. 23. Upon established principles of equity, he has a right, in a court of chancery, to call on a creditor for an assignment of the judgment, and all liens which the principal has given to the creditor; and by several decisions in this court, a full payment by a surety has been adjudged of itself to operate as an assignment, so as to enable him to use the name of the creditor, to recover the money oí his principal. The cases of Norwood vs Norwood, Sotheren vs Reid, and Merryman and others, vs The State, at the instance of Harris, use of Murray, were adjudicated on this ¡principle. The several debts referred to by them, were considered as assigned by the mere operation of law, to effectuate the purposes of justice between the parties, and accordingly executions were issued, and recoveries had, in the name of the creditors, for the use of the sureties, against the principals. The same principle would be applied to the case before us, if there were not one or two distinguishing marks of difference between it, and the cases thus decided. The payment of the entire, debt was not made by William Floyd, and the proceeding is upon the supersedeas judgment of Joseph F Floyd, and not on the ju dgment confessed by him to the administratrix, of T. IIoll, mworth. It would not subserve the ends o,f justice to consider the assignment of an entire debt to a surety as effected by-operation of law, where lie had paid but u part of it, and still owed a balance to the creditor; and this court would not countenance such an anomaly as a pro tanto assignment, the effects of which could only be to give distinct interests in the same debt to both creditor and surety. We must then entertain the opinion, that the courtwere right in quashing the execution so far as William Floyd’s interest in the debt was concerned. The process was moreover issued upon the supersedeas judgment against Joseph P. Floyd, and his superseders, Henry Melt and Edward Spalding, Junr. on whom William, Floyd in justice could have no claim. If he had satisfied the whole debt, we should have said he was entitled equitably to an assignment of the judgment against his principal, and all liens which the principal had given to the creditor; but hevond this we should have been indisposed to have gone. We could not have rendered other persons liable to William Floyd, whose responsibility was in no sort contemplated, when he entered surety for his principal. Jlbell and Spalding indeed became superseders to William Floyd himself, on the judgment rendered against him, at the same time they entered into this engagement for Joseph P. Floyd; and thus it appears they rightly considered both judgments for the same;- debt, and doubtlessly looked for indemnity against loss, as well to William Floyd as to Joseph P. Floyd.

The execution, however, havingbeen quashed to the prejudice of the rights of Ann Hollingsworth, administratrix of T. Hollingsworth, the judgment must be reversed.

JUDGMENT REVERSED.