Flack v. Garland

Le Grand, C. J., delivered the opinion of this court. The bill in this case prays an injunction (which by the Superior Court of Baltimore city, where the bill was filed, was granted) against a judgment of Baltimore county court recovered against the appellant, Flack, by Nathaniel Garland, of whom the appellee is executrix. The judgment was rendered for a debt due by Flack to Garland and Elwell, of whom Garland was survivor. The bill alleges that Flack failed in business in the year 1842; that after some time had passed, during which he was endeavoring, having the confidence of his creditors, to make most available for their satisfaction the means left to him, he finally proposed to his creditors a composition, by which on paying fifty cents in the dollar he was to be released from his liabilities, determining and declaring ¹⁹⁵ that if such composition should fail to be effected, he would seek release by application for the benefit of the insolvent laws.

The bill states that among his creditors, whose good will he thus had, was Garland, who, although during the suspense of the appellant’s affairs before the composition was projected, had obtained judgment, yet had taken that step with no adverse purpose, but merely to preserve the highest evidence of his claim. The bill states that after judgment was thus had by Garland, (which was rendered in the year 1843,) he, (Garland,) in the year 1846, and at the period when the composition referred to ivas in train, acceded to it and agreed, like the rest of the appellant’s creditors, to accept the one-half of the amount of his claim in satisfaction of it; to be paid on demand made by Garland, in money, or by the appellant’s note at four months. The appellant states that, by Garland so acceding to the composition, all his debts being provided for, he forbore applying for the benefit of the insolvent laws, and again embarked in business; — but that meanwhile Garland died, without receiving or applying for the composition money; and that his executrix, the appellee, unmindful of the adjustment thus binding her testator, was about to issue execution upon the judgment. The bill further states that Garland went forth among the other creditors to solicit and urge them to come into the composition, representing to them that he had acceded to it — stating1 that fact to persuade them to follow his example.

The proceedings in the cause show