McAllister v. Eichengreen

Brent, J., delivered the opinion of the Court. The principal question presented in this case is, whether the cause of action relied'upon in the declaration, is such a one as authorized the appellees to proceed under the provisions of the Act of 1864, ch. 6. The construction of that Act in this particular has been presented in several cases that have ⁵⁶ been recently before this Court, — and it may now be considered as well settled, that suits for the recovery of damages that are liquidated, or for such ascertained amounts as “ the plaintiff can properly and safely swear the defendant owes him,” are within its terms. It does not include actions for the recovery of unliquidated damages, but if the declaration discloses a cause of action, by which the amount claimed is certain and liquidated, the plaintiff has a right to proceed under its provisions for the recovery of his debt.

Smithson vs. U. S. Telegraph Co., 29 Md., 162 ; Jones vs. Freeman, 29 Md., 273 ; Bouldin v.s. Steibel, 31 Md., 34 ; Knickerbocker Life Ins. Co. vs. Hoeske, 32 Md., 318 . The inquiry therefore in the present case is, does the declaration disclose a cause of action for a liquidated amount?

The appellant is one of the obligors in a bond, given for the purpose of dissolving an attachment, which had been sued out of the Court of Common Pleas of Baltimore City against Moses Colman and -Colman, and levied upon their goods. The condition in it is, “ that if the said Moses Colman and-Colman shall satisfy any judgment that shall be recovered in said case against them, then the said obligation shall be void,.else to be and remain in full force and virtue in law.” The bond was filed, and the attachment dissolved. The case was then proceeded in and a judgment obtained against the Colmans in favor of the appellees, for $771.75, and $13.60 costs. This bond and judgment constitute the cause of action, set forth in the declaration, upon which the appellees base their right to recover.

By the very terms of the bond the recovery of the judgment fixed the amount to be paid under it, and to that extent the liability of the obligors became a certain and liquidated sum. The claim of the appellees, at the