Peacock v. Pembroke

Eccleston, J., delivered the opinion of this court. Under a motion to quash this attachment four reasons have been assigned: 1st. That the attachment could not properly issue in the name of Peacock, who was a party defendant in the judgment. 2nd. That the attachment issued after the judgment on which it was issued was dead. 3rd.

That the assignment could not be made by the State of Maryland. 4th. That if the assignment could be made by the State of Maryland, it was not properly made. Jn our opinion the third reason furnishes a sufficient ground ³⁵⁰ for affirming the judgment, and therefore the others need not be considered. The appellant’s counsel insists that the attachment was properly issued under the act of 1763, ch. 23, sec. 8, which authorised the State, as plaintiff, in the original judgment, to assign the same to the appellant, because as surety he had paid the claim.

But neither that statute or any subsequent law provides what officer or person shall make an assignment ,to a surety where the State is plaintiff. When the State is to issue a patent, to malee an obligation, or to transfer any of its rights, some officer or agent is vested with authority to act for the State, except where the obligation or transfer is made by direct legislation on the subject. Perhaps it may be supposed the plaintiff’s attorney has authority to make an assignment under the act of 1763. The correctness of such a supposition was questioned in Norwood vs. Norwood, 2 H. & J., 238 .

There the executrix of D. Dulany had obtained judgments against Samuel Norwood and Edward Norwood, upon a bond given by them to D. Dulany, and Mr. Cook, as attorney for the plaintiff, assigned to Samuel the judgment against Edward; and thereupon Samuel, in his own name, as assignee of the executrix of D. Dulany, issued a fieri facias, against which an injunction was obtained by Edward. At a subsequent term a motion to dissolve the injunction was overruléd. Afterwards the chancellor was very much perplexed with the difficulty of ascertaining, from the evidence, whether Samuel was a mere surety, which was considered as “the main, if not the only question in dispute.” The auditor was then directed to state an account between the parties, charging Edward with but one-half of the bond to Dulany, and giving him credits for payments made by him. After a report by the auditor it is said: “ Upon the whole, the chancellor conceives it best to consider the complainant as the sole principal in the bond to Dulany.” Whereupon another account was ordered to be stated by the auditor, differing substantially from the former.

And it was afterwards decreed that the injunction should be dissolved, but that only the costs at law, and a particular sum named, with interest, should be ³⁵¹ levied under the execution. But because Edward had a decree against Samuel, for a sum larger than the amount which Samuel was held to be entitled to under the execution, it was finally adjudged, that the injunction should be continued until the further order of the chancellor. From this decision an appeal was taken by Samuel. In the Court of Appeals it was contended by the appellee’s counsel that the appellant must prove he was a surety, and as such had a regular and