Wilson v. Ridgely

Grason, J., delivered the opinion of the Court. The judgment on which the attachment’ in this case was issued, was recovered at November term, 1866, against Charles Ridgely, Jr., and George W. Wilson and Fielder Suit, two of his sureties, on a tax-collector’s bond ; Zadok Sasscer, the other security thereon, having died before the institution of the suit. It appears that the judgment was satisfied by the payment of the whole amount due thereon by George W. Wilson and the administrators of Zadok ²⁴⁴ Sasscer, and thereupon the State’s attorney for Prince George’s County, upon the order of the Comptroller of the treasury, entered said judgment to the use of George W. Wilson for $1042.06, and to the use of the administrators of Zadok Sasscer for the same amount, being the other half thereof. On the 14th June, 1875, after the assignment of the judgment to them, the appellants, Wilson, and the administrators of Zadok Sasscer, issued an attachment on the judgment, which was laid in the hands of William A. Jarboe, upon certain funds alleged to be held by him as county treasurer, the same being the surplus proceeds of the sale of land, assessed to Charles Ridgely, Jr., for taxes due and unpaid.

Upon the return of the attachment, pleas were filed by the claimants of said funds, who are not before us on this appeal; and afterwards a motion to quash the attachment was filed, the motion was sustained, the attachment was quashed, and this appeal was taken. It was contended by the counsel of the appellees, that .the attachment was properly quashed, because the record does not disclose whether the judgment against the principal and sureties in the collector’s bond, was ever properly entered, and because no breaches in the condition of the bond were ever assigned. Upon the return of the summons in that case, the defendants appeared by attorney and no pleas were filed, and it must be presumed that the judgment was entered by the consent of their attorney. In suits upon collector’s bonds, no assignment of the breaches of the bond is necessary, as Article 81, section 82, of the Code provides that, in reply to a plea of performance, the State may reply that the obligor or obligors hath or have not performed the condition of his or their bond, and give the special matter in evidence, and that it shall not be necessary to set out the breaches.

The judgment was entered for the penalty of the bond, “tobe released on payment of the amount of the Comptroller’s certificate, ²⁴⁵ and subject to sucb insolvencies and removals as may be certified to tbe Treasurer by tbe County Commissioners.” On the 12th August, 1869, the certificate of the Comptroller was filed in the case, showing the amount due the State to be $2783.68, with interest from June 21st, 1864, and the judgment was extended for this sum. Afterwards the judgment was credited, upon the Comptroller’s certificate, with insolvencies amounting to the sum of $649.89, and afterwards, on the same authority, with the further sum of $49.62, interest upon the judgment which was “ remitted or authorized to be done by law.” The credits reduced the judgment to the sum of $2084.12. These credits were for the benefit of the defendants; were authorized to be entered by the terms of the original judgment, and must be presumed to have been entered by their consent and authority, and cannot now be urged against the validity of the judgment. ' At common law, a surety in a bond, upon which judgment had been recovered, had no right, upon paying the amount of the judgment, to have it assigned to him, so as to enable him to have execution against his principal or co-sureties. To give him a more speedy and efficient remedy than the common law provided, the Act of 1763, chap. 23, sec. 8, was passed, which authorized an assignment of a judgment by the creditor to a surety in the bond, and an execution thereon in the name of the surety who had paid and satisfied the judgment.

But it was held, under the provisions of this Act, that when the State had recovered a judgment upon bond with surety there could be no assignment to the surety satisfying the judgment, for the reason that there was no person authorized by law to make the assignment. So the law remained until the Act of 1864, chap. 243, amended Article 9 of the Code, by providing an additional section to come in after section seven, and which enacted, that “in any case where judgment ²⁴⁶ shall he recovered by the State against any principal debtor and a surety or sureties, and said judgment shall be satisfied by said surety or sureties, the same shall be entered by the attorney representing the State to the use of the surety or sureties satisfying the same, on the