Kiersted v. State , 1 G. & J. 231 ( 1829 )

Earle, J.

delivered the opinion of the court, in the three preceding cases.

We propose to give a condensed view of these cases, and to decide them together. For although their pleadings are a little variant from each other, they have all originated in the same kind of cause of action, and the principal questions presented by them on the argument arc the same.

They are suits upon obligations given by insolvents to the State, conditioned to appear at certain times and places, to answer the interrogatories and allegations of their creditors, to be filed against them, which in each court were decided adversely to the obligors.

The first and chief question, arising out of them is a consideration whether actions can bo maintained on these obligations, inasmuch as they have been taken in the name of the State of Maryland, and no express authority is given by law so to take them. *

The act of 1805, c/t. 110, is the first general insolvent law enacted, in this State, to which there have been many supplements; and since then various insolvent acts to suit the situation of the city and county of Baltimore, have been passed. All have been examined by the court, as well as some in favour of individuals, before and since 1805. In none of those acts is there any specific provision for taking these bonds of the insolvents in the name of the State, although by the act of 1805, aud several other acts, the courts, judges and commissioners, are to take of the imprisoned debtors, at the time of their discharge, bonds conditioned for their appearance to answer the allegations of their creditors, in penalties to be prescribed, and with security to be approved of by them. Notwithstanding the manner of taking these bonds, is no where specifically directed; we are assured, upon full inquiry, that they have been invariably passed to the State of Maryland, for more than twenty years past, whether taken by the courts, the judges, or the Commissioners of Insolvent Debtors for the city and county of Baltimore. What has produced this uniformity, it is not easy to say, unless it has been brought about by implicitly following the example of the courts and judges, upon whom it first devolved to execute these acts of Assembly. As no person was designated, in whose name the bonds were to be given, it is probable the courts and judges were prompted to the course pursued by the consideration, that the law in this particular could not be executed, without an obligee was supplied by them, and by reflecting, that for permanency and convenience, none could be selected, more suitable than the State itself, to which all official bonds were given, and other kinds of bonds, where a multiplicity of persons are concerned. And it may be, that they were conducted to this resolution, by reasoning upon the supposed intention of the Legislature, that these bonds should be taken in the name of the State, from the fourth section of the act of 1805, ch. 110, which directs the trustees of insolvents to give bond to the State, Whatever may have led to the practice, its consistency fully establishes the cotemporaneous construction of the first act, in this system of laws, and we„think it has too long obtained, to be at this time shaken and disturbed. And we further think, that to promote the execution of similar legislative provisions, it may be well received as a settled rule ' for the government of our courts of justice, that obligations in which many persons are interested, be taken in the name of the State of Maryland, whenever the law is silent in naming the obligees to whom they are to be given.

Another question insisted on by the appellants in the argument of this cause is, whether the appellees could sue these bonds for their use, there being no provision in any of the insolvent acts, to enable them thus to sue. This point we consider settled in this court, by the cases of McMechen vs. The Mayor and City Council of Baltimore, use of A. Storey, and McMechen vs. The Mayor and City Council of Baltimore, use of Hollingsworth, & Williams, 2 Harr. & Johns. 41, and 3 Harr. & Johns. 534. They were suits on an auctioneer’s bond, taken under an ordinance of the city, which did not authorise any person, in particular, to sue it. They were nevertheless sustained, and the judgment of the County Court therein, affirmed by this court.

A still further question was moved on the argument of this case, by the appellant’s counsel. They contended, that if those obligations were liable to be sued by the appellees, nothing could be recovered by them but nominal damages. Upon this subject, we are of opinion, there is very little room for doubt. In directing these bonds to be taken, the Legislature must have had in view the interest of the creditors of the insolvents, and not merely to authorise them to sue, to run the insolvents and their securities, to useless costs. To give them additional security for their debts, by obliging tlie insolvents to enter into stipulations, in nature of bail bonds, was the object; and the amount of their individual demands, we should think, must be the measure of the damages to be recovered by them respectively. These cases were partly argued upon notes, which were not filed until the close of the last term, and could not have been earlier disposed of by us. They appear to have been properly decided in every respect, by the County Courts, and we affirm their judgments, concurring with them in the opinions expressed on the exceptions, in the two first, and on the demurrers in the last case.

judgments affirmed.