Burnet & Rigden ex rel. Gilmor v. Courts , 5 H. & J. 78 ( 1820 )

Dorsey, J.

delivered the opinion of the court.

Burnet and Rigden recovered a judgment in Charles county court against John Campbell, who afterwards superseded the same, with William Courts and Francis Newman as his sureties. A ca. sa. issued on the supersedeas judgment, returnable to March term 1810, on which WilHam Courts alone, was taken, and the execution was entered, not called by consent. A scire facias was after-wards issued in the names of Burnet and Eigden, for the use of Gilmor, Howard, Swan and Pringle, against Courts, to revive the supersedeas judgment, who being summoned, appeared in court, and pleaded payment of the judgment by John Campbell, on which issue was joined; and on the trial, the court below gave an opinion, that on the testimony stated in the bill of exceptions, the plaintiffs were not entitled to recover. The testimony is express, that John Campbell paid to the attorney of the legal plaintiffs, the full amount of the debt, interest and costs, due on the original and supersedeas judgments. But it is contended, that Campbell, in making the payment, acted as the agent of Gilmor, and others, who were the real purchasers of the judgments, and therefore took an assignment of the judgment in their names. The facts proved, so far from warranting the inference that Campbell acted as the agent of Gilmor and others, decisively show, that the money with which the judgments were satisfied, belonged to Campbell, and was raised by him at bank, by discounts on paper loaned by Gilmor, and others, to him, for the purpose of extricating him from his embarrassments; and although Campbell might have been willing and desirous that the judgments should be assigned or pledged to his endorsors, as a security for their engagements at bank for his benefit, yet he had no power or authority, by getting an assignment from the attorney of the legal plaintiffs, to pledge the responsibility of the superseders, who had become his sureties, and whom in law and justice he was bound to save harmless.

It has been urged by the appellant’s counsel, that the court below ought to have left it to the jury to say, whether Courts did not assent to the assignment.

There was no evidence from which the fact of assent could be inferred; and if such fact had been found, it could not have estopped the defendant from setting up a payment, which both in law and conscience operated to discharge him from all responsibility.

JUDGMENT AFFIRMED'.