Merryman v. State at the inst. of Harris ex rel. Murray ( 1822 )

Earle, J.

delivered the opinion of the court: When Harris liad levied and sold on his venditioni exponas against Bailey, to the amount of §1280, Bailey and his Securities were exonerated for so much, and for that sum the sheriff; Merryman; became liable to Harris. He paid him in part §1087 52, and after deducting commissions, there still remained in his hands §162 36 due to Harris. For this sum Harris had a good cause of action against Merryman, arid if he had been so disposed might have sued him, and his securities', for it, on his sheriff’s bond. Things being in this situation as between Harris and Merryman, Murray; one bf the securities for Bailey, paid the whole balance due Harris on his judgment against Bailey; deducting the i§1087 52, arid bterlooking the §Í62 36, still in Merry-man’s hands; Murray then paid Harris §162 36, under a mistake, and Without being obliged as a security of Bailey to pay it; and what is to be the legal effect bf the pay - ment is the question. Does it extinguish Harris’s demand on Merryman; and if it does hot, shall it operate in equity an assignment thereof to Murray, so as to enable him ttf sue the sheriff’s bond, and indorse the writ tó his own use?

If the payment of this §162 36 is at all ib be considered a payment for Merryman, it is manifest Murray was not liable to pay it for him; and not having paid it at Merry-man’s instance, it presents the case of & stranger paying the debt of another without his consent oh knowledge. Such a payment does Pot necessarily discharge the debtor, and cannot be taken advantage of by him without showing, by an acquittance or other mean's, that it was intended by the payer and receiver to- operate a discharge; And we' think there is great reason in this, for an. action for money paid, laid out and expended, cannot be sustained by a’ stranger against a debtor whose debt he has paid voluntarily and without directions, and therefore he (the debtor,) shall not avail himself of such payment in a suit by his creditor, unless he can show an express intention to extinguish the debt. This is not the case before us—The payment was made by Murray to Harris voluntarily, and without the knowledge of Merryman, and certainly without any intention in Harris to discharge the debt of Mer-_ ryman.

But this payment if not to be considered as a payment by Murray for Merryman. It is received only as an over-V - . . * payment by him or- Harris’s debt against Bailey, and having been made through mistake, he has a legal claim against Harris to recover it back. But if the claim should be prosecuted, yvhat would be the situation of Harris? He would have to loo};. to his remedy against Merryman on his sheriff’s bond, and would be greatly injured if the payment to him by Murray should be construed a discharge of Mer~ ryman, which it ivas never intended to operate.

It is then the court’s opinion, that the payment made by Murray to Harris, did not discharge Harris’s claim against Merryman, and that there is a subsisting debt of $162 36 still due from Merryman, and his securities. The remaining question to be enquired into is, can the suit brought for it for the use of Murray, under all the circumstances of this case, be sustained by him?

It seems to us, that if in any case a court will undertake, to decide on the rights of parties arising from the; mere operation of law, where they themselves are silent, to effectuate the purposes of justice, this is the case in which their authority ought to be exerted. The debt of $163 36 is justly due from Merryman, and it matters not to whom lie pays it, if the payment is made to the person, best entitled to receive it. Whether Harris or Murray has the best right to the debt, could only be a question between them, and as Harris has received value for it of Murray, the court think that the payment of Murray operated in equity an assignment of it to him, and he had a right to sue for his use. the bond of Merryman to recove? it. In more instances than one. this court has decided, that a payment by a security shall operate an assignment of the debt against the principal, so as to enable him to sue, or execute for it, in the name of the creditor, for use. So Rieron and Reed, decided but a few years past in this court, is one of the cases of this description. There Wright was security in a testamentary bond, and when he paid, the creditor his money, and had satisfaction of record-entered on the judgment against himself, he was deemed equitably entitled to the judgment against his principal^ and a sale under a Ji. fa. on the judgment for his use, of the land of his principal, was deemed by this court a good and valid sale.

, Under all opinion, that ■sions,and we the circumstances of this case, we are of it is within the principles of our former decitherefore affirm the judgment.

judgment affirmed.