Akin v. Denny , 1872 Md. LEXIS 109 ( 1872 )

Alvey, J.,

delivered the opinion of the Court.

The order appealed from in this case must he affirmed. The sole question presented by the record is whether the constable had authority to receive the money due on the judgments, and to enter the judgments satisfied. If not, it is clear the executions subsequently issued thereon by another magistrate than the one before whom the judgments were recovered, were regular and in all respects legal.

It is not alleged or pretended, that the notes upon which the judgments were founded, were placed in the hands of the constable for collection. The allegation in the bill is that they “were placed by the said Isaac Brown with and under the control of the said George R. Howard, justice of the peace, for collection, and that the said justice of the peace issued process to a certain Charles E. Lewis, then one of the constables of Cecil County, aforesaid, directing him to summon your orator to appear at the suit of said Isaac Brown, on said notes ; and that after judgments had been rendered, superseded, and the stay expired, the amounts of the several judgments had been paid over by the defendants therein to the constable Lewis; the magistrate declining to receive the money. But the constable had no executions in his hands, and he was in no otherwise connected with the judgments, or the collection of the claims, than the mere service of the mesne- process of summons on the defendants to appear to the cases before the magistrate. This certainly gave him no control over the judgments, and in no manner constituted him the agent for the collection of the money due on them, without execution properly directed to him.

As to the authority alleged to have been delegated to the magistrate, Howard, to collect the money due on the notes, the answer of the plaintiff in the judgments expressly denies that any such authority was given. The answer avers that the notes were placed in the hands of the magistrate simply to have the necessary proceedings taken to obtain judgments, and denies “that the said notes were under the control of the said justice, or that of any other person, for any other purpose whatever.” Again, it avers, that neither the magistrate nor the constable, “ had any authority whatever to receive the said sums of money due on said judgments, or to mark or enter on the docket of the said justice of the peace, that the said judgments were ‘satisfied in full,’ or otherwise.”

But if it were even true, that the notes had been placed in the hands of the magistrate, with authority to collect them, it did not follow that the constable, by serving mesne process only, became entitled to receive the money, or that the magistrate could have delegated to him such authority, without placing executions in his hands to be proceeded on in due course of law. The plaintiff in a judgment is certainly entitled to the privilege of selecting his own agent to collect his money, whenever it becomes necessary to employ an agent for that purpose ; and the only way by which a constable, in his official character, derives authority to proceed in the* collection of debts, is either by having the evidence of debt or claim placed in his hands for collection according- to law, or having directed to him an execution commanding him to make, by levy, the debt, damages, or costs recovered against the defendant. In this case, authority has been delegated in neither of these modes, nor, indeed, in any other, by the proper party, as far as the transaction has been disclosed by the record before

(Decided 11th December, 1872.)

There being no authority therefore, in the constable, to receive the money due on the judgments, it follows, as a necessary legal consequence, that the entries made and signed by him on the magistrate’s docket, of satisfaction were simply nullities; and as it is not alleged or in any manner shown that the plaintiff in the judgments has received the money, or any part of it, that was paid over to the constable, the injunction restraining the executions on the judgments was very properly dissolved ; and the order appealed from will, therefore, be affirmed.

Order affirmed.