Mitchell v. Williamson

Le Grand, C. J.,

delivered the opinion of this court.

This is an action of debt brought by the appellees as executors of David Williamson, Sen’r, ag-ainst Elizabeth A. Mitchell, executrix of James D. Mitchell, and continued after her death against the appellant, Henry S. Mitchell, as administrator de bonis non cum testamento annexo. The cause of action was a penal bond, dated 17th of August 1833, conditioned for the payment by David Williamson, Jr. — the principal obligor — at any time within two years from the date thereof, to George, Juliana and Adolphus Williamson, executors of David Williamson, Sen’r, of the sum of two thousand dollars Without interest.

To the right of recovery of the plaintiffs- nine pleas- were interposed. To the 2nd, 3rd, 5th, 7th, 8tb and 9th of which, *216 there were demurrers; and on the 4th and 6th issue was taken. The 2nd and 8th pleas have been abandoned. The questions now before us are presented by the demurrers to the others, and we concur with the court below in its ruling in regard to each and all of them except the ninth;

The 3rd plea is substantially as follows: It avers that the bond was executed by Mitchell as surety for Williamson, to secure the payment of a judgment obtained against him in Harford county court;-that Adolphus Williamson released all his interest in the judgment; and that David Williamson con- , veyed- to the plaintiffs all his interest in a large tract of land, lying in the State of Louisiana, for the purpose of securing the payment of the judgment; and also, that Juliana Williamson- one of the plaintiff’s, by her writing of release, sealed, &c., “did release all her interest and right in the debt due by the said David to-the said plaintiffs aforesaid

So far as those portions of the plea which allude to the release of interest in the judgment are involved, we think it clear beyond all question, that they- cannot avail to defeat the recovery of the plaintiffs. This is an action on a bond conditioned for the payment of a certain and ascertained sum of money,, within a specified time, and it is not competent for the obligors, in this action, to go behind the bond for the purpose of showing what was its consideration. The only reply that can be successfully made to it is, non est factum, payment or release. Any equitable considerations affecting the transactions out of which it originated,, must be availed of in a court of equity. In regard to that part of the plea which declares, that Juliana-Williamson released “all her interest and right in the debt due by the said David to the said plaintiffs aforesaid,” we remark, that it appears-to us-it must be understood as having, reference to- the history of the debt as given in the preceding, portions of the plea, and therefore, equally as applicable to the judgment as to the bond. There is no doubt that prior to the act of Assembly of 1843, ch. 304 — and that act does not affect this case — an executor might sell or raise money on the property of the deceased, or give a release for *217 a debt due to the estate of his testator, nor where there was more than one executor, that any one of them could da the same; and, therefore, had the plea simply averred a release of the debt: that is, the debt sued on by Juliana Williamson, we should have held the plea as good in bar to the plaintiff’s right of action. We do not, however, regard the plea as referring exclusively to the debt mentioned in the bond, but as including the judgment also. There are other objections to the plea, but it is not essential they should be noticed.

The 5th plea presents the question — whether an action can be maintained against the surety without a previous demand on the principal? The learned counsel for the appellant, although he did not abandon, still he did not press in argument, the sufficiency of this plea. The principle asserted py it has been denied by several decisions of the Court of Appeals. In the case of Somerville vs. Marbury, 7 Gill & Johnson, 281, the court say: “The only remaining point presented for our consideration is, whether the discontinuance of the first suit, instituted on the bond, in which the complainant was a surety, exonerated him from all liability thereon. This question is so conclusively settled by the principles established by this court in the cases of the Planters Bank of Prince Georges County, vs. Sellman, 2 Gill & Johns., 230, and Sasscer vs. Young & Kemp, 6 Gill & Johns., 243, that it should not be treated as a subject open to discussion' in the courts of equity in this State.” These views were fully affirmed in Lawson vs. Snyder, 1 Maryland Rep., 79 .

What has been said in relation to the 5th is equally applicable to the 7th plea. It was competent to the surety to have paid the debt, and to have preferred his claim against the estate of David Williamson, Jr. His failure to do so cannot work his discharge; nor does the failure of the plaintiffs to make the demand enure to his advantage. Lawson vs. Snyder, 1 Md. Rep., 79 , and the authorities there relied on.

The ninth plea if defective, it is because of its uncertainty. It alleges that Adolphus exonerated David Williamson, Jr., from his share of the debt and judgment, and that Juliana *218 released “her respective share or proportion of the debt as aforesaid;” that the plaintiffs, “or some of them,have released and discharged'D’. Williamson, Jr., of and from a large part of the sum specified in said condition aforesaid; and that “as to the residue of said sum of money not released and discharged as aforesaid,”'..-.. “D. Williamson, Jr., fully paid and satisfied the same before the impetration of the writ.” The uncertainty of the plea consists in the averment, that “the plaintiffs or some' of them have relieved and discharged the said David Williamson, Jr;, of and from the payment of ao large part of the sum,” &c. The words, “or some of them,” and, a “large part,” are too uncertain and indefinite. They do not specify which of the plaintiffs, nor what particular part of the debt. But although we consider the plea defective, we nevertheless reverse the ruling of the court below. The defect could only be taken advantage of by special, and not by general demurrer,- as was attempted. 2 Saunders on Pleading & Evidence, 722, (Ed. of 1829.) In 1 Chitty on Pleading, 236, Ed. of 1851, it is said, that pleadings must not be insensible or repugnant, nor ambiguous or doubtful in meaning, nor argumentative, nor in the alternative. The same writer shows that the exactions of the rules of pleading in these particulars, have been somewhat relaxed by the new rules of William 4th. They,, however, have no operation in this State. The precise point was decided in this State, in the- case of Gardiner vs. Miles, 5 Gill, 100 .

Judgment reversed and procedendo awarded.