
    court of Appeals, june term, 1822.
    Merryman, et al. vs. The State at the inst. of Harris, use of Murray.
    Jnwvmg'ft' }wt£« meat ajj.ims. Beam! M his surety* d sues procesa thereon, the -she* ti£F makes 'i!he -amount of thejudf?nient, \ ut «only pays a part -of lit to II, and the ba< lance is paid H by M tlie surety, they (ÍI . & nót knowing; that •there were Fund* 5n ith’e .hand' .uf the sheriff— Uald^ that M’s payment docs not discharge FI’s Haim 'against .thes’h'TiffVbm lihat the same op-cr.ites as an c<i«itahle4ts•sig-nment of such, claim to M, for •which he may sue the sheriff s hmuU The act of limitations, if relied on, must be p.ciubf ed, (note.)
    
    Appeal from Baltimore county court. Debt brought oil the 4th of May 1818, in the name of the State, at the instance of T. Harris, and for the use of J. Murray, bn the blind executed on the 23d of November 1811, by William Merryman, as sheriff of Baltimore county, with Caleb and John Merryman as his sureties. The bond was in due form, and was approved by the orphans court of the county on the day of its date. The defendants below, (now appellants,) pleaded general performance, to which the plaintiff, protesting a no'nperfonnarice, replied, that in March 1811, the state, at the instance and for the use of T. Harris, administrator of J. Cuiinn, (being the T. Harris at whose instance this suit Was brought,) recovered a judgment against T. Bailey for the sum of £10,000 current money debt, and g7 60 costs, to be released on payment of £897 6 10, with interest from the 18th of December 1807, and casts. That upon this judgment a writ of fieri facias issued on the 2d of November 1811, and was directed to, and delivered to said W. Merryman, he then being sheriff of said county, to be executed, who laid said writ on certain real property of said Bailey, and returned said writ to court, endorsed, that the property remained in' his hands unsold for want of buyers. That on the 18 th of July 1812, a writ of venditioni exponas issued, also directed’ to said W. Merryman, then being sheriff as aforesaid, bomtnanding him. to sell said property, &c. to satisly said debt and costs. On the 16th of September 1812, in pursuance of this last writ; he sold the property to •/. Murray and J. Stevensofor §1280, and received the purchase money! Breach', nonpayment to Harris of the money so levied, made and received* &c. , -
    The following cáse wás agreed upon —~W. Merryman, as sheriff of Baltimore county, executed his sheriff’s bond! with C. and X. Merryman his sureties,' oil the 23d of November 1811, in the form prescribed bylaw. It was approved on the, same day by the orphans court of Baltimore county. A writ of venditioni exponas was issued on the 18th of July 1812, directed to said W. Merryman, sheriff of Baltimore county, reciting a judgment recovered in the county court of said county, in March 1811, by the state; against T. Bailey;, for, &c! That a fieri facias issued thereon oil the 2d of November 1811; and was returned by said sheriff, laid on certain property in his Hands unsold; &c. The Said sheriff was therefore commanded to expose to sale the said property, &c. to satisfy the said judgment» &c. He proceeded tinder this writ, and sold the property to the amount of §1280* On the 16th of September 1812* ii'nd received the purchase money, of which he paid tó Harris §1087 52, which, with the sheriff’s commission being deducted, left in the hands of said Merryman §162 36* part of the money received by him on the sale of the property aforesaid. X. Murray, being one of the sureties of Bailey, against whom, as then late sheriff of Baltimore county* the. judgment mentioned in said writ of venditioni exponas had been recovered; aiid being liable as surety of said Bailey for said judgment debt, paid to Harris .the balance thereof that remained due, after he (Harris) had received''f;-om Merryman the §1087 52 aforesaid. This balance paid by Murray exceeded the sum of §162 36, remaining as above stated in Merryman’s bands. At the time Murray made the payment to Harris, neither he noiJ Harris knew that there was any money, on account of said judgment, in Merryman’s hands. To recover the said sum of §162 36, remaining in Merryman’s possession, this suit was brought. The county court gave judgment, on this statement of facts, for the plaintiff, and the defendants appealed to this court.
    
      Th6 cause was argued before Buchanan, Earle, Mar'Tin, and Stephen, J.
    Williams, for the apnellants, contended,
    1. That this suit having been brought more than five years after the date of the bond, was barred by limitations.
    2. That the bond does not appear to have been recorded in the county court, or court of appeals, and was therefore null arid void.
    3. That the case stated does not correspond with the replication, the replication stating that the original judgment was recovered in favour of the state, for the use of Harris, administrator of Givimv, and the case stated not showing that this suit was prosecuted at the instance of any person.
    4. That the fieri facias and venditioni exponas set forth in the replication, were different from those recited in the statements.
    5. That the money stated to be in Merryman’s hands cannot be recovered in an action on his official bond, but must be by an action for money had and received.
    6. That Ilanis cannot sustain this action, because, by the statement of the case, the whole of his judgment was paid and satisfied before the suit was brought.
    On the first point, he referred to the dates of the bond and the writ, and insisted that limitation was a bar to the action, although not pleaded. He relied on the act of July 1729, eh. '25, s. 3, and Draper vs. Glassop, 1 Ld. Eaym. 153, 
      
       On the second point, he referred to the act of 1794, eh. 54, s. 8. On the sixth point he contended, that the money levied under the venditioni exponas, was to be paid to the plaintiff in that action, and if he was satisfied with less than the sum made,- the residue was to be paid to the defendant. If the plaintiff had not been satisfied the amount levied, then he could enforce payment by attachment, &c. Harris's debt being paidj the surety who.paid part of it, could not, in this form of action, recover the amount so paid. The surplus made under the venditioni exponas not paid to Harris, remained in the bands of the sheriff for .the benefit of Bailey. He cited Morgan’s Lessee vs. Davis, 2 Harr, f M Hen. 9, 16.
    
      
      JR. Johnson, for the appellee,
    cited Welch vs. Mandeville, 1 Wheat. 233, and Winch vs; Keeley,! T. JR. 622.
    
      
      
         Buchanan, This court, in Maddox vs. The Stale fox the useof Swtm>, at December term 1M9, decided, that the aet of limitations, if reiiedon, must be pleaded.
    
   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.  