
    COURT-OF APPEALS, JUNE TERM, 1820.
    Burnet & Rigden, use of Gilmor, et al. vs. Courts.
    where the orim"a sujfersetieas 'IheSt^vheiiler ney1 m-swith that "m-íties'¡n the SmrBed?notwjVhstanding such original defendant may enter the judgment for the use of the persons from whom he borrows the money with which he pays the judgment or debt»
    Appeal from Charles county court.. The cate was this: A judgment was rendered in Charles county court in favour of the present appellants, against John Campbell, in, August 1 80". It was superseded by a confession entered into on the 29th of March 1809, by Campbell, with F. Newman and W. Courts as his sureties. On this ccnfos«Ion a scire facias issued on the 17th of February 1817, against Campbell, Newman and Courts. They appeared, and Newman and Courts pleaded nul tiel record of recovery and confession, and payment by Campbell. To which there were the general replications and issues joined. Campbell made no defence, and by his confession a fiat was entered. Newman’s death was suggested at March 1818. The court gave judgment against Courts on the plea nul tiel record.
    
    At the trial of the other issue, ■Courts, the defendant, proved that Campbell informed the -attorney of the legal plaintiffs in this cause, on the 31st of March 1810, that he had obtained a loan by the aid of some friends, the persons for whose use this action is entered, from a bank, on notes endorsed by said persons,-and discounted at the said bank, to extricate him from his embarrassments. That Campbell paid to the said attorney the amount of the principal, interest and costs, as well of the original as of the supersedeas judgment. That Campbell informed the said attorney that he had promised the persons from whom he obtained-the money, an assignment of the judgments against him—ihe witness did not recollect that he mentioned any thing on the subject of the judgment .against his sureties. That the attorney on the 31st of March 1810, on receipt of the money, assigned the judgment to Gilmor, Hoioard, and others, and delivered the assignment to Campbell, whom he considered as acting generally in this transaction as the agent of said persons. The plaintiffs then read in evidence the docket entries "of the execution issued on the supersedeas judgment, in the names of the original plaintiffs, for the use of Gilmor, Howard, and others, -against Campbell., Newman and Courts; and also proved by the said attorney, tfnát he would not have caused the entries for the use of the persons for whose use this suit is brought, to have been made, except by the direction of Campbell. The defendant also proved, that the legal plaintiffs knew nothing of the assignment, or ever gave any direction that it should be made. lie further proved, that a similar arrangement was made by Campbell with Major Chapman, (another attorney of -the court,) in other cases of executions similarly situated; and further, that 3 or 4 years ago, Col. Howard and Major Chapman had a conversation on the subject, in sdiich Hoioard inquired what chance there was of their gettiilgtheir money from Campbell, and directed his inquiries* particularly as to Campbell’s solvency and property; in the course of this Conversation, Chapman told him that he believed there were judgments assigned for their use, in which there were sureties; to which Howard replied, that he knew very little about the transaction, but believed there were some such assignments. The defendant also read in evidence, a deed of trust from Campbell to W. Cooke and J. B. Morris, dated the 4th of November 181G, reciting, that Campbell being indebted on mortgages, &c. and on judgments, to the persons for whose use this suit, and several others were entered, as per schedule, did convey, &c. to the said Cooke and Morris, and authorise them to sell all his lands, negroes, &c. for the purpose of paying his said debts. He also gave in evidence the following docket entries, viz.
    
      11 Burnet S' Higdon, use of~l , , i Robert Gilmor, et al. VS’ L John Campbell, Francis ■ Newman, and William Courts.
    
    ~ , . , Ca. sa. on Supersedeas issued to March term 1810. Francis & William, non est John. Not called by consent. Cepi, ’
    Same use Samc.^ vs. ¡> John Campbell. J
    
      Sci. fa. Doclcetted by consent August term 1811. Fiat by confession,.” &c.
    The defendant then prayed the court to instruct the jury, that if they believed the evidence, the plaintiffs were not entitled to recover. Which instruction, \_Johnson, Ch. J. and Plater, A. J.] gave as prayed. The plaintiffs excepted. Verdict and judgment being for the defendant, the plaintiffs appealed to this court.
    The cause was argued before Buchanan, Earle, and Dorsey, J. by
    
      Stone, for the appellants, and by
    
      Harper, for the appellee.
   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 Wil Ham 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'.  