
    CONSTITUTIONAL COURT,
    COLUMBIA,
    NOV. 1802.
    Conner v. Winn, and Hart.
    Arrest under a ca. sa. is not, of itself, a satisfaction of the judgment; and does not discharge an injunction bond, which had been entered into on a bill being hied to injoin the judgment. The case of Porteous v. Snipes, 1 Bay, 215, in relation to injunction bonds, questioned. [As to how far arrest on a ca. sa. is a satisfaction, vide Richbourgh v. West*-1 Hill, 309.]
    On demurrer. This was a cause determined by Brevard^ J., in the district of Fairfield, in October, 1802. The action was debt on an injunction bond, taken in pursuance of the act of 1784,-P. L. 337. The defendants craved oyer of the condition, which after' setting forth, by way of preamble, that M. W.,one of the defendants, had filed a bill in equity, praying a writ of injunction to stay proceedings at law on a judgment obtained against him by the plaintiff, J. C., and that an injunction had issued accordingly, goes on as follows : “ Therefore, if upon the hearing of the said cause in the court of equity, or by any other means, the said bill of complaint shall be dismissed, or be discontinued, or abated, then the said M. W., his executors, or administators, shall pay, and fully satisfy to the said J. &c., the money due on the said judgment at law, and all costs, and charges, that already have, or may hereafter accrue, on the said judgment and execution, and also on the said suit in the court of equity,” &c.: and after setting out the condition, the defendants pleaded performance generally. The plaintiff, in his replication, after stating that the said bill in equity had proceeded to hearing, and was dismissed in December, 180Í, assigned a breach, jn {[ie defendant, M. W., had not paid and satisfied the said ... judgment, &c. To this replication there was a rejoinder, setting forth, that on the fifth day of March, 1802, the said J. C., the plaintiff in the judgment at law aforesaid, sued out a Writ of ca. sa. in pursuance of that judgment' against the body of the said- M. W., the defendant in the same judgment, by virtue of which the sheriff of Fairfield district had taken the body of the said M. W. in execution, &c. To this rejoinder the plaintiff demurred generally ; and defendants joined in demurrer.
    This demurrer was argued in the district court, and judgment' thereon was given for the plaintiff, on two grounds : 1. That the-rejoinder was a departure in pleading, not being in fortification of the plea, but stating, new matter foreign and repugnant thereto; and shewing matter of excuse for not performing the condition in contradiction to the plea. 2. That the matter of excuse and* hvoidance, if well pleaded, was not sufficient in Jaw to preclude the plaintiff from- having and maintaining his action ;• for that a talcing of the body in execution' is no satisfaction of a debt. The defendants appealed, and now submitted to this court a motion for the reversal of the judgment of the district court, on the ground, that that court had erred in the judgment which was given.
    In support of the motion it was contended, that the plaintiff had-an election, to proceed either upon his original judgment at law, pr to institute a new action upon the injunction bond ; but could not have the benefit of both modes of redress. That he had a choice of remedies, but not a double remedy; and that having made his election to follow up his judgment at law, he had- waived-all right to sue on the injunction bond. Also, that after having taken the defendant’s body in execution, which in law was a legal-satisfaction, he could-not pursue another claim, different in form, but for the same thing, against the body or goods of the' defendant. And the case of Porteous-v. Shipes, 1 Bay, 214, was cited and-relied, on.
    In support of the demurrer, it was argued-, that the plaintiff" could not be bound to make an election in this case, as the remedies were not co-extensive, and the one embraced matters to be redressed, not within the scope of the other, 'i he action on the injunction bond comprehended costs of suit in equity, which could not be obtained by proceeding on the judgment at law : and, there, fore, the modes of redress were not inconsistent, but might be pursued at the same time ; and the pursuit of one does not ne cess arily imply the waiver of the other. 0 Rep. 86, 87. Kid, 72, 75. 4 T. R. 825. 2 Bl. Rep. 1235. It is true that they were so far concurrent, that only one satisfaction could be obtained for the debt recovered at law; but this was no reason why the action could not be maintained on the injunction bond, although satisfac. tion had been made of the debt recovered at law, unless all the -conditions of the injunction bond were complied with. Hart was equally bound by the injunction bond, although he is no party to the original suit: and he might have been sued in a separate action, and his principal in another, at the same time, for the same debt, although there could be but one satisfaction. 22 Yin. Abr. 529 ; and see cases cited above on the subject of waiver. It was further argued, that nothing could be deemed a legal satisfaction of the debt, &c., within the meaning of the condition of the injunction bond, but actual payment of the money, or some other equivalent satisfaction by accord. That the doctrine laid down'in the ease of Porteous v. Snipes, could not be maintained on legal principles ; but at any rate it could not be extended farther without outraging the plainest and most rational principles of law. Therefore admitting the doctrine to be law, as laid down in the report of that case, yet it does not follow, nor can it be maintained, that in this the defendants are not liable to this action, because the defendant, M. W., was arrested, and in custody of the sheriff, by virtue of a ca. sa. It does not appear by the pleadings that he died in execution. The truth is, that he broke custody;, and escaped. But the question arising on the face of the pleadings is simply this : whether the arrest of a defendant on a ca. sa. operates as a legal satisfaction of the debt he is taken to satisfy. By what sort of logic can it be proved, that an arrest of the body, which is only a procedure to obtain satisfaction, shall amount of itself to that satisfaction, which it is calculated to produce. The same argument must prove that the means are equal to the end. The language of the writ of ca. sa. furnishes a good argument against the position. The writ commands the sheriff to take the body of the defendant, and the same safely keep, and have, to saiisfy the plaintiff for his debt, &c. It appears by Blumfield’s case, 5 Rep. 87, that the original form of the writ was with a quousque ; and the sheriff was directed to keep the body until the plaintiff was satisfied. Law of Executions, 67, 108. The doubt in that case was, whether where the defendant was taken in execution, and died in custody, a Ji. fa.' could afterwards issue against his estate. This doubt seems to have been founded on the notion, ths? notwithstanding the defendant was dead, yet the body was still in gage for the debt, and his relations might redeem it by making the plaintiff satisfaction. The law seems not to have been well set-tied oh this point, until the stat. 21 Jac. 1, c. 24, P. L. 75, was passed. This statute expressly authorizes the issuing of a Ji. fa, after the defendant has been taken upon a ca. sa., and has died in prison. . This statute has been declared of force here.: and it seems strange to say, that after the death of the defendant in execution against his body, &c., notwithstanding the plaintiff is entitled to execution against his goods, yet that his dying in execution was a satisfaction in law of the highest nature. It may be a satisfaction of the execution, but surely not of the debt. But although we should be compelled to bow to the authority, of the case of Porteous v. Snipes, and submit to the rule it goes to establish, namely, that a defendant dying in execution satisfies the debt and costs for which he was in custody, (a rule, which if it is to have any operation at all, must go to repeal, and make null, and of no effect, the statute of James above mentioned,) yet it does by no means follow, that a mere arrest, or taking in execution, where the party does not die in execution, can be construed into a satisfaction of the money for which he is so taken.
    The party obtaining an injunction, before the passing of the act of 1784, never could have avoided the payment of the money in a case like this ; for before that time the amount of the money recovered at law was required to be deposited in the court of equity, before an injunction was allowed to issue to stay proceedings upon the judgment. Hinde’s Prac. 587. That act had only in view the substitution of bond and security for the money, instead of the money itself, before required to be deposited. One reason of the act was, that the party applying to equity for relief, might not be deprived thereof for want of the money to deposit, owing to the general scarcity of cash in circulation at that time,: and another reason doubtless was, that the money which would otherwise be locked up in chancery, and useless, might be kept in circulation ; an object at that time of no small importance. It certainly could not be the intention of that act to subject the party in possession of a judgment recovered in due course of law, to any other or greater inconvenience than must take place where bond and security is substituted for cash. The words, “pay and satisfy,’? expressed in the condition of the bond, must be expounded to mean socli payment and satisfaction, as before the act of 1784, the plain. íiff would have been entitled to in a case under like circumstances ... ! . with the present.
    It is a principle of law, applicable in the present case, that to avoid a forfeiture, or penalty, where conditions are annexed, the party bound to perform the conditions must either shew a sufficient performance, o.r that the other party has dispensed therewith. The defendants have, in this case, pleaded in the first place a performance of the conditions, generally. The plaintiff has denied the truth of the plea by his replication, and has specified a particular breach, within the express terms of the condition. The defendants, instead of joining issue upon the breach assigned, or demurring to the replication, have proceeded by way of rejoinder to state new matter totally irrelevant to the plea of performance, and in contradiction to it, for it shews that the party bound to performance has not performed ; and that by reason of some act of the plaintiff he was relieved from the necessity of performing ac. cording to the condition. This rejoinder then is clearly a departure in pleading, which may be taken advantage of upon a demurrer. 3 Bl. Com. 310. Dyer, 371. Co. Litt. 304. a. 5. Com. Dig. 433.
    Evans, for defendants. Branding}, for plaintiff.
   GrKiMKE, J.

In this case it appears that the defendant, Winn, had been sued, and a verdict obtained against him ; that he filed a bill into the court of equity, for an injunction, and entered into an injunction bond, with sureties ; and that afterwards his bill was dismissed. And as he had been put iu gaol, it is now pretended, that the debt was therefore satisfied. But I am of opinion, that although the body of a defendant is taken, and he dies in gaol, yet the debt is never satisfied as to his estate, although it is as to the sureties, since they engage, by becoming his bail, that the creditor shall have his body, or they will pay the money.. But this is not the case at present, which is on an injunction bond, where the sureties agree to nay the debt for the plaintiff, if his bill is dismissed. I am, therefore, of opinion, that the decision of the circuit court was right.

The other judges concurred in opinion, that the demurrer was good ; but their reasons have not been filed.

Brevard, J.,

gave no opinion here, having presided at the trial. His opinion in the district court was conformable to the argument and reasons stated above by the plaintiff’s counsel.

Judgment affirmed.  