
    *Bernard Cass v. Lyttleton Adams and John Bainter.
    Plea of goods taken in execution upon the judgment, on appeal, sufficient de fense to an action on the appeal bond.
    Court in hank, after opinion intimated on general demurrer, will permit it to be withdrawn, and other pleadings substituted.
    This was an action of debt upon a bond given to perfect an appeal from the court of common pleas to the Supreme Court. The declaration recited the condition of the bond, and set-out, that upon the appeal in the original case, judgment was rendered for the appellee for a specific sum, which remained unpaid.
    The defendants pleaded that, after the judgment rendered in the Gase appealed, and before the commencement of this 'suit, the plaintiff sued out a writ of fi.fa. and put it into the hands of the sheriff, who levied it upon the goods of the judgment debtor, to a large amount, and returned such levy upon the writ of execution. To this plea, the plaintiff demurred. The court of common pleas overruled the demurrer, and gave judgment for the defendants, and the plaintiff appealed to the Supreme Court. The decision of the cause was adjourned here from Muskingum county.
    Goddard, for the defendants, argued :
    That whatever would satisfy the original judgment, was a good plea to an action on the bond. He cited King v. Goodwin, 16 Mass. 63; 1 Chitty, 481; Clark v. Withers, 2 Ld. Raym. 1072; Rook v. Wilmot, Cro. Eliz. 209; Mountney v. Andrews, Id. 337; Ladd v. Blunt, 4 Mass. 402; Hoyt v. Hudson, 12 Johns. 207, to show that arrest on a ca. sa., or goods levied on a fi.fa. until disposed of, were to be regarded as satisfaction.
    Sillman, for the plaintiff, admitted:
    That whatever operated as a satisfaction of the judgment, would constitute a good plea in bar, for the security on the appeal bond. But he insisted nothing short of satisfaction would be available for him. He reviewed the cases cited, and maintained that each stood upon its own particular circumstances. He cited Little and others v. Delaney, 5 Bin. 269.
    
      He further contended, that at the time the alleged levy was made, the defendants had it in their power to obtain back the property, upon giving a bond, unless it would sell for a certain portion of a valuation, which, he urged, made it an exception to the general principle of the cases cited. He further maintained that the suit on the appeal bond *was acumulativo security, and might be resorted to, even while the remedy by execution on the original judgment was in progress; for which he cited Patterson v. Swan and others, 9 Serg. & Rawl. 19.
   By the Court:

The appeal bond is given expressly to secure the payment of the sum that may be recovered upon the appeal, and we incline to the opinion that whatever can -be deemed a legal satisfaction of the judgment is a bar to an action on the bond, although the' money is not actually paid. The arrest of the defendant upon a ca. sa. is a satisfaction, though no money bo paid. So is the levy of an execution upon goods or land, whilst the levy is in force and undisposed of. These principles are well settled. And the circumstances of our peculiar law, when the levy was made, does not wary the case, because the debtor could only avail himself of the ¡benefit of that law, by giving security, which is substituted for the goods in the sheriff's hands, and leaves the principle the same, where such bond is not given, as though the law did not exist. If the bond had been given, and the goods restored, that might bo .an answer to the plea, as might any other legal disposition of the levy, leaving the judgment unsatisfied. But the demurrer admits the levy to be in force and effect, and consequently admits the .judgment satisfied. •

This opinion being suggested at the request of the plaintiff’s counsel, leave was given to withdraw the demurrer, by proving that, if legal, it was made on sufficient authority, and reply to the plea.  