
    Porteous against Snipes.
    Where a person has ajudg-meat at law fondant,awho píTrioTÍhanl ,cei7 £or a" n)-staj execution, which upon hearing, and i,e after' to Tike g ba^n¡T execution, _ gaol: this shall charge °of the bail on the injunction bond; Taking im eieetionto pro-cced agamsf the defendant °ai judgment, TuS?/ his TThmuT'
    DEMURRER to plea in bar to debt on bond, given in . the court of chancery, to enable Thomas Washington to obtain an injunction there. In this case, the plaintiff had a judgment at law against Thomas Washing ton, who applied to the court of chancery for an injunction ; and in order to obtain it, the defendant, Snipes, entered into a bond with 1 him as security, agreeable to the directions of the act prescribing the terms of obtaining injunctions, fkc. The bill in chancery was, however, dismissed ; and after the dis-mission, the plaintiff, Porteous, proceeded on his original judgment against Washington, took out a capias ad satisfa-ciendum, upon which he was taken, and died in goal, insolvent, as was alleged ; having in fact been executed for forgery#
    After the death of Washington, the plaintiff, Porteous, brought an action on the bond entered into by the defend- ... . ant, Snipes, when the injunction was obtained ; and the defendant prayed oyer of the condition of the bond, which was, “ that Washington should abide by the order of the “ court of chancery, in that cause, and pay and satisfy the plaintiff the amount of his judgment at lazo, together with si costs of suit f and then pleaded in bar to the action, that it would not lay against him; because the plaintiff, Nor» teous, had, after the dismission of the bill in equity, made his election, and proceeded on his judgment at law, against Washington, and taken him in custody, on a ca. sa. And that the taking, and his dying in gaol, was such a satisfaction in law, as discharged him as security on the injunction bond.
    To this plea the plaintiff demurred, and the defendant joined in demurrer; which brought the point before the court — whether this was a good plea in bar to the plaintiff’s action or not ?
    
      For the plaintiff, it was contended, that the clause in the court of chancery act, which regulates the manner of applying for injunctions to stay proceedings at law, altered the old terms of obtaining those writs ; which required that the sum recovered, should be deposited with the master, before any such writ could be obtained ; and, in lieu thereof, directed that bond and security should be given, to answer and abide the decree or order of the court, in such sum as the master should think reasonable and proper. This, it was said, was intended to ease the defendant at law, who might have equity on his side, but who could not conveniently raise the cash to deposit in the hands of the master, before he could obtain the injunction. That the plaintiff at law was to be made secure at all events, and that it was never intended to place him in a worse situation, eventually, than he would have been had the old law remained in force, and the money paid into court; in which case, all that he would have had to do, after a bill was dismissed, would have been to have gone to the master, and' received the money deposited. The next best thing to the' money, it was said, is the security for it. That was the end and design of the legislature in passing the clause in question. The present is an absolute undertaking of one person for the debt and duty of another, and does not depend upon any possible contingency which can or may defeat the obligation of the other, and not defeasible upon the • surrender of principal, as in cases of bail ; and that this • was the first instance in which it was ever contended that an attempt to get money from the principal, deprived a man of his remedy against the security. ■
    The plaintiff was not bound here, as in some other cases, to make his election and proceed in one way, so as to deprive him of his remedy in another 5 but every one remained, and still remains open to him, and he was at full liberty to pursue his execution and take the body of defendant, or to commence his suit on his bond, and go against the present defendant, or both together, as he thought proper: in the same manner as a man may foreclose a mortgage in chancery, and pursue his remedy at common law at the same time» BlacL Rep. That if this case has any similitude to bail, it must resemble, 1st. Bait in error, or 2d. Bail under the attachment law. If it should be assimilated to bail in error 5 then, according to 3 James, c. 8. the security is never exonerated till the last farthing of the debt is paid. The words in the statute of James arc the same with those in our court of chancery act, viz. S£ That defendant do satisfy and pay* the debt, damages and costs, in case judgment should be affirmed, &c. and if lie does not, that then bail shall do it for him. So, likewise, if it be compared to bail under the attachment law* it will appear equally evident, that the security is liable, at all events. The words of the eighth clause of that act are, w If the absent debtor shall, within a year and a day, come 6t in and put in bail to answer the action, and pay the con-' il demnation money, then the attachment shall be dissolved, H and the goods attached, restored to the persons putting “ in bail. And such person and his security, so putting in s( bail, shall be liable to pay the plaintiff his judgment, “ with all costs and charges,&c« So that whether this case he governed by the rules of bail in error, or bail under the act already mentioned, the plaintiff in this action, is well entitled to a recovery. They cited and relied on 1 Mod. 214. 2 Mod.. 194» 3 Black. 414» Levintz, 203. in support of this part of the argument, and then contended, that the dying in gaol of one co-obligor, did not discharge '¡.lie other 5 though the person so dying in gaol, was charged in execution. In support df this position, Bloomfield’s case, 3 Cook's Rep. 87. was cited ; also, Hobbart, 59. Cro. Jac. Í36. 143. Bulstrode, 100» 1 Bac. 312» 2 Show. 294» 10 Vin. 57% 11 Fin. 28.
    
    For the defendant, the counsel opened the arguments* by observing, that it was always regarded as a hard case, to oblige one man, to pay the debt of another. That tbs attorney for the plaintiff at law, had therefore acted very properly after the bill was dismissed in equity, in pursuing his remedy on the judgment, as the speediest and easiest method to recover the money for his client, and that too, from the party who was bound in justice and conscience to pay. That it would have been rigorous, and out of the usual course of practice, to have proceeded against the present defendant, Snipes, on the security bond in the first instance ; especially, as it was not known that the circumstances of the principal, Washington, were so desperate at that time, as was afterwards discovered. That with weak-minded men, success appeared to be wisdom ; while others estimate the measure adopted, independent of its success. The conduct of the attorney, was therefore highly commendable in proceeding as he did. They contended, that the moment the bill was dismissed in chancery, plaintiff had his choice of two remedies; either of proceeding on the judgment against the defendant at law, or by pursuing it on the injunction bond. That however, as soon as he had made his election in either way, it was a waiver of the other remedy, and that he was then precluded from pursuing any other mode. Unusquisque potest renunciare jure, pro se in~ troducto ; and in support of this, Vin. tit. Waiver, 259. 530. and 531. That the reason why a party is permitted to proceed on a bond at common law, and to foreclose a mortgage at same time, was because the property mortgaged might not be sufficient to pay the debt; but, upon the judgment at law, other property might be found, which would pay it off fully. Besides, in such a case, it is the party’s own original undertaking, and not a collateral one for a third person. That it was very evident, that this was not an original undertaking, but only a collateral one, upon the default of another- It was said, that this was in nature of bail in error: and that the words in the condition of the injunction bond, were the same as in the bond directed to be taken by the statute of James. Admitting it was so ; yet, even bail in error may surrender principal in discharge of himself — ™ as in the case of Austin and Nowlan, Roll. 392. 3 Bul-%;trode, 191. Cro, Jac. 402. Moor. 853.
    It had been next compared to bail under our attachment act. But, in answer, it was asked, suppose the plaintiff gets judgment against the absent debtor after his return, and takes him in execution on a capias ad satisfaciendum; can he afterwards go on the bond against the bail ? This had never been done, and would not be permitted. So, in the present case, the defendant at law being take n on a ca. sa. and dying in gaol, was an exoneration of the now defendant from his securityship — and for this reason, that the party has got the highest satisfaction the law knows or allows. That it was a well established rule of the common law, that by a person dying in execution, the debt was gone ; as is very fully laid down in Foster and Jackson’s case, Hob. 59. It is true, the statute of James I. revived the suit against executors upon a scire facias ; but it did not survive against his security. That the doctrine of co-obligors, and one dying in execution in gaol, did not discharge the other, was very good law, but not applicable to the present case ; for, the obligations alluded to, in all the cases cited by the opposite counsel, are original undertakings, and not collateral ones, as the one under consideration most certainly was. And that therefore, none of those authorities would apply to this case. That in all cases of collateral undertakings, which are in their nature defeasible, by the performance of certain conditions, by the party for whom the undertaking is made; both by the common and civil law, where the conditions are performed, the collateral undertaker is discharged. What were the defeasible conditions in this case i V/hy, that Washington should pay or satisfy. Payment was one condition ; satisfaction was another. This satisfaction was fully made by the body of Washington, for whom the defendant, Snipes, had undertaken ; and, consequently, he was for ever discharged from the force of the obligation ; as much so as if the money was paid.
    
      
      
        Grimke’s collection of the l’ublic Laws, page 358.
    
   Per Cur.

unanimously.

The bond on which this suit is brought, must be considered either

1st. As an original undertaking in the defendant’s own right.

2dly. As a collateral one in default of another ; or

3dly. As a bail bond, or in nature of one.

If an original one, nothing can discharge the defendant, but the full and complete payment of the debt and charges» If a collateral undertaking, the bond is defeasible by the performance of the condition by the party, for whose default the defendant became bound. If in the nature of bail; then, from the very legal import of the term, the party might surrender himself up, in discharge of his bail; or the bail might have surrendered the principal, in discharge of his bond or recognisance 5 or his being taken in execution on a ca. sa. and in custody, exonerated the bail.

1. That he cannot be considered as an original undertaker, will appear evident from his not being a party, either in the suit, or in the bill in equity. The plaintiff, Porteous., had no claim on him, when the suit was originally commenced at common law ; for he was no party to the contract; and when Washington went into chancery, the defendant, Snipes, wras no party in the bill which prayed for the injunction. Snipes only came forward as his friend, to enable him to obtain that redress which he conceived himself entitled to, from the nature and equity of his case, and engaged that Washington should abide the decree of the court of chancery, or pay and satisfy the plaintiff at law. The performance of the condition was entirely on the part of Washington : the defendant, Snipes’s name is not mentioned in it. ■ It is evident, therefore, that he ought not, nor cannot be considered as an original undertaker, so as to make him chargeable in his own right.

2. That from the very nature of a collateral undertaking, if the party in the original obligation, performs the conditions in the contract, the collateral undertaker is discharged. What then is the nature and extent of' the present undertaking l Why, that Washington should abide the order of she court of chancery, or pay and satisfy the judgment at common law. If there had been any decree in chancery, it is clear Snipes would have been bound, if Washington had not performed ; but there was none — of course there was nothing obligatory on him in chancery. The bill was dismissed, and the plaintiff left at liberty to proceed at law. At this stage of the business then, the plaintiff was free to pursue whatever right the law gave. There were two remedies : first, upon the original judgment against Washington; or, secondly, on the bond against both, for payment of the money. It was at this period that the plaintiff had to decide which remedy he would follow. He did so ; he made his election, and proceeded against the defendant on the original judgment, took his body in execution and he died in custody. His election in this case, was conclusive against him. The cases cited from Viner, are clear on the subject. His being in custody, and dying in gaol, is a satisfaction in law, and one of the highest nature. It is a performance of one of the conditions of the bond, entered into when the injunction was obtained. Although the words in the condition of the bond are in the copulative pay and satisfy 5 yet they may well be construed to be in the disjunctive pay or satisfy. So that satisfaction in any other way, than payment of the money, is a defeasance of the bond, inasmuch as payment of the money would have been.

3. Should this however be considered in nature of bail in error ; still, according to the cases in the books, the bail might have surrendered the principal: and if he might have surrendered him, his being taken in custody (which is tantamount to a surrender) and dying there, amounts to a discharge of the bail at common law. Roll. 392. Moor. 853. 3 Bulstrode, 191. 1 Bac. 218. 1 Roll. 33 7. Moor. 888. If it should be considered in nature of bail under the attachment law, if the plaintiff in attachment will (as has; been well observed by the defendant’s counsel) relinquish his bond, and proceed to judgment against the absent debt- or, and charge him in execution, it would be a waiver of his right against the security to the attachment bond. As to the cases cited by the plaintiff’s counsel respecting co-obligors, and one dying in gaol not being a discharge of the other, they do not apply in the present case. They all relate to original undertakers; parties to the original contract, and not to collateral engagements. Upon the whole, the court are of opinion, that the plea in bar is a good plea,- and ought to be sustained ; therefore,

Pringle, Fraser, Parker, Ford, and Desaussure, for plaintiff.

The Attorney-General, Pinckney, and Harper, for defendant.

Let the judgment be for defendant.

Present, the Ciiiee Justice, and Judges Burke, GRimke, and Bay. 
      
      
        Washington was executed for forgery, though the fact did ndt appear pn the face of the pleadings : they only stated, that he died in gaol, being in custody before he was accused of the forgery.
     