
    
      James W. Gray, Com’nr. vs. J. J. Gidiere, and two sureties.
    
    Action on bond conditioned tliat G. will pay the amount of a circuit decree in Equity in favor of N. within ten days after final decree by Appeal Court, “or surrender himself a prisoner to the sheriff, under the attachment now in force against him plea, — that after final deeree in Appeal Court, G, was and always has been ready to surrender himself under the attachment; but that after said final decree there was no attachment in force against him; and that N. did not and would not deliver the said attachment, or any other authority, for receiving G. as a prisoner to the sheriff, &c: replication, — that after final decree in Appeal Court, there was an attachment in force against G. in the said cause of N. and G: Held, on special demurrer, that the plea was good, and that the replication did not sufficiently answer it.
    
      Before Wardlaw, J. at Charleston, May Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    
      “ The history of this case, if it should be found necessary to look into it, may be found in the report of a motion formerly made in it, Gray vs. Gidiere, (4 Strob. 438,) and in the reports of Equity proceedings, out of which it arises, Napiere vs. Gi-diere, (3 Strob. Eq. 192,) and Napier Sp Anderson vs. Gidiere, Exh'. of DesCoudres, (Spear, Eq. 215.)
    
      “ It is an action of debt on bond, and the motion now made presents questions concerning the sufficiency of the third plea and of the replication thereto.
    
      “ The condition of the bond set out upon Oyer is as follows :
    
      “ Whereas, by a decretal order entered on the 27th June, A.D. 1840, in the cause then and there pending, of Thomas Napier & Co. vs. J. J. Gidiere, Ex’r. of L. P. DesCoudres, it was ordered that the defendant, Gidiere, enter into bond to the Coin-missioner of this Court, with two good and sufficient’ sureties, in a penal sum equal to twice the amount ordered to be paid into Court by Chancellor Dunkin'. The condition of the above obligation is such, that if the above bound J. J. Gidiere will abide by and perform the decree heretofore made for the payment into Court of the said sum of money, within ten days after the dt cree of the Appeal Court, (in the matter decided by this Court, the Circuit Court of Equity,) and by the decree of Chancellor Dunkin, or surrender himself a prisoner to the sheriff, under the attachment now in force against him; then the above obligation to be void and of none effect, or else to remain in full force and virtue.
    
      “ The third plea is as follows :
    “ And for a further plea in this behalf, the said defendant says, that from and after the time when a final decree was rendered on this defendant’s appeal, in the cause mentioned in the said writing obligatory, he was, and always has been, ready to surrender himself a prisoner to the sheriff of Charleston district) under the attachment, which was in force against this defendant at the time of making the said writing ; but that, after a final decree on the said appeal, there was no attachment in force against him ; and the complainants in the cause of Napier against Gidiere, at whose suit, and for whose benefit the said attachment had been issued, and for whose benefit the said bond is now sued, did not, and would not, deliver the said attachment, or any other authority, for receiving the defendant as a prisoner, to the sheriff, in the said writing obligatory mentioned; and this he is ready to verify : wherefore he prays judgment, if the said plaintiff should further have or maintain his aforesaid action against him, &C.
    “ The replication to that plea is this :
    “ And the said plaintiff, as to the said plea of the said defendant by him thirdly above pleaded, saith precludi non, because he saith that after a final decree in the said appeal, there was an attachment in force against the said defendant, in the said cause of Napier and Gidiere. And of this he puts himself upon the country, andsoforth.
    
      
      “ To this replication the defendant demurred generally, and for cause, as follows. And as to the replication to the plea by the defendant thirdly pleaded, the defendant saith :
    “ That the replication of the said plaintiff, and the matters therein contained, are not sufficient to sustain the action of the said plaintiff, and that he, the said John J. is not bound to answer, and this he, the said John J. is ready to verify, wherefore he prays judgment if the said plaintiff should and ought to have and maintain his aforesaid action against him. And the said John J. according to the form of the statute in such case made and provided, states and shows to the Court here, the following causes of demurrer in law to the said replication, that is to say: The said replication is uncertain, and does not shew, where, when or how, the supposed writ of attachment, called an attachment in the said plea, was of force after the final judgment mentioned in the said plea. And, secondly, because the said replication does not answer the whole plea, to wit, that part which alleges that the defendant was always ready, after the final decree in Napier vs. Gidiere, to surrender himself a prisoner to the sheriff of Charleston district, under the attachment which was 'of force against this defendant at the time of the making of the said writing obligatory, nor that part which alleges that the plaintiff did not and would not deliver the said attachment, or any other authority, for receiving the defendant as a prisoner,, to the sheriff in the said writing obligatory named. Thirdly, that the matter replied by the plaintiff may be true, and the writ of attachment mentioned in defendant’s plea, be in the hands of the plaintiff or his agents, or in the hands of some other sheriff than the sheriff of Charleston district; so that the defendant could not surrender himself to the sheriff of Charleston district, for want of authority on the part of the said sheriff" to receive and detain him ; and all the rest of the defendant’s plea strictly true, and the existence of the attachment in such circumstances would be immaterial. Fourthly, that the matter of the said plea is contradictory, and insufficient to maintain the said plaintiff’s action, inasmuch as it admits that the defendant was always ready to surrender, and that the plaintiff would not deliver to the sheriff in the writing obligatory mentioned, any authority for receiving him as a prisoner, and yet avers that the attachment was in force, whi'ch is inconsistent.
    “ After hearing argument, I held the replication insufficient, and sustained the demurrer to it.”
    The plaintiff appealed, on the grounds :
    1. That the replicacion to the defendant’s plea was a good one in itself.
    
      2. That if the replication is insufficient, the plea itself is not an answer to the declaration, and being the first error, the Court ought to have struck out the plea, and ordered the defendant to plead over.
    
      J. M. Walker, Hunt, for appellant.
    
      Menvminger,.Petigru, contra.
   The opinion of the Court was delivered by

O’Neall, J.

The demurrer to the plaintiff’s replication is special, and the effect of the judgment below is to compel the plaintiff to amend, and reply with more certainty and fullness. This might have been done with far less injury and delay to the plaintiff than has been incurred by an appeal. But as he chooses to stand upon his legal rights, he has the right to do so, and it is our business to give him the benefit oí the law.

That the replication is defective, in every particular set down, as cause of demurrer, is so apparent, that it scarcely requires more than to be read.

Beyond all doubt, the replication should set out the attachment, which was of force after the final decree in Equity; it may be, if lost, that a more imperfect description would suffice than otherwise would be required.- If the attachment is in being, it should be set out with as much precision as any other matter of record.

A replication must answer the whole plea, when it professes to do so. It is true that there are cases where a party may reply to a part of a plea. (1 Ch. Plead. 611, et seq.) But this case does not fall within any of them. The defendant undertakes to answer the plea, and then traverses only one allegation; this he could not do without confessing and avoiding the other allegations. These remarks sufficiently dispose of the replication, which has been scarcely attempted to be sustained. But it is said, admit the replication to be defective, the demurrer carries us back to the first fault in pleading, and the plaintiff, to excuse himself, puts his finger on the 3d plea, and says that it is defective, and therefore I claim judgment. I do not know that I can do better than refer to this case, (4 Strob. 438,) and cite, from page 444, my remarks on the 3d plea. “ As to the 3d plea, it alleges that, at the final decree on the appeal, there was no writ of attachment in force against Gidiere. If that be true, how can that plea be regarded as frivolous ? The plaintiff, by demurring to it, would have learned that judgment must have been given for the defendant. This is easiest shewn by supposing that after the Court of Equity made the order for the release of Gidiere, oh giving the bond in suit, and after its execution, the Court of Equity had set the attachment aside. What effect would that supposed case have on the defendant’s liability on the bond ? It is clear Gidiere could not have surrendered himself ‘ a prisoner to the sheriff under the attachment now in force against him,’ because the sheriff had no authority whereby he could receive or hold him in custody. For the attachment of force against him at the execution of the bond had ceased to be so. This being so, both he and his sureties would be discharged, for they are not held to perform conditions, which, by law, have been, since the execution of the bond, made impossible. It is true, that it is probable this supposed case may not exist; still, if it could, on demurrer to the 3d plea, the defendants would be entitled to the benefit of it. For they simply allege, that at the ending of the appeal, “ there was no writ of attachment in force against him,” (Gidiere), and the supposed case would come within their allegation. Such being a possible construction of the 3d plea, and which would make it good, as a perfect defence on demurrer, it follows it cannot be frivolous.” These remarks are decisive of the very matter now discussed before us, and unless the Court, at the second term ■ after they were made, is disposed to recant the whole which was then said, I do not perceive how it can be expected by a retroact-ing demurrer, the party can obtain an advantage, which he feared to seek by a direct one.

The Court is still satisfied the plea is good, and it must be either traversed fully or confessed and avoided.

The motion is dismissed.

Wardlaw and Frost, JJ. concurred.

Evans and Withers, JJ. dissented.

Whitner, J. absent.

Motion dismissed.  