
    Henry S. Mayo vs. Micajah T. Williams’ Adm’r.
    An action upon an appeal bond may be maintained by the appellee, when it is ascertained by the return of an execution, that the judgment debtor has not property sufficient to pay and satisfy the original judgment.
    If the declaration upon an appeal bond show that the original judgment is not paid, or Satisfied, the declaration will be held sufficient on general demurrer, though it be not averred in explicit terms that the defendant did not pay the same.
    This is a Writ op Error, directed to the Court of Common Pleas of Miami County.
    The judgment sought to be reversed, was rendered in that Court upon an action of debt, prosecuted by the defendant in error against the plaintiff in error, upon an appeal bond. The bond was signed by Mayo, and Charles T. Bossen. Process was issued against the two, but was returned not found as to Bossen. This bond was in the penal sum of $6,660, conditioned, “ that whereas the said Charles T. Bossen, and William Bossen, have taken an appeal from a certain judgment, rendered against them, in favor of Micajah T. Williams, in the Court of Common Pleas within and for'the county of Miami, in the State of Ohio, at the April Term thereof, 1841, for the sum of three thousand three hundred and fifteen dollars and fifty cents, damages and costs, to the Supreme Court within and for said county,— now if the said Charles T. Bossen, and William Bossen, shall pay the full amount of the condemnation in the said Supreme Court, and costs, in case judgment shall be entered against them, in favor of the appellee, then the obligation to be void, otherwise in full force and virtue in law.”
    In the declaration, the recovery of the judgment in the Court of Common Pleas, and thé taking of the appeal to the Supreme Court, are set forth, and the giving of the appeal bond, with its recital and conditions. Also, the recovery in the Supreme Court, at the June Term, 1841, of a judgment against Charles T. and William Bossen, for three thousand three hundred and thirty-seven dollars and fifty cents damages, and forty-four dollars and fifty cents costs of suit. It is further averred, this judgment was remanded to the Court of Common Pleas, for execution; that an execution was issued, dated October 20, 1842, and returned on the first day of the November Term, of the same-year, indorsed “no goods or chattels; ” levied on 33 acres of land, and certain town lots in Troy, “ not advertised for want of time; ” that a vendi was issued, with a command under the statute, that if the levy was insufficient, to levy again, and returned, “ no goods,” &c.; and levied, in addition, upon another town lot in Troy, “ being all of the defendant’s property, found in Miami county,” “property offered, not sold,” &c. This execution was dated 26th April, 1843. December 26th, 1843, another vendi was issued; returned March 1st, 1844, “ sold all the lands, made $645 12,” “ no further goods or lands.” This sale was confirmed as to all the town lots, and set aside as to the thirty-three acres of land. On the 7th of May, 1844, another vendi was issued, to sell said thirty-three acres of land, and containing a command, if insufficient to pay, &c., to take goods and chattels, and more land, and to re-appraise. This execution was returned that the land had been appraised at twenty-five dollars per acre, amount $750, “no more goods or chattels, lands or tenements, whereon to levy, property unsold.” The declaration- then proceeds, “ whereby it appears that the said Charles T. and W. Bossen, had not goods and chattels, lands and tenements, sufficient to satisfy said execution; and the plaintiff further avers, that a large amount of increase costs, to wit, four hundred dollars, have accrued upon said judgment of the Supreme Court, and neither the said defendant, nor the said Charles T. Bossen, has paid either to the plaintiff’s intestate, in his life time, or to the plaintiff, his administrator, since his death, the said condemnation money of said Supreme Court, and costs, or any part, or either of them, but the same remain due, and unpaid; whereby an action hath accrued to the plaintiff, to demand and have of the defendant, the said $6,660, above mentioned, yet the defenc[ant not, nor hath the said Charles T. Bossen, paid the ’ _ . . . r . or any part thereof, either to the plaintiff’s intestate, in his life time, nor to the plaintiff, his administrator, since his death, but the same remains due, and unpaid,- to the damage,” ,&c.
    To this declaration, there was a general demurrer. The demurrer was overruled, after which the plea of the general issue was interposed, and the case submitted to the Court. This issue was found in favor of the defendant in error, and a judgment rendered for the penalty of the bond, to be discharged upon the payment of $4,018 51, the amount due upon the original judgment, and costs.
    The errors assigned are —
    1. That the declaration is not sufficient in law to maintain said action.
    2. That the Court' below erred in overruling the demurrer to the declaration.
    3. That judgment was given for the plaintiff below, when it should have been given for the defendant.
    
      Crane Davies, for Plaintiff in Error.
    
      P. Odlin, for Defendant.
   Hitchcock, J.

Two exceptions are taken to the declaration in this case. The first is, that there is no sufficient breach of the condition of the bond assigned; and the second is, that it appears from the declaration itself, that at the time of the institution of the suit, there was a levy upon the lands of the original judgment debtors, undisposed of. The condition of the land is, that “ the said Charles T. and William Bossen shall pay the full amount of condemnation money, in said Supreme Court, and costs, in case judgment shall be entered therein in favor of the appellee,” &c. The averment in the declaration is, “ that neither the defendants,” that is, the . said Henry S. Mayo and the said Charles T. Bossen, “ hath paid,” &c., “ the said condemnation of the said Supreme Court, and costs, . any part, or either of them, but the same remain due and paid”

It is insisted that this averment is not sufficient, but it should have been averred, that neither the said Charles T. and William Bossen, nor either of them had paid, &c. And that it does not follow, because neither the defendant, nor Charles T. Bossen had paid said judgment, but that William Bossen may have paid. This exception would have been well taken but for the concluding part of the averment, where it is said in reference to this judgment “ the same remains due and unpaid.” It would probably have been more technically correct, to have assigned the breach as suggested by the counsel for the plaintiff in error, but we think, that as it is, it is sufficiently assigned. It is admitted that it would have been sufficient after verdict. It seems to the Court that it is sufficient upon general demurrer.

The declaration shows, that at the time of the institution of the suit, there was a levy upon the land, made under execution upon the original judgment, and it is claimed that the defendant in error could have no right of action until this land was disposed of. This presents the question whether an action can be sustained upon an appeal bond before the property of the judgment debtor is exhausted. In the case of Cass v. Adams et al., 3 Ohio Rep. 223, which was an action upon an appeal bond, to which the defendant had pleaded that an execution had been issued upon the original judgment, and levied upon a large amount of personal property, which remained undisposed of, this Court held the plea to be sufficient. The Court say, “ the arrest of a judgment upon a ca. sa. is a satisfaction, though no money be paid. So is the levy of an execution upon goods or land, whilst the levy is in force, and undisposed of.” But in the case of Reynolds v. Rogers, 6 Ohio Rep. 169, the Court decided that although the decision in the case of Cass v. Adams et al. was in accordance with the law, as applicable to the pleadings in that case, still that the declaration of the Court, as to e^ect a levy upon land, undisposed of, was not supporby authority. As was said by the Court ih the case of Reynolds v. Rogers, there is a great difference between a levy upon goods and a levy upon land. The goods are taken from the possession of the owner by the levy, but the owner of the land remains in possession after the levy, and cannot be dispossessed until after the land is sold. By the 27th section of the act regulating judgments and executions, (Swan’s stat. 482) it'is provided “ that in all cases where judgments shall be rendered in-the Supreme Court against an appellant, or an injunction dissolved in the Court of Common Pleas or Supreme Court, the successful party shall, before he brings suit upon the injunction or appeal bond, issue an execution against the principal debtor; and if by the return of the execution, it shall appear that the principal debtor has not goods and chattels, lands and tenements sufficient to satisfy the same, the successful party may then commence suit upon the appeal or injunction bond, and take judgment for the penalty thereof; which judgment shall be discharged by the payment of the original judgment or decree, with interest and costs, together with thfe costs of. suit on the appeal or injunction bond.”

But for the above recited-section of the statute, the appellee might have had his action against the appeal bail, upon the rendition of the judgment in the Supreme Court, unless the same was forthwith paid: By legislative provision, however, he is delayed until an execution shall have been issued against the judgment debtoi or debtors. An effort must first be made to collect the debt of the principal. But the statute does not require that the appellee shall be delayed in his proceeding upon the bond until the property of the principal shall be exhausted. He is authorized to proceed if by the return of the execution it shall appear that the principal debtor has not goods and chattels, lands and tenements, sufficient to satiéfy the same.” And there is nothing improper or unjust in this. The creditor has been delayed in the collection of his judgment in the Court of Common Pleas by the appeal. As a condition for this delay, the obligors in the appeal bond have undertaken that the judgment of the appellate Court shall be paid. soon as the fact is ascertained that the judgment debtor cannot make payment, it would seem to follow that the creditor shall have the right of proceeding upon his security.

In the case now before us, the declaration shows that there was a balance of more than four thousand dollars due upon the judgment of Williams against Charles T. and William Bossen , and that the value of the entire property of the Bossens was less than one thousand dollars, as shown by the return of the execution issued against them. If by the return of an execution in any case, it would be made to appear that the principal debtor, has not property “ sufficient” to satisfy the judgment, it is so made to appear in the present case. It is supposed that in a case like the present, there may be difficulty in ascertaining the amount for which judgment is to be rendered, but it is not so. The statute provides that judgment may be taken, as it was in this case, for the penalty of the bond, to be discharged “ by the payment of the original judgment” &c. The satisfaction of one judgment, is satisfaction of the other, and the same rule would apply to a partial satisfaction. It is in effect like the case where a creditor has separate judgments against separate individuals for the same cause of action. The satisfaction of one is the satisfaction of all so far as damages are concerned, as in the case of the holder of a promissory note or bill of exchange, having separate judgments against the maker or drawer and indorsers.

We are of opinion that in the record, proceedings and judgment of the Court of Common Pleas there is nothing erroneous. The judgment of that Court is therefore affirmed.  