Thomas Osborne, Sheriff of Charleston district, against John Bowman.
Charleston District,
1798.
"Where a bond is given for remaining within prison bounds, and defendant goes without the limits,and plaintiff after-wards sues out a second execution for an escape, and imprisons his person, it shall exonerate the security to the bond given to the sheriff. For although where a man has two remedies he may pursue either at his option, yet he shall have but one satisfaction, and the imprisonment of a man’s person is the highest satisfaction known in law.
DEBT on bond. Judgment by default. Motion to have the judgment set aside.
This was an action on a bond given by the defendant, under the prison bounds act, as security for Mr. Kennedy, who had been taken on a ca. sa. It was alleged by Mr. Taylor, plaintiff’s attorney in the action, that the defendant in the original suit had gone without the prison bounds, whereupon he moved the court for leave to issue a second execution for an escape, upon which he was taken and confined.
Mr. Taylor,' at the same time,
commenced this action upon the bond given to the sheriff for Mr. Kennedy’s not going beyond the prison bounds, and obtained judgment by default upon it.
This was, therefore, a motion to set aside the judgment and proceedings, on the ground of irregularity.
The Attorney-General, in support of this motion,
argued, that however the defendant, Mr. Bowman, might have been liable in the first instance, on Mr. Kennedy’s going without the prison rules or limits, yet as the plaintiff in the original suit had thought proper to pursue another remedy against his debtor, by taking out a second execution for an escape, on which the defendant had been arrested and was in custody, it amounted to a discharge of Mr. Bowman on this bond, as it was inconsistent with the rules of law that a man should have a double satisfaction for the same debt. That the person of a man was the highest satisfaction a creditor could have against his debtor, and this the plaintiff in that *209action had obtained. He had made his election, and proceeded on the second execution, and retaken the defendant on it. He therefore waived his right of action against Mr. Bowman, on his bond under the prison bounds act. He said it was analogous to special bail, where defendant is taken on a ca. sa. in which case it is clear that the special bail 5 * is exonerated from his responsibility. 1 Cramp. 336. % Cromp. 71.
'portcTut r¡^fe\ep, *• P- '^15-Utley s edit
Mr. Marshall, against the motion,
insisted, that the plaintiff in the action had not lost his remedy by suing out his second ca. sa,; that where a man has a double remedy, he may pursue either, or both, at the same time, as in the case of a bond and mortgage ; he may proceed in equity to foreclose the mortgage, or sue on the bond at common law, or he may proceed on both at the same time, at his option.
Per Curiam•
There is no doubt but a man may, where he has a double remedy, pursue either or both at the same time, but he can have but one satisfaction. The person of a debtor is the highest satisfaction a creditor can have in law. When a plaintiff once takes out his ca. sa. and imprh sons the defendant, it is a satisfaction of the debt, and discharges his bail. Hence the privilege which the bail have of surrendering up the defendant in their own discharge.
The case of Porteous v. Snipes, quoted, was strong in point. There the plaintiff had his judgment against Washington, who went into equity, and obtained an injunction. Snipes was Washington's security on the injunction bond. Upon the hearing of the cause, the bill was dismissed, and the injunction dissolved. The plaintiff Porteous, then had his choice of two remedies ; either to take out his execution against the defendant Washington, or against Snipes, on the injunction bond, who became liable on the dissolu.ion of the injunction. He accordingly made his election, and took out *210
Z ecu sa. against the defendant, who died in gaol. Aftetv wards he brought a suit against Snipes on the bond ; the satisfaction on the part of Washington was pleaded in bar to. the action, and the court sustained the plea, on the ground that the taking out the ca. sa. and imprisoning the defendant, was the highest satisfaction known in law.
Let the judgment and proceedings be set asides,
Present, Bubke, Grih^e and B/iv,