Beecker v. Simmons , 7 Johns. 119 ( 1810 )

~ Per Curiam.

Curiam. The plaintiff having elected to proceed upon the bail-bond to a judgment, and having cI~arged the bail to the arrest and his principal in execution, he cannot be permitted, afterwards, to waive these pro~ ceedings by filing common bail in the Original suit, and proceeding to a judgment therein. He is con- clu~ded by his election, and the proceeding under it. The remedies are inconsistent with each other; and he canuot have both~ That would be The case comes within the principle of the decision lit .Smith v. Rosencrantz, (6 Johns. Rep. 97.) for the bait to the arrest became substituted for special bail. The filing of common bail in the original suit was irregular, after the judgment and execution upon the bail-bbñd ; and no doubt the court, on proper application, would have set aside, as irregular, the judgment upon which this suit was brought. But that question is not now before us; and upoli the first point submitted we are of opinion with the defendant; and, according to the stipulation in the case, judgment is to be entered accordingly.

Judgment for the defendant~