
    Smith and others against Rosecrantz.
    NEW-YORK,
    May, 1810.
    The plaint!ffhas his election, either to take an execution against the body of the defendant or his bail; but he cannot have both; and having taken the bail on a ca. sa. he cannot, afterwards, resort to the principal, and take him in execution; or vice versa.
    
    SILL, for the defendant, moved to set aside the ca. sa. issued in this cause, and that the defendant be discharged from imprisonment.
    The defendant was special bail for Benjamin Hutchins, at the suit of the plaintiffs* in an action on the case, commenced in this court, at February term, 1807, on which a judgment was obtained, and an execution issued. The defendant was sued, as of August term, 1808, as special bail* on his recognisance; and the plaintiff obtained judgment in November term, 1808, and issued a f. fa. which was returned nulla bona, at February or Mdy term, 1809. The plaintiff then caused a second ca. sa. to be issued against Hutchins, retumable at May term, 1809, upon which he was arrested and imprisoned^ While Hutchins was imprisoned, the plaintiff issued a ca. sa. upon the judgment, against the defendant, returnable in November term, 1809* upon which he was taken, and is now in custody. The court t»f common pleas of Madison county, in January, 1810, discharged Hutchins, under the act for the relief of debtors, with respect to the imprisonment of their persons.
    
      Sill cited Cro. Jac. 320»
    Platt, contra,
    cited, 1 Venir is, 315* 3 Mod. 312. 2 Lev. 19 S.
    
   Per Curiam.

After the plaintiff had obtained judgment against the defendant, he had his election to have execution against the body of the principal, or of the bail; but when he has taken one in execution, he then loses his election, and cannot resort to the other. If he takes the bail in execution, he cannot afterwards resort to the principal, and take him in execution, for he has made his election; and so if he has execution against the principal, he cannot afterwards resort to an execution against the bail. This is the doctrine in Higgins’s case, which is summarily reported in Cro. Jac. 320. and in 1 Roll. Abr. 897. G. but more fully, and with a clear and precise declaration of the law, in 2 Bulst. 68. The case of Astre v. Ballard, as reported in 1 Vent. 315. intimates that a different rule had afterwards been laid down; but the case is there very loosely reported; and the report of the same case in 2 Mod. 312. 2 Lev. 195. and 2 Jones, 75. contains no such intimation. The true rule of law must, therefore, be considered to be that which is declared in Bulstrode, by the unanimous opinion of the court of K. B.

Motion granted.  