
    Beecker against Simmons impleaded with Andrews.
    NEW-YORK
    Nov. 1810.
    Where the plaintifl'takes au assignment o~ the bait-bond, and brings ass action against the principar, and the bait to the arrest, and obtains a judgment, and issues an execution, he cannot after-wards file corn. mon bail in the original suit, and proceed tojudg.. ment therein; but is concluded by his eleetious to proceed oss the bail-bond.
    THIS was an action of debt on a judgment.
    The plaintiff sued Simmons & .Andrews pu theh joint note. Andrews only was arrested, and put in bail to the sheriff; but neglecting to put in special bail, the plaintifi took an assignment of the bail-bond, on which he brought an action, and obtained judgment. The suit on the bail-bond was against Andrews, and one Asa Gunn. Upon this judgment the plaintiff issued a Ca. sa. in which both defendants, in the bail-bond suit, were taken and committed to custody. After remaining some time in custody, they left the gaol liberties, and returned home. The plaintiff filed common bail in the original action, and entered up a judgment agàhst both defendants, and brought an action of debt on that judgment, in which Simmons only was taken.
    Upon these facts, two questions were submitted for ~he decision of the court.
    1. Whether the plaintiff, having elected to take am assignment of the bail-bond, and proceeded to judgment thereon, could afterwards file common bail to bring the defendants into court.
    2. Having taken the bail in execution, is not that a satisfaction of the debt
   ~ 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~  