
    [Pittsburg,
    Sept. 27, 1822.]
    PATTERSON against SWAN and another.
    IN ERRORS
    Where a defendant entered bail to entitle himself to a stay of execution under the provisions of the act of 31st March, 1806, and the plaintiff, after the expiration of the cesset, issued a fieri facias and levied on the defendant’s real estate, and on the return of the writ issued a scire facias against the bail upon his recognizance, it was held, that the plaintiff was not bound to make his election between the defendant in the original action, and the bail, but might pursue his remedies against both or either, though he could receive but one satisfaction.
    The doctrine of election holds only where the remedies are inconsistent with each oilier, not where they are concurrent.
    Where a number are concurrently liable, they all remain so until satisfaction actually i’cc'eived from some of them.
    This was a writ of Error to the Common Pleas of Allegheny county.
    
      M. M. and I. Swan, the defendants in error, and Christian Lat-shaw and Richard T. Leech-, trading under the firm of Latshaw & Leech, by agreement in writing, filed on the 27th March, 1820, entered an amicable action in the Common Pleas of Allegheny county, as of ¡January term, 1820, in which M. M. & I. Swan were plaintiffs, and Latshaw & Leech defendants. The same agreement contained a confession of judgment by Latshaw & Leech in favour of M. M. & I. Swan, for the sum of 802 dollars and 81 cents, with interest from the 24th day of April, 1820. On the 29th of April, 1820, Robert Patterson, the plaintiff in error, entered into a recognizance, written immediately under the docket entry of "the amicable action and judgment referred to, in the following words: “ Robert Patterson, of Pittsburg, bound in the sum of $1,500, sub cond. for the final payment of the debt, interest, and costs, in this suit, in order to entitle the defendants to a stay of execution as freeholders, acknowledged coram
    
    E. PENTLAND, Proth’y.”
    
    A fieri facias was issued to April term, 1821, a levy made on certain real estate belonging to Christian Latshaw, an inquisition held, and an appraisement of-the same.
    On the 2d of July, 1821, M. M. & I. Swan issued a wire facias to August term, 1821, against Robert Patterson. The praecipe for the sci.fa. wáS in the following words:
    
      6t M. M. & I. Swan, Issue sci.fa. on recognizance of special v. > bail in No. 400, January term, 1820.
    
      Robert Patterson. ) R. BIDDLE, Pltff’s. Att’y.
    
    
      2d July, 1821.”
    The scire facias issued by the prothonotary in. obedience to this praecipe, was in the following words:
    
      
      ic .Allegheny County, ss.
    a_^\ The Commonwealth of Pennsylvania to the She- | seal, l riff of the county of Allegheny, greeting: Whereas - M. M. & I. Swan, lately in our court of Common Pleas, before our judges at Pittsburg, that is to say, on the 27th day of March, in the year of our Lord, 1820, by the judgment of the said court, recovered against Latshaw and Leech, the sum of 802 dollars and 81 cents, lawful money of the United States, for their damages which they sustained in a certain plea of trespass on the case, &e. as also the sum of - dollars and —— cents, for their costs and charges by them about this in that behalf expended, whereof the said Latshato & Leech are duly convict as appears to us of record: And although judgment in form aforesaid be given, execution: thereof yet remains to be made. And whereas Robert Patterson lately, that is to say, on the 29th day of April, in the year of our Lord, 1820, in his own proper person came into our said Court of Common Pleas, before our said judges at Pittsburg, and became pledge and security for the said Latshaw and Leech, in the sum of 1500 dollars, lawful money of the United States as aforesaid, in that behalf should be made and levied of the goods and chattels, lands and tenements* of him the said Robert Patterson, to the use of the said M. M. and I. Swan, unless the said Latshaw and Leech should pay and discharge the same. Nevertheless the said Latshaw and Leech, the. deist, damages, costs and charges aforesaid, to the said M. M. and I. Swan, have not yet paid, as by the said M. M. and I. Swan, we are in our said court informed: Whereupon the said M. M. and I. Swan have besought us that we would grant unto them a proper remedy in this behalf, and we being willing that right- and justice should be done herein, do command you, that by good and lawful men of your bailiwick, you make known to the said Robert Patterson, that he be an.d appear before our said judges at Pittsburg, at our County Court of Common Pleas, there to be held for the county aforesaid, the first Monday of August next, there to show, if any thing he hath, or can say, why the said M. M. and I. Swan ought not to have his execution against him-the said'Robert Patterson, for Ais debt, damages, interest, costs, and charges, as aforesaid, according to the force, form, and effect, of the recognizance aforesaid, if to him it shall seem expedient, and further to do and receive whatsoever our said court shall then and there of and concerning them in this behalf consider: And have, you then and there the names of those by whom you shall so make known to him, and this writ. -
    Witness the honourable William Wilkins, Esquire, president of our said court at Pittsburg, this fifth day of May, in the year of our Lord one thousand eight hundred and twenty-one.
    (Attest.) • JAMES R. BUTLER, Proth’y.
    
    On the 28th August, 1821, the attorney of M. M. and I. Swan, 
      entered a rule of reference, which-was served on Patterson’s attorney, and on the 15th of September following, the time stated in the rule, the plaintiffs’ attorney appeared at the prothonotary’s office, and* the defendant not appearing, arbitrators were appointed, who on the 6th of October, 1821, made the following award: — • <( 6th October, 1821. Arbitrators met and plaintiff’s attorney appeared. Defendant did not appear. After hearing the evidence, we find for the plaintiffs, 872 dollars find 65 cents, and direct that defendant pay the costs of this suit, and of those accrued in No. 400,' of January Term, 1820, [M. M. & I- Swan, v. Latshaw fy. Leech.) The arbitrators were duly sworn.
    ALEXANDER JOHNSON. Seal.
    
    
      (Signed) NEVILL B. CRAIG. Seal.
    
    THOMAS ENOCH. Seal.”
    
    The attorney of M. M. & I. Swan had previous to entering a , rule of reference, filed the following statement.
    
      M. ,M. & I." Swam,' , v. Bobert Patterson. No. 173, August Term, 1821. Sci. fa. sur. recognizance of bail, for final payment of money in No. 400, January, 1820.
    The plaintiff, by Richard Biddle, his attorney, states his cause of action as follows, viz: That the defendant on the 29th day of JLpril, 1820, became bound in a certain recognizance in the sum of 1500 dollars, before the Court of Common Pleas of Allegheny county, conditioned for the final payment of a certain judgment obtained by the aforesaid plaintiff against Christian Latshaw and Richard T. Leech, trading under the firm of Latshaw & Leech, being No. 400, of January term, 1820, for the sum of 802 dollars and 81 cents debt, interest from 24th April, 1820, and costs of suit, in order to obtain for the said Latshaw & Leech, the stay of execution allowed to freeholders according to law, as by the- said recognizance in the said court remaining fully appears; that the said stay of execution is fully ended, and the amount of the said judgment, interest, and costs is yet unpaid; whereby an action hath accrued to the said plaintiff, to demand and have of and from the said Robert, the sum of fifteen hundred dollars. Yet the said Robert, although often requested, hath not paid the same money, the debt, interest, and costs aforesaid, or any part thereof, but the same to pay hitherto hath wholly- refused, and still doth refuse, to the damage of the said plaintiffs fifteen hundred dollars, and therefore they bring suit.
    R. BIDDLE, Pltff’s. Att’y.
    
    JohN Doe, and Richakb Roe, ;“l | Pledges, &c.
    On the 2d of October, 1821, Patterson’s attorney entered the pleas of “nul tiel record,” and “payment.” A fi. fa. was issu-eel to November term, 1821, to which the sheriff made return, “ superseded by writ of error.”
    The plaintiff in error assigned the following errors:
    1. The prsecipe directs a scire facias sur recognizance of special bail; the writ issued varies substantially from the prsecipe, and does not set out any such recognizance as is directed.
    2. The writ of scire facies does not set forth any description of recognizance known to the law, but is insensible and absurd in the material part of it.
    S. The record referred to in the prsecipe -contains no such recognizance as is there directed] ■ and the recognizance which the said record does contain, viz. a recognizance for the payment of * the money, to obtain the stay of execution allowed to freeholders, is not set out in the scire facias ; the material part of -the condition being wholly omitted therein.
    4. The statement filed by the plaintiff varies substantially from the prsecipe and the writ of scire facias.
    
    
      5. The second rule, 'viz. the rule' of reference was not served on the party, nor in any other way according to law; nor had the said party either actual or constructive notice of the day, time, and place of meeting. The copy of the record on which the arbitrators acted is not a true copy, and the award itself does not state that the arbitrators were sworn before they tried the cause.
    6. There was a fi. fa. with a levy on it undisposed of, pending against the defendant in the original action, at the time the scire facias was issued against the bail — the issuing of the. scire facias was therefore illegal.
    
      Hopkins, for the plaintiff in error.
    The sci. fa. does not state the condition of the recognizance, and therefore no judgment upon it can stand. He referred to the act of 21st March, 1806, sect. 7. Purd. Dig. 202.
    
      Biddle, for the defendant in error.
    The condition of the recognizance was forfeited, and therefore the plaintiff had a right to proceed on it, although he had issued execution and levied on the property of the defendant, provided he had not obtained satisfaction. It is like the case of security on a writ of error.
   Gibson, J.

delivered the opinion of the court.

Various errors have been assigned; no one of which is of sufficient importance to merit consideration, except the last. The defendant in the original suit entered bail to entitle him to a stay of execution, according to the act of the 21st March, 1806: and after the expiration of the cesset, the plaintiff took out a fieri facias and' levied on the defendant’s real property; on the return of which he issued this scire facias against the bail: and the question now is, whether he was bound to make his election between the defendant in the first action and his bail, or whether he might pursue both. together? It is obvious that these stand in the relation of principal and surety. . The form of the security is immaterial, "as they are both liable for the same debt, although by different responsibilities; the judgment fixing the one, and the recognizance the other. The engagement of the bail is. not conditional, to pay in case the principal does not — in which case he might perhaps not be, liable, till all means to recover the debt from the latter were exhausted; but both are liable concurrently; and it is not pretended that recourse might • not be had to the bail in the first instance. It is therefore difficult to see why recourse might not be had to both together. What injury can it do to the bail ? Standing in the relation of a surety, if he could object in -any case,'it would be where the principal was not called • on. Here, whatever is recovered on the judgment against the principal, will be for his benefit; for clearly the plaintiff can have but one satisfaction. It is well settled, that the doctrine of election holds only where the remedies are inconsistent with each other; and here they are not so. Nor is it pretended that the levy was,satisfaction, as between the plaintiff and the defendant in the original judgment: and where a number are concurrently liable, they all remain so till satisfaction is actually received from some of them. It is perfectly clear, therefore, that the plaintiff might pursue the principal or his surety; or both at the same time.

Judgment affirmed.  