
    Corlies and Widdifield against Cummings.
    Where the plaintiff took a bill of exceptions at the circuit; and afterwards, made a case, the court made a rule that he should elect one; and that the other should bo set aside.
    At the trial of this cause, the plaintiffs took a bill of exceptions on certain points of law; and afterwards made a case embracing the same points ; and also bringing up the question as to the weight of evidence. And now,
    
      D. Lord, junior, moved that the defendant should elect which he would abide by; and that if he should elect the one, the other should be set aside.
    
      Fessenden, contra.
   Curia.

The defendant cannot pursue the bill and case both. He must elect. (1 John. Rep. 192, 5.)

Fessenden.

We then waive the bill; and will proceed with the case.

Rule accordingly.  