Smith v. Rosecrantz

6 Johns. 97

Opinion

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.