Smith v. Rosecrantz

New York Supreme Court

Smith v. Rosecrantz

6 Johns. 97

CourtNew York Supreme Court

DecidedMay 15, 1810

StatusPublished

Cited by3 cases

This text of 6 Johns. 97 (Smith v. Rosecrantz) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Rosecrantz, 6 Johns. 97 (N.Y. Super. Ct. 1810).

Pincite

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 [98]*98loses 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.

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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 [98]*98loses 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.

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Bluebook (online)

6 Johns. 97, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-rosecrantz-nysupct-1810.

Opinion

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