Beecker v. Simmons
New York Supreme Court
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.
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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…
1Opinion of the Court
~ 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 *120The case comes within the principle of the decision lit .Smith v. Rosencrantz, (6 Johns. Rep. 97.) for the bait to the arrest…
2Cited by3 opinions
- Prior v. BodrieMichigan Supreme Court · 1882
- Candee v. KelseyOhio Supreme Court · 1836
- Valentine v. SmithOhio Supreme Court · 1837