Smith v. Rosecrantz
New York Supreme Court
SILL, for the defendant, moved to set aside the ca. sa. issued in this cause, and that the defendant be discharged from imprisonment. The defendant was special bail for Benjamin Hutchins, at the suit of the plaintiffs* in an action on the case, commenced in this court, at February term, 1807, on which a judgment was obtained, and an execution issued.
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SILL, for the defendant, moved to set aside the ca. sa. issued in this cause, and that the defendant be discharged from imprisonment. The defendant was special bail for Benjamin Hutchins, at the suit of the plaintiffs* in an action on the case, commenced in this court, at February term, 1807, on which a judgment was obtained, and an execution issued. The defendant was sued, as of August term, 1808, as special bail* on his recognisance; and the plaintiff obtained judgment in November term, 1808, and issued a f. fa. which was returned nulla bona, at February or Mdy term, 1809. The plaintiff…
1Per 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 *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…
2Cited by3 opinions
- Stewart v. McGuinNew York Supreme Court · 1823
- Palethorpe v. LesherSupreme Court of Pennsylvania · 1830
- Warren v. GilmoreMassachusetts Supreme Judicial Court · 1853