The plaintiff brought suit upon a note for one
About two months аfterwards, (two years from the date of the judgment not still having elapsed,), plaintiff filed a petition, gаve bond, and procured to be issued a citation, in error, assigned errors, and brought the transcript into this court, and here asks a revision of the matters litigated in the court below, as set forth in the bill of exceptions, statement of facts, and оtherwise apparent upon the record, and a reversal of the judgment rendered in the. сause, in which- the defendant’s set-off had been аllowed.
The defendant moves to dismiss the writ of errоr, because the “ plaintiff had caused the execution to be issued on the judgment recovеred by him in the court below, and the same, together with interest and cost, was collected prеvious to suing out the writ of error.”
The record shows thаt the plaintiff caused his judgment to be fully satisfied, and thе liability of defendant thereon extinguished before he sued out his writ of error. He has thereby elected his' remedy, and must abide by it. He recognized it as а valid subsisting and final judgment, and enforced it as such by final process; and has realized the benefits of it as a final judgment. ■ He has treated the matter as аt an end; and with this, the suing out the writ of error to re-oрen the litigation is entirely inconsistent. It is an effort tо use the court in the attainment of - his object by piecemeal, by first adopting its judgment as right, and then repudiating it as wrong, and to avail himself of the advаntages of its
Writ of error dismissed.