Opinion by

The court below did not err in requiring the appellant to elect which one of the causes of action set out in his petition he would prosecute. The two were not only inconsistent, but each one presented a perfect defense to the other and might have been plead in bar of a recovery.

Having deliberately elected to proceed upon the second paragraph, knowing, as he must have known, that a former judgment between the same parties, rendered in an action involving *665identically the same subject-matter, could be plead as a bar to his suit, and being fully apprised as to the proof he would be able to make by his witness McBrayer, who had testified in the former suit, it was not an abuse of the court’s discretion to refuse to permit him, after the testimony was heard, to amend his pleading, and rely upon the matters set out in the first paragraph of his original petition.

Judgment affirmed.