In the case argued yesterday, I was, from the first, forcibly struck with the apparent severity and oppressiveness of proceeding by attachment and action for the same [396] remedy at the same time, and reflection has fully confirmed me in the opinion that it is wrong.

Cases were cited by the counsel for the prosecution, from *454which it was attempted to infer, by analogy, that there was nothing objectionable in these proceedings, but they did not strike me as clearly applicable. There is no' question but that a mortagee may proceed in three different modes, either singly or together, but all diverso intuitu, on the bond for the mousy, by ejectment for the land, or by bill in equity to foreclose the equity of redemption. The case would have been analogous if the counsel had proved that he might proceed by debt and covenant on the bond. The general rule is, that if two actions are brought for the same duty, both shall abate; and it is immaterial whether or not the declaration is filed.

There is a case reported in Andrews 299, more analogous to the present than that just referred to, in which it was held by the court, that a party having elected to bring an action on an award, cannot have an attachment for non-performance of it, without discontinuing the action. See Hall v. Mister, 1 Salk. 84; Stock v. Huggens, Hardw. 98 ; Badley v. Loveday, 1 Bos. & Pull. 81, accord; 1 Salk. 73, contra.

Upon the whole, as the oath of the party is conclusive in this case, as proceedings in ejectment are particularly under the direction of the court — and it forcibly strikes me that this double proceeding is vexatious and oppressive — I am for discharging the defendant. If the action for the costs is discontinued, the prosecutors may then, perhaps, proceed in this manner with propriety. We cannot, in this collateral way, determine whether the action for the costs in another court is a legal or illegal proceeding; the question is not properly before us.

Smith, J., concurred.

Where a party has two legal modes of proceeding for the same remedy, he should make his election, and ought not to be permitted to pursue both at the same time. But, in this case, where there is only one legal procedure, and *455[397] that by attachment, no action being maintainable for these costs, the plaintiff ought not to be thus barred. The case in Wilson is decisive, in my mind, that the action is erroneous ; it is, therefore, to be considered as a nullity. I am of opinion that Lee should be committed.

Defendant discharged.