— 46 1¤1;1>sn.¤.L nnronrmn. {
j he is seeking to reverse the same on error in the supreme court? It
is well settled that the law will not allow parties to assume incon-
sistent positions in the trial or the progress of a cause; and when
two or more inconsistent courses are open to a party he must elect
which, if either, he will pursue, and thereafter he is precluded or
estopped from resorting to the other. For instance, a party cannot
claim the benefit of a judgment and at the same time maintain an
appeal from it. Kelly v. Bloom, 17 -Abb. Pr. 229; Bennett v. Van
Syclcel, 18 N. Y. 483; Lentz v. Lamplugh, 12 Pa. 346; Eat0n’s Appeal,
S3 Pa. St. 155; Vail v. Rcmsen, 7 Paige, 206.
In discussing the subject of "Inconsistent Positions in Court," Mr.
Bigelow says, (Big. Estop. 601:) "It may accordingly be laid down
as a broad proposition that one who has taken a particular position
in the course of a litigation must, while that position remains unre-
tracted, act consistently with -it." When the defendant pleads this
judgment in bar of this action, the act is certainly inconsistent with
the pending proceeding heretofore instituted by it to have the same
set aside as being erroneous. There can, it seems to me, scarcely
be a doubt as to this. It is clear, both on reason and authority,
that, if the judgment had been in its favor, it could not maintain a
writ of error to reverse it and also an execution to enforce it. But
setting it up in bar of this action is a mode of enforcing it, or making
use of it, that may be quite as beneficial as an execution thereon.
In the one case it is used as a sword, and the other as a shield, but
e in either as a valid judgment that the defendant by its- act adopts
and afhrms as lawful and just. Yet either of these proceedings is
equally a direct contradiction of the allegation that the judgment is
erroneous and illegal, and on which the defendant is now seeking to
have it annulled and held for naught.
It may be said that these inconsistent positions have not been
taken in the same proceeding, and therefore they do not affect one
another, and the rule does not apply. lt is literally true that the
writ of error was not taken in the action in which the judgment is
pleaded in bar; but both acts have relation to the same judgment,
and occur in the course of the litigation, between the same parties,
concerning the same subject-matter or demand,—the claim of the
plaintiff for compensation for services alleged to have been rendered
the defendant as an attorney.
lt is admitted that no case has been cited or found that is directly
in point. However, in my judgment, the general rule formulated by
Mr. Bigelow, and cited herein, as well as the current of the authori-
ties given inchapter 24 of his work on Estoppel, include this case.
For instance, in Glover v. Beijaznin, 73 lll. 42, it was held that a.
party who caused a decree, which properly protected his interest in
the subject of the suit, to be reversed, on the ground that it was given
without his consent or request, was estopped to complain of a second
decree in which such interest was left unnoticed. And in Railway