dissenting: I regret that I cannot concur in the opinion of the court, but it seems to me that an injustice is done to the defendant on mere questions, of practice to the exclusion of the larger equities which are all on his side. The opinion hinges upon the fact of the implied election by the defendant when he sued by attachment in Baltimore to recover the money from Burgan, on whom the drafts were drawn. I use the expression “implied election” because there is no evidence of an express election to treat the drafts as belonging to the bank. On the contrary, before bringing its action, the defendant called upon the receiver, expressly elected to take back the drafts, and demanded their return. The receiver refused to give them up. It was then, and then only, that the defendant brought its action in attachment, in which the receiver intervened. I do not intend to reflect in the slightest degree upon the receiver, who is simply seeking to protect the assets in his hands. I refer to his actions only as they may affect the rights of the defendant. I admit that, upon his refusal to surrender the notes, the defendant should have made a motion in the cause before the court appointing the receiver. I believe it is conceded that if such a motion had been made in apt time, it would have been the duty of the court to have ordered the surrender of the drafts. But who- has been hurt by the defendant’s failure *242to make such a motion ? No one except the defendant. No other creditor has been prejudiced or misled. If the defendant is now given the drafts or every dollar of their proceeds, it will get no more than it would have gotten in the first instance. Why not let it have them. Simply because it elected to treat them as the property of the bank by bringing a suit, which we say it had no right to bring. Why hold it to an election with one hand, and with the other wrench from it every benefit of its election ? It had already elected to take back the drafts by vainly demanding them from the receiver. But we say that it re-elected when it brought its action. Why not let it elect a third time ? , This is a court of equity, dealing with equitable principles; the fund is intact, and all necessary parties are before the court.
I think that as the court has restrained the defendant from pursuing the remedy it elected, it thereby remitted the defendant to its original right of election. In 6 Enc. Pl. & Pr. 366 (c) it is said that “If the suitor has in his first action mistaken his remedy and adopted a mode of redress incompatible with the facts of his case and is defeated on that ground, he is still free to elect and proceed anew.” Again, on the same page the rule is thus laid down: “V. The power to choose between conflicting remedies is substantially co-extensive with the right to prosecute or defend an action. Logical and legal consistency would seem to require that the right to litigate and the power to elect should stand on the same footing, the one co-ordinate with the other.”
In the case at bar, the defendant has' not sought toe obtain its money from different funds, but has persistently followed the identical money in Burgan’s hands, either indirectly through the surrender of the drafts or directly by attachment. Therefore, the inconsistent rights between which it was required to elect were rather in the nature of remedies. All that it wanted was the money in Burgan’s hands. “Only *243this, and nothing more.” Moreover, it would seem that the defense of an inconsistent election, being in the nature of es-toppel, should be pleaded to be effective.
Clark, C. J., concurs in the dissenting opinion.