Majority
p. 452Thompson, Executor, &c. v. Graham and others. March 23d. upon an affidavit that the complainant had brought a suit at law for the same cause of action for which this suit was brought, moved that he elect in which cause he would proceed, and that he pay the defendants’ costs in the other cause. read an affidavit, showing that the suit at law was first commenced; that the defendants interposed an inequitable defence to that suit, and that the bill in this cause was filed in order to get rid of that inequitable, defence; and that no proceedings have been since had in the suit at law.
Headnote
Where a suit was commenced in this court in consequence of an inequitable defence interposed to a suit at law for the same cause of action, the court refused to compel the complainant to elect in which suit he would proceed, as long as no attempt was made to prosecute the suit at law.H. Bleeker, for the defendants,
J. Hoyt, contra,
The Chancellor :—There is no ground for this application. The complainant is not proceeding in both courts at the same time. It appears from his bill that the conduct of the defendants has driven him into this court; and
p. 453
since that time he has taken no steps at law. If he should attempt to proceed at law, it will then he in time to apply and compel him to elect. He has been compelled, on this application, to come here to resist an improper claim for costs; and the motion must be denied with costs to be paid by the defendants.