CHAPTER XVIII.

PUTTING COMPLAINANT TO HIS ELECTION.

1365. In general.

li a complainant sues a defendant at the same time and for the same cause at law and in equity, the defendant may apply to the court for an order that the complainant make his election in which court he will proceed.' If, after an order to elect, he elects to proceed in equity, the court of chancery will restrain his proceeding at law by injunction; but if he elects to proceed at law, and fails there, the dismissal of his bill will be no bar to his filing a new bill in the same matter.2 A complainant will not be put to his election where the bill is for discovery only, and no relief prayed, for from the discovery he may be able to proceed at law, when without it he could not.3

A complainant may oppose a motion that he be compelled to elect, on the ground that the bill and action are for different matters. The court will examine the proceedings in each suit, and generally decide without further inquiry, but an order of reference may be obtained in cases of difficulty to ascertain if

11 Barbour, Ch. Pr. 247; Mitford, Eq. Pl. 249; Bradford v. Williams, 2 Md. Ch. 1; Jones v. Strafford, 3 P. Wms. 90; Rogers v. Vosburgh, 4 Johns. Ch. (N. Y.) 84; Cockerell v. Cholmeley, 1 Russ. & M. 418; Joyce v. Barker, 1 Dickens, 182; Romeilly v. Gilbert, 2 Fowler, Exch. Pr. 404; Dunlap v. Newman, 52 Ala. 178; Gibbs v. Perkinson, 4 Hen. & M. (Va.) 415; Curd v. Lewis, 1 Dana (Ky.) 351; Way v. Bragaw, 16 N. J. Eq. 213, 84 Am. Dec. 147; Sandford v. Wright, 164 Mass. 85, 41 N. E. 120; Eastman v. Amoskeag Mfg. Co., 47 N. H. 71; Bently v. Dillard, 6 Ark. 79; Hempstead v. Watkins, 6 Ark. 317, 42 Am. Dec. 696; Quidnick Co. v. Chafee, 13 R. I. 367; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Miller v. Winton (Tenn. Ch. App.) 56 S. W. 1049. 2 Mitford. Eq. Pl. 250; 1 Barbour, Ch. Pr. 247; Plymouth v. Bladon, 2 Vern. 32; Union Bank of Maryland v. Kerr, 2 Md. Ch. 460.

$1 Barbour, Ch. Pr. 247.

the complainant's proceedings at law and in equity relate to the same matter. If the reference is granted, it operates as a stay of proceedings in both suits, in the meantime. If the master reports that the matters of the two suits are distinct, the order for the complainant to elect will be discharged. Where a party proceeds both in law and in equity, though the same property be pursued in each, yet the court will not put the party to his election, where the recovery sought is upon different grounds, both of which are not at all cognizable in either case, or where the remedy at law is not equally complete and adequate with the remedy in equity. The rule as to electing cannot be evaded by mingling other grounds of complaint in the action at law with those which are comprehended in the bill in equity, where the real, substantial grounds of complaint are the same in both courts. The complainant will be allowed a reasonable time to determine as to which court he will proceed in. The reasonable time, under the English practice, seems to have been eight days; and this period has been prescribed in some instances in this country. If he refuses to elect between the remedies, his bill will be dismissed with costs. One of several defendants, without the concurrence of the rest, has the right to compel an election of the remedies.10 A complainant cannot be compelled to elect between a suit in equity to prevent an injury and a suit at law to recover damages for past injury. In order that a party may be put to his election,

11

Boyd v. Heinzelman, 1 Ves. & B. 381; Mills v. Fry, 3 Ves. & B. 9. Carwick v. Young, 2 Swanst. 239.

Mouseley v. Basnett, 1 Ves. & B. 382, note.

7 Coleman v. Cross, 4 B. Mon. (Ky.) 268; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614.

8 Bradford v. Williams, 2 Md. Ch. 1.

9 Bradford v. Williams, 2 Md. Ch. 1; Fleming v. Courtenay, 95 Me. 135, 49 Atl. 614; Central R. Co. of New Jersey v. New Jersey West Line R. Co., 32 N. J. Eq. 67. The mere bringing of a suit in equity which has not proceeded to a final decree is not an election so as to bar an action at law. Kehoe v. Patton, 21 R. I. 223, 42 Atl. 868; Jenks v. Smith, 14 R. I. 634.

10 Bradford v. Williams, 2 Md. Ch. 1. 11 Carlisle v. Cooper, 18 N. J. Eq. 241.

he must be plaintiff at law and complainant in equity. Where he is complainant in one suit and defendant in another at law, upon the same matter, he cannot be compelled to make an election.12 The pendency of a bill in equity asking specific performance of a contract does not preclude the complainant in equity from making a defense at law in a suit by the other party against him.13 A mortgagee may pursue all his remedies at one and the same time.14 The complainant is entitled to a complete answer before he can be put to his election, and cannot be put to his election, after exceptions are filed, until they are answered It is irregular to obtain an order to elect before the time for filing exceptions has expired.15 If the defendant has pleaded to the bill, and the plea has not been argued, an order to elect will be discharged.16 In order to obtain an order that the complainant elect, a special application to the court should be made. Such application should be founded on an affidavit stating that the two suits are brought for the same purpose, and upon copies of the pleadings in each suit, to show that the matters are identical.17 The right to compel a complainant to elect is not confined to suits brought in the same jurisdiction.18

12 Botts v. Cozine, 2 Edw. Ch. (N. Y.) 583.

18 Haskins v. Lombard, 16 Me. 140, 33 Am. Dec. 645.

14 Dunkley v. Van Buren, 3 Johns. Ch. (N. Y.) 330; Mundy v. Whittemore, 15 Neb. 650; Aylet v. Hill, 2 Dickens, 551; Perry v. Barker, 13 Ves. 198; Priddy v. Hartsook, 81 Va. 67.

151 Smith, Ch. Pr. 561; Browne v. Poyntz, 3 Madd. 24; Tillotson v. Ganson, 1 Vern. 103; Soule v. Corning, 11 Paige (N. Y.) 412; Priddy V. Hartsook, 81 Va. 67; Semmes v. Mott, 27 Ga. 92; Dunlap v. Ingram, 57 N. C. 178; Houston v. Sadler, 4 Stew. & P. (Ala.) 130; Roman v. Dimmick, 123 Ala. 533, 26 So. 233. See Dunlap v. Newman, 52 Ala.

178.

1 Barbour, Ch. Pr. 248; Livingston v. Kane, 3 Johns. Ch. (N. Y.) 224; Rogers v. Vosburgh, 4 Johns. Ch. (N. Y.) 84.

18 Pieters v. Thompson, Coop. 294; Central R. Co. of New Jersey v. New Jersey West Line R. Co., 32 N. J. Eq. 67. See supra, § 258.

$366. Form of order that complainant elect.

[Title of court and cause.]

It appearing that the complainant prosecutes the defendant both at law and in this court for one and the same matter, whereby he is doubly vexed, thereupon, on motion of O. R., solicitor for the defendant, it is ordered that the complainant, within

days after notice

of this order, elect whether he will proceed at law in the suit brought by him against the defendant, or in this court, upon his bill, and if he elects to proceed at law, or if he neglects to file such election within the said days, the bill in this cause shall thereupon stand dismissed, with costs, and, if he elects to proceed here, it is then ordered that he proceed no further in the suit at law without leave of this court.19

§ 367. Form of election.

[Title of court and cause.]

In pursuance of an order of this court, made in this cause, and dated the day of, the complainant doth hereby make his elec

p. 55; 2 Fowler, Exch. Pr. 403; Rogers v. Vosburgh, 4 Johns. Ch. (N.

Y.) 84.

(392)

CHAPTER XIX.

PAYMENT OF MONEY INTO COURT.

368. In general.

The

In some cases the court, upon the application of the complainant, will order money in the hands of the defendant to be paid into court by him, to abide the event of the suit. time at which the application for this purpose is usually made is after the defendant's answer has been put in, but it may be made at any stage of the cause, provided the court is satisfied that money in which the complainant has an interest is in the defendant's hands, who has no equitable right to it, or that it is in danger of being lost.1 The application may be based either upon an admission in the defendant's answer, or, under special circumstances, upon an affidavit before answer. The admission may appear upon the answer or the examination before the master, or the motion may be founded upon the schedules to an examination, added up under oath, where the defendant has omitted to do it.3 An order will not be granted if any more complicated examination of books or

11 Barbour, Ch. Pr. 236; 1 Hoffman, Ch. Pr. 319-326; Quarrell v. Beckford, 14 Ves. 177; Contee v. Dawson, 2 Bland (Md.) 264; Hopkins v. McEldery, 4 Md. Ch. 23; McKim v. Thompson, 1 Bland (Md.) 150; Anonymous, 2 Law J. Ch. 21; Rebhan v. Fuhrman, 21 Ky. Law Rep. 17, 50 S. W. 976; Brown v. De Tastet, 4 Russ. 126; Gordon v. Rothley, 3 Ves. 572; Creak v. Capell, 6 Madd. 114.

2 Jervis v. White, 6 Ves. 738.

31 Barbour, Ch. Pr. 237; 1 Hoffman, Ch. Pr. 319; Quarrell v. Beckford, 14 Ves. 177. But it is held that an affidavit of a parol admission is insufficient. McTighe v. Dean, 22 N. J. Eq. 81; Haggerty v. Duane, 1 Paige (N. Y.) 321.