Defendants out of jurisdiction, 1673. Demurrer, answer, costs, and decree, 1674, 1675. SECTION IV Cases of Election. WHERE the plaintiff is suing both at Law and in Equity, at the same time, for the same matter, the defendant is entitled to an order that the plaintiff may elect whether he will proceed with the suit in Equity, or with the action at Law.1 This practice seems to have originated in an order of Lord Bacon, according to which, " Double vexation is not to be admitted: but if the party sue for the same cause at Common Law and in Chancery, he is to have a day given to make his election where he will proceed, and, in default of such election, to be dismissed." 2 As the remedies given at Law and in Equity are necessarily dif ferent, it is sometimes a question of difficulty to determine whether a suit and an action are so far identical in their object, as to give the defendant a right to call upon the plaintiff to elect between the two. In the case of Fennings v. Humphery, the bill was for specific performance; the action at Law was for the non-performance of particular acts stipulated for by the agreement. Lord Langdale, M. R., upon the special circumstances of the case, having regard to the extent of remedy which a Court of Equity could give in the case, and the limited nature of the damages sought for at Law, refused to make the plaintiff to elect. This case was however decided upon particular grounds; and, in general, it may be stated that the Court will compel a plaintiff to elect between a suit in Equity for specific performance of an agreement, and an action at Law brought in respect of the same agreement; and this rule applies as well before as after a decree.5 1 Livingston v. Kane, 3 John. Ch. 224; Sanger v. Wood, Ib. 416; Rogers v. Vosburgh, 4 John. Ch. 84; Gibbs v. Perkinson, 4 Hen. & Munf. 415. Where the remedies at Law and in Equity are inconsistent, any decisive act of the party, under either jurisdiction, with knowledge of his rights and of the facts, determines his election. Sanger v. Wood, ubi supra. See Combs v. Tarlton, 2 B. Monroe, 194. For form of order, see 2 Seton Dec. (3d Eng. ed.) 947. * 18th Order, Beames's Orders, p. 11. The Court will allow the party a reasonable time to make his election. Brocken v. Martin, 3 Yerger, 55. 3 4 Beav. 1. Carwich v. Young, 4 Mad. 437; Reynolds v. Nelson, 6 Mad. & Geld. 18. * Frank v. Basnett, 2 M. & K. 618; Orme v. Broughton, 10 Bing. 538; Cooper v. Fry, Coop. 107, and 19 Ves. 278. So also, as a general rule, a párty suing in Equity is not allowed to sue at Law for the same debt. But the case of a mortgagee is an exception to this rule; it is frequently said, that he may pursue all his remedies concurrently; at any rate, he can proceed on his mortgage in Equity, and on his bond at Law at the same time.1 Whether this exception depends upon a peculiar privilege of a mortgaget, or upon the nature of a foreclosure suit, does not seem clear.2 But in the case of Barker v. Smark,3 Lord Langdale, M. R., refused to extend the exception to the case of a vendor, who had commenced an action at Law upon a bond for his unpaid purchasemoney, and at the same time was suing in Equity to establish a lien upon the estate for the same sum. The principle of election would also seem to apply where there is one suit in this country, and another. for the same matter in a foreign court of competent jurisdiction,—in Pieters v. Thompson, it being proved that the plaintiff had elected to proceed abroad, Lord Eldon stayed proceedings in this country. It seems that, in a particular case, the plaintiff may be allowed to proceed partially in Equity, and partially at Law, and compelled to enter into a special election.5 With respect to the period in the cause at which a motion to compel election may be made, it appears, in the first place, that a defendant has never been permitted to apply before he has put in his answer. After he has answered, the time when he becomes entitled to obtain an order for the plaintiff to elect is now regulated by the Orders of the 2d of November, 1850, the 7th of which directs, "That a defendant, whose answer is not excepted to or set down for hearing on former exceptions, alleging that the plaintiff is prosecuting him in this Court, and also at Law, for the same matter, may, upon the expiration of eight days after his answer, or further answer is filed, obtain, as of course, on motion or petition, 1 Schoole and Wife, 1 Sch. & Lef. 176. Booth v. Booth, 2 Atk. 343. 33 Beav. 64. • Coop. 294. Anon. 1 Vern. 104. Observation of Lord Hardwicke, 3 Atk. 129; and see Trimleston v. Kemmis, Lloyd & Goold, 29. For form of the order see 2 Seton Dec. (3d Eng. ed.) 948. • Tillotson v. Ganson, 1 Vern. 103. See Houston v. Sadler, 4 Stew. & Port. 130; Rogers v. Vosburg, 4 John. Ch. 84. |