Monier v. Mizner

1 How. N.P. 61

Opinion

By the Court,

Brown J.:

To the plaintiff’s declaration in this case, defendant pleaded in abatement the pendency of another action for the same cause upon the equity side of this court. To this plea the plaintiff demurred, and the sole question to be determined is whether the pendency of a suit in chancery is sufficient to abate a suit at law. The remedy in one form of proceeding may be much more complete than in the other, and the plaintiff should not be debarred from choosing that form which will best promote the ends of justice.

The following authorities cited by the plaintiff’s counsel fully sustain him in this position: Black vs. Lackey, 2 B. Mon, 257; Peak vs. Buell, 8 do., 428; Colt vs. Partridge, 7 Met., 570; Hatch vs. Spofford, 22 Ct., 485; Blanchard vs. Stone, 16 Vt., 234; Ralph vs. Brown, 3 W. & S., 395.

The rule is held equally good where the pendency of an action at law is pleaded in abatement to a chancery suit (1 Dan. Ch. Prac., 558; Story’s Eq. Pleadings, Sec. 742.)

(October 15, 1868.) Moore & Griffin for Plaintiff. Theo. Romeyn for Defendant.

The demurrer is sustained with costs.