Price v. Sthreshly

5 Ky. 588

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1812
• Status: Published

Opinion

OPINION of the Court, by

Judge Logan.

This was an action oh the case founded on a supposed fraud in the sale of certain tobacco, to which the defendant below pleaded, that having recovered judgment at law on a note for the payment of the consideretion for the said tobacco, Price, the plaintiff in error, filed his bill injoining the judgment, because of the fraud imputed in the sale of the tobacco ; which bill (as the plea avers) is for the same matter, and for the same cause, as is set out in the plaintiff’s declaration, and which bill upon the final hearing was by the decree of the court dismissed.

To this plea the plaintiff below demurred, and the circuit court having overruled the demurrer, the plain-tiffin that court prosecutes this writ of error.

The o*ly question made in the cause is as to the sufficiency of the plea. It was competent for the defendant below to have resorted to a court of chancery to he relieved from the judgment at law, on the ground of fraud ; or he might have waived that, and commenced his action at law *, but alter having elected to proceed in chancery to a final hearing of the cause, it would be contrary to the plainest dictates of both law and equity, to permit him now to harfass his adversary in an action at law for the same cause of complaint.

Wherefore it is considered by the court, that the judgment of the circuit court in overruling the demurrer and sustaining the said plea be affirmed, with costs,