The opinion of the court was delivered by
Bennett, J.The defendant relies, in his plea in abatement, upon thé fact, that the plaintiff had pending, when this suit was commenced, a suit in chancery involving the same subject matter, for which the plaintiff claims damages in this action.
This plea is novel in kind, and I am not aware of an instance to be found in any of our books, where such a plea has been interposed ; yet this is not a conclusive argument that it ought not to be sustained, The general rule is, — though there may be some exceptions, as in case of a mortgagee, — that when a party is suing in chancery, he shall not be allowed to sue at law for the same cause of action ; and when he attempts to proceed at law and in chancery for the same matter, at the same time, equity will compel him to make an election of the suit, in which he will proceed, and the proceedings in the other court will be stayed. If, after a bill has been filed in equity, so that the jurisdiction of that court has attached, the party institutes a suit at law for the same matter, it is treated as a conterhpt of the court; and it is a gross oppression to vex another with a double suit for the same cause of action. Vaughan v. Welsh, Mosel. 210. Anon. Ib. 304. Mosher v. Read, 2 B. and Beatt. 318. Schoole v. Sall, 1 Sch. and Lefr. 176. Rogers v. Vosburgh, 4 Johns. Ch. Rep. 84. We think the appropriate remedy is by injunction, and that a plea in abatement of the suit at law is novel, and without precedent or authority, and should not be sustained.
The judgment of the county court is reversed, and judgment rendered that the defendant answer over, and the cause is remitted to the county court to be there proceeded with.