rule prevails where a plaintiff is suing here and in a foreign court of law. (Amsterdam.)(1) An exception is made in favour of a mortgagee who is entitled to proceed both at law and in equity.(2) The practice of compelling a plaintiff to elect is of much antiquity. Lord Bacon's 18th Ordinance thus states it:-" 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, or in default of such election to be dismissed."(3) The defendant must file a sufficient answer ;(4)[b] and the time must have elapsed for excepting to that answer before he can put the plaintiff to his election to proceed at law or in equity.(5) [c] And an order to elect obtained before, but not served till after exceptions had been filed, [ *562 ] was discharged.(5) *Where an answer was excepted to, and the Court was satisfied that both the suit in equity and at law were for the same object, they put the plaintiff under terms to procure the Master's report as to the sufficiency of the answer within four days.(6) The defendant having pleaded to part, and answered the remainder of the bill, is not entitled to an order to elect.(7) The order to elect is obtained as of course upon the simple allegation that the plaintiff is prosecuting the defendant, both at law and in equity for one and the same matter, whereby the defendant is doubly vexed, and is, that the plaintiff, his clerk in court, and attorney at law, having notice thereof, shall, within eight days after such notice,[a] make his election in which court he will proceed; and that if the plaintiff shall elect to proceed in this court, then that (1) Pieters v. Thompson, Coop. 294. (3) Beam. Ord. 11. (4) Jones v. Earl of Strafford, 3 P. W. 90. v. Poyntz, 3 Madd. 25. Tillotson v. Ganson, (5) Browne v. Poyntz, 3 Madd. 25. (7) Fisher v. Mee, 3 Mer. 45. (2) Lyster v. Dolland, 1 Ves. 431. Coupland v. Bradock, 5 Madd. 14. Brown 1 Vern. 103. (6) Hogue v. Curtis, 1 J. & W. 451. cellor Walworth, "that the conduct of the defendants has driven him into this court; and, since that time, he has taken no steps at law. If he should attempt to proceed at law, it will then be in time to apply and compel him to elect. He has been compelled, on this application, to come here to resist an improper claim for costs; and the motion must be denied, with costs to be paid by the defendants." Thompson v. Graham, 1 Paige, 452. [b] Hamilton v. Gillespie, 4 Stew. 130; Rogers v. Vosburgh, 4 Johns. Ch. Rep. 84. [c] Per Lord Cottenham, (March 26, 1839,) Leicester v. Leicester, 3 Lond. Jur. 308. [a] Where a complainant has a right to elect, the Court will allow him a reasonable time for that purpose; and if he fail to do so, the bill will be dismissed. Brocken v. Martin, 3 Yerg. 55. an injunction shall be granted to stay proceedings at law; and that if he shall elect to proceed at law, or in default of such election by the time aforesaid, the order directs that the bill be dismissed with costs to be taxed by one of the Masters of the Court.(1) If the plaintiff elects to proceed in equity, he instructs his clerk in court to elect for him, which election is drawn up in the following form, and left with the clerk in the Report office to be filed. In Chancery. Between A. B. Plaintiff. In pursuance of an order, dated the day of the plaintiff hereby elects to proceed in this court. Dated this of (Signed by plaintiff's clerk in court.) *If the plaintiff elects, the injunction issues [ *563 ] without further order, upon production of an office copy of the election. The plaintiff is not at liberty, after an order for election, to proceed either at law or in equity until he has elected.(2) After an order to elect to proceed at law or in equity, a receiver appointed by this court cannot distrain for rents unless the plaintiff undertakes to proceed in equity only,(3) but the Court under the particular circumstances of each case will give liberty to proceed.(2) Though the order to compel an election to proceed at law or in equity is of course,(4) yet if obtained upon a false suggestion that the suits are for the same matter, the plaintiff may move to discharge the order. If it appears clear to the Court that they are not for the same matter, the Court decides without a reference; if doubtful, a reference is directed to the Master.(5) If the Master reports that the suits are not for the same matter, the plaintiff applies to discharge the order to elect, with costs.(1) Pending the reference, in general all proceedings are stayed,(6) but the parties may, by taking proceedings, waive the benefit of the order.(7) (1) Boyd v. Heinzelman, 1 V. & B. 382. (3) Mills v. Fry, Coop. 107. (2) Carwick v. Young, 2 Swanst. 243. (4) Anon. 1 Ves.91. (5) Mills v. Fry, 3 V. & B. 9. Anon. 2 Madd. 395. (6) Mills v. Fry, 3 V. & B. 9. (7) Amory v. Brodrick, Jac. 530. Eng. Chan. Reps. iv. 251. A plaintiff is sometimes allowed to elect specially, that is, to proceed to a certain extent in one court without prejudice to his proceedings in the other court. The order for a special election is obtained on motion, notice of which is required to be served on the defendant's clerk in court; thus a party was allowed to make a special [ *564] election to *proceed at law in an ejectment for the lands, and in equity for an account of profits.(1) A dismission upon an election to proceed at law has not the effect of a decree; but the plaintiff may, after he has failed at law, bring a new bill.(2) (1) Anon. 1 Vern. 105, but see 3 Atk. 130. (2) Countess of Plymouth v. Bladen, 2 Vern. 32. CHAPTER XVI. REFERENCE WHERE TWO SUITS ARE FOR THE SAME PURPOSE. Ir two actions at law are brought in the same name, and for the same matter, the pendency of one may be pleaded in abatement of the other, but if two such bills are brought in Chancery, this court takes a more particular method, referring it by motion to the Master to inquire whether both are for the same matter, and if so, may stop the proceedings in the last.(1) But to justify the Court in making such a reference, the suit must be instituted in the names of the same persons ;(2) except in the case of two bills filed by different next friends on behalf of an infant.(1)(2) Thus the Court will not grant the reference where several suits are instituted for tithes,(3) nor to stay proceedings in either of two bills brought for the same purpose, one by the assignees of the party [ *565 ] interested, and the other by the party himself; but if such suits proceed to a hearing, the Court will dismiss that which is improperly brought.(4) A motion by defendants in tithe suits, (in all of which the same defence was made) that the suits might be consolidated, was refused.(5) Where there were two suits to take executors' accounts, the prosecution of the first was under the circumstances stayed, and the prosecution of the decree in the second suit, given to the plaintiff in the first suit.(6)[a] After a decree for the administration of (1) Gage v. Lord Stafford, 1 Ves. 544. (3) Keighley v. Brown, 16 Ves. 344. (2) Gage v. Bulkeley, 1 Amb. 103. (5) Manchester College v. Isherwood, 2 Sim. 476. (6) Hawkes v. Barrett, 5 Madd. 17. [a] Where several suits are brought by different legatees, for general legacies, and the estate is insufficient to pay them all, the Court will direct an account of the estate to be taken in one cause only, and in the meantime direct the proceedings in all the other suits to be stayed. Ross v. Crary, 1 Paige, 416. On a bill by a mortgagee, for an account and for foreclosure and sale, after a decree in a creditor's suit, under which, the plaintiff in the second suit had gone in, before the Master, and proved his charge before he filed his bill; an application to stay the proceedings in the second cause, as involving the same accounts, was refused; the plaintiff, a trust, the Court will stay proceedings in a second suit for the same objects; but not, if the second suit has a further purpose, as removing the trustees for default.(1) Where two suits are instituted by different next friends, the Court will order a reference to see which is most proper, because the Court, as guardian of infants, will take care that what is done is for their benefit.(2)[6] But it is not usual to grant this reference after a decree has been made in one of the suits.(3)[c] A motion to refer it to the Master to see which of two suits is most for the infant's benefit, is granted as of course upon the simple allegation of counsel that both suits are for the same purpose, the party taking the reference at the risk of costs.(4) The order of reference being drawn up, each party supports the propriety of the suit instituted by him by carrying in a statement of facts supported by evidence, and the Master draws his conclusion and reports according to such evidence. It is competent to the Master on such a reference to point out to the Court any improvement that may [ *566] be made in the *frame of the suit, and to report any special circumstances which may be for the infant's benefit.(4) If the Master reports that one suit is more beneficial (1) Shephard v. Towgood, 6 Madd. 374. (3) Taylor v. Oldham, Jac. 527. (2) Anon. 3 Atk. 603. (4) Sullivan v. Sullivan, 2 Mer. 40. having more speedy and effectual relief, being entitled to go on; as where there are litigated points, beyond that of the amount of his demand, he is required to go on, in his separate suit, up to such point as all ulterior relief can be equally had in the suit first instituted; and as to staying the proceedings in the first suit, while properly conducted, the Court, however anxious to guard against unnecessary expense, has no authority. Uniacke v. Rochford, 1 Moll. 216, (12 Eng. Ch. Rep. 105.) [b] Of several suits instituted on behalf of infants, and for the protection of their property, the Court will give a preference to that, which is capable, from its frame, of being most beneficially and effectually prosecuted, notwithstanding that, in point of form, the relief sought by another is more extensive. Campbell v. Campbell, 2 Myl. & Cr. 25. And where two suits on behalf of infants, by different next friends, were referred to the Master, to ascertain which was most for their benefit, and the Master reported in favour of the second suit; it was held not sufficient, in opposition to the report, to show mere priority, but that some distinct reason must be given, why the Master had arrived at a wrong decision. Talbot v. Earl of Shrewsbury, 4 Lond. Jurist, 1030, per Sir Lancelot Shadwell, V. C. Nov. 10, 1840. [c] In a later case, however, (Nov. 20, 1838,) where two bills had been filed by differ ent next friends, Sir Lancelot Shadwell gaanted a motion to restrain proceedings in one of the suits, in which a decree had been obtained. Nanney v. Wynn, 2 Lond. Jurist, 962. And the order was subsequently, (Jan. 17, 1839,) affirmed by Lord Cottenham, who held also, that it would be irregular to strike out the next friend of the suit in which a decree had been made, where no charge was made against him, and insert the next friend in the suit in which there was no decree. S. C. on appeal, 3 Lond. Jurist, 498. Eng. Chan. Rep. iv. 249. |