Livingston v. Kane

The Chancellor. This is not the ordinary case of an election. The plaintiff is not prosecuting the defendants here and at law, £C for one and the same matter or demand,” according to the language of the books in such cases. He has no suit at laxY existing against any of the [227] defendants, except James 'Kane, and his counsel admit that his name is used in the suit in this court, pro forma merely, and is willing to have it struck out of the record. The suit at law is a judgment against James Kane, for a debt not in dispute, and the plaintiff is endeavouring to raise the debt by execution: The object of the suit here is to set aside as fraudulent a prior judgment, which the defendants, as creditors of James Kane, have obtained against him. The integrity or validity of that prior judgment is not questioned in the plaintiff’s suit at law; not does any proceeding under the plaintiff’s judgment at law' necessarily disturb it. But the hardship of the case consists in this, that the defendants are restrained by the plaintiff’s Suit here, and the injunction which he has procured, from pursuing their execution on their judgment at law, while he is continuing his remedy there, and seeking advantages, by an intermediáte sale of the debtor’s property. If that property be personal, he gains, by the sale of it, a direct advantage over his rival creditors, whom he has, in the mean time, held fast by process from this court. If the real estate be sold, he gains the legal title under his junior judgment, and will be enabled to take possession of the lands, and to enter upon the enjoyment of the rents and profits. Such advantages ought not to be gained by means of the process of this court. The plaintiff ought to be content to let the defendants have an equal chance with him at law, or else to suspend his execution also, until the question of fraud, which has been raised by the bill, and denied by the answers, shall have been decided. I have no hesitation, therefore, in putting the plaintiff to his immediate election, either to stay his execution at law, or to have the injunction dissolved. But I do not perceive the necessity or the propriety of going further, until the cause has been brought to a hearing I see no reason why the defendants' should insist, also, Upon the dismissal Of the bill. The plaintiff is not trying [228] the Validity or consideration of their judgment,- by any suit at law; lie appears to me to have a right to continue his inquiry here until the cause shall have been brought to a regular decision. In Barker v. Dumaresque, (2 Atk. 119.) Lord Hardwicks distinguished that case from one to which the ordinary rule to elect applied, and he allowed the plaintiff to proceed at law to judgment against the administrator for the debt, and, at the same time, to proceed in Chancery for the discovery and account of assets. The principle on which the suit at law and the suit in equity, at the same time, for the same cause, is' prohibited, is the “ double vexation,” as it is expressed in Lord Bacon’s rules on this subject; and by one of Lord Clarendon’s rules, a suit pending at law for the same matter, was a good plea in bar to the suit in Chancery. So, in Mocher v. Reed, (1 Ball and Beatty, 318.) Lord Manners, in explaining the reason of the rule on this subject, and which now requires an election instead of a plea, observes, that it would be utterly inconsistent with the ends of justice, to permit a party to proceed in this court, and at law, at the same time, for .the same demand; for the jury may find a verdict one way, and the Master make a report a different way, which would occasion such a clashing of-' jurisdiction, as never could be endured.” It is quite apparent, from this explanation and history of the rule, that the present case is not within it, to the extent of requiring the.bill to be dismissed. There is no “ double vexation,” by the continuance of the suit here. I shall do no more, therefore, under the present motion, than to call upon the plaintiff, to elect and agree forthwith, either to stay his execution at law during the continuance of the injunction, or that the injunction be dissolved. The question of costs upon this application, and all other questions will be reserved until the hearing. _ The following rule was entered: “ Ordered,- that the plaintiff, by his counsel, forthwith elect and agree either te-' [229] stay his execution at law, in the said petition mentioned, during the continuance of the injunction heretofore issued in this cause, or that the said injunction be dissolved. And the said plaintiff, by his counsel, having declared tie-fore the Chancellor, that he should not consent or elect to. stay the execution at law : It is thereupon further ordered, that the said injunction be dissolved, and the question of •costs upon this application, and all other questions, are reserved until the hearing.”