Ex parte Alabama Gold Life Insurance

59 Ala. 192 | Ala. | 1877

STONE, J.—

It is only when a bill in chancery and a suit at law are prosecuted for the same claim, that the plaintiff or claimant can be compelled to elect in which court he will proceed.—Rule of Chancery Practice No. 103. To come within the principle, the two suits must have substantially the same aim and scope. It is not enough that the two suits relate to the same subject-matter, unless the relief sought is, in each case, substantially the same. The suit at law, in the present case, has for its object the reduction of the plaintiff’s entire claim to a judgment, with a view to its collection by execution. This is prosecuted alone against David Bear, the maker of the note. The bill in chancery was filed against Bear and another, and seeks to secure and make available certain goods and effects, alleged to have been assigned by Bear to a trustee, for the security of this with other debts. The bill charges a gross breach of trust by the assignee, and his inability to account for the trust funds. The most that can be accomplished under the bill, will be to save the residuum of this trust fund from, waste, and to bring the trustee to account. There can be no decree over for any balance against Bear; and there is nothing in the bill to show that there is a sufficiency of the assigned effects that can be made available, to pay the plaintiff’s entire claim. See authorities on petitioner’s brief.

Let the writ of mandamus issue as prayed for. The costs to be paid by David Bear, defendant in the chancery suit, who moved for the order of election in the court below.