265 Pa. 585 | Pa. | 1920
Opinion by
It would seem that the cases of New Castle v. Raney, 130 Pa. 546; Mirkil v. Morgan, 134 Id. 144; Mowday v. Moore, 133 Pa. 528; Piro v. Shipley, 211 Pa. 36, all
What we have called attention to is more than sufficient to show that the case was brought in the wrong forum; the right asserted may have been clear, but the facts on which the right to charge the defendant with liability rested, were denied and' contested. In addition, it abundantly appears that the injury complained against was a matter of several years’ standing when the proceeding was begun, a fact wholly inconsistent with imminency of threatened danger that was not capable of adequate compensation in money. The case presented no such facts as called for the intervention of “the swift hand of the chancellor,” nor such as avoided the limitations restricting equity jurisdiction in cases of this' kind where the right has first been established at law or is conceded. New Castle v. Raney, supra. Had the selection of the equity forum been objected to by de
Inasmuch as the evidence on. one side and the other with respect to the one question of fact on which the complainant’s rights depend, was convincing to the' chancellor’s mind that it was a fairly disputable question, we think that equitable considerations require a modification of the court’s decree to the following extent: The decree is modified in that we direct a retention of the bill, thereby giving the plaintiff an opportunity to bring his action at law should he so elect, the costs to abide such action if brought. In case of failure to bring such action within three months from this date the decree to become absolute. As so modified the decree ’ is affirmed.