#### JOHN C. PETTIJOHN AND ANOTHER *against*HENRY WILLIAMS AND ANOTHER.

Where vendees of property filed a bill in Equity against the vendors, alleging a fraudulent misrepresentation, and great losses arising from defects in the property, and praying a rescission of the contract, the Court will not compel the plaintiff to chooso between releasing a recovery at law for the fraud, obtained during the pendency of the bill, and dismissing the bill, (the sum •recovered at law not having been accepted by the plaintiffs,) but will permit them to proceed with their suit in Equity, and in ease of a recovery in that Court, to take the benefit of whichever recovery may appear the more adequate.

*303Appeal from an interlocutory order of the Court of Equity of Martin County, Judge Caldwell presiding.

In tlie year 1849, William Milson, and Ilenry Williams as the executor of Ezekiel S. Whitley, deceased, conveyed to the plaintiff John C. Pettijohn, a fishery and the appurtenances, to wit, a vessel, two flats, a number of fish barrels, a quantity of salt, salt barrels, some ropes, &c., at the price of $3,500, and took in payment therefor five bonds on one Clayton Moore, for $480 each, payable at different dates; two notes on Caleb Walker for about $250 each, bearing interest; a bond on Bryan Griffin and J. G. Griffin for $230 or thereabouts ; a bond on Jonathan Capehart for $416,60, amounting in all, with interest, to about $34T0, all of which were endorsed by the plaintiff Pettijohn. Afterwards, upon a settlement between Williams and Milson, of the co-partnership business, it was found that the firm was indebted to Henry Williams in a large amount, and these bonds and notes were transferred to him, and he from that time held them in his individual right. Williams endorsed the bond on Capehart to Cushing B. Hassell without consideration, to enable him to bring a suit in Martin county, where the latter lived; and accordingly suit was brought against the obligor and the endorser in the County Court of Martin County, and a judgment obtained at July Term, 1850, for principal and interest. Execution was taken out on the same, and was about to be collected off of the plaintiff Pettijohn. In July, 1851, the plaintiff John O. Pettijohn, filed an original bill in this case against Milson and Williams, alleging, among other things, that they had induced him, Pettijohn, to purchase the fishery and appurtenances by fraudulent and deceitful representations as to its qualities and capabilities. The bill sets forth minutely, and at great length, the particulars of the transaction, and the means used to defraud the plaintiff Pettijohn; the deficiencies of the property and the heavy losses sustained by him in consequence of this fraud. He alleges that in consequence of the obstructions in the sein-ground, he had been driven to heavy expense in endeavoring to get rid of them, and *304that still the condition of the fishery is such as to make its con-continued operation ruinous.’*- lie, therefore, prays the Court to decree a rescission of the contract of purchase ; a restoration of the notes and bonds given by Pcttijohn for the property; and a refunding to Ijim of the great sums paid in endeavoring to make the property useful; and he submits to re-convey the fishery and the appurtenances. He prays that the defendant "Williams, may be enjoined from collecting the judgment obtained against him as endorser on the Oapehart bond; and that lie may be further enjoined from negotiating or collecting the other bonds ; and for general relief.

The defendants answered, denying the allegations of the •bill, and urging matters of law upon which they relied as a defense.

On the coming in of the answers, the injunction was dissolved as to the judgment at law, and execution ordered to issue against plaintiff and his sureties to the injunction bond ; and that the injunction be continued as to the assignment or transfer of the other notes and bonds.

The bill was continued over as an original bill, and amended, by stating that Pcttijohn had conveyed one half o'f his interest to Pender, and by making him (Pender) a party. In tliis amended bill, they both offer to re-convey the property, and pray a rescission of the contract. Subsequently, Petti-jolm sold his whole interest to Pender, and a supplemental hill was filed stating that fact, and again offering on the part of Ponder to ro-convey upon a rescission of that contract.

These hills were also answered bj1" the defendants, denying as before stated, and urging other reasons against plaintiffs’ right to recover.

After tho filing of the original bill, Pcttijohn brought suit against Milson and Williams in the Superior Court of Law of Washington County, declaring in an action on tho case for a fraud in the sale of this fishery. Tho suit being removed to Chowan for trial, at Pall Term, 1853, plaintiff recovered a verdict against Wilson for $1,500, but a verdict of not guilty was rendered in favor of the other defendant, Williams. *305The plaintiff appealed to the Supreme Court upon exceptions taken to the trial below, and that Court, being of opinion that there was error, ordered a *venire de novo*as to Williams. (Yide 1 Jones’ Law Rep. 145). On a second trial, as to the defendant Williams, the jury found a verdict for $700, which lie, Williams, paid into the clerk’s office.

At the Spring Term, 1855, the following entry was made : Defendants liaf e leave to file their plea since the last continuance.”

At the Eall Term, 1855, an affidavit of the above facts a§to the suit at Law, was filed by defendant Williams, upon which was based a motion that the plaintiffs should be put to their election, whether they would receive the recovery at Law or proceed further with this suit.

In reply to this affidavit, plaintiff Pettijohn filed an affidavit, stating that Milson is utterly insolvent, and that there is no prospect of making any thing from the recovery in the Court of Law against him, and that plaintiff has not yet taken any part of the recovery against Williams.

Whereupon, the following order was made by his Honor in the Court below : “ On motion of defendants’ counsel, it is ordered that the plaintiff elect to take the judgment at law recovered by the said Pettijohn, and to dismiss the present bill, or to release the said judgment.”

Prom this order the plaintiffs prayed an appeal to the Supreme Court, which was allowed,

Rodman, for plaintiffs.

Smith, for defendants.

Pearson, J.

Supposing the doctrine of election to be applicable to a case like the present, there is error in the decre-tal order appealed from, in this, that it puts the plaintiff to an election either to dismiss his bill, or to *release*the judgment which he had obtained at law. There is no precedent for such an order. Where the chancellor is informed that a plaintiff in Equity is at the *same time*prosecuting a suit at law *306against *the same*defendant, *for the same*thing, lie will, aftei answer filed, and time for filing exceptions past, order the bill to be dismissed, unless the plaintiff will submit to an *injmiotion*against taking any further proceedings in the suit at Law pending the proceedings in Equity; thus leaving the way open for the plaintiff, if he fail in obtaining relief in Equity, to fall back upon his remedy at Law, if he have any. If the plaintiff elect to proceed at Law, his bill is dismissed without prejudice, so that if he fail at Law he may fall back upon his remedy in Equity, and file a new bill. ¡2 Madd. Ch. 358, ’9 ; Daniel’s Chancery Practice, and the cases cited. The idea that a jffaintiff must release, forego, and forfeit his judgment at Law, as a condition precedent, without which a Court of Equity will not entertain his bill, is not intimated in any of the books. The decretal order must be reversed.

Byway of *aprotestando,*which, as Lord Coke says, is the “ exclusion of a conclusionin other words, to prevent misapprehension, and without intending to express an opinion on either side, but merely to suggest ideas for the consideration of the counsel, we think proper to add, it would seem upon-the authorities, that this doctrine of election, according to which a Court of Equity will refuse, after answer filed, to entertain a bill, unless the plaintiff submit to an inj miction as to further proceedings in his action at Law, applies only to cases where the plaintiff seeks to recover from the defendant the *same thing*that he is seeking to recover in an action at Law, which is then pending; as, when an action of account is pending, and the plaintiff files a bill for an 'account. It is put upon this reason: as the parties are the same and the relief is the same, the second suit is merely for vexation, and consequently will not be entertained by a Court of Equity, unless upon condition that all further proceedings in the first, are in the mean time to be suspended. ■ See Madd. Ch. and Daniel’s Ch. Prac. and the authorities cited. It would therefore seem to follow, that if the remedy in Equity is different, being more adequate, and better adapted to meet the justice of the case *307tlian. the remedy at Law, there is no reason why the plaintiff may not, in conscience, resort to all the means of redress for the injury which has been done to him, which the Courts of the country will give; and after ascertaining the extent of the relief which will be granted to him in the several Courts;, then to make his election, and enforce, by execution, the judgment or decree of that Court which he may be advised metes out to him the fullest measure of justice.

It is settled, that, upon a bill for the specific performance of a contract to convey land, the fact that the plaintiff has already recovered judgment for damages for a breach of contract. does not present a case for election ; indeed, according to the old practice, the bill would not be entertained, unless the plaintiff' had first established his right by an action at Law. 1 Madd. Ch. 262 and the cases cited. So, byway of .analogy, if there be several tort-feasors, the party injured may sue one alone, get judgment, let it stand, then sue another, take judgment, &c., and finally make his election, out of which he will take satisfaction. This is familiar *nisi prius*learning; see also *Casey*v. *Harrison,*2 Dev. Rep. 244, where this subject is treated ‘of *arguendo.*

There is still another consideration. After the plaintiff has obtained judgment at Law, *cui bono*should a Court of Equity enjoin him from further proceedings, as a condition to entertaining his bill ? The very fact of his receiving satisfaction of the judgment at Law, extinguishes his cause of action in Equity, and will put him out of Court, so as to defeat his purpose of ascertaining in which Court he can have the fullest measure of justice.

On the other hand, we think it proper also to suggest for the consideration of counsel, that it may be doubted whether the plaintiff is not too late in making his application to this Court. He has used the fishing ground for turn years; he has assigned his interest to the other plaintiff, Pender; many of the articles included in the contract of sale were perishable, and cannot be returnedthe changes and alterations in the fishing hole and beach may not permit the parties to be put *308*in statu quo ;*and he has tested the qualities and capabilities of the fishing ground. See *McDowell*v. *Simms.*Busb. Eq. 130.

Pee Curiam. Decretal order reversed.