Smith v. Sparrow

"Where suit is pending in one Court on a note of defendant, though no summons has been served and no appearance made, he cannot bring a bill in equity, in another Court, to enjoin the collection of the note, or to cancel it, the averment being, simply, that he has a good defense to the note.

Appeal from the Thirteenth District. The complaint avers in substance that, in settlement of a transaction between the parties, plaintiff gave defendant a note. That, afterwards, discovering the amount was too much, in consequence of deceit practised by defendant, plaintiff induced defendant to make a new computation of interest, etc. and to agree to surrender the note upon payment by plaintiff of twenty-six hundred and fifty dollars, about one-half the note. That he paid the money, defendant took it, and then refused to surrender the note. Prayer for an injunction against suit on the note, and for surrender, etc. etc. Defendant demurred, and the demurrer was overruled; but the Court sustained a plea in abatement, that defendant, before the commencement of this suit, had brought suit on the note in the Twelfth District Court, which suit was there pending, although defendant therein (plaintiff here) had not been served with process. Plaintiff appeals from a judgment dismissing his bill.