McMillan v. Rodgers

1. Where a distress warrant and a common-law action for rent were both filed on the same day, and a plea in abatement setting up the pendency of the other suit was filed in each case by the defendant, and both cases were referred to an auditor with power to pass upon questions of law as well as of fact, and where the auditor ruled that both suits could not proceed simultaneously, that the plaintiff must elect, and where the plaintiff thereupon elected to proceed upon the distress warrant, the plaintiff cannot afterwards be heard to except on the ground that the finding of the auditor…