When, in an action pending in a court of superior jurisdiction, the plaintiff has previously sued the same defendant in the same forum for the same cause of action, and has been nonsuited on the merits of his case, proceedings will be stayed, on motion, until the plaintiff has satisfied the judgment for costs already entered against him. A motion for surety for costs in the pending action will also be granted.
PER CURIAM.
The cases cited for the defendant show that it is the practice at common law for the higher courts, when the plaintiff in a pending action has previously brought suit in the same forum for the same cause of action, and has been nonsuited on the merits, to stay proceedings until he has satisfied the judgment for costs recovered against him. Some cases hold that the stay will be granted when the nonsuit is voluntary.
As follows:
Melchart v. Halsey, 3 Wilson, 149, and cases cited; Gravenor v. Cape; Bass v. Firmen, 1 Ld. Raym. 697; Lord Biron's case, 1 Vent. 100; Bridge v. Sumner, 1 Pick. 371; Cuyler v. Vanderwerk, 1 Johnson's Cases, 247, and note c; Jackson v. Edwards, 1 Cow. 138; Jackson v. Carpenter, 3 Cow. 22; Perkins v. Hinman, 19 Johns. Rep. 237.
The motion for a stay is granted, and also the motion for surety for costs, said surety to be given on or before the first day of the next term.