Vanderwerker v. Cuyler — 1 Cole. Cas. 89

Majority

p. 89

Vanderwerker ads. Cuyler.

Headnote

JUDGMENT as in cafe of non-fuit had been entered in a former caufe, for not proceeding to trial, and it was now moved by

Emott, after plea put in, and notice of trial received, that all proceedings ihould flay till the plaintiff ihould pay the coils of the firft fuit. He cited 2 Burn, and Eajl, 511.

Woodworth contra. Suits are not to be flayed till former coils are paid, except in ejeflment, or where the merits have been tried, or if the fuit appears to be vexatious. It has however been done in trefpafs de bonis afportatis, and in cafe of a malicious profecution. Befides, the defendant, after the plea pleaded, comes too late. He cited in.fup-port of his firft petition, 2 Blachjl. Reports, 741. 3 Wilfon, 149. 2 Burr 1026.

The fecond fuit fhall be intended to be vexatious, the plaintiffs having voluntarily buffered a nonfuit in the firft. , The defendant at no time is too late to make this application pending the fuit and before trial. Motion granted.