Ex parte Stone — 3 Cow. 380

Majority

p. 380

Ex parte Stone.

Headnote

Where a and removed antthintofeth¡ supreme court jTOs^and tim f ^ftQ n®£low the suit brought another action for the same cause in the C. P. ; held, that the court below mighu stay the proceedings of the plaintiff in the second suit, till the costs of the first were paid.

In a cause in the Common Pleas of Jefferson, between Stone, plaintiff, and Hooker, defendant, the Court made a rule that all proceedings on the part of the plaintiff be stayed till the costs of a previous action for the same cause against the same defendant brought in the same Court, and removed, by the defendant, into this Court by habeas cor• pUS) be first paid. The suit upon the habeas corpus, not

p. 381

being pursued by the plaintiff, was at an end. A motion was now made for a mandamus commanding the Court below to proceed to the trial of the cause, notwithstanding the rule.

JV. Rathbun, for the motion.

J. Butterfield, contra.

The power exercised by the Courts to stay pro» ceedings, till the costs of a former suit for the same cause are paid, does not depend exclusively upon the question whether their collection can be enforced by execution. It is an equitable jurisdiction ; and intended to prevent the vexatious multiplication of suits. (Ginger v. Barnardiston, 2 Bl. Rep. 904.) Here the plaintiff has voluntarily, and without shewing any excuse, forborne td pursue his action upon the habeas corpus. The Common Pleas were right in staying the proceedings. (Perkins v. Hinman, 19 John. 238 . Tidd, 478. 1 Dunl. Pr. 337. 3 B. & P. 23, n.(a) 4 Mod. 379.) In Lawrence v. Dickenson, (l Cowen’s Rep. 580,) the plaintiff offered to proceed upon the habeas corpus ; but the defendant refused to receive a declaration.

Motion denied.