Majority
p. 372Kentish vs. Tatham and others. moved to stay the plaintiff’s proceedings until the costs of the first action should be paid. He cited Grah. Prac. 551; 19 John. 196 , 237; 3 Barn. &
Headnote
Where a defendant is sued a second time for the same cause of action, though in conjunction with others who were not parties to the first suit, the court will order the plaintiff’s proceedings to be stayed until the costs of the first suit are paid.The plaintiff brought an action of assumpsit against Benjamin and Charles B. Tatham, intending to charge them as partners. On the trial, however, it turned out that Charles was. only a clerk in the house of Tatham & Brothers; whereupon the plaintiff was nonsuited, and judgment obtained against him for costs. He then commenced this suit against Benjamin, George N. and Henry B. Tatham, to recover the same demand for which the first action was brought. It appeared that the plaintiff was insolvent.
A. Taber, for the defendants,,
p. 373Ald. 602; 3 Cain. Rep. 171 ; 1 Cowen, 138, 140, 189; 2 id. 580 ; 3 id. 22, 57, 380; 4 Wend. 203 , 216 ; 9 id. 449 ; 2 id. 623; 8 T.R. 645; 6 id. 223, 740 ; 2 id. 511; 2 Str. 1152; id. 548; 4 East 384; 2 W. Black. 1180; 5 Barn. & Ald. 523; 1 John. Cas. 247 ; 1 Mann. & Ryl. 508; 4 Dowl. & Ryl. 145 ; 2 Bing. 167; 9 id. 670; I T. R. 491; 3 Bos. & Pull. 22. cited 1 Wash. C. C. Rep. 70 , 75 ; 1 Paine's Rep. 549; 1 Munf. 398 ; 1 Tidd, 478, 577; 2 id. 1152; 4 Mod. 196 ; 2 W Black. 904; Hullock On Costs, 445 to 467; 2 Bos. & Pull. 22; 2 T. R. 511; 2 Barn. & Cress. 809.
M. T. Reynolds, for the plaintiff,
Benjamin Tatham is' sued a second time upon the same demand or cause of action, and we think the proceedings should be stayed until the costs of the first suit are paid. The fact that some of the defendants are new parties does not take the case out of the operation of the general rule.
Motion granted.