Pinney v. Johnson — 2 Wend. 623

Majority

p. 623

Pinney vs. Johnson and Johnson, administrators, &c.

Headnote

A party will ^the prosecutian of his suit, until the costs 0fan interloc01<ier be

The default of the defendants for not pleading, and all subsequent proceedings on the part of the plaintiff, were set aside at the last February term, and the plaintiff ordered to y i pay the costs of the motion, which were taxed at $18 02. And now, shewing a demand and refusal to pay the same, that the plaintiff is insolvent and confined to the gaol limits of the county of Herkimer, a rule was asked for, that all further proceedings in the suit, on the part of the plaintiff, be stayed until the payment of the costs ordered as above.

D. Burwell, for defendants.

G. H. Feeter, contra.

This rule cannot be granted. The court restrains parties from the prosecution of a second suit for the same cause, until the costs of the first suit be paid; but never stays the prosecution of a suit, until the costs of an interlocutory order, made in the progress of the suit, be paid. The motion, therefore, is denied.