
    McINTOSH vs. HOBEN.
    ERROR TO CIRCUIT COURT, OZAUKEE COUNTY.
    Heard January 13.]
    [Decided January 13, 1860.
    
      Stay of Proceedings — Practice.
    A party will not be permitted to prosecute a cause of action in one form, while he is in default for not paying costs in the same cause in another form ; but the proceedings will be stayed on motion.
    This case was brought to this court upon a writ of error from a judgment entered by the circuit court of Ozaukee county, upon an action upon the covenants of title in a deed for lands made by the plaintiff in error to the defendant in error, the defendant in error now moved for a stay of proceedings in this court, until the plaintiff here had paid him his costs in prior appeals, adjudged to him by this court in this same case, and also for costs on such appeals in the court below.
    This motion was supported by an affidavit showing that the action was commenced April 17, 1857, and tried October 27th, from which McIntosh appealed to this court, which appeal was dismissed, under the rules for want of prosecution, and costs to the amount of $25 taxed in favor of Hoban. A second appeal was then taken, which was dismissed for want of prosecution, and costs to the amount of $25 again taxed. Afterwards a motion was made before the circuit court, to stay the proceedings fii that court, which was denied, and McIntosh was ordered to pay $7 as costs. None of these sums had been paid although two executions had been issued and returned by the proper officer unsatisfied. The affidavit also averred that McIntosh had no property out of which the amount could be made.
   By the Court.

The motion for a stay of proceedings must be granted. No excuse whatever is shown for the failure to prosecute the former appeals, and until the costs are paid, the present appeal must be deemed vexatious. The . power of staying proceedings until the costs of former suits or appeals are paid, is equitable in its nature, and intended to prevent the vaxatious multiplication-of suits. 1 John. Cases, 427; 3 Cow., 381; 4 Wend., 216. The facts here disclosed show a case in which the exercise of the power seems emin-' ently proper.

Ordered accordingly.  