
    
      Vanderwerker ads. Cuyler.
    JUDGMENT, as in case of nonsuit, had been entered in a former cause, for not proceeding to trial, and it was now moved by
    Emott, after plea put in,
    and notice of trial received, that all proceedings should stay till the plaintiff should pay the costs of the first suit. He cited 2 Burn. & East, 511.
    Woodworth, contra.
    Suits are not to be stayed till former costs are paid, except in ejectment, or where the merits have befen tried, or if the suit appears to be vexatious. It has, however, been done in trespass de bonis asportatis, and in case of a malicious prosecution. Besides, the defendant, after the plea pleaded, comes too late. He cited in support of his first position, 2 Blackst. Reports, 741. 3 Wilson, 149. 2 Burr. 1026.
   Per Curiam.

The second suit shall be intended to be vexatious, the plaintiffs having voluntarily suffered a nonsuit in the first. The defendant at no time is too late to make this application pending the suit and before trial.

Motion granted.  