Jackson, ex. dem. Cornelia Livingston and others, against Thomas Edwards

Jackson, ex. dem. Cornelia Livingston and others, against Thomas Edwards. Where the plaintiff in ejectment, having noticed his cause for trial, is then stayed by rule Jill the costs ota. prior suit are paid, the court will not in the first instance, grant a judgment as in case of non-suit, for not proceeding to trial upon the notice, but will order, that unless those costs are paid with-time,a the^deí fendant^ may judgment as in rase of non- August 9th, 1823. This Court ordered, that all the proceedings on the part of the plaintiff stay till the lessors of the plaintiff should pay the costs in a suit in this Court, theretofore brought by.James Jackson against one Christian Brown, for the same premises. Before obtaining this rule, the present cause was noticed for trial. A copy of the rule was served on the plaintiff’s attorney, the lsi September last, and the plaintiff has not paid the costs, nor taken any farther steps in the cause ; nor did he countermand the notice of trial. The cause not having been tried pursuant to notice, I. Seelye, now moved for judgment as in case of nonsuit, S. A. Foot, contra. The defendant first ties our hands, by a rule to stay proceedings, and now moves for judgment as ’n case °f nonsuit, for our not proceeding. This is not the proper course. He should have moved that we pay the costs within a given time, or be non-prossed. He can on]y put himself upon our default for not paying costs, which he has not done, and is, therefore, entitled to no rule upon this motion, Seelye, in reply, said the rule was to stay the proceedings of the plaintiff—not the defendant. That the lessors of the plaintiff had not paid the costs and proceeded in the cause, was their own fault, and ought not to prejudice the d efendant. Fleurot v. Durand, 14 John. 329. [MAJORITY — Curia.] Curia. We think it improper, under the circumstances ■of this case, to grant the rule as applied for. Here was a rule to stay proceedings till the costs of another cause were paid. The lessors of the plaintiff may elect to abandon this suit, and in such case cannot be compelled to pay those costs. We accordingly direct, that unless the lessors of the plaintiff shall, within 30 days after service of this rule, pay to the defendant the costs mentioned in the rule of the last term, and the costs of this motion, judgment of nonsuit be entered. Rule accordingly. Ante, 138, S. C.