In ordinary cases, a defendant who has obtained a rule for security for costs cannot compel the plaintiff to proceed until security be given, and if he wishes to do so he must abandon his rule for security for costs (a). But in a cause removed by certiorari from the Lord Mayor's Court, the defendant paid a sum of money into Court in lieu of bail, and afterwards obtained a rule for security for costs, on the ground that the plaintiff resided out of England; and nearly two years having elapsed without security being given, or any proceeding in the cause, the plaintiff was ordered to give security for costs, otherwise the defendant to be at liberty to take the money out of Court (b). The Court will not vary from the usual condition of a stay of proceedings imposed on the plaintiff in the event of his not giving security, and therefore would not allow as part of the terms of the rule that the defendant should be at liberty to sign judgment as in case of a nonsuit, if the security was not given within a limited time (c). Where an order was made that the plaintiff do forthwith give security for costs to the satisfaction of the Master, no stay of proceedings in the mean time, the attorney for the plaintiff undertaking to find such security, it was held that the proper construction of the order was that the attorney should give the security in case further proceedings were taken, and therefore that he was not liable to an attachment for not giving the security, no further proceedings having been taken (d). The amount of security is in general fixed by the Master, and the Court will not interfere with his discretion in that respect, although it is averred that the anticipated amount of costs will exceed the sum secured (e); and when the security is once given there is an end of the matter, and if the suretics become insolvent the defendant cannot obtain fresh securities (f). (a) Per Coleridge, J., Tassie v. (c) Kelly v. Brown, 5 Dowl. 264. 470; 19 L. J. (N. S.), Exch. 320. (e) Kent v. Poole, 7 Dowl. 572; and see Alivon v. Furnival, 2 Cr. & M. 555; 4 Tyr. 370. (f) Jones v. Jacobs, 2 Dowl. 442. Ꮓ CHAPTER XXXIII. STAYING PROCEEDINGS UNTIL PAYMENT OF COSTS. ANALOGOUS to the practice of requiring security for costs, is that of staying the proceedings until payment of costs. In those cases just considered, in which the Court requires security for costs to be given, the proceedings are in general stayed until security be given. There are, however, circumstances under which the Court will require payment of costs, and stay the proceedings until those costs are paid. The costs so required to be paid are not the costs of the action or other proceeding then pending, but the costs of some former action or step in which the party has been unsuccessful, and which is so far connected with the subsequent suit as to induce the Court to exercise its control, by making the discharge of the liability to the former costs a condition precedent to the carrying on of fresh proceedings. This control will in general only be exercised where the subject-matter of the two suits is identical, that is to say, where the party puts in issue a second time the same question that was previously decided against him. Ejectment is the action in which the Courts are most frequently called upon to exercise this power, for the obvious reason, that from the nature of the action there is no legal bar to a party proceeding to enforce his claim to property by repeated actions of ejectment, while in other actions the defendant can plead the previous judgment in his favour in bar of the subsequent proceedings if they are identical; and it is only where they are identical, in substance at least, that the Court would interfere in the mode now under consideration. It has been laid down, indeed, that ejectment is the only action in which the Court will require the costs of one action to be paid before proceeding with another (a); but the Court will undoubtedly interfere in some other cases. Thus, it will (a) See, per Buller, J., Doe d. Selby v. Alston, 1 T. R. 492. interfere where the plaintiff brings a fresh action after having been nonprossed (a), or where a former action has been discontinued (b), or the plaintiff has been nonsuited (c); but not where the nonsuit was in consequence of the plaintiff suing the defendants by a corporate name, and the action did not appear to be vexatiously brought (d). The circumstances under which the claimant in ejectment will be called upon to pay the costs of a former action have been noticed and considered in the Chapter on the costs in that action (e). Where a plaintiff, who brought an action of trespass against his landlord for taking his goods as a distress, and was nonsuited, subsequently brought a second action, suing in formá pauperis, and being at the time a prisoner in the King's Bench, the Court stayed the proceedings until the costs of the former action were paid (ƒ). Where a judgment irregularly signed by the plaintiff was set aside with costs, the proceedings were stayed until the costs were paid; and it is no answer to such an order that the defendant has since issued an attachment for such costs (g). Where a plaintiff, on being nonsuited, is taken in execution by the defendant for the costs, the Court will not stay proccedings in a second action until the costs of the first are paid (h); but otherwise, if in such a case the plaintiff, after his arrest, has upon his own application obtained his discharge from the Insolvent Court (i). A second application, for a rule for issuing execution against a shareholder of a registered joint-stock company, was allowed to be made without payment of the costs of a former rule discharged on the ground that the requisite notice was not given to him (k). (a) Nevitt v. Lade, 3 Dougl. 396. (b) Parkin v. Scott, 1 Taunt. 565. (e) Crawley v. Impey, 8 Taunt. 407; 2 B. Moore, 460, S. C. (d) Gilbert v. Ryland, 1 Tidd's Pract. 8th edit. p. 585. (e) See ante, pp. 205, 206. 511. (g) Wenham v. Downes, 5 N. & M. 244. (h) Beavan v. Robins,8 D. & R. 42. (i) Stilwell v. Clarke, 3 Exch. Rep. 264. (k) Corden v. The Universal Gas Light Company, 6 D. & L. 379. CHAPTER XXXIV. STAYING PROCEEDINGS ON PAYMENT OF THE DEBT AND COSTS. It has been observed more than once, in the course of this work, that a plaintiff's or defendant's right to costs, where there is a judgment, rests upon some legislative provision, and that the Courts cannot deprive a party of them when so entitled. Where there is no judgment the Courts cannot directly compel the payment of costs, but they do so indirectly. Thus, as we have seen, if a plaintiff wishes to discontinue the action, the terms of payment of costs to the defendant are imposed as a condition of his being allowed to do so. If the plaintiff refuses to pay the costs the Court will not interfere, and the defendant may then proceed to judgment and get a larger amount of costs. It is upon the same principle that actions are compromised and settled without a formal judgment. Thus, in a large proportion of cases in which writs are issued, the action is settled at an early stage by the defendant paying the debt and costs. There is no judgment by which the costs are recoverable at law, but the Court in effect says to the defendant: "If you do not pay the costs with the debt, we shall not stay the proceedings, but allow the plaintiff to proceed to judgment;" and so, on the other hand, if a plaintiff (not disputing its amount) were to refuse to receive the debt and the costs then incurred, the Court would say, "Then you shall not be permitted to go on with the action." The parties are thus in effect compelled, in order to prevent vexatious proceedings, the one to pay and the other to receive costs, incurred down to the period when the debt is paid (a). In order to secure this the (a) Where the debt was paid to the plaintiff behind the back of his attorney the same day the writ was issued, and before its service, the Court re more effectually, plaintiffs in fused to stay the proceedings without payment of 13s. 4d. Morrison v. Summers, 1 Dowl. 325. actions brought to recover debts are bound to give notice to the defendant, by means of an indorsement on the writ, that proceedings will be stayed on payment of the debt and a certain sum for costs, within four days; and the amount of the sum charged for costs is checked by the defendant having the right, notwithstanding he pays the amount demanded, to have the costs taxed, and if more than one-sixth is disallowed the plaintiff's attorney has to pay the costs of taxation (a). At any stage of the cause the defendant may in general obtain an order that, upon payment of the debt and costs, proceedings shall be stayed. In some few instances, however, the Court has refused to stay the proceedings upon payment of the debt and costs. Thus, if the holder of a bill of exchange bring concurrent actions against the acceptor, the drawer, and the indorsers, the Court will stay the proceedings in any one of those actions on payment of the amount of the bill and costs in that particular action; but, formerly, proceedings would not be stayed in an action against the acceptor, except upon the terms of his paying the costs in all the other actions; for though no action lies against the acceptor for these costs, yet when he came to ask a favour, as a stay of proceedings, the Court might with propriety have put him under terms (b). However, by the Practice Rules of Hilary Term, 1853, "in an action against an acceptor of a bill of exchange or the maker of a promissory note, the defendant shall be at liberty to stay proceedings on payment of the debt and costs in that action only" (c). After verdict for the plaintiff, in an action to recover unliquidated damages for breach of contract, the Court refused to stay the proceedings before judgment signed, on payment of the damages and costs, there being no instance of such an order compulsory upon the plaintiff, although often made by consent; the plaintiff, in many cases, being willing to accept the damages and costs at once, instead of waiting until the next (a) See the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, s. 8, and the Practice Rules of Hil. T. 1853, r. 1. (b) Byles on Bills of Exchange. (e) R. 24, re-establishing the previous rule of T. T., 1 Vict. |