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coverture in abatement in the office, and fo figned judgment, the plea being put in after the four days. Per Chief Juftice, it is a good defence. Per Gould Justice, Let it not be understood by our fetting afide the judgment under the circumstances of this particular cafe, that the court means hereby to enlarge the time for pleading dilatory pleas beyond four days.

HILARY TERM

11 GEO. III. 1771.

2 Black. Rep. 734.

5 Bur. Rep. 2692.

JAN

ANUARY 23d, 1771, Mr. Baron Smythe and Mr. Juftice Afton, two of the lords commiffioners of the great feal, fat in the court of Chancery this morning: at noon the lords commiffioners refigned the feal to the King, when his majefty was pleafed to give it to the lord commiffioner Bathurst, one of the juftices of his majefty's court of the bench, with the ftyle and dignity of Lord High Chancellor of Great Britain, being lately created a peer of the realm, by the ftyle and title of Henry Lord Apfley, Baron of Apfley, in the county of Suffex.

January 25th Sir George Nares, knight, one of the King's ferjeants at law, was appointed by his majefty a juftice of his court of the bench, in the room of Lord Apfley.

January 26th, Sir William de Grey knight, the King's attorney general, was called to the ftate and degree of ferjeant at law, and appointed by the King lord chief justice of his majesty's court of the bench; and

On Monday, January 28th, the right honourable lord chief juftice de Grey, and the honourable Mr. Juftice Nares took their refpective places in court.

On

On Monday, February the 4th, Richard Leigh ferjeant at law kiffed hands, on being appointed one of the king's ferjeants; he was fworn in the 5th, and took place in the courts on the 6th of February.

Melchart and others verfus Halfey and others, Executors. 2 Black. Rep.

C. B.

741. S. C.

proceedings

shall stay

between the

THE HE plaintiffs brought an action upon the cafe, in the In what cafe court of King's Bench, against the defendants, upon a contract made between the plaintiffs and the teftator of the until cofts of defendants, for forage found and provided by the plaintiffs, for a nonfuit in a the British troops in Germany, in the laft war, at the inftance former action and requeft of the faid teftator, to the amount of 10,000l. fame parties which was tried before Lord Mansfield, at the fittings after laft be paid. Eafter term, when his lordship being of opinion (upon the evidence then given) that the contract was made upon public faith and credit of the government, and not upon the credit of the teftator of defendants, fo the plaintiffs were nonfuited upon the merits.

In Trinity term laft, the plaintiffs moved the court of King's Bench for a new trial, which was refufed; the whole court being of opinion (upon Lord Mansfield's report) that the contract was made upon the credit of the government, and not of the teftator of defendants.

In Michaelmas term laft, the plaintiffs brought another (the prefent) action upon the cafe against the defendants, and have declared upon the very fame contract; the plaintiffs have alfo filed a bill in Chancery.

In the prefent term, Serjeant Burland, on behalf of the defendants, moved, that proceedings might be ftaid in this action, until the plaintiffs fhall have paid to the defendants, the cofts of the nonfuit in the former action in B. R. which had been taxed by the mafter at 48. 10s. He made this motion upon two grounds; 1ft, he produced an affidavit of all the facts above flated, and that the plaintiffs were foreigners, refiding in Germany, out of the reach of the procefs of the courts here. 2dly, That it appears from the fact ftated in the affidavit, that this fecond action is vexatious, the court of B. R. having unanimoufly given their opinion, upon the motion for a new trial, that the plaintiffs have no right of action upon the above contract,

Gravenor v.

Cape, Eafter 9 Geo. 3.

and therefore upon that ground alone (tho' the plaintiffs had not been foreigners) he fubmitted, that this court would stay the plaintiffs proceedings in this action, until they pay the cofts taxed in the former; that although the court will not oblige. foreigners in the first inftance to give fecurity for cofts, because of the difficulty they may be under to do it here, and on account of trade, yet when foreigners are vexatious (as the plaintiffs appear to be in this cafe) the court will oblige them to do juftice, and pay the cofts taxed, or flay the proceedings in this action. He cited Gravenor verfus Cape, Eafter Term, 9 Geo. 3. C. B. which was trover to try whether A. B. was a bankrupt, wherein the plaintiff was nonfuited upon the merits, and after a whole year's acquiefcence, the plaintiff, not having paid the defendant the cofts of the nonfuit, brought another action upon the cafe on promifes, to try the very fame fact, and the court ftayed the proceedings in the latter action, until the cofts of the nonfuit in the former fhould be paid to the defendant Cape, upon this ground, viz. that they thought the fecond action was vexatious. Serjeant Burland alfo cited 1 Lord Raym. 697. Bafs versus Fir. min, wherein it was moved, that the plaintiff might not proceed before he had paid the cofts of a former nonfuit, which (indeed) was denied by the court, because the merits did not come in queftion upon the trial upon which he was nonfuit; but he fubmitted to the court, that if the plaintiff Bass had been nonfuited upon the merits; the court of B. R. in that case, would have itayed the proceedings until he paid the cofts of the former nonfuit. Whereupon this court made a rule for the plaintiffs to fhew caufe, why proceedings fhould not be stayed in the prefent action, until they fhall pay the cofts taxed upon

the nonfuit.

Upon fhewing caufe, Serjeant Jephfon for the plaintiffs faid, that this was a motion of the firft impreffion, that the cafe in Lord Raym. 697, is not a determination in the present point; that this rule is generally grantable only in ejectment; and that in the cafe of Gravenor and Cape, the plaintiff had acquiefced a whole year, and a dividend of the bankrupt's effects had been made before the plaintiff commenced the fecond action, and that all the facts material had been fully gone into, and discussed upon the former trial, fo that the court thought the fecond action vexatious; that the plaintiffs, in the prefent cafe, commenced the action recently after the court of King's Bench had refufed a new trial; fo that he fubmitted to the court, that the cafe of Gravenor and Cape, was not like the cafe at bar, he cited 1 Barnes 99. Lazarus verfus Pritchard, Hil. 11 Geo. 2. in trover, a rule to fhew cause, why proceedings fhould not be ftaid till

after

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after payment of cofts allowed to defendant in a former action for
the fame thing, was difcharged as unprecedented: for the court
never make such rule in any cafe except ejectment: Ire also cited 2
Stra. 1206. Real & al' verfus Macky, where the plaintiffs were
Swedes, and brought an action for freight; Sir J. Strange moved
to flay their proceedings till they fhould give fecurity for costs,
as is done in ejectment where the leffor of the plaintiff is an in-
fant. Sed per curiam, this has never been carried further than
actions qui tam; and it may affect trade, in fhuiting up our courts
from foreigners, who perhaps cannot find fecurity in a strange
country. The cafes in ejectment are confidered as more under the
power of the court than other proceedings, and the court stay a
fecond, till the cofts are paid of the firft, which they cannot do in
other cafes. So that Serjeant Jephfon fubmitted, that it appeared
from this cafe of the Swedes; the courts never make this rule
for cofts, but in case of ejectment.

Serjeant Davy for the defendants, in reply-It was faid by
Lord Chief Juftice Wilmot, in the cafe of Gravenor verfus Cape,
that, generally, the court will not interfere touching this matter,
except in the cafe of ejectment, because that ONE recovery in
ejectment cannot be pleaded in bar to another ejectment for the
fame lands; but though this is generally true, yet in other
actions where the court can fee that the fecond action for the
fame thing, or to try the fame point is vexatious, they will in-
terfere and ftay the proceedings in the fecond action until the
cofts in the first be paid, as they did in Gravenor verfus Cape,
where the rule was made abfolute by the whole court: the Ser-
jeant fubmitted that this is a ftronger cafe, the plaintiffs being.
foreigners, and out of the reach of the procefs of the court, and
if this rule be not made abfolute, it will condemn the deter-
mination in Gravenor verfus Cape.

Serjeant Burland alfo for the defendants, in reply-The plain- 1 Burr. 1177.
tiffs being foreigners, it is not in the power of the defendants to
obtain their cofts in the former action, wherein the merits have
been determined, unlefs the court will interfere, and make this
rule abfolute. The cafes of Bafs verfus Firmin, and Gravenor
and Cape, are in point; but if they were not, the court will not
require a precedent to do juftice, but will difpenfe with a gene-
ral rule, in extraordinary cafes, for the fake of doing right.
The flake here contended for by the plaintiffs, is no lefs than
10,000l. fo that it is well worth their while to try the opinion.
of every court in the hall; but if they will come here for justice,
they fhall do juftice, and firft pay the cofts of the former nonfuit.

Serjeant

1

Opinion of the court.

Serjeant Leigh alfo for the defendants, in reply-My brother Jephson, for the plaintiffs, infifts this is a cafe of the first im preflion, and that there is no cafe in point; but whether there is or not, juftice requires that this rule be made abfolute, or foreigners may be as vexatious as they pleafe to the King's fubjects, without being liable to any punishment what foever. Courts do not require foreigners in the firft inftance to give fecurity for cofts; not only on account of trade, and the difficulty they may be under to get fecurity here, but alfo because it is uncertain whether they will ever be liable to cofts.

Gould Juftice, cited 1 l'ent. 100. Lord Biron's cafe. The Lord Biron was plaintiff in an action; and, upon a nonfuit, five pounds cofts were taxed against him: and he brought another action for the fame matter, which was faid to be merely for vexation: and that he refufed to pay the cofts; neither could he be compelled, being a peer, and in parliament time: wherefore the court gave day to fhew caufe, why this action fhould not flay until he had paid the cofts in the former. It doth not appear, whether any thing was afterwards done, upon this rule to fhew caufe; but the cafe fhews, that the court made the rule upon this ground, that the fecond action was faid to be merely for vexation. The court took fome days to confider of the cafe at bar, and gave their opinion in fubftance as follows.

Lord Chief Justice de Grey-If the court can be warranted by law to make this rule abfolute, they ought to do it; the rule in Lord Biron's cafe, 1 Vent. 100. was made upon this ground, that the fecond action was alledged to be vexatious, and fhews that the court would have interpofed in that case, if, upon fhewing caufe, it had been fufficiently made appear to the court that it was brought for vexation; by the cafe in Lord Raym. 697, it feems to me, the court would there have inter pofed, if the plaintiff had been nonfuited upon the merits at the trial. The cafe of Gravenor verfus Cape, was well confidered by the late Lord Chief Justice Wilmot and the court, and the rule was made abfolute upon this ground, viz. that they were of opinion the fecond action was vexatious; therefore if this fecond action be vexatious, we are fufficiently warranted by law and precedent to interpofe, and make this rule abfolute.

It appears to the court by affidavit, that the former action. hath been fairly tried before Lord Mansfield, that the whole merits of the cafe were entered into, and difcuffed at the trial, that his lordship was of opinion the contract was made upon public faith, and the credit of government, and not upon the

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