The cases cited 1 for the. defendant show that it is the practice at common law for the higher courts, when the plaintiff in a pending action has previously brought suit in the same forum for the same cause of action, and has been nonsuited on the merits, to stay proceedings until he has satisfied the judgment for costs recovered against him. Some cases hold that the stay will be granted when the nonsuit is voluntary.

The motion for a stay is granted, and also the motion for surety for costs, said surety to be given on or before the first day of the next term.