Warren v. Homested

¶1orally.—A former action for the same cause was nonsuited. The plaintiff afterwards became bankrupt, and this demand was sold by his assignee. The purchaser brought this new action upon it. On motion of the defendant, the court had ordered that the proceedings be stayed, unless the defendant’s cost in the former suit should be paid. The plaintiff in interest now moves, that that order be rescinded. The R. S. c. 115, § 89, provides, that in such a case, the court shall stay all proceedings, until such costs be paid; and may dismiss the suit, unless the same be paid at such time as the court shall appoint. In this case the motion is pressed, upon the ground that the real plaintiff is a different person, without knowledge of the previous judgment for cost. But the statute regards no such distinction. The purchaser must take subject to all the equities, embarrassments *37and infirmities connected with the claim. This is no new principle. On any other construction, after nonsuits on negotiable notes or in land actions, new purchasers might come in with new suits, in their own names, and the statute be wholly evaded. Motion refused.