[ * 462 ]
A similar application was made in the case of Wild v. Hobson, (2 Vesey & Beame, 105.) and Lord Eldon said, the principle of staying one action until the *costs of a former action between the same parties on the same subject matter, were paid, had never been applied, where the one suit was in equity, and the other at law. In all other cases, if the two suits had not been in the same Court, yet they were in Courts of the same nature, and proceeding upon the same principles, and in the same mode. Thus, in Melchart v. Halsey, (3 Wils. 149.) a suit in the C. B. was stayed, until the costs of a former suit in the K. B. were paid; and in Holbrooke v. Cracraft, (5 Vesey, 706. note.) the Court of Chancery required the costs of a former bill between the same parties in the exchequer to be previously paid. The interference has, in no instance, been carried further. There is a great distinction between legal and equitable jurisdictions, as to the mode of proof, the mode of trial, and the nature of the relief. Such a change in the remedy does away the presumption of vexation. The party having tried the question at law, may apply to the defendant’s conscience; and Lord Eldon says, it was never asserted, that a plaintiff must not bring an ejectment until he has filed a bill, and he thought it might be productive of mischief to apply the principle to this case.
On the strength of the reason and authority of thdt case, and in the absence of all practice and precedent to the contrary, I shall deny the motion, but without costs.
Motion denied.