Thomas vs. Brown and others, 9 Paige Ch. 370

The Chancellor. If the defendants in the suits at law consent that those suits may be discontinued without costs, the complainant will not be permitted to proceed to trial there. But as the suits were commenced in good faith and the complainant was afterwards compelled to resort to his bill of foreclosure, to obtain satisfaction of his debt out of the mortgaged premises, in consequence of the insolvency of the defendants who had been sued at law, he must be permitted to proceed to trial there if the defendants wish to test the question whether he is liable to pay their costs in those suits.

If the defendants succeed in their defence in those suits, they will of course be entitled to their costs in the supreme court. But if they fail, the plaintiff’s costs must abide the further order of this court. And he is only to be permitted to proceed so far, in the suits at law, as to entitle him to enter up his judgments if he succeeds; but no judgment records are to be filed there until the further order of this court. Order accordingly.