obtained, brings a writ of error, and pending that writ commences a second ejectment, the court will order the proceedings in the second ejectment to be staid until the writ of error is determined. And it seems also, that if it do not appear to the court that the writ of error was brought with some other view, than to keep off the payment of costs, proceedings will be staid until the costs of the first action are paid, though such costs are suspended by the writ of error. (a) ་ Of staying proceedings. c. 20. By statute 7 Geo. 2, c. 20, s. 1, it is enacted, that where an At instance of ejectment is brought by a mortgagee, his heir, executor, &c. for mortgagor on the recovery of the possession of any mortgaged lands, tenements stat. 7 G. 2, or hereditaments, and no suit shall be then depending in any court of equity, for or touching the foreclosing or redeeming of such mortgaged lands, tenements, or hereditaments, if the person or persons having right to redeem such mortgaged lands, &c. and who shall appear or become defendant or defendants in such action, shall at any time pending such action, pay unto such mortgagee or mortgagees, or in case of his, her, or their refusal, shall bring into court, where such action shall be depending, all the principal monies and interest due on such mortgage, and also all such costs as have been expended in any suit or suits at law, or in equity, upon such mortgage, (such money for principal, interest, and costs, to be ascertained and computed by the court, where such action is or shall be depending, or by the proper officer by such court to be appointed for that purpose), the monies so paid to such mortgagee or mortgagees, or brought into such court, shall be deemed and taken to be in full satisfaction and discharge of such mortgage; and the court shall and may discharge every such mortgagor or defendant, of and from the same accordingly, and shall and may, by rule or rules of the same court, compel such mortgagee, or mortgagees, at the costs and charges of such mortgagor or mortgagors, to assign, surrender, or re-convey such mortgaged lands, &c. and such estate and interest as such mortgagee or mortgagees have or hath therein, and deliver up all deeds, evidences, and writings, in his, her, or their custody, relating to the title of such mortgaged lands, &c. unto such mortgagor or mortgagors, who shall have paid or brought such monies into the court, his, her, or their heirs, executors, or ad (a) Fenwick v. Grosvenor, 1 Salk. 258. Grumble v. Bodilly, 1 Str. 554. Adams Eject. 321, 2nd edit. Tidd's Of staying ministrators, or to such other person or persons, as he, she, or proceedings. they shall for that purpose nominate or appoint. By sec. 3, it is provided, that the act shall not extend to any case where the person or persons against whom the redemption is prayed, shall (by writing under his, her, or their hands, or the hand of his, her, or their attorney, agent, or solicitor, to be delivered before the money shall be brought into such court at law, to the attorney or solicitor for the other side) insist, either that the party praying a redemption, has not a right to redeem, or that the premises are chargeable with other or different principal sums, than what appear on the face of the mortgage, or shall be admitted on the other side, nor to any case where the right of redemption to the mortgaged lands and premises in question, in any cause or suit, shall be controverted or questioned by or between different defendants in the same cause or suit, nor shall be any prejudice to any subsequent mortgagee or mortgagees, or subsequent incumbrancer. The mortgagor must become tenant and appear, before he can take advantage of this statute, and therefore, if a mortgagee recover possession of the mortgaged premises, under a judgment in an undefended ejectment, the court has no jurisdiction to restore possession to the mortgagor, who has not appeared, on payment of the principal, interest, and costs. (a) But if the recovery is had against a tenant of the mortgagor, the court will set aside the judgment, and let in the mortgagor to defend as landlord, that he may be in a condition to apply to the court to stay proceedings on the terms of the statute (b), as in the following case. A mortgagee made a will, leaving all his property to executors upon certain trusts, and died, and his will was disputed by his heir in the prerogative court, but by the sentence of that court established, and letters testamentary in consequence granted to the executors. After this grant the heir appealed to the court of delegates against the sentence of the prerogative court, pending which appeal the executors assigned the mortgage to the lessor of the plaintiff, who, pending the appeal, brought an ejectment against the mortgagor for the recovery of the mortgaged premises. To this ejectment the mortgagor did not appear, but suffered judgment to go by default against the (a) Doe d. Tubb v. Roe, 4 Taunt. (b) Ibid. casual ejector. Upon an application on the part of the mortgagor (accompanied by an affidavit of the facts) to stay the execution, until the determination of the appeal, upon the ground that the title of the lessor would be invalidated, provided the appeal were given in favour of the heir, and that the defendant might then perhaps be compelled to pay the mortgage money twice, the court made the following order "that the execution obtained by the lessor of the plaintiff in this action of ejectment, be staid until such time as the appeal now pending before the court of delegates be determined, upon the defendant's vesting the mortgage-money, interest, and costs, to be taxed by the master, in exchequer bills, and depositing such exchequer bills in the hands of the signer of the writs in this court." (a) The court will not stay proceedings under this statute where the mortgagor has agreed to convey the equity of redemption to the mortgagee (b), though, in a case, where it appeared that the plaintiff had not tendered to the defendant a deed of conveyance to be executed, the court granted the motion. (c) Proceedings will be stayed under this act, on payment of the mortgage money, interest and costs, without paying off a bond debt due to the mortgagee, unless, as it seems, the application be made by the heir of the mortgagor. (d) And where there are two or more mortgages, the court of Common Pleas will not stay proceedings, on payment of the sum due upon one of the mortgages only. (e) When it was usual to try the title to land in real actions, a judgment in such action was a bar between the parties, and might be pleaded in another action of the same nature brought for the same lands (f); but as in ejectment the judgment is not conclusive, and does not operate as a bar between the parties (g), a court of equity, in order to quiet the possession and prevent perpetuity of suits, will decree a perpetual injunction, where several ejectments have been brought in succession. () Of perpetual injunctions in equity. In the case of the earl of Bath v. Sherwin (a) where five ejectments had been brought, in each of which a verdict was found for the plaintiffs in equity, on a bill filed in the court of Chancery, Lord Cowper refused a perpetual injunction, but the House of Lords, on appeal, reversed his decree and granted the injunction. In Leighton v. Leighton (b), where several ejectments had been brought, some of which had been found for the defendant in equity, but two of which, upon trials at bar (c), had been found for the plaintiff in equity, Lord Parker, C. decreed a perpetual injunction, and this decree was affirmed in the House of Lords. So in Barefoot, v. Fry (d), the defendant in equity having brought five ejectments, and having been nonsuited in three of them, verdicts having been found for the plaintiff in equity in the others, a perpetual injunction was granted by the court of Exchequer. It seems that a court of equity will grant a perpetual injunction, although the ejectments have not been brought under the direction of the court. (e) (a) 10 Mod. 1. Pr. Chan. 261. 2 Eq. Ab. 171, 243. 1 Br. P. C. 266. Vin. Ab. Injunction, (D,) pl. 6, S. C. (b) 1 Str. 404. 1 P. Williams, 671. 2 Eq. Ca. Ab. 523. 2 Br. P. C. 217. Lords' Journals, vol. 21, fo. 455, S. C. (c) See Coke v. Farewell, 2 P. Williams, 564. (d) Bunbury, 158. And see Harwood v. Rolph, Selw. N. P. 720, 4th edit. (e) See the cases cited above; and Bates v. Graves, 2 Ves. Jun. 293. Replevin. IN modern practice, the action of replevin is appropriated to redressing the injury occasioned by a wrongful distress (a), though it appears, that where goods are tortiously taken, not as a distress, an action of replevin will lie, as well as an action of trespass. (b) To maintain this action there must have been an actual taking of the goods out of the possession of the party who sues it. (c) The plaintiff must have either an absolute, or a special property in the goods distrained (d), and several persons cannot join in the action, unless they are jointenants or tenants in common. (e) If the cattle of a feme-sole are taken, and she afterwards marries, her husband alone may bring replevin, or the two may join. (ƒ) Executors may have replevin for a taking in the lifetime of their testator. (g) By whom. Replevin lies against him who takes the goods, or against him Against whom. who commands the taking, or against both together. Replevin lies for the unlawful taking of any goods and chattels, whether they be live cattle or dead chattels (h), and for the young of cattle born after the distress taken (i), but it cannot be maintained for things affixed to the freehold, and which cannot be distrained. (k) Since the statute 2 W. and M. c. 5, s. 3, which authorises the landlord to distrain sheaves or cocks of corn, or loose corn or hay lying upon any part of the land (a) Co. Litt. 145, b. Com. Dig. Replevin, (A). Bull. N. P. 53. 3 Bl. Com. 147. (b) 2 Rol. Ab. 430, 1. 41. Shannon v. Shannon, 1 Sch. and Lef. 224. Dore v. Wilkinson, 2 Stark. N. P. C. 288. (c) Shannon v. Shannon, ubi sup. (d) Co. Litt. 145, b. 2 Rol. Ab. 430, 1. 23, 50. Bull. N. P. 53. (e) Co. Litt. 145, b. Bull. N. P. 53. (ƒ) Bern v. Maittaire, cases temp. Hardw. 120. Bull. N. P. 53; and see Blackborn v. Greaves, 2 Lev. 107. (g) Arundell v. Trevill, 1 Sid. 82. Bull. N. P. 53. (h) F. N. B. 68, D. Com. Dig. Replevin, (A). (i) F. N. B. 69, D. Gilb. Repl. 170. (k) Bac. Ab. Repl. (F). And see Neblet v. Smith, 4 T. R. 504. For what. |