ejectments, by a bill of peace to establish the prevailing party's title; yet it hath always been denied, for every termor may have an ejectment, and every ejectment supposes a new demise, and the costs in ejectment are a recompense for the trouble and expense to which the possessor is put. But that where the suit begins in Chancery, for relief touching pretended incumbrances on the title of lands, and the Court has ordered the defendant to pursue an ejectment at law, there, after one or two ejectments tried, and the right settled to the satisfaction of the Court, the Court hath ordered a perpetual injunction against the defendant, because there the suit is first attached in that court, and never began at law; and such precedent incumbrances appearing to be fraudulent, and inequitable against the possession, it is within the compass of the Court to relieve against it." It should seem, however, from the cases of Barefoot v. Fry,(x) and Leighton v. Leighton, (y) that Courts of equity will sometimes interfere and grant perpetual injunctions, when the ejectments have been commenced in the usual way at the common law. And in one case, where upon a most vexatious prosecution of ejectments, the Court of Chancery refused to grant a perpetual injunction, upon an appeal to the House of Lords, the injunction was allowed.(z)

(x) Bunb. 158.

(y) 1 P. Wms. 671.

(2) Earl of Bath v. Sherwin, Bro. Cas. Parl. 270.

317

CHAPTER XII.

OF STAYING THE PROCEEDINGS IN THE ACTION OF
EJECTMENT.

THE discretionary power exercised by the Courts in the regulation of ejectments, is frequently called forth by applications from the defendant, to stay the proceedings in the action ;[1] and a separate consideration of the cases in which these applications have been granted, seems preferable to intermixing them with the detail of the regular practice. [2]

When the ejectment is brought on the forfeiture of a lease, the proceedings will be staid upon the application of the tenant, until the lessor of the plaintiff has delivered particulars of the breaches of covenant, on which he intends to rely: and a summons for this purpose will be granted before the tenant has appeared to the action, or entered into the consent rule.

When the lessor of the plaintiff is an infant, the Court will stay the proceedings until security be given for the costs, unless a responsible

[1] In Ejectment, where the tenant after suit brought offers to surrender the premises, to pay the costs, and to enter into a stipulation as to mesne profits, giving the plaintiff the same rights as if judgment was entered against the casual ejector, the Court will stay the proceedings. Jackson ex dem. Wood vs. Stiles. 3 Wend. Rep. 429.

[2] Pending the action, the premises were sold under a mortgage, and purchased by M., to whom the defendant, for a valuable consideration, delivered possession, and afterward went to the Clerk's office and confessed judgment, on which a Habere Facias Possessionem was issued, and possession delivered to the plaintiff. On motion, the judgment and execution were set aside, and the cause reinstated; but as the substitution of M., as the defendant, would have ousted the Court of its jurisdiction, the Court ordered that the suit should stand in the name of the original parties, and that M. should give surety for the costs, &c. Lessee of Thomas vs. Newton, 1 Peters' Circ. Ct. Rep. 444.

person has been made the plaintiff in the suit, or the father, or guardian, undertake to pay them; but an inquiry into these facts should The proceedings

[*318 ] be made pre *viously to the application. (a)

will also be staid until security be given for the costs, when the lessor resides abroad;(b)[1] and, in a case where an ejectment was brought upon the demise of a person resident in Ireland, the Court of King's Bench staid the proceedings until security should be given for the costs; although it was an ejectment brought under the direction of the Court of Chancery, where the bill was retained until after the trial of the ejectment, and security had already been given there to the amount of 401.(c) In like manner, if the plaintiff's lessor should die pending the action, it seems that the Court, although they cannot stay the proceedings in toto, will not suffer the suit to proceed, unless security be given for the costs. (d) And when the lessor is unknown to the defendant, the latter may demand an account of his residence, or place of abode, from the lessor's attorney, and if he refuse to give it, or give a fictitious account of a person who cannot be found, proceedings will be staid until security for the costs be given. (e) But these are the utmost limits to which the Courts will go in granting rules of this nature; and an application has been refused founded on the poverty of the lessor, (f) and also one in which it appeared that an ejectment had previously been brought in another Court and abandoned, and that the lessor had been obliged to give security in the first ejectment, because his residence was then unknown.(g) The practice of granting these [*619 | rules originated in the Court of King's Bench, and *were, indeed, at first, entirely confined to cases of infant lessors. (h)

The proper time to take out a summons, or move the Court for this rule, is after plea pleaded.(i)

(a) Noke v. Windham, Strang. 694.Throgmorton, d. Miller, v. Smith, Stran. 932. Anon. 1 Wils 130. Anon. 1 Cowp. 123.Appendix, No. 43.

(b) B. N. P. 111. Appendix, No. 44. (c) Denn, d. Lucas, v. Fulford, Burr. 1177. (d) Thrustout, d. Turner, v. Grey, Stran. 1056. Ante, 246

(e) Tidd's Prac. 476, 7.

(f) Goodright, d. Jones, v. Thrustout, Cas. Pr. C. P. 15.

(g) Doe, d. Selby, v. Alston, 1 T. R. 491. (h) Thrustout, d. Dunham, v. Percival, Barn. 183.

(i) 2 Sell. Prac. 139.

[1] In Ejectment, where some of the lessors of the plaintiff reside out of the state, and others in it, the Court will not stay proceedings until security for costs is given. Anonymous, 2 Penn. Rep. 886.

The next case in which the courts interfere to stay the proceedings, is when the costs of a prior ejectment upon the same title, or between the same parties, are left unpaid. (j)

For some time after the introduction of this practice, the Court would not interfere unless the two ejectments were brought in the same Court;(k) but this limitation no longer prevails, and it is now immaterial in what court the first ejectment is brought.(1) Formerly, also, there was a diversity of opinion, whether the proceedings could be staid where the two ejectments were brought (without fraud, or collusion,) upon different demises, although upon the same title ;(m) but it is now of no consequence whether the two ejectments are brought, upon the demise of the same or different persons, against all or some of the same parties, or for the same or different premises, provided they are brought upon the same title, and for the recovery of part of the same estate. [1] Thus,

(j) Append. No. 45.

(k) Austine v. Hood, 1 Sid. 279. Tredway v Harbert, Comb. 106.

(1) Doe, d. Hamilton, v. Atherly, 7 Mod. 420. Anon. 1 Salk. 255. Holdfast, d. Hat

tersley, v. Jackson, Barn 133. Doe, d. Chadwick, v. Law, W. Blk. 1158. Doe, d. Walker, v. Stephenson, 3 B. & P. 22.

(m) Short v. King, Stran. 681. Tredway v. Harbert, Comb. 106.

[1] Proceedings in Ejectment were stayed until costs of a former Ejectment between the same parties should be paid. Bull's Lessee vs. Sheredine, 1 Harr. & Johns. Rep. 206.

The Court will not stay proceedings in Ejectment, till the costs of a former Ejectment are paid, unless it appear that the same title was or might have been tried in the former suit. Jackson ex dem. Gouverneur & Al., vs. Stiles, 2 Cowen's Rep. 596.

And where W. brought an Ejectment against T., and G. sought to be admitted to defend as landlady of T., which was denied, because T. was the tenant of W.; On G.'s bringing Ejectment against T., Held, that the proceedings should not be stayed in the second Ejectment, till G. had paid

the costs of the first. Ibid.

Where the tenant of the lessors in an action of Ejectment, defended a former Ejectment brought against him, but failed, and had judgment against him for costs, and was turned out of possession upon an Habere Facias Possessionem, and the same lessors afterwards brought an Ejectment against the lessor of the plaintiff in the first suit, for the same premises and upon the same title; the Court ordered the proceedings in the second action to stay, until the costs of the first were paid. Jackson ex dem. Livingston vs. Edwards, 1 Cowen's Rep. 138.

And this will be done, although one of the lessors in the second action had not demised to the defendant in the first. Ibid.

Thus, where E. brought Ejectment against B., who held as tenant of others, upon which E. had judgment, and turned B. out of possession: in

proceedings have been staid where one of the lessors of the plaintiff in the first action died before the commencement of the second; [*320] where in the second ejectment two trustees were added to the lessors; where part of the lands were occupied by new tenants; where the second action was between the heir of the plaintiff's lessor, and the heir of the defendant in the first action. (m) And in a

(m) Doe, d. Hamilton, v. Hatherly, Stran. 1152. Thrustout, d. Williams, v. Holdfast,

6 T. R. 223. Keene, d. Angel, v. Angel. 6 T, R. 740. Doe, d. Feldon, v. Roe, 8T. R. 645.

Ejectment by C. and those others, for the same premises, against E., proceedings were ordered to stay, till E.'s costs of the first suit should be paid. Jackson ex dem. Livingston vs. Edwards, 1 Cowen's Rep. 138.

Where A. and B. bring Ejectment and have judgment against them for costs, though C. afterwards bring Ejectment for a portion of the same premises upon the same title; yet the Court will not stay proceedings in the second suit till the costs of the first be paid. Jackson ex dem. Clark vs. Clark, 1 Cowen's Rep. 140.

The Court will not compel the defendant in Ejectment to proceed to trial, until the costs of a former suit in which the plaintiff had been nonprocessed, are paid. Hurst's Lessee vs. Jones, 4 Dall. Rep. 353.

Where a rule has been obtained for staying the proceedings in Ejectment till the costs of the former Ejectment have been paid, the Court will not interfere, and permit the defendant, in case those costs are not paid before a certain day, to be named by the Court, to Non Pros, the Ejectment pending. Doe ex dem. Sutton vs. Ridgway, 5 Barnew. & Ald. Rep.

523.

Semble, That the Court will not stay the proceedings in an Ejectment until the costs of a former Ejectment are paid, if it appear that the verdict was obtained by fraud and perjury. Doe ex dem. Rees vs. Thomas, 2 Barnew. & Cress. Rep. 622.

In the case of Chatfield & Wife, demandants, vs. Souters, tenant. 3 Bingh. Rep. 167. Wilde, Serjt. had obtained a rule calling on the demandants to shew cause why all further proceedings on a Writ of Right should not be stayed until the tenant's costs of an Ejectment brought for the said premises were satisfied, in which Ejectment the lessors of the plaintiff, after entering the cause for trial in 1816, withdrew the record.

Pell, Serjt., who was to have shewn cause, was stopped by the Court, who called on

Wilde, to support his rule. [GASELEE, J. referred to the note in 3 Bosanquet & Puller, 23.]

BEST, C. J. "The abandonment of the Ejectment was no decision on "the merits, and the Court has no power to stay the proceedings in a Writ "of Right, till the costs of a prior Ejectment are paid; it is a totally "different proceeding: The rule often operates with hardship in Eject"ment, and it would be more liable to do so in a Writ of Right, by pre "venting a party who was poor from asserting his title."

The rest of the Court concurring, the rule was Discharged.