restrained by the technicality, could look past the nominal parties to the real ones) to interfere, after a sufficient number of trials had taken place, to determine fairly the validity of the title, and by injunction directed to the unsuccessful litigant, compel him to cease from harassing his opponent by useless litigation.

Indeed, a perpetual injunction will sometimes be granted by a court of equity to quiet the possession of real estate, if the complainant has the title, although there has been no previous trial at law; as when the party having the possession is disturbed, but not so dispossessed as to make it the subject of an action at law. (Trustees of Louisville v. Gray, 1 Litt. R. 148.) And the peculiar state of the property, and the oppressive nature of the litigation at law as to the title, always afford a proper foundation for equitable jurisdiction, and when the title set up by the plaintiff was sufficiently established at law before he came into chancery, or has been established to the satisfaction of the court of equity, either upon its own view of the testimony, or by verdict upon one or more issues, to be awarded at its discretion, the court will then declare that right by decree, and protect it by perpetual injunction. But the plaintiff's title must be clear, or the bill will be dismissed. (Nicoll v. Trustees of Huntington, 1 Johns. Ch. R. 166.)

The discretionary power exercised by the courts in the regulation of ejectments is frequently called forth by applications from the defendant to stay the proceeding in the action. Some cases in which the proceedings are stayed by statute, as in ejectment between landlord and tenant in certain cases, have already been referred to in the detail of the regular practice in the action; but it is proposed to give the subject a more distinct consideration in this place.

Where the ejectment is brought on the forfeiture of a lease, the proceedings will be stayed 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 it was formerly the practice in such a case to grant a summons for this purpose before the tenant had appeared in the action, or entered into the consent. rule. (Doe v. Phillips, 6 Term R. 597.)

In ejectment, where the tenant, after suit brought, offers to surrender the premises, to pay the plaintiff's 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 in the action. In a case in the old supreme court in the state of New York, where the tenant had made substantially similar offers to these, which being declined by the plaintiff, the defendant made a motion to stay the proceedings in ejectment; the court, by Sutherland, J., said: "The conduct of the plaintiff is oppressive, and the defendant has offered to do all that could be required of him. A tender of amends cannot be pleaded in this action; the court therefore order that all proceedings on the part of the plaintiff be stayed for thirty days; that he procure the costs in the suit which accrued previous to the 17th November last to be regularly taxed and demanded of the tenant; and if such costs be paid within twenty days after demand, and the possession of the premises in question quietly surrendered to the lessor upon demand made, then all further proceedings in this cause to be perpetually stayed." The court further ordered, that the lessor of the plaintiff pay the costs of the application. The judgment was permitted to stand, to enable the plaintiff to avail himself of it in support of his action for mesne profits. (Jackson v. Stiles, 3 Wend. R. 429.)

Where the lessee of the plaintiff is an infant, the court will stay the proceedings until security be given for the costs, unless a responsible person has been made the plaintiff in the suit, or the father or guardian undertake to pay them; and an inquiry as to these facts should be made previously to the application. (Noke v. Windham, Strange's R. 694. Throgmorton v. Smith, Ib. 932. Anonymous, 1 Wils. R. 130. Anonymous, 1 Cowp. R. 129. Doe v. Roberts, 6 Dowl. P. C. 556.) But where the lessors of the plaintiff in ejectment are infants, it is too late, after verdict for the defendant, to move for security for costs. (Jackson v. Bushnell, 13 Johns. R. 330.)

The proceedings in the action of ejectment will also be stayed until security be given for costs, where the lessor of the plaintiff is a non-resident; although it seems that some of the lessors of the plaintiff in ejectment reside out of the state and others in it, the court will not stay the proceedings until security for costs is given. (Dun v. Fulford, 2 Burr. R. 1177. Anonymous, 2 Penn. R. 886.) Where 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

stayed until security for costs be given. (Short v. King, Strange's R. 681.)

Den v.

Den v. Thompson,

Johns. Cas. 247.

The courts will also interfere to stay the proceedings in the action of ejectment where the costs of a prior ejectment upon the same title, or between the same parties are left unpaid. (Bull's Lessee v. Sherdine, 1 Harr. & Johns. R. 206. 2 Green's R. 193. Cuyler v. Vanderwert, 1 Perkins v. Hinman, 19 Johns. R. 237. Jackson v. Edwards, 1 Cow. R. 138.) It was formerly held, that the court ought not tc interfere in such cases, unless the two ejectments were brought in the same court; but this limitation no longer prevails, and it is now immaterial in what court the first ejectment is brought. (Ex parte Stone, 3 Cow. R. 380. Doe v. Atherly, 7 Modern R. 420. Anonymous, 1 Salk. R. 255. Holdfast v. Jackson, Barn. R. 133. Doe v. Law, Blk. R. 1158. Doe v. Stephenson, 3 Bos. & Pull. R. 22.) And it is 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. (Medway v. Harbent, Comberback's R. 106. Doe v. Hattruly, 3 Strange's R. 1152. Thrustout v. Holdfast, 6 Term R. 223. Keene v. Angel, Ib. 740. Doe v. Roe, 8 ib. 645. Doe v. Shadwell, 7 Dowl. P. C. 527. Doe v. Roe, 8 ib. 444. Doe v. Thomas, 4 Adolph. & Ell. R. 348. Doe v. Roe, 5 ib. 878. Doe v. Howland, 10 ib. 761.) And a change in the situation of the parties in the action is also immaterial. If the defendant in the second action had been the claimant in the first, or vice versa, the proceedings in the last ejectment will be stayed until the costs of the prevailing party are paid in the first. (Thurstout v. Holdfast, supra.) The rule will also be granted, whether the merits be decided in the former action, or whether there be a judgment of nonsuit, or of non-pros., or even if the first action be discontinued before the consent rule or plea; nor is the length of time which elapses between the two actions any bar to the rule. (Doe v. Langdon, 5 Barn. & Adolph. R. 864. Deuce v. Doble, Comberback's R. 110. Keene v. Angel, 2 Term R. 740. Anonymous, Salk. R. 255.) But the court will not stay proceedings in ejectment till the costs of a former ejectment are paid, unless it appears that the same title was or might have been tried in the former suit. (Jackson v. Stiles, 2 Cow. R. 596.)

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 a writ of habere facias possessionem, and the same lessors afterward brought 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; and it was declared that this rule would have been granted, although one of the lessors in the second action had not demised to the defendant in the first. (Jackson v. Edwards, 1 Cow. R. 138.) The general rule, as laid down in the books of practice, is, that where the same title to the same premises is drawn in question in the second suit in ejectment between parties or privies to the first, the court will order a payment of the costs of the first before they will suffer the second to proceed. (Vide Tidd's Prac. 479, 480. Dunlap's Prac. 1025, 1026.) But it nevertheless seems to be the rule, that it must appear that the lessors of the plaintiff in the first suit, or some of them, are retained in the second, or the lessors in the second suit are privy to the lessors in the first, or the court will not stay proceedings in the second suit till the costs of the first are paid. The fact that the lessor of the plaintiff in the second suit claims under the same title, as was claimed in the first, is not sufficient to justify the stay. (Jackson v. Clark, 1 Cow. R. 140.)

The court will stay the proceedings in a second ejectment until the costs of a former one are paid, if the conduct of the party has been vexatious or oppressive, although he may not be liable to the costs of the first action. (Smith v. Barnardistan, W. Black. R. 904.) And when the claimant obtained possession of the disputed premises, as upon a vacant possession, after having brought some unsuccessful actions, the court set aside the judgment and execution, and directed proceedings to be stayed until security should be given for costs. (Harvey v. Baker, 2 Dowl. N. S. 75.)

The courts will also stay proceedings in actions of ejectment where the lessor of the plaintiff has two or more actions depending at the same time, for the same premises, in the same or different courts, and the proceedings in the one or more actions will thus be stayed until the remaining one is determined. (Thrustout v. Troublesome, Strange's R. 1099. Doe v. Bunton, 6 Bing. R. 469. 2 Sell. Prac. 144.) And when several causes in favor of the same

plaintiff, though against different defendants, concerning the title to property, depend upon the same question and the same evidence, either party may move that only one of the causes be tried, and that the others abide the event; and if the fact that the questions and evidence are the same in all, be not disputed by affidavit, the motion will be granted; otherwise, if that fact be denied, or appear to be doubtful, and where several causes concerning the title to land, in favor of the same plaintiff, against different defendants, were noticed for trial, and one was tried, in which the plaintiff was nonsuited, upon which his counsel gave notice that as all the cases depended on the same questions, the others would not be tried, and a case was made, and an order obtained to stay proceedings in the cause tried, with a view to a motion for a new trial; and on motion for judgment in a case of nonsuit, the plaintiff's attorney swore that the title and evidence of the plaintiff was the same in all the causes, the court held that unless the defendants would file affidavits in twenty days, that the questions and evidence were not the same in all the causes, the motion should be denied; and that the causes mentioned should abide the event of the one last tried; and that, if such affidavits should be filed, the plaintiff should pay costs of the circuit. (Jackson v. Schauber, 4 Cow. R. 78. And vide Doe v. Bennett, 9 Dowl. P. C. 1012.)

When the party, against whom a verdict in ejectment has been obtained, brings a writ of error, and, pending that writ, commences a second ejectment, the court will order the proceedings in the second action to be stayed 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 stayed until the costs of the first action are paid, notwithstanding such costs are suspended by the writ of error. (Fenwick v. Grosvenor, 1 Salk. R. 228. Grumble v. Bodily, Strange's R. 554.) But it has been held that the proceedings in an action of ejectment will not be stayed until the costs of a suit in equity, brought by the same party, for the recovery of the premises in controversy, are paid. (Doe v. Winch, 3 Barn. & Ald. R. 602. Stebbins v. Grant 19 Johns. R. 196.) When an ejectment was brought on two demises, and a verdict was taken for the plaintiff on the first demise, with liberty for him to move to enter a verdict for him in the second demise, he is not precluded from doing so by having obtained early execution on