casual ejector; for a judgment is also in existence against the landlord, and upon that judgment the writ of error may be taken out in the landlord's name. (George v. Wisdern, 2 Burr. R. 756.)

The practice upon the writ of error in cases of ejectment is the same as in other cases, and need not be referred to here.

CHAPTER XXXIV.

OF BRINGING A SECOND EJECTMENT-STAYING PROCEEDINGS IN THE ACTION.

Ir has been heretofore stated in respect to the effect of a judgment in the action of ejectment, that a recovery does not prejudice the rights of the defendant. It is manifest, therefore, that a judgment in ejectment confers no title upon the party in whose favor it is given, and can never be final. A judgment in ejectment simply authorizes the plaintiff to take possession of the premises, whoever may be in possession of them; and the judgment generally terminates all presumption in favor of the defendant's title, arising from prior possession. But though one has recovered in ejectment, yet the recovery is not conclusive upon the defendant or those claiming under him; and it is always in the power of the party failing, whether claimant or defendant, to bring a new action; that is to say, this is the general rule, unless there is a statute upon the subject, changing the rule at common law. A third person may, therefore, purchase the title of the defendant in an action of ejectment, even after the recovery of a judgment against him, and bring a second action of ejectment against the former recoverer in possession, and the former judgment cannot be pleaded as an estoppel; or the defendant in the former action may acquire the title of some third person to the premises in dispute, that is, of a person who was not a party or privy to the former judgment, and then bring a new action of ejectment against the former plaintiff in possession, who will not be permitted to set up the former judgment as an estoppel in the second action. The same rule applies to the plaintiff in the former action. Though the defendant may have a verdict in his favor in the action, the judgment creates no estoppel to the title of the plaintiff. (Jackson v. Tuttle, 9 Cow.

R. 233. Bradford v. Bradford, 5 Conn. R. 127.) The structure of the record, in the action of ejectment, as has been stated in another place, renders it impossible to plead a former recovery in bar of a second ejectment; for the plaintiff in the suit is only a fictitious person, and as the demise, term, etc., may be laid many different ways, it is impossible to make it appear that the second ejectment is brought upon the same title as the first. Hence the rule in this action. (Hopkins v. M'Lauren, 4 Cow. R. 667. White v. Kyle's Lessor, 1 Serg. & Rawl. R. 515. Richardson v. Stewart's Lessor, 2 ib. 87. Ives v. Lott, 14 il. 301. But vide Hammond v. Ridgeley's Lessor, 5 Har. & Johns. R. 245, 267.)

In Sellon's old practice of the courts, it is said, "that it has sometimes been attempted in chancery, after three or four ejectments by a bill of peace, to establish the prevailing party's title ; yet it has always been denied, for every termor may have an eject ment, 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 when 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, then, after one or two ejectments tried, and the right settled to the satisfaction of the court, the court has ordered a perpetual injunction against the defendant; because there the suit is first I attached in that court, and never began at law, and such precedent incumbrances appearing to be fraudulent, and inequitable against possession, it is within the compass of the court to relieve against it." (2 Sell. Prac. 144.) The later authorities, however, hold to a contrary practice. The courts of equity will always interfere in a proper case, and grant a perpetual injunction when it is apparent that a subsequent action is brought to harass the party, or it appears that the whole matter has been decided in the same way, by say two or three similar verdicts and judgments; and in some cases the same court in which the subsequent action is pending will grant the defendant relief, and stay further proceedings. (Vide Ramble v. Tryon, 7 Serg. & Rawle's R. 90. Cherry's Lessee v. Robinson, 1 Yeates' R. 521. Barefoot v. Fry, Bunbury's R. 138. Leighton v. Leighton, 1 P. Wm. R. 670. Deardon v. Lord Byron, 8 Price's R. 417.) The difficulty of enforcing at law the estoppel of former verdicts and judgments in ejectments, induced courts of equity at a very early day (which, un

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 froin 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 where 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.)

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. Den v. Thompson, 2 Green's R. 193. Cuyler v. Vanderwert, 1 Johns. Cas. 247. 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. (Thrustout 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.)