is carried to trial as in other actions. In ejectment under 11 Geo. IV, & 1 Will. IV, c. 70, s. 36, if the defendant appears, it is no ground for setting aside a verdict for the plaintiff, that the defendant has not received six days' notice of trial, as required by that statute; though if proper notice were not given, and the plaintiff proceeded, the defendant not appearing, it would be a good ground for moving to set aside the verdict.a When the tiff is an 1. Security for costs. 2. Payment of costs in case of a second ejectment. PAGE PAGE 912 5. 4. Payment of mortgage mo- 3. Payment of rent and costs 917 HAVING Considered the proceedings in ejectment up to the period of going to trial, it may be convenient to notice in this place the cases in which the courts, in the exercise of their discretionary power, will, upon application, stay the proceedings in the action. 1.-Security for costs.] Whenever an infant is lessor of the lessor of plaintiff, the court will stay the proceedings until security be the plain- given for the costs, unless a responsible person has been made infant or plaintiff, or the prochein ami, or guardian, undertakes to pay abroad, he them. So if the lessor resides abroad. But the court will must give not stay the proceedings where one only of two lessors of the security plaintiff resides abroad, for the defendant has the party, who is not abroad, as a security. So if the lessor of the plaintiff *dies during the action the court will stay the proceedings until se curity be given for the costs.e for the costs. *912 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 stayed until security for the costs be given.f * Doe d. Antrobus v. Jepson, 3 B. & A. 402. Anon. 1 Wils. 130. 1 Cowp. 128. Noke v. Windham, Stra. 694, 932. Doe d. Bawden v. Roe, 1 Hodges, 315. Trustout d. Turner v. Grey, 2 Stra. 1056. 'Adams, 354. Tidd's Prac. 476. 2.-Payment of costs in case of a second ejectment.] Also The court the court will stay the proceedings in a second ejectment until will stay the costs are paid of a prior one, even though it be brought by proceedings in a a third person, or for different premises, if the title be the second same. Thus, proceedings have been stayed where one of the ejectment lessors of the plaintiff in the first action died before the com- until the mencement of the second; where in the second ejectment two costs of a trustees were added to the lessors; where part of the lands prior one be paid, if were occupied by new tenants; where the second action was the title be between the heir of the plaintiff's lessor, and the heir of the the same. defendant in the first action." And the rule applies as well to a case where the second ejectment is brought by the assignee of an insolvent debtor, the first having been brought by an insolvent as to a case where the second has been brought by the same party as the first. Therefore where 1. having brought ejectment, and had judgment of nonsuit against him, after which he took the benefit of the insolvent debtors' act, having inserted the costs in his schedule, and his assignee brought a second ejectment; it was held, that the proceedings should be stayed until the costs of the first were paid. And it is immaterial that the second ejectment is brought in a different court from the first." *But the courts will not stay the proceedings in the second *913 action, where the party against whom the application is made, is already in custody under an attachment for non-payment of the costs of the first.e court will not stay proceed Though the court may stay proceedings in a new ejectment When the until the costs of a former ejectment, between the same parties, and also the costs of an action for mesne profits dependent thereon, are paid; yet they will not extend the rule to ings in a include the damages in the action for the mesne profits, how- second ever vexatious the proceedings of the present lessors of the ejectment. plaintiff may have been. Nor will they stay the proceedings if it clearly appear that the verdict in the first action was obtained by fraud or perjury; nor will they in any case in which they stay proceedings, further interfere so as to compel the claimant to pay the costs by a particular day, or be nonprossed. Where an heir at law brought ejectment for part of the Doe v. Law, and Fairclaim v. Thrustout, 1 Tidd's Prac. 583. Keene d. Angel v. Angel, 6 T. R. 740. And see Doe d. Rees v. Thomas, 4 D. & R. 145. 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, 8 T. R. 645. Doe d. Cotterill v. Roe, 1 Chitty, 195. (18 Eng. C. L. 64.) Doe d. Standish v. Roe, 5 B. & Ad. 878. (27 Eng. C. L. 225.) 9 N. & M. 468. See Doe d. Chadwick v. Law, 2 Bl. 1180. Doe d. Walker v. Stephenson, 3 B. & P. 22. Doe d. Chadwick v. Law, 2 BI. 1158. See Doe d. Carthew v. Brenton, 6 Bing. 469. (19 Eng. C. L. 136.) 2 Sell. Prac. 232. Adams, 359. 'Doe d. Pinckard v. Roe, 4 East, 585. Doe d. Church v. Barclay, 15 East, 232. ▸ Doe d. Rees v. Thomas, 2 B. & C. 622. Doe d. Sutton v. Ridgway, 5 B. & A. 523. (9 Eng. C. L. 203.) *914 When demised premises, and failed, and then brought a second ejectment against other parties for other parts; the court refused to stay proceedings until the costs of the first were paid. A party cannot move to stay the proceedings in a second ejectment, until the costs in the first be paid, before he has entered into the consent rule, for he has no interest, and cannot complain of being harassed. But where the former action was discontinued, before the consent rule was entered into, the court stayed the proceedings in the second until the costs of the former were paid. There is no particular stage of the proceedings in which it is necessary to move the court for this rule, except that, as we have shown, the rule will not be granted before the defendant has appeared. *Where, in a country cause, a declaration in ejectment was delivered on the 30th of September, and, on the fifth day of the ensuing Hilary term, a motion was made to stay proceedings in that ejectment until the costs of a former ejectment were paid; held, that the motion was not too late, although a term had elapsed since the commencement of the action, and notice of trial had been given.d 3.-Payment of rent and costs under 4 Geo. II, c. 28.] In proceed- ejectment for non-payment of rent, under 4 Geo. II, c. 28, it ings will is provided by section 4 of that statute, that if the tenant shall be stayed on payat any time before the trial pay or tender to the landlord, his ment of executor or attorney in the cause, or pay into court all the rent and rent and arrears, together with costs, all further proceedings in costs. the ejectment shall cease and be discontinued. By the terms of this enactment, the application on behalf of the tenant to stay proceedings, on payment of the rent and costs must be made before the trial, the court therefore will not grant such an application after the trial, even though the case may not be strictly within the statute; as where the proviso in the lease was, that if the rent was in arrear for twenty one days, the lessor might re-enter, the court refused such an application made after the trial.s Nor will they grant it, except by consent, where a writ of possession is executed." Doe d. Thomas v. Harris, 4 M. & R. 569. Doe d. Langdon v. Langdon, 5 B. & Ad. 864. (27 Eng. C. L. 219.) 2 N. & M. 840. Smith d. Ginger v. Barnardiston, 2 Bl. 904. d Doe d. Martin v. Packer, 2 C. & M. 457. Before this statute, courts of law and equity exercised a discretionary power of staying the lessor from proceeding at law in cases of forfeiture for non-payment of rent, by compelling him to take the money due to him. See the opinion of Lee, C. J., in Archer v. Snapp, Andr. 341. 2 Salk. 597. 10 Mod. 383. 1 Wils. 75. 2 Str. 900. S. N. P. 717. Upon a motion to set aside an ejectment and restore the possession upon payment of the rent due and costs, the rent must be calculated only to the last rent day, not to the day of computing. Doe d. Harcourt v. Roe, 4 Taunt. 883. Roe d. West v. Davies, 7 East, 363. Doe d. Lambert v. Roe, 3 Dowl. 557. Where the rent was tendered after the landlord had given instructions to his attorney to commence an action, and before the declaration had been delivered, the court set aside the subsequent proceedings with costs.a Where the lessors of the plaintiff were both devisees and *915 executors, and in each capacity rent was due to them, the defendant moved to stay proceedings on payment of the rent due to the lessors of the plaintiff as devisees, they not being entitled to bring ejectment as executors: there appeared to be a mutual debt to the defendant by simple contract, and the defendant offered to go into the whole account, taking in both demands, as devisees and executors, having just allowances, which the lessors of the plaintiff refused, the rule was made absolute to stay proceedings on payment of the rent due to the lessors as devisees, and costs.b Where ejectment was brought on a clause of re-entry in a lease for not repairing, as well as for rent in arrear; on a rule to show cause why the proceedings should not be stayed on payment of the rent and costs, it was insisted on the part of the plaintiff that it was not within the statute, because it was not founded singly on the non-payment of rent; the court, however, made the rule absolute, with liberty for the plaintiff to proceed upon any other title. The application to stay proceedings may be made in term time in court, or in vacation before a judge at chambers,d the money 4.-Payment of mortgage-money, under 7 Geo. II. c. 20.] ProceedBy the 7 Geo. II, c. 20, s. 1, it is enacted "that when an eject- ings will be stayed ment is brought by a mortgagee for the recovery of the pos- in judgsession of the mortgaged premises, and no suit is depending in ment by a any court of equity, for the foreclosing or redeeming of such mortgagee mortgaged premises, if the person having a right to redeem, on payhaving been made the defendant in the action, shall at any time, ment of pending the suit, pay to the mortgagee, or into court, all the due on the principal moneys and interest due on the mortgage, and the mortgage costs to be computed by the court or proper officer appointed and costs. for that purpose; the same shall be deemed and taken to be a full satisfaction and discharge of the mortgage, and the court shall discharge the mortgagor from the same accordingly." By the third *section," the act is not to extend to any case where the person against whom the redemption is prayed, shall insist, either that the party praying a redemption has not a right to redeem, or that the premises are chargeable with other sums than what appear on the face of the mortgage, nor to any case where the right of redemption shall be controverted by different defendants in the same cause."e 2 Sell. Prac. 127. *916 It is provided by the 4. G II, c. 28, s. 2, ante, 914, that nothing therein contained The application to stay proceedings under this statute should be made after appearance and before execution executed. But where the recovery was against the tenant of the mortgagor under a judgment by default, the court said that they would set aside the judgment and let in the mortgagor to defend as landlord, that he might be in a condition to apply to the court to stay the proceedings on the terms of the statute; but the mortgagee consented to take what was due, and restore the possession.a The court stayed the proceedings under this statute after an agreement, on the part of the mortgagor, to convey the equity of redemption to the mortgagee, where no tender of a deed of conveyance for execution had been made to the defendant, or bill in equity filed," but where it appeared that, subsequently to the defendant's agreement, several applications had been made to him, but without effect, to complete the purchase, the court refused to stay the proceedings. Nor will they stay the proceedings on payment of the arrears, of interest and costs, where, by the terms of the mortgage deed, the principal is due on default made in the payment of interest. Where the mortgagor had taken up money from the mortgagee on his bond, the court stayed the proceedings on payment *917 of the mortgage and interest only; the bond debt not being a lien upon the lands. Where, however, the bond was a lien on the estate, and the mortgagee had given notice to the mortgagor, that he should insist upon payment of the money due upon it, the court refused to stay the proceedings upon payment of the mortgage money only. So, where there were two mortgages, although upon different premises, the court refused to stay proceedings as to one mortgage, upon the payment of the sum due upon that mortgage only. But the defendant is entitled to have the proceedings stayed on payment of the principal and interest due on the mortgage deed, without paying any by-gone interest, or the expense of preparing the mortgage deed or any assignment of it h Where, on a motion of this kind any doubt exists as to the amount of what is due between the parties, the courts, pursuant to the terms of the statute, will refer the case to their respective officers, who will make just allowances and deduc shall extend to bar the right of any mortgagee of such lease, who shall not be in possession, so as such mortgagee shall, within six calendar months after such judgment obtained, and execution executed, pay all rent in arrear, and all costs and damages sustained by such lessor, or persons entitled to the remainder or reversion as aforesaid, and perform all the covenants and agreements, which on the part and behalf of the first lessee or lessees ought to be performed. Doe d. Tubb v. Roe, 4 Taunt. 887. Goodtitle d. Taysum v. Pope, 7 T. R. 185. Skinner v. Stacey, 1 Wils. 80. d Goodtitle d. Green v. Notitle, 11 Moore, 491. (22 Eng. C. L. 420.) Bingham d. Lane v. Gregg, Barn. 182. Felton v. Ash, Barn. 177. Doe d. Blagg v. Steel, 1 Dowl. 359. Adams, 364. Roe d. Kaye v. Soley, 2 Bl. 726. |