Jackson ex dem. Livingston against Edwards

Majority

p. 138

Jackson, ex dem. Cornelia Livingston and others, against Edwards.

Headnote

"Where the tenant of the lessors, in an Jectmen°f defended a for-'SoughT^against him, bad judgmént forecasts and •was turned ion °upon 6añ háb. fac. posthe same lessors afterwards ment against the plaintiff in the first suit, premises, and upon the same title; the eourt ordered the proceedraS Motion 6tó stay, until the costs of the Pa*i?i he done, altho’ one of the lessors in the see-not demised to the defendant do the first. E^hrou^ht6^6 jectment gainst B, who held as tenant of others, upon which had

and turned B out of possession: in 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

Ejectment, for lot No. 23, in L. and Zds Patent, Scho-Jiarie.

1820, Edwards, the defendant, brought ejectment", on his own demise", for the same lot, against Chris-Ban ‘Brown, recovered judgment, with $129,86 costs, which remain unpaid, and had a writ of possession executed, by virtue whereof he is in possession. Brown, defendant in that suit, set up title in the present lessors of the plaintiff, shewed that he entered on the lot, R as their tenant, and the now lessors are prosecuting upon the same title under which Brown defended. The lessors claim, as heirs at law of Philip Livingston. It was not disputed that the same title was in question before, but it was denied, by affidavit, that Brown defended as tenant to Cornelia Livingston, one of the present lessors, though it was not denied that he stoo'd and defended upon his relation of tenant to the other lessors,

x/. Seely e, 1

moved that all procedines, on the part of the plaintiff, be staid, till the costs of the first suit were paid. c^e<^ 419-20.

p. 139

H. Hamilton, contra,

was not aware that the rule, authorizing a stay of proceedings, till the costs of a former suit is paid, extended to this case. He supposed that, in ejectment, it was confined to a second action by the same lessors, after judgment against them in the first. Besides, here is a change of parties, as appears by the record itself.

JD. Cady, (same side)

added that no legal claim existed against the lessors for these costs. They were not subject to be proceeded against, for them, in any form ; which distinguished this case still farther from the ordinary one of a second action for the same cause.^[1] Nor was it pretended that these lessors defended through their tenant.

It appeared, on the former trial, that Brown was tenant to all the lessors in this action, except Cornelia Livingston. The other lessors are the heirs at law of Philip Livingston. They are to be retained, and the trial of this causéis to be on the same title. Being in relation to the same title, and the same premises which were formerly recovered against the title of these very lessors, the change, by introducing the name of Cornelia Livingston, cannot render it an exception to the general rule, as laid down in the books of practice, that where the same title to the same premises is drawn in question in the second suit, between parties or privies to the first, the Court will order a payment of the costs of the first suit, before they will suffer the second to proceed.^[1]

Motion granted.

(b) (b) Vid. Tidd, 479-80. 6 T. R. 228, 740. 8 T. R. 645. Dunl. Pr. 1025-6, and the cases there cited. Sir. 1152.