ambassador, (r) or his servant ;(8) or, in ejectment, where the lessor of the plaintiff is known, of full age, and resident in this country.(t) The court of King's Bench will not stay proceedings on a quo [*536] warranto information, until the prosecutor give security for costs,

on the ground that the relator is in insolvent circumstances, where it appears that he is a corporator, and no fraud is suggested. (a) And the court of Common Pleas refused to require the plaintiff to give security for costs, although it was sworn that he was insolvent, and that the action was brought in his name, for the benefit of J. S. who was alone beneficially interested in the result.(b) So, where an insolvent debtor, having assigned his property under the insolvent acts, brought an action to recover a debt incurred before the assignment, the assignees having refused to sue, that court would neither set aside the proceedings in such action, nor require the insolvent to give security for costs.(c) But where the plaintiff had been discharged under the insolvent act, after issue joined and before notice of trial given, the court of King's Bench stayed the proceedings, until the assignee, or some creditor of the plaintiff, should give security for costs.(d) And where, in trespass against parish officers for distraining for poors' rates, it appeared that the plaintiff had refused to pay the rates by the desire of his landlord, who was also attorney in the cause, the court stayed the proceedings, until he gave security for the costs.(e) An infant plaintiff cannot be compelled to give security for costs, on the ground of the insolvency of his prochein ami;(f) nor an uncertificated bankrupt, suing for his own benefit, as for the produce of his earnings since the bankruptcy; (g) though it is otherwise, where the action is brought or proceeded in by a bankrupt, whether certificated or uncertificated, for the benefit of his assignees:(h) And where the plaintiff having become bankrupt before plea pleaded, the defendant obtained an order for giving security for costs, and afterwards pleaded bankruptcy, the court of King's Bench held that the plea could not be set aside; but that the order for giving security for costs should be rescinded, the plaintiff paying the costs of that application, and the defendant's rule discharged.() So, where a commission of bankrupt issued against the plaintiff, who was gone with his family to New York, upon the petition of the defendant, who was the only creditor, and chose himself sole assignee; and the plaintiff brought an action against the defendant, to try the commission; the court of Common Pleas refused to stay the proceedings, till he should give security for costs; for in this case, the defendant having possessed himself of all the plaintiff's property as assignee, had thereby rendered it impossible for the latter to give any

r) 5 Maule & Sel. 503.

(s) Davies qui tam v. Solomon, T. 25 Geo. III. K. B.; but see 2 P. Wms. 452. 1 Eq. Cas. Abr. 350, pl. 4.

(t) 1 Durnf. & East, 491; and see 2 H. Blac. 383. 1 Bos. & Pul. 96. 2 Bos. & Pul. 236,

437.

Ad. Eject. 2 Ed. 315, 16.

(a) 2 Maule & Sel. 346; and see 2 Chit. Rep. 369, (a).

(c) 6 Taunt. 123. 1 Marsh. 477, S. C.

(d) 2 Barn. & Cres. 579. 4 Dowl. & Ryl. 81, S. C.

(e) 5 Barn. & Cres. 208.

(b) 7 Moore, 344.

(f) 1 Marsh. 4. 2 Dowl. & Ryl. 423; and see 2 Chit. Rep. 359. Ante, 102.

Cohen v. Bell, T. 44 Geo. III. K. B.; and see 7 Durnf. & East, 297. 1 East, 431. 2 Taunt. 61. 7 Moore, 345.

(h) 7 Durnf. & East, 296. Sanders v. Purse, H. 35 Geo. III. K. B. Cohen v. Bell, T. 44 Geo. III. K. B. 3 Maule & Sel. 283. Robertsons v. Arnold, H. 58 Geo. III. K. B. 2 Chit. Rep. 150.

(i) 1 Chit. Rep. 215.

pledge or counter security to those who might become bound for [*537] him.(k) *And that court would not compel such security, in an action brought by assignees, on the ground that one of the plaintiffs was a bankrupt, and the other a prisoner in Newgate.(a)

The motion for a rule to compel security for costs, should in all cases be made as soon as the defendant can reasonably do it, after knowledge of the fact of the plaintiff's residence abroad ;(b) and a rule has been granted, in the King's Bench, after plea pleaded:(c) but where it might have been made earlier, it comes too late after issue joined, and notice of trial given.(d) In the Common Pleas, on moving for a rule nisi, to compel the plaintiff to give security for costs, the defendant must state in what stage the proceedings are; and the court will not grant the rule nisi, in a cause in which interlocutory judgment has been signed, until the judgment has been set aside.(e) But in that court it does not seem to be necessary that the motion should be made before issue joined; (f) though, after a defendant has undertaken to accept short notice of trial, he cannot compel a plaintiff, resident abroad, to give security for costs.(g) In the Exchequer, the application ought to be made in the earliest stage of the proceedings; and the court will not grant it in any case, after issue joined.(h) The defendant, if sued alone, must put in bail previous to the application:(2) But if a foreigner sue two defendants, and only one of them put in bail, that one may require the plaintiff to give security for costs, without putting in bail for the other defendant.(k) It was formerly the practice, in the King's Bench, to compel the plaintiff to give security for costs, without requiring a previous application to be made to him, or his attorney (1) but it was afterwards determined, that where the plaintiff resided in this country, the court would not grant a rule requiring him to give such security, on the ground of bankruptcy, &c. unless application had been made to him for that purpose.(m) A distinction however was made, between compelling security for costs, and ordering a stay of proceedings; it having been determined, that where the plaintiff resided abroad, the court would compel security for costs, without a previous application to his attorney; but they would not order a stay of proceedings, unless such application had been made.(n) And at length it was decided, agreeably to the original practice, and seems to be now settled, that the court will grant a rule for the plaintiff to give security for costs, though an application has not been made to

(k) 2 New Rep. C. P. 352.

(a) 2 Taunt. 61.

(b) 2 Chit. Rep. 151, (a).

(c) Id. 151; and for the form of the rule nisi in K. B. see Append. Chap. XX.
(d) 5 East, 338.
v. Cazenove, T. 44 Geo. III. K. B. 2 Chit. Rep. 359.

10.

Du Belloix

v. Lord Waterpark, E. 2 Geo. IV. 1 Dowl, & Ryl. 348, (a). 5 Barn. & Ald. 702. 1 Dowl. & Ryl. 348, S. C. accord.

6 Durnf. & East, 597, contra.

(g) 3 Taunt. 272; and see Steel v. Lacy, id. 273, (a). 1 Brod. & Bing. 278, per Dallas, Ch. J. 7 Moore, 361. Bing. 67, S. C.

(h) 5 Price, 610; and see 1 M'Ciel. & Y. 213.

(i) 4 Durnf. & East, 697. 2 Chit. Rep. 152. (k) 6 Durnf. & East, 496.

(1) Per Bayley, J. 1 Barn. & Ald. 332.

(m) 3 Maule & Sel. 283; and see 2 Smith, R. 661. (n) 1 Barn. & Ald. 331; and see 2 Chit. Rep. 151.

him, if it appear upon the affidavits, that the case is such as to [ *538] require the security to be given.(a)

In a second ejectment, the courts will stay the proceedings, until the costs are paid of a prior one, for the trial of the same title ;(6) and also the costs of an action, if any has been brought, for the mesne profits. (c) In other actions, it was not formerly usual to stay the proceedings in a second action, until the costs were paid of a prior one for the same cause ; (d) and particularly if the merits did not come in question on the former trial.(e) And there is said to be no general rule, by which a plaintiff is compelled to pay the costs of a first action, before he is suffered to proceed with the second: If that were the case, it might in many instances work injustice; for the plaintiff might have no other means of paying the costs, than by proceeding for the recovery of his debt.(f) And therefore, where a plaintiff having declared in assumpsit, against trustees of a turnpike road generally, went to trial, and withdrew his record, and after suffering himself to be nonprossed, sued the same trustees a second time by name, for the same cause of action; the court refused to stay the proceedings in the second action, until the costs of the first were paid.(g) So where a plaintiff, being nonsuited, was taken in execution by the defendant for the costs, and whilst in execution, brought another action for the same cause; the court refused to stay further proceedings in the second action, until the costs of the first were paid.(h) And it seems, that where proceedings have been set aside for irregularity, the plaintiff is not bound to pay the costs of them, before he commences a fresh action.(?) But in actions of tort, for a malicious arrest or prosecution, or for a trespass, &c. the court will compel the plaintiff to pay the costs of a first action, before he is allowed to proceed in a second for the same cause:(k) And in actions for the recovery of a debt, though they will not in general stay the proceedings in a second action, until the costs of a former one are paid, yet of late years this has been done in several instances, on the ground of vexation ;(1) and *that, whether the former action was in the same or a dif- [ *539 ] ferent court.(aa) In the King's Bench, this practice was not for

(a) 2 Chit. Rep. 150. And for the form of the notice of motion, and affidavit to stay proceedings, till security be given for costs, see Append. Chap. XX. 8 8, 9. And for the rule in K. B. for staying proceedings in ejectment, till such security be given, see Append. Chap. XLVI. 289.

(b) 1 Salk. 255, 258, 9. 1 ex dim. Jordan v. Roe, M. 22 Pr. Reg. 174. Barnes, 133. 1180, C. P.

Str. 548, 554. 8 Mod. 225, S. C. 2 Str. 1152, 1206. Smith Geo. III. K. B. 1 Durnf. & East, 492. 1 Chit. Rep. 195, K. B. 2 Blac. Rep. 904. Say. Costs, 239, S. C. 2 Blac. Rep. 1158,

(c) 4 East, 585. But they will not extend the rule, so as to include the damages in the action for the mesne profits, however vexatious the proceedings of the lessor of the plaintiff may have been. 15 East, 233.

(d) 2 Str. 1206. Cowp. 322. Say. Costs, 251, S. C. 1 Durnf. & East, 491, 2, K. B. Barnes, 125, C. P.; but see 1 Vent. 100.

(e) 1 Ld. Raym. 697. 2 Blac. Rep. 809.
(f) Per Bayley, J. 3 Dowl. & Ryl. 54.
(g) Dowl. & Ryl. 53.

(h) 8 Dowl. & Ryl. 42.

(i) 2 Chit. Rep. 146.

1 H. Blac. 10.

8 Dowl. & Ryl. 43.

(k) 2 Durnf. & East, 511. 8 Taunt. 407. 2 Moore, 460, S. C. 3 Dowl. & Ryl. 54.

(1) Bond v. Gooch, E. 23 Geo. III. K. B. 149, S. C. C. P.; but see 1 H. Blac. 10. 2 (aa) Nevitt v. Lade, E. 24 Geo. III. K. S. C.

B.

Say. Costs, 245, 247. 2 Blac. Rep. 741. 3 Wils.
Smith, R. 423.

1 Taunt. 565. 8 Taunt. 407. 2 Moore, 460,

merly confined to cases where a trial was had in the former action; but applied equally where the cause was put an end to by a judgment of nonpros, (a) or as in a case of nonsuit.(b) And, where an action was brought by husband and wife, the court stayed the proceedings, until the payment of costs in a former action, at the suit of the husband only; it being for the same demand.(c) In the Common Pleas, the court, it is said, never interferes, unless the merits of the case have been tried in the former action.(d) But where the plaintiff discontinued an action stayed in the King's Bench by a consolidation rule, and commenced an action against the same defendant for the same cause in the Common Pleas, that court stayed the proceedings, until after the trial of the cause mentioned in the rule.(e)[1]

(a) Nevitt v. Lade, E. 24 Geo. III. K. B. 1 Taunt. 565. 8 Taunt. 407. 2 Moore, 460, S. C.

(b) Per Cur. M. 41 Geo. III. K. B. Ad. Eject. 2 Ed. 318.

(c) Lampley and wife v. Sands, H. 25 Geo. III. K. B.

(d) 3 Bos. & Pul. 23, (a); and see 2 Blac. Rep. 809. 1 H. Blac. 10.

1 Taunt. 565.

[1] It may here be proper to notice, as connected with the subject of staying proceedings, the provisions of the statute 1 & 2 W. IV. c. 58, to enable courts of law to give relief against adverse claims, made upon persons having no interest in the subject of such claims. These provisions are of two kinds; first, such as relate to the property in money or goods, where claims are made by different parties, one of whom has brought an action against the person in possession of them, and the defendant does not claim any interest therein; and secondly, for the relief of sheriffs and other officers, in execution of process against goods and chattels.

Before the making of the above statute, it often happened, that a person sued at law for the recovery of money or goods, wherein he had no interest, and which were also claimed of him by some third party, had no means of relieving himself from such adverse claims, but by a suit in equity against the plaintiff and such third party, usually called a bill of Interpleader, which was attended with expense and delay; for remedy whereof, it is enacted by the above statute, that "upon application made by or on the behalf of any defendant, sued in any of his majesty's courts of law at Westminster, or in the court of Common Pleas of the county palatine of Lancaster, or the court of pleas in the county palatine of Durham, in any action of assumpsit, debt, detinue, or trover, such application being made after declaration and before plea, by affidavit or otherwise, showing that such defendant does not claim any interest in the subject-matter of the suit, but that the right thereto is claimed, or supposed to belong to some third party, who has sued, or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into court, or to pay or dispose of the subject-matter of the action, in such manner as the court, or any judge thereof, may order or direct; it shall be lawful for the court, or any judge thereof, to make rules, and orders, calling upon such third party to appear, and to state the nature and particulars of his claim, and maintain or relinquish his claim; and upon such rule or order, to hear the allegations as well of such third party as of the plaintiff, and in the mean time to stay the proceedings in such action; and finally, to order such third party to make himself defendant in the same, or some other action, or to proceed to trial on one or more feigned issue or issues; and also to direct which of the parties shall be plaintiff or defendant on such trial; or, with the consent of the plaintiff and such third party, their counsel or attorneys, to dispose of the merits of their claims, and determine the same, in a summary manner; and to make such other rules and orders therein, as to costs and all other matters, as may appear to be just and reasonable: Stat. 1 & 2 W. IV. c. 58, 81; and that the judgment in any such action or issue as may be directed by the court or judge, and the decision of the court or judge in a summary manner, shall be final and conclusive against the parties, and all persons claiming by, from, or under them." Id. § 2.

"That if such third party shall not appear, upon such rule or order, to maintain or relinquish his claim, being duly served therewith, or shall neglect or refuse to comply with any rule or order to be made after appearance, it shall be lawful for the court or judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors or administrators; saving,

*CHAPTER XXI.

Of COMPROMISING, and COMPOUNDING the ACTION.[A]

WHEN the proceedings are regular, and cannot be stayed, on any of the

nevertheless, the right or claim of such third party against the plaintiff; and thereupon to make such order, between such defendant and the plaintiff, as to costs and other matters, as may appear just and reasonable." Id. & 3.

"Provided always, that no order shall be made in pursuance of that act, by a single judge of the court of pleas of the said county palatine of Durham, who shall not also be a judge of one of the said courts at Westminster: and that every order to be made in pursuance of that act, by a single judge not sitting in open court, shall be liable to be rescinded or altered by the court, in like manner as other orders made by a single judge." Id. & 4. "Provided, also, that if, upon application to a judge in the first instance, or in any later

[A] The compromise of doubtful claims is a good consideration to uphold a contract, and courts will not investigate the merits or demerits of the different claims, for the purpose of setting aside such compromise. Fisher v. May, 2 Bibb, 449. Taylor v. Patrick, 1 Bibb, 168, S. P. Union Bank v. Geary, 5 Pet. 114. But a compromise obtained from a party ignorant of his rights, will be set aside by a court of chancery. Anderson v. Bacon, 1 Marsh. 51. Or founded on misinformation and delusion. Mosby v. Leeds, 3 Call, 439. Or if it be obtained from a plaintiff, through the misrepresentation of a witness, and by the influence of his testimony and the persuasion of arbitrators to whom the matter in dispute had been submitted, if the defendant knew of such misrepresentation, and unduly availed himself of such influence. Hoge v. Hoge, 1 Watts, 163.

A party who has agreed by way of compromise, to abide the action of the legislature on his rights, cannot, in avoidance of his agreement, avail himself of the unconstitutionality of an act that destroys his claim. Walker v. Lipton, 3 Dana, 5. Where two parties claim title to land, and they compromise by one party's conveying the land with warranty, and the other party paying him a sum of money for such conveyance, the adjustment is binding if there be no fraud or imposition in obtaining it. Moore v. Fitzwater, 2 Rand. 442. A promissory note, given to compromise a contingent liability, cannot be avoided by showing that the maker was not in fact or in law liable. Holcomb v. Stimpson, 8 Verm. 141. If parties compromise after an action of ejectment is brought, and the defendant buys the plaintiff's title and mortgages the premises to secure the purchase money, and judgment is obtained on the mortgage, and the premises are sold, and an action of ejectment is brought to recover possession, the defendant cannot in this action, defend his possession by the same evidence which he might have given in the first action. The compromise concludes him. Bennett v. Paine, 5 Watts, 259. Paine v. Bennett, 2 Watts, 427. If a vendor of land covenants that if any part of it is lost, he will convey, of another tract, two acres for one, and a paramount title appears, of which the vendor has notice, and he sells the land out of which indemnity was to be made for a price per acre equal to that which he received for the tract first sold, he may be held accountable to the first vendee for the proceeds of twice as many acres as he lost, though the amount be double the sum which such vendee paid for it; and the vendor's bond given for a compromise on this principle cannot be relieved against. Butler v. Triplett, 1 Dana, 154.

Propositions made by either party, on a treaty for compromising their difficulties, if ineffectual, are not to be used in evidence in a future action in court. Baird v. Rice, 1 Call, 18. Williams v. Price, 5 Munf. 507. Spence v. Spence, 4 Watts, 168. Miller v. Halsey, 2 Green, 49. A fortiori, an unaccepted offer of compromise cannot be set up in bar of an action on the disputed claim, 2 Green, 49. Nor is an unexecuted agreement of compromise evidence on trial between the parties. Spence v. Spence, 4 Watts, 165. Where a suit has been compromised, and a doubtful question settled, it will not be opened unless there has been fraud or imposition, especially where the agreement of compromise indicates an intention to end the matter in dispute. Worrall's Accounts, 5 Watts & Serg. 111. A. and B.