case do on the demise of the duchess dowager of Hamilton against atherly and  other if a ejectment be bring on the demise of husband and wife the wife be  include in a rule of court that forgiver to express grief shall pay the cost  and if after the death of her husband she bring a new ejectment for the same  premise the court of king bench will stay the proceed until the cost in the  former action be pay see short v king stram black Rep hullock on cost a  although such action be bring in and the rule for cost make by the court of  common plea SC stram this be a motion to stay proceed in a action of ejectment  till cost shall be pay upon a former ejectment which have be bring by the  present duchess of Hamilton together with the duke her late husband in the  court of common plea in the year in which cause there be a rule enter into in  these word that in case of a nonsuit or verdict against the plaintiff forgiver  to express grief sit onerabil cum solution custagior per cur allocand upon a  trial at bar there be a verdict and judgement for the defendant which  judgement be affirm in the king bench and also in the house of lord there be a  affidavit that no cost have be pay by the late duke or the present duchess  though often demand that the duchess be the survive lessor of the plaintiff in  modern er p the former ejectment that these ejectment be bring for the very  same land and against several of the same defendant the counsel for the  duchess offer several reason to excuse her from the cost of the former  ejectment first that she be not within the rule it be in the singular number  forgiver to express grief sit c which must mean the duke for as she be a  femecovert she can not make any such demise to try her title on the ejectment  and admit she do not enter into the rule she be not now liable to the cost but  the defendant must pursue the cost into the hand of the duke representative  the second be that admit the duchess to be a party to the rule that the word  forgiver with a turn up to be put for dimissores and the word sit to be  mistake for to be yet that the duchess be covert can not by enter into rule of  court so far involve her consent therein as to bind her after her husband  death that no contract can bind her but that solemn one of levy a fine upon  record that enter into rule of court modern be contract and that the court  enforce the execution of such contract by attachment the three be that as this  be a rule of the court of common plea the party ought to have prosecute for  the cost by attachment in that court and that this court can enforce the rule  of another court fourthly that this court will not interpose after such a  length of time as thirty year comb to this it be say that the length of time  be no objection because the duchess be a peeress of the realm be privilege in  her person and that it be impracticable to find a person so hardy as to take  her up by attachment which be the only remedy upon rule of court for fear of  the resentment of the house of lord the five and last be that as there be only  five defendant in the former ejectment that have survive and be entitle to  cost and be make defendant in the present ejectment together with thirty or  forty more person it be not equitable that proceed shall be stay against those  who be not vex in a former ejectment and in no wise entitle to cost to this it  be answer by the counsel on the other side that the court will take notice  that Mr Fleetwood be at all the cost and not any of the immediate tenant lee  chief justice if the defendant have come into this court for a execution of  the rule enter into in the common plea for payment of cost they must have be  disappoint in their motion but as this be only a motion to stay proceed on the  present ejectment till the cost on a antecedent one be pay off it be a proper  one and we will grant it though we have no direct power to enforce the duchess  to pay cost accrue in another court as to the word of the rule I think the  duchess be clear comprehend in it for it appear that this be a ejectment on  the demise of the duke and duchess whereby they be consider as jointtenants  and as one person only and as so include proper enough under the word forgiver  to express grief in the singular number and twenty jointtenants under the same  title will be esteem as one person and be comprehend under the same expression  forgiver to express grief as to their be different defendant in this ejectment  to what they be in the former and that we shall stay proceed in the present  one only against such as be defendant in the former and who be entitle to cost  upon the former I know no precedent of that sort where proceed in ejectment  have be stay against part of the defendant and admit to go on against the  other part and I know no certain measure the court have to go upon in such  case for though there be new defendant yet it modern do not appear but that  they be undertenant to the person who be defendant in the former action the  reason why the court stay proceed on a second ejectment be to prevent vexation  for it be in the power of a person to bring as many new ejectment as he please  unless he have be enjoin to the contrary by the court of chancery which this  court have no power to do therefore where a plaintiff have bad judgement in a  former ejectment against he and be for bring a new one we can deny it he  absolute but as it be a creature of the court and a equitable proceed we grant  it he upon pay the cost and make the recompense for the vexation he have  modern er p cause in the prior ejectment Mod if this rule of court be to be  consider as a matter of mere contract the duchess can not be bind by it as be  a femecovert and incapable of consent to it but consider the rule of court as  a judicial proceed she be certain oblige by it and these rule of court for  payment of cost by plaintiff be substitute by the court to put the lessor of  the plaintiff in the same condition as a real plaintiff in another action  suppose a action be bring by husband and wife and they be nonsuit and then the  husband die I apprehend the wife who be party to the record will be answerable  for the cost the equity for the defendant in the present case seem to be very  strong for suppose the husband in this ejectment shall die who be lessor of  the plaintiff the lessee may notwithstanding go on and the wife will be  entitle to the recovery and shall have cost against the defendant but suppose  the lessee be nonsuit or a verdict against he in what condition will the  defendant be if the wife be not liable why be can have no cost at all not  against the lessee who be plaintiff for he be only a imaginary and fictitious  person beside see the duchess be survive lessor of the plaintiff in the former  ejectment and consequent will be presume to proceed upon her title of survivor  which will depend upon the same title as in the former ejectment namely the  deed which create the jointtenancy if she proceed upon another title she ought  to set it forth by affidavit on her side and since the ejectment be for the  same land and between the same party I be of opinion to stay the proceed till  payment of the cost page justice be of the same opinion chapel justice the  nature of a proceed by ejectment be to be consider as a creature of this court  in which the lessor of the plaintiff have a great many advantage and the  present one of bring as many ejectment as he please by mean of this  newinvented method of action because the real plaintiff be a fictitious person  so that no prior ejectment or judgement can be plead in bar against he but if  the lessor of the plaintiff be to be a real plaintiff upon record he will be  as much bar by a judgement in ejectment as in any other action and I modern be  of opinion that by such a rule of court as this the plaintiff be reduce into  the same circumstance as a actual plaintiff and liable to cost though he will  not have be so without the interposition of such a rule because he do not  appear upon the record suppose a ejectment by husband and wife the husband die  it have be determine in the case of Thurstout v grey that the lessee shall  notwithstanding proceed because the lessor be neither plaintiff nor defendant  upon the record his death can cause any abatement and the wife shall be  entitle to recover the term with cost against the defendant who in equity  ought to have the same benefit against her this must be take to be the same  title for it be swear to be by the survivor of the lessors of the plaintiff  and if there be any new title it shall have come on the part of the defendant  to have swear it wright justice of the same opinion the rule be make absolute  to stay the proceed till payment of cost