Wilde, J.
This'was a Avrit of entry to recover possession of a lot of land, formerly leased by the demandant to the tenant for a term of years not yet expired.
The action is founded on an alleged breach of a condition m the lease, by the non-payment of rent, and a clause of entry [116]*116thereupon reserved by the demandant in the lease. The tenant, protesting that no forfeiture had accrued, moved the court, at the trial, to stay all further proceedings in the case, on his paying the rent and costs. This motion was sustained by the chief justice, who presided at the trial, and the questions now are, whether a court of common law has power to grant the relief prayed for, and if so, whether it ought to be granted on the facts reported.
It was objected, on the argument, that the motion was prematurely made, as the question of forfeiture should have been first determined. But this objection ought to have been, made at the trial, when the tenant might havé elected to confess the forfeiture or to proceed in the trial, or the court might have ordered the question of law to be first decided, notwithstanding the objection. That the court has such a discretionary power is very clear. The question, therefore, has been regularly submitted to our consideration, and it will be beneficial to both parties that it should be now decided ; the tenant admitting, notwithstanding his protestation, (as he does for the purpose of deciding the present question,) that there has been a breach of the condition in the lease, as alleged in the declaration.
It was then objected by the demandant’s counsel, that he having made out a clear title to the demanded premises, is entitled to judgment, and that this court, as a court of law, has no right and legal authority to stay further proceedings, as prayed for. This, it has been argued, is a novel question in this Commonwealth, from which it is inferred by the demandant’s counsel, that the court is not authorized to grant relief. But this inference is not conclusive; for it may be that no case has occurred requiring such relief, or such relief may have been granted and the evidence of any such decision may have been lost. The history of the proceedings of our courts of law before the revolution is imperfect; and we think that the novelty of the question, in this court, ought to have little or no influence in the decision ; especially as we consider the principles and rules of court in England, [117]*117upon which the question depends, to have been long welt established.
That a court of equity would grant relief in a case like this is not questioned, and cannot be denied. The true foundation of equitable relief, in cases of penalties and forfeitures, is limited to such cases as admit of compensation according to the original intent of the parties. And in all cases where the penalty or forfeiture is designed to secure the payment of a certain sum of money, a court of equity will grant relief, on payment of the money secured, with interest; as in case of penalties or forfeitures for the non-payment of rent, and other similar cases. 2 Story on Eq. §§ 1315, 1320. Sanders v. Pope, 12 Ves. 282. Baxter v. Lansing, 7 Paige, 350. It is, however, denied that courts of common law have any such power. But the authorities cited by the counsel for the tenant abundantly show that in many cases, and for a long period of time, the courts of common law in England have exercised such a power, by granting relief in support of equitable defences, “for the easier, speedier and better advancement of justice,” without turning the party over to a court of equity. A fortiori ought this to be done in cases where courts of equity have no jurisdiction, by reason of the limitation of their powers. The ancient common law, as known and administered before the days of Bracton, has been much improved and enriched by the introduction of many principles of the civil law, and by rules of practice founded on justice and equity, and by the labors and investigations of learned judges and jurists, who have laid down the just rules and principles by which the courts of common law are to be governed, at the present day, in the administration of justice.
At the present time, and long before our separation from the government of England, courts of common law and courts of equity have and had concurrent jurisdiction in many cases; such as cases of fraud, nuisance, waste, and many other cases; although the theory is, that courts of equity will not interpose and sustain a bill for relief, where there is an adequate remedy [118]*118at law — courts of equity having been originally established for the purpose of supplying the defects, and correcting the rigors or injustice of the common law, so that justice may be distributed and enforced in the most perfect manner, secundum; cequum et bonum. Courts of law, therefore, are bound to administer justice, where they may consistently with the principles and rules of the common law, and not to compel parties to resort to courts of equity to obtain relief. They will stay proceedings, when thereby full justice may be "done, and in cases where a court of equity would enjoin the plaintiff not to prosecute his action at law. Thus unnecessary expense and delay are avoided, and no injustice is done. On this ground, courts of common law interpose in support of an equitable defence. And so, also, in cases which are not within the jurisdiction of courts of equity. Thus, in trover for the conversion of a specific article, the article may be brought into court, in some cases, and upon payment of costs proceedings may be stayed. The rule is laid down by Lord Mansfield, in Fisher v. Prince, 3 Bur. 1364, “ that where trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstances that can enhance the damages above the real value, but that its real and ascertained value must be the sole measure of the damages, there the specific thing may be brought into court.” Such motions, however, are not granted of course, but they must depend upon their own circumstances. So in replevin, where the defendant avowed for rent in arrear, the plaintiff in replevin was allowed, in Vernon v. Wynne, 1 H. B. 24, to bring into court the rent specified in the avowry, and, on payment of costs, all further proceedings were stayed. The only objection made in that case by the defendant’s counsel was, that it would be permitting a plaintiff to pay money into court, which had never before been known; an indulgence of that kind having been always confined to defendants.
There are many other cases in which courts of law interpose, on equitable grounds, to prevent oppression or unnecessary costs; as in the common rule for allowing the defendant [119]*119to bring money into court, with costs; in which case, if the plaintiff refuses to accept the sum tendered, and proceeds in the trial, the defendant will be entitled to costs, unless the plaintiff can prove that more is due to him than the sum tendered. So if separate actions are brought against the acceptor, drawer, and indorsers of a bill of exchange, the court stay proceedings against the drawer, or any of the indorsers, on payment of the bill, and costs of the action; although not against the acceptor, without payment of costs in all the actions. Smith v. Woodcock, 4 T. R. 691. 1 Tidd’s Pract. (1st Amer. ed.) 482.
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Wilde, J.
This'was a Avrit of entry to recover possession of a lot of land, formerly leased by the demandant to the tenant for a term of years not yet expired.
The action is founded on an alleged breach of a condition m the lease, by the non-payment of rent, and a clause of entry [116]*116thereupon reserved by the demandant in the lease. The tenant, protesting that no forfeiture had accrued, moved the court, at the trial, to stay all further proceedings in the case, on his paying the rent and costs. This motion was sustained by the chief justice, who presided at the trial, and the questions now are, whether a court of common law has power to grant the relief prayed for, and if so, whether it ought to be granted on the facts reported.
It was objected, on the argument, that the motion was prematurely made, as the question of forfeiture should have been first determined. But this objection ought to have been, made at the trial, when the tenant might havé elected to confess the forfeiture or to proceed in the trial, or the court might have ordered the question of law to be first decided, notwithstanding the objection. That the court has such a discretionary power is very clear. The question, therefore, has been regularly submitted to our consideration, and it will be beneficial to both parties that it should be now decided ; the tenant admitting, notwithstanding his protestation, (as he does for the purpose of deciding the present question,) that there has been a breach of the condition in the lease, as alleged in the declaration.
It was then objected by the demandant’s counsel, that he having made out a clear title to the demanded premises, is entitled to judgment, and that this court, as a court of law, has no right and legal authority to stay further proceedings, as prayed for. This, it has been argued, is a novel question in this Commonwealth, from which it is inferred by the demandant’s counsel, that the court is not authorized to grant relief. But this inference is not conclusive; for it may be that no case has occurred requiring such relief, or such relief may have been granted and the evidence of any such decision may have been lost. The history of the proceedings of our courts of law before the revolution is imperfect; and we think that the novelty of the question, in this court, ought to have little or no influence in the decision ; especially as we consider the principles and rules of court in England, [117]*117upon which the question depends, to have been long welt established.
That a court of equity would grant relief in a case like this is not questioned, and cannot be denied. The true foundation of equitable relief, in cases of penalties and forfeitures, is limited to such cases as admit of compensation according to the original intent of the parties. And in all cases where the penalty or forfeiture is designed to secure the payment of a certain sum of money, a court of equity will grant relief, on payment of the money secured, with interest; as in case of penalties or forfeitures for the non-payment of rent, and other similar cases. 2 Story on Eq. §§ 1315, 1320. Sanders v. Pope, 12 Ves. 282. Baxter v. Lansing, 7 Paige, 350. It is, however, denied that courts of common law have any such power. But the authorities cited by the counsel for the tenant abundantly show that in many cases, and for a long period of time, the courts of common law in England have exercised such a power, by granting relief in support of equitable defences, “for the easier, speedier and better advancement of justice,” without turning the party over to a court of equity. A fortiori ought this to be done in cases where courts of equity have no jurisdiction, by reason of the limitation of their powers. The ancient common law, as known and administered before the days of Bracton, has been much improved and enriched by the introduction of many principles of the civil law, and by rules of practice founded on justice and equity, and by the labors and investigations of learned judges and jurists, who have laid down the just rules and principles by which the courts of common law are to be governed, at the present day, in the administration of justice.
At the present time, and long before our separation from the government of England, courts of common law and courts of equity have and had concurrent jurisdiction in many cases; such as cases of fraud, nuisance, waste, and many other cases; although the theory is, that courts of equity will not interpose and sustain a bill for relief, where there is an adequate remedy [118]*118at law — courts of equity having been originally established for the purpose of supplying the defects, and correcting the rigors or injustice of the common law, so that justice may be distributed and enforced in the most perfect manner, secundum; cequum et bonum. Courts of law, therefore, are bound to administer justice, where they may consistently with the principles and rules of the common law, and not to compel parties to resort to courts of equity to obtain relief. They will stay proceedings, when thereby full justice may be "done, and in cases where a court of equity would enjoin the plaintiff not to prosecute his action at law. Thus unnecessary expense and delay are avoided, and no injustice is done. On this ground, courts of common law interpose in support of an equitable defence. And so, also, in cases which are not within the jurisdiction of courts of equity. Thus, in trover for the conversion of a specific article, the article may be brought into court, in some cases, and upon payment of costs proceedings may be stayed. The rule is laid down by Lord Mansfield, in Fisher v. Prince, 3 Bur. 1364, “ that where trover is brought for a specific chattel of an ascertained quantity and quality, and unattended with any circumstances that can enhance the damages above the real value, but that its real and ascertained value must be the sole measure of the damages, there the specific thing may be brought into court.” Such motions, however, are not granted of course, but they must depend upon their own circumstances. So in replevin, where the defendant avowed for rent in arrear, the plaintiff in replevin was allowed, in Vernon v. Wynne, 1 H. B. 24, to bring into court the rent specified in the avowry, and, on payment of costs, all further proceedings were stayed. The only objection made in that case by the defendant’s counsel was, that it would be permitting a plaintiff to pay money into court, which had never before been known; an indulgence of that kind having been always confined to defendants.
There are many other cases in which courts of law interpose, on equitable grounds, to prevent oppression or unnecessary costs; as in the common rule for allowing the defendant [119]*119to bring money into court, with costs; in which case, if the plaintiff refuses to accept the sum tendered, and proceeds in the trial, the defendant will be entitled to costs, unless the plaintiff can prove that more is due to him than the sum tendered. So if separate actions are brought against the acceptor, drawer, and indorsers of a bill of exchange, the court stay proceedings against the drawer, or any of the indorsers, on payment of the bill, and costs of the action; although not against the acceptor, without payment of costs in all the actions. Smith v. Woodcock, 4 T. R. 691. 1 Tidd’s Pract. (1st Amer. ed.) 482. But the rule more directly in point is that long since adopted by the courts in England, in ejectment, on a clause of reentry for non-payment of rent, as in the present case. So long since as the year 1738, Lee, C. J. remarked, in the case of Archer v. Snapp, Andr. 341, that before the St. of 4 Geo. II. the court of king’s bench had exercised a discretionary power of restraining the lessor from proceeding for a forfeiture, in case of non-payment of rent, “ by compelling him to take the money really due to ohim.” How long before courts of law had exercised that power, is uncertain, and is not material. But in Gregg's case, 2 Salk. 597, Lord Holt is reported to have said that it was done “ in ejectment on a special reason, viz., because that action subsists entirely upon the rules of the court.” But surely that could not have been the main reason; for if the court had power to substitute a new and fictitious form of action for a writ of entry, as a more convenient remedy in the administration of justice; if they could introduce and establish the action of assumpsit as a substitute for an action of debt on simple contract, to avoid the defendant’s wager of law, which was done to the great advancement of justice; they had authority to establish the same rule in a writ of entry as in the action of ejectment; and no doubt it would have been done, if the former action had not been almost, if not entirely, disused in practice, after the introduction of the latter form of action. But the form of the action seems to be immaterial. The equitable foundation of the rule in question, and the end to be obtained, are the same in both forms of action.
[120]*120Whether the St. of 4 Geo. II. c. 28, extended to this country or not, is a question which it is not necessary to decide. The powers of this court and the practice of the courts of law in England do not depend on that statute. “ The true end and professed intention of this act of parliament,” as is said by Lord Mansfield, in 1 Bur. 619, “ is to take off from the landlord the inconvenience of his continuing always liable to an uncertainty of possession, (from its remaining in the power of the tenant to offer him compensation at any time, in order to found an application for relief in equity,) and to limit and confine the tenant to six calendar months after execution executed, for his doing this, or else that the landlord should from thenceforth hold the demised premises discharged from the lease.” 2 Sellon’s Pract. 127. It is true that this statute regulates, in some measure, the practice of staying proceedings in the courts of law. But the practice had its origin long previously to the statute ; and the authority of the courts to establish such a rule of practice was never questioned.
We have no doubt, therefore, of the power of this.court to stay proceedings in support of an equitable defence. And if we have such power, that it ought to be exercised in this case, no one, we think, can doubt. We cannot imagine a more unjust and oppressive claim, than that which the demandant attempts to enforce. By mistake, the tenant, as it was said on the argument and not denied, tendered a quarter’s rent a day or two before it was due ; but this was no prejudice to the demandant. And it is quite certain that the rent would not have been received, if it had been tendered on the day when it was payable ; for the demandant, as his counsel admits, (and as we know judicially,) had then an action pending for the supposed breach of another condition of the lease, for which he claimed the forfeiture. See Atkins v. Chilson, 9 Met. 52. The demandant, therefore, could not have accepted rent without defeating his action, as such an acceptance would amount to a waiver of the forfeiture.
We are therefore of opinion that the rule adopted at the trial should be made absolute, with some enlargement, however, of [121]*121'the terms. We think the tenant is bound to pay all the rent now in arrear, with interest; for although the demandant has no legal right to interest, (it being admitted that all the rent, except for one quarter, has been duly tendered to him,) yet he has an equitable claim, as the tenant, no doubt, has had the use of the money. For he must have known that the money would not be demanded of him ; and the presumption is that it was used by him.
The sum due to the demandant being ascertained according to this modification of the rule, the further proceedings in the case are to be stayed, on payment of the sum due, with costs, or by bringing the same into court for the demandant’s acceptance. [See St. 1847, c. 267, § 1.]