The Revised Statutes, c. 82, § 124, provide that, " when costs have been allowed against a plaixxtiff on non-suit or discontinuance, and a second suit has been brought for the same cause before the costs of the former suit are paid, further proceedings shall be stayed until such costs are paid.” We think *539this statute should be interpreted liberally in behalf of defendants. It imposes no unreasonable burden on a plaintiff, to require him to pay costs which he has put upon a defendant without cause, before he can proceed again.
The question here is, whether the defendant has been twice sued for the same cause. If we are governed by the record, he certainly has been. The declarations are precisely alike. It matters not that the plaintiff may have in the second suit more or better evidence of her claim than she had in the first, or that she could not maintain her first suit, but can maintain the second. The statutory requirement is not founded on the theory that the plaintiff has as good grounds for sustaining one suit as the other. The presumption is that she discontinues her suit for the reason that she may improve her chances of success by a later proceeding. But the defendant should not be perplexed by the plaintiff’s experiments without some amends for the annoyance which is thereby inflicted on him.
The result must be the same in the present case, if we look beyond the literal record and consider the admissions and evidence accompanying the papers.
It appears that, during the pendency of the first suit, the plaintiff’s sole claim to recover the land was by reason of the alleged insanity of the defendant’s grantor, the plaintiff being the sole heir of such grantor, and that, since the first suit was discontinued and before the second was commenced, she purchased a mortgage subsisting on the premises, under which she now daims to recover, the mortgage being a better title than the deed under which the defendant claims. But there is no notice in the writ or declaration that the plaintiff’s claim will be limited to the mortgage right, or be based upon it in any way. The plaintiff merely offers, at the hearing of defendant’s motion to dismiss the second suit, that she would be " confined in her proof to the mortgage, and not the insanity proposition.”
The offer came too late. The defendant should not be required to wait until a trial be had to ascertain what proof or cause of action the plaintiff will rely on. It is enough that the plaintiff has so brought her suit that the cause of action first relied on. *540may be relied on again,— that the declaration just as much .embraces it in the second as in the first suit. The plaintiff does not necessarily abandon one ground for recovery because she has another. Her claim is for possession of the premises in dispute, and she is not precluded from relying upon any legal evidence which will show that she is entitled to possession. The statutory requirement, which we are discussing, applies, although a new and additional cause of action is embraced in the second writ. Morse v. Mayberry, 48 Maine, 161.
In the present instance, the test is to be found in the writ and declaration, and not in the evidence to be offered to sustain the action.
Exceptions overruled.
Walton, Virgin, Libbey, Foster and Haskell, JJ., concurred.