No. 274. Schedule. contained in the Thirteenth Schedule to this Act or to the like effect, 28 VICTORIA, and if for part may be in the form contained in the Fourteenth Schedule to this Act or to the like effect: but no judgment in eject- Thirteenth ment for want of appearance or defence whether limited or otherwise Schedule. shall be signed without first filing an affidavit of the service of the Fourteenth writ according to the provisions of this Act and a copy thereof or R. Pr. 112. where personal service has not been effected without first obtaining a judge's order or a rule of court authorising the signing such judgment which said rule or order or a duplicate thereof shall be filed together with a copy of the writ. 15 & 16 Vict. 156. In case an appearance shall be entered, a record may at Proceedings after once be made up without any pleadings by the claimants or their appearance. attorney setting forth the writ and stating the fact of the appearance c. 76 s. 178. with its date and the notice limiting the defence if any of each of the persons appearing so that it may appear for what defence is made: and such record in case defence is made for the whole may be in the form contained in the Fifteenth Schedule to this Act or to the like effect, and in case defence is made for part may be in the form Fifteenth contained in the Fourteenth Schedule to this Act or to the like Fourteenth effect. Schedule. Schedule. trial of issue in 157. By consent of the parties and by leave of a judge a special Special case and case may be stated according to the practice heretofore used; but the fact. claimants may if no special case be agreed to proceed to trial upon Ib. ss. 179 180. the record in the same manner as in other actions; and the particulars of the claim and defence and map or plan if any or copies thereof shall be annexed to the record by the claimants; and the question at the trial shall except in the cases hereafter mentioned be whether the statement in the writ of the title of the claimants is true or false, and if true then which of the claimants is entitled and whether to the whole or part and if to part then to which part of the property in question; and the entry of the verdict may be made in the form contained in the Sixteenth Schedule to this Act or to the Sixteenth like effect, with such modifications as may be necessary to meet the facts. Schedule. before trial. 158. In case the title of the claimant shall appear to have Verdict where existed as alleged in the writ and at the time of service thereof but it title expires shall also appear to have expired before the time of trial, the claimant I. s. 181. shall notwithstanding be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the writ and to a judgment for his costs of suit. 159. The court or a judge may on application of either party venue. order that the venue shall be changed in like manner as in any other Ib. s. 182. action, and the trial may be had accordingly. at trial. 160. If the defendant appears and the claimant does not appear Non-appearance at the trial, the claimant shall be nonsuited; and if the claimant b. s. 183. appears and the defendant does not appear, the claimant shall be R. Pl. 30. entitled to recover as heretofore without any proof of his title, and R. Pr. 114. shall have judgment for his costs of suit as in other cases. 161. The jury may find a special verdict; and upon a finding Verdict and for the claimant judgment may be signed and execution issued for judgment. No. 274. 15 & 16 Vict. 28 VICTORIA, the recovery of possession of the property or such part thereof as the jury shall find the claimant entitled to and for costs; and upon a finding for the defendants or any of them judgment may be signed and execution issued for costs against the claimants named in the writ: and such judgments may be signed and execution issue at the same time and in the same manner in all respects as in any personal action. 186. Execution. Ib. s. 187. Defence by joint tenants. Ib. s. 188. Trial and judg against joint tenants &c. Ib. s. 189. 162. Upon any judgment in ejectment for recovery of possession and costs there may be either one writ or separate writs of execution for the recovery of possession and for the costs at the election of the claimant. 163. In case of such an action being brought by some or one of several entitled as joint tenants tenants in common or coparpersons ceners, any joint tenant tenant in common or coparcener in possession may at the time of appearance or within four days after give notice in the same form as in the notice of a limited defence that he or she defends as such and admits the right of the claimant to an undivided share of the property (stating what share) but denies any actual ouster of him from the property; and may within the same time file an affidavit stating with reasonable certainty that he or she is such joint tenant tenant in common or coparcener and the share of such property to which he or she is entitled and that he or she has not ousted the claimant; and such notice shall be entered in the record in the same manner as the notice limiting the defence; and upon the trial of such a record the additional question of whether an actual ouster has taken place shall be tried. 164. Upon the trial of such record as last aforesaid, if it shall ment in ejectment be found that the defendant is joint tenant tenant in common or coparcener with the claimant, then the question whether an actual ouster has taken place shall be tried; and unless such actual ouster shall be proved, the defendant shall be entitled to judgment and costs; but if it shall be found either that the defendant is not such joint tenant tenant in common or coparcener or that an actual ouster has taken place, then the claimant shall be entitled to such judgment for the recovery of possession and costs. Proceedings on death of sole or of one of several claimants. Ib. ss. 190 191 192. 165. The death of a claimant or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned; and in case the right of the deceased claimant shall survive to another claimant a suggestion may be made of the death, which suggestion shall not be traversable but shall only be subject to be set aside if untrue; and the action may proceed at the suit of the surviving claimant; and if such a suggestion shall be made before the trial, then the claimant shall have a verdict and recover such judgment as aforesaid upon its appearing that he was entitled to bring the action either separately or jointly with the deceased claimant; and in case of the death before trial of one of several claimants whose right does not survive to another or others of the claimants where the legal representative of the deceased claimant shall not become a party to the suit in the manner hereinafter mentioned, a suggestion may be made of the death, which suggestion shall not be traversable but shall only be subject to be set aside if untrue, and the action may proceed at the suit of the surviving 28 VICTORIA, claimant for such share of the property as he is entitled to and costs. No. 274. several claimants c. 76 s. 193. 166. In case of a verdict for two or more claimants if one of Death of one of such claimants die before execution executed, the other claimant may after verdict. whether the legal right to the property shall survive or not suggest 15 & 16 Vict. the death in manner aforesaid and proceed to judgment and execution for recovery of possession of the entirety of the property and the costs; but nothing herein contained shall affect the right of the legal representative of the deceased claimant or the liability of the surviving claimant to such legal representative and the entry and possession of such surviving claimant under such execution shall be considered as an entry and possession on behalf of such legal representative in respect of the share of the property to which he shall be entitled as such representative, and the court may direct possession to be delivered accordingly. where right does 167. In case of the death of a sole claimant or before trial of one Death of claimant of several claimants whose right does not survive to another or others not survive. of the claimants, the legal representative of such claimant may by Ib. s. 194. leave of the court or a judge enter a suggestion of the death and that he is such legal representative, and the action shall thereupon proceed; and if such suggestion be made before the trial, the truth of the suggestion shall be tried thereat together with the title of the deceased claimant and such judgment shall follow upon the verdict in favor of or against the person making such suggestion as herein provided with a reference to a judgment for or against such claimant; and in case such suggestion in the case of a sole claimant be made after trial and before execution executed by delivery of possession thereupon; and such suggestion be denied by the defendant if he reside within fifty miles of the General Post Office within eight or if he reside beyond that distance within sixteen days after notice thereof or such further time as the court or a judge may allow, then such suggestion shall be tried; and if upon the trial thereof a verdict shall pass for the person making such suggestion, he shall be entitled to such judgment as aforesaid for the recovery of possession and for the costs of and occasioned by such suggestion; and in case of a verdict for the defendant, such defendant shall be entitled to such judgment as aforesaid for costs. several who 168. In case of the death before or after judgment of one of Death of one of several defendants in ejectment who defend jointly, a suggestion may defend jointly. be made of the death, which suggestion shall not be traversable but Ib. s. 195. only be subject to be set aside if untrue, and the action may proceed against the surviving defendant to judgment and execution. of all the defend 169. In case of the death of a sole defendant or of all the Death of sole or defendants in ejectment before trial, a suggestion may be made of ants before trial. the death, which suggestion shall not be traversable but only be Ib. s. 196. subject to be set aside if untrue, and the claimants shall be entitled to judgment for recovery of possession of the property, unless some other person shall appear and defend within the time to be appointed for that purpose by the order of the court or a judge to be made upon the application of the claimants; and it shall be lawful for the court or a judge upon such suggestion being made and upon such No. 274. 28 VICTORIA, application as aforesaid to order that the claimants shall be at liberty to sign judgment within such time as the court or a judge may think fit, unless the person then in possession by himself or his tenant or the legal representative of the deceased defendant shall within such time appear and defend the action; and such order may be served in the same manner as the writ; and in case such person shall appear and defend, the same proceedings may be taken against such new defendant as if he had originally appeared and defended the action; and if no appearance be entered and defence made, then the claimant shall be at liberty to sign judgment pursuant to the order. Death of sole or after verdict. 15 & 16 Vict. c. 76 s. 197. 170. In case of the death of a sole defendant or of all the of all defendants defendants in ejectment after verdict, the claimants shall nevertheless be entitled to judgment as if no such death had taken place, and to proceed by execution for recovery of possession without suggestion or revivor, and to proceed for the recovery of the costs in like manner as upon any other judgment for money against the legal representatives of the deceased defendant or defendants. Death before trial who defends separately. 171. In case of the death before trial of one of several defendants of one of several in ejectment who defends separately for a portion of the property for which the other defendant or defendants do not defend, the same proceedings may be taken as to such portion as in the case of the death of a sole defendant, or the claimants may proceed against the surviving defendants in respect to the portion of the property for which they defend; and in case of the death before trial of one of several defendants in ejectment who defends separately in respect of property for which surviving defendants also defend, it shall be lawful for the court or a judge at any time before the trial to allow the person at the time of the death in possession of the property or the legal representative of the deceased defendant to appear and defend on such terms as may appear reasonable and just upon the application of such person or representative; and if no such application be made or leave granted, the claimant suggesting the death in manner aforesaid may proceed against the surviving defendant or defendants to judgment and execution. Discontinuance. Ib. ss. 200 201. Seventeenth Judgment for 172. The claimant in ejectment shall be at liberty at any time to discontinue the action as to one or more of the defendants by giving to the defendant or his attorney a notice headed in the court and cause and signed by the claimant or his attorney stating that he discontinues such action; and thereupon the defendant to whom such notice is given shall be entitled to and may forthwith sign judgment for costs in the form contained in the Seventeenth Schedule to this Act or to the like effect; and in case one of several claimants shall be desirous to discontinue, he may apply to the court or a judge to have his name struck out of the proceedings and an order may be made thereupon upon such terms as to the court or judge may seem fit, and the action shall thereupon proceed at the suit of the other claimants. 173. If after appearance entered the claimant without going to not going to trial. trial allow the time allowed for going to trial by the practice of the court in ordinary cases after issue joined to elapse, the defendant in Ib. s. 202. No. 274. ejectment may give twenty days' notice to the claimant to proceed to 28 VICTORIA, trial at the sittings or circuit court next after the expiration of the notice; and if the claimant afterwards neglects to give notice of trial for such sittings or circuit court or to proceed to trial in pursuance of the said notice given by the defendant and the time for going to trial shall not be extended by the court or a judge, the defendant may sign judgment in the form contained in the Eigh- Eighteenth teenth Schedule to this Act and recover the costs of defence. Schedule. action. 205. Schedule. 174. A sole defendant or all the defendants in ejectment shall Confession of be at liberty to confess the action as to the whole or part of the pro- 15 & 16 Vict. perty by giving to such claimant a notice headed in the court and c. 76 ss. 203 204 cause and signed by the defendant or defendants, such signature to be attested by his or their attorney; and thereupon the claimant shall be entitled to and may forthwith sign judgment and issue execution for the recovery of possession and costs in the form contained in the Nineteenth Schedule to this Act or to the like effect; and in Nineteenth case one of several defendants in ejectment who defends separately for a portion of the property for which the other defendant or defendants do not defend shall be desirous of confessing the claimant's title to such portion he may give a like notice to the claimant, and thereupon the claimant shall be entitled to and may forthwith sign judgment and issue execution for the recovery of possession of such portion of the property and for the costs occasioned by the defence relating to the same, and the action may proceed as to the residue; but in case one of several defendants in ejectment who defends separately in respect of property for which other defendants also defend shall be desirous of confessing the claimant's title, he may give a like notice thereof, and thereupon the claimant shall be entitled to and may sign judgment against such defendant for the costs occasioned by his defence, and may proceed in the action against the other defendants to judgment and execution. 175. The effect of a judgment in an action of ejectment under Judgment in this Act shall be the same as that of a judgment in the action of ejectment heretofore used. ejectment. Ib. s. 207. notice of Ib. s. 209. 176. Every tenant to whom any writ in ejectment shall be Tenants to give delivered or to whose knowledge it shall come shall forthwith give ejectment to notice thereof to his landlord or his bailiff or receiver; under penalty landlords. of forfeiting the value of three years' improved or rack rent of the premises demised or holden in the possession of such tenant to the person of whom he holds, to be recovered by action in any court of common law having jurisdiction for the amount. landlord where no sufficient distress. Ib. s. 210. 4 Geo. II. c. 28 177. In all cases between landlord and tenant as often as it Ejectment by shall happen that one half-year's rent shall be in arrear and the landlord or lessor to whom the same is due hath right by law to reenter for the non-payment thereof, such landlord or lessor shall and may without any formal demand or re-entry serve a writ in ejectment s. 2. for the recovery of the demised premises; or in case the same cannot be legally served or no tenant be in actual possession of the premises, then such landlord or lessor may affix a copy thereof upon the door of any demised messuage, or in case such action in ejectment shall not be for recovery of any messuage, then upon some notorious place of the lands tenements or hereditaments comprised in such writ of |