Action of Ejectment. Ejectment to be commenced by writ of summons and plaint. 15 & sects. 168, 175. With respect to the action of ejectment (a): 194. Where any party shall claim possession of any lands, tenements, or hereditaments, and shall be desirous of proceeding by ejectment for the recovery of the same in any of the said Superior Courts of Law, such party shall commence 16 Vict. 76, any action for such purpose by a writ of summons and plaint, which writ shall be directed to the immediate tenant, or any one tenant in possession, as defendant, with the addition of the words, "and all persons concerned” (b), and shall, in addition to any particulars herein before required (c), contain the description of the property sought to be recovered with reasonable certainty, and the county, barony, or parish in which the same is situated (d): Provided, however, that no want of "reasonable certainty" in the description of the property, or part of it, in the summons and plaint or copy, shall nullify them, but shall be ground for an application to the Court or a Judge for better particulars of the land claimed, which the Court or a Judge shall have power to give in all cases, upon the application of any person named as a defendant, or interested in the lands claimed or supposed to be claimed (e). Enactments relating to ejectment. To whom writ directed. Names and residences of parties. (a) The proceedings in ejectments brought in the Superior Courts are now regulated by sects. 194-227 of the present Act; sects. 89, 94, 95 of the Common Law Procedure Act, 1856; sects. 52, 53, 55-58, 60, 62, 6467, 70, 71-74, 75, 77, 94-96 of the Landlord and Tenant Law Amendment Act (Ireland) 1860 (23 & 24 Vict. c. 154), and 184-191 G. O., 1854, and 3, 4 G. O., 1856. The 12th section of the 1 & 2 Wm. 4, c. 31, deals with ejectments brought by a landlord where the right of entry accrues, or the tenancy expires, in or after Hilary or Trinity Term, but although this enactment has not been repealed, its provisions are practically obselete. (b) The writ must be directed to the immediate tenant, or any one tenant in possession, as defendant, with the addition of the words, "and all persons concerned." However, in the case of vacant possession, where the immediate tenant is dead, the writ may be directed to the assignees and personal representatives of A. B. deceased" (Harrington v. Bytham, 2 C. L. R. 1033). Provided the writ is served on all the persons in possession, it is unnecessary to name them all as defendants. A sub-tenant may be named as a defendant when he is in possession of the whole or a part of the premises for which the ejectment is brought (Doe d. Turner v. Gee, 9 Dowl. 612). The writ should state correctly the names of the parties, but a misnomer is rarely ground for setting the writ aside (Doe d. Frost v. Roe, 3 Dowl. 563; Wells v. Suffield, 4 C. B. 750; Doe d. Smith v. Roe, 6 Dowl. 629). The residences of the parties, plaintiff's or defendants, need not be stated, and if the plaintiffs sue, or the defendants are sued, in a representative capacity, it is unnecessary to describe them as suing or sued in such capacity (Swanton v. Goold, 9 Ir. C. L. R. 234). (c) "Hereinbefore," i. e. by this section. parish. (d) If the venue is laid in the proper county, and the premises are de- Omission of scribed with reasonable certainty, the omission of the barony and parish will barony and be considered a mere technical error, which the Court will allow the plaintiff to amend (Dombrain v. Carpenter, 4 Ir. Jur. N. S. 247). As to what constitutes a sufficient description of the premises, see Furlong's L. & T. ed. Latouche, pp. 964, et seq. better particulars. (e) An order for better particulars does not operate as a stay of proceedings Order for (Doe d. Roberts v. Roe, 13 M. & W. 691; 2 D. & L. 673). As to the circumstances under which an order will be made, see Doe d. Saxton v. Turner, 11 C. B. 896; Doe d. Egremont v. Williams, 7 Q. B. 686; King v. Armstrong, Ir. R. 2 C. L. 495. 195. The writ of summons and plaint in ejectment shall state the names of all the persons in whom the title is alleged to be (ƒ), and command the persons to whom it is directed (g) to appear, within twelve days after the service thereof, in the Court into which such writ is returnable, to defend the possession of the property sued for, or such part thereof as they may think fit, and the writ shall be dated and endorsed, and continue in force, and be renewed, and shall be filed after service thereof, in like manner as herein before enacted, with reference to the writ of summons and plaint in a personal action (h), and in cases of ejectment on the title, it shall be lawful for the plaintiff, by such writ, to claim damages for the loss of the mesne rates and profits of the land sought to be recovered; and in case of ejectment for non-payment of rent, such writ shall be endorsed with the full particulars of the rent due, and of all credits to which the defendant shall be justly entitled (i), and may be in the form No. 15 in the Schedule B. to this Act annexed, or to the like effect; and the same proceedings may be had to ascertain whether the writ was issued by the authority of the attorney whose name was contained in, or endorsed thereon, and who and what the plaintiffs are, and their abode, and as to staying the proceedings upon writs issued without authority, as in the case of writs in personal actions. (f) The writ should state the names of all the persons in whom the title is alleged to be, and proof of title in any one or more of several plaintiffs, is sufficient to entitle a verdict to be entered for such plaintiff or plaintiffs (sect. 203). Until the passing of the 23 & 24 Vict. c. 154, the persons in whom the legal estate in the lands was vested, were necessary parties as plaintiffs in all ejectments; but it is provided by the 52nd section of that Act, that, in ejectments for non-payment of rent, brought by landlord against Form and writ of sumejectment. 15 16 Vict. c. duration of mons in 76, s. 169. Who should be plaintiffs. Plaintiffs in ejectments for non-pay ment of rent. Tenants in common. Striking out plaintiff where name used with out consent. tenant, "the plaintiff's right to sue as such landlord shall not be defeated by proof merely that the legal estate in the rent or lands, is vested in any other person not a party to such suit or proceeding, but who would be a trustee for the plaintiff, provided that the plaintiff was at the time of the institution of such suit or other proceeding, the person substantially and beneficially entitled to the said rent." The 53rd section of the 23 & 24 Vict. c. 154, also provides that, "in any ejectment under the Act, it shall not be necessary to allege or prove the making of any demand or re-entry, or the existence of any clause or condition of re-entry in the lease or other contract, or of any legal reversion expectant on the determination of the same, and subsisting in the landlord, provided a tenancy between the parties shall appear to exist, whether by original contract or by lawful assignment, devise, bequest, or act or operation of law." The writ need not state whether the plaintiffs sue as joint-tenants, tenants in common, coparceners, or otherwise (Elliss v. Elliss, E. B. & E. 81; Lloyd v. Davies, 15 C. B. 78). Tenants in common can recover the entire property in one writ; but each tenant in common may bring a separate ejectment to recover his undivided share of the lands (Denn d. Burgess v. Purvis, 1 Burr. 326; Rowe v. Power, 2 B. & P. N. R. 2). Any person named as a plaintiff without his consent will be struck out of the record on his application, unless it is shown that he is a trustee for one or more of the other plaintiffs (Montgomery v. Montgomery, 6 Ir. C. L. R. 522; Sullivan v. Sullivan, ibid. 523); and the Court has no jurisdiction to compel a person under such circumstances to allow his name to be used, on receiving an indemnity against costs (ibid.). By the 190th G. O., 1854, the taxing officer is empowered to allow a fee to counsel upon a case to Cease to ad- advise as to parties, or otherwise, previously to the institution of any action of ejectment, wherever he may consider such case to have been necessary. (9) See sect. 194, note (b), as to the persons to whom the writ should be directed. vise as to parties. Date, indorsement, and renewal. Indorsement on ejectments for non-payment of rent. Mesne rater. (h) The provisions in respect of the date of the writ (sect. 8, p. 5, ante), the indorsement of the attorney's name and address (sect. 12, p. 11, ante), and the renewal of the writ (sect. 28, p. 23, ante) in personal actions, are applicable to writs of summons and plaint in ejectment; and sect. 227 provides that all other provisions contained in the Act shall extend to ejectments, mutatis mutandis, unless where the same shall not be applicable, or where the subject matter thereof is otherwise provided for. (i) By the 23 & 24 Vict. c. 154, s. 60:-"Every summons and plaint in ejectment in the Superior Courts, and civil bill process or ejectment in the Court of the Chairman, for non-payment of rent, shall contain, or have indorsed thereon, a statement of the amount claimed to be due to the landlord for rent, after all just and fair allowances up to the time of bringing such ejectment, and the times at which such rent accrued due, and that if the amount thereof, together with a sum for costs not exceeding (in the case of such summons and plaint) £1 10s. ; and in the case of a civil bill process, 108., be paid to the plaintiff or his attorney, or known agent, or receiver, within ten days from the service of such summons or process, all further proceedings will be stayed; and upon payment or tender within the time so mentioned of the sum so claimed, and costs to the plaintiff or his attorney, or known agent, or receiver, all further proceedings in respect of the rent claimed shall and be stayed accordingly." cease, This section enables the plaintiff to include a claim for mesne profits in an ejectment on the title, and for rent in an ejectment for non-payment of rent. Prior to this Act, damages for the loss of the mesne rates and profits of the lands comprised in the ejectment were recovered by a subsequent action of trespass, in which the judgment in ejectment was conclusive evidence of the plaintiff's title. If there is no defence, or only a partial defence, the plaintiff is entitled to judgment for the possession of the lands, but the rent or mesne rates, and the costs of the ejectment, can only be recovered by an independent action (sect. 201). If a defence be filed, but the defendant fails to appear at the trial, the plaintiff is entitled to a verdict, without proof of his title, and may prove and recover the amount of the rent due, or the damages sustained by reason of the mesne rates and profits (sect. 205). The 77th section of the 23 & 24 Vict. c. 154, enables the plaintiff, in ejectments for non-payment of rent, or for overholding, to have the mesne rates assessed up to the time of the trial. That section provides, that "in case of any ejectment for non-payment of rent, or for overholding any premises, in any of the Superior Courts of Law, where the summons and plaint shall include a claim for rent or mesne profits, the plaintiff, on proof of his right, may recover the possession of the whole or some part of the premises mentioned in the summons and plaint in ejectment, and the rent or mesne profits claimed thereby, and also the further mesne profits thereof, which might have accrued, from the day to which the mesne rates claimed have been calculated, or from the day on which the rent, for the non-payment of which the ejectment shall be brought, fell due, to the day of such trial, or some preceding day, to be specified." 196. The venue shall be laid in the county in which the lands are situate, but the Court or a Judge may, on the application of either party, order that the trial shall take place in any county or place other than that in which the venue is laid; and such order being suggested on the abstract, the trial may be had accordingly (j). Where no defence. Where defendant does not appear at trial. Assessment of mesne rates in ejectments for non-payment of rent, and olding for over Trial may be ordered to 15 & 16 Vict. when made. (j) An application under this section should not be made before issue Application joined (Guardians of Youghal Union v. Atkinson, 9 Ir. C. L. R., Ap. 17). Where after judgment had been marked, it appeared that the venue had been laid by mistake in a county different from that in which the lands were situate, the Court refused to change the venue (The Grocers' Company v. Coll, 9 Ir. C. L. R. Ap. 8). ejectment. c. 76, s. 170. 197. The writ shall be served in the same manner as an Service of ejectment has heretofore been served, or in such manner as 15 & 16 Vict. the Court or a Judge shall order; and in case of vacant possession, by posting a copy thereof upon the door of the dwelling house or other conspicuous part of the premises (k). (4) In ejectments on the title, the writ must be served on every person in actual possession of the lands, sought to be recovered or any part thereof, or in receipt of the rents and profits of the same or any part thereof, or who Persons to be served. Ejectment on the title. Mode of service. Ejectments for non-payment of rent. shall claim to be entitled to the present receipt of the same, or of any part thereof (184th G. O., 1854). In ejectments for non-payment of rent, brought under the provisions of the Landlord and Tenant Law Amendment Act (Ireland), 1860, it is unnecessary to serve with the summons and plaint any person other than the person or persons in the actual possession of the lands as tenant or under-tenant (23 & 24 Vict. c. 154, s. 55); and by s. 74 of the same Act, it is provided that "the summons and plaint in ejectment for the recovery of any lands or premises holden over after the expiration or determination of the term or interest of any tenant thereof, shall and may be served upon the like persons, and in the like manner as herein before required in case of an ejectment for .non-payment of rent under this Act." The 188 G. O., 1854, provides, that "the writ of summons and plaint in ejectment may be served personally on any party to be served therewith, wherever he may be found within the jurisdiction, or at his usual place of residence wherever it may be within the jurisdiction, on his servant, or on his wife, child, or other member of his family, being an inmate of the house and aged sixteen years and upwards; and in all cases where such service shall not have been effected, an application may be made to the Court to substitute service, or have any service already had deemed good." When the defendant is resident out of the jurisdiction, an order may be obtained to substitute service by serving the agent or representative of the defendant within the jurisdiction (Poole v. Griffith, 14 Ir. C. L. R. Ap. 20). It has been held, that the 34th section, p. 29, ante, does not apply to actions of ejectment; but the Court has power to substitute service of the writ in such actions under its general jurisdiction and the provisions of the present section (Poole v. Griffith, ubi supra). When the tenant absconds, or keeps out of the way to avoid service, or cannot be discovered, the writ should be served on any person residing on or occupying the premises; or in the case of vacant possession a copy of the writ should be posted on the door of the dwelling-house, or upon some conspicuous part of the premises (Fagan v. Shannon, 2 Ir. Jur. N. S. 333). The 56th section of the 23 & 24 Vict. c. 154, enacts, that "service of the summons and plaint or civil bill process in ejectment for non-payment of rent on any person in the actual possession as tenant or under-tenant of the premises sought to be recovered, or any part of them, shall be effected either by personal service of the summons and plaint or civil bill process on such tenant or under-tenant at any place in Ireland, or by leaving a copy thereof with the wife, child, father, mother, brother, or sister of the party, or with any servant or clerk of the said party, at his dwelling-house or office or place of business (the person with whom such copy shall be left being of the age of sixteen years or upwards), or in such other manner as shall appear to the Court or Judge thereof to be sufficient." The 57th section of the same Act provides that, "in case there shall be no person in the actual possession of the premises as tenant or under-tenant on whom service of such summons and plaint or civil bill process in ejectment can be effected, it shall be lawful instead thereof to affix a copy of such summons or civil bill process on some conspicuous part of the premises, and also on the usual place for affixing notices in the nearest market town to the said lands: Provided, however, that in such case, before any decree or judgment by default shall be given, the Court or a Judge shall be satisfied that there was no person in actual possession on whom other service might have been |