Ascertain 206. In ejectment for non-payment of rent, where judgment of rent. ment shall have gone by default (t) or the defendant shall not appear at the trial, it shall be sufficient, for the purpose of ascertaining the amount of the rent due, and to satisfy the provisions of the Statutes with respect to the ascertaining the rent, that an affidavit of the plaintiffs, or one of them, or their or his agent, to the effect that an amount of rent not less than one year's rent, and specifying the same, was due at the time of the commencement of the action, after all just allowances shall have been made. Judgment and execution upon finding for plaintiff., 15 & 16 Vict. c. 76, s. 185. Judgment and execution upon finding for defendant. 15 & 16 Vict. c. 76, s.186. (t) See 23 & 24 Vict. c. 154, s. 58, ante, p. 224. A judgment by default is merely for the recovery of the lands, and the rent and costs can only be recovered by a separate action, vide s. 201, ante. 207. Upon a verdict for the plaintiff, judgment may be signed, and execution issued for the recovery of possession of the property, or such part thereof as the jury shall find the plaintiff entitled to, and in case of an ejectment on the title, for such damages for loss of mesne rates and profits as shall be found by the said jury, and in case of ejectment for nonpayment of rent for recovery of so much rent as shall be found to be due, and costs, within such time, not exceeding the fifth day in term after the verdict, as the Court or Judge before whom the cause is tried shall order, and if no such order be made, then on the fifth day in term after the verdict, or within fourteen days after such verdict, whichever shall first happen (u). (u)"Within fourteen days" means upon the expiration of fourteen days (O'Meara v. Foley, Ir. R. 4 C. L. 116); see also s. 127, unte. 208. Upon a verdict for the defendants, or any of them, or upon a nonsuit, judgment may be signed, and execution issue for costs against the plaintiffs named in the writ, within such time, not exceeding the fifth day, in term after the verdict or nonsuit, as the Court or Judge before whom the cause is tried shall order, and if no such order be made, then on the fifth day in term after the verdict or nonsuit, or within fourteen days after such verdict, whichever shall first happen (v). (v) "Within fourteen days" would appear to be equivalent to "after the expiration of fourteen days" (O'Meara v. Foley, Ir. R. 4 C. L. 116), see note (u), supra. ejectment. 209. Upon any judgment in ejectment there may be either Execution in one or several writs of execution for the recovery of the pos- 45 & 16 Viet. session, and for the damages or the rent ascertained to be due, c. 76, s. 187. and costs, at the election of the plaintiff (w). (w) Where the plaintiff in an ejectment on the title obtained, besides a verdict for the possession, a verdict for a less sum than £10 for mesne rates, it was held that, under the 11 & 12 Vict. c. 28, he was not entitled to issue a ca. sa. on the judgment obtained by him (Wright v. Langford, Ir. Rep. 3 C. L. 418). The plaintiff may either issue a writ of habere facias possessionem and a separate writ of fi. fa. or ca. sa. for the rent or mesne rates and costs, or he may sue out a writ of habere adding a fi. fu. or ca. sa. to it, as the case may be. joint owners, 15 & 16 Vict. c. 76, s. 188. 210. In case of such an action being brought by some or Defence by one several persons entitled as joint tenants, tenants in common, or coparceners, any joint tenant, tenant in common, or coparcener in possession may set forth in his defence that he is such joint tenant, tenant in common, or coparcener, and defends as such, and admits the right of the plaintiff to an undivided share of the property, stating what share, but denies any actual ouster of him from the property, and upon the trial of such an issue the additional question of whether an actual ouster has taken place shall be tried (x): (x) As to what amounts to actual ouster, see Doe d. Hellings v. Bird, 11 Fast, 49; Doe d. Wawn v. Horn, 5 M. & W. 564; Fairclaim v. Shackleton, 5 Burr. 2604. 211. Upon the trial of such issue as last aforesaid, if it shall be found that the defendant is joint tenant, tenant in common, or coparcener with the plaintiff, 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 (y). (y) As to what constitutes actual ouster, see note (x), supra. Judgment against joint owners. 76, s. 189. 15 & 16 Vict. 212. The death of a plaintiff or defendant in ejectment shall Action not to not cause the action to abate (3). abate by death of (z) See s. 155, ante. plaintiff. 15 & 16 Vict. c. 76, s. 190. Suggestion of death of plaintiff. 15 76, s. 191. 213. In case the right of a deceased plaintiff shall survive to another plaintiff, a suggestion may be made of the death, 16 Vict. c. 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 plaintiff; and if such suggestion shall be made before the trial, then the plaintiff 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 plaintiff (a). Death before trial of plaintiff where right does not survive. 15 416 Vict. C 76, s. 192. Death of sole plaintiff where right does not survive. 15 76, s. 194. (a) See sect. 155, ante. 214. In case of the death before trial of one of several plaintiffs whose right does not survive to another or others of them, where the legal representative of the deceased plaintiff 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 plaintiff for such share of the property as he is entitled to, and costs (b). (b) The legal representatives of one of several plaintiffs whose right does not survive, may become parties under sect. 215. 215. In case of the death of a sole plaintiff, or before the trial of one of several plaintiffs whose right does not survive to another, or others of them, the legal representative of such 16 Vict. c. plaintiff may, by 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 plaintiff, and such judgment shall follow upon the verdict in favour of or against the person making such suggestion, as herein before provided, with reference to a judgment for or against such plaintiff; and in case such suggestion in the case of a sole plaintiff be made after a verdict for the plaintiff, and before execution executed by delivery of possession thereupon, and such suggestion be denied by the defendant within eight 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; and in case the said suggestion shall not be denied within the time aforesaid, the said personal representative shall, on producing an affidavit of the service of the notice, be entitled to proceed to judgment and execution in his own name (c). (c) The provisions of this section only apply to proceedings before final judgment (Jones v. Finlay, 3 Ir. Jur. N. S. 180). See also, sect. 157, ante. Liberty to enter a suggestion may be obtained by an ex parte motion (Mahony v. Lewis, 6 Ir. C. L. R. 475). 216. In case of a verdict for two or more plaintiffs, if one of such plaintiffs die before execution executed, the other may, whether the legal right to the property shall survive or not, suggest 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 (d) of the deceased plaintiff, or the liability of the surviving plaintiff to such legal representative; and the entry and possession of such surviving plaintiff, 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. (d) See sect. 218, note (ƒ), infra. 217. In case of the death before or after judgment of one of several defendants in ejectment who defend jointly, a suggestion may be made of the death, which suggestion shall not be traversable, but only be subject to be set aside if untrue, and the action may proceed against the surviving defendant to judgment and execution (e). (e) Where all the defendants have been served, and one of them dies without having taken defence, leave will be granted to enter a suggestion of his death, in accordance with the former practice, this case not being provided for by the present Act (Denny v. Jeffcott, 6 Ir. Jur. O. S. 282; Kelly v. Caldwell, 7 Ir. C. L. R. 125; Hull v. Collins, 5 Ir. Jur. N. S. 172. When a party unnecessarily made a defendant was dead at the time of service, the Court gave permission to strike out his name (Douglas v. Moore, 8 Ir. L. C. R. App. vi.). Upon death of all of the defendants before trial. c. 76, s. 196. 218. In case of the death of a sole defendant or of all the defendants in ejectment before trial, a suggestion may be 15 & 16 Vict. made of the death, which suggestion shall not be traversable, but only be subject to be set aside if untrue; and the plaintiffs shall be eniitled to judgment for recovery of possession of the property, unless some other person shall take defence within a time to be appointed for that purpose by order of the Court or a Judge, to be made upon the application of the plaintiffs; and it shall be lawful for the Court or a Judge, upon such suggestion being made, and upon such application as aforesaid, to order that the plaintiffs 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 (f) of the deceased defendant, shall within such time defend the action; and such order may be served in the same manner as the writ; and in case such person shall take defence, the same proceedings may be taken against such new defendant as if he had originally appeared and defended the action; and if no defence be made, then the plaintiff shall be at liberty to sign judgment pursuant to the order. Death before trial of defendant in ejectment (ƒ) The words "legal representative" signify in cases where the lands are freehold of inheritance, the person who as heir or devisee succeeds to the deceased's rights; or in case the deceased has been tenant for life under a settlement, the person next in remainder (Hovenden v. Marshall, 2 Ir. Jur. N. S. 378). When the sole defendant died, and no will could be found to have been lodged in the proper Courts, the Court made an order requiring the parties into whose possession the property of the deceased had come to enter defence within a specified time, or judgment to be entered in default (Bolton v. Cullin, 2 Ir. Jur. N. S. 368). 219. In case of the death before trial of one of several defendants in ejectment who defends separately for a portion who defends of the property for which the other defendant or defendfor part. 15& ants 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 plaintiffs may proceed against the surviving defendants in respect of the portion of property for which they defend (g). 16 Vict. c. 76, s.198. (9) Under s. 218 proceedings may be taken with reference to that part of the premises for which the defendant who has died has defended. |