defendant

property, in

which others

c. 76, s.199.

220. In case of the death before trial of one of several de- Death of fendants in ejectment who defends separately in respect of defending property for which surviving defendants also defend, it shall separately for be lawful for the Court or a Judge, at any time before the respect of trial, to allow the person at the time of the death in posses- also defend. sion of the property, or the legal representative of the deceased 15 16 Vict. defendant, to 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 plaintiff suggesting the death in manner aforesaid may proceed against the surviving defendant or defendants to judgment and execution.

recovery

Death of all

after verdict.

c. 76, s. 197.

221. In case of the death of a sole defendant or of all the defendants in ejectment, after verdict, the plaintiffs shall defendants nevertheless be entitled to judgment as if no such death had 15 & 16 Vict. taken place, and to proceed by execution for 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 (h).

(h) See ss. 159, 160, ante.

222. The plaintiff in ejectment shall be at liberty at any time before verdict or judgment against him 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, signed by the plaintiff or his attorney, stating that he discontinues such action; and thereupon the defendant to whom such notice is given shall, by filing an affidavit of the service of such notice, be entitled to and may forthwith sign judgment for costs in the Form No. 21. contained in the Schedule B. to this Act annexed, or to the like effect; and any one of several plaintiffs desirous to discontinue 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 plaintiffs (i).

(i) Under the provisions of this section a sole plaintiff may discontinue as to one or more of the defendants without leave, but one of several plaintiffs desirous to discontinue must apply to the Court or a Judge to have his name struck out of the proceedings.

Defendant may confess

the action.

223. A sole defendant or all the defendants in ejectment shall be at liberty to confess the action as to the whole or c. 76, ss. 203, part of the property, by giving to such plaintiff a consent for

15 & 16 Vict.

204.

Confession by one defend

Vict. c. 76, s. 205.

judgment (j), headed in the Court and cause, signed (k) by the defendant or defendants, such signature to be attested by his or their attorney; and thereupon the plaintiff may forthwith sign judgment and issue execution for the recovery of possession and costs in the Form No. 22. contained in the Schedule B. to this Act annexed, or to the like effect; and in 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 plaintiff's title to such portion, he may give a like consent for judgment to the plaintiff; and thereupon the plaintiff 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.

(j) No consent for judgment containing any stay of execution can be filed without the consent of the plaintiff (46 G. O. 1854).

(k) Where more than one of several defendants had taken defence and subsequently had given a consent for judgment signed by their attorney while the other co-defendants went to trial it was held that the consent for judgment being valid independently of the present Act was regular, and that judgment should be marked accordingly (Fouhy v. Murphy, 6 Ir. Jur. O. S. 264).

224. In case one (1) of several defendants in ejectment ant. 15 & 16 who defends separately in respect of property for which other defendants also defend shall be desirous of confessing the plaintiff's title, he may give a like consent for judgment; and thereupon the plaintiff 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.

(1) See Fouhy v. Murphy, ubi supra.

225. The effect of a judgment in ejectment under this Act shall be the same as that of a judgment in an action of ejectment heretofore used (m).

(m) In O'Donnell v. Ryan, 7 Ir. Jur. O. S. 127, it was held that the action of ejectment having been assimilated to other actions, a judgment in it was

equally conclusive between the parties. However, by the 94th section of the C. L. P. Act, 1856, it is declared that a judgment in an action of ejectment under the present Act shall have no greater effect than a judgment in an ejectment before the passing of the 13 Vict. c. 18 (The Process and Practice Act).

As to the effect of a judgment in ejectment under the old law, see Aslin v. Parker, 2 Burr. 665. In an action for mesne profits it is conclusive evidence of the title of the plaintiff from the day named in the writ or found by the jury (Doe v. Wellsman, 2 Exch. 368; Turner v. Coalbrook Steam Co., 5 Exch. 932; Wilkinson v. Kirby, 15 C. B. 430; Earl Listowell v. Green, 3 Ir. L. R. 205; Doe v. Wright, 10 A. & E. 763).

mesne rates

Vict. c. 76, 8

226. If the judgment in ejectment shall be affirmed by the Inquiry as to Court of Error, or the proceedings in error be discontinued after writ of by the plaintiff therein, it shall be lawful for the Court error. 15 & 16 wherein execution ought to be granted, upon such affirma- 208. tion or discontinuance, upon the application of the plaintiff, to issue a writ to inquire as well of the mesne profits as of the damage by any waste committed after the first judgment in ejectment, which writ may be dated on the day on which it shall issue, and be returnable immediately after the execution thereof, and upon the return thereof judgment shall be given, and execution awarded for such mesne profits and damages, and also for costs of suit.

227. All other provisions herein contained shall extend to ejectments, mutatis mutandis, unless where the same shall not be applicable, or where the subject matter thereof shall have been herein otherwise provided for.

General pro

Visions to

apply to

ejectments.

With respect to the proceedings for recovery of goods and Action for chattels by way of replevin (a):

replevin of goods.

replevin to be

summons and

228. Where any party whose goods or chattels have been Action for taken or distrained shall dispute the validity of such taking commenced or distress, and shall be desirous of proceeding for the re- by writ of covery of such goods and chattels in any of the said Superior plaint. Courts, such party may commence a personal action for the recovery of the goods or chattels so taken or distrained by a writ of summons and plaint, which writ of summons shall, in addition to any particulars herein before required in an ordinary writ of summons, state the particulars of the property taken or distrained, and the place where such taking, seizure, or distress shall have been made (b), and shall be served by delivering a copy or copies thereof to the defendant or defendants, or to any agent or other person acting for him or them

Replevin.

in making such seizure or distress, or in keeping the goods and chattels so taken or distrained, in the manner hereinbefore provided in respect of an ordinary writ of summons (c).

(a) Replevin is a re-delivery by the sheriff to the owner of his chattels or goods tortiously taken upon surety that he will pursue the action against When it lies. him that took them. The action lies whenever a man tortiously takes goods and chattels of another and detains them (Com. Dig. Pl. 3 K. 1; Shannon v. Shannon, I Sch. & Lef. 324, Allen v. Sharp, 2 Ex. 352); except where the taking has been under an execution issuing out of a Superior Court, or for a debt due to the crown (Bac. Abr. Tit. Replevin, D. Rex v. Oliver, Bunb. 14). It lies, however, only in cases where the goods have been taken by the defendant, and the action cannot therefore be brought for a mere detention (Shannon v. Shannon, ubi supra; Mennie v. Blake, 6 E. & B. 842, 846).

In cases of ailment.

Against

In practice it is not usual to have recourse to the remedy except in case3 of illegal distress, and it has even been questioned whether the remedy is properly applicable in any other cases (Mennie v. Blake, ubi supra). Notwithstanding, however, the doubts referred to the words of the present section plainly recognise the remedy as applicable to cases of taking other than under a distress, and numerous cases are to be met with where goods have been restored to the owner by means of a replevin, after having been taken out of his possession otherwise than by distress. Thus where goods had been seized under a civil bill decree the Court refused to quash a replevin issued for the purpose of replevying them (Coote v. Gorman, 3 Law Rec. O. S. 42. 58); and see Osborne v. Swan Bank Co., 17 L. T. N. S. 96. So, also, goods seized under an order of Justices have been replevied (Tyndal v. Reade, Sm. & Bat. 375; Vanderkiste v. Geary, 4 Ir. Jur. O. S. 285); or goods seized for poor rates (Rhymney Railway Co. v. Price, 16 L. T. N. S. 394). Even where goods have been bailed by the plaintiff to the defendant they have been allowed to be replevied (Corscaden v. Stewart, 1 Ir. L. R. 106); and see Reeves v. Morris, 3 Ir. L. R. 484, 491; S. C. Arm. Mac. & Og. 159; but in so far as these cases are authorities to show that replevin lies when goods have found their way into the possession of the defendant by virtue of a contract and without any taking they cannot be supported (Shannon v. Shannon, Mennie v. Blake, ubi supra; Curran v. Sproule, Bl. D. & O. 133). It has been doubted whether a bailee of goods can maintain replevin (Butler v. Bridge, 3 Ir. L. R. 464), but see Bac. Abr. Tit. Replevin, G. H. When goods have been taken by one joint tenant or tenant in common they cannot be replevied (Reeves v. Morris, 2 Jebb & Sym. 344). Replevin cannot be brought when the goods at the time of bringing the replevin are in the plaintiff's possession (Barry v. Purcell, 2 Ir. C. L. R. 373), and the proceedings in such a case will be set aside.

Replevin lies against the party who actually took the chattels, or who whom it lies. ordered the taking; and if taken by one person by the direction of another, the action lies against both or either (Jones v. Johnson, 5 Ex. 862; Mellor v. Leather, 1 El. & Bl. 619). When the plaintiff from whom a mare had been stolen, which was found in the possession of the defendant, who had purchased her from a party accused of having stolen her, had issued a writ of

replevin, under which he had obtained possession of the mare, the Court quashed the writ (Doyle v. Kelly, 4 Ir. L. R. 9).

When a party whose goods have been seized or taken wishes to replevy Procedure in them his first step is to issue a summons and plaint, as pointed out by the replevin. present section. As to the form of the plaint, and the subsequent pleadings and proceedings, see note (b), infra. After issuing the plaint, the plaintiff should next issue a writ of replevin directed to the sheriff, commanding him to replevy the goods; and under this writ the possession of the goods will be restored to the plaintiff upon his giving security (sect. 229, post.) When the pleadings have concluded, either party may furnish the abstract, and serve notice of trial, in case an issue of fact arises, and after verdict the judgment of the Court will be given for the plaintiff or defendant, as the case may be. In the former case the plaintiff will recover his costs, together with £4 48. damages. As to the judgment in the latter case, see note (i), infra.

and plaint

As to non-prossing the plaintiff in replevin, see note (h), infra; and as to the removal of a replevin from an inferior Court, see the 192nd G. O. 1854. (b) The summons and plaint in replevin, as provided by the present Summons section, must, in addition to the particulars required in an ordinary plaint, state the particulars of the property taken or distrained, and the place where the taking, seizure, or distress has been made. The prayer for judgment need not pray a return of the goods, as it is by the process, and not by the judgment of the Court, that the plaintiff obtains their return (Gibbons v. M'Evilly, Ir. R. 1 C. L. 453).

The summons and plaint, or a copy thereof, must be filed within ten days Filing. after service, unless an order to extend the time be obtained; and in default of filing, the defendant may enter a rule under sect. 38, ante (19 & 20 Vict. c. 102, s. 100).

When the summons and plaint has been filed, the defendant should, Pleadings. within the usual time, file a defence in the nature of an avowry. If the defendant justifies the taking as a distress for the arrears of a rent-charge, the defence should aver compliance with the requirements of 9 & 10 Vict. c. 111 (Goggins v. Trench, 10 I. R. C. L. R. 472); but if the distress was for the arrears of rent service, the defence need not aver compliance with these requirements, upon the principle that the general mode of pleading under the statute of avowries is not altered by the 9 & 10 Vict. c. 111; and it therefore lies upon the plaintiff, if he relies upon the fact of those requirements not having been complied with, to plead the non-compliance ( Bewley v. Houghton, 7 Ir. C. L. R. 283). In such a case the defendant might perhaps be ordered to amend his defence under sect. 48, ante. Unless the question of a compliance with the requirements of the Act is specifically raised upon the record the plaintiff cannot at the trial show upon an issue as to whether the goods were taken as a distress, that the requirements in suggestion were not complied with (Murphy v. Stokes, 6 Ir. Jur. O. S. 19). As to the form of defence when the action is not brought in the form of replevin but in trespass, see ante, pp. 77, 78. The plaintiff may be non-prossed in the manner pointed out in section 106, ante, if he do not proceed to trial within one term from that in which or the vacation of which the defence or other subsequent proceeding is filed (19 & 20 Vict. c. 102, 8. 100). As to the nature of the judgment pronounced by the Court in au action of replevin, see section 230, note (i), post.

(c) See ante, pp. 25-34.