day after verdict at latest; and that in a cause tried in vacation, he should be at liberty to issue execution on the fifteenth day after the verdict at latest. The court, or the judge before whom the cause is tried, may order execution to issue at any time not more distant than the fifth day of the first term after the verdict. This section differs, it will be observed, from s. 120, which expressly authorizes a judge at chambers to order execution of issue. If it is intended to apply for a new trial, or if a bill of exceptions is tendered at the trial, the judge at the trial ought to be applied to, to order execution to be stayed until the fifth day of the following term. The costs in ejectment now form part of the judgment, as in other actions; except in the case of judgment on default of appearance to writ. Formerly, they were only recoverable by execution on the consent rule, under 1 & 2 Vict. c. 110. See as to costs, where the claimant recovers part only of the premises claimed, Alcock v. Wilshaw (24 Jur. 628, Q. B.). A defendant who has been in execution for the costs, in an action of ejectment, for more than twelve calendar months, is entitled to his discharge under 48 Geo. 3, c. 123 (Humphreys v. Pranks, 3 C. B., N. S. 765). for defend 186. Upon a finding for the defendants, or any of Judgment them, judgment may be signed, and execution issue for upon finding costs against the claimants named in the writ, within ant. 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. See observations on s. 185, supra. As to nonsuit, see Pl. R., T. T. 1853, r. 29, post. 187. 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. The claimant may either issue a writ of habere facias possessionem, and a separate writ of fi. fa. or ca. sa. for the costs, or he may sue out, as formerly, a writ of habere, adding a fi. fa. or ca. sa. to it, as the case may be. The suing out of one, or of several writs, depends upon the fact of the defendant being resident, or having goods and chattels in the same county, as that in which the property of which possession is to be given, is situate. The writ of habere can only issue into the county where the property recovered by the judgment lies; the writ of ca. sa. or fi. fa. may issue into any county (s. 121). The writ of habere, like the writ of fi. fa., is returnable immediately after the execution thereof (Doe d. Hudson v. Roe, L. J. 21, Q. B. 359). These writs are prepared, as formerly, by the claimant, and sealed on production of the incipitur (s. 206). Execution for recovery may be joint Defence by joint tenants, tenants in common, or coparceners. Actual ouster. Trial and judgment in ejectment against joint As to the sheriff's fees on executing a writ of possession, see s. 123, ante. 188. In case of such an action being brought by some or one of several persons entitled as joint tenants, tenants in common, or coparceners, 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 issue in the same manner as the notice limiting the defence, and upon the trial of such an issue the additional question of whether an actual ouster has taken place shall be tried. The Formerly, in ejectment by one joint tenant against another, the consent-rule limited the confession of the defendant to that of lease and entry. Actual ouster must have been proved. ouster must still be proved in order to obtain judgment, if the joint-tenant in possession gives the notice mentioned in this section. If a tenant in possession claims the whole, and denies possession to the other, this is evidence of an ouster (Doe v. Bird, 11 East, 49). So where three out of four co-tenants authorized a railway company to use the land, such user was held to amount to an ouster (Doe v. Horn, 5 M. & W. 564). Before the stat. 3 & 4 Will. 4, c. 27, a bare perception of the profits by one tenant in common for twenty-six years was no ouster (Fairclaim v. Shackleton, 5 Burr. 2604), the possession of one joint tenant, coparcener, &c. being at common law the possession of all. By s. 12 of that statute it is enacted, that the possession of land or receipt of rent in entirety by one of several coparceners, joint tenants, or tenants in common, is not to be deemed the possession or receipt of the others. It has been decided, in Ireland, that this section does not dispense with proof of actual ouster (O'Sullivan v. M'Swiney, 1 Longf. & T. 111). 189. 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 claimant, then the question whether an actual ouster has taken common and place shall be tried, and unless such actual ouster tenants, tenants in coparceners. 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. 190. The death of a claimant or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned. This and the following enactments permitting suggestions to be entered of the death of parties in ejectment, are rendered necessary by the abolition of the fictitious John Doe and Richard Roe, who, among other attributes, possessed a species of legal immortality, so that the numerous actions in which they were parties never abated. Not being parties to the action, the liability for costs of the real claimants and defendants in the old action of ejectment arose exclusively from the consent rule; this liability was personal, and binding only to the extent of creating a liability to attachment. A necessary and not a very righteous consequence followed, that the undertakings in the consent rule as to costs could not be enforced against the personal representatives of a deceased party (Doe d. Harrison v. Hampson, 4 C. B. 745). The parties to the new action of ejectment are liable for costs to each other, as in other actions; and this action, which at common law would abate by the death of either party, may now be continued by and against survivors and representatives, as in the case of personal actions. The Court of Exchequer refused to hear an argument upon a special case after verdict, until a suggestion of the claimant's death had been entered (Dennison v. Holliday, 1 H. & N. 61). Action not to abate by death. upon death 191. In case the right of the deceased claimant Proceeding shall survive to another claimant, a suggestion may before trial be made of the death, which suggestion shall not be where right traversable, but shall only be subject to be set aside survives. 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. A suggestion of the death of a claimant may be made, as in the case of the death of a sole plaintiff (s. 136, ante). upon death 192. In case of the death before trial of one of Proceedings several claimants, whose right does not survive to before trial, 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 where right vive. does not sur Upon death of one of several claimants having ob dict. 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 claimant for such share of the property as he is entitled to, and costs. The legal representatives of one of several claimants may become parties under s. 194. 193. In case of a verdict for two or more claimants, if one of such claimants die before execution executed, the other claimant may, whether the legal right to the tained a ver- 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 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. Proceedings in case of death of claimant, where right does not survive. 194. In case of the death of a sole claimant, or before trial, of one of several claimants, whose right does not survive to another or others of the claimants, the legal representative of such claimant 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 claimant, and such judgment shall follow upon the verdict in favour of or against the person making such suggestion, as hereinbefore provided with 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 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. See as to costs, Gray on Costs, p. 198. upon death of one of several joint defendants. 195. In case of the death, before or after judgment, Proceedings 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. of all the de before trial. 196. In case of the death of a sole defendant, or of Upon death all the defendants in ejectment, before trial, a sug- fendants in gestion may be made of the death, which suggestion ejectment shall not be traversable, but only be 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 application as aforesaid, to order that the claimants shall be at liberty to sign judgment within such time as the court or 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. fendants in after verdict. 197. In case of the death of a sole defendant, or Upon death of all the defendants in ejectment after verdict, the of all declaimants shall nevertheless be entitled to judgment ejectment 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 |