Upon death

before trial of defendant

who defends separately for part.

for money, against the legal representatives of the deceased defendant or defendants.

198. In case of the death before trial of one of several defendants in ejectment, who defends sepain ejectment, rately 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 of the portion of the property for which they defend.

Upon death of defendant defending separately for property in respect of which others

also defend.

Claimant may discontinue by notice.

Discontinu

ance.

The proceedings under s. 196 may be taken with reference to that part of the premises for which the defendant, who has died, defended.

199. 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.

200. 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 Schedule (A.) to this act annexed, marked No. 18, or to the like effect.

A rule to discontinue was formerly granted in ejectment, only by special leave of the court, which would not be given in a hard case; as, after a special verdict, to enable the plaintiff to adduce fresh proof in contradiction. The leave of the court is not now necessary in the case of a sole claimant discontinuing against one of several defendants, but it is required in the case of one of several claimants (s. 201), and perhaps in the case of a sole

claimant discontinuing against a sole defendant or all the defendants.

201. 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.

202. If after appearance entered the claimant, without going to 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 ejectment may give twenty days notice to the claimant to proceed to trial at the sittings or assizes next after the expiration of the notice; and if the claimant afterwards neglects to give notice of trial for such sittings or assizes, 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 Schedule (A.) to this act annexed, marked No. 19, and recover the costs of defence.

The procedure under this section is similar to that under s. 101,

ante.

203. A sole defendant or all the defendants in Defendant may confess ejectment shall be at liberty to confess the action as the action. to the whole or part of the property, by giving to such claimant a notice headed in the court and 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 Schedule (A.) to this act annexed, marked No. 20, or to the like effect.

This section provides for the case of a confession (semble), after appearance to the writ; for judgment by default may be signed on non-appearance (s. 177, ante).

This notice is not a cognovit within the 1 & 2 Vict. c. 110, s. 9. The notice should be, as nearly as possible, in the words of the section; be entitled in the court and cause; and be attested by an attorney, stating himself to be "attorney for the defendant."

A judgment signed on a confession given by a tenant in possession, by collusion with the claimant, will be set aside at the in

Confession by one of several de

fendants de

fending se. parately for part.

Confession by one of

several de

defend for same property.

stance of the landlord, so that he may be admitted to defend (Doe d. Locke v. Franklin, 7 Taunt. 9; Doe v. Dyer, 3 Dowl. 696).

The R. G., H. T. 1853, rr. 155-157, do not seem to apply to notices under this section.

204. 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 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.

205. In case one of several defendants in ejectment, who defends separately in respect of property for fendants who 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.

Formal entry

of judgment

on the roll unnecessary

for purposes

of execution.

206. It shall not be necessary before issuing execution upon any judgment under the authority of this act to enter the proceedings upon any roll, but an incipitur thereof may be made upon paper, shortly describing the nature of the judgment according to the practice heretofore used, and judgment may thereupon be signed, and costs taxed, and execution issued, according to the practice heretofore used: provided nevertheless, that the proceedings may be entered upon the roll whenever the same may become necessary for the purpose of evidence, or of bringing error, or the like.

Although this section is placed among the sections of this statute which relate exclusively to the action of ejectment; it applies, it will be observed, to any judgment under the authority of this act, and, consequently, of the other acts in which this is incorporated. It did not however apply to judgments in replevin, nor to judgments signed on the return of writ of trial, nor in suits removed by certiorari from inferior courts. But see now R. G., H. T. 1853, rr. 70, 71; whereby uniformity of procedure upon judgments is provided.

See as to entering a judgment, Frewin v. Lethbridge (7 W. R. 442, Ex.), and note to s. 139, ante.

See as to taxing costs, R. G., H. T. 1853, rr. 59-61; and Field v. Partridge (7 Exch. 689).

207. The effect of a judgment in an action of Effect of ejectment under this act shall be the same as that of judgment. a judgment in the action of ejectment heretofore used.

It has therefore been held that a defendant in execution for costs, is entitled to his discharge at the expiration of one year under 48 Geo. 3, c. 123 (Humphreys v. Franks, 3 C. B., N. S. 765).

The effect of a judgment in ejectment is fully stated in Aslin v. Parker (2 Burr. 665). It is conclusive evidence of the title of the claimant to all the mesne profits accruing subsequently to the date of the claim alleged in the writ, which must be laid subsequent to the time when the right of entry accrued. See Doe v. Wellsman (2 Exch. 368); and the judgment of Parke, B. in Turner v. Coalbrook Steam Company (5 Exch. 932): see also Wilkinson v. Kirby (15 C. B. 430); and Barnett v. Guildford, Earl of, (L. J. 24, Ex. 81).

bail in error in ejectment.

208. Error may be brought in like manner as in Error and other actions upon any judgment in ejectment, after a special verdict found by the jury, or a bill of exceptions, or by consent after a special case stated, but, except in the case of such consent as aforesaid, execution shall not be thereby stayed, unless the plaintiff in error shall, within four clear days after lodging the memorandum alleging error, or after the signing of the judgment, whichever shall last happen, or before execution executed, be bound unto the claimant, who shall have recovered judgment in such action of ejectment, in double the yearly value of the property, and double the costs recovered by the judgment, with condition, that if the judgment shall be affirmed by the Court of Error, or the proceedings in error be discontinued by the plaintiff therein, then the plaintiff in error shall pay such costs, damages and sum or sums of money as shall be awarded upon or after such judgment affirmed or discontinuance; and it shall be lawful for the court wherein execution ought to be granted upon such affirmation or discontinuance, upon the application of the claimant, 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 tested 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.

This section is partly a re-enactment and adaptation to the new action of ejectment of the stat. 16 & 17 Car. 2, c. 8, ss. 3, 4. к.

H

Tenants to give notice of ejectment to landlord.

In what cases notice must

be given.

Proceedings

in ejectment by landlord for nonpayment of rent.

It requires bail in error to be given only by the defendant below. The claimant, therefore, may bring error without giving bail; see s. 151, and note, ante.

The bail in error (16 & 17 Car. 2. c. 8), were not chargeable in an action on the recognizance with mesne profits, where they had not been ascertained by a writ of inquiry (Doe v. Sawyer, 2 M. & S. 247).

209. Every tenant to whom any writ in ejectment shall be delivered, or to whose knowledge it shall come, shall forthwith give notice thereof to his landlord, or his bailiff or receiver, under penalty 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.

The court will, in some instances, set aside regular judgments at the instance of a landlord, on the ground that he has not received notice of the proceeding (s. 172, n., ante).

The object of this section is to insure his obtaining immediate information from the tenant, so that he may enter an appearance if necessary (s. 172).

The improved or rack rent here mentioned is not the rent reserved, but such a rent as might be fairly agreed on at the time of the service of the writ, in case the premises were then to be let (Croker v. Fothergill, 2 B. & A. 652).

The 11 Geo. 2, c. 19, s. 12, of which this section is a reenactment, has been held to extend to those cases only where ejectments are brought which are inconsistent with the landlord's title; and therefore a tenant to a mortgagor, who did not give him notice of an ejectment brought by the mortgagee to enforce an attornment, was held not to be liable to the penalties there mentioned; the act expressly permitting an ejectment to be brought for such a purpose (Buckley v. Buckley, 1 T. R. 647).

Though the 4 Anne, c. 16, and 11 Geo. 2, c. 19, have almost entirely dispensed with the necessity of such a proceeding, an attornment is still desirable where a mortgagor in possession has made a lease after the mortgage. The mortgagee cannot, by merely giving the lessee notice, entitle himself to distrain for rent; and attornment is necessary to create between them the relation of landlord and tenant (Evans v. Elliot, 9 A. & E. 342).

210. In all cases between landlord and tenant, as often as it 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 re-enter for the nonpayment thereof, such landlord or lessor shall and may, without any formal demand or re-entry, serve a writ in ejectment 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