Trial and

ejectment

against joint te

nants,' tenants in common,

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.

This was formerly practically effected by confining the consent rule to confession of lease and entry (see Doe d. Gigner v. Roe, 2 Taunt. 397); but an application had to be made to the court or a judge upon affidavits.

(a) See sec. 174.

CLXXXIX. Upon the trial of such issue as last judgment in 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 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.

and coparceners.

Action not

CXC. The death of a claimant or defendant shall to abate by not cause the action to abate, but it may be continued as hereinafter mentioned.

death.

Proceeding upon death

survives.

CXCI. In case the right of the deceased claimant before trial, shall survive to another claimant, a suggestion may where right 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; 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.

before trial,

CXCII. In case of the death before trial of one Proceedings of several claimants, whose right does not survive to upon death another or others of the claimants, where the legal where right representative of the deceased claimant shall not does not become a party to the suit in the manner hereinafter survive. mentioned (a), 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.

(a) See post, sec. 194.

several

obtained a verdict.

CXCIII. In case of a verdict for two or more Upon death claimants, if one of such claimants die before execu- of one of tion executed, the other claimant may, whether the claimants legal right to the property shall survive or not, having 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.

death of

does not

CXCIV. In case of the death of a sole claimant, Proceedings or, before trial, of one of several claimants, whose in case of right does not survive to another or others of the claimant, claimants, the legal representative of such claimant where right may, by leave of the court or a judge, enter a sug- survive. gestion 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

F

upon death of one of

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.

Proceedings CXCV. In case of the death, before or after judgment, of one of several defendants in ejectment, several joint who defend jointly, a suggestion may be made of the defendants. 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.

Upon death

of all the defendants

CXCVI. In case of the death of a sole defendant, or of all the defendants in ejectment, before trial, a in ejectment suggestion may be made of the death, which sugbefore trial. gestion 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

CXCVII. In case of the death of a sole defendant Upon death or of all the defendants in ejectment after verdict, of all dethe claimants shall nevertheless be entitled to judg- ejectment ment as if no such death had taken place, and to pro- after verceed by execution for recovery of possession without diet. 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.

of defendant

defends se

CXCVIII. In case of the death before trial of one Upon death of several defendants in ejectment, who defends before trial separately for a portion of the property for which in ejectthe other defendant or defendants do not defend, the ment, who same proceedings may be taken as to such portion as in the case of the death of a sole defendant (a), part. or the claimants may proceed against the surviving defendants in respect of the portion of the property for which they defend.

(a) See ante, sec. 196.

parately for

defending

in respect

CXCIX. In case of the death before trial of one Upon death of several defendants in ejectment, who defends of defendant separately in respect of property for which surviving separately defendants also defend, it shall be lawful for the for property court or a judge at any time before the trial to allow of which the person at the time of the death in possession of others also the property, or the legal representative of the de- defend. ceased defendant, to appear and defend on such terms as may appear reasonable and just, upon the application of such person or representative; and if

Claimant

notice.

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.

CC. The claimant in ejectment shall be at liberty may discon- at any time to discontinue the action as to one or tinue by 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.

tion by one of several

Discontinu- CCI. In case one of several claimants shall be deance of ac- sirous to discontinue, he may apply to the court or a judge to have his name struck out of the proceedclaimants. ings, 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.

ceeding to

trial after notice.

Judgment CCII. If after appearance entered the claimant, for not pro- 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 (Ă) to this act annexed, marked No. 19, and recover the costs of defence.

This section applies to actions of ejectments commenced before the 24th of October, 1852; Doe d. Leigh v. Holt, 21 L. J. Exch. 335, 8 Exch. R. 130, S. C.