in force in regard to the maintenance and defense of the action. § 25. If the plaintiff, or his agent or attorney, will state Common source on oath, upon the trial, that he claims title through a common source with the defendant, it shall be sufficient for him to show title from such common source, unless the defendant, or his agent or attorney, will deny, on oath, that he claims title through such source, or will swear that he claims title through some other source. § 26. If the action be brought by one or more tenants Joint tenants. in common, or joint tenants against their co-tenants, the plaintiff, in addition to all other evidence which he may be bound to give, shall be required to prove, on the trial of the cause, that the defendant actually ousted such plaintiff, or did some other act amounting to a total denial of his right as such co-tenant. 27. It shall not be an objection to a recovery in any action of ejectment that any one of several plaintiffs do not prove any interest in the premises claimed, but those entitled shall have judgment, according to their rights, for the whole or such part or portion as he or they might have recovered if he or they had sued in his or their name or names only. One of several plaintiffs. several. 28. If the action is against several, and the plaintiff is Action against entitled to recover, he shall recover against all who are in joint possession or claim the title, whether they shall have pleaded separately or jointly. parcels are oc § 29. When the action is against several defendants, if When distinct it appear on the trial that any of them occupy distinct par- cupled. cels in severalty or jointly, the plaintiff shall elect, at the `trial, against which he will proceed; which election shall be made before the testimony in the cause shall be deemed to be closed, and the suit shall be dismissed as to the defendants not so proceeded against. 30. In the following cases the verdict shall be ren- Verdict. dered as follows: First-If it be shown on the trial that all the plaintiffs have a right to recover the possession of the premises, the verdict in that respect shall be for the plaintiffs generally. Second-If it appear that one or more of the plaintiffs have a right to the possession of the premises, and that one or more have not such right, the verdict shall specify for which plaintiff the jury find, and as to which plaintiff they find for the defendant. Third-If the verdict be for any plaintiff, and there be several defendants, the verdict shall be rendered against such of them as were in possession of the premises or as claimed title thereto at the commencement of the action. Fourth-If the verdict be for all the premises claimed, as specified in the declaration, it shall, in that respect, be for such premises generally. Where right xpires. Recovery Ossession. May lamages. Fifth-If the verdict be for a part of the premises described in such declaration, the verdict shall particularly specify such part, as the same shall have been proved, with the same certainty herein before required in the description of the premises claimed. Sixth-If the verdict be for an undivided share or interest in the premises claimed, it shall specify such share or interest; and if for an undivided share in a part of the premises claimed, it shall specify such share, and shall describe such part of the premises as herein before required. Seventh-The verdict shall also specify the estate which shall have been established on the trial, by the plaintiff in whose favor it shall be rendered, whether such estate be in fee or for his own life or for the life of another, stating such lives; or whether it be for a term of years, and specifying the duration of such term. § 31. If the right or title of a plaintiff in ejectment expire after the commencement of the suit, but before trial, the verdict shall be returned according to the fact, and judgment shall be entered that he recover his damages by reason of the withholding of the premises, by the defendant, to be assessed, and that as to the premises claimed, the defendant go thereof without day; and such damages may be thereupon assessed by the court or jury trying the case. of § 32. In cases where no other provision is made, the judgment in the action, if the plaintiff prevail, shall be, that the plaintiff recover the possession of the premises, according to the verdict of the jury, if there was such verdict; or the finding of the court, if the case is tried without a jury; or, if the judgment be by default, according to the description thereof in the declaration, with costs to be taxed. recover Judgment conlusive. Judgment vaated. § 33. The plaintiff recovering judgment in ejectment in any of the cases in which such action may be maintained, shall also be entitled to recover damages against the defendant for the rents and profits of the premises recovered. $ 34. Every judgment in the action of ejectment shall be conclusive, as to the title established in such action, upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of such action, subject to the exceptions hereinafter named. $35. At any time within one year after a judgment, either upon default or verdict in the action of ejectment, the party against whom it is rendered, his heirs or assigns, upon the payment of all costs recovered therein, shall be entitled to have the judgment vacated, and a new trial granted in the cause. If the costs are paid and the motion therefor is filed in vacation, upon notice thereof being given to the adverse party, or his agent or attorney, or the officer having any writ issued upon such judgment, all further proceedings thereon shall be stayed till otherwise ordered by the court. The court, upon subsequent application, made within one year after the rendering of the second judgment in said cause, if satisfied that justice will thereby be promoted, and the rights of the parties more satisfactorily ascertained and established, may vacate the judgment, and grant another new trial; but no more than two new trials shall be granted to the same party under this section. § 36. Nothing contained in the preceding section shall New trial. be construed to prevent the court granting a new trial before final judgment, as in other cases. $37. Exceptions taken to decisions of the circuit courts Exceptions: overruling motions for new trial, and to set aside defaults, under the thirty-fifth and thirty-sixth sections of this act, shall be allowed by the court, and the party excepting may assign for error, in the supreme court, any decision so excepted to, as in other cases. 38. If the defendant, at the time of the entering the Disabilities r judgment by default, is either, first, within the age of moved. twenty-one, if a male, or eighteen, if a female; or, second, insane; or, third, imprisoned on any criminal charge, or in execution upon some conviction of a criminal offense for any term less than for lite; or, fourth, a married woman; the time during which such disability shall continue shall not be deemed any portion of the said time for the application for a new trial; but any such person may bring an action for the recovery of such premises after that time, and within two years after such disability shall be removed, but not after that period. Heirs tion. § 39. If the person entitled to commence such action shall die during the continuance of any disability specified commence in the preceding section, and no determination or judg ment be had of or upon the title, right, or action so to him accrued, his heirs may commence such action after the time above limited for that purpose, and within two years after his death. is granted. m § 40. Upon any new trial granted as herein provided, When new tr the defendant may show any matters, in bar of a recovery, which he might show to entitle him to the possession of the premises, if he were plaintiff in the action. taken poss § 41. If the plaintiff shall have taken possession of the Plaintiff hav premises by virtue of any recovery in ejectment, such possession shall not in any way be affected by the vacating of any judgment, as herein provided; and if the defendant recover in any new trial hereby authorized, he shall be entitled to a writ of possession, in the same manner as if he were plaintiff. Writ of § 42. The plaintiff recovering judgment shall be entitled to a writ of possession, which shall be substantially in session. the following form: 2 THE PEOPLE OF THE STATE OF ILLINOIS, to the Sheriff ...... County: § 43. Instead of the action of trespass for mesne profits, the plaintiff seeking to recover such damages, shall, within one year after the entering of the judgment, make and file a suggestion of such claim, which shall be entered, with the proceedings thereon, upon the record of such judgment, or be attached thereto, as a continuation of the same. $ 44. Such suggestion shall be substantially in the same form as is now in use for a declaration in an action of assumpsit for use and occupation and the same rules of pleading thereto shall be observed as upon declarations in personal actions. 45. The defendant shall, upon the filing of such suggestion, be summoned in the same manner as in other actions. § 46. The defendant may plead the general issue of non-assumpsit, and, under such plea, may give notice of, or may plead specially, any matter in bar of such claim, except such as were or might have been controverted in such action of ejectment; but he may plead or give notice of a recovery by such defendant, or any other person, of the same premises, or of part thereof, subsequent to the verdict in such action of ejectment, in bar or in mitigation of the damages claimed by the plaintiff. § 47. If any issue of fact be joined on such suggestion, it shall be tried as in other cases; and if such issue be found for the plaintiff, the same jury shall assess his damages to the amount of the mesne profits received by the defendant since he entered into possession of the premises, subject to the restrictions hereinafter contained. $48. On the trial of such issue, the plaintiff shall be required to establish and the defendant may controvert, the time when such defendant entered into the possession of the premises, the time during which he enjoyed the mesne profits thereof, and the value of such profits: and the record of the recovery in the action of ejectment shall not be evidence of such time. On such trial, the defendant shall have the same right to set off any improvements made on the premises, to the amount of the plaintiff's claim, as is now or shall hereafter be allowed by law; and in estimating the plaintiff's damages, the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff. 49. If no issue of fact be joined on such suggestion, Writ of inquiry. or if judgment thereon be rendered against the defendant by default, on demurrer or otherwise, a writ of inquiry, to assess the value of such mesne profits, shall be issued, of the execution of which the same notice shall be given to the defendant, or his attorney, as in other cases. § 50. Upon the execution of such writ, the plaintiff shall be required to establish the same matters herein before required in the case of an issue being joined, and the defendant may in like manner controvert the same, and make any set-off to which he shall be entitled; and the jury shall assess the damages in the same manner. The same proceedings shall be had on such writ, and it shall be returned as in other cases, with the inquisition taken thereon. Upon such inquisition, or upon the verdict of the jury in the case of the issue being joined, the court shall render judgment as in actions of assumpsit for use and occupation, which shall have the like effect in all respects. Upon execu tion of writ. dies. § 51. If the plaintiff in ejectment shall have died after when plaintiff issue joined or judgment therein, his personal representatives may enter a suggestion of such death, of the granting letters testamentary or of administration to them, and may suggest their claim to the mesne profits of the premises recovered, in the same manner, and with the like effect, as the deceased; and the same proceedings in all respects shall be had thereon. § 52. Every person who may hereafter be evicted from Rents, profits any land for which he can show a plain, clear and con- and damages, nected title, in law or equity, deduced from the record of some public office, without actual notice of an adverse title in like manner derived from record, shall be exempt and free from all and every species of action, writ or prosecution for or on account of any rents or profits, or damages, which shall have been done, accrued or incurred at any time prior to receipt of actual notice of the adverse claim, by which the eviction may be effected, provided such person obtained peaceable possession of the land. 53. Notice of any adverse claim or title to the land, Notice of adwithin the meaning of this chapter, shall have been given verse claim. by bringing a suit, either in law or equity, for the same, by the one or the other of the parties, and may hereafter be given by bringing a suit, as aforesaid, or by delivering an attested copy of the entry, survey or patent, from which he derives his title or claim, or leaving any such copy with the party or his wife: Provided, however, that notice given by the delivery of an attested copy, as aforesaid, shall be void, unless suit is brought within one year thereafter: Provided, that in no case shall the proprietor of the better title be |