If the defendant appears, and the claimant does not appear at the trial, the claimant will be nonsuited; and if the claimant appears and the defendant does not appear, the claimant will be entitled to recover without any proof of title.

The jury may find a special verdict, or either party may tender a bill of exceptions.

Upon a finding for the claimant, judgment may be signed, and execution issue for the recovery of the possession of the property, or such part thereof as the jury shall find the claimant entitled to, and for costs, within 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. Upon a finding for the defendants, or any of them, judgment may be signed, and execution issue for costs against the claimants named in the writ, within 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. Upon any judgment in ejectment for the 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.

In case of such an action being brought by some one of several persons entitled as joint-tenants, tenants in common, or coparceners, any joint-tenant, tenant in common, or coparceners in possession, may, at the time of the appearance, or within fourteen days after, give notice in the same form as the notice of a limited defense, 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 coparceners, 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 must be entered in the issue in the same manner as the notice limiting the defense, and upon the trial of such issue the additional question of whether an actual ouster has taken place, must be tried. Upon the trial of such issue

as last aforesaid, if it shall be found that the defendant is jointtenant, tenant in common, or coparcener with the claimant, then the question whether an actual ouster has taken place, must be tried, and unless such actual ouster shall be proved the defendant will be entitled to judgment for 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 will be entitled to such judgment for the recovery of possession and costs.

It is declared by the statute, that the death of the claimant or defendant shall not cause the action to abate, but it may be continued in the way prescribed in the act. In case the right of the deceased claimant shall survive to another claimant, a suggestion may be made of the death, which suggestion is not traversable, but will 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 be made before the trial, then the claimant may have a verdict and recover such judgment as aforesaid, upon it appearing that he was entitled to bring the action either separately or jointly with the deceased claimant. In case of the death before trial of one of several claimants, whose right does not survive to 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 prescribed, a suggestion may be made of the death, which suggestion is not traversable, but may 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.

Upon the death of one of several claimants after a verdict has been rendered in favor of the claimants, provision is made for the entry of judgment upon the verdict, and for an execution to be issued for the possession of the entirety of the property and costs, and very equitable proceedings are provided for in case of the death of a sole claimant before trial, where the right of action does not survive. So, also, ample provision is made in cases where the defendants in an ejectment die before or after a verdict, for the action to proceed, or for judgment and execution, as the case may be.

The effect of a judgment in ejectment under this act, it is declared, shall be the same as that of a judgment in the action of ejectment heretofore used, and which is the same as the judg

ment in an ejectment at common law. Error may be brought in like manner as in 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. (15 and 16 Vict. ch. 76, SS 168-208.)

The foregoing are substantially the provisions of the English common law procedure act of 1852, in respect to the action of ejectment, given in about the order in which they stand upon the statute book. The act also provides for the action of ejectment as between landlord and tenant, which has been stated in full in the chapter in which that subject is particularly considered. (Ante, ch. 13.)

In case an action of ejectment is brought by any mortgagor, his heirs or assigns, for the recovery of the possession of any mortgaged premises, the act provides that the mortgagor, or the person having the right to redeem the premises, may render the principal, interest and costs of the suit in court, which will be deemed a full satisfaction, and the court may thereupon compel the mortgagee to reconvey the premises. (15 and 16 Vict. ch. 76, § 219.)

The common law procedure act was amended in 1854, so as to allow parties to real actions to arbitrate their claims, and enter judgment upon the award. (17 and 18 Vict. ch. 125, § 16.)

Some litigation has arisen under the practice in the action of ejectment as at present regulated in England, and a brief reference will be made to such cases as may by any means be of service in the United States. It will be observed in the sequel that the provisions of the English act are quite similar to the statutes of some of the states regulating the action to recover real property therein. Under the provisions of the common law procedure act of England, it is held, that two tenants in common may join in a writ of ejectment, stating that some, or one of them, claim to be entitled; and the whole of the property to which they are entitled in common may be recovered on such writ. (Ellis v. Ellis, 1 Ellis, Blackburn & Ellis' R. 81. Same Case, 96 Eng. C. L. R. 81.) Under the old practice, the declaration might have alleged separate demises to John Doe by each tenant in common. (Doe v. Errington, 1 Adolph. & Ell. R. 750. Same Case, 28 Eng. C. L. R. 750.) And it was suggested by Crompton, J., in Ellis v. Ellis, supra, that the form of the writ in ejectment prescribed by the one hundred and sixty-ninth section of the common law procedure act,

whereby "A, B and C, some or one of them, claim to be" "entitled," is equivalent to separate demises by each tenant in common, and that, therefore, the practice is not in reality changed by the act. It is provided, by a rule of court, that "no judgment in ejectment for want of appearance or defense, whether limited or otherwise, shall be signed without first filing an affidavit of the service of the writ according to the common law procedure act, 1852, and a copy thereof." Under this rule it was contended that the common affidavit of service was necessary. The court of common bench questioned whether the affidavit, required by the rule, of service of the writ of ejectment under the one hundred and seventieth section of the common law procedure act, should show, as under the old practice, that the nature and object of the service were explained to the party served. But it was held, that at best such an omission was a mere irregularity, and was waived by a subsequent attornment. (Edwards v. Griffith, 6 J. Scott's R. 397. Same Case, 80 Eng. C. L. R. 396.)

An action of ejectment was brought to recover the opera house, by the lessor, on the ground that the tenant had committed a forfeiture; and application was made, under the common law procedure act, for leave to appear and defend the action by the grantee, from the lessee, of a private box for a term of years; the applicant swearing that he was "in possession of the box;" the court of queen's bench held, that, on such application, it was sufficient that a prima facie case of legal possession was shown; and granted the leave, without coming to any conclusion on the effect of the instrument under which the box was held. Application was also made by a party who had obtained judgment on an ejectment against the lessee, but had not been put in possession; and the court held, that he had no such possession as the statute contemplated, and refused the leave. (Croft v. Lumley, 4 Ellis & Blackburn's R. 608. Same Case, 82 Eng. C. L. R. 608.)

It has been decided, that an equitable defense cannot be pleaded in ejectment under the common law procedure act, as amended in 1854, because there is now no plea in that form of action. Equitable grounds of defense arise so often in ejectment that one would naturally have expected to find a separate and distinct provision as to ejectments. The eighty-fourth section of the act provides, that "any such matter which, if it arose before or during the time of pleading, would be an answer to the action by way of plea,

may, if it arise after the lapse of the period during which it could be pleaded, be set up by way of audita querela,” and the eightyfifth section provides, that "the plaintiff may reply, in answer to any plea of the defendant, facts which avoid such plea upon equitable grounds; provided, that such replication shall begin with the words 'For replication on equitable grounds,' or words to the like effect." Then, the right to plead equitable defense is qualified by the eighty-sixth section: "Provided, always, that in case it shall appear to the court, or any judge thereof, that any such equitable plea or equitable replication cannot be dealt with by a court of law so as to do justice between the parties, it shall be lawful for such court or judge to order the same to be struck out, on such terms, as to costs or otherwise, as to such court or judge shall seem reasonable." Jervis, C. J., said: "Ancient demesne would not be pleadable now. So, an equitable defense, which requires to be pleaded in a particular form, clearly cannot be available in a form of action which admits of no pleading." Maule, J., said: "The 15 and 16 Victoria, chapter 76, puts an end to declarations in ejectment. In sweeping away the declaration and notice, there cannot be a doubt that it also sweeps away all pleadings. An equitable plea may be disposed of by a judge by a summary order, if he thinks it inconvenient that it should be allowed. In ejectment there is no declaration to start from; so there can be no plea. There is, therefore, nothing in the record to enable us to decide. I do not think an 'equitable defense' is available at all in an action of ejectment." The court concurred in this view. (Neave v. Avery, 7 J. Scott's R. 328. Same Case, 81 Eng. C. L. R. 327.) This point of practice is very important, and hence the space devoted to its consideration.

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The courts have also decided, after thorough discussion and mature deliberation, that the common law procedure act, as amended in 1854, does not authorize the issuing of a writ of injunction in an action of ejectment. Crowder, J., ɛaid: "I am of opinion that the whole language of the eighty-second section, without referring to the interpretation clause, shows that it was not meant to apply to actions of ejectment; and the interpretation clause shows that 'action' is limited to personal actions," and all the judges argued, and concurred in the opinion, that no injunction could be allowed in the action of eject