Courts of Common Law, on the day of its sitting, at such time as the Judges shall appoint, either in term or in vacation: or if the proceedings in error be before the High Court of Parliament, then before the High Court of Parliament, before or at the time of its sitting; and the Court of Error shall and may thereupon review the proceedings, and give judgment as they shall be advised thereon; and such proceedings and judgment, as altered or affirmed, shall be entered on the original record; and such further proceedings as may be necessary thereon shall be awarded by the Court in which the original judgment was given. CLVI. Courts of Error shall have power to quash the proceedings in error in all cases in which error does not lie, or where they are taken against good faith, or in any case in which proceedings in error might heretofore have been quashed by such Courts; and such Courts shall in all respects have such jurisdiction over the proceedings as over the proceedings in error commenced by writ of error. CLVII. Courts of Error shall in all cases have power to give such judgment and award such process, as the Court, from which error is brought, ought to have done, without regard to the party alleging error. CLVIII. Either party alleging error in fact may deliver to one of the Masters of the Court a memorandum in writing, in the form contained in the Schedule (A.) to this Act annexed, marked No. 12, or to the like effect, entitled in the Court and cause, and signed by the party or his attorney, alleging that there is error in fact in the proceedings, together with an affidavit of the matter of fact in which the alleged error consists; whereupon the Master shall file such memorandum and affidavit, and deliver to the party lodging the same a note of the receipt thereof; and a copy of such note and affidavit may be served on the opposite party or his attorney; and such service shall have the same effect, and the same proceedings may be had thereafter as heretofore had after the service of the rule for allowance of a writ of error in fact. Error. CLIX. The plaintiff in error, whether in fact or law, shall be at Plaintiff may liberty to discontinue his proceedings by giving to the defendant discontinue in error a notice, headed in the Court and cause, and signed by the Proceedings in plaintiff in error or his attorney, stating that he discontinues such proceedings; and thereupon the defendant in error may sign judgment for the costs of, and occasioned by, the proceedings in error, and may proceed upon the judgment on which the error was brought. may contess Error, and consent to Reversal of CLX. The defendant in error whether in fact or law shall be at Defendant liberty to confess error, and consent to the reversal of the judgment, by giving to the plaintiff in error a notice, headed in the Court and cause, and signed by the defendant in error or his attorney, stating that he confesses the error, and consents to the reversal Judgment. of the judgment; and thereupon the plaintiff in error shall be entitled to and may forthwith sign a judgment of reversal. CLXI. The death of a plaintiff in error after service of the note of the receipt of the memorandum alleging error, with a statement of the grounds of error, shall not cause the proceedings to abate, but they may be continued as hereinafter mentioned. CLXII. In case of the death of one of several plaintiffs in error, Providing for Death of Error no Death of one of several Plaintiffs in Error. L No. 9. 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 proceedings may be thereupon continued at the suit of, 15 & 16 Vic. and against the surviving plaintiff in error, as if he were the sole plaintiff. Clauses of Act of Parl. c. 76, in force. Proceedings upon Death of sole Plaintiff Plaintiffs in Death of the Defendant in Error no abatement. Proceedings upon Death of one of several Defendants in Error. Proceedings Defendants in Marriage not Ejectment. Ejectment to be brought by Writ. Form and CLXIII. In case of the death of a sole plaintiff or of several plaintiffs in error, the legal representative of such plaintiff or of the surviving plaintiff may, by leave of the Court or a Judge, enter a suggestion of the death, and that he is such legal representative, which suggestion shall not be traversable, but shall only be subject to be set aside if untrue, and the proceedings may thereupon be continued at the suit of, and against such legal representative as the plaintiff in error; and, if no such suggestion shall be made, the defendant in error may proceed to an affirmance of the judgment according to the practice of the Court, or take such other proceedings thereupon as he may be entitled to. CLXIV. The death of a defendant in error shall not cause the proceedings to abate, but they may be continued as hereinafter mentioned. CLXV. In case of the death of one of several defendants in error, 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 proceedings may be continued against the surviving defendant. CLXVI. In case of the death of a sole defendant or of all the defendants in error, the plaintiff in error may proceed upon giving ten days' notice of the proceedings in error, and of his intention to continue the same, to the representatives of the deceased defendants, or if no such notice can be given them, by leave of the Court or a Judge, upon giving such notice to the parties interested as he or they may direct. CLXVII. The marriage of a woman, plaintiff or defendant in error, shall not abate the proceedings in error, but the same may be continued in like manner as hereinbefore provided with reference to the continuance of an action after marriage. And with respect to the action of ejectment, be it enacted as follows: CLXVIII. Instead of the present proceeding by ejectment, a writ shall be issued, directed to the persons in possession by name, and to all persons entitled to defend the possession of the property claimed, which property shall be described in the writ with reasonable certainty. CLXIX. The writ shall state the names of all the persons in whom the title is alleged to be, and command the persons to whom it is directed, to appear, within sixteen days after service thereof, in the Court from which it is issued, to defend the possession of the property sued for, or such part thereof as they may think fit, and it shall contain a notice that in default of appearance they will be turned out of possession: and the writ shall bear teste of the day on which it is issued, and shall be in force for three months, and shall be in the form contained in the Schedule (A.) to this Act annexed, marked No. 13, or to the like effect; and the name and abode of the attorney issuing the same, or, if no attorney, the name and residence of the party, shall be indorsed thereon, in like manner as hereinbefore enacted with reference to the indorsements No. 9. on a writ of summons in a personal action; and the same proceedings may be had to ascertain whether the writ was issued by the authority of the attorney whose name was indorsed thereon, and who and what the claimants are, and their abode, and as to staying the proceedings upon writs issued without authority, as in the case of writs in personal actions. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Service of Writ of CLXX. The writ shall be served in the same manner as an ejectment has heretofore been served, or in such manner as the Court or a Judge shall order, and in case of vacant possession, Ejectment. by posting a copy thereof upon the door of the dwelling house or other conspicuous part of the property. ap of Persons named in the Writ. Appearance named. CLXXI. The persons named as defendants in such writ, or Appearance either of them, shall be allowed to appear within the time pointed. CLXXII. Any other person not named in such writ shall, by leave of the Court or a Judge, be allowed to appear and defend, of Persons not on filing an affidavit showing that he is in possession of the land either by himself or his tenant. CLXXIII. Any person appearing to defend as landlord in Appearance respect of property, whereof he is in possession only by his tenant, shall state in his appearance that he appears as landlord: and such person shall be at liberty to set up any defence which a landlord appearing in an action of ejectment has heretofore been allowed to set up, and no other. and Defence by Landlord. CLXXIV. Any person appearing to such writ shall be at liberty Notice to to limit his defence to a part only of the property mentioned in the defend for writ, describing that part with reasonable certainty in a notice part only. entitled in the Court and cause, and signed by the party appearing or his attorney; such notice to be served within four days after appearance upon the attorney whose name is indorsed on the writ, if any, and if none, then to be filed in the Master's office; and an appearance without such notice confining the defence to part, shall be deemed an appearance to defend for the whole. Waut of certainty cured by CLXXV. Want of "reasonable certainty" in the description of the property, or part of it, in the writ of notice, shall not nullify them, but shall only be ground for an application to a Judge for particulars. better particulars of the land claimed or defended, which a Judge shall have power to give in all cases. CLXXVI. The Court or a Judge shall have power to strike out or confine appearances and defences set up by persons not in possession by themselves or their tenants. CLXXVII. In case no appearance shall be entered into within the time appointed, or if an appearance be entered, but the defence be limited to part only, the plaintiffs shall be at liberty to sign a judgment that the person whose title is asserted in the writ shall recover possession of the land, or of the part thereof to which the defence does not apply; which judgment, if for all, may be in the form contained in the Schedule (A.) to this Act annexed, marked No. 14, or to the like effect, and if for part, may be in the form contained in the Schedule (A.) to this Act annexed, marked No. 15, or to the like effect. Defence by persons not in possession. Judgment for Default of Ap pearance or Defence. made up. CLXXVIII. In case an appearance shall be entered, an issue Issue how may once be made up, without any pleadings, by the claimants or their attorney, setting forth the writ, and stating the fact of the appearance, with its date, and the notice limiting the defence, if No. 9. Clauses of Act of Parl. 15 & 16 Vic. c. 76, in force. Special case may be stated. Trial of Issue. Verdict when any, of each of the persons appearing, so that it may appear for what defence is made, and directing the Sheriff to summon a jury; and such issue, in case defence is made for the whole, may be in the form contained in Schedule (A.) to this Act annexed, marked No. 16, or to the like effect, and in case defence is made for part, may be in the form contained in the Schedule (A.) to this Act annexed, marked No. 15, or to the like effect. CLXXIX. By consent of the parties, and by leave of a Judge, a special case may be stated according to the practice heretofore used. CLXXX. The claimants may, if no special case be agreed to, proceed to trial upon the issue, in the same manner as in other actions; and the particulars of the claim and defence, if any, or copies thereof, shall be annexed to the record by the claimants; and the question at the trial shall, except in the cases hereafter mentioned, be, whether the statement in the writ of the title of the claimants is true or false, and, if true, then which of the claimants is entitled, and whether to the whole or part, and if to part, then to which part of the property in question; and the entry of the verdict may be made in the form contained in the Schedule (A.) to this Act annexed, marked No. 17, or to the like effect, with such modifications as may be necessary to meet the facts. CLXXXI. In case the title of the claimant shall appear to have existed as alleged in the writ, and at the time of service thereof, to have expired but it shall also appear to have expired before the time of trial, the before Trial. Trial may be ordered to take place in any County. Non-appearance at Trial. Special Verdict, Claimant. Judgment finding for Defendant. upon Execution for claimant shall, notwithstanding, be entitled to a verdict according to the fact that he was so entitled at the time of bringing the action and serving the writ, and to a judgment for his cost of suit. CLXXXII. The Court or a Judge may, on the application of either party, order that the trial shall take place in any county or place other than that in which the venue is laid; and such order being suggested on the record, the trial may be had accordingly. CLXXXIII. If the defendant appears, and the claimant does not appear at the trial, the claimant shall be nonsuited; and if the claimant appears, and the defendant does not appear, the claimant shall be entitled to recover as heretofore, without any proof of his title. CLXXXIV. The jury may find a special verdict, or either party may tender a Bill of Exceptions. CLXXXV. Upon a finding for the claimant, judgment may be signed, and execution issue for the recovery of 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. CLXXXVI. 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. CLXXXVII. Upon any judgment in ejectment for recovery of possession and costs, there may be either one writ or separate writs Possession and Costs may be joint or separate. of execution for the recovery of possession and for the costs, at the election of the claimant. CLXXXVIII. 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. an No. 9. 15 & 16 Vic. Defence by Joint Tenants, Trial and CLXXXIX. 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 actual ouster has taken place shall be tried, and unless such actual Tenants, 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. CXC. The death of a claimant or defendant shall not cause the action to abate, but it may be continued as hereinafter mentioned. CXCI. In case the right of the deceased claimant shall survive to another claimant, 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; 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. CXCII. 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 hereinafter 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. CXCIII. 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 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 Tenants in common, and Coparceners. Action not to abate by Death. Proceeding upon Death before Trial where right survives. Proceedings upon Death before Trial, where right does not sur vive. Upon Death of one of several Claimants having obtained a Verdict. |