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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. [R. S. 1845, p. 209, § 34.

42. WRIT OF POSSESSION-FORM.] § 42. The plaintiff recovering judgment shall be entitled to a writ of possession, which shall be substantially in the following form:

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Whereas A B has lately, in the circuit court, held in and for the county of by the judgment of the said court, recovered against CD one messuage, etc., (describing the premises recovered with the like certainty as above provided.) which said premises have been, and are still, unjustly withheld from the said A B by the id CD, whereof he is convicted, as appears to us of record; and forasmuch as it is adjudged in the said court that the said A B have execution upon his said judgment against the said C D, according to the force, form and effect of his said recovery; therefore we command you that, without delay, you deliver to the said A B possession of the premises so recovered, with the appurtenances; and that you certify to, etc, etc., etc., on, etc., in what manner you shal have executed this writ. (If there be costs to be collected, the proper clause may be here inserted, or a separate execution may be issued therefor.) Witness, etc., etc.

[R. S. 1845, p. 208, § 28. 43. SUGGESTION OF DAMAGES.] § 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 thercon, upon the record of such judgment, or be attached thereto, as a continuation of the same. 209, § 37.

[R. S. 1845, p.

44. FORM OF SUGGESTION.] § 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 upou declarations in personal actions. [R. S. 1845, p. 209, § 38.

45. SUMMONS.] § 45. The defendant shall, upon the filing of such sugges tion, be summoned in the same manner as in other actions. [R. S. 1845, p. 209, § 38.

46. DEFENSE.] § 46. The defendant may plead the general issue of nonassumpsit, 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. [R. S. 1845, p. 209, § 39.

47. ISSUE OF FACT-ASSESSMENT OF DAMAGES.] § 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. [R. S. 1845, p. 209, 40.

48. RIGHTS OF PLAINTIFF AND DEFENDANT ON TRIAL.] § 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 esti mating 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. [R. S. 1845, p. 210, § 41.

49. DEFAULT-WRIT OF INQUIRY.] § 49. If no issue of fact be joined on such suggestion, 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. [R. S. 1845, p. 210,

50. PROOF ON DEFAULT-JUDGMENT.] § 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. [R. S. 1845, p. 210, § 43.

51. DEATH OF PLAINTIFF-RECOVERY BY REPRESENTATIVES.] § 51. If the plaintiff in ejectment shall have died after 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. [R. S. 1845, p. 210, § 44.

52. WHEN DEFENDANT NOT LIABLE FOR MESNE PROFITS.] § 52. Every person who may hereafter be evicted from any land for which he can show a plain, clear and connected 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 ad verse claim, by which the eviction may be effected, provided such person obtained peaceable possession of the land. [R. S. 1845, p. 210, § 47.

53. NOTICE OF ADVERSE CLAIM.] 53. Notice of any adverse claim or title to the land, within the meaning of this chapter, shall have been given 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 obliged to pay to the occupying claimant, for improvements made after notice, more than what is equal to the rents and profits aforesaid. [R. S. 1845, p. 212, § 54.

54. EFFECT OF NOTICE.] § 54. Notice to any occupying claimant shall bind all those claiming from, by or through such occupying claimant, to the extent of such claim. [R. S. 1845, p. 213, § 55.

55. IMPROVEMENTS VALUED AND DAMAGES ASSESSED. § 55. The court who shall pronounce and give judgment of eviction, either in law or equity, shall, at the time, nominate seven fit persons, any five of whom shall have power, and it shall be their duty, to go on the premises, and, after viewing the same, on oath or affirmation, to assess the value of all such lasting and valuable improvements which shall have been made thereon, prior to the receipt of such notice, as aforesaid; and also to assess all damages the land may have sustained by the com mission of any kind of waste, or by deduction of soil by cultivation or otherwise, during the occupancy of the person evicted, and subtract the same from the esti mated value of said improvements; which assessment, signed and sealed by the persons making the same, shall be by them lodged with the clerk, of the court wherein they were nominated, before the next ensuing term, or as soon thereafter as may be convenient; and at the next court after such assessment, it shall be entered up as a judgment in favor of the person evicted, and against the successful claiman of the land, by the clerk; upon which judgment execution shall immediately be issued by the clerk, if directed by the person evicted, unless the successful claimant shall give bond and security, to be judged of by the court, to the person evicted, and to be taken at the time of entering up such judgment,

conditioned to pay the same within twelve months from the date thereof, with five per cent. interest thereon: Provided, the balance shall ultimately be in favor of such occupying claimant, according to the directions and provisions of this chapter; which bond shall have the force of a judgment, and at the expiration of twelve months, aforesaid, an execution shall be issued upon the same, by the clerk of the court in which it was taken, at the request of the party entitled thereto, on oath being made that the same is yet due. Should the balance be in favor of the successful claimant, judgment in like manner shall be entered up in his favor, against the other party, for the amount of the same, upon which execution may be issued, as aforesaid, unless bond and security be given to such claimant, which may be acted upon in the manner before directed, and to declare what shall be the law between adverse claimants under distinct titles of the kinds aforesaid, after notice. [R. S. 1845, p. 211, § 48.

56. RULE IN ASSESSING VALUE OF IMPROVEMENTS.] § 56. The persons nominated by the court, as aforesaid, when making an assessment, shall carefully distinguish between such improvements as were made on the land prior to notice, and those which were made after notice; and when making an assessment they shall also take into consideration all such necessary and lasting improvements as shall have been made on the lands, after the receipt of such notice, as aforesaid, and shall ascertain the amount of the value thereof; and they shall also take into consideration and ascertain the amount of the rent and profits arising from the whole of the improvements on the land, from the time that notice of such adverse claim was received by such occupying claimant; and then, after taking the amount of one from the other, the balance shall be added to or subtracted from the amount of the value of the improvements which shall have been made before the receipt of the notice aforesaid, as the nature of the case shall require. [R.S. 1845, p. 211, § 49.

57. WHEN IMPROVEMENTS EXCEED VALUE OF LAND.] $57. The commis sioners shall also estimate the value of the lands in dispute, exclusive of any im provements that shall have been made thereon, and make report of the amount of such valuation to the court; and if the value of the improvements shall exceed such estimated value of the land in dispute, in that case it shall and may be lawful for the proprietor of the better title to transfer or convey, as the nature of the case may require, his better title to the occupying claimant; and thereupon. judgment shall be entered up in his favor, against the occupying claimant, for such estimated value, upon which an execution may issue, unless the occupying claimant shall give bond and security, to be approved by the court, to pay the amount of such judgment within one year after the person transferring or conveying, as aforesaid, with interest from the date; which bond shall have the force of a judgment, and if not paid at the expiration of the year, an execution may issue in the manner before directed by this chapter: Provided, that the proprietor of the better title shall, in every such case, at the time of entering up judgment in his favor, give bond and security, to be approved by the court, to the occupy ing claimant, to refund the amount of such judgment, in case the land so trans ferred or conveyed shall ever thereafter be taken from him by any other prior or better claim. [R. S. 1845, p. 212, § 50.

58. COMMISSIONERS OATH-POWERS.] § 58. The persons nominated by the court, by virtue of this act, shall be called commissioners, and shall, respectively, take an oath or affirmation to do equal right to the parties in controversy; and shall also have power and authority to call witnesses, and administer the neces sary oaths, and to examine them for the ascertainment of any fact material to the inquiry and assessment by this act directed. [R. S. 1845, p. 212, § 51.

59. REPORT OF COMMISSIONERS-COMPENSATION-OBLIGATION OF CONTRACTS—RIGHTS OF CLAIMANTS.] § 59. The said commissioners, in making every estimate of value, by virtue of this act, shall state, separately, the result of each; and the court shall have power to make such allowance to the said commissioners, in any case, as shall seem just-which allowance shall be taxed and collected as costs: Provided, that this act shall not be extended to affect or impair

the obligation of contracts, or to authorize the occupying claimant to be twice paid for his improvements; and in all cases where the occupying claimant is paid for his improvements by any other person than the proprietor of the better title, such person shall have the same redress as is allowed to the occupying claimant. [R. S. 1845, p. 212, § 52.

60. WHEN COMMISSIONERS MAY BE APPOINTED WITHOUT SUIT.] § 60. The court shall have the same power to proceed by appointing commissioners to assess the value of improvements, and the damages by the commission of any kind of waste, by reduction of soil by cultivation or otherwise, during the occupancy of the person evicted in case of arbitration, or by consent of the parties, on motion, without suit. [R. S. 1845, p. 212, § 53.

61. STAY OF WASTE-SECURITY.] $61. Nothing herein contained shall be construed so as to prevent any court from issuing a precept to stay waste, and ruling the party to give bond and security in such manner as such court may think right. [R. S. 1845, p. 213, § 56.

[§ 62, repeal, omitted; see "Statutes," ch. 131, § 5.

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