Authority of plaintiff's attorney. Issue of fact-assessment of damages. 16. Order to produce authority-proof of 48. Rights of parties on trial. Default-writ of inquiry-notice. 17. Defendant must notify landlord. 50. Proof on default-judgment. 51. 19. Pleadings-evidence Death of plaintiff-recovery by rep resentatives. 20. Consent rule abolished. 52. 21. Effect of not guilty 22. Proof-pleading. When defendant not liable for mesne profits. 53. Notice of adverse claim. 23. Proof of entry, etc. 54. Effect of notice. 24. Lease, etc, not to be proved. 55. Improvements valued assessment 25. Title from common source. 26. Suit between co-tenants, etc. Recovery by part of plaintiffs. 27 of damages. 56. 28. Whom recovery against. 29. Election by plaintiff. 30 Various forms of verdict. 59. 31. Rightexpiring. 32. Form of judgment for plaintiff. 33. Rents and profits. 60. 34. Effect of judgment. 57. Ru'e in valuing improvements. ceeds value of land, 58. Commissioners-oath-powers. Report of commissioners-compen- be ap AN ACT in regard to the practice in actions of ejectments. [Approved March 20, 1872. In force July 1, 1872. L. 1871-2, p. 370.] 1. Action retained. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the action of ejectment shall be retained and may be brought in the cases and the manner heretofore accustomed, subject to the provisions hereinafter contained. [R S. 1845. P 204, § 1; Chicago & Alton R. R. Co. v. Smith, 78 Ill. 96; Berrington v. Casey, 78 11. 317 Carpenter v. Sherfy, 71 Ill 427; Fleming v. Carter, 70 Ill. 286; Vallette Bennett, 69 111, 632; City of Chicago v. Wright, 69 Ill. 318; Kilgour v. Gockley, 83 Ill. 109; Johnson v. Watson, 87 Ill. 536; Daniel v. Green, 42 Ill. 472; Green v. Spring, 43 Ill. 280; Wangelin v. Goe, 50 III. 459; Farnsworth v. Agnew, 27 Ill. 42 Oldham v. Pfleger, 84 Ill. 102; Dickerson v. Hendry, 88 Ill. 66; Catholic B. of Chicago v. Chiniquy, 74 Ill. 317. 2. In what cases brought. § 2. It may also be brought: 1st. In the same cases in which a writ of right may now be brought by law to recover lands, tenements or hereditaments, and by any person claiming an estate therein, in fee for life or for years, either as heir, devisee or purchaser. [R. S 1845, p. 205, § 2; Emory v. Keighan, 88 Ill. 482; Tilghman v. Little, 13 Ill. 239; Prentice v. Wilson, 14 II. 91; Sloan v. Petrie, 16 Ill. 262; Stow v. Russell, 36 Il 36, Williams v. Forbes. 47 Ill. 148; Staley v. Murphy, 47 Ill. 241; Carroll v. Ballance, 26 Ill. 15; Holt v. Rees, 44 I. 30; Fetrow v. Merriwether, 53 II. 275; Holt v. Rees, 46 Ill. 181; Smith v. Chicago & A. R. R. Co., 67 lil. 191; Stevenson v. Loehr, 57 Ill. 511; Kilgour v. Gockley, 83 Ill. 109; Aholtz v. Zellar, 88 Ill. 24. 3. By lessees of United States or this State. § 3. In all cases in which any person has heretofore entered upon and occupied, or shall hereafter enter upon and occupy, any lands, tenements or hereditaments within this State, by virtue of any lease or permit from the United States or this State, such person, his, her or their heirs or assigns, may have and maintain an action of ejectment against any person who has or may enter upon such lands, tenements or hereditaments without the consent of such lessee, his, her or their heirs or assigns, and proof of the right of possession shall be sufficient to authorize a recovery. [R. S. 1845, p. 213, $ 57. 4. When ejectment applicable. § 4. No person shall recover in ejectment unless he has, at the time of commencing the action, a valid subsisting interest in the premises claimed, and a right [*444] to recover the same, or to recover the possession thereof, or of me share, interest or portion thereof, to be proved and established at the trial. [R. S. 1845, p. 205, 3. 5. Joint tenants, etc. 5. Any two or more persons claiming the same premises as joint tenants, tenants in common or co-parceners, may join in a suit for the recovery thereof, or any one may sue alone for his share. 6. Defendants. 6. If the premises for which the action is brought are actually occupied by any person, such actual occupant shall be named defendant in the suit; and all other persons claiming title or interest to or in the same may also be joined as defendants. [R. S. 1845, p. 205, §4; Hanson v. Armstrong, 22 Ill. 445; Lowe v. Emerson, 48 Ill. 160 Hardin v. Kirk, 49 Ill. 154; Merritt v. Thompson, 13 Ill. 722; Dickerson v. Hendryx, 88 III. 67. 7. Unoccupied premises. § 7. If the premises are not occupied, the action shall be brought against some person exercising act of ownership on the premises claimed, or claiming title thereto, or some interest therein, at the commencement of the suit. [R. S. 1845, p. 205, § 4; Newland v. Marsh, 19 Ill. 385; Hanson v. Armstrong, 22 Ill. 445; Dickerson v. Hendryx, 88 Ill. 68. 8. Fictitious parties abolished. § 8. The use of fictitious names of plaintiffs or defendants, and of the names of any other than the real claimants and the real defendants, and the statements of any lease or demise to the plaintiff, and of an ejectment by a casual or nominal ejector, are hereby abolished. [R. S. 1845, p. 205, § 6. 9. Commenced by summons. 9. The action of ejection shall be commenced by summons, which shall be in like form, and be issued, tested, served and returned as other summons at law. [R. S. 1845, p. 205.5. 10. Declaration-pleading-practice. § 10. The time of filing declarations in actions of ejectment shall be the same as in other actions at law; and the rules of pleading and practice in other actions shall apply to actions of ejectment, so far as they are applicable and except as is otherwise provided. [Dougherty v. Purdy, 18 Ill. 206; Chapin v. Curtenius, 15 Ill. 427; Dickerson v. Hendryx, 88 III, 66; Guyer v. Wookey, 18 Ill. 536. 11. Plaintiff's averments. § 11. It shall be sufficient for the plaintiff to aver in his declaration, that (on some day therein to be specified, and which shall be after his title accrued), he was possessed of the premises in question (describing them as hereinafter provided), and, being so possessed thereof, that the defendant afterwards (on some day to be stated) entered into such premises, and that he unlawfully withholds from the plaintiff the possession thereof, to his damage any nominal sum the plaintiff shall think proper to state. [R. S. 1845, P. 205, 87; Dickerson v. Hendryx, 88 Ill. 68. 12. Description of premises. § 12. The premises so claimed shall be described in such declaration with convenient certainty, so that, from such description, possession of the premises claimed may be delivered. If such plaintiff claims any undivided share or interest in any premises, he shall state the same particularly in such declaration; but the plaintiff, in any case, may recover such part, share or interest in the premises as he shall appear on the trial to be entitled to. [R. S. 1845, P. 205, 87; Almond v. Bonnell, 76 Ill. 536; Part v. Van Horn, 38 Ill. 226; Minkhart v. Hankler, 19 Ill. 48: Wood v. Morton, 11 Ill. 547; Holt v. Rees, 44 Ill. 30 Pitkin v. Yaw, 13 Ill. 251; Joy v. Berdell, 25 Ill. 538; Clark v. Thompson, 47 Ill. 29; McCool v Smith, 1 Black. U. S. 459. 13. Kind of estate. 13. In every case the plaintiff shall state whether he claims in fee, or whether he claims for his own life, or the life of another, or for a term of years, specifying such life or the duration of such term. 14. Counts-parties. § 14. The declaration may contain several counts, and several parties may be named as plaintiffs, jointly in one count and separately in others. [R. S. 1845, p. 205, § 9; Hardin v. Kirk, 49 Ill. 158. 15. Authority of plaintiff's attorney. § 15. A defendant in ejectment may, at any time before pleading, apply to the court, or to any judge thereof in vacation, to compel the attorney for the plaintiff to produce to such court or judge his authority for commencing the action in the name of any plaintiff therein. Such application shall be accompanied by an affidavit of the defendant, that he has not been served with proof, in any way, of the authority of the attorney to use the name of the plaintiff stated in the declaration. [R. S. 1845, p. 206, § 14; Lockwood v. Mills, 39 Ill. 602. costs. 16. Order to produce authority - proof of authority16. Upon such application the court or judge shall grant an order requiring the production of such authority, and [*445] shall stay all proceedings in the action until the same shall be produced Any written request of such plaintiff or his agent to commence such action, or any written recognition of the authority of the attorney to commence the same, duly proved by the affidavit of such attorney or other competent witness, shall be sufficient presumptive evidence of such authority. If it shall appear that, previous to such application by any defendant, he was served with a copy of the affidavit of the plaintiff's attorney, showing his authority to bring such action, such application shall be dismissed, and such defendant shall be liable for the costs of such application. [R. S. 1845, p. 206, 15, 16. 17. Defendant must notify landlord. § 17. Every tenant who shall, at any time, be sued in ejectment by any person other than his landlord, shall forthwith give notice thereof to his landlord, or to his agent or attorney, under the penalty of forfeiting two years' rent of the premises in question, or the value thereof, to be recovered by such landlord by action of debt, in any court having cognizance thereof. [R. S. 1845, P. 334, § 5; Lowe v. Emerson, 48 Ill. 160; Frazier v. Gates, 61 Ill. 180. 18. Landlord may be made defendant. 18. The landlord, whose tenant is sued in ejectment, may, upon his own motion or that of the plaintiff, be made defendant in such action, upon such terms as may be ordered by the court. [Williams v. Brunton, 3 Gilm, 621; Thompson v. Schuyler, 2 Gilm. 271; Merritt v. Thompson, 13 Ill. 716; Stribling v. Prettyman, 57 II. 371. 19. Pleading-evidence. 19. The defendant may demur to the declaration as in personal actions, or he shall plead the general issue, which shall be, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff, as alleged in the declaration; and the filing of such plea or demurrer shall be deemed an appearance in the cause, and upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintiff's action, except as hereinafter provided. [R. S. 1845, p. 206, § 17; Warren v. President, etc., 15 Ill. 236; Walker v. Armour, 22. 658 Stevenson v. Marony, 29 Ill. 532; Marshall v. Barr, 35 Ill. 106; Hall v. Lance, 25 Ill. 277; Stow v. Russell, 36 Ill. 18; Williams v. Forbes, 47 Ill. 148; Staley v. Murphy, 47 Ill. 241; Batterton v. Yoakum, 17 Ill. 288; Mosheimer v. Ussleman, 36 Ill. 232; Stuart v. Dutton, 39 Ill. 91; Ballance v. Flood, 52 III. 49; Wales v. Bogue, 31 Ill. 464; Franklin v. Palmer, 50 Ill. 202; Rountree v. Little, 54 Ill. 323; Graham v. Anderson, 42 Ill. 515; Gladfelder v. Hale, 62 Ill. 72; Forsythe v. Hardin, 62 111. 206; Dawson v. Hayden, 67 Ill. 52. 20. Consent rule abolished. § 20. The consent rule, heretofore used, is hereby abolished. [R. S. 1845, p. 207, § 18. 21. Effect of not guilty. 21. The plea of not guilty shall not put in issue the possession of the premises by the defendant, or that he claims title or interest in the premises. [L. 1855, p. 138, § 1; Murphy v. Williamson, 85 Ill. 150; Dickerson v. Hendryx, 88 Ill. 68. 22. Proof-pleading. § 22. It shall not be necessary for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein at the time of bringing the suit, or that the plaintiff demanded the possession of the premises, unless the defendant shall deny that he was in such possession, or claims title or interest therein, or that demand of possession was made, by special plea, verified by affidavit. [L. 1855, P. 138, §1; Murphy v. Williamson, 85 Ill. 150; Dickerson v. Hendryx, 88 Ill. 68 Wood v. Morton, Ill. 547; Prentice v. Wilson, 14 Ill. 91; Carroll v. Ballance, 26 Ill. 9; Barger v. Hobbs, 67 Ill. 592; Railroad Co v Knox College, 34 111. Moore v. Munn, 69 Ill. 591; I. & St. L. R. R. Co. v. Cobb, 68 Ill. 53; Escherick v. Tra ver, 65 III. 379; Herrell v. Sizeland, 81 Ill. 457; Riggs v. Henneberry, 58 Ill. 134 Chicago & A. K. R. Co. v. Smith, 78 III. 96. 195: 23. Proof of entry, etc. § 23. It shall not be necessary for the plaintiff to prove an actual entry under title, nor the actual receipt of any of the profits of the premises demanded; but it shall be sufficient for him to show a right to the possession of such premises at the time of the commencement of the suit, as heir, devisee, purchaser or otherwise. [R. S. 1845, p. 207, § 19; Batterton v. Yoakum, 17 Ill. 288. 24. Lease, etc., not to be proved. § 24. It shall not be necessary on the trial for the defendant to confess, nor for the plaintiff to prove lease, entry and ouster, or either of them, except in actions by one or more tenants in common, or joint tenants against their co-tenants; but this section shall not be construed to impair, nor in any way to affect, any of the rules of evidence now in force in regard to the maintenance and defense of the action. [R. S. 1845, p. 207, 20. 25. Title from common source. 25. If the plaintiff, or his agent or attorney, will state 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. [Hartshorn v. Dawson, 79 Ill. 108; McConnell v. Johnson, 2 Scam, 523; Pollock v. Maison, 41 Ill. 516; McClure v. Engelhardt, 17 l. 47; Huis v. Buntin, 47 Ill. 396 Herbert v. Herbert, Breese, 354; Bowman y. Wettig, 39 Ill. 416; Tilghman v Little, 13 Ill 239; Rigg v. Cook, 4 Gilm. 336; Jones v. King, 25 Ill. 383; Franklin v. Palmer, 50 I. 203; Hague v. Porter, 45 Ill. 318; Carpenter v. Sherty, 71 İll, 427; Stevens v. Hollingsworth, 74 Ill. 202. 26. Suits between co-tenants, etc. 26. If the action be brought by one or more tenants in common, or joint tenants against their co-tenants, the plaintiff, in addition to all other evi- [* 446] dence 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. [R. S. 1845, p. 207, § 21; Noble v. McFarland, 51 Ill. 227; Bracken v. Cooper, 80 Ill. 22x. 27. Recovery by part of plaintiffs. 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. 28. Who recovery against. § 28. If the action is against several, and the plaintiff is entitled to recover, he shall recover against all |