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 of 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 commission of any kind of waste, or deduction of soil by cultivation or otherwise, during the occupancy of the person evicted, and subtract the same from the estimated 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 claimant 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: vided, 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.

[*450]

Pro

[R. S. 1845, p. 211, § 48; Haslett v. Crain, 85 Ill. 129; Montag v. Lyon, 25 Ill. 169. 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 commissioners shall also estimate the value of the lands in dispute, exclusive of any improvements 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 occupying claimant, to refund the amount of such judgment, in case the land so transferred 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 necessary 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

[* 451] paid for his improvements; and in all cases where the occupy

ing 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, o 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, p. 56. [$ 62, repeal, omitted. See Statutes," ch. 131, § 5.