effected: Provided also, that, in case of an ejectment for non-payment of rent reserved upon any lease of tithes, tithe rent-charge, or other ecclesiastical dues, the Court in which the ejectment is brought may order service to be made by posting the ejectment upon the church door of the parish or union of parishes wherein such tithe, tithe rentcharge, or ecclesiastical dues are payable, and if there be no such church in the parish or union of parishes, upon some public and conspicuous place in the said parish or union."

When the plaintiff has complied with the requirements of the latter section, and the full time for pleading has elapsed from the date of the last posting, the Court may give leave to the plaintiff to mark judgment, in addition to ordering that the service had be deemed good service (Shaw v. Warmington, Ir. R. 3 C. L. 99).

By the 74th section of the 23 & 24 Vict. c. 154, it is provided, that the Ejectments summons and plaint in ejectments for overholding, shall be served in the for overholding. like manner as ejectments for non-payment of rent.

service.

As to the affidavit of service in ejectments on the title, see 185 G. O., Affidavit of 1854. As to the affidavit in ejectments for non-payment of rent, see 4 G. O. of 22nd January, 1856, and 23 & 24 Vict. c. 154, s. 56, supra.

fence in

c. 76, s. 175.

198. Every defence to a summons in ejectment on the title Form of deshall be in the Form No. 16 in the Schedule B. to this Act ejectment. annexed, or to the like effect; and every defence to an eject-15 & 16 Vict. ment for non-payment of rent shall set forth the substantial ground of the defence, as, for example, whether the title of the plaintiff as landlord is disputed, or the fact of the rent being due if in dispute; and such defence shall be endorsed with the particulars of any payments made, and may be according to the Form No. 17 in the said Schedule B. (1).

(7). A strict attention to the forms in the schedule is unnecessary (Norton Form of v. Johnson, 7 Ir. Jur. O. S. 126); but a defence which is irregular or em- defence. barrassing may be set aside on motion.

Where a defence in the form prescribed for an ejectment on the title was pleaded in an ejectment for non-payment of rent, it was set aside as a nullity, (Phillips v. M Eroy, 7 Ir. Jur. O. S. 126).

A defence in an ejectment for non-payment of rent, stating that the defendant had paid the rent, but not setting forth particulars by indorsement, will be set aside (Smith v. Gilroy, 7 Ir. Jur. O. S. 47; Hughes v. Brown, 13 Ir. C. L. R. App. 5; Moore v. Fisher, 5 Ir. Jur. N. S. 291).

A defence of set-off cannot be pleaded to an ejectment for non-payment Set-off. of rent (Cahill v. Kearney, Ir. R. 2 C. L. 498).

Where, in an ejectment for non-payment of rent, the defendant named in the ejectment is desirous of traversing the plaintiff's title, it is a good defence to plead that "the defendant does not hold the premises in the plaint mentioned as tenant to the plaintiffs as alleged" (Keene v. M'Blaine, 17 Ir. C. L. R. 654; Elgee v. O'Hare, 3 Ir. L. T. 468; Dexter v. Lloyd, 10 Ir. Jur. N. S. 116). If there are several defendants named in the writ, one of the defendants may plead "that he, together with the other defendants in the suit, does not hold the lands in the plaint mentioned in manner and form

Partial defence. 15 & 16

174.

therein alleged" (Murphy v. Carey, 12 Ir. C. L. R. App. 9; 17 Ir. C. L. R. 658 in notis). See also as to this form of defence, Figgis v. Hickey, 7 Ir. Jur. O. S. 160; Dillon v. Mangan, 1 Ir. Jur. N. S. 335; Bell v. Beatty, 6 Ir. C. L. R. 399; Gore v. M'Cullagh, 2 Ir. Jur. N. S. 116.

199. Any person taking defence as aforesaid to an ejectVict. c. 76, s. ment on the title shall be at liberty to limit his defence to a part only of the property mentioned in the writ, describing that part with reasonable certainty, otherwise the defence shall be deemed to apply to the whole; but a defence to an ejectment for non-payment of rent shall be a defence for all the lands and premises in the summons mentioned; and in case a defendant shall desire to take defence for part only of the premises, upon the ground that such part was not included in the lease or other instrument sought to be evicted, he shall make a special application to the Court for that purpose (m).

Defence of persons not named or in

& 16 Vict. c. 76, ss. 172,

(m) As to partial defences in ejectments for non-payment of rent, see Nicholson v. Ejector, Cr. & D. Abr. N. 418; Hutchinson v. Ejector, 13 Ir. L. R. 380.

Where a general defence was taken to an ejectment for non-payment of rent, it was held that it was not competent for the defendant to prove at the trial that the premises in his possession were not a portion of those comprised in the declaration (Mayor of Kilkenny v. Ryan, 2 Ir. Jur. O. S. 87).

Where one of the several defendants in an ejectment for non-payment of rent applied for leave to take a limited defence for a small portion of the lands sought to be evicted, the Court in granting the application allowed the plaintiff to enter into possession of those parts of the lands for which defence had not been taken (Boyce v. Shehan, 3 Ir. Jur. O. S. 851).

200. Any other person not named in or served with such writ shall by leave of the Court or a Judge, be allowed to possession. 15 defend, on filing an affidavit showing that he is in possession of the land, either by himself or his tenant (n); and the Court or a Judge shall have power to strike out or confine any defence set up by a person not in possession by himself or his tenants ().

176.

Who may

(n) Any person named in or served with the writ of summons and plaint take defence. in ejectment, whether in possession or not of the premises sought to be recovered is entitled as of right to appear and take defence (Marquis of Ormond v. Burke, 6 Ir. Jur. O. S. 112).

Under the present section any other person not named in or served with the writ who is in possession either by himself or his tenant, may take defence by leave of the Court or a Judge. The application in such cases must be made by motion on notice (Meath v. Strong, 2 Ir. Jur. N. S. 394); and if

a prima facie case of possession be made out, the Court will not entertain nice questions as to the right of possession, and will allow a defence to be filed as a matter of right (Croft v. Lumley, 4 E. & B. 608; Butler v. Meredith, 11 Exch. 85).

If the application is made in due time the person applying will not be required to give security for costs although resident out of the jurisdiction (Butler v. Meredith, 11 Exch. 85).

Where a party had issued an elegit but had not obtained possession, leave to take defence was refused, although he had recovered in an ejectment on the elegit (Croft v. Lumley, ubi supra).

A person who has obtained leave to take defence has all the rights of an ordinary defendant, and if the summons and plaint is not filed within two months he may rule the plaintiff under sect. 38, ante (Dwyer v. Commissioners of Public Works, 6 Ir. Jur. O. S. 247).

defence.

(0) Where an ejectment on the title was brought for the recovery of a Confining farm, and the occupying tenants holding separate parcels took defence for the entire premises, an order was made that they should confine their defence to the parts in their possession (O'Hara v. Griffin, 1 Law Rec. N. S. 93; M'Kee v. M'Kee, 1 Law Rec. O. S. 422); but where the occupiers of part of a house took defence for the entire, the Court refused to restrict the defence to the part in the defendant's possession (Browne v. Mason, 1 Jebb & Sym. 31); and see, also, White v. Rumgon, Hay & J. 255; Power v. Connellan, 9 Ir. L. R. 266; Doe d. Lloyd v. Roe, 15 M. & W. 431.

fence. 15 &

by

16 Vict. c. 76,

s.

177.

201. In case no defence be filed within the time appointed Jument or if the defence filed be limited to part only, the plaintiff want of deshall, on filing an affidavit of the service of the summons and plaint, be at liberty to sign a judgment that the plaintiffs shall recover possession of the land, or of the part thereof to which the defence does not apply; and such judgment, if for all, may be in the Form No. 18. contained in the Schedule B. to this Act annexed, or to the like effect, without any award of costs, but without prejudice to the plaintiff's right to have the costs taxed by the proper officer, and to proceed by action for recovery of mesne rates and costs, or either of them; and the said judgment for part may be in the Form No. 19. contained in the said Schedule B. to this Act annexed, or to the like effect; and a memorandum of such judgment shall be recited in the abstract of Nisi Prius or judgment thereafter to be made up (p).

(p.) Where a defence is filed within the time appointed, or the defence Judgment by filed is limited to part only, the plaintiff is entitled to sign a judgment for default. the recovery of the land or of the part to which the defence does not apply, but no costs are recoverable under such a judgment, and the rent or mesne rates, if claimed, and the costs must be recovered by an action of trespass for mesne profits (Farquhar v. Kelly, 4 Ir. C. L. R. 490; Johnson v. Garde, ibid., 490 n. 7 Ir. Jur. O. S. 239).

The present section is applicable to a case where a defence has been filed, but has subsequently been set aside for irregularity (Johnson v. Garde, ubi supra).

The 58th section of the 23 & 24 Vict. c. 154, provides, that "in any ejectment for non-payment of rent brought in any of the Superior Courts of Law, when the tenant shall not take defence to the ejectment, the affidavit of the landlord, his agent, receiver, or clerk stating the amount of rent due at the time of the bringing of the ejectment, over and above all just and fair allowances, shall be sufficient evidence of the amount due, and shall, when the same amounts to or exceeds one year's rent, entitle the landlord to judgment for the possession of the premises, provided an affidavit of the service of the summons and plaint in such ejectment shall have been duly filed according to the practice of the Court." And see section 206, post.

By the 3 G. O., 22nd January, 1856, the filing of the ejectment or a copy thereof for the purpose of enforcing an appearance and defence by any person who has been served is deemed to be a sufficient filing for the like purpose, as against any person or persons subsequently served, so as to entitle the plaintiff to enforce an appearance and defence from each person, so subsequently served; but no person served is permitted to defend after the time allowed for that purpose, and only one judgment is to be entered, which judgment is not to be entered until the time for taking defence allowed to the person last served has expired.

202. In case a defence shall be filed, an abstract of the issue for Nisi Prius may at once be made up by the plaintiffs or their attorney, setting forth the writ, and stating the fact of the defence, with its date, of each of the persons taking defence, so that it may appear for what defence is made; and such abstract may be in the Form No. 20. contained in Schedule B. to this Act annexed, or to the like effect, and such abstract shall be lodged with the pleadings assistant in the manner herein-after provided; and the question at the trial, except in the case herein-after mentioned, shall be whether the statement of the title of the plaintiffs in the summons and plaint is true or false, and if true, then which of the plaintiffs is entitled, and whether to the whole or part, and if to part, then to which part of the property in question, and whether to any, and, if any, to what damages by way of compensation for loss of mesne rates and profits; and upon the trial of any issue in an ejectment for non-payment of rent the amount of the rent due to the plaintiff shall be found by the jury (4).

(9) The form of issue set out in Schedule B. may be varied according to the defence pleaded.

As the general provisions of the Act are applicable to ejectment, if the plaintiff neglects to make up the abstract, the defendant may proceed to have

the abstract of issues settled in the same manner as the plaintiff might have done, sect. 107.

203. The proof of title in any one or more of several Proof of title. plaintiffs in ejectment shall be sufficient to entitle a verdict

to be entered for such plaintiff or plaintiffs; and it shall not be necessary to produce or prove upon any trial of an ejectment the affidavit of service of the writ of summons.

when title

appears to

before trial

204. In case the title of the plaintiff (r) shall appear to have Verdict existed as alleged in the writ at the time of service thereof, but it shall also appear to have expired before the time of trial, have expired the plaintiff shall, notwithstanding, be entitled to a verdict, 15 & 16 Vict. according to the fact that he was so entitled at the time of c. 76, s. 181. bringing the action and serving the writ, and to a judgment for his costs of suit (s).

(r) The "title of the plaintiff" means his right to possession of the premises for which the ejectment is brought, at the time of the issuing of the summons and plaint. Under the former practice the Court would not stay the proceedings in an ejectment on the ground of the lessor's title having expired after action brought, because, although possession could not be obtained, the plaintiff was entitled to proceed for damages and costs (Thrustout v. Gray, 2 Str. 1056; Dodd. Butt v. Rous, 1 E. & B. 419).

(s) Where a defendant in ejectment who claimed under an unregistered lease subsequent in date to an unregistered lease under which the plaintiff derived, registered his lease after action brought and before the trial, it was held, that the plaintiff was entitled to a verdict and judgment under the present section (Ryan v. Landers, 9 Ir. C. L. R. 487).

Where an ejectment for overholding was brought by a lessee of a term against a sub-lessee of the same term less ten days, and the writ was issued before the expiration of the plaintiff's term, but at the time of the trial both the plaintiff's and the defendant's terms had expired, it was held, that, in the absence of any affirmative evidence that the plaintiff had no other title besides the term that had expired, the plaintiff's title must be taken to be good as against the defendant, and he was entitled to a writ of habere (Gubbins v. Buckland, 1 H. & C. 736; S. C. 32 L. J. Ex. 156).

205. If the defendant appears, and the plaintiff does not appear at the trial, the plaintiff shall be nonsuited; and if the plaintiff appears, and the defendant does not appear, the plaintiff shall be entitled to a verdict, without any proof of his title, and in case of ejectment on the title shall be entitled to prove the amount of damages sustained by reason of the loss of the mesne rates and profits, and in case of an ejectment for nonpayment of rent shall be entitled to prove the amount of rent actually due, and to have a verdict for the same.

Non-appearance at tral.

15 & 16 Viet.

c.

76, s. 183.