Testatum praecipe.

the land demanded lieth, a like writ of exigi faciae shall also be directed to the sheriff of the latter county, and in either case a copy of such writ shall within four weeks after the teste thereof, be printed in the Virginia Gazette; and the said writ or writs of exigi facias being returned in due form, and being printed as aforesaid, if the tenant shall not appear at the court to which the same is or are returnable, judgment shall be entered, that the demandant recover his seisin against the tenant. Where the præcipe quad reddat New prae- shall issue from the court of a county, city, or bocipe. rough, if return thereof be made that the tenant is not found in the bailiwick of the officer to whom it was directed, the demandant may sue forth a new præcipe every court, for five courts following, successively, if the tenant be not by one or other of them before summoned; and when the residence or last place of abode of the tenant shall be out of the county, city, or borough, in which the land demanded lieth, a testatum præcipe shall also be directed to the sheriff or proper officer of the latter county, city, or borough; and in either case a copy of the first of the said five præcipes, shall within four weeks after the teste thereof, be printPublication. ed in the Virginia Gazette, and a copy of that and every other of them, shall, within fourteen days after the tește of each, be set up at the door of his courthouse by the officer to whom it shall be directed, and who by an endorsement on such writ, shall be required by the clerk to do so, and return of the said five writs being made that the tenant is not found in the bailiwick or bailiwicks of the officer or officers, to whom they were directed, and that they had been set up as is before directed; and the first of them being printed as aforesaid, if the tenant shall not appear at the court to which some one of the said writs was returnable, judgment shall be entered, that the demandant recover his seisin against the tenant; but if the tenant, against whom without having appeared, or without having been summoned, any such judgment shall be rendered, shall be out of Virginia, at the time of the suit brought, the judgment shall be no bar to an action commenced by him, or any claiming under him, to be restored to the land recovered, within a year and a day after he or they shall come into the country, or remaining out of it, within seven years after the judg

ment; in which action or in a separate one, damages may also be recovered. If the tenant whether sum

moned or not shall appear, and afterwards make de- Judgment by fault, judgment shall be entered against him; and if default. having been summoned he shall not appear, the court shall make an order, that, unless he appear at the then next court, or see judgment shall be entered against him, which shall be entered accordingly, if a copy of that order being delivered to him or left at the place of his usual abode, fifteen days, or more, before such next court, and affidavit thereof being made, he shall not then appear. If the demandant or tenant, against whom any such judgment shall be rendered, at the time of the suit brought, shall be an infant, a married woman, or a person of unsound mind, the judgment shall be no bar to another action, commenced within five years after attainment of full age, discoverture, or recovery of understanding, or within the same time after the death of such privileged person.

CHAP. LX.

From Rev. Bills of 1779,

An act concerning partitions and ch. CVI. joint rights and obligations.

tenants in

common:

BE it enacted by the General Assembly, That all Partition bejoint tenants, or tenants in common, who now are, or tween joint hereafter shall be, of any estates of inheritance in their tenants and own rights, or in the right of their wives, and all joint tenants, or tenants in common, who now hold or hereafter shall hold, jointly, or in common, for term of life or years, with others who have, or shall have estates of inheritance, or freehold in any lands, tenements, or hereditaments, may be compelled to make partition between them, of such lands, tenements, and hereditaments, as they now hold, or hereafter shall hold, as joint tenants, or tenants in common, by writs de partitione facienda, the forms whereof shall be devised in the general court, and adapted to the cases aforesaid: But no such partitions between joint tenants, or tenants in common, who hold or shall hold estates for

Right of survivorship abolished.

tition.

term of life or years, with others holding equal or greater estates, shall be prejudicial to any entitled to the reversions or remainders, after the death of the tenants for life, or after the expiration of the years. If partition be not made between joint tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first, shall not accrue to the survivors, but shall descend or pass by devise, and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint tenants had been tenants in common. Joint obliga. The representatives of one jointly bound with another tions effect of for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the life-time of the latter, may be charged by virtue of such obligation, in the same manner as such representatives might have been charged if the obligors had Writs of par- been bound severally as well as jointly. Partition may be demanded by one and the same writ, of all the several parcels of land or other real estate to which the parties have title, and execution thereupon done by the sheriff and jury, as heretofore, or by special commissioners to be appointed by the court, with assent of the parties, by allotment to each party of part in each parcel, or of parts in one or more parcels, or of one or more individual parcels, with or without the addition of Pleas in a. a part or parts of other parcels, as shall be most for the batement not interest of the parties in general. No plea in abatement shall be received in any suit for partition, nor shall it abate by the death of any tenant. After a writ of partition returned, affidavit being made by some credible person, that due notice of the writ had been given to the tenant or tenants to the action, and that a copy thereof had been left with him, her, or them, if he, she, or they could be found, or if not, that such notice had been given to, and a copy left with the wife, son, or daughter, being of the age of twenty one years, or upwards, and at the usual place of abode of such as could not be found, or the person in actual possession not being the demandant of the lands whereof partition is demanded, twenty days or more before the day of return, if the tenant or tenants shall not cause an appear

admissible.

ance to be entered, at the time by law appointed, or within one month thereafter, the demandant having filed his or her declaration, the court may proceed to examine his or her title, and the quantity demanded, Judgment by and shall give judgment by default, for so much as he default. or she shall appear to them to have a right to, and award a writ to make partition, which being executed, after eight days notice given to the persons mentioned before, judgment final shall thereupon be given, which shall be as binding as if it had been given after an appearance; and upon a trial, unless any tenant within one year after the first judgment, or being an infant, a inarried woman, of unsound mind, or out of Virginia ment opened: How judg within one year after attainment of full age, death of the husband, recovery of understanding, or return to the country, respectively by motion to the court, either admitting the demandant's right and purpart, shall shew inequality in the partition, in which case the court may award a new partition to be made, and that in presence of all the parties, if they choose to attend it; and the second partition shall be as binding as if the tenant had appeared and pleaded in the first instance, or else shall shew sufficient matter in bar of the partition, or that the demandant hath not title to so much as he or she hath recovered, in which case the court inay suspend or set aside the judgment, and admit the tenant to appear and plead, and the cause shall proceed as if no judgment had been given, and if upon the trial thereof, the court shall give the same judgment as the first, it shall stand confirmed, and the person or persons, in whose behalf the motion was made, shall be awarded to pay costs. The under sheriff, when the high sheriff cannot conveniently attend, may in pre- When unde. sence of two justices of the peace, proceed to the execution of a judgment in partition, by inquisition in due form of law, and the high sheriff shall make the same return as if he had acted in person. They who were tenants of the messuages, lands, tenements, and hereditaments or any part thereof, before they were divided, shall hold the same of the landlords, to whom they shall be allotted by the partition in severalty, under the same conditions, rents, covenants and reservations, and the landlords shall warrant the several parts unto the tenants, as they were bound to do by leases or altered by grants, respectively: And any demandant who was judgment.

sheriff may

execute.

Judgment in partition.

Tenure not

tenant, in actual possession, to the tenant to the action for his púrpart of the messuages, lands, tenements, and hereditaments, divided by virtue of a writ of partition, or any part thereof, shall hold it for the same term, and under the same conditions and covenants when it shall be allotted in severalty.

From Rev. Bills of 1779, ch. CVIII.

Public debt.

CHAP. LXI.

An act for speedy recovery of money due from certain persons to the public.

BE it enacted by the General ssembly, That when ors, summary any person who hath received, or shall receive, public remedy amoney from the treasurer for recruiting or paying the gainst. army, building, rigging, or furnishing ships or vessels of war, erecting fortifications, buying clothes, provision, arms, or ammunition, erecting or prosecuting public manufactories, or for other public use, hath not applied, or shall not apply the said money accordingly, or hath neglected, or shall neglect, to account for and repay so much thereof as shall remain unapplied, upon a motion on behalf of the commonwealth, made to any court of record, notice thereof in writing having been given ten days or more to the delinquent, with a state of the matter alledged against him, either by delivering copies of such notice and allegation to him, or leaving them at the place of his usual abode, the said court may give judgment, and award execution against him and his sureties, for so much as a jury to be impannelled instantly, unless good cause be shewn for deferring it, for trial of an issue, if he appear, and make it up, or for enquiry of damages if he appear not, or appearing, refuse to make up such issue, shall find to be due from him, on any such account as aforesaid, with damages, to be assessed by the jury, and costs. When the attorney prosecuting on behalf of the commonwealth, shall commence an action for breach of a contract, which hath been or shall be entered into with go