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of late, the claimant or demandant of an estate in see
of land, with the appurtenances in the county of E, which he claimeth to be his right, and whereof he complaineth that the aforesaid C. D. doth withhold the possession. And unless he shall do so then summon the said C. D. that he appear before the justices of our general court at on the day of the next court, to shew wherefore he hath not done it. And have you then there this writ. Witness
chief justice of our said court at the day of
in the year
** And issuing from the court of a county, city, or borough in the like form with necessary alterations; and shall be direcied to the sheriff of that county, or the proper officer of that city or borough wherein the tenanı resideth, or that wherein was his last place of abode. Upon which writ the court* shall be in this form or to this effect: “E to wit: A. B. by F. G. his attorney, demands against C. D.
of land with the appurtenances in the county of E and bounded by
And whereupon the said A. B. saith that he hath right to have the tenement aforesaid, with the appurtenances, and offereth proof that such is his right." If several tenements be demanded in the same count, the contents, situations and boundaries of each shall be inserted therein. To which count the tenant may plead in this form or to this effect: “And the aforesaid C. D. by H. 1. his attorney cometh and defendeth the right of the said A. B. when and where it behoveth him and all that concerneth it, and whatsoever he ought to defend, and chiefly the tenement aforesaid with the appurtenances, as of right namely l enement containing of land in the county of E, and bounded by
and putte:h himself upon the assize, and prayetli recognition to be made, whether he hath great
* So in original, but it should be count, as in Revised bills of 1779, ch 105.
er right to hold the tenement aforesaid with the appurtenances, as he now holdeth it (or them) or the said A. B. to have it as he now demandeth it (or them.") And to such plea the replication shall be in this form or to this effect: "And the aforesaid A. B. Replication. in like manner putteth himself npon the assize, and prayeth recognition to be made whether he hath greater right to hold the tenement aforesaid as he demandeth, or the said C.D. as he holdeth it (or them.") Whereupon (welve good and lawtul men, qualified as jurors are required to be, shall be elected, fried, and charged, as the manner is, to make recognition of the assize; which charge shall be in this form or to this effect:
Charge to “ You shall say the truth whether C. D. hath more
jury. right to hold the tenement which A. B. demandeth against him, by his writ of right, or A. B. to have it (or them) as he deinandeth." And at the trial, any mal- Evidence. ier may be given in evidence which might have been specially pleaded. And upon the verdict, or in the case of a demarrer, the like judgment shall be given, and
Verd. upon such judgment, the like execution awarded, as in case of a writ of right; and the party, for whom judgment shall be given, shall recover bis costs of suit; and the demandant, if he recover his seisin, may also recover damages to be assessed by the recoguitors of assize, for the tenants withholding possession of the tenement demanded. Where the precipe quad reddat shall issue from the general court, 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 writ of exigi facias in this form or to this effect: "The commonwealth of Virginia to the Exigi fac as sheriff of E, greeting. We command you that you cause C. D. to be required, from county court to county court, until five courts be passed, if he doth not appear, and if he doth appear, then summon him that he be before the justices of our general court, at on the day of the next court, to shew wherefore he hath not rendered unto A. B. tenement containing of land, with the appurtenances in the county of E. And have you then there this writ.--Witness
chief justice of our said couri at the day of
in the year ." And when the residence or last place of abode of the tenant shall be out of the county, in wbich
the land demanded lieth, a' like writ of exigi facias 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 a
gainst 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 boTestatum
rough, in which the land demanded lieb, a testatun praecipe. præcipe shall also be directed to the sheriff or proper
oficer 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 printPablication, ed in the Virginia Gazette, and a copy of that and
cvery other of them, shall, within fourteen days after the teşle of eachi, be set up at the door of his courtliouse 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 er 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 jemaining 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 summoned or not shall appear, and afterwards make de- Judgment hy fault, judgment shall be entered against him; and if deraill. 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 bim or leti at the place of his usual abode, fifteen days, or more, before such next court, and affidavit thereof being made, be 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 actio:), 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,
From Rer. Bills of 1779,
joint ights and obligations.
tenants in common.
BE it ended by the General Assembly, That all partition bejoint tenants, or teliants 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 co tenants, or tenants in common, who now hold or hereafter shall bold, 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
term of life or years, with others holding equal or greater estates, shall be prejudicial to any entitled 10
the reversions or remainders, after the death of the teRight of nants for life, or after the expiration of the years. If survivorship partition be not made between joint lenants, whether abolished.
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 for
bearance of any act, or for any other thing, and dying in the life-time of the latter, may be charged by virtue of such obligatioir, in the same manner as such repre
sentatives might have been charged if the obligors had Writs o par. been bound severally as well as jointly. Partition may titions
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 entriot interest of the parties in general. No plea in abateelmissible. ment shall be received in any suit for partition, nor
shall it abale 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 wise, 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.