Praecipe.

Count.

Plea

of late, the claimant or demandant of an estate in fee simple may sue forth against the possessor or tenant a writ of præcipe quad reddat; which issuing from the general court shall be in this form or to this effect:The commonwealth of Virginia to the sheriff of E, greeting, command C. D. that he justly and without delay, render unto A. B.

tenement containing 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 in the year

day of

the
And issuing from the court of a county, city, or bo-
rough in the like form with necessary alterations; and
shall be directed to the sheriff of that county, or the
proper officer of that city or borough wherein the ten-
ant resideth, or that wherein was his last place of a-
bode. 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.
*tenement,

containing
of land with the appurtenances in
the county of E and bounded by
And where-
upon 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 tene-
ments 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 appurte-
nances, as of right namely
tenement contain-

ing

by

of land in the county of E, and bounded and putteth himself upon the assize, and prayeth recognition to be made, whether he hath great

*So in origizal, but it should be count, as in Revised bills of 1779, ch 195.

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 upon 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 twelve good and lawful men, qualified as jurors. are required to be, shall be elected, tried, and charged, as the manner is, to make recognition of the assize; which charge shall be in this form or to this effect: "You shall say the truth whether C. D. hath more. Charge to 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 demandeth." And at the trial, any mat- Evidence. ter may be given in evidence which might have been specially pleaded. And upon the verdict, or in the case of a demurrer, the like judgment shall be given, and 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 his costs of suit; and the demandant, if he recover his seisin, may also recover damages to be assessed by the recognitors of assize, for the tenants withholding possession of the tenement demanded. Where the præcipe 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

be hath not taining

county of E. Witness

at

day of the next court, to shew wherefore rendered unto A. B.

the

tenement con

of land, with the appurtenances in the
And have you then there this writ.--
chief justice of our said court
day of
in the year
And when the residence or last place of

abode of the tenant shall be out of the county, in which

Verd.

cipe.

Testatum praecipe.

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 against the tenant. Where the præcipe quad reddat New prae- shall issue from the court of a county, city, or borough, 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 teste 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 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 emaining 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 by fault, judgment shall be entered against him; and if 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 au 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

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 teRight of nants for life, or after the expiration of the years. If survivorship 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 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.

Pleas in a

missible.