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 skall 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 How judg married woman, of unsound mind, or out of Virginia ment opened. 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 persous, 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 presence 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 partition. 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

When under sheriff may execute.

Judgment in

Tenure not

unto the tenants, as they were bound to do by leases or altered by grants, respectively: And any demandant who was judgment.

tenant, in actual possession, to the tenant to the action for his purpart 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 a money 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

vernment, or with an agent thereof, to supply the army or navy with provision or other articles, at the emanation of the writ he shall file a declaration, with an assignment of the breaches, which with the writ shall be delivered to the officer to whom that is directed, and served upon the defendant, fifteen days or more before the return day; and on such return day, or on the return day of the subsequent process, in case the preceding be not legally served, if the defendant appear and make up an issue, or if he appear not, or appearing, refuse to make up such issue, a jury shall be impannelled instantly, unless good cause be shewn for deferring it, to try the issue or inquire of the damages. And in like cases, the agents or contractors of the confederating states of America may, by the like remedy, on behalf and in the name of the said states recover money due to them.

CHAP. LXII.

An act for recovering demands of a small value in a summary way.

From Rev. Bills of 1779.

ch CIX.

BE it enacted by the General Assembly, That any Petitions and debt, or penalty, amounting to more than twenty-five summons for shillings, or two hundred pounds of tobacco, and not small ac exceeding one hundred shillings, or eight hundred counts, how prosecoted. pounds of tobacco, may be demanded by petition to the court of a county, city or borough. The clerk of the peace shall draw the petition, stating therein how the debt become due, or by breach of what act of general assembly the penalty was incurred, and shall issue a summons directed to the sheriff, or other proper officer, commanding him to summon the defendant to appear and answer the petition; and the defendant being summoned ten days at least before the return day, and being at the same time served with a copy of the petition, together with a copy of the account, which shall be filed, when the debt shall have arisen by account, the conrt shall and may hear and determine the VOL. XII. U2

matter in dispute in a summary way, and give such judgment as shall appear to be just. And any person may, by petition to be served and tried in like manner, demand and recover goods detained, or the value of them, and damages for the detention, or damages for goods found by the defendant and converted to his use, where the goods, with the damages, are not of greater value than one hundred shillings, or eight hundred pounds of tobacco. And whosoever shall bring any other action, than a petition, if it appear, either by his own shewing in the declaration, or by the verdict of a jury, that he might have brought a petition by this act shall be non-suit.

From Rev. Bills of 1779, ch. CX.

Collusive po.

no bar.

CHAP. LXIII.

An act providing that actions popular prosecuted by collusion, shall be no bar to those which be pursued with good faith.

BE it enacted by the General Assembly, That if any pular actions, person hereafter sue with good faith any action popular, and any defendant in the same action plead any manner of recovery by action popular, in bar of the said action, or that he before that time barred any plaintiff in any such action popular, then the plaintiff in the ac tion taken with good faith may aver that the said recovery in the said action popular was had by covin, or else may ever that the said plaintiff was barred in the said action popular by covin: Then if after the said collusion or covin so averred, be lawfully found, the plaintiff in that action sued with good faith, shall have recovery according to the nature of the action, and execution upon the same, in like wise and effect as though no such afore had been had. Provided always, That no plaintiff be in any wise received to aver any covin, in any action popular, where the point of the same action, or else the covin or collusion shall have

been once tried, or lawfully found with the plaintiff or against him by trial of twelve men, and not otherwise. If the prosecutor of an action or information for the recovery of any penalty not wholly appropriated to the use of such proprietor, shall compound with the offender, or direct such suit or information to be discontinued, unless it be by leave of the court wherein the said suit or information shall be depending, such persecutor shall be liable for so much of the penalty to the commonwealth, or any other, as they would have been entitled to if the defendant had been convicted.

CHAP. LXIV.

From Rev.

Bills of 1779,

An act for preventing veratious and ch. CXI. malicious prosecutions, and moderating amercements.

BE it enacted by the General Assembly, That every Security for action at common law, or suit in equity, commenced costs. in the name of a person, not residing in Virginia, unless he be employed abroad in the service of the commonwealth, or of the United States of America, shall be dismissed if security be not given with the clerk of the court from whence the process shall issue, or wherein it shall be depending, within sixty days after notice, shall, at any time during such non-residence, have been given to the demandant, or plaintiff, or his attorney, by some person interested, that such security is required for payment of the costs and damages which may be awarded to the tenant or defendant, and also of the fees which will become due to the officers of the court. No information for a trespass or misdemeanor, shall be filed in any court but by express order of the rules for court, entered on record, nor unless the party suppos- filing. ed to be culpable shall have failed to appear and shew good cause to the contrary, having been required so to do by a summons, appointing a convenient time for that purpose, served upon him, or left at his usual

Information,