Of the Writ of Partition, &c.

and contrary to the form of the faid ftatute, as
they fay; and have you there the fummoners, and
this writ. Witness Ourself at Westminster, the
day of
in the nineteenth year of

our reign.

Upon this writ the fheriff fhould fummon the tenants, and upon the return thereof, affidavit of the service of fuch writ should be made according to the ftatute, to this effect:

Between {

SA. B. and C. D. demandants,
and E. F. tenant.

I. M. and O. P. of

officers to the fheriff of.

feverally make oath, and fay, that they

the faid deponents did on the

day of in the year of our Lord 1779, ferve the above named E. F. tenant, with the writ of partition in this caufe, by delivering to and leaving with the faid E. F. a copy of the faid writ, and acquainting him with the contents thereof; and thefe deponents did, on the faid

of

day

in the faid year of our Lord 1779, deliver to and leave with P. Q, R. S. T. V. &c. the occupiers of the meffuages, lands, and tenements, in the faid writ mentioned, a true copy of the fame writ.

Sworn, &c.

Upon default of appearance in court, the demandants fhould fue out a pone or attachment, which is to this effect:

of

GEORGE the third, &c. To the fheriff of greeting Put by fureties and fafe pledges, E. F. that he be before our juftices at Weftminfter in eight days of St. Hilary, to anfwer A. B. and C. D. wherefore the faid A. B. C. D. and E. F. hold together and undivided the manor of with the appurtenances, &c. [as in the writ] of which the faid E. F. denieth partition to be made between them according to the form of the ftatute in fuch cafe made and provided, and unjuftly permitteth

T 3

Of the Writ of Partition, &c.

permitteth not the fame to be done; and to fhew wherefore he was not in our court before our juftices at Westminster, on the morrow of All Souls last paft, as he was fummoned, and have there the names of the pledges and this writ.

Witness, &c.

This writ fhould be ferved in the fame manner as the writ of partition was, and the parties fhould be informed of the

contents.

This pone fhould bear tefte on the quarto die poft of the return day of the writ of partition, and there must be fifteen days between the tefte and return of it at least; and by the ftatute of 8 & 9 W. 3. ante, there must be at least forty days between the service of the writ of partition and the return of the pone or attachment.

Of

Of the Declaration in Partition.

F the tenant or tenants do not within fifteen days after

If the return of the tone or attachment caufe an appearance

to be entered, the demandant or demandants may enter their declaration, and the court will proceed to examine his or their title; and if they find the right with the demandant there fhall be judgment by default for fo much, and a writ awarded to the fheriff to make partition.

Or if the defendant appears, the plaintiff must declare. The declaration is in the following form:

to wit, E. F. of in the county aforesaid,
was fummoned to answer A. B. and C. D. of a
plea, wherefore, whereas, the faid A. B. C. D.
and the faid E. F. hold together and undivided,
the manor of. with the appurtenances, &c.
[fpecify the premifes according to the writ] of
which the faid E. F. denieth partition to be made
between them according to the form of the ftatute
in fuch cafe made and provided, and unjustly permit..
teth not the fame to be done, and contrary to the
form of the ftatute: And whereupon the faid
A. B. and C. D. by
their attorney, fay,

that whereas they and the faid E. F. hold together
and undivided the tenements aforefaid, with the
appurtenances, whereof it belongs to the faid
A. B. and C. D. and their heirs, to have one
moiety of the tenements aforefaid, with the appur-
tenances, to hold them in feveralty, fo that the
faid A. B. and C. D. of their moiety belonging to
them of the tenements aforefaid, with the appur-
tenances; and the faid E. F. of his moiety belong-
ing to him of the tenements aforefaid, with the
appurtenances; may feverally apportion them-
felves: He the faid E. F. denieth partition there-
of to be made between them according to the
form of the ftatute in fuch cafe made and pro-
vided, and unjustly permitteth not the fame to be
done, and contrary to the form of the faid ftatute;
whereupon they fay, that they are injured, and
have damage to the value of one hundred pounds,
And therefore they bring fuit, &c.

The declaration by one parcener or joint-tenant against the others, muft fhew how they are joint tenants. Cro. El. 64.

T 4

But

Of the Declaration in Partition.

But not where they are tenants in common, for they claim by feveral titles, and one is not conufant of the others title. R. Cro. El. 64.

So, if they are parceners, &c. a declaration which fhews that it was the inheritance of the common ancestor in tail, is fufficient without fhewing how the eftate tail is commenced. Dy. 79. b.

But if the declaration fays that the plaintiff and defendant were seized in fee, where it is found that the defendant has only in tail, the writ abates. R. Cro. El. 760.

Of

T

Of Pleading in Partition.

O the declaration there can be no plea in abatement, fince the ftat. 8 & 9 W. 3. c. 31. f. 3. Nor fhall the writ abate by the death of defendant. Ibid.

And if he pleads in bar, he can plead no other plea than non tenent infimul, for every other plea in bar is tantamount to non tenent infimul.

Upon which plea iffue may be taken, and the parties proceed to trial as in other cafes.

But the party may confefs the action, and consent that partition may be made.

In a writ of partition no damages fhall be recovered, nor an enquiry of them. Noy 68, 143. for it is a real action.

Of