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taken to be dead, &c. And by s. 3. if it shall afterwards appear upon proof in any action, that such infant, &c., were alive at the time of such order made, such infant, &c., or other person having any estate determinable upon such life, may re-enter upon said lands, and maintain an action against those who received the profits, or their executors or administrators, and therein recover damages for the profits received. By.s. 4. if such guar S. 4. dian, &c., holding or having any estate determinable upon the life of any other person, shall to the satisfaction of the court make appear, that they have used their utmost endeavours to procure such infant, &c., to appear in court or elsewhere, according to the order; and that they cannot procure such infant, &c., to appear, and that sach infant, &c., were living at the time of such return made and filed; such person may continue in possession of such estate, as if this act had not been made. And by s. 5. every person who is guardian or trustee for any
s. 5. infant, and every husband seised in right of his wife, and every other person having any estate determinable upon any life, who after the determination of such particular estates, without the express consent of them who are next entitled upon the determination of such particular estates, shall hold over and continue in possession of any lands, shall be adjudged trespassers; and every person, his executors and administrators, who shall be entitled to · such lands upon the determination of such particular eso tates, shall recover in damages against every person so holding over, and against his executors or administrators, the value of the profits received during such wrongful possession. This statute has remained without adoption in Ireland.
In analogy to the principle of law which restrains the limitat limitations of remainders, and executory devises, within rents, 8¢. re.
**** strained so as tę certain bounds, so as to avoid perpetuities, which the law avoid perpetuiabhors; the 40 Geo. 3. c. 98. Eng. provides, that no 20 Geoa
ties, person shall by any deed, surrender, will, codicil, or c. 98. Eng. otherwise, settle or dispose of any real or personal property, in such manner that the rents, issues, profits, or produce thereof, shall be wholly or partially accumulated
for any longer time than the life or lives of the grantoror grantors, settler or settlers; or the term of 21 years from the death of such grantor, settler, devisor, or testator; or during the minority or minorities of any person or persons who shall be living, or in ventre sa mere at the time of the death of such grantor, &c.; or during the minority or minorities of any person or persons who, under the uses or trusts of the deed, &c., directing such accumulations, would, for the time being, if of full age, be entitled to the rents, issues, and profits, or the interest, dividends, or annual produce so directed to be accumulated; and where any accumulation shall be directed otherwise than as aforesaid, such direction shall be void, and the rents, &c., shall go to, and be received by, such person as would have been entitled thereto if such accumulation had not been directed. But by s. 2. this act shall not extend to any provision for payment of debts of any grantor, &c., or for raising portions for any child of such grantor, &c., or any child of any person taking any interest under any such conveyance, settlement, or devise ; or to any direction touching the produce of timber or wood, upon any lands or tenements : Nor by s. 3. shall this act extend to any disposition respecting heretable property in Scotland. By s. 4. the restrictions in this act shall take effect with respect to wills made before the passing of this act (July 28, 1800) in such cases only where the devisor or testator shall be living, and of sound and disposing mind, after the expiration of 12 calendar months from the passing of this act. This statute has not been extended to Ireland.
Of Estates in Sereralty, Joint-tenancy, Coparce
nary, and Common.
31 Hen. 8. c. 1
DY the 31 Hen. 8., c. 1. s. 2. Eng. all joint-tenants, Joint-tenants. and tenants in common, of any estates of inheritance, 8c., compelluble,
to make partiin their own rights, or in right of their wives, shall be tion of estates
is of Inheritunse. compelled to make partition by writ de participatione jacienda, to be devised in chancery, in like manner as co- s. 2. Eng. parceners by the common law. And by s. 3. every of S. 3. the said joint-tenants, or tenants in common, and their heirs, after partition made, shall have aid of the other
to deraign the warranty paramount, and to recover for the rate, as is used between coparceners. The, 32 Hen. 8. c. 32. Eng. further provides, that joint-tenants 39 Hen. 8. and tenants in common, for term of life or years, or C. 3%. where one of them shall have an estate for life or years And of estates with the other that shall have an estate of inheritance or for life or years.. freehold in any lands, &c., shall be compellable by writ of partition out of chancery, upon their case, to make partition. But by s. 3. no partition to be made by force of s. 3. this act, shall be prejudicial to any persons, their heirs or successors, other than such as be parties* to the parti- * " or privy" tion, their executors or assigns. The 33 Hen. 8. st. 1. 33 Hen. 8. st. 1. c. 10. Ir. incorporates both these statutes. But a new c. 10. Ir: method of proceeding on the writ of partition is chalked out and provided by the 8 & 9W.3. c. 31. Eng. which 8 & 9W.3. enacts, that after process of pone or attachment returned “em upon a writ of partition, affidavit being made of due no- Mode of pro
cecding on writ tice given of the writ to the tenant to the action, and a of partition. copy thereof left with the occupier or tenant, or if they cannot be found, to the wife, son or daughter, (being of the age of 21 years) of the tenant, or to the tenant in
possession, (unless the said tenant in possession be demandant in the action) at least 40 days before return of the pone or attachment; if the tenants to such writ, or any of them, or the true tenant to the lands, &c., shall not within 15 days after the return of such pone or attachment, cause an appearance to be entered, the demandant having entered his declaration, the court may proceed to examine the demandant's title, and quantity of his purpart, and according as they shall find his right, &c. shall for so much give judgment by default, and award a writ to make partition, whereby such purpart may be set out severa'ly; wlich being executed after 8 days notice given to the occupier or tenants, and returned, and final judgment entered, the same shall conclude all persons concerned, though not named in the proceedings, nor the title of the tenants truly set forth. But by s. 2. if such tenant or person concerned, shall, within one year after the first judgment entered, or in case of infancy, coverture, non sanæ memorie, or absence out of the kingdom, within one year after their return, or the determination of such idability, apply to the court by motion, and shew a good and probable matter in bar of such partition, or that the demandant hath not title to so much as he hath so recovered, the court may suspend or set aside such judgment, and admit the tenant to appear and plead: and if the court upon hearing thereof, shall adjudge for the first demandant, the first judgment shall stand confirmed against all persons, except such other persons as shall be absent or disabled ; and the person so appealing shall be awarded to pay costs : or if within such time aforesaid, the tenants or persons concerned, admitting the demandant's title and purparts, shall shew to the court any inequality in the partition, the court may award a new partition to be made in presence of all parties, if they will appear; which second partition being returned and filed shall be good against all persons, except as before. By s. 3. no plea in abatement shall be received in any suit for partition, nor shall the same be abated by the death of any tenant, By s. 4. when the high sheriff by reason of distance, infirmity, or hindrance, cannot conveniently be present at
the execution of any judgment in partition, the undersheriff, in presence of 2 justices of peace, &c., may proceed to execution by inquisition; and the high sheriff thereupon shall make the same return as if he were personally present: and the tenants of the lands shall be tenants for such part set out severally to the respective landlords or owners, under the same conditions, rents, and reservations; and the owners of the several purparts sball make good unto their respective tenants the said parts severally, as they were bound to do before partition made: and in case any demandant be tenant in possession to the tenant to the action, the said tenant shall stand possessed of the said purpart for the like term, and under the same conditions and covenants, when set out in severalty. And by s. 5. the sheriffs, their under-sheriffs and deputies,
s. 5. and in case of sickness or disability in the high sheriff, all justices of peace, &c., shall give due attendance to the executing such writ of partition, (unless reasonable cause be shewn to the court upon oath) or otherwise be liable to pay to the demandant such costs and damages as shall be awarded by the court, not exceeding £5, for which the demandant may bring his action, &c., in any of his majesty's courts at Westminster. And in case the demandant doch not agree to pay to the sheriffs or under-sheriffs, justices and jurors, such fees as they shall demand, the court shall award what each person shall receive, having respect to the distance of the place from their habitations, and the time they must spend, for which they may severally bring their actions as aforesaid.
The 9 W. 3. c. 12. Ir. is nearly corresponding, which , W. 3. c. 19. enacts (s. 1.) that after process of summons or attachment Ir. upon any writ of partition returned, and affidavit made thereupon that due notice in writing hath been given of said writ to the tenant to said writ, and a copy thereof left with the occupier or tenant in possession of said lands, or if any of them cannot be found, then to the wife, son or daughter (being of the age of 21) of such tenant to the writ, or tenant in possession, (unless such tenant in possession be demandant in the action) 40 days before the return of said summons, &c.; if such tenant to the