1

CHAP. VIII.

Of Estates in Severalty, Joint-tenancy, Coparcenary, and Common.

s. 3.

By the 31 Hen. 8., c. 1. s. 2. Eng. all joint-tenants, Joint-tenants, and tenants in common, of any estates of inheritance, &c., compellable. to make partiin their own rights, or in right of their wives, shall be tion of estates of Inheritance. compelled to make partition by writ de participatione ja- 31 Hen. 8. c. 1. cienda, to be devised in chancery, in like manner as co- s. 2. Eng. parceners by the common law. And by s. 3. every of 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. 32. Eng. 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 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. method of proceeding on the writ of partition is chalked out and provided by the 8 & 9 W. 3. c. 31. Eng. which 8 & 9 W. 3. enacts, that after process of pone or attachment returned upon a writ of partition, affidavit being made of due no- Mode of proceeding 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

But a new

s. 3.

added in

c. 10. Ir:

c. 31. Eng.

possession,

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; which 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 sane memorie, or absence out of the kingdom, within one year after their return, or the determination of such inability, 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

the execution of any judgment in partition, the under-
sheriff, in presence of 2 justices of peace, &c., may proceed
to execution by inquisition; and the high sheriff there-
upon
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 reservati-
ons; and the owners of the several purparts shall make
good unto their respective tenants the said parts seve-
rally, 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,
and in case of sickness or disability in the high sheriff, all
justices of peace, &c., shall give due attendance to the exe-
cuting 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 ma-
jesty's courts at Westminster. And in case the demand-
ant doth 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 seve-
rally bring their actions as aforesaid.

s. 5.

The 9 W. 3. c. 12. Ir. is nearly corresponding, which 9 w. 3. c. 1 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 lauds, 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

writ,

writ, or tenant in possess on, shall not within the term
after return of such writ, or the term following the same,
cause an appearance to be entered in such court, then,
the demandant having filed his declaration, the court
shall proceed to examine the title of the demandant, and
the quantity of his part or purpart of said lands; and,
according as they shall find his right to be, shall cause
judgment by default to be entered for the demandant,
and award a writ to make partition, whereby such pro-
portion may be set out in severalty; of which writ notice
shall be given to the occupier or tenants of said lands,
&c., 6 days before the execution thereof; and the same
being duly executed and returned, and final judgment
entered, the same shall be conclusive to all persons, al-
though all persons concerned are not named in the pro-
ceedings, nor the title of the tenants to the writ truly
set forth. The other clauses of this statute, (s. 2. 3. 4. & 5.)
are corresponding to those of the 8 & 9 W. 3. c. 31. Eng.
supra. But this Irish act contains also clauses peculiar
to itself, which may be stated in this place. By s. 7.
where the mears of lands between propriety and propriety
shall be set out or ascertained by a writ of partition, per-
ambulation, or otherwise, the same shall at equal charge
of the proprietors thereof, or their tenants, be enclosed
with good ditches, where earth sufficient may be had,
and one or two rows of quicksets shall be planted therein;
and where earth shall be wanting, such other fences shall
be made as the nature of the soil shall permit. And by
s. 8. where lands are held in fee farm, or for lives re-
newable for ever, the charge of making such fences shall
be entirely borne by the tenant; [*and where lands are
leased for lives, whereof 3 shall be current, or for years
whereof 21 shall be unexpired, the said mears shall be
enclosed at the equal charge of landlord and tenant;] and
where lands are leased for any lesser term, the bounds
shall be enclosed at the sole charge of the landlord.
But by s.
9. this act shall not make void any covenants
heretofore made relating to the enclosing of mears. By
s. 10. any person chargeable by this act with the fencing
of their bounds, who shall not have done the same within
6 months

Mears of lands set out by partition, &c., to be planted, &c.

8. 8.

S. 9.

10.

* Quere-Upon the 6th November, 1697

6 months after such partition, shall forfeit one year's value of the land; one moiety to the poor of the parish, and the other to him that shall sue for the same: and if he shall further neglect to do the same within one year, he shall forfeit 2 years value to be paid and recovered as aforesaid. And by s. 11. all mearing, fences, ditches, and drains made or to be made, shall at all times at the equal charge of the tenants and occupiers of said lands be kept open, scoured, and cleansed, that the water may pass away; and whatsoever person shall refuse or neglect to do the same, shall forfeit one year's value of the said land, to be recovered in such manner, and to such uses, as aforesaid.

8 Geo. 1. c. 5.

The 8 Geo. 1. c. 5. Ir. is another act to oblige propri- Proprietors of etors and tenants of neighbouring lands to make fences neighbouring lands compellabetween their several lands and holdings, and may be ble to make therefore stated in this place. By s. 1. if any proprietor, fences. occupier, or tenant, shall be desirous to make ditches or Ir. fences between his lands and holdings and the lands next contiguous, where no dispute shall have been, for 3 years then last past, about the mears between the said lands, &c., so intended to be fenced, and where no sufficient fences, or only dead and dry fenceless ditches then shall be, the proprietor, occupier or tenant of such neighbouring lands, on reasonable request, shall be at equal expense in making between such lands, &c., good ditches of 6 feet wide and 5 feet deep at least, where the same is practicable, well quicked in good husband-like manner with white thorn, crab, or other quicksets, where the same will grow; and, in ground where such quicksets will not grow, with furz; and where furz will not grow, or where ditches cannot be made of the said depth or wideness, instead of a ditch with a dry stone wall, where stone can be conveniently had, or, if not, with a clay or mud wall not under 5 feet high, and 2' feet thick at the bottom, and 1 foot thick at the top; and in wet low ground with sufficient trenches or drains, the banks thereof to be planted with sallows, alder, or other aquatic trees where such aquatics will grow; and if any such proprietor, c., of any neighbouring lands, shall refuse to settle and

ascertain