Court at

on the day of

A. D. 18-, CHAP. 101. of one

did recover her seisin against A. B., of
third part of a certain messuage or tenement, with the
appurtenances, in the possession of the said A. B., situate
at - - aforesaid, and described as follows: [describe
the property with reasonable certainty,] as her dower of the
endowment of the said E. D., her husband, by our writ of
dower, whereof she has nothing: Therefore we command
you that you cause to be had without delay to the said C.
D. full seisin of one-third part of the aforesaid messuage
or tenement with the appurtenances, to hold to her in
severalty by metes and bounds. We command you also,
that of the goods or chattels of the said A. B. within your
precinct, you cause to be paid and satisfied unto the said
C. D., at the value thereof in money, the sum of -for
damages awarded her by our said Court for her being
held and kept out of her dower, and for costs expended on
this suit, with more for this writ; and thereof also to
satisfy yourself your own fees. And for want of goods or
chattels of the said A. B. to be by him shewn unto you, or
found within your precinct, to satisfy the same, we com-
mand you to take his body and commit him to the keeper
of our gaol in -, in the County aforesaid, within the
said prison: Whom we likewise command to receive the
said A. B. and him safely to keep, until he pay unto the
said C. D. the full sum above mentioned, and also satisfy
your fees. Hereof fail not, and make return of this writ,
and how you shall have executed the same, unto our said
Supreme Court at
within days from the date
hereof.

Issued this

day of

J. K., Plaintiff's Attorney.

A. D. 18-.

G. H., Prothonotary.

NOTE.- Where no damages are awarded, the writ shall run

only for seisin and costs of suit.

CHAP. 102.

Partition may be enforced.

Proceedings to be commenced

by petition to

CHAPTER 102.

OF THE PARTITION OF LANDS.

1. All persons holding lands as joint tenants, coparceners or tenants in common, may be compelled to divide the same, either by writ of partition at the common law, or in the manner provided in this Chapter.

2. Any one or more of the persons so holding lands may apply, by petition to the Supreme Court for the county supreme court. where the lands lie, for a partition of the same; and such Court may cause partition to be made accordingly; and the shares of the petitioners shall be set off and assigned to them, and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition among them if there is more than one person so entitled. 3. Such petition may be maintained by any person who has an estate in possession, but not by one who is entitled only to a remainder or reversion.

Petition, by whom maintained.

Who may maintain petition.

tition as between

4. No tenant for any term of years, unless twenty years thereof at the least remain unexpired, shall maintain such a petition against any tenant of the freehold; but when two or more persons hold jointly or in common, as tenants for any term of years, either of them may have his share set off and divided from the others in the same manner as if they had all been tenants of the freehold.

Duration of par- 5. Such partition between two or more tenants for tenants for years. years shall continue in force only so long as their estates endare, and shall not affect the premises when they revert to the respective landlords or reversioners.

Contents of peti. tion.

Amendments

allowed at any stage.

Petition to be

to issue and be

6. Every petition for a partition shall set forth the rights and titles, so far as known to the petitioner, of all persous interested in the premises who would be bound by the partition, whether they have an estate of inheritance, or for life, or years, and whether it be an estate in possession or in remainder or reversion, and whether vested or contingent; and if the petitioner holds an estate for life or years, the person entitled to the remainder or reversion after his estate shall be considered as one of the persons so interested, and shall be entitled to notice accordingly. Such petition or any subsequent proceedings had thereon may be amended at any time upon such terms as the Court or a judge may impose.

7. The petition shall be filed in the same manner as a filed, summons declaration; and a summons to and answer thereto appear served with copy shall be signed by the Prothonotary; and a copy thereof to plead, &c. as with a copy of such petition, accompanied by a rule to plead and the usual notices, shall be served on each of the

of petition; rule

if it were a declaration,

parties named in the petition as interested in the premises, CHAP. 102. if they shall be found within the Province, the like number of days as required in ordinary writs.

where some parties are ab

8. If any of the persons so named as interested are Proceedings, absent from the Province, or if there are persons interested in the premises, and who would be bound by the partition sent, &c. whose names are unknown to the petitioner, the Court or a judge thereof shall order notice to be given to the persons interested who are so absent or unknown, by a publication of the petition or of the substance thereof, with the order of the Court or a judge thereon, in one or more newspapers to be designated in the order, or by delivering to such absent party an attested copy of the petition and order, or in such other manner as such Court or judge shall consider to be most proper and effectual.

fails to appear,

further notice.

9. If any person entitled to notice shall fail to appear, Where a party and if the service of the summons or other notice to him court may order shall appear to the Court to have been insufficient, the Court or a judge may order such further notice as shall be thought proper.

where party out

tunity of appear

10. If in any stage of the proceedings it shall appear Proceedings to the Court that any person interested, whether named in of province has the petition or not, is out of the Province, and has not had not had opporopportunity to appear and answer to the suit, it shall be ing. continued until sufficient time has been allowed to enable him to appear and answer thereto.

be appointed.

11. The Court or a judge may assign a guardian for Guardians may the suit for any infant or insane person who is interested in the premises, in the same manner as a guardian is admitted for an infant plaintiff or defendant at common law.

appear jointly or

pleadings, &c.,

12. Any person interested in the premises of which Defendants may partition is prayed for, may appear and answer to the separately: petition, and may plead either separately or jointly with to be as in other any other defendants, any matter tending to show that the cases. petitioner ought not to have partition as prayed for, either in whole or in part; and the replication and further pleadings shall be conducted as in other actions until issue is joined, which shall be tried and determined as in other cases; all such pleadings to be filed and served in the same way as the pleadings in declaration suits, and notices of trial to be given in like manner.

contested.

13. If any person who is not named in the petition Replication shall appear and plead as a defendant, the petitioner may right to appear reply that such person has no estate or interest in the lands and defend is described in the petition, and may pray judgment if he shall be admitted to object to the petition; and the peti tioner may in the same replication plead over in answer to such plea any other matter in like manner as he might

CHAP. 102. have done if he had not disputed the defendant's right to

Proceedings thereon.

Costs of trial, how regulated.

Proceedings in

cases of default;

thereon.

appear,

14. If upon any such replication it shall appear that the defendant has no estate or interest in the lands, the matter of his plea or objection shall be no further inquired of.

15. If upon the trial of any issue of law or of fact it shall appear that the petitioner is entitled to have partition as prayed for, he shall recover his costs of such trial against the party who objected thereto, and shall have execution therefor in the usual form; but if such issue is found or decided against him, in whole or in part, the adverse party shall recover against him the costs of the trial, and shall have execution accordingly; and judgment may notwithstanding be entered for the petitioner to have partition, and to have assigned to him such part of the premises, if any, as he shall be entitled to.

16. If the defendant shall make default, or if upon such rule for partition trial it shall appear that the petitioner is entitled to have partition, whether for the share or proportion claimed in his petition or for a less share, a rule that partition shall be made shall pass; but the Court shall have the same power of setting aside defaults and of granting new trials as in other cases.

Commissioners appointed to

under rule.

17. When such rule shall have passed, the Court shall make partition appoint three disinterested persons as commissioners, to make partition and to set off to the petitioners the shares belonging to them, which shall be expressed in the rule in that behalf.

Petitioners may

18. If there are several petitioners they may have their have shares set shares set off together, or the share of each one may be set off in severalty, at their election.

off jointly or

separately.

Commissioners, how sworn.

Commissioners to give notice

of time and

tion.

19. The commissioners, before proceeding to the execu tion of their duties, shall be sworn before any justice, faithfully and impartially to perform the same; a certificate of which oath shall be made on the warrant by the person who administered it.

20. The commissioners shall give sufficient notice of the time and place appointed for making the partition to place of parti- all persons interested therein, who are known and within the Province, that they may be present if they see fit. 21. The three commissioners shall meet for the persioners to meet; formance of any of their duties; but the acts of any two

Three commis

acts of two

valid.

Partition, how effected where premises can

not well be divided.

of them shall be valid.

22. When the premises of which partition is demanded are such as cannot be divided without damage to the owners, or when any specific part of the estate is of greater value than either party's share, and cannot be divided without damage to the owners, the whole estate, or the part .thereof so incapable of division may be set off to any one

of the parties who will accept it, he paying or securing to CHAP. 102. any one or more of the others, such sums of money as the commissioners shall award, to make the partition just and equal. But the partition in such case shall not be estab lished by the Court until all the sums so awarded shall be paid to the parties entitled thereto, or secured to their satisfaction.

23. In the case mentioned in the preceding section, the Same subject. commissioners instead of setting off the premises, or a part thereof, in the manner therein provided, may assign the exclusive occupancy and enjoyment of the whole or the part, as the case may be, to each of the parties alternately, for certain specified times, in proportion to their respective interests therein.

misconduct

exclusive occu

pancy.

24. When the whole or any specific part of the pre- Tenant liable for mises is assigned in the manner provided in the preceding where he has the section, the person entitled for the time being to the exclusive occupancy, shall be liable to his co-tenants for any injury to the premises occasioned by his misconduct, in like manner and to the like extent as a tenant for years under a common lease without express covenants would be to his landlord; and the other tenants in common may have their remedy therefor against him by action on the case, either jointly or severally at their election.

case of sole

one tenant in

25. Whilst any estate is in the exclusive occcupancy of Liabilities in any co-tenant under such an assignment as before men- occupancy by tioned, he shall be entitled to the same remedy against any common. person who shall trespass upon or otherwise injure the premises as if he held the same under a lease for the same term for which they were so assigned to him; and he and all the other tenants in common shall also be entitled to recover against the wrong doer such other and further damages as they shall have sustained by the same trespass or injury, in like manner as if the premises had been leased by them for such term and all joint damages recovered by any such tenants in common, by force of this or the preceding section, shall be apportioned and divided among them, according to their respective rights, by the court in which the judgment is recovered.

where lands lie

2. Where the lands to be divided are situate in differ- Proceedings ent counties, the whole of such lands may be divided by in different one proceeding under the authority of this Chapter; and the counties. application may be made in any one of the counties in which the lands to be divided are situate; and where the lands lie in several counties, the Court shall appoint three commissioners in each county where such lands lie, to make partition of the lands lying within such county, or in the discretion of the Court, shall appoint three commissioners for all the lands to be divided, wheresoever situate.