Statutes of the Realm: Volume 7, 1695-1701. Originally published by Great Britain Record Commission, s.l, 1820.
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After Process of Pone or Attachment returned on Writ of Partition,
if the Tenant do not enter an Appearance within 15 Days; Court may proceed to examine the Demandant's Title, give Judgment by Default, and award a Writ of Partition, which, on Proceedings as herein mentioned, shall conclude all Persons.
Whereas the Proceedings upon Writts of Partition betweene Coparceners by the Common Law or Custome Joint Tenants and Tenants in Co[m]mon are found by Experience to be tedious chargeable and oftentimes ineffectuall by reason of the Difficulty of discovering the Persons and Estates of the Tenants of the Mannors Messuages Lands Tenements and Hereditaments to be divided & the defective or dilatory executing and returning of the Processe of Su[m]mons Attachment and Distresse and other Impedim[en]ts in making and establishing of Partitions by reason of which diverse Persons having undivided Parts or Purparts are greatly oppressed and prejudiced and the Premisses are frequently wasted and destroyed or lie uncultivated and unmanured so that the p[ro]fitts of the same are totally or in a great measure lost For remedy whereof be it enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Co[m]mons in this present Parliament assembled and by the Authority of the same That from and after the First Day of May One thousand six hundred ninety seven after Processe of Pone or Attachment returned upon a Writt of Partition Affidavitt being made by any credible Person of due Notice given of the said Writt of Partition to the Tenant or Tenants to the Action and a Copy thereof left with the Occupier or Tenant or Tenants or if they cannot be found to the Wife Son or Daughter (being of the Age of One and twenty Yeares or upwards) of the Tenant or Tenants or to the Tenant in actual Possession by virtue of any Estate of Freehold or for Terme of Yeares or uncertaine Interest or att Will of the Mannors Lands Tenements or Hereditam[en]ts whereof the Partition is demanded (unlesse the said Tenant in actual Possession be demandant in the Action) att least Forty Days before the Day of Returne of the said Pone or Attachment if the Tenant or Tenants to such Writt or any of them or the true Tenant to the Messuages Lands Tenements and Hereditaments as aforesaid shall not in such Case within Fifteene Days after Returne of such Writt of Pone or Attachment cause an Appearance to be entred in such Court where such Writt of Pone or Attachment shall be returnable then in default of such Appearance the Demandant having entred his Declaration the Court may proceed to examine the Demandants Title and Quantity of his Part and Purpart and accordingly as they shall find his Right Part and Purpart to be they shall for so much give Judgement by Default and award a Writt to make Partition whereby such Proportion Part and Purpart may be sett out severally which Writt being executed after Eight Days Notice given to the Occupier or Tenant or Tenants of the Premisses and returned and thereupon final Judgement entred the same shall be good and conclude all Persons whatsoever after Notice as aforesaid whatever Right or Title they have or may att any time claime to have in any of the Mannors Messuages Lands Tenements and Hereditaments mentioned in the said Judgement and Writt of Partition although all Persons concerned are not named in any of the Proceedings nor the Title of the Tenants truely sett forth.
II. If Tenant or other Person shall in one Year after Judgment entered, or after Determination of Inability, shew good Matter in bar of Partition, &c., the Court may suspend or set aside such Judgment.
Provided always That if such Tenant or Person concerned or either of them against whom or their Right or Title such Judgement by Default is given shall within the space of One Yeare after the first Judgement entred or in case of Infancy Coverture Non sane memorie or Absence out of the Kingdome within One Yeare after his her or their Returne or the Determination of such Inability apply themselves to the Court by Motion where such Judgement is entred and shew a good and probable Matter in barr of such Partition or that the Demandant hath not Title to so much as hee hath recovered then in such Case the Court may suspend or sett aside such Judgement and admitt the Tenant and Tenants to appeare and plead and the Cause shall proceed according to due Course of Law as if no such Judgement had been given And if the Court upon hearing thereof shall adjudge for the first Demandant then the said first Judgement shall stand confirmed and be good against all Persons whatsoever except such other Persons as shall be absent or disabled as aforesaid and the Person or Persons so appealing shall be awarded thereupon to pay Costs or if within such Time or Times aforesaid the Tenants or Persons concerned admitting the Demandants Title Parts and Purparts shall shew to the Court an Inequality in the Partition the Court may award a new Partition to be made in presence of all Parties conc[er]ned (if they will appeare) notwithstanding the Returne and filing upon Record the former which said Second Partition returned and filed shall be good and firme for ever against all Persons whatsoever except as before excepted.
III. No Plea in Abatement admitted.
And be it further enacted by the Authority aforesaid That no Plea in Abatement shall be admitted or received in any Suit for Partition nor shall the same be abated by reason of the Death of any Tenant.
IV. Where High Sheriff cannot be present at the Execution of a Judgment in Partition, Under Sheriff, in Presence of Two Justices, may proceed thereupon.
And be it further enacted by the Authority aforesaid That when the High Sheriff by reason of Distance Infirmity or any other Hindrance cannot conveniently be present att the Execution of any Judgement in Partition in such Case the Under Sheriff in presence of Two Justices of the Peace of the County where the Lands Tenements or Hereditaments to be divided doe lye shall and may proceed to Execution of any Writt of Partition by Inquisition in due Forme of Law as if the High Sheriff were then personally present and the High Sheriff thereupon shall and is hereby enabled and required to make the same Returne as if hee were personally present att such Execution And in case such Partition be made returned and filed hee or they that were Tenant or Tenants of any of the said Messuages Lands Tenements and Hereditaments or any Part or Purpart thereof before they were divided shall be Tenant or Tenants for such Part sett out severally to the respective Landlords or Owners thereof by and under the same Conditions Rents Covenants and Reservations where they are or shall be so divided and the Landlords and Owners of the several Parts and Purparts so divided and allotted as aforesaid shall warrant and make good unto their respective Tenants the said several Parts severally after such Partition as they are or were bound to doe by any Copy Leases or Grants of their respective Parts before any Partition made and in case any Demandant be Tenant in actual Possession to the Tenant to the Action for his Part and Proportion or any Part thereof in the Messuages Lands Tenements and Hereditaments to be divided by virtue of a Writt of Partition as aforesaid for any terme of Life Lives or Yeares or uncertaine Interest the said Tenant shall stand and be possessed of the said Purparts and Proportions for the like Terme and under the same Conditions and Convenants when it is sett out severally in pursuance of this or any other Act Statute or Law to that purpose.
V. Sheriffs, Under Sheriffs, &c. to give due Attendance for executing Writs of Partition.
And be it further enacted by the Authority aforesaid That the respective Sheriffs their Under Sheriffs and Deputies and in case of Sicknesse or Disability in the High Sheriff all Justices of Peace within their respective Divisions shall give due Attendance to the executing such Writt of Partition unlesse reasonable Cause be shewn to the Court upon Oath and there allowed of or otherwise be liable every of them to pay unto the Demandant such Costs and Damages as shall be awarded by the Court not exceeding Five pounds for which the Demandant or Plaintiffe may bring his Action in any of his Majesties Courts of Record att Westminster wherein no Essoigne Protection Priveledge or Wager of Law shall be allowed nor any more than one Imparlance and in case the Demandant doth not agree to pay unto the Sheriffs or Under Sheriffs Justices and Jurors such Fees as they shall respectively demand for their Pains and Attendance in the Execution of the same and returning thereof then the Court shall award what each Person shall receive having respect to the distance of the Place from their respective Habitations and the Time they must necessarily spend about the same for which they may severally bring their Actions as aforesaid.