another writ, against the remainder man, as soon as his estate falls into possession. (i)

There cannot be a partial partition by writ. The demandant must bring it against all the remaining co-tenants, and every one must have a part set out in severalty. (j)

WITH respect to other circumstances relating to the parties, it may be observed, that the writ may be brought by and against husbands and wives, seised in right of the wives, and infants; and the judgment given on it shall be binding on the feme coverts and infants, for ever, although the lands be not of equal annual value. (k) And an infant is not allowed his age in a writ of partition because both coparceners are in possession. (7)

IT has been said, that the Court will not allow a writ of partition to be brought, by a person, who at the time sustains the character of defendant in another writ of partition, brought for the same lands; and the reason given is, because the de

(i) See Cole v. Aylott and Stevens, Litt. R. 300. (j) Co. Litt. 180. a. See Dal. 28. Co. Ent. 413, otherwise of a partition by agreement between them. Chap. II. Sect. I.

It is

Supra,

(k) Co. Litt. 171. a.

(1) Co. Litt. 171. a.

6 Rep. 4. b. Hob. 179.

fendant may have the same remedy on the first writ, as he can on the second. (m) But, by a case in Brownlow, (n) it appears, that it is no plea, that the defendant had brought a writ of partition of the same land. The Court there said, that if the first plaintiff would not proceed upon his writ, and the defendant should confess the action, yet the defendant cannot have partition made upon that plaintiff's writ; and therefore it is reasonable that the defendant in the first action may sue out a writ to make partition.

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SECT. III.

OF THE PROCESS, PLEADINGS, JUDGMENTS, &c.

Process.

THE process, in partition, is summons, attachment, and distress infinite. (a) At the return of the summons, each defendant may cast an essoign; (b) or if he does not, then at the return of

(m) G. Hist. of C. B. 209.

(n) Mill v. Glemham, 1 Brownl. 158. (a) F. N. B. 62. M. 1 Brownl. 156. (b) 1 Brownl. 156.

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the pone. If the defendant does not appear upon the pone, a distringas shall issue, upon which he shall be amerced to 5l. which shall be doubled toties quoties. (c) If one defendant casts an essoign, the other may have another essoign; for the statute Westm. I. c. 43. does not extend to an action for the mere division of land, but where the right of the land is in question. (d)

In Booth on Real Actions, (e) it is said, that aid lies in this action, which may be counterpleaded. But this seems to be a mistake; for aid is said only to lie in actions where the inheritance is demanded, which is not the case in partition. (ƒ)

Declaration.

WHEN the defendant appears, the plaintiff declares against him. (g)

By the stat. 8 & 9 W. III. c. 31. s. 1., made perpetual by stat. 3 & 4 Anne, c. 18. s. 2., (h) reciting, that the proceedings on writs of partition were found to be tedious, chargeable, and oftentimes

(c) Comp. Att. 168. Com. Dig. Pleader (3 F. 1.) (d) Hob. 8.

(e) P. 245.

(f) See 1 Roll. Abr. 162.

(g) Com. Dig. Pleader (3 F. 2.)

(h) See Appendix.

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ineffectual, by reason of the difficulty of discovering the persons and estates of the tenants of the manors, &c. to be divided, and the defective or dilatory executing and returning of the process of summons, attachment, and distress, and other impediments, in making and establishing partitions; and the consequent inconveniences to persons having undivided parts: it is enacted, that after process of pone or attachment, returned on a writ of partition, affidavit being made by any credible person, of due notice given of the said writ of partition, to the tenant, &c. and a copy thereof left with the occupier, &c. at least forty days before the day of the return of the said pone or attachment, if the tenant, &c. do not, within fifteen days after the return of such writ of pone, &c. cause an appearance to be entered in the Court where the process is returnable, then, in default of appearance, the demandant, having entered his declaration, the Court may proceed to examine the demandant's title and quantity of his part and purpart, and award a writ of partition accordingly.

This act equally extends to coparceners, jointtenants, and tenants in common.

But this statute only applies to cases of signing judgment by default, for want of appearance, and not where the tenants have appeared. (¿)

(i) Dyer, Dem'. v. Bullock and others, Tenants, 1 B. and P. 434. And vid. Halton v. The Earl of Thanet, 2 Bl. 1134.,

Declaration by one parcener, or joint-tenant, against the others, must shew how they are parceners or joint-tenants. (j)

But it is otherwise where they are tenants in common, for they claim by several titles, and therefore one is not supposed to have knowledge of the title of the other. And so was the opinion of the whole Court, who said they would not reverse a judgment, contrary to so many precedents. (k)

A writ of partition is maintainable, without shewing of whose gift. (1) Thus a declaration by parceners that it was the inheritance of the common ancestor in tail is sufficient without shewing the commencement of the estate tail; for in this writ the land is not in demand, but only the possession affirmed or ascertained. (m)

But if the declaration says, that the plaintiff and defendant were seised in fee, where it is found by the verdict, that one held in tail, the writ abates. For though one needed not to take notice of the other's estate, yet when he will take

(j) Vide Yates v. Windham, Cro. Eliz. 64. Com. Dig. Pleader (C. 34.) (3 F. 2.)

(k) Yates v. Windham, ub. supra.

(1) Co. Ent. 412. 413. where it is said, that divers precedents were shewn accordant.

(m) Haward v. Duke of Sussex, Dy. 79. b.