owner unknown or not named, and upon every portion remaining TITLE 3 undivided, for the proportion adjudged to be paid by such owners or chargeable to the part remaining undivided. And a sale of such premises thereupon shall be as valid as if such unknown owner had been named in the proceedings and in such execution.26 petitioners. $73. If the petitioners for any partition, shall become non-suit, or Costs against suffer a discontinuance, or a verdict shall pass against them, or judgment shall be rendered against them on demurrer, they shall pay costs, to be recovered and collected as in personal actions. proceedings court. $74. Any proceedings for partition commenced in the court of Removal of common pleas, or in a mayor's court, may be removed into the su- into supremne preme court by writ of certiorari, to be allowed by any of the justices thereof, if the same be served before any juror shall be sworn to try any issue joined in such proceedings, or before judgment be given, that partition shall be made; and upon such removal, the like proceedings shall be had as if the petition had been originally presented to the supreme court.27 ror $75. Upon any final judgment rendered, that partition be made, Writs of eror confirming partition, or for the sale of any premises, or confirming such sale, a writ of error may be brought by any of the parties to such judgment, jointly or separately, and without the consent of any co-plaintiff or co-defendant, within the same time and under the like restrictions, as in cases of personal actions.28 &c. of coplaintiff, &c. ror by one $76. It shall not be necessary for a plaintiff or defendant bringing Summons such writ, to summon and sever any co-plaintiff or co-defendant. $77. Error may be assigned upon such writ for any erroneous ad- Assigning erjudication upon the rights of any of the respective defendants or re- plaintiff, &c. spective plaintiffs, and the court shall direct the person whose interest is affected by such adjudication, to plead to such assignment of errors, and to appear in such cause as a defendant in error. error. $78. The court may give judgment either for affirmance or re- Judgment in versal, in part or in whole, with costs to be paid by either of the parties, or by any one or more defendant or plaintiff, to his co-defendant or co-plaintiff.28 chancery. $79. The court of chancery shall have the same power, upon pe- Power of tition or bill filed in that court, to decree partitions and sales of lands, tenements and hereditaments, as is herein given to the common law courts in like cases.29 $80. The same notice shall be given, served and published, and Proceedings. verified by affidavit, guardians of minors shall be appointed, the same rules as to parties, shall apply, and the like proceedings shall be had, as herein before directed, except as in the next section provided.29 (26) 1 R. L. p. 510, § 6. (27) Ib. § 11. (28) Ib. § 12. (29) Ib. p. 514, § 16 & 17. VOL. II. 42 $81. Instead of appointing commissioners in the first instance, to make partition, if it shall appear by the report of a master or otherwise, that the premises, or any part of them are so circumstanced that a partition thereof can not be made without great prejudice to the owners, the court may order a sale of such premises at public auction, by one of the masters, upon the same notice as herein before directed in sales by commissioners, which sales shall be made in the manner herein before prescribed; and on the master's report being confirmed, he shall execute conveyances to the purchasers at such sales, which shall have the same effect as if executed by commissioners, according to the foregoing provisions. The court may in like manner as above provided, amend the petition or bill, and other pleadings, with the like saving to the parties affected thereby, and may award one or more issues to try any fact contested by the parties.30 $ 82. Any bill or petition may be taken as confessed in the court of chancery, in the same manner as judgment by default may be entered in the supreme court, according to the practice of courts of equity in other cases.31 $83. Whenever partition shall be decreed by a court of equity, if it shall appear that it can not be made equal between the parties, without prejudice to the rights and interests of some of them, the court may decree compensation to be made by one party to the other, for equality of partition, according to the equity of the case.31 $84. The final decree of such court for the partition or sale of any premises, made upon such petition and proceedings aforesaid, and every partition or sale made thereupon, shall be binding and conclusive on all parties named in the said proceedings, and on all parties interested in the premises, who or whose interest may be unknown, and their legal representatives, and all claiming under them, as if such sales, partition and proceedings had taken place, and judgment had been rendered thereon in the supreme court, under the foregoing provisions. 31 $85. Any party to such decree, and any party interested in the premises, though not named in the pleadings, who would be entitled to bring a writ of error, if the proceedings were in the supreme court, may appeal from any decree or order of the said court, upon any such proceedings, within the same time and under the like regulations, as in other cases.31 $86. Whenever it shall appear satisfactorily, by due proof, or on the report of a master to the court of chancery, that any infant holds real estate in joint tenancy or in common, or in any other manner which would authorise his being made a party to a suit in partition, and that the interest of such infant or of any other person concerned therein, requires that partition of such estate should be made, such (30) Laws of 1826, p. 146. (31) 1 R. L. p. 514, § 16 & 17. court may direct and authorise the general guardian of such infant to TITLE 3. agree to a division thereof, or to such a part of the said estate, as in the opinion of the court shall be incapable of partition, or as shall be most for the interest of the infant to be sold. 32 conveyances. $87. Such guardian shall report to the court, on oath, the parti- Order for tion or sale so made by him, and if the same shall be approved and confirmed by the court, an order shall be entered authorising such guardian to execute conveyances of the right of such infant to such part of the said estate as shall have been sold, to the purchaser thereof, or to execute releases of the right of such infant to such part of the said estate, as in the said division falls to the shares of the other joint tenants, or tenants in common. 32 deeds. Infants, wards of court. $88. Such deeds shall be as valid and effectual to convey the Effect of share and part of such infant, as if the same had been executed by such infant after arriving at full age. And in case of a sale of any part of such estate, the infant shall be deemed a ward of the court, and such order shall be taken as the court may direct, for securing, investing and applying the proceeds of the sale and requiring security from the guardian for that purpose.3 32 committees &. $89. Whenever it shall appear to the court of chancery, on the Partition by application of any committee of any idiot, lunatic, or person mentally of lunatics, incapable of managing his affairs, holding any real estate in joint tenancy, or in common, or in any other manner, to authorise his being made party to a suit in partition, that the interest of such idiot, lunatic or other person as aforesaid, or of any of the parties interested in such estate, requires a partition thereof, it shall be referred to a master in chancery, to inquire into and report upon the circumstances.33 when to be $90. Upon the coming in of the report, and a hearing and exami- Releases, nation of the matter, the court may authorise such committee to agree authorised. to a partition of such estate, and to execute releases of the right of such lunatic, idiot, or other person as aforesaid, in and to the share of such estate falling to the other joint tenants, or tenants in common. 33 $91. Such releases shall be as valid and effectual to convey the share of such lunatic, idiot or other person of unsound mind, as if the same had been executed by them respectively when of sound mind and understanding, and for a valuable consideration.33 Effect there of. when state is $92. Where any lands or tenements thall be held by the people of Partition this state, and by any individuals as tenants in common, proceedings interested. for the partition thereof may be had against the people of this state, in the supreme court or in the court of chancery, in the same manner as against individuals, and the like orders, decrees, and judgments shall be had therein.3 34 (32) Laws of 1814, p. 129, § 2. (33) 1R. L. p. 148, § 4. (34) Laws of 1814, p. 249, § 2 & 3. TITLE 4. Service of notices, &c. on attorneygeneral. Claims bar tions, &e. $ 93. The petition and all other notices required to be served in other cases, shall be served on the attorney-general, who shall appear in behalf of the state, and attend to its interests.35 $94. The authority hereby given to proceed for the partition of red by limita- real estate, shall not authorise the revival or prosecution of any claim to lands which would or might otherwise be barred by any statute of limitations, or by the acquiescence of any party having any such claim.36 Pending pro ceedings. $95. Proceedings in partition which may be pending when this Title becomes a law, shall not be invalidated hereby; but any proceedings to be had upon any suit already commenced or hereafter to be brought, after this Title shall take effect, shall be conducted according to the foregoing provisions. Common law writ, retained. Transfer of nuisance. Form of the writ of nuisance. Writ how to be served. TITLE IV. OF THE WRIT OF NUISANCE. SEC. 1. Common law remedy retained. 2. Proceedings in case of transfer of nuisance. 4. Writ how to be served. 5. Proceedings if defendant make default, &c. 6. Trial of issues of fact, view, and assessing damages. 7. Judgment in nuisance for plaintiff. $1. The common law remedy by writ of nuisance is retained as heretofore accustomed, subject to the provisions herein contained. § 2. In cases of nuisance, the plaintiff shall not go without remedy, because the land is transferred to another; but in such case the party by whom the nuisance was erected, and he to whom it was transferred, shall both be named as defendants in the writ.37 $ 3. The writ of nuisance shall be substantially in the following form: "The People, &c. to the sheriff, &c. Whereas A. B. has complained to us, that C. D. unjustly has raised a certain dam, [or ‘a certain pool,' or 'a certain house,' or 'thrown down a certain hedge,' &c. as the case may be,] in the town of in your county, to the nuisance of the freehold of the said A. B.; we do therefore command you, that you summon the said C. D. that he be before our, &c. at, &c. on, &c. to answer the said A. B. in the premises. And have you then there this writ. Witness, &c." $4. The writ shall be served on or before the return day thereof, on the defendant personally, if he can be found, by delivering to him a copy thereof. If the defendant can not be found within the county, the writ may be served by leaving a copy at his dwelling-house, with any person of proper age found therein. The copy to be delivered (35) Laws of 1814, p. 249, § 2 & 3. (36) 1 R. L. p. 512, § 13. (37) Ib. p. 80, § 5. shall, in all cases, be certified by the officer serving it, and he shall TITLE 5. specify in his return the mode in which the service was made. on defend $5. If the defendant shall not appear according to the rules of the Proceedings court, or shall make default after appearance, a writ of inquiry shall aut's default. issue to the sheriff of the proper county, commanding him to go to the place where the nuisance is alleged to exist, and by the verdict of a jury, to inquire thereof, and of the damages occasioned thereby, and on the return of such inquest, the plaintiff shall have judgment. assessing da $6. If an issue of fact be joined in the action, it shall not be ne- Trial, view, cessary for the jury to view the nuisance complained of, unless the mages. court, upon the application of the parties, or of one of them, and on good cause shown, shall make order therefor. If no such order be made, the issue so joined, shall be tried in like manner as issues of fact, in other actions. And in all cases, the jury that inquire of the nuisance, shall also, if they find for the plaintiff, assess the damages occasioned thereby. plaintiff. $7. The judgment upon a writ of nuisance, in case the plaintiff Judgment for shall prevail, shall be as heretofore accustomed, that the nuisance be removed, and that the plaintiff recover the damages occasioned thereby. TITLE V. OF WASTE. SEC. 1. Guardians and certain tenants liable to action for waste. 2. Tenant liable for waste done by his assignee. 3. Joint tenants and those in common liable for waste. 4. When heirs may maintain actions for waste. 5. First process to be summons; its form. 6. Summons, when and how to be served. 7. When special order for rule to plead necessary. 8. Proceedings if defendant make default, &c. 9. Trial of issue of fact; view; assessment of damages. 10. Judgment for plaintiff not being joint tenant, &c. 11. Joint tenant, &c. may elect to recover damages or have partition. 12. Judgment for partition to be given, if elected. 13. Proceedings thereon to effect partition. 14. Commissioners to be appointed. 15. Their duty in making partition. 16. Judgment on their report, its effect; costs. 17. When sale to be made; proceeds how divided. 18. When court may stay defendant from doing waste. 19. Power of court to enforce order. 20. Purchaser of lands under execution may sue for waste. 21 & 22. Certain acts by lawful occupant of such land, not to be deemed waste. 23 & 24. Waste of land sold by execution, how prevented. 25. Proceedings for waste done after order served. 26. When notice to shew cause, to be given. 27. Commitment for violating order. 28. Defendant to be committed to close custody. 29. When defendant may be discharged on giving bond. |