Act of November 28, 1786-July 1, 1787. R. C. ch. 98.

in common, who hold or shall hold estates for term of life or years, with others holding equal or greater estates, shall be prejudicial to any entitled to the reversions or remainders, after the death of the tenants for life, or after the expiration of the years. 12 Stat. Larg. c. 60, p. 349; 31 Hen. 8, c. 1, § 2; 32 Hen. 8, c. 32, § 2.

2. § 4. Partition may be demanded by one and the same writ, of all the several parcels of land or other real estate to which the parties have title, and execution thereupon done by the sheriff and jury, as heretofore, or by special commissioners, to be appointed by the court, with assent of the parties, by allotment to each party of part in each parcel, or of parts in one or more parcels, or of one or more individual parcels with or without the addition of a part or parts of other parcels, as shall be most for the interest of the parties in general.

3. § 5. No plea in abatement shall be received in any suit for partition, nor shall it abate by the death of any tenant. 12 Stat. Larg. 350; 8 and 9 Will. 3, c. 31.

4. § 6. After a writ of partition returned, affidavit being made by some credible person, that due notice of the writ had been given to the tenant or tenants to the action, and that a copy thereof had been left with him, her or them, if he, she or they could be found, or if not, that such notice had been given to, and a copy left with the wife, son or daughter, being of the age of twenty-one years, or upwards, and at the usual place of abode of such as could not be found, or the person in actual possession, not being the demandant of the lands whereof partition is demanded, twenty days or more before the day of return, if the tenant or tenants shall not cause an appearance to be entered, at the time by law appointed, or within one month thereafter, the demandant having filed his or her declaration, the court may proceed to examine his or her title, and the quantity demanded, and shall give judgment by default, for so much as he or she shall appear to them to have a right to, and award a writ to make partition, which being executed, after eight days notice given to the persons mentioned before, judgment final shall thereupon be given, which shall be as binding as if it had been given after an appearance and upon a trial, unless any tenant, within one year after the first judgment, or, being an infant, a married woman, of unsound mind, or out of Virginia, within one year after attainment of full age, death of the husband, recovery of understanding, or return to the country, respectively, by motion to the court, either admitting the demandant's right and purpart, shall shew inequality in the partition, (in which case the court may award a new partition to be made, and that in presence of all the parties, if they choose to attend it, and the second partition shall be as binding as if the tenant had appeared and pleaded in the first instance,) or else shall shew sufficient matter in bar of the partition, or that the demandant hath no title to so much as he or she hath recovered, in which case the court may suspend or set aside the judgment, and admit the tenant to appear and plead, and the cause shall proceed as if no judgment had been given; and if, upon the trial thereof, the court shall give the same judgment as the first, it shall stand confirmed, and the person or persons, in whose behalf the motion was made, shall be awarded to pay costs. Ibid.

5. § 7. The under-sheriff, when the high sheriff cannot conveniently attend, may in the presence of two justices of the peace, proceed to the execution of

unless clearly shewn to be erroneous and unjust. Geer et ux. v. Winds' ex'rs, 4 Desaus. Ch. R. 85.

The superior court of chancery, Richmond district, allowed five dollars per day, to com

missioners appointed to divide lands under a decree of the court, in the case of Cabell v. Cabell et al. 4 H. & M. 436, which sum had been allowed by Ch. Wythe, in Carter v. Carter.

Act of November 28, 1786-July 1, 1787. R. C. ch. 98. *52.

a judgment in partition, by inquisition in due form of law, and the hig as to riff shall make the same return as if he had acted in person. Ibid. the

6. § 8. They who were tenants of the messuages, lands, tenements and he reditaments, or any part thereof, before they were divided, shall hold the same of the landlords, to whom they shall be allotted by the partition, in severalty, under the same conditions, rents, covenants and reservations, and the landlords shall warrant the several parts unto the tenants, as they were bound to do by leases or grants, respectively and any demandant who was tenant, in actual possession, to the tenant to the action, for his purpart of the messuages, lands, tenements and hereditaments, divided by virtue of a writ of partition, or any part thereof, shall hold it for the same term, and under the same conditions and covenants, when it shall be allotted in severalty. Ibid.

7. § 2. If partition be not made between joint tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estates or thing holden or possessed be, the parts of those who die first shall not accrue to the survivors, but shall descend, or pass by devise, and shall be subject to debts, charges, curtesy or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner as if such deceased joint tenants had been tenants in common.(b) Ibid.

8. § 3. The representative of one jointly bound with another for the payment of a debt, or for performance or forbearance of any act, or for any other thing, and dying in the lifetime of the latter, may be charged by virtue of such obligation, in the same manner as such representatives might have been charged if the obligors had been bound severally as well as jointly.(c) Ibid.

(b) An estate in fee to a man and his wife; does the survivor take the whole estate? See J. Tucker's remarks in Chichester's ex'x v. Vass's adm'r, 1 Munf. 114; and Shaw et al. v. Hearsey et al. 5 Mass. R. 521; Fox v. Fletcher, 8 Mass. R. 274; Varnum v. Abbot et al. 12 Mass. R. 474; Jackson v. Stevens, 16 Johns. R. 115; Rogers et al. v. Benson et al. 5 Johns. Ch. R. 431.

In the case of Thornton v. Thornton, 3 Rand. 179, (Feb. 19, 1825,) it was decided, that an estate given to husband and wife, is not a joint tenancy, and therefore not affected by this act of assembly. That in such an estate, each party takes the entirety, and the survivor takes the whole, not by survivorship, but by virtue of the original conveyance. And see Doe, ex dem. De Peyster et al. v. Howland, 8 Cowan, 277; Ross v. Garrison et al. 1 Dana's Ky. R. 37; Rogers v. Grider, Ib. 243.

(e) This act is prospective in its operation; therefore a joint bond executed in 1782, is not within its provisions, tho' the survivorship took place subsequent to July 1, 1787. Elliott's ex'rs v. Lyell, 3 Call, 268; Chandler's ex'x v. Neale's ex'rs, 2 H. & M. 124; Atwell's adm'rs v. Milton, 4 H. & M. 253; Atwell's adm'rs v. Towles, 1 Munf. 175.

On bonds, &c. executed prior to the operation of this act, the only remedy at law, is against the survivor or his representatives; therefore, where the representative of an obligor, is sued on a joint bond, made before July 1, 1787, it is the very gist of the

action, to aver and prove that his decedent survived his companion, for if his companion survived him, the action at law against his representative, is gone forever. Roane, J. in Atwell's adm'rs v. Towles, 1 Munf. 181.

And, it cannot be set up against the representative of the first decedent, in equity, unless on a moral obligation antecedently existing on the part of his decedent, to pay the money. Harrison, ex'r v. Field's ex'x, 2 Wash. 136; Chandler's ex'x v. Neale's ex'r, 2 H. & H. 124, 131; Bishop v. Church, 2 Ves. sen. 101, 371; Thomas v. Frazer, 3 Ves. jun. 399; Sumner v. Powell, 2 Meriv. R. 30; Weaver et al. v. Shryock, ex'r, 6 Serg. & Raw. 262.

In the case of The Com. v. Haines, gen'l ct. June T. 1818, 2 Virg. Cas. 134, this law was held to extend to joint recognizances,and in Roane's adm'r v. Drummond's adm'rs, 6 Rand. 182, it was decided that it comprehended joint judgments-and an action of debt, on a joint judgment, against the representative of the deceased defendant, sustained. As to a joint decree, see Coates's ex'x v. Muse's adm'rs et al. 1 Brock. R. 539.

This act does not include simple contract debts due from a partnership:-They are confessedly not within its literal construction, nor within its meaning or intention. The remedy against the representatives of a deceased partner can only be enforced in equity. Tucker, P. delivering opinion of the court in Galt's ex'rs v. Calland's ex'r, 7 Leigh, 594, 600.

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4, Ses. Acts 1823-4, ch. 24, Sup. R. C. ch. 151.

w depending, or hereafter brought, whether real, le lawful for tenants in common to join or be joined is, tenants or defendants; and no plea or evidence eceived to abate such action.(a)

$31, Ses. Acts 1830-31, ch. 31, Sup. R. C. ch. 152.

the case of any lands, tenements or hereditaments, ancy in common or coparcenary, there are or shall be some parties inter therein, whose names and whose just shares thereof are known, and other parties interested therein, whose names or whose shares thereof are unknown, in such case, any one or more of the parties interested, may exhibit his, her or their bill, in the superior court of chancery, having jurisdiction over the county or corporation wherein such lands, tenements or hereditaments, or the greater part or parcel thereof may lie, describing the same, and setting forth the titles, rights and shares of the parties, so far as they are known, and the fact and manner of there being other parties interested, whose names are unknown, or if their names be known, whose just shares are unknown; and making all the known parties who shall not join as plaintiffs in the bill, defendants by name, and all the unknown parties defendants by the general description of parties unknown; and praying the court to decree such partition of the lands, tenements or hereditaments, as to divide and assign, or allot to the parties interested therein, who are known, and whose shares are known and ascertainable, their just share thereof in severalty, and to reserve for the parties interested, who are unknown or whose shares are unknown and not ascertainable, so much as their share or shares shall amount to, to be divided and assigned or allotted to them in severalty, whenever they shall appear and assert their rights: Provided, That the plaintiff or plaintiffs, or some one or more of them, shall make oath or affirmation, verifying the allegations of the bill, and stating, particularly, as to the parties whose names, or whose shares are unknown, that the same are in truth unknown, and after diligent enquiry made, are not ascertainable.

11. § 2. Upon such bill being exhibited, process shall be issued and served on the defendants known and named therein, if residents of the commonwealth, in like manner, and the like proceedings shall be had as to such known, named and resident defendants, as in other suits in chancery; and the defendants known and named therein, if not residents of the commonwealth, shall be convented before the court by publication in like manner, and the like proceedings shall be had as to such known, named and non-resident defendants, as in suits and proceedings in chancery against other absent defendants; and as to the parties unknown and not named in the bill, a succinct state of the allegations and purport thereof, giving information of the subject and object of the same, and warning all parties interested therein, to appear, make themselves parties defendants, file their answers, and assert their rights or claims, shall be made out under the direction of the court, and ordered to be published, for six weeks successively, in some public newspaper, to be appointed by the court, most convenient to give general notice of the proceeding.

12. § 3. And the cause having been matured for hearing, as to the defendants known and named in the bill, whether resident or absent, in like manner as other suits in chancery, against resident or absent defendants; and such publication as aforesaid, as to the parties unknown and not named in the bill, having been duly made, it shall and may be lawful for the court, at any time

(a) See Malcom v. Rogers, 5 Cowen, 185; Doe dem. Poole v. Errington, 1 Adolph & Ellis, 750.

Act of April 4, 1831, Ses. Acts 1830-31, ch. 31, Sup. R. C. ch. 152.

after the expiration of four months from the date when such publication as to the parties unknown and not named shall have been completed, whether the unknown parties or any of them shall have appeared and filed their answers or not, to make a decree, ascertaining and declaring the rights or shares of the parties who are known, and whose rights or shares are ascertainable, ascertaining and declaring also, in case there be any parties, who or whose respective shares shall remain unknown and not ascertainable, the part or portion which shall be reserved for such parties; decreeing such partition of the lands, tenements or hereditaments in the bill mentioned, as to divide and assign, or allot to the parties who are known, and whose shares are ascertained, their just shares thereof in severalty; appointing three or more discreet and fit persons, with the assistance of the county surveyor, if necessary, to make such partition; and reserving to the parties unknown, or whose shares are unknown and not ascertainable, so much of the lands, tenements or hereditaments, as shall suffice to give them their just and equal shares thereof, whenever they shall appear and demand the same.

13. § 4. Any three of the commissioners named and appointed in such decree, shall be competent to execute the same, and make the partition therein directed, whereof they shall make report to the court: Provided, That the said commissioners shall, each and every of them, before they shall proceed to make such partition, make oath or affirmation, before some justice of the peace, in the form or to the effect following, that is to say: We, do solemnly swear (or affirm, as the case may be,) that we will justly, impartially, and to the best of our skill and judgment, execute the decree of the court of hereunto annexed: We will make fair and equal partition of the lands, tenements and hereditaments in the decree mentioned, according to the directions thereof; we will divide and assign, or allot to the parties known and named in the decree, their full, equal and just shares as therein ascertained and adjudged to them, and no more; and we will leave for the parties unknown, or whose respective shares are not ascertained in the decree, their full, equal and just shares, and no more; and in making the partition, we will have regard to quantity and quality, to improvements, and all other circumstances affecting the value of the said lands, tenements and hereditaments, and of every part or parcel thereof, and to the just rights and interests of all parties. So help us God." Which affidavit shall be annexed to the decree, and returned with the report of the commissioners; otherwise such report shall be set aside.

14. § 5. Upon the return of such report, the court may set aside the partition, for any irregularity in the proceedings of the commissioners, or for any injustice or inequality in the partition, apparent on the face of the report, or proved upon exceptions taken thereto; and may, if it see cause, appoint new commissioners, who shall in all things proceed as the first commissioners are herein directed to proceed.

15. § 6. And whenever partition shall be duly made and reported by such commissioners to the court, and the same shall be approved, the court shall and may thereupon proceed to make final decree according to such partition; adjudging to the parties who and whose shares are known and ascertained, the shares to them respectively divided and assigned, or allotted by the commissioners, in severalty, and reserving the residue for the parties, who, or whose respective shares are unknown and not ascertained; and decreeing the costs of the proceeding to be borne by the parties who are known: Provided always, That any defendant known and named in the bill, and proceeded against as an absent defendant, or his heirs, or any party unknown, and not named in the proceedings, and proceeded against as an unknown party, or his heirs, claiming as jointenant, tenant in common, or coparcener, with the resident or known

Act of April 4, 1831, Ses. Acts 1830-31, ch. 31, Sup. R. C. ch. 152.

parties, shall be allowed, within three years next after final decree pronounced as aforesaid, to appear, file his, her or their answer, and contest the justice of the decree, or the regularity or equality of the partition, and, thereupon, the proceedings shall be opened, and any injustice, irregularity or inequality, which may be found therein, shall be corrected; but if the decree shall not be contested in manner aforesaid, within three years next afterwards as aforesaid, the same shall be forever conclusive and binding, as between and against all persons claiming as jointenants, tenants in common or coparceners, whether resident or absent, and whether known and named, or unknown and not named, in the proceedings: And provided, That no partition, decree or proceeding which shall be had or made in pursuance of the provisions in this act, shall any wise prejudice or affect the rights or remedies of any person or persons not named in the proceedings or decree, who shall have or claim any right, title or interest, in the premises in question, other than such as claim as jointenants, tenants in common, or coparceners, with the parties known and named in the proceedings.

1. § 1. Limited partnerships for the transaction of any mercantile, mechanical or manufacturing business within this commonwealth, may be formed by two or more persons, upon the terms, with the rights and powers, and subject to the conditions and liabilities herein prescribed; but the provisions of this act shall not be construed to authorize any such partnership for the purpose of banking, brokerage or making insurance.

2. § 2. Such partnerships may consist of one or more persons, who shall be called general partners, and who shall be jointly and severally responsible as general partners now are by law, and of one or more persons who shall contribute in actual cash payments a specific sum or capital to the common stock, who shall be called special partners, and who shall not be liable for the debts of the partnership beyond the fund so contributed by him or them to the capital.