The process in nuper obiit, is summons and grand cape before appearance, and petit cape after appearance. Essoign lies, but neither view nor voucher. The judgment is, as it seems, to hold again in coparcenary. (a) (a) See post, under the proper heads. K Of partition. For parceners. For jointenants and tenants in common. Of the Writ of Partition. A WRIT of partition lies at common law for one or more parceners against the other or others (a); and if one parcener after issue had, dies, whereby her husband is tenant by the curtesy, a writ of partition will lie against the husband. (b) So if one parcener aliens in fee, the other may, at common law, have this writ against the alienee, and if there are three coparceners and the eldest marries, and the husband purchases the part of the youngest, though the husband be in respect of his own part a stranger, yet he and his wife may have a writ of partition at common law against the middle sister, for he is seised of one part in right of his wife. (c) If one parcener makes a lease for life, no writ of partition lies at common law, for she and her coparcener do not then hold the freehold insimul et pro indiviso according to the words of the writ, though if the lease be for years only, the writ lies, for the freehold then continues in parcenary. (d) So if one coparcener disseises another, no writ of partition can be had during the disseisin (e); and neither tenant by the curtesy, nor the alienee of a parcener was entitled to this writ at common law. (ƒ) At common law jointenants and tenants in common could not have a writ of partition; but it is given to jointenants and tenants in common of any estate of inheritance in their own right or in right of their wives by statute 31 Hen. 8, c. 1; and to jointenants and tenants in common, where one or all have an estate for life or years, by statute 32 Hen. 8, c. 32. (g) Under these statutes the alienee of a parcener, who is a tenant in common, and the tenant by the curtesy, may have a writ of partition. (h) If there be three parceners and a stranger purchase the part of one of them, he and one of the other coparceners cannot join in one writ. (i) (a) Litt. sec. 247. Com. Dig. Parcener, (C. 6). Booth, 244. Robinson on Gavelkind, 109. Allnatt on Partition, 52. (b) Litt, sec. 264. Co. Litt. 174, b. and see Co. Litt. 46, a. (e) Co. Litt. 167, a. (f) Co. Litt. 175, a. (g) Com. Dig. Parcener, (C. 6). (h) Co. Litt. 175, a. b. (i) Co. Litt. 175, b. Ballard v. Ballard, Dyer, 128, a. Robins. on Gav. 109. Where the partition is to be between two jointenants or tenants of partition. in common of an estate of inheritance, the writ may be general, merely referring to the statute (a), (31 Hen. 8, c. 1); but, if the partition is to be made between tenants for life or years under the 32 Hen. 8, c. 32, it seems doubtful whether it should not be special and shew the particular estates. (b) The process in partition was formerly summons, attachment, Process, &c. and distress, and is now governed by the statute 8 and 9 W. 3, c. 31, by which it is enacted, that after process of attachment returned, and affidavit made of the service of notice of the action upon the tenant, and copy left with the occupier, &c. or tenant in possession, &c. forty days before the return of the attachment, if the tenant, &c. do not appear in fifteen days after the return of the attachment, the demandant having entered an appearance for him, and declared, the court may proceed to examine his title, give judgment by default, and award a writ to make partition, which being executed after eight days' notice to the occupier, or tenant, &c. final judgment may be entered. But if the tenant, &c. within one year after such judgment, shew good matter in bar of the partition, the court may set aside the judgment and admit him to plead. The mode of examining the demandant's title under this statute is as follows. The demandant having declared, according to the statute, a rule to shew cause, why the court should not proceed to examine his title, must be moved for, and on this rule being made absolute, the court will appoint a day to proceed on the examination in open court. On that day, the demandant must open his title and prove his case by affidavits of the seisins, descents, &c., and must produce the assurances under which he claims. If the court is satisfied with his title, a writ of partition will be awarded. (c) On the return of this writ, the demandant may move for final judgment. (d) The act of 8 and 9 W. 3. only applies to cases where the tenant does not appear. (e) The writ of partition at common law has fallen into disuse on account of the relief afforded by the Court of Chancery. (f) (a) Moor v. Onslow, Cro. Eliz. 759. Yate v. Windnam, Cro. Eliz. 64. (b) Moor v. Onslow ubi sup. but see Taylor v. Sayer, Cro. Eliz. 743, and see a distinction taken in stating title between Parceners and Jointenants and Tenants in common. Cro. Eliz. 64. (c) Halton v. Earl of Thanet, 2 W. Bl. 1134. (d) Ibid. 1159. (e) Dyer v. Bullock, 1 Bos. and Pul. 344. (f) See the Appendix. Of quod ei deforceat. For whom it lies. Of the Writ of Quod ei deforceat. BEFORE the statute of Westminster 2, 13 Ed. 1, c. 4, when tenants in dower, by the curtesy, or for life, lost lands by default, they were without any remedy; for, from the nature of their estates they could not maintain a writ of right (a); though if the tenant had not been duly summoned, he might have had a writ of deceit, which is still in such case a concurrent remedy with the writ of quod ei deforceat. (b) By the statute of Westminster 2, c. 4, a writ of quod ei deforceat is given to tenant in tail, frankmarriage, dower, by the curtesy, and for life, when they have lost their lands by default; but the writ for the tenant in dower, and by the curtesy is said only to lie by the equity of the statute. (c) There may be a quod ei deforceat, upon a quod ei deforceat in which judgment has been given by default (d); and the writ may be brought for copyhold lands. (e) If the particular tenants who are aided by the statute of Westminster 2 in case of judgment by default, lose their lands by action tried, it seems that they are without remedy. (ƒ) If lands are lost in a court baron by default, a quod ei deforceat may be brought either in the inferior court, or in the Common Pleas. (g) Coparceners, tenants in tail, who have lost lands by default, although the default of one is not the default of another, may join in a quod ei deforceat. (h) As may also two men heirs in tail in gavelkind. (?) But if tenant in tail lose lands by default and die, the issue in tail must bring a formedon, and not a quod ei deforceat. (k) If A. and B. are seised of lands to them and to the heirs of A., and a recovery is had against them by default, A. must bring a writ of right for his moiety, and B. a quod ei (a) Co. Litt. 355, a. F. N. B. 155 B. 2 Inst. 350. Gilb. Executions, 292. (b) F. N. B. 155 D. (c) F. N. B. 8 D, 155 D. Reg. Br. 171, b. 2 Inst. 353. This appears to be a mistake, as to tenants in dower, who are mentioned expressly in the statute. (d) Br. Ab. Quod ei deforceat, 13. deforceat, and when they have recovered they shall hold as jointenants again. (a) If a woman lose lands by default and then marry, she and her husband may have a quod ei deforceat (b); but where husband and wife seised of lands in right, and for the life of the wife, lose them by default, it was at one time a doubt whether the husband and wife could maintain a quod ei deforceat, because the statute gives that writ to tenant for life, and here the husband is not tenant for life, but only seised in right of his wife. (c) It is however decided, that in such case the writ will lie. (d) But if husband and wife seised in right of, and for the life of the wife, lose the lands by default, the wife, after the death of the husband, must resort to her writ of cui in vitâ, which is expressly given to her in such case by the statute of Westminster 2, c. 3, and cannot maintain a quod ei deforceat. (e) Of quod ei deforceat. This writ may be brought against a stranger to the former Against whom. recovery if he be tenant of the land lost (ƒ), as against the feoffee of the recoveror (g), for the words of the statute are general, and unless this were allowed, the demandant would not be able to obtain restitution of the land. (h) If the tenant in the first action appears, and afterwards de- Upon what de parts in despite of the court, this is such a default within the fault in prior statute as entitles him to bring a quod ei deforceat (i); and yet action. upon a judgment by nihil dicit, which is said to be a sort of confession of the action, no quod ei deforceat will, as it seems, lie (k); nor will it lie after a default in a writ of right, after the mise joined. (1) If tenant for life vouches, and the vouchee will not appear, in consequence of which the tenant loses by default, he may still have a quod ei deforceat, though the judgment is not, in fact, given on his own proper default, for the statute of Westminster 2, says, generally, per defaltam and not per defultam suam; and, besides, the default of the vouchee is, in law, the default of |