Of the Judgment in Quare Impedit, &c. fhould admit a fit perfon to the rectory and parish aforefaid, at the prefentation of the faid A. We therefore command you, that notwithstanding your difclaimer, or the claims of the faid E. F. and C. D. you admit a fit perfon to the rectory and parish church aforefaid, at the prefentation of the faid A. and how you fhall have executed this our writ, certify to us on wherefoever we Witnefs Sir William fhall then be in England. De Grey, knight, at Westminster, the reign, &c. By the flat. of Wefilm. 2. c. 30. The judge of nifi prius has power to give judgment immediately; yet if he do not, upon return of the poflea, judgment may be given by the court to which the return is made. If the plaintiff is nonfuited, the judgment is peremptory, and the defendant fhall have a writ ad admittendum clericum to the bishop. 1 Brown. 161. but not before title made. F. N. B. 38. K. But if he has judgment upon demurrer, he fhall have a writ to the bishop prefently. But the defendant cannot have a writ to the bishop, if the quare impedit abates for form, mifnomer, or infufficiency. R. 7 Co. 27. b. F. N. B. 38. M. Note: If the ordinary does nothing upon the writ ad admittendum clericum, the party may have an alias and pluries, which may be returnable, and after that an attachment. Reg. 42. a. 80. F. N. B. 38. c. Dy. 254. b. 350. a. There was a fine of 10 l. for a bad return upon the firft writ, and an alias under the penalty of 100 7. 3 Leon. 139. If the incumbent, of which the church is full, was not a party to the writ, he fhall never be removed. Co. Lit. 344. b. Ey the 3 Hen. 7. c. 10. [which gives costs upon writs of error brought if judgment be affirmed] If the defendant bring a writ of error, and the judgment be affirmed, the plaintiff fhall recover his cofts and damages for his wrongful delay.. By virtue of this ftatute, the court of King's Bench have, upon a writ of error, awarded damages according to the Of the Judgment in Quare Impedit, &c. value of the church found by the verdict. Cro. Jac. 145, 175. But as the real damages which the plaintiff fuftains is only the being kept out of the half year's value, the legal intereft on that feems to be all he is entitled to. Stra. 931. 274 Df partition. Y the flatute 8 & 9 W. 3. c. 31. An act for the easier obtaining partition of lands in coparcenary, jointtenancy, and tenancy in common; after reciting, that "Whereas the proceedings upon writs of partition between coparceners by the common law or cuftom, joint-tenants, "and tenants in common, are found by experience to be " tedious, chargeable, and oftentimes ineffectual, by rea"fon of the difficulty of difcovering the persons and estates "of the tenants of the manors, meffuages, lands, tene"ments and hereditaments, to be divided, and the defec❝tive or dilatory executing and returning of the process of "fummons, attachment, and diftrefs, and other impedi 66 ments in making and establishing of partitions, by reafon "of which divers perfons having undivided parts, or purparts, are greatly oppreffed and prejudiced, and the pre"miffes are frequently wafted and destroyed, or lie uncul"tivated and unmanured, fo that the profits of the fame are totally or in a great measure loft; for remedy where"of, it is enacted, That after process of pone, or attachment "returned upon a writ of partition, affidavit being made "by any credible perfon of due notice given of the faid "writ 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, fon or "daughter (being of the age of one and twenty years or "upwards) of the tenant or tenants, or to the tenant in "actual poffeffion, by virtue of any eftate of freehold, or "for term of years, or uncertain intereft, or at will, of "the manors, lands, tenements or hereditaments, whereof "the partition is demanded (unless the faid tenant in actual poffeffion be demanded in the action) at least forty days "before the day of the return of the faid pone or attachment, if the tenant or tenants to fuch writ, or any of " them, or the true tenant of the meffuages, lands, tenements and hereditaments as aforefaid, fhall not, in such case, "within fifteen days after return of fuch writ of pone, or "attachment, cause an appearance to be entered in fuch 66 court where fuch writ of pone or attachment fhall be re"turnable; then, in default of fuch appearance, the de"mandant having entered his declaration, the court may "proceed to examine the demandant's title, and quantity of "his part and purpart; and accordingly as they fhall find "his right, part and purpart to be, they fhall for fo much give 3 66 86 "give judgment by default, and award a writ to make "partition, whereby fuch proportion, part and purpart, may be fet out feverally: which writ being executed after eight days notice to the occupier, or tenant or tenants of "the premiffes, and returned, and thereupon final judgment entered, the fame fhall be good, and conclude all "perfons whatsoever after notice as aforefaid, whatever " right or title they have, or may at any time claim to have, "in any of the manors, &c. mentioned in the faid judg"ment and writ of partition, although all perfons con"cerned are not named in any of the proceedings, nor the "title of the tenants truly fet forth." By fect. 2. Provided, that if fuch tenant or other fhall in one year after judgment entered, or in cafe of infancy, coverture, non-fanity, or abfence, within a year after fuch inability determined, fhew a good matter in bar of such partition, &c. the court may fet afide fuch judgment; but if the fame is confirmed the party appealing pays colts. By feet. 3. No plea in abatement thall be admitted or received in any fuit of partition, nor fhall the fame be abated by reafon of the death of any tenant. By f. 4. If the high sheriff cannot be prefent at the execution of the judgment in partition, the under-sheriff, in the prefence of two juftices, may proceed therein-And in cafe fuch partition be made, returned and filed, the tenants, before divifion, are to remain tenants, under the fame conditions, and the landlords, &c. are to make good to their tenants the faid parts as before partition made. By feat. 5. The theriffs, under-fheriffs, &c. are to give due attendance to the execution of the writ of partition, and in cafe the demandant does not pay the fees to the sheriff, c. then the court fhall award them, &c. The above act is made perpetual by the 3 & 4 Ann. c. 18. Lect. 2. S Of the Writ of Partition, &c. INCE the above ftatute, partition has been usually made by writ; before which ftatute it was done either by writ, commiffion, or confent, and was in many cafes liable to be defeated. By the ftatute 31 Hen. 8. c. 1. joint-tenants, and tenants in common, or in right of their wives, are compellable by writ to make partition. To proceed to make partition, according to this ftatute, the demandant or demandants apply to the court of Chancery, and fue out an original writ, which is to this effect: GEORGE the third, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith, and fo forth. To the fheriff of greeting: If A. B. and C. D. fhall give and *Or" according to the cuftom of England" if parceners by cuftom. and |