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 wards of $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 deeds. infant after arriving at full age. And in case of a sale of any part of Infants, 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. 32 court. Partition by committees $89. Whenever it shall appear to the court of chancery, on the 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 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 &e. 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 of same had been executed by them respectively when of sound mind and understanding, and for a valuable consideration.33 Effect there 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.34 (32) Laws of 1814, p. 129, § 2. (33) 1R. L. p. 148, § 4. (34) Laws of 1814, p. 249, § 2 & 3. TITLE 4. $93. The petition and all other notices required to be served in other cases, shall be served on the attorney-general, who shall appear notices, &c. in behalf of the state, and attend to its interests.35 Service of on attorney general. Claims bar tions, &c. $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 TITLE IV. OF THE WRIT OF NUISANCE. SEC. 1. Common law remedy retained. 2. Proceedings in case of transfer of nuisance. 3. Form of the writ 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 writ, retain heretofore accustomed, subject to the provisions herein contained. ed. Transfer of nuisance. Form of the writ of nuisance. Writ how to be served. $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." S4. 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. (87) 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 magos. 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. TITLE 5. . Who liable 1288-71 $1. If any guardian or any tenant by the curtesy, tenant in dower, or for term of life or years, or the assigns of any such tenant, shall to action for commit waste during their several estates or terms, of the houses, waste gardens, orchards, lands or woods, or of any other thing belonging to the tenements so held, without a special and lawful license in writing so to do, they shall respectively be subject to an action of waste.3 S2. In case any such tenant shall let or grant his estate, and still retain possession of the same, and commit waste, the party entitled to the reversion of the tenements, may maintain his action of waste against such tenant.39 Ib. by as signce of te nant. Joint tenants and in com mon. Suits by heirs Form of When and Special order for rule to plead. Proceedings 38 $ 3. If one joint tenant or tenant in common, shall commit waste of the estate held in joint tenancy or in common, he shall be subject to an action of waste, at the suit of his co-tenant or tenants." 40 $ 4. An heir whether he be within or of full age, may maintain an action for waste done in the time of his ancestor, as well as in his own time.41 $5. The first process in the action of waste, shall be a summons, which shall be made out substantially in the following form: "The people, &c. to the sheriff, &c. We command you that you summon A. B. that he be before, &c. at, &c. on, &c. to show wherefore he has committed waste, to the injury of C. D. of a certain dwelling-house and garden, situated in the town of in the said county of [describing the premises according to their actual situation, and with the same certainty as in this Chapter before required in declarations in ejectment,] and which said premises the said A. B. holds in dower, of the inheritance of the said C. D. [or which the said A. B. holds as tenant for years or otherwise,' as the case may be.] And have you then there this precept. Witness, &c." $ 6. Every such summons 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 summons may be served by leaving a copy at his dwelling-house on the premises wasted, if there be one, with any person of proper age found therein. The copy to be delivered shall in all cases be certified by the officer serving it. S7. But where the summons was served in any other manner than upon the defendant personally, no rule to plead shall be entered, without the special order of the court. $8. If the summons be returned duly served, and the defendant ant's default. shall not appear according to the rules of the court, or shall make default after appearance, a writ of inquiry shall issue to the sheriff of the proper county, commanding him to go to the place wasted, and by the verdict of a jury, to inquire of the waste done and of the dama (38) 1 R. L. p. 62, § 2 & 3. (39) Ib. § 7. (40) Ib. § 5. (41) Ib. § 6. ges occasioned thereby; and on the return of such inquest, the plain- TITLE 5. tiff shall have judgment. $9. If an issue of fact be joined in the action, it shall not be neces- Trial, view, sary assessing of for the jury to view the premises alleged to be wasted, unless damages. the court, upon the application of the parties, or of one of them, upon 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 waste done, shall also assess the damages occasioned thereby. $10. If the action be brought by any other than a joint tenant or Judgment. tenant in common, and if the plaintiff prevail therein, the judgment shall be, that the plaintiff recover the place wasted, and treble the damages found by the jury.42 joint tenant, $11. If the action be brought by a tenant in common, or by a Election by joint tenant, against his co-tenant, and the plaintiff recover judgment &c. therein, he shall be entitled, at his election, either to take judgment for treble the damages found by the jury, or to have partition made of the premises so held in common or joint tenancy. partition. $ 12. If he elect to have partition made, the court, upon the com- Judgment for ing in of the verdict of the jury, shall give judgment that partition be made. thereon. $ 13. If the respective rights and interests of the parties have not Proceedings been ascertained or admitted, the plaintiff shall file a suggestion setting forth the same, as in a petition for partition, and praying for partition; to which the defendant shall plead, and the same proceedings shall be had thereon, in all respects, as provided in the third Title of this Chapter. ers. $14. When the rights and interests of the parties shall have been Commissionascertained, the court shall appoint commissioners to make partition; who shall proceed, in all respects, as prescribed in the said third Title, except as herein otherwise provided. $15. The commissioners shall, in the first place, deduct from the Their duty. share or portion of the defendant, the amount of the damages found by the jury, unless they shall have been paid by the defendant, and shall make partition, so as to allot to the plaintiff so much of such share, as will compensate him for such damages remaining unpaid, and they shall proceed and divide the residue equally and justly between the parties, according to their respective rights. $ 16. Upon the report of the commissioners being confirmed, judg- Judgment. ment shall be rendered, that such partition be final and effectual between the parties. Such judgment shall have the like effect as a judgment in proceedings for partition; and the costs, from the filing Costs. (42) 1 R. L. P. 62, § 1, 3, 4 & 6. |