Definition
A writ directing a co-parcener who holds the elder's (senior) portion of an inherited estate to perform suit of court and other feudal services on behalf of all the co-parceners. Under the ancient English system of co-parcenary, when an inheritance was divided among joint heirs, the heir holding the eldest share — the so-called "enicia pars" or elder's part — was responsible for rendering services to the lord that, in equity and custom, ran to the benefit of all co-parceners collectively. The writ of secta facienda per illam (literally, "suit to be made by her") lay specifically in the context of female co-parceners, compelling the woman holding the elder's part to discharge the common service obligation for the others. It is the counterpart to the writ known as Quae habet eniciam partem.
Common Confusion
Secta facienda per illam is easily conflated with two closely related writs that address the reverse of the same problem. Secta non faciendis is a writ that protects a widow holding land in dower, excusing her from performing suit of court because dower tenure carried its own service rules. Quae habet eniciam partem is the name used by Black's to describe functionally the same writ addressed here, appearing to treat it as the writ issued to compel the elder co-parcener's performance — the two labels are used interchangeably or as variant descriptions in the historical sources. Researchers should not treat these as three distinct remedies without careful attention to which direction the obligation runs (compulsion to perform versus exemption from performance) and to which source they are consulting.
Why It Matters in Research
This term is nearly exclusively a term of historical English land law with no surviving procedural relevance in modern common law jurisdictions. Researchers encountering it will do so almost entirely in:
— Pre-nineteenth-century English real property sources, Year Books, or register of writs materials, particularly the Registrum Omnium Brevium, which is the primary source both Black's and Rapalje cite (Reg. Orig. 177).
— Treatises on co-parcenary and feudal tenure, such as Littleton's Tenures and Coke upon Littleton, where the obligations of the eldest co-parcener for common services are discussed in detail.
— Abridgments organized by writ name, where this entry may appear under "Secta" or under "Co-parcenary."
The principal navigational trap is terminological fragmentation: the same writ or closely related writs appear under multiple Latin headings in different sources depending on which party's obligation the author is emphasizing. Rapalje & Lawrence present secta facienda per illam within the same entry as Secta non faciendis and Quae habet eniciam partem, signaling that these are part of a cluster of writs governing the same underlying feudal relationship. Black's separates them. When searching the Law Mind corpus, a researcher who finds one term and fails to consult the others risks an incomplete picture of the remedial scheme.
The "per illam" construction — meaning "by her" — confirms the gendered context: co-parcenary in English feudal law arose characteristically among daughters in the absence of male heirs, making the female co-parcener the typical subject. This linguistic marker is a useful pointer when the writ appears in manuscript or early printed sources where the full writ name may be abbreviated or variant.
Historical Dictionary Support
Rapalje & Lawrence provide the most useful synthesis, treating secta facienda per illam and its companion writs together under the entry for Quae habet eniciam partem, with citation to Registrum Orig. 177. This organizational choice — grouping the writs rather than separating them — reflects the reality that they were understood as remedial variants on a single problem: allocating the suit-service burden among female co-parceners. Black's entry under Quae habet eniciam partem is briefer and does not elaborate on the companion writs.
Neither historical dictionary supplies substantive doctrinal depth on the underlying law of co-parcenary. For that substance, the historical dictionaries point implicitly toward Littleton and Coke. Rapalje's partial quotation of the maxim Secta quae scripto nititur a scripto variari non debet (Jenk. Cent. 65) — "a suit which is founded on a writing ought not to be varied from the writing" — appears in the same passage but addresses a distinct principle about pleading in suits founded on written instruments, not the co-parcenary writ specifically. Researchers should take care not to read that maxim as governing the scope of secta facienda per illam itself.
Jurisdictional Note
This writ has no operational existence in any modern jurisdiction. It is of purely historical significance to English law prior to the abolition of feudal tenures and the reform of real property procedure. American treatises from the colonial and early republic period may reference it in discussions of inherited English land law, but it was never transplanted as a functioning remedy.