on the examination in open court, on the morrow. On the morrow Walker, for the demandant, opened his title, of which abstracts had been left with the Judges. It fortunately proved not to be very intricate. The several seisins, descents, devises, and conveyances, were proved by affidavits. The deeds and wills were produced and read; and, no counsel appearing for the tenant, the Earl of Thanet,judgment on his default was given for the demandant to hold in severalty the premises demanded in his count; in some of which he was seised of two undivided third parts, and in others of a moiety only, in common with the said Earl of Thanet. And a writ of partition was awarded accordingly. In a subsequent term, the sheriff returned that he had executed the same, in the presence of persons who attended for the plaintiff and defendant respectively; and he specified in his return the several parcels, with their metes and boundaries. And hereupon Walker, for the plaintiff, moved for final judgment, quod partitio sit stabilis. The rule for which was made absolute, the last day of the term, on affidavit of notice to the defendant, and tenants in possession. (c)

It may be also observed, that the writ is now become a rare proceeding; and, when resorted to, it is generally by consent, and confessed. (d).

(c) Halton v. Earl of Thanet, 2 Black. R. 1134, 1159. (d) Booth on Real Act. 246.

With respect to final judgment, given under the statutes, it differs, according to circumstances. For the judgment upon the first statute of 31 H. VIII. of inheritances, is sit firma partitio in perpetuum; but upon the statute 32 H. VIII. it is otherwise, for judgment given upon that statute shall not bind him in the reversion, on account of the proviso at the end of it. (e)

The judgment must be conformable to the demand, for if A. brings partition, and thereby demands the fourth part, and the jury find that the co-tenants hold pro indiviso, but that A. ought to have only a fifth part, A. shall not have that which is due to him, viz. the fifth part which he has a right to; for then the judgment will be variant from the demand. (ƒ)

IN a writ of partition, no damages shall be recovered nor an enquiry for them. And yet the writ of the court is ad damnum, &c. (g)

And as the demandant cannot recover damages, neither can he recover costs, whether by the common law or the statute of Gloucester, 6 Edw. I. Though from time to time statutes have autho

(e) Per Gaudy, J. Strausam v. Colburn, Godb. 86. (f) Becket v. Bromley, Noy 107.

(g) Countess of Warwick v. Lord Berkley, Noy 68.

rized partition among particular tenants, who could not have it at common law, none of them ever gave costs. Therefore, he who procures the partition is at the whole expence, unless the other will be at expence for his own convenience. (h)

IT only remains to be observed, that by the statute 8 and 9 W. III. c. 31. it is provided, that after a partition made pursuant thereto, if any within a year after judgment, or removal of the disabilities therein mentioned, by motion shew a probable bar, or that the plaintiff had not title to so much, the court may admit him to plead, &c. or if he shews an inequality of partition, the court may award a new partition.

(h) See Arguments in Calmady v. Calmady, 2 Ves. jun. 569,

77

CHAP. IV.

OF PARTITION BY BILL IN EQUITY.

SECT. I.

Of the Equitable Jurisdiction in Partition.

IT has been shewn, in the preceding Chapter, that if the titles of the respective parties are in any degree complicated, very great difficulties attend the process of partition at law, where the plaintiff must prove his title as he declares, and also the titles of the defendants; and judgment is given for the partition, according to the respective titles so proved; and also that no permanent partition can be made, if any of the parties are only entitled to particular estates.

These difficulties have encouraged applications to courts of equity, for partitions, (a) which are effected in a much easier manner, and divested of the

(a) See Agar v. Fairfax, 17 Ves. 552.

hazard attending such technical niceties. The valuation of the proportions is here much more considered; the interests of all the parties are much better attended to, and it is a work carried on for the common benefit of all. (b) Besides this, a partition by decree has the advantage of binding those in reversion or remainder, as well as the particular

tenants.

There is no original jurisdiction in equity, in partition. (c)

A party choosing to have a partition has the law open to him; there is no equity for it, but the jurisdiction of the court, obtained upon the above mentioned principle of convenience. It is not for the court to say, one party shall not hold his part of the estate as he pleases: but another person has also the same right to enjoy his part as he pleases; and, therefore, to have the estate divided. The law has provided, that one shall not defeat the right of the other to the divided estate. (d)

With respect to the origin of this branch of equitable jurisdiction, different opinions have been formed; and perhaps nothing decisive can be said

(b) Calmady v. Calmady, 2 Ves. jun. 569. See Mitf. Plead. 97. (3d ed.)

(c) Mundy v. Mundy, 2 Ves. jun. 124.

(d) Calmady v. Calmady, ubi supra. See Mitf. Plead. 97. (3d ed.)