on the subject. Agreeing, therefore, as I do, with Mr. Fonblanque, that " to establish the origin of any branch of legal or equitable judisdiction is always difficult and seldom necessary, provided the exercise of such jurisdiction is found to be condu→ cive to the ends of substantial justice," (e) I shall content myself with detailing such of those opinions as appear to me most worthy of consideration, and leave the reader to draw his own conclusion from them.

In the argument in the case of the Earl of Kildare v. Eustace (f) it was said, that the jurisdiction of the court of equity was grounded on the statute, which made one tenant in common accountable to the other, so that since that statute they had become, as it were, trustees the one for the other.

In the arguments in the case of Mundy v. Mundy, (g) it was said, that, supposing there were not any proceedings for partition between coparceners in this court before the statute 31 H. VIII. c. 1. and 32 H. VIII. c. 32. (h) it was probably in consequence of the statutes, that the court assumed the jurisdiction. But Lord Rosslyn observed, that no

(e) 1 Fonb. Eq. 21.(4th ed.)

(f) 1 Vern. 421.

(g) 2 Ves. jun. 125.

(h) Supra, Chap. III. s. 2

express authority was given by the statutes to the court. And in a recent case, (i) Lord Eldon said, the court issues the commission, not under the authority of any act of parliament, but by analogy to its jurisdiction in the case of dower.*

Mr. Hargrave, in reference to the origin of this branch of equitable jurisdiction, remarks: (k) "The earliest instance of a bill for partition I observe to be noticed in the printed books, is a case of the 40th Eliz. in Tothill's Transactions of Chancery, title Partition. According to the short report of this case, the Court interposed from necessity, in respect of the minority of one of the parties; the book expressing, that, on that account, he could not be made party to a writ of partition; which reason seems very inaccurate : for if Lord Coke is right, that writ doth lie against an infant, and he shall not have his age in it, and after judgment he is bound by the partition. But

(i) Agar v. Fairfax, 17 Ves. 552.

F

* And see the argument for the plaintiff, in the case of Watson v. The Duke of Northumberland, (11 Ves. 153,) where it was said, that the assumption by the court of this jurisdiction was probably, as in the case of dower, first made, on account of some outstanding estate, which would prevent the legal remedy; and until lately, every bill had such a charge; but since the case of Curtis v. Curtis, (2 Bro. C. C. 620.) that had not been considered necessary, being merely a formal suggestion, though probably founded originally in fact.

(k) Co. Litt. 169. n. (2).

probably in Lord Coke's time, this was a rare and rather unsettled mode of compelling partition; for I observe in a case in Chancery, of the 6 Cha. I.(?) which was referred to the judges, on a point of law, between two coparceners, that the judges certified for issuing a writ of partition between them, and that the court ordered one accordingly, which I presume would scarce have been done, if the decree for partition and a commission to make it, had then been a current and familiar proceeding with Chancery."

Mr. Fonblanque, in reference to Mr. Hargrave's note, observes, (m) that “a practice sanctioned by a precedent of so early a date as 40 Eliz. cannot reasonably be described as a new mode; particularly, when it is considered, that there are very few, if any, reports of decisions in equity, of an earlier date. The reason assigned by Tothill, for this decision, is, in the opinion of Lord Coke, insufficient to support it; and it will become still more so, when it is considered, that an infant, when he attains his age, may shew cause against a decree of partition in equity, unless he be a plaintiff, in the suit. (n) But though the reason by Tothill fail, the decision is not destitute of princiciple to support it.

(1) Drury v. Drury, 1 Ch. Rep. 26. (3d ed.) (m) 1 Treat. Eq. 19. (4th ed.)

(n) See infra, Sect. III.

G

"The case of Drury v. Drury appears to have been decided in the 6th of Chas. I.; previous to which period, and even to 40 Eliz. equity had decreed an equal partition, where that made by the parties appeared to be unequal. Norse v. Ludlow, 32 Eliz. Tothill, 155. Whether this partition was made by writ, commission, or consent, does not indeed appear; neither does it appear, in Drury v. Drury, upon what ground the writ of partition was decreed: but it is observable in that case, that the question of partition was not referred to the judges; and that if it was, they could not strictly, in such a case, have certified that a commission, which is an equitable process, ought to issue. The inference, therefore, drawn by Mr. Hargrave from this case, cannot be supported, unless it can be at least shewn, that the judges were called upon to decide, not only the question of partition, but also to point out the mode to effect it. If, however, the authority of this case can in any degree support the doubt raised upon it, I think it must be removed, by an almost immediately subsequent case, 14 Chas. I. Babbv. Dudeny, Tothill's Transactions, title Partition, p. 155, in which case the court refused to interfere, not upon the ground, that it had no jurisdiction; but because "the matter was but 9l. per annum.” Norbury v. Yarbury, Toth. ubi supra. See also Manaton v. Squire, 2 Freeman, 26.; in which case partition was considered as cognizable in equity, as at law."

In the above mentioned case of Earl of Kildare v. Eustace (o), (which was in the reign of James the Second,) bills for partition were said to have become common; and in Manaton v. Squire, (p) in the subsequent reign, the Chancellor observed, "he did no more question the jurisdiction of the Chancellor in these cases, than he did, whether a gift to a man and his heirs were a fee simple.

SECT. II.

In respect of what species of Property a Bill for Partition lies, and how the Property must be divided.

On this part of the subject, I shall pursue the same course as that I have adopted in the two preceding Chapters, by considering, together, the subject matter of the partition, and the mode of making the division.

Whatever is capable of being divided may be the subject of partition in equity. (a) There have

(0) Supra, p. 78.

(p) Ubi supra.

(a) See argument in Agar v. Fairfax, 17 Ves. 547.