CHAP. IX. SEC. III. Partition by fant. An infant may file a bill of partition, or such a bill may be filed against him, and, in the former case, as it seems, (unless under very extraordinary circumstances,) decree in the is as much bound, and as little privileged, as a person of case of an infull age, though the court will take care that he does not make any injurious submissions, and will, when the cause is brought on, allow him to amend his bill on paying the costs of the day. No decree can however be made against him, without a day being allowed him, after he comes of age, to shew cause against the decree; and he is always, within six months after coming of age, served with a subpana to shew cause, why the decree should not be made absolute; and if no cause be shown, or the cause shewn should not be allowed, the decree may be the next ended to compel mutual conveyances. SECTION III. Of partition by act of parliament. ment. So many, however, are the difficulties of obtaining Partition by partition, even by bill in equity, that if it be desirable to Act of Parliagain the legal estate immediately, it is often necessary to resort to Parliament for a private act; as, for instance, where there are infants interested who would be entitled to shew cause against the partition, even at the distance of many years. Or if the estate be so circumstanced, that partition cannot be obtained either at law or in equity, as if the parties interested be lunatics,—or the surviving trustee (or his heir) of a settlement, with all the requisite powers for completing a partition, be a lunatic,-or the CHAP. IX. trustees of an estate in strict settlement, have no power to make a partition, and the parties interested be infants, or only tenants for life, with contingent remainders to persons not ascertained, or not in being,—or the trustees have a power to make a partition, but have no authority to apply the money received for equality of partition,—or to raise the money to be paid for equality of partition, or if there be a power to make partition, with a power to raise the money to be paid for equality of partition, by sale or mortgage of part of the lands in settlement, but the money could be raised, with greater ease and benefit to the parties interested and the remainder-men by a sale of timber, but the tenant for life in possession is restricted from cutting more than a certain quantity annually, or the tenant for life in such a case is subject to impeachment for waste. And so in a variety of other cases in which the intricacy of our system of settlements renders it impossible fully to accomplish the objects which the wants of families render necessary or expedient. Even in many cases, where the objects could be effected by bill, yet it would be clogged with so many inconveniences and impediments, that it is better at once to incur the expense of getting a private act. The private act operates as a conveyance, and transfers an immediate legal estate to the trustees appointed to make the partition,—or immediately to the parties themselves, (if the property which each is to take has been previously fixed), without any conveyance from the trustees. CHAPTER X. OF DEEDS TO LEAD THE USES OF FINES AND RECOVERIES. 1. Of the tenant to the præcipe. 2. Of the recitals. 3. Of the declaration of trusts. 4. Operation of recoveries and fines. SECTION I. Of the tenant to the præcipe. If a wife be tenant for life, or tenant in tail, the hus- Tenant to the band alone may make a tenant to the præcipe, and no præcipe. fine is necessary, the freehold being in him. It sometimes happens that lands are conveyed to a tenant to the præcipe for suffering a recovery, which is postponed by some accident, and, some years afterwards, the same lands are conveyed to another tenant to the præcipe, and the recovery is suffered. The recovery, in such a case, would be defective, because the second tenant to the præcipe would not have the freehold vested in him, it remaining in the person first intended to be the tenant. If, therefore, a second conveyance be necessary, it should be made to the same person, as in CHAP. X. SEC. I. Tenant to freehold, how made. Recitals. the first instance; or, if he be dead, to his heirs; or such first grantee, or his heir, should join in the conveyance to the new tenant to the præcipe. It is usual to make the tenancy to the freehold by bargain and sale enrolled, and, sometimes, by bargain and sale, and lease and release. It is convenient to have a bargain and sale; and this is the general practice when the estate is intended to be sold, and there is a probability of such sale. When there is a bargain and sale, the whole title under the recovery is on record, and this obviates the necessity of taking copies of the recovery deed, a measure at this day of great importance and deserving serious attention. Where the eldest son, tenant in tail under a will or settlement, suffers a recovery to bar the estate tail, and vests the fee in himself, no recitals are necessary. The parcels may be conveyed by the same description as in the settlement creating the entail, or, if no settlement, as in the most modern title-deeds; but to guard against omission, there should always be a sweeping description, after the general words, "Together, &c," in some such terms as the following:-" And all other the freehold messuages, "&c., of the [grantor], or whereof, or wherein, he or any "6 person or persons, In trust for him, is, or are seised of any estate of inheritance, situate, being or arising, or "to be had, received or taken, in, or within the several "towns, townships, &c., of &c., (enumerating them over again) or any of them." If there be any tithes, whether issuing out of the lands conveyed, or out of other lands, they should be noticed, inasmuch as tithes will pass in a deed by general words, but not in a fine or recovery, without being mentioned. SECTION II. Of the recitals. Recovery deeds should always shew the creation of the estate tail, and the right of suffering the recovery, by stating the determination of all prior estates of freehold. CHAP. X. SEC.II. advowson. If a recovery is to be suffered of an advowson, (for Recovery of an which, as being an incorporeal hereditament, a præcipe will not lie) it is necessary to insert some land in the deed, whether there be any or not. vious to re-set When a recovery is to be suffered for re-selling the Recovery prefamily estate on an agreement between the father, tenant tlement. for life, and the son, tenant in tail, the former settlement must be recited, and the father alone may, by lease and release, or bargain and sale, or both, convey to the tenant to the præcipe, habendum for and during their joint natural lives, &c., To the intent, &c., in the usual form, after which must follow the limitation of the uses. If the original estate for the life of the father, the mother's jointure annuity, and the term for raising younger childrens' portions, are to remain unaltered, the recovery may be declared in the first place, for corroborating and confirming "the several uses and estates, in " and by the settlement, limited, created and declared, "precedent to, or before, the limitation to the first son of "the said [the father], and the heirs of his body, and for "corroborating and confirming the several powers and 66 privileges to the same precedent uses, estates, terms of years and charges, and every or any of them, belonging "or annexed, and from and after the determination of "the said precedent uses, &c," then to the son in fee, or, "To such uses as the father and son shall jointly appoint, |