either by or against an infant, the partition cannot be completed, until the infant attains twenty-one, because till that time he cannot effectually convey, and therefore there cannot be mutual conveyances. The course therefore is, to decree the partition, and to direct that the parties shall be quieted in the possession of the allotments, and that the conveyances shall be respited till the infant attains twenty-one, or further order of the Court. (w)

And unless the infant is plaintiff, the direction in the decree, that he shall execute when twenty-one, is further qualified, by allowing him a day to shew cause to the contrary. But an infant, when plaintiff, is as much bound, and as little privileged, as one of age. (x)

In Tuckfield v. Buller, the question was, whether the execution of the conveyance by the adult plaintiff should not also be respited, till the infant defendant should come of age. And Sir John Strange, M. R., was of opinion, the conveyance of the plaintiff ought to be made immediately, according to the decree; and took a distinction between this case, and Lord Brooke v. Lord and Lady Hertford. In that case the bill for partition

(w) Lord Brooke v. Lord and Lady Hertford, 2 P. Wms. 518. Tuckfield v. Buller, Ambl, 197. 1 Dick. 240. S. C. And see Attorney General v. Hamilton, 1 Madd. Rep. 214.

(x) Tuckfield v. Buller, ubi supra. And see Attorney Ge neral v. Hamilton, ubi supra

was brought by the infant: in the present it was by an adult person against the infant.

But it being afterwards moved again, before Lord Hardwicke, he declared his opinion that the conveyances ought to be mutual, not only as to the thing, but in point of time: and said that the case of Lord Brooke v. Lord and Lady Hertford, though different in some circumstances, was a considerable authority; and ordered the conveyance by plaintiff to be respited. (y)

Where partition was made under a decree; and the master was of opinion that the defendants, trustees, had no power to make partition, and that it was necessary the cestui-que trusts, who were infants, should be made parties, and the conveyances respited till they were of age; to obviate this objection, as the decree on further directions was not drawn up, a motion was made to vary the minutes of the decree, by adding to the directions respecting mutual conveyances the words, "without making the infants defendants, who are interested in the said estates and premises, or any of them, parties to such conveyance, with the usual directions for appointing a day or days for the infants, as they respectively attain twenty-one, to shew

(y) And see 1 Dick. 243, note, where the reporter refers to Hubble v. Read, April 23, 1784, as a similar case determined by Lord Thurlow, C. upon the same ground, after doubting, and seeing the above case.

cause against the decree." To warrant this alteration, it was contended, that the trustees could make a good partition under a certain power to sell or exchange; and as Sir Thomas Plumer, V. C. thought they could not, (*) he refused the motion. He said the circumstance of the cestui-que trusts being infants, though it accounted for the motion, could not warrant the adoption of a different course from what would have been adopted, had they been adults. If the Court in this stage dispensed with those parties, it must follow it up in all its consequences, in compelling an acceptance of the title, in case of litigation. It was safer to avoid any risk. (a)

If no cause should be shewn after the infant attains twenty-one, or cause shewn should not be allowed, the decree may be then extended to compel mutual conveyances. (b)

(z) Vide supra, p. 38, et seq.

(a) Attorney General v. Hamilton, 1 Madd. Rep. 214. (b) Mitf. 97. (3d edit.)

SECT. IV.

Of the Proceedings in General.

Decree.

THE decree usually is, that a partition shall be made of the estates in question; and that a commission shall issue, directed to certain commissioners to be therein named, to divide the estates into a certain specified number of shares (as the case may require) and that they shall be allotted to the several parties. And that the parties shall execute mutual conveyances to be settled by the master. And that all deeds and writings shall be produced before the commissioners upon oath, as they shall require; and they are to be at liberty to examine witnesses upon oath and take their depositions in writing, and return the same, with the commission. (a)

The usual course is not for the Court to order who shall be parties to the conveyance, but to leave that to the master. To induce the Court to deviate from its ordinary course, and to direct beforehand the omission of any persons, as parties, it must be shewn to be a clear case, and free from

(a) As to the reservation of further directions, vide supra, p. 100. and as to the direction respecting costs, vid. infra.

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doubt, that their concurrence is not necessary to give validity to the partition; for otherwise it might expose the parties to the risk of a defective title and future litigation. (b)

. Commission.

The commission, after reciting the decree, usually directs (mutatis mutandis) that the persons named, any three or two of them, should assemble at certain proper times and places, to be by them for that purpose appointed, and go to, enter upon, walk over, and survey, the estates and premises in question, and, according to the best of their skill, knowledge and judgment, make a fair partition, division and allotment thereof, and the same separate, set apart, and divide, into moieties, and allot and appoint one moiety, as and for the share of the complainant, and the other moiety as and for, &c. and the parts so divided to distinguish and separate by certain metes and bounds. And to examine witnesses upon oath on such interrogatories as they should see occasion, &c. And return a certificate of the proceedings written on parchment, together with the depositions and interrogatories, as also the writ. (c)

(b) See Attorney General v. Hamilton, 1 Madd. Rep. 222. supra, p. 105.

(c) And see Agar v. Fairfax, 17 Ves. 539. arg. and Wats son v. Duke of Northumberland, 11 Ves. 153.