of plaintiff, as in the present case, his honour agreed that to be the rule of the court; but if a party entitled to forty-nine-fiftieths of an estate were to bring the party entitled to the remaining fiftieth into that court, for a partition, his honour said, he should hesitate a great deal, before he made such a defendant bear half the costs of the partition.

In the subsequent case of Calmady v. Calmady (n) the plaintiffs were entitled to the greater share. The case was as follows:

A bill was filed for partition of an estate, in which the plaintiffs were interested as to two-thirds, and the defendant, an infant, was entitled to one-third. In order to shew in what proportions the parties were entitled, it was necessary to investigate and make out the title, to shew that incumbrances had been discharged, and to make a survey and valuation of the estate. In the course of these proceedings, bills of revivor and supplement were filed and a considerable expence was incurred. The decree directed the commission to issue: but a question arose as to the costs. Upon which a motion was made on each side to vary the minutes. The object of that for the plaintiff was, that the costs of all the proceedings should be defrayed by the parties in moieties. The defendant insisted that the

(n) 2 Ves. jun. 568,

court should give no direction as to the costs: but if any costs ought to be given, they ought to be the costs of executing the commission only, and in proportion to the interests in the estate. Lord Rosslyn said, this was not much discussed when it was formerly before him; but a very little time before it came on, there was another cause in which costs were asked upon a partition, which led him to consider it. He found not all the cases which had been then cited; but a good many authorities in which of late the costs of the commission had been given. He was led to consider whence that variation of the practice had taken place, and he approved of the latter practice; for all the arguments against it were in truth arguments against the jurisdiction of the court upon a bill for partition.

Then, after explaining the jurisdiction of the court, and the superiority of the commission to the writ, in point of convenience, (o) he went on to observe, that it was just that both should pay, but not equally; their intercsts in the common fund must give the rule. They receive benefit exactly in proportion to the interests they have. But he did not find that in any case the court had gone farther than in directing the costs of issuing and executing the commission; and there being no costs at all at law, as far as regarded the suit in

(0) Supra, p. 76. &c.

equity, the court would leave them to sustain such costs, as their interests in that suit necessarily put them to. The idea had been to make them pay as far as they had interest. It had been carried upon sufficient ground, he thought, to the costs of executing the commission; but not beyond that. There was in that case an expence attending the making out the title to the several parts of the estate, because it was a common title, in which one was entitled to two-thirds of that thing of which the title was vested in the two, and the other was entitled to one-third. It was equally beneficial to both parties. In Norris v. Le Neve, the expence must have been equal. The Le Neve family had a considerable estate. At the death of one of them the reversion in fee started up in the person of Norris; and his lordship apprehended while the estate was in possession, they had mixed the boundaries, and then it must be at equal expence.

The decree in this cause is given at full length in 17 Ves. 555. note. As to the costs, it directed that the costs of issuing and executing the commission, and of making out the title to the several parts of the estate, should be borne by the plaintiffs and the defendant, the infant, in the proportions in which they were respectively entitled to the estate. And that such costs of the plaintiffs should be raised by the plaintiffs the trustees in the settlement, by sale or mortgage, according to the trusts.

In Agar v. Fairfax, (p) Lord Eldon, speaking of the principle on which Calmady v. Calmady was decided, said he could not find any other instance of such directions given as to the costs; and added, "How can I make an infant pay costs?"

In the same case, his lordship said, it was, he apprehended, universally true, that no costs are given up to the hearing; of which he did not know an instance. As to the costs of making out the title being borne in proportion to the respective interests, that does not seem very just; as the expence may be greater of making out the title of a share worth fifty pounds, than of one of the value of five thousand pounds. On the other hand, the decrees are short in not providing that the costs of infants and married women shall be borne by the share in respect of which they were incurred. And in giving judgment, his lordship declared, that as the party came into equity, instead of going to law, the rule of law should be adopted, and therefore no costs should be given until the commission; and that the costs of issuing, executing, and confirming the commission, should be borne by the parties in proportion to the value of their respective interests; and that there should be no costs of the subsequent proceedings. (q)

(p) 17 Ves. 552.

(9) And see also Baring v. Nash, 1 Ves, and Bea. 554.

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CHAP V.

OF THE CONVEYANCES OR ASSURANCES NECESSARY FOR PERFECTING A PARTITION.

WHEN partition is made, pursuant to the writ de partitione faciendâ, in the manner we have before considered, and the shares are allotted in severalty by the sheriff, and final judgment is given, that the partition be holden firm and effectual for ever; nothing further is necessary; for the partition is completely effected, whether the parties were seised as coparceners, joint-tenants, or tenants in common. The judgment of law operates to vest in each party a sole estate in his allotment; but nothing further is wrought, than to affirm or ascertain the possession. (a)

On the other hand, it has already been often hinted, (and indeed it is impossible that the fact should not have occurred to the reader,) that, before a mere conventional partition in pais can be complete, it is necessary, at least in the case of joint-tenants and tenants in common, that mutual conveyances or releases should be executed, for the

(a) See Dy. 79. b. Fitz. Abr. 142. Cave v. Holford, 3 Ves. 656.

3