considered well executed by a mere partition, it seemed to him more conformable to principle, to say, that it is not a due execution of the power, than that it is so. Therefore, without infringing upon Abel v. Heathcote, he must hold, that this title was not unexceptionably good in law; whatever it might be in equity. (e)

In a more recent case, where the question was, whether trustees could alone make a valid partition, under a power in a settlement" to sell and "absolutely dispose of, or convey, in exchange for "other lands, the said moiety, &c."

Sir Thomas Plumer, Vice-Chancellor, said that the only ground on which this motion could be supported, if at all, must be upon the authority of Abel v. Heathcote. The ground on which Lord Eldon thought Abel v. Heathcote could alone be supported was on the words " such other equivalent, &c." used in that power: but in the present power there were no such words, and therefore Abel Heathcote was no authority in favour of what was then desired. (f)

These cases, then, have greatly narrowed the question. Neither a power of sale, nor a power

(e) M'Queen v. Farquhar, 11 Ves. 467.

(f) Attorney-General v. Hamilton and others, 1 Madd. Rep. 214.

of exchange, per se, will authorize a partition; and as to the liberal construction of either power, because it is for the melioration of the estate, it is too loose and indefinite a reason to be acted on in practice; and seems to have formed no governing principle in the decisions posterior to Abel v. Heathcote. It is impossible to gather the exact grounds of the decision in that case. As to one of the Judges, (Lord Commissioner Eyre,) Sir Thomas Plumer (g) observed, it was due to his memory to say, it appeared he had not fully made up his mind on the subject. Upon the whole, it should seem, that, even in a case similar in specie to that of Abel v. Heathcote, a cautious practitioner could hardly rely on the power as authorising a partition. The only ground on which Lord Eldon seems to suppose the decision could be supported, was that the words, "such other equivalent interest in lands," would extend the power beyond a mere exchange. However, on this point Mr. Sugden, in his valuable Treatise on Powers, (h) has justly remarked, that the power did not authorise an exchange, or a disposition for any other equivalent interest in lands, but simply an exchange of the settled estate, for an equivalent interest in other lands. These, or words of the like effect, must of necessity be expressed or implied in every power of exchange, and cannot

(g) Attorney-General v. Hamilton, ubi supra. (h) P. 468.

2.

by any licence be cut out and read, as authorizing a distinct independent act.

But where there is a power of sale, it should seem that the difficulty may be effectually obviated, in the mode pointed out by Lord Rosslyn, in Abel: v. Heathcote. The undivided part of the estate may be sold, the trustees receive the money, and: then lay it out in the purchase of the allotted part in severalty. However, this mode, of course, cannot be adopted where the power only authorizes the trustees to place out the money at interest, which is sometimes, though rarely, the case.

It only remains to observe, in relation to this subject, that the stat. 41 Geo. 3. c. 109. (commonly called the general inclosure act,) after reciting, that it might happen, that some of the proprietors of messuages, &c. and persons entitled to allotment or allotments to be made by virtue of any such act [of inclosure,] might be seised thereof, or entitled thereto, in joint-tenancy, or as coparceners, or tenants in common, and could not by reason of infancy, settlement, or absence beyond seas, make an effectual division thereof; it is therefore enacted, (i) that it should be lawful for any such commissioner or commissioners, and he or they was and were by the said acts authorized and empowered, (upon the request in writing of such

(i) S. 16.

joint-tenants or coparceners, or tenants in common, or any or either of them, or of the husbands, guardians, trustees, committees or attornies of such as were under coverture, minors, lunatics, or under any other incapacity as aforesaid, or absent beyond seas,) to make partition and division of the messuages, &c. and allotment or allotments, to such of the said owners or proprietors, who should be entitled to the same, as joint-tenants, coparceners, or tenants, in common; and to allot the same accordingly, to such owners and proprietors in severalty;" and from and immediately after the said allotments should be so made and declared, the same should be holden and enjoyed by the person or persons to whom the same should be allotted in severalty, in such and the same manner, and subject to such and the same uses, as the undivided parts or shares of such estates would have been held, in case such partition and division had not been made.

48

CHAPTER III.

OF PARTITION BY WRIT.

SECT. I.

Of what kinds of Property Partition may be demanded, and how they must be divided.

THIS is a real action, (a) from which circumstances a general conclusion may be drawn, as to what kinds of property partition may be demanded. The statutes 31 Hen. 8. c. 1. and 32 H. 8. c. 32. which gave the writ to joint-tenants and tenants in common, (b) expressly mention, manors, lands, tenements and hereditaments." And the statute 8 and 9 W. 3. c. 31. which facilitated the proceedings on the writ, (c) mentions the same kinds of property, with the addition of " messuages."

However, a castle used for the defence of the realm shall not be divided, as I have before observed. (d)

(a) See Litt. R. 300. Booth on Real Actions, 244, &c. (b) See next Section.

(c) Infra, s. 3.

(d) Co. Litt. 165. a. Supra, Chap. II. s. 1.