1813. BARING v. ¡NASH. Difficulty, or Reluctance of the other Tenants in Com mon. culty: Parker v. Gerard (a), and Warner v. Baynes (b); and the Habit of the Court is not to give Costs to the Hearing, and to divide the Expence of the Conveyance and Partition in Proportion to the Interests (c). The Question is, whether the Lessee for Years of One Tenth Part has the same Right and Equity against the Owner of the Inheritance of that Tenth; and clearly the Lessee has not the same Right to compel that Owner to concur. As between the Lessee and the Remainder-man Under a Bill for Partition in Fee they are not as Tenants in Common. They beno Costs to the tween them represent the absolute Interest in that Tenth Hearing. Costs Part: but each has a separate, independent, Interest; and of the Partition the Proceeding of the one can neither avail, nor bind, the other. As the Owner of the Inheritance therefore cannot be compelled to join at the Instance of the Lessee, a permanent Partition cannot take place, if the Owner of that Tenth Part will not concur. If therefore he was a Party no Relief could be prayed against him: nor would he be bound by the Partition: or any Right of his precluded to consider the Freehold as undivided notwithstanding any Division of the temporary Interest. For that Purpose the Owner of the Inheritance of this Share is not a necessary Party. and Conveyance in Proportion to the In terests. [555] Still however the Question remains, whether, the (1) In these Cases, upon great Consideration, the Rule at Law was adopted, that no Costs should be given until the Commission; that the Costs of issuing, executing, and confirming, the Commission should be borne by the Parties, in Proportion to the (c) Agar v. Fairfax, Agar v. Holdsworth, 17 Ves. 533. Value of their respective Interests; and there should be no Costs of the subsequent Proceedings; according to Calmady v. Calmady (15 Ves. 555. n. (a), and contrary to the old Rule for an equal Division of the Costs: Hyde v. Hindley, 2 Cox. 408. Owner Owner of the Inheritance not being a Party, a Court of Equity will grant a Partition at the Instance of the Lessee for Years; or leave him to Law, if it cannot interpose effectually for the Purpose of a permanent Partition; and the Inconvenience of a temporary Partition may be urged; creating, as the Freehold is not to be divided, the Necessity of coming again after the Expiration of the Term: but against this Partition no Authority was cited: nor can I find any Authority, that this Application for a Partition cannot be made by a Person, having a limited Interest. 1813. BARING 0. NASH. Partition be tween Tenants in Common and joint Then how does it stand upon Principle? Courts of Concurrent Equity have a concurrent Jurisdiction with Courts of Law Jurisdiction of upon Partition (1); more convenient, where the Interest Equity upon is much divided. With that concurrent Jurisdiction is a Partition. Court of Equity to adopt the Principle, which prevails at Law, or to act upon a different Principle? Originally Tenants in Common and joint Tenants could not have compelled the others to come to a Partition, which was remedied by the Statute 31 Henry 8, giving them the Tenants by same Right, that Parceners had; and in the following Stat. 31 Hen. Year that was extended to Persons, holding limited Inte- 8: extended rests only, for Life or Years. From that Time therefore, by Stat. 32 whatever is the Inconvenience of these partial Partitions, Hen. 8, to lithe Law has been established, that a Tenant for Years, mited Interests, though he has only that limited Interest, may compel Par- for Life or tition by Writ; and if that is clear, a Court of Equity Years; and the cannot upon the Inconvenience of a temporary Partition same Right in permit a Demurrer to a Bill by a Plaintiff, having a Quan- Equity by Bill tity of Interest, that would entitle him to the Writ. as at Law by Writ. From the general Authorities nothing is to be found contradicting this; and there is something to be collected, which confirms it. In the Case of Wells v. Slade (a), the (a) 6 Ves. 498. (1) Manaton v. Squire, 2 Freem. 26. Lord 1813. BARING v. NASH. Discretion in Equity to refuse Partition upon a suspicious Title: but, if clear, as the a Lord Chancellor says, " At all Events you are entitled to Partition during the Life of the Tenant for Life;" certainly conceiving, that there may be a limited Partition during a Tenancy for Life; and I cannot perceive any Distinction in this respect between such an Interest and a Term of Years: both give equal Title to the Writ under the Statute 32 Henry 8. In the Case of Turner v. Morgan (a), the Lord Chancellor says, "It cannot be denied, that a Partition is due "now under the Statute, to divide this Species of Inhe❝ritance; and I know no Rule but by considering the "Commission as due in a Case, where the Writ would "lie;" certainly referring to the Rule of Law, by Analogy to which the Conduct of a Court of Equity should be regulated: these Authorities establishing the Principle, that a Rule of this Kind, involving the Right of an Individual, should be the same in both Courts; and therefore Tenant for Years, if he would be entitled to Partition at Law, ought to have it in Equity. The only Authority, that appears to consider the Proceeding by a Bill for Partition as Matter, not of Right, but of Discretion, is a Passage in Cartwright v. Pulteney (b); where Lord Hardwicke says, "the Plaintiff "must shew a Title in himself in a Moiety, and not alledge generally, that he is in Possession of a Moiety; " and this is stricter than a Partition at Law where Seisin "is sufficient." This must be taken with the Context. It is stated to be discretionary, where there are suspicious Circumstances in the Plaintiff's Title; as in that Case a Suspicion of (a) 8 Ves. 143. Writ would lie the Commission is due of Right. (b) 2 Atk. 236. Forgery. Forgery. Where the legal Title is under such suspicious Circumstances, a Court of Equity may well pause in directing Partition: but if the Title is clear, a Partition is Matter of Right; and it is expressly stated in Parker v. Gerard (a), that there is no Instance of not succeeding in such a Bill, but where there is not Proof of Title in the Plaintiff; and in the Case of Cartwright v. Lord Bath, the Court gave Leave, and Time for the Plaintiff to make out his Title. Therefore both upon Principle and Authority this Plaintiff's Title to the Term being clear, and liable to no Objection, he is under no Necessity of making the Owner of the Inheritance of this Tenth Share a Party: nor would it be proper to do so; against whom no Relief could be had, and the Discovery would be useless. The Plaintiff is therefore entitled to the same Partition here, to which he would clearly under the Statute be entitled at Law. Upon these Grounds this Demurrer must be over-ruled. (a) Amb. 236. 1813. BARING 0. NASH. TABLE TABLE OF CONTENTS. A. ABATEMENT. See BANKRUPT 70. VENDOR and AGENTS. 1. Distinction between a general and special Agent as to their Powers 2. Auctioneer may limit his general Declaration, equivalent in legal Effect to the general Authority. Upon that Principle Evidence of ALIMONY. See PIN-MONEY 1. AMENDMENT. ANSWER. 1. Liberty by supplemental Answer the Answer, the Defendant being previously in Possession as Tenant of the other Part, and swearing, from not conceiving it material, refused, without an Affidavit, that he meant by the original Answer, to swear to the Fact, as it really was. Livesey v. Wilson. Page 149 2. Instances of permitting and re- 3. An Amendment in the Title of |