Still however the Question remains, whether, the 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.

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BARING

v.

NASH.

Tenants by

Then how does it stand upon Principle? Courts of Concurrent Equity have a concurrent Jurisdiction with Courts of Law Jurisdiction of upon Partition; more convenient, where the Interest is Equity upon Partition. much divided. With that concurrent Jurisdiction is a Court of Equity to adopt the Principle, which prevails at Law, or to act upon a different Principle? Originally Partition beTenants in Common and joint Tenants could not have tween Tenants compelled the others to come to a Partition, which was in Common remedied by the Statute 31 Henry 8, giving them the and joint same Right, that Parceners had; and in the following Year that was extended to Persons, holding limited Interests 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 cannot upon the Inconvenience of a temporary Partition permit a Demurrer to a Bill by a Plaintiff, having a Quantity of Interest, that would entitle him to the 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.

Lord

Stat. 31 Hen.

8: extended

Years; and the

same Right in Equity by Bill as at Law by Writ.

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v.

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Discretion in

Equity to refuse Partition

upon a suspicious Title: but, if clear, as the

Lord Chancellor says, "At all Events you are entitled to "a 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 66 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 Ana logy 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.

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0.

NASH.

TABLE

TABLE

CONTENTS.