ity in its execution, or misconduct or partiality on the part of the Commissioners, it was made the subject of a motion to quash the return.1

A return might also be partially quashed: thus, in Norris v. Le Neve,2 Lord Hardwicke directed that such part of the certificate was to be quashed, whereby the Commissioners had certified a doubt concerning a manor and Court Leet, "because the same was not warranted by the commission."

So, if there be a double return, and one party alone applied to quash one of the returns only, the Court will, if it sees proper, order that return to be quashed.3

It is to be observed, that the proper course of proceeding, where two Commissioners make one return and two another, has always been for each party to move to quash the return which is unfavorable to himself.4

If, however, one party only complains of the return, the Court will not, in such case, order one return only to be set aside, but will quash both and direct a new commission.5

If the return to a commission is quashed, the Court will order a new commission to issue, and, in Watson v. The Duke of Northumberland, where there were two returns, each by two Commissioners, it ordered the new commission to be directed to five Commissioners.

If no exceptions are taken to the certificate of the Commissioners, the order for confirming it should be made absolute; and then, if the decree contains a direction to that effect, mutual conveyances should be executed by the parties, for the purpose of vesting the allotted portions of the divided estates in each other in severalty. This is necessary, because, by a partition made in

1 Jones v. Totty, ubi supra; see also Watson v. The Duke of Northumberland, ubi supra. The report of Commissioners to make partition can be impeached only for fraud, partiality, or gross error of judgment. Jewett v. Scott, 19 Texas, 567; Geer v. Winds, 4 Desaus. 85. To justify setting aside a partition on the ground of mistake, the mistake must be a serious one, and clearly proved. Matter of Thompson, 2 Green Ch. 637. See Cummins v. Nutt, Wright, 713.

2 Reg. Lib. B. 1741, fo. 473; Seton on Decrees, 201; 3 Atk. 83.

Corbet v. Davenant, 2 Bro. C. C. 251; and see Randle v. Adams, cited in Watson v. The Duke of Northumberland, 11 Ves. 155.

Ibid.; and see Watson v. The Duke of Northumberland, 11 Ves. 153.

• Ubi supra.

It is competent for the Court to direct the manner of the partition, and to

Equity, the equitable right only is vested, which is not the case in partitions made at Law, where the legal estate is vested by the partition.1

Where mutual conveyances are to be executed, it usually forms part of the decree, directing them that they shall be settled by the Judge in chambers, in case the parties differ.

With respect to the title-deeds, &c., relating to the estates divided which are in the possession of the parties, it generally forms part of the decree directing the partition, that they shall be brought into the Record and Writ Clerk's Office by the parties upon oath. The decree contains a direction as to the deposit of the deeds concerning the lands to be divided, usually to the effect that, after the partition, such of them as shall relate to such parts. of the premises as shall be allotted to any of the parties alone, shall be delivered to such parties; and as to those which concern any parts of the premises which shall be allotted to any or either. of the parties jointly with others, it has sometimes been directed that they shall remain in the Record and Writ Clerk's Office;2 but, more generally, the order is that, as to such deeds, the parties are to be at liberty to apply to the Court for directions concerning the same, as they shall be advised; in which case, it seems the Court will hold that the party entitled to the estate of the greatest value is entitled to the possession of the deeds, upon undertaking to abide by any order which the Court may make as to the same, with liberty for other parties to apply.

With respect to the costs of a partition, the general rule of the Court is now understood to be that which was pronounced by the Court in giving judgment in the case of Agar v. Fairfax ; that, decree the making of conveyances without the necessity of a report and decree of confirmation. Grassmeyer v. Beeson, 18 Texas, 753.

1 Whaley v. Dawson, 2 Sch. & Lef. 372; Miller v. Warmington, 1 J. & W. 493. Under the statutes of New York, a decree declaring that the "partition shall remain firm and effectual forever," was held sufficient to vest the title to the allotted parcels in the persons to whom they are severally assigned, without the execution of any releases or conveyances. Younge v. Cooper, 3 John. Ch. 295. Trodd v. Downes, Seton on Decrees, 188.

See decree in Earl Cardigan v. Sir Edward Montague, Seton on Decrees, 184.

See the form of order in Jones v. Robinson, 3 De Gex, Mac & G. 910; with the general form of an order as to title-deeds settled by Lord Hardwicke, Hand,

5 17 Ves. 533, 558.

as the party came into Equity instead of going to Law, for his own convenience, the rule of law should be adopted, and therefore no costs should be given until the commission; that the costs of issuing, executing, and confirming the partition, 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."1

As connected with this subject it may be stated, that, where one of the parties had made a lease of his undivided share, the costs of the lessee, who was a necessary party to the suit for the partition, were thrown exclusively upon the lessor, on the ground that, as such lessee was entitled to his costs, his landlord, who had been the means of bringing him into Court, was the proper person to indemnify him.2

It has been decided, that Commissioners of partition have no lien on the commission for their charges.3

The original decree, directing the commission, usually orders mutual conveyances to be executed by the parties according to their respective interests, after the return of the commission. Until recently, however, when any of the parties were under disability, there was no means by which these conveyances could be executed, and the legal estates could be vested in accordance with the terms of the partition. By the Trustee Act, 1850, the difficulty has been obviated, and it is expressly enacted by the 30th section, "When any decree shall be made for partition, the Court may declare any party to the suit trustee of the lands within the meaning of the Act, and that unborn persons who would on coming into existence become interested, would be trustees within the meaning of the Act; and, therefore, under the other sections of the Act, vesting orders may be obtained, binding the estates and interests of such persons, born or unborn." The Court has acted upon these sections in Boura v. Wright, but has, in another case, reserved the question until the infant come of age.5

1 See Beames on Costs, 50; see also Calmady v. Calmady, 2 Ves. jr. 568; Baring v. Nash, 1 V. & B. 554. See Phelps v. Green, 3 John. Ch. 305; Tibbits v. Tibbits, 7 Paige, 204; Matter of Hemiup, 3 Paige, 305.

2 Cornish v. Gest, 2 Cox, 27; Beames on Costs, 51.

3 Young v. Sutton, 2 V. & B. 365.

Ante, p. 156; 4 De Gex & Sm. 265.

Handcock v. Handcock, Lords Justices, 1852; last edition of Seton on De

crees, p. 337.

SECTION IV.

Proceedings under Decrees to settle Boundaries.

In a suit to ascertain boundaries, the decree generally directs a commission to issue for that purpose, though sometimes the Court will direct an issue, ordering the parties to give a note to each other of their boundaries.2

A commission to settle boundaries partakes very much of the same nature as a commission of partition; it is nearly in the same form, and sued out, executed, and returned in the same manner. There is, however, frequently this difference between commissions to ascertain boundaries and commissions of partition, viz., that, in the case of a partition, the thing to be divided is clearly ascertained and described, whereas in the case of a commission of boundaries, it is often impossible for the Commissioners to ascertain which they are, with sufficient certainty to set them out. To guard against this, when it is through the default of a tenant or copyholder that boundaries are confused, the Court provides for the case of its being impossible to ascertain them, by directing so much of the defendant's own land to be set out, as shall be equal to the quantity originally granted or leased; when the commission is of this nature, the Commissioners must proceed accordingly.

3

It is to be observed, that, in a bill by a prebendary against sev

1 Equity has no jurisdiction to settle the title or bounds of land between adverse claimants, unless the plaintiff has an equity against the defendant claiming adversely to him; an equity against other persons will not give jurisdiction. Stuart v. Coulter, 4 Rand, 74. As to confusion of boundaries, see 1 Story Eq. Jur. 609 et seq., Ch. 9.

In Connecticut, a Court of Equity will not interfere for the mere purpose of settling a disputed boundary between adjoining proprietors. Wolcote v. Robbins, 26 Conn. 236. So in New Jersey, the Court will not entertain a question of boundary between adjoining land owners. Dickerson v. Stoll, 4 Halst. Ch. (N. J.) 294.

8

Metcalf v. Beckwith, 2 P. Wms. 376; see also Godfrey v. Littel, 1 R. & M. 62; Lethieullier v. Lord Castlemain, Sel. Ca. in Cha. 60; 1 Dick. 46, S. C. Speer v. Crawter, 2 Mer. 410, 418; Willis v. Parkinson, ib. 507, 510; Attorney-General v. Fullarton, 2 V. & B. 263; Lord Abergavenny v. Thomas, 1 West, 649; Seton on Decrees, 202; Duke of Leeds v. Earl of Strafford, 4 Ves.

eral of his lessees for a commission to ascertain the boundaries of his prebendal lands, which had become intermixed with their own lands, Lord Eldon held, that the plaintiff had a right to name as many Commissioners as the defendants.1*

The decree in a suit to settle boundaries does not order mutual conveyances, as in the case of a partition, but directs that, after the lands, &c., have been set out, the defendant is to deliver possession thereof to the plaintiff, and that the plaintiff and his heirs are to hold and enjoy the same against the defendant, or any person or persons claiming under him.2

The consideration of further directions, and of the costs of the suit, has generally in these cases been reserved until after the return of the commission; therefore, when the Commissioners have made their return, the cause will have to be set down for further consideration.

With reference to the costs of suits to settle boundaries, no certain rule appears to be laid down; where, however, it does not appear to have been owing to any default, either in the plaintiff or defendant, that the lands have been mixed or confounded, the Court will direct the costs to be borne by the plaintiff and defendant equally, though the interest of one party is more inconsiderable than the interest of the other. Where, in a suit to establish the boundaries of a manor, it was ordered that the parties should deliver a note to each other of their boundaries, and that the matter should be tried by a feigned issue, and the result of three different trials was, that the boundaries appeared as they were given in by the defendant, and contrary to what was alleged by the plaintiff's bill, the bill was dismissed with costs, on the ground that the plaintiff might have tried the matter at Law, and that no part of the issue had been found for him.5

The decision of the Court with respect to costs will also be influenced by the relation of the parties; and it is to be recollected, that it has been long settled that a tenant contracts (among other obligations resulting from that relation) to keep distinct from his own property during the tenancy, and to leave clearly distinct at 1 Willis v. Parkinson, 1 Swanst. 9.

* Lord Abergavenny v. Thomas, Seton on Decrees, 202.

• See Seton on Decrees, 200.

Norris v. Le Neve, 3 Atk. 82.

Metcalfe v. Beckwith, 2 P. Wms. 376.