to be divided; but it is different where there are other Lands which may make up the share (g). A Partition was decreed between Tenants in common of a Waste, though great inconvenience might ensue, as the want of Pasture, shade, &c. (h).

It is no objection to a Partition, that other persons may come in esse and be entitled: otherwise, in every case where there is a settled Estate, with Remainders to persons who may come in esse, there never could be a Partition (i).

An Infant Tenant in Common, or Joint-tenant, may file a Bill for a Partition, or such a Bill may be filed against him (k), and it will be decreed; but the Conveyance will be respited till the Infant is of age (1). If a Contingent Remainder, not capable of being barred or destroyed, is limited to a Person not in being, the Conveyance must be delayed until such Person shall come in being, or until the Contingency shall be determined; in either case a Supplemental Bill would be necessary to carry the Decree into execution. An Executory Devise may occasion a similar embarrassment (m).

A Bill for a Partition may be sustained on behalf of a Joint-tenant of a Lease for years, nor in such case is the Reversioner a necessary Party (n). And a Bill for a Partition of Tithes will lie (o); but the

(g) Turner v. Morgan, 11 Ves. 143; and see 1 P. Wms. 447.

(h) Manaton v. Squire, 2 Ch. Cas. 237.

(i) Wills v. Slade, 6 Ves. 498. (k) Tuckfield against Buller, Ambl. 197. S. C. 1 Dick. 240.

(1) Lord Brook v. Lord Hertford, 2 P. Wms. 518. Ambl. 197. S. C. 1 Dick. 240. Redesd. Tr. Pl. 97, 3rd edit. (m) Redesd. Tr.Pl.97, 3d edit. (n) Baring v. Nash, 1 Ves.

& Bea. 551.

(0) Baxter v. Knollys, Ves. 495.

Court has no Jurisdiction to grant a Commission of Partition between Tenants in Common of a Copyhold (p), the Statutes relative to Partition not applying to Copyholds (q). It is the same as to Joint-tenants of a Copyhold, and also as to Parceners (r); and on the same ground, an agreement to divide Copyhold Lands will not operate as a Partition, nor can be enforced, it being without the Lord's privity (s).

By the Statute, 41 Geo. 3. c. 109, s. 16, it is enacted, that it shall be lawful for the Commissioners in Inclosure Acts, upon the request in writing of any Jointtenants, Co-parceners, or Tenants in Common, or any or either of them, or of the Husbands, Guardians, Trustees, Committees, or Attornies of such as are under Coverture, Minors, Lunatics, or under any other incapacity, or absent beyond Sea, to make Partition and Division of the Estates and Allotments to such of the said owners or proprietors who shall be entitled to the same as Joint-tenants, Co-parceners, or Tenants in Common; and to allot the same accordingly in Severalty.

A Bill for a Partition of Lands in Ireland cannot be sustained here, as the Court cannot award a Commission there; just as at Common Law no

(p) Scott v. Fawcett, 1 Dick. 299. This case appears to be correct on search into the Register's Book, except that the Defendant's name is Faussett. Hall v. Freeth, 10th March 1819, MS. In this case the parties agreed to a Decree for a Sale, the Plaintiff finding the Master of the Rolls against him, as to so much of the Bill

as prayed a Partition of certain Copyhold Premises.

(q) See Gilb. Ten. 185. Co. Coph. s. 54. Cro. Car. 44. Burrell v. Dodd, 3 Bos. & Pull. 378. Oakley v. Smith, 1 Eden

261.

(r) See Hale's MS. note, mentioned Co. Litt. 59. n. 1. (s) Oakely v. Smith, 1 Eden 261.

Writ of Partition lies in England for Lands in Ireland (†).

Under a Commission of Partition to four Commissioners, and two different returns made, one, by two of the Commissioners, and another, by the remaining two, the Court cannot act; but will grant another Commission directed to five Commissioners (u). In cases of this kind the proper mode is to move to quash the return (x).

With respect to Costs in cases of Partition, it is said to have been determined, that where the Plaintiff was entitled to three or four hundred Acres, and the Defendant to four or five only; and though the Defendant would have rather given up his part than be at the expense of a Partition, yet it was decreed, and to be at the equal expense of both parties (y)! This unreasonable doctrine seems not now adhered to the Rule now appearing to be, that in these cases no Costs are given until the Commission; and that the Costs of issuing, executing, and confirming the Commission, are borne by the Parties, in proportion to the value of their respective Interests, and no Costs allowed of the subsequent proceedings (2).

(t) Cartwright v. Pettus, 2 Chan. Cas. 214.

(u) Watson v. Duke of Northumberland, 11 Ves. 153. S. C. MS. and see Corbett v. Davenant, 2 Bro. C. C. 252. (x) Ibid.

(y) Parker against Gerard, Ambl. 237, and so determined by Lord Thurlow, in Hyde v.

(2) Agar v. Fairfax, 17 Ves. 558. Calmady v. Calmady, 2 Ves. jun. 568; and see Metcalf v. Beckwith, 2 P. Wms. 377, 8. Baring v. Nash, 1 Ves. & Bea. 554. Sed vid. Redesd. Tr. Pl. 98. In Hyde v. Hindly, 2 Cox, 408, it was held, that where the parties are entitled unequally, if the Plaintiff be entitled to the smaller share, the costs

Commissioners under a commission of Partition, have no lien on the Commission for their charges (a).

XV. Bills to establish a Modus.

A BILL to establish a Modus is in the nature of a Cross-Bill against a demand for Tithes; for a Person is not allowed to file a Bill to establish a Modus unless he has been actually disturbed by Proceedings at Law, in Equity, or in the Ecclesiastical Court (b). And the Bill must set out the Modus sought to be established, with certainty, or the Bill will be dismissed (c).

It seems settled, that occupiers only, who are not owners, can have a decree for establishing payments in lieu of Tithes (d), but there is only one case of that description (e).

XVI. Bills to marshal Securities.

IT has been held, that if a Party has two Funds by which his Debt is secured, a Person having an Interest in one Fund only, has a right in Equity to compel the former to resort to the other fund, if that is necessary for the satisfaction of both. If therefore A. has two Mortgages, and B. has one, B. has a right to throw A. upon the Security which B. cannot touch (f).

(a) Young v. Sutton, 2 Ves. & Bea. 365.

(b) Gordon v. Simpkinson, 11 Ves. 510. S. C. MS. Lord Coventry v. Burslem, 2 Anstr. 567, n. 4 Gwill. Tith. 1596.

(c) Ekins v. Dormer, 3 Atk. 534.

(d) Vid. Warden, &c. of St. Paul's v. Morris, 9 Ves. 163. (e) Wardens, &c. of St. Paul's v. Crickett, 2 Ves. jun. 563.

(f) Lanoy v. Duke and Duchess of Atholl, 2 Atk. 446; see Aldrich v. Cooper and others, 8 Ves. 388, 395. This last case

So, where in Bankruptcy the Crown by Extent lays hold of all the Property, even against Creditors, it has been confined to such property as would leave the Securities of Encumbrancers effectual (g).

In a case, where the Loyalist Estates in America were, under the forfeiting Acts, to be sold for the payment of debts, this was held not to be a ground for an Injunction to restrain an Action here on a Bond (h).

But though, if two Funds of a Debtor are liable to one Creditor, and only one Fund to another, the former shall be thrown upon that Fund, to which the other cannot resort, in order that he may avail himself of his own Security, where that can be done without injustice to the Debtor or the Creditor; yet that principle has never been pressed to the effect of injustice to the common Debtor. Much less have persons who are not common Creditors of the same Debtor, a right to compel the Creditors of both Funds to resort to the one, in order to leave a larger dividend for those who can claim against the other (i).

Where the Property of an American Loyalist had been confiscated during the American War, subject to the claims of such of his Creditors as were friendly to American Independence to be made within a limited time, and restrained to the Inhabitants of a particular State, a Bill, it was holden, would not lie to have Bonds delivered up, or to compel the Creditor to resort in the first instance to the Fund arising from

contains a luminous exposition of the subject, in all its bearings. (g) Aldrich v. Cooper and

(h) Kempe against Antill, 2 Bro. C. C. 11.

(i) Ex parte Kendall, 17 Ves.