NOTE.

· Decree for Redemption of Goods.

A mortgagee of stock is not bound to bring a bill of foreclosure, but may sell it. Tucker v. Wilson, 1 P. W. 261. S. C. 1 Bro. P. C. 494. Kemp v. Westbrook, supra. Lockwood v. Ewer, 2 Atk.

303.

It seems that, previous to the sale, notice should be given to the mortgagor. Tucker v. Wilson, supra.

If the mortgage be of a reversionary interest in stock, a bill should be filed for payment, and in default for a sale. See Ponten v. Page,

1 Mad. Chan. 529.

But the mortgagor of stock may bring a bill to redeem. See Kemp v. Westbrook, supra.

So there are cases in which a decree may be obtained for the redemption of goods pledged. S. C.

And, in case the debt is over-paid, for repayment of the surplus. S. C. Harrison v. Hart, Com. Rep. 393.

DECREES FOR PARTITION, AND TO

SETTLE BOUNDARIES.

No. I.

DECREE FOR PARTITION.

[Inter alia] His Lordship doth order and decree that a partition be made of the honours, manors, lands, tenements and hereditaments comprised in the said articles and act of parliament, (except Montague House,) with the appurtenances in two moieties, between the plaintiffs, and defendants Sir Edward Montagu and the Duchess of Manchester and their son John Montagu the infant. And that a commission or commissions (1) do issue, directed to certain commissioners to be therein named for that purpose; and if the parties differ about the number of commissions to be issued, or any other matter relating to the issuing of such commission or commissions, the said Master is to settle the same between them. And it is ordered that the said commissioners do respectively make a division of -the said honours, manors, lands, tenements and hereditaments, with the appurtenances into two equal moieties, and make the same by metes and bounds (2) where they shall see occasion.. And all deeds and writings, court rolls, court books, surveys and muniments relating to the said estates in the custody or power of any of the parties are to be produced before the said commissioners upon oath, as the said commissioners shall direct. And it is further ordered, that the said commissioners do examine witnesses on interrogatories, or otherwise relating to the matters in question as they shall think fit. And that the said commissioners do allot one moiety of the said estate to the plaintiffs, to be enjoyed by them in severalty, according

to the limitations contained in the said articles and act of parliament; and one other moiety thereof to the said defendants Sir Edward Montagu, Isabella, Duchess Dowager of Manchester his wife, and John Montagu the infant, to be enjoyed by them in severalty according to the limitations contained in the said articles and act of parliament. And after such partition shall have been so made, it is further ordered, that the said plaintiffs the Earl and Countess of Cardigan, and the said defendants Sir Edward Montagu and the Duchess of Manchester his wife, do convey (3) such several moieties to each other respectively, to be held in severalty according to the limitations contained in the said articles and act of parliament. And if the parties differ about the conveyances and assurances to be executed for that purpose, the said Master is to settle the same. And any of the parties to the said partition are to be at liberty to apply to the Court for a conveyance from the plaintiff Lord Brudenell and the said defendant John Montagu the infants, when &c. [See Decrees respecting Infants, No. VII. post.] And after the commissioners shall have made such partition and returned the same, it is further ordered, that such of the deeds and writings in the custody or power of any of the parties as relate to such part of the premises as shall by such division be allotted to either of the parties alone be delivered to them respectively; and as to those that concern any parts of the premises that shall be so allotted to one of the said parties jointly with those allotted to the other, any of the parties are to be at liberty to apply to the Court for directions concerning the same (4). And it is further ordered, that the costs of the partition (5) before directed, be borne in equal moieties between the plaintiffs the Earl and Countess of Cardigan, and the defendants Sir Edward Montagu and the Duchess of Manchester his wife (6). Earl of Cardigan v. Sir Edward Montagu, L. C. 6th June, 1755. Reg. Lib. A. 1754. fol. 406. S. C. Sugden on Powers, Appendix IX. and referred to by Lord Redesdale, in his opinion in Curzon v. Lister, No. IV. post.

For minutes of same decree. See 2 Newl. Pract. 326.

NOTES.

(1) Where more than one commission is required it may be provided for by the original decree. Earl of Cardigan v. Sir E. Montagu, supra. Or an order may be obtained for that purpose. For order, see Hand's Pract. 123.

(2) Metes and Bounds.

It seems that the partition should be by metes and bounds. Earl of Cardigan v. Sir E. Montagu, supra. And see Commission of Partition, No. IV. post.

So in decree for ascertaining boundaries. See Decree for ascertaining Boundaries, No. VI. post. And see Decree for Dower. Decrees respecting Femes Covert, No. V. post.

(3) Conveyances.

By a partition made at law the legal estate is vested by the partition. But by a partition made in equity the equitable right only is vested; and to complete the partition mutual conveyances must be executed by the parties. Whaley v. Dawson, 2 Sch. & Lefr. 372. Miller v. Wormington, 1 J. & W. 493. and judgment of Lord Hardwicke in Tuckfield v. Buller. Decrees respecting Infants, No. VII. post. (4) Delivery of Deeds.

Where the deeds relate jointly to the estates allotted to each party, they are sometimes ordered to be deposited with the Master. Trodd v. Downes, Appendix (1) It seems that the party entitled to the estate of the greatest value is entitled to the possession of the deeds, upon, entering into a covenant to produce them, and allow copies to be taken, when required. See order in the case of a purchaser, said to have been settled by Lord Hardwicke. Hand's Pract. 152. And see Decree for Redemption. Decrees respecting Mortgages, No. IV. Note (3), ante.

Rents and Profits, &c.

Where the defendant is in possession an account will be decreed of rents and profits. Lorimer v. Lorimer, 5 Mad. 363. Hyde v. Hindley, 2 Cox. 408. Green v. Clear, M. R. 23d November, 1767. Reg. Lib. A. 1767. fol. 53. S. C. cited 2 Ves. jun. 568.

Where the defendant had been in possession as tenant he was charged with an occupation rent. Turner v. Morgan, 8 Ves. 145. The Court will direct a reference as to sums expended by the defendant upon the premises necessarily, or with the concurrence of the plaintiff. Swan v. Swan, 8 Price, 518.

(5) Costs.

For Costs of Bills for Partition. see Green v. Clear, Appendix (2). fants, No. VII. post.

See Beames on Costs, 48. And
And see Decrees relating to In-

In Calmady v. Calmady, 2 Ves. jun. 568. it is said, arguendo, that in Trodd v. Downes the costs of all the suit, as well as the commission, were ordered to be paid out of the testator's estate. But in that case the costs were only given out of the estate up to the decree, and the consideration of the subsequent costs was reserved. See S. C. Appendix (3).

(6) Further Directions.

It seems that formerly, upon a decree for a partition only, further directions were not reserved. Earl of Cardigan v. Sir E. Montagu, supra.

But of late further directions are sometimes reserved until after the return of the certificate, and in that case the direction for mutual conveyances is postponed until the hearing on further directions. See Curzon v. Lister, Appendix (4).

It seems that formerly, notwithstanding a reference was directed to ascertain the interests of the parties, (see No. II. post.) and further directions were reserved, a partition was directed on the original hearing. Treherne v. Nash, No. II. post. And see Decree in Agar v. Fairfax, 17 Ves. 554.

But of late where a reference is directed to ascertain the interests of the parties, a partition is not decreed until the hearing on further directions. Attorney-General v. Hamilton, 1 Mad. 214.

In the former case the reservation of further directions is merely for the purpose of dismissing the bill against such parties as should not appear by the report to have any interest. See Agar v. Fairfax, 17 Ves. 553.

At law the first judgment is "Quod partitio &c. fiat &c." See Coke's Entries, 411, 412. 418. And upon the return of the writ the final judgment is, "Quod partitio predicta firma et stabilis teneatur in perpetuum, &c." Ib. 412. 414. 419.

APPENDIX (1).

Direction as to Deeds.

And it is ordered, that the deeds and writings relating to the said freehold estates in the custody or power of any of the parties, be,