of the plaintiff in the first action, and his object in bringing his action. The fact that a plaintiff is a stranger to the family, and that he had bought up the reversionary interests of some of the residuary legatees, is not a sufficient reason for not giving him the conduct of the proceedings, even though his purchase of some of the shares is disputed on the ground of inadequacy of consideration and undue influence (In re Swire, supra). But this rule will not be allowed when the first action is not properly constituted, or the judgment is for any reason defective (In re McRae, 1883, 25 Ch. D. 16). In a proper case, e.g. where the plaintiff is an accounting party, the Court will give the conduct of the proceedings to the defendant who is entitled to the account (Allen v. Norris, 1884, W. N. 118; but see Wicks v. Wicks, 1887, W. N. 15). "The conduct of an action is now never given to a receiver" (per Jessel, M.R., in In re Hopkins, 1881, 19 Ch. D., at p. 62).

Where several actions raise the same or similar issues, and one is selected to be what is called "a test action," the plaintiff in that action will have the conduct of the proceedings, unless it is expressly provided in the order staying the other actions that the plaintiffs in these actions should have some control over the conduct of the test action. It is only fair that they should have a voice in the matter, if they desire it, as their rights are to be determined by the result of that action. Where no such provision is made in the order, the plaintiff in the action selected as the test action will be dominus litis. But even in that case the Court still has power to substitute another of the actions for the test action, if it appears that the one originally selected for that purpose is conducted in such a way that it will not (or did not) really determine the questions between the parties (Amos v. Chadwick, 1878, 9 Ch. D. 459).

So with defendants. If several different defendants are sued by the same plaintiff, e.g. for various infringements of the same patent, the Court will in a proper case either consolidate the actions, or select one representative case and send that for trial, so as to determine all questions, the others being stayed meanwhile (see 1 Seton, 6th ed., 649, No. 14; Daniell's Chan. Prac., 7th ed., p. 1610). Under sec. 5 of the Law of Libel Amendment Act, 1888, 51 & 52 Vict. c. 54, the proprietors of several newspapers, when sued by the same plaintiff for damages for the same or similar libels, can obtain an order consolidating the actions, without the consent of the plaintiff. But there is no decision at present as to which of the defendants shall have the conduct of the defence in the consolidated action; this is generally arranged between the defendants before any application for consolidation is made. In Chancery, whenever the conduct of proceedings is not given to a plaintiff, the rule is to give it to that defendant who has the largest interest at stake (In re Hutchinson, 1860, 1 Drew. & Sm. 27, 30; 62 E. R. 288; 6 Jur. N. S. 136).

An application under Order 49, r. 8, for an order to consolidate causes pending in the same Division may now be made by either plaintiff or defendant (Martin v. Martin & Co., [1897] 1 Q. B. 429).

See CONSOLIDATION OF ACTIONS, Vol. III. p. 466.

Partition generally-Definition.-Partition is a division between co-owners (whether coparceners, joint-tenants, or tenants in common) of lands, tenements, and hereditaments held by them, the effect of such division being that the joint ownership is terminated, and the shares of the parties vested in them in severalty.

What may be Partitioned.-All hereditaments of whatever kind, corporeal or incorporeal, are capable of being partitioned, except such as are by their nature indivisible (Co. Litt. 1646). Thus freeholds; copyholds (4 & 5 Vict. c. 35, s. 83; 57 & 58 Vict. c. 46, s. 87); leaseholds (32 Hen. VIII. c. 32; Baring v. Nash, 1813, 1 Ves. & Bea. 551; 35 E. R. 214; 14 R. R. ix.); tithes (Baxter v. Knollys, 1750, 1 Ves. Sen. 494; 27 E. R. 1163); rent charges (Rivis v. Watson, 1839, 5 Mee. & W. 253); manors (Hanbury v. Hussey, 1851, 14 Beav. 153; 51 E. R. 244); advowsons (Johnstone v. Baber, 1856, 6 De G., M. & G. 439; 43 E. R. 1364; Bodicoate v. Steers, 1737, Dick. 69; 21 E. R. 193; Matthews v. Bishop of Bath and Wells, 1785, Dick. 652; 21 E. R. 425), may be partitioned. As regards advowsons, by 7 Anne c. 18, if coparceners, joint-tenants, or tenants in common, are seised of any estate of inheritance in an advowson, and a partition is made between them to present by turns, each is seised of a separate estate.

Lord Coke points out certain hereditaments which, being indivisible, cannot be partitioned, as a piscary uncertain or common sans nombre, homage, and fealty, and inheritances of dignity and honour. In respect of such inheritances, modes of partition were devised by which either the indivisible inheritance was awarded to one party, the other having

an equivalent in other portions of the joint estate, or alternate enjoyment was given to the several co-owners. A villein is an inheritance indivisible in its own nature, yet if he descend to coparceners, the profit of him may be divided; as one of them may have the service of him one day, one week, or the like, and the other another day, week, etc."

Again "Reasonable estovers, as house-bote, hay bote, etc., appendant to a freehold; corrody incertain granted to a man and his heirs; a piscary incertain; or common sans number, cannot be divided between coheirs, because a partition of them would enlarge the original grant beyond the intention of the grantor, and likewise prove a greater charge than was originally intended to the tenant of the soil; but the manner of enjoying them among coheirs is commonly settled on the following method:-If any other inheritance descends to them besides, then the eldest only shall take them, and the rest shall have a contribution or allowance in value out of the other inheritance which descended to them; but if no other inheritance descended to them, then one shall take the estovers, piscary, etc., for a fixt time, as a month, a year, etc., and the others for a like time after, which will effectually secure the owner of the soil from any prejudice; or, in case of the piscary, one may have the first fish, the other the second, etc.; or one of them may have the first draught, the other the second, etc." (Co. Litt. 164b, 165a; Bac. Abr., tit. "Coparceners" (C); and see further, Foster, pp. 83-89; Lawrence, pp. 12-21).

How Partition Effected.-A partition may be effected in the following ways: (1) By agreement between the parties; (2) or it may be compelled against the wish of some of the co-owners by means of an action for partition; or (3) an order for partition may be obtained from the Board of Agriculture, in which body is now vested the powers conferred by various statutes on the Inclosure Commissioners.

A. VOLUNTARY PARTITION.

Parties must be Competent.-It is essential to a voluntary partition that the parties should be sui juris, and capable of entering into the agreement. Various statutory enactments have greatly facilitated such dealings with property held by co-owners.

Powers under Settled Land Acts.-Under the Settled Land Act, 1882, 45 & 46 Vict. c. 38, s. 3 (iv.), where the settlement comprises an undivided share in land, or, under the settlement, the settled land has come to be held in undivided shares, a tenant for life may concur in making partition of the entirety of the estate, including a partition in consideration of money paid for equality of partition, subject to the qualification that every partition must be for the best consideration in land, or in land and money, that can reasonably be obtained (s. 4 (2)).

Where money is required for equality of partition, the tenant for life may raise the same on mortgage of the settled land (s. 18). Where the settled land comprises an undivided share in land, or, under the settlement, the settled land has come to be held in undivided shares, the tenant for life of an undivided share may join or concur with any person entitled to or having power or right of disposition of or over another undivided share (s. 19).

Notice of an intention to partition must be given to the trustees of the settlement in the prescribed manner (s. 45 (1)).

Where a tenant for life, or a person having the powers of a tenant for

ון

life, is an infant, the powers of a tenant for life under the Act may be exercised on his behalf by the trustees of the settlement, and if there are none, then by such person and in such manner as the Court, on the application of a testamentary or other guardian or next friend of the infant, orders (s. 60).

Where a partition is to be made with the tenant for life of land, an undivided share whereof is subject to the limitations of the settlement, the trustees of the settlement stand in the place of and represent the tenant for life, and, in addition to their powers as trustees, have all the powers of the tenant for life in reference to negotiating and completing the transaction (Settled Land Act, 1890, 53 & 54 Vict. c. 69, s. 12).

Deed Necessary.-By the Real Property Act, 1845, 8 & 9 Vict. c. 106, s. 3, a partition of any tenements or hereditaments, not being copyhold, is void at law, unless made by deed. "At common law, coparceners might have made partition of things lying in livery or grant by parol without deed; and tenants in common might have made partition of things lying in livery by parol without deed, if they afterwards perfected the partition by livery of seisin. Joint-tenants for years might have made partition by parol without deed. But joint-tenants of freeholds, whether corporeal or incorporeal, and tenants in common of incorporeal hereditaments, could not have made partition without deed. Since the Statute of Frauds, 29 Car. II. c. 3, a writing was in all cases necessary, but a deed was only required in cases in which it was necessary before that statute" (Co. Litt. 169a, 187a; Carson's Real Property Statutes, p. 516).

For precedents of deeds of partition, see infra, p. 380.

Confirmation of Sales Act.-Under the Confirmation of Sales Act, 1862, 25 & 26 Vict. c. 108, s. 2, trustees authorised to dispose of land by way (inter alia) of partition may, unless forbidden by the instrument creating the trust or power, so dispose of such land with an exception or reservation of any minerals, and with or without rights and powers of or incidental to the working, 'getting, or carrying away of such minerals, or may dispose of, by way (inter alia) of partition, the minerals with or without such rights or powers separately from the land; and in either case, without prejudice to any future exercise of the authority with respect to the excepted minerals, or (as the case may be) the undisposed of land. No such disposition, however, is to be made without the previous sanction of the Chancery Division, to be obtained on petition in a summary way.

Lunacy Act, 1890.-Under the Lunacy Act, 1890, 53 & 54 Vict. c. 5, the Judge in Lunacy may, by order, authorise and direct the committee of the estate of a lunatic to make partition of any property belonging to the lunatic, or in which he is interested, and give or receive any money for equality of partition (s. 120 (b)).

Power of Sale and Exchange.—A power of sale and exchange authorises partition (In re Firth & Osborne, 1876, 3 Ch. D. 618).

B. PARTITION BY THE COURT.

The second mode of effecting a partition, namely, by judicial process, requires a more minute consideration.

Common-Law Right.-All co-owners alike could agree amongst themselves to a partition of the estate in which they were jointly inter

ested; but by the common law the right to compel partition was confined to parceners. "Joyntenants, if they will, may make partition between them, and the partition is good enough; but they shall not be compelled to do this by the law; but if they will make partition of their own will and agreement, the partition shall stand in force" (Litt. s. 290). Littleton (s. 241) has it, that parceners derived their name from the writ de participatione facienda, the word "participatione" being, according to Lord Coke, a misprint for "partitione" (Co. Litt. 1646). The right to a writ of partition was by 31 Hen. VIII. c. 1, extended to joint-tenants and tenants in common of any estate or estates of inheritance, and a further statute, 32 Hen. VIII. c. 32, s. 1, provided that joint-tenants and tenants in common for lives or years should be compellable to make partition.

Concurrent Jurisdiction in Chancery.-The common-law writ proved to be a cumbrous and unsatisfactory method of procedure, and from an early period the Court of Chancery, in the exercise of its concurrent jurisdiction, entertained suits for partition, which was carried out by a commission addressed to commissioners, and not, as at law, by writ addressed to the sheriff. The Court issues the commission, not under the authority of any Act of Parliament, but on account of the extreme difficulty attending the process of partition at law, where the plaintiff must prove his title as he declares, and also the titles of the defendants; and judgment is given for partition according to the respective titles so proved. That is attended by so much difficulty, that by analogy to the jurisdiction of a Court of equity in the case of a dower, partition may be obtained by bill" (per Eldon, L.C., Agar v. Fairfax, 1810, 17 Ves. 533; 34 E. R. 206; Wh. & T. Leading Cases, vol. i. p. 181; and see Mundy v. Mundy, 1793, 2 Ves. Jun. 122; 30 E. R. 554; Calmady v. Calmady, 1795, 2 Ves. Jun. 568; 30 E. R. 780).

In Manners v. Charlesworth, 1833, 1 Myl. & K. 330; 39 E. R. 706, it was said that there was no trace of the exercise of the jurisdiction in Chancery before the 40 Eliz., and that it was of rare and uncertain use as late as the reign of Charles I. In Whaley v. Dawson, 1805, 2 Sch. & Lef. 371, it was stated that the difference between partition at law and in equity was that the former operated by the judgment of a Court of law, conclusive between the parties, whilst the latter proceeded on conveyances to be executed between the parties.

Abolition of Writ.-At length, by the Real Property Amendment Act, 1833, 3 & 4 Will. iv. c. 27, s. 36, the writ de participatione facienda was abolished, and thenceforward the Courts of equity had exclusive, instead of merely concurrent, jurisdiction in partition.

Copyholds.-Copyholds were not originally partitionable by decree of the Court (Co. Litt. 59a (n.), 187a (n.); Jope v. Morshead, 1843, 6 Beav. 213; 49 E. R. 807; Horncastle v. Charlesworth, 1840, 11 Sim. 315; 59 E. R. 895); though specific performance would be enforced of an agreement between joint-tenants of copyholds to divide the land and hold the respective parts in severalty (Bolton v. Ward, 1845, 4 Ha. 530; 67 E. R. 758; 67 R. R. 147). The Copyhold Act, 1841, 4 & 5 Vict. c. 35, s. 85, gave power to the Court to decree partition of copyholds. That Act is repealed by the Copyhold Act, 1894, 57 & 58 Vict. c. 46, by sec. 87 of which last-named Act it is provided that in an action for partition of land, of copyhold or customary tenure, the like order may be made as may be made with respect to land of freehold tenure.

Partition of Right.-If the title of the plaintiff was clear, he was entitled to a decree for partition as of right.