HANNAH K. CHASE'S CASE.—1 BLAND. 219

Warfield v. War field, 5 H. & J. 459. (I) I shall therefore, in the
decree appointing the * commissioners to lay off and assign
the plaintiff's dower in this property, leave sufficient lati-

(1) COESE v. POLK.—The bill, filed on the 10th of December, 1818, states,
that Alexander Stewart, and Mary his wife, being seized of certain lands,
in her right, by deed conveyed them to Warner Razin to hold in trust for
the use of them and the survivor for life, remainder to their children; that
they are both dead, leaving only three children the parties to this suit; that
the defendants are infants. Prayer for a partition. The defendants Polk
and 'wife made answer admitting the statement of the bill. Rebecca R.
Stewart answered by guardian, also admitting the allegations of the bill.
The trustee does not appear to have been made a party. On the 1st of April,
1819, an Interlocutory decree to make partition was passed, and the usual
commission was issued, and a return made thereon.

KILTY, C., 16th July. 1819.—Ordered that the return made by the com-
missioners under the interlocutory decree for partition be confirmed, unless
cause shewn before the 1st day of September next; provided a copy of this
order he served on the defendant, James Polk, and on the guardian of
Rebecca R. Stewart, before the 15th day of August next.

The commissioners returned, that they had divided the lands as described,
&c. and then say, ''they do further certify and return, award and adjudge,
that the said Unit Corse and Mary his wife, pay to Rebecca R. Stewart, the
sum of one thousand and ninety-seven dollars and thirty-three and a third
cents, and to James Polk and Ann Maria his wife, the sum of five hundred
and thirty dollars and eighty-three and a third cents." The defendants
filed objections to this return, because among other things, ''the said lands
are capable of a specific equal division, and ought to have been BO divided
among the respective claimants accoi-ding to quantity and quality."

KILTY, C., 15th February, 1821.—An order was passed during the present
term, to wit, on the 25th of January. 1821. for a hearing of the objections
filed by James Polk at March Term next on notice; but the parties having
since submitted them on notes in writing, they are now taken up for con-
sideration.

I do not view the commission or any part of the proceedings as being
ordered under the Act to Direct Descents; but tinder the provisions of the
common law as to partition, which is exercised by the Chancery Court, and
is recognized by the Act of 1794. ch 60. Of course a sale could be ordered
as suggested by the counsel of J. Polk, and a partition must in some way be
made.

The parties have not had any further survey or taken proof under the
order of December Term, 1819; the counsel for J. Polk relying on his objec-
tions, that the commissioners had not complied with their directions.

The objections drawn from the terms of the commission are not considered
valid. An equal division may exist where the difference in quantity or
quality is made up in money. The assignment of the several parts, al-
though it has not been expressed in the commission, is included in the
power to divide. It is comformable to the practice where the commissioners
think proper so to do; and if they omit it, the assignment to each party is
made by the Court by lot. for which however there is no express authority.

On this view of the case, I should deem it proper to confirm the return if
an examination of the plot had been made according to the rule of the Court;