CECIL VS. DORSET. 225

It is true, that when partition is made by agreement of par-
ties, one of the modes known to the common law is, by draw-
ing lots, and the course of proceeding in such cases, is pointed
out in Coke, LWeton, 167, a. This is when the parties agree
that partition shall be made, but do not agree as to the division
of the separated parts, which each shall take; but I do not find
any authority for saying, that when a compulsory partition is
made by judicial proceedings, recourse must be had to lots, or
ballots, to determine the portion which each is to take; on the
contrary, it appears to be very clear, that the officers employed
by the law for this purpose, are clothed with full authority to
make partition among the parties, in the exercise of a sound
discretion.

Upon the common law writ de partitione facienda, the sheriff,
by the oath of a jury, makes partition, and assigns to each party
his share of the estate. Coke, 168, 6. Jlllnutt on Partition, 70,
71.

And the inquisition of the partition thus made, is returned by
the sheriff under his seal, and the seals of the jurors, which,
when confirmed by the court, is final; the judgment under
which the writ issued being only interlocutory. Allnutt, 173.

In truth, the proceedings at common law under the writ of
partition, and the proceedings by bill in equity in this state,
have a near resemblance, the only material difference being, the
substitution of commissioners for the jury of view, according to
the course of the common law.

[The Chancellor after referring to the case of Corse vs. Polk,
wherein a similar objection was disallowed by the then Chan-
cellor, (Kilty,) proceeds:]

Cases have been laid before me, in which the commissioners
appointed by this court, have made partition by lot, but in these
same cases, they have also made the assignment of other par-
cels of the estate, in the exercise of their own discretion; the
case of Dorsey vs. Dorsey decided in 1829, is one of this des-
cription.