HANNAH K. CHASE'S CASE. g3§

tavern* And it may turn out, upon inquiry, that it is incapable of
being advantageously occupied in any other way; or perhaps of
being divided at all. A rent may be given for equality of parti-
> tion or in lieu of dower; which in its nature will be distrainable of
common nght.(q) I shall therefore, in the decree appointing the

(q) Co. Litt. 144, 169; Turney v. Sturges, Dyer, 91; Dacre v. Gorges, 2 Sim. &
Stu. 454; Com. Dig. tit. Annuity, (A. 3.); Warfield v. Warfield, 5 H. & J. 450.

CORSE v. POLK.—The bill, filed on the 10th of December, 1818, states, that Alex-
ander 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 chil-
dren 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, 1319,
an interlocutory decree to make partition was passed, and the usual commission was
issued, and a return made thereon.

16th July, 1819.—KILTY, Chancellor.—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 be 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 so divided among the respective claimants according to quantity and quality."

15th February, 1821.—KILTY, Chancellor.—An order was passed during the pre-
sent term, to wit, on the 25th of January, 1821, for a hearing of the objections fied
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 consideration.

I do not view the commission or any part of the proceedings as being ordered
under the act to direct descents; but under the provisions of the common law as to
partition, which is exercised by the Chancery Court, and is recognised by the act of
1794, ch. 60. Of course a sale could be ordered as suggested by the counsel of 3.
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 objections, 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 quantify or quality is made up
in money. The assignment of the several parts, although it has not been expressed
in the commission, is included in the power to divide. It is conformable to the prac-
tice where the commissioners think proper so to do; and if they omit it, the assign-
ment to each party is made by the court by lot, for which however there is no
express authority.

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