HUGHES' CASE 47

even upon English authority, a court of justice cannot be permitted
in any case to legislate ;(a) and because, by the constitution of our
Republie,(6) the three departments having been directed to be kept
for ever separate, the judiciary has been expressly excluded from
every species of legislation; and is precluded from supplying any
omissions of the legislature, however obvious or necessary it may
be for attaining the object in view. Hence, it clearly follows,
that in all cases of this kind, even where the courts of common law
and of equity have concurrent jurisdiction; the law and course of
proceeding of the forum resorted to must be pursued.(c)

The act to direct descents gives to the several heirs of an intes-
tate a right to have a partition of his estate made among them; and
has, in part, prescribed the manner in which such partition may be
obtained; and, consequently, so far this court must act according
to the prescribed mode; but, in all other respects, it must be
governed by its own established course of proceeding in so far as
it can be modified, and adapted to the positive enactments of the
legislature.

In all cases of this kind, as has been done in this instance,
it is indispensably necessary, that the petition should state, with
sufficient perspicuity, where or in what counties the lands, or estate
of the intestate lie; the name of his widow, if she be then living;
and the names and description of his heirs, whether adult or infant;
and where resident, in or out of the State; to the end, that, if they
be inhabitants of the State, notice may be given to them; or if
not, that they may be warned by publication as allowed by the 50th
section of the act. The commission awarded must, in all cases,
exactly recite the petition for the government of the commissioners
in their proceedings; and the court will expect, in every case, that
the petitioner should, as in this instance, nominate to it some
suitable, disinterested, and respectable persons as commissioners.
The form of the commission to be issued in this, and all similar
cases, shall be as follows.

" The State of Maryland,
" To Joseph Townshend, Henry Stouffer, James Mosher, George Decker,

and John Hillen, of Baltimore County, Greeting:
" Whereas George Augustus Hughes and Christopher Hughes, by their
petition to the Chancellor of Maryland, have set forth, that the late

(a) Weale v. West Middlesex Wa. Comp. 1 Jac. & Wal. 871; The Bank of Colum-
bia v. Boss, 4 H. & M'H. 456.—(6) Deck. Rig. art. 6.—(c) 3 Blac. Com. 436.