476 MURDOCK'S CASE.

allegations of his petition, in stated that the defendant
had discontinued the erection of the fence until the 8th instant,

vided a copy of this order be served on the defendant or his solicitor, at any time
before the tenth instant.

Under this order a further survey was made, the lands laid down for illustration as
required, and a plot returned; after which the case was set down for hearing, and
brought before the court.

5th February, 1799.—HANSON, Chancellor.—The said cause being set down for
hearing, and being debated by the counsel in writing, the bill, answer, exhibits, de-
positions, and all other proceedings, were by the Chancellor read and examined, and
the written arguments of the counsel on each side were by him read and considered.

The complainant had three objects proposed by the bill as it stands amended—
first, to have an agreement for the division of the land enforced; secondly, to have
an account of the profits of a ferry supposed to be on the land in the bill mentioned,
conformably to the said agreement, and to be secured in the receipt of one-half
thereof in future; and, thirdly, to have the suppression of another ferry, set up near
the common ferry by the defendant.

It seems that the defendant considered it of importance, to prove that the ferry-
house, &c. are not, as was supposed at the time of the agreement, on the tract of
land which was to be divided. He therefore obtained an order for laying down
lands for illustration. But if the Chancellor conceived it of consequence to have the
precise running of the land ascertained, he certainly could not, without violating the
well known established principles of this court, undertake to decide on the location,
but would refer it to a jury. He cannot, therefore, otherwise than regret, that the
parties have incurred an unnecessary expense. It appears that they were in posses-
sion of the ferry, landing, &c. as part of the tract of land devised to them by their
father; that they agreed upon a division of the land as possessed; and that they
have since held, according to the agieement. This court cannot then do otherwise
than say, that the agreement shall be enforced; and that the complainant is entitled
to an account of the ferry, as prayed by the bill.

As to the third object of the bill, viz: to have a suppression of the ferry which is
alleged to have been set up by the defendant contrary to the spirit of the agreement,
and the rights of the complaint, there are not perhaps, sufficient circumstances
thereto relative brought before the court, to enable the Chancellor to decide. But
supposing the case to be as he conjectures, there is no decision that he knows of, in
the books, or in the records of this court which can be thought exactly in point.
He conceives, however, that the question may be decided by common sense, with-
out the aid of learning and authority. If two persons agree to set up, at their joint
expense, a ferry for the accommodation of travellers on a certain road, and the ferry
is accordingly set up; and then one of them sets up another ferry, for his own
emolument, at a distance of twenty, thirty, fifty, or one hundred yards from the old
ferry to accommodate the same set of travellers; who is there that will not conceive
the act to be a direct violation of the rights and interests of his partner ? But if the
new ferry be only at a small distance, and yet is only for the accommodation of
travellers on another road, who Would not otherwise cross at the old ferry, it cannot
be supposed, that the partner is entitled to have it suppressed, Now, whether the
new ferry, in the present case, be of the latter or former kind, does not, as has been
intimated, clearly appear. It is impossible for the Chancellor to proceed immedi-
ately to a final decree; and therefore the last question may remain for further con-
sideration, and perhaps further preparation relative thereto, may yet be made.