Page:United States Reports, Volume 2.djvu/265

 Sorasua Couar or Pmnjlwmia. agp maintain the writ of partition ; andthe demurtcr was oppofed l796. i by We/Ir. _ VV" Q For the plaintiil} it was admitted, that partition could only _ be compelled at common law, between parceners; and that the 3 3l [iw:. 3. cy 1 . only gives the writ where the party is feized ` of the inheritance : But, it was contended, that the 32 Hm. 8 _ t-. 32 was deligned to give relief in cafes not relievable at com- mon law, nor within the provilions of the preceding [katute. Thus, in Hzrgr. Co. Litt. 175. a. b. it is itated, that tenant hy the curtefy, though not named inthe 32 Ibn. 8. is with- in its equity ; and in 3 Bn:. Ala-. 2X 1. 16 Wn. Abr. 233 it islexpreisly declared,that tenant by the curtefy {hall have a   rtt of partition on that ilatute. E M B. 336 Unlefs, indeed, hc is allowed the benefit of this writ, he has a clear right, with- out an adequate remedy ; for, although he might bring an e- je£tment, and put himfelf in polfeiiion with the defendants, he could not divide the eitate. For the defendants, it was obferved, that their tingle objeél: in the demurrer was to take the opinion of the Court ; as a de- ciiion, either way, would be fatisfaélory to them ;_ and they were, indeed, delirous that a partition {hould be effected, pro- vided it was done in a legal and valid form, fo as to bind the minor daughter of the plaintiii, who is entitled to the reverlion. But, it was urged, that in all the books of entries (which had been laborioully fcarched for the occalion) not one precedent could be found of a writ of partition, iffuing at the fuit of a tenant bythe curtefy. The common law does not give him that remedy ; the ilatute of the 31 Hm. 8. c. t, gives it only to, and againfl, joint tenants, or tenants in common, feized of an eltate of inheritance ; and though the 32 Hen. 8. e. 37. extends the operation of the preceding llatute, by giving the writ of partition to joint tenants, and tenants in common, fciz· ed of an citate of inheritance agony? tenants for life, or years, (embracing, by an equitable conitruétion, the cafe of tenants by the curtefy, as tenants for life) it does not, e couverfé, give the. writ to tenants for life, or years, not confequently, conll;ru&ive- ly, to tenants by the curtefy, as tenants for life. It is true, Lord Cake fays, that tt the tenant by the curtefy {hall have a ` writ of partition upon the [latute of 32 He-:. 8. c. 32-,, ; C0. Litt. 175. a. but this general diéhm, referring to Bro. tit. " pnrtifiw1;” 4I. is not fupported by the cafe, which was a writ of partition agaigyi, and notjbr, a tenant by the curtefy ; the reafonalligned tor the difhnn, by the commentator, “ that a prenpa lieth againlt tenant by the eurtefy," is a good reafon, why he {hould be defendant, but not why he lhould be plaintii in partition 5 and the diz‘?um is refuted by the plain language of the tlatute ititlf, as well as by the univerfal iilence of every book, K hz at

�