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A House Divided 221
that the jurisdiction conferred by the Acts was a mandatory one, decreeing that on
presentation of the writ de partitione, co-owners (per the 1539 Act) “shall and maye
be coacted and compelled... to make particion betwene them... in like manner
and forme as coparceners by the comen laws of this Realme have byne and are
compellable to doe...”. No discretion to deny partition, in other words, was vested
in the Courts by the statutes, just as none had been so vested in suits between
coparceners at common law. 14 Such a discretion really did not emerge for another
three centuries, by force of later statutes.
Another critical point to note is that the procedures attending the writ de
partitione facienda were cumbrous, slow and frustratingly hedged about with
qualifications. This is no place to investigate the ancient procedures, though they
involved, after the common law court had given judgment upon the initiating
writ, the direction of another writ to the sheriff, commanding him to make the
partition by the oath of an “inquest” of twelve lawful men of the county, chosen
from the neighbourhood of the affected lands. 15
In this context as in so many others, the delays, inflexibilities and
complications of the common law, coupled (it may be) with the prospect of
enhanced business in Chancery, provoked the intervention of equity. As early as
1598, in Speke v Walrond, 16 a plaintiff who could not hope for immediate partition
at law, because one of his co-tenants was still a minor and a ward, was “holpen in
equity”. And it is clear that in a short span of time, the Lord Chancellor’s court
assumed a lively jurisdiction in partition, not only challenging the hitherto
exclusive jurisdiction of the common law courts in such matters, but threatening
to oust it entirely. Legislative efforts were made to alleviate some of the
deficiencies of the common law, 17 but by the 18 th century, the common law writ
had been almost entirely superseded by bills in Chancery. In every instance, this
supplanting of the common law seems to have been justified by reference to the
law’s endless delays and inconvenience. 18 Though there are some eighteenthcentury
records of common law writs for partition, equity’s more expeditious and
flexible procedures, and its more imaginative and efficient remedies, seem
ultimately to have condemned the common law writ to obsolescence. It was finally
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Britton II, 72 (c.1291-2)
Coke on Littleton, supra note 7, Co Litt Lib 1 168b.
(1598), 21 ER 153.
See An Act for the Easier Obtaining of Partitions, 1697 (UK) 8-9 William III, c 31, the preamble to
which succinctly but mordantly attests to the delays of the common law. It was (oddly) declared
expressly to be in force for just seven years, but was later made perpetual by 3 & 4 Ann, c 18, s 2.
See Manaton v Squire (1677), 22 ER 1036 [Lord Nottingham, LC]; and Calmady v Calmady (1795),
2 Ves Jun 568, 30 ER 780 [Lord Loughborough, LC], where more than a century later, the
Court of Chancery is still defending its supposed usurpation of jurisdiction in partition suits.
The resentment felt by common law practitioners to this development was unusually vehement
and protracted: see John Fonblanque and Henry Ballow, A Treatise of Equity, 5 th ed (London,
1820), at 18 and 19; and Story, supra note 10, at ch 14, paras 646-7.