HYNDMAN JONES, J.

(After reading the Statement of Claim and Memorandum of Demurrer, the learned Judge stated:-) In England in matters of Partition, proceedings at Common Law were originally taken under a Writ of Partition, but these proceedings owing to the fact that Courts of Common Law merely declared the rights of the parties without enforcing them were found not to be of much utility, and accordingly Equity (which would enforce those rights by compelling mutual conveyances) assumed a general concurrent jurisdiction in these cases. Equity moreover went further than the Law in this way, viz., that it interfered in cases in which the Law would not for example, where equitable titles were set up. Originally at Common Law, as was pointed out by Mr. Koek, it was only co-parceners who had the right to compel partition, and it was by virtue of the Statutes of Henry VII, (31 Hen. VIII, c. 1 and 32 Hen. VIII, c. 32). that joint tenants and tenants in common could be compelled to do so. In 1833 by 3 and 4 Will. IV. c. 27, s. 36, the old Writ of Partition was abolished; and thenceforward Equity acquired exclusive jurisdiction which up to that time it has exercised concurrently with Courts of Common Law (Tudor 472). The Partition Act of 1868 and 1876 gave the Courts, inter alia, power to direct a sale instead of a partition.

The question argued on this demurrer was whether or no the Court of this Colony has jurisdiction to compel a joint tenant or a tenant in common to effect a partition, and whether or no it has jurisdiction to direct a sale.

Mr. Keok contended that there was nothing to show that the Court of Chancery, in England, had jurisdiction apart from the Statutes. As to that the Lord Chancellor in the case of Agar v, Fairfax 17 Ves. 533 (which was a Bill for Partition) appeals to have said that the Court of Equity did not act under the authority of any Act of Parliament. But supposing that its only authority to act was derived from the Statutes of Henry VIII already referred to, it appears to me that there is no reason to suppose that those Statutes are not in force in this Colony. Section 6 of Ordinance IV of 1878, quoted by Mr. Koek, deals with Mercantile law and makes that Law subject to the law of England in a similar case, and the proviso simply declares that nothing contained in the section, (that is, in a section which deals only with Mercantile Law) shall be taken-of itself, of course-to introduce into the Colony any part of the Law of England relating to the tenure of land. I do not think that the present case is governed by that section. It must rather be considered in connection with Section 10 of the Courts Ordinance III of 1878. As O'Malley, C.J. pointed out in the case of Scully v. Scully 4 Kyshe 602. "the Law of England as it stood at the date of the Charter of 1826 was introduced by that Charter" and "the effect of Section 10 is that the Court here has such jurisdiction as the High Court of Justice in England has, and may lawfully exercise in actions and suits, subject to the Law of England in 1826 as modified by local and other special legislation, applicable to the Colony subsequent to that date." Therefore it may well be held that the partition Acts of Henry VIII form part of the Law of this Colony. It is true that Sir Benson Maxwell in the case of Regina v. Willans 3 Kyshe 16 said that "how much of the English Statute Law which was in existence in 1826 is in force here is in some "measure a question of construction." but he went on to say that the test should be whether the law sought to be enforced was local in its character, or even if it were not local, whether injustice or inconvenient would arise if it were not local, whether injustice or inconvenience would arise if it were enforced, and he referred to the fact that the Statutes of Mortamain had been held not to be in force in the Island of Grenada for the very reason that they were applicable to the state of things existing in England. Mr