1840.-Glasscott v. Copper Miners' Company. officer than a secretary or a book-keeper a party, which this lan guage plainly imports, it seems to follow that you may make not only the secretary, but the governor, and the deputy-governor, &c., and any other person a party, with respect to whom there is an averment that he has, or that he and others have in their custody books and papers which relate to the matters in the bill mentioned, and whereby the truth of those matters would ap pear. And I cannot but think, notwithstanding all that has been said on this subject, that I am actually bound by the authority which I find, which I must take to have been considered as the law for the length of time from 1787 to *1827, [*314] and which I myself have always understood to be the law of the Court. The result is that this demurrer must be overruled. Demurrer overruled. 9th December. The Company, having filed their answer, obtained an order nisi, for dissolving the injunction: and Mr. Loftus Wigram now moved to make that order absolute. He cited Joseph v. Doubleday.(a) Mr. Heathfield, for the plaintiffs :-Your Honor has decided that the officers of the Company have been rightly made co-defendants to the bill. They have not yet put in their answers; and, before the time which they have obtained for that purpose expires, the action will be tried. Consequently, it will be useless to hold that the officers may be made co-defendants, unless you decide that the injunction is to continue until they have answered the bill. with the facts as to which an answer is sought. It is sufficient if it appears that the facts charged in the bill are material to the relief sought against the corporation, and are known to the officers or agents as such. Many v. The Beekman Iron Co., 9 Paige Ch. R. 188. (a) 1 V. & B. 497. 1840.-Horncastle v. Charlesworth. THE VICE-CHANCELLOR said that, as the Company had put in their answer, it was quite a matter of course to make the order, for dissolving the injunction, absolute. [*315] 1840: 3d December. *HORNCASTLE v. CHARLESWORTH. A bill in equity will not lie for a partition of copyholds. THE question in this case, which was raised by a demurrer, was whether a court of equity could decree a partition of copyholds, between tenants in common in fee, without the license of the lord of the manor Mr. Hodgson, and Mr. Kenyon Parker :-Joint-tenants, and tenants in common were not compellable to make partition, until the 31st Hen. 8, c. 1, and 32 Hen. 8, c. 32, which first gave the remedy by writ of partition. It was heid, however, that those statutes did not include copyholds, as the remedy by writ was not applicable to them. Co. Litt. 187, a, note 71, Harg. and Butler's edition. Coke's Complete Copyholder, sect. 54. In order to show what has been the course of decision on the point, we refer to Scott v. Fawcet;(a) Hull v. Freeth; (b) Whit church v. Holworthy ;(c) Burrell v. Dodd; (d) Oakley v. Smith.(e) Mr. Jacob, and Mr. Elmsley:-Although the lands of which a partition is sought, are called copy holds in the bill, they are customary freeholds, as they appear, from the admittances, not to be held at the will of the lord.(g) The writ of partition is 1840. Horncastle v. Charlesworth. abolished by 3 & 4 Wm. 4, c 27, sect. 36, and so also *is the proceeding by plaint in the lord's court, which, [*316] as appears by the earlier cases, was the only mode of effecting a partition of copyholds. The legislature, however, when it passed that Act, meant not to abolish partition entirely, but to leave untouched the equitable jurisdiction in cases of partition, not considering it as dependent on the jurisdiction, either at common law or by statute.-[THE VICE-CHANCELLOR: The Act simply abolishes legal partition: there is no allusion, in it, to equitable partition.]—On a writ of partition, the judgment is for the parties to hold in severalty: therefore, a legal title would be given without the lord's concurrence: but a court of equity decrees a partition to be effected by surrenders in the lord's court.-[THE VICE-CHANCELLOR: The lord, on the admittance of a copyholder, is entitled to the accustomed fine; but who can say what is the accustomed fine on admittance to a tene ment which never before existed?]-The jurisdiction of this Court, with respect to partition, is not only exercised in a different manner, but it is more extensive than it is at common law. This Court deals with complicated interests in a manner that a court of common law cannot. It can decree money to be paid for owelty of partition: and, if one of two co parceners aliens, the alienee cannot have partition at common law; but may have it in this Court. Dodson v. Dodson (a) Swan v. Swan; (b) Baring v. Nash (c) Vin. Ab. Tit. Partit. Gaskell.(d) pl. 36; Gaskell v. THE VICE-CHANCELLOR:-I have always considered the question that has been *raised by the demurrer in [*317] this case, to be settled. I well remember that the ques tion was decided by Sir William Grant, in Shewen v. Kirwan, in 1811(e) since which time I have never met with a person (a) Allnatt on Partit. 94; and 2 Watk. on Copyholds, p. 153, note, Coventry's edit. (b) 8 Pri. 518. (c) 1 V. & B. 551; see 555. 1840.-Horncastle v. Charlesworth. who had a doubt about it. There formerly was a floating opin ion that a partition of copyholds might be decreed, but it soon subsided. Where freeholds and copyholds are held together in common, as in Dodson v. Dodson, there may be a partition, in one sense, by giving all the copyholds to one, and all the freeholds, and, if necessary, money for equality of partition, to the other. But since that decision by Sir William Grant, to which I have referred, I have never heard it so much as hinted that this Court had jurisdiction to make a partition of copyholds alone. This Court has never extended its jurisdiction to any new subject, but, when dealing with an old subject, has dealt with it in its own way: and if this Court, on a bill being filed for a parti tion, finds persons variously entitled, in undivided shares, to partial interests, it will take care that no injury shall be done, by directing that, by the form of the conveyance, the parties shall have the same interests in the divided shares, as they before had in the undivided shares. So that the jurisdiction exercised by this Court in cases of partition, is, in effect, an improvement on the jurisdiction as it existed at law, but this Court has never assumed a jurisdiction over copyholds. My opinion is that the filing of the bill in this case, is a pure experiment: and, therefore, the demurrer must be allowed with costs. 1840.-Heriz v. Riera. *HERIZ v. RIERA. [*318] 1840 15th and 17th December. A. and B. were Spanish subjects, resident in Spain. A. having entered into a mercantile contract with the Spanish government, agreed with B., to allow him a share of the profits. Some years afterwards, B. died, and A. went, first, to France, and afterwards came to England. After he had left Spain, he frequently wrote to the plaintiffs (who where resident in France, but had taken out administration to B. in this country,) promising to settle with them for B.'s share of the profits of the contract; but not having done so, they filed a bill against him to enforce the agreement. A. pleaded that the agreement was illegal and void by the laws of Spain, as, at the time it was entered into, B. held an office of trust and confidence under the Spanish government: and the plea averred that the entering into the agreement was a crime against the laws of Spain, subjecting the parties to pains and penalties, and a criminal prosecution. It was objected, first, that the plea was double, as the first part applied to the discovery and relief, and the latter part to the discovery only: secondly, that the particular law of Spain by which the agreement was nullified, ought to have been set forth: thirdly, that B. was dead, and, therefore, no longer subject to pains and penalties; and, fourthly, that A, after he had left Spain, had recognised the agreement, and promised to perform it. The Court, however, allowed the plea. THE bill stated that the defendant (who was described as formerly of Madrid, but then of the Clarendon hotel, Bond-St.) on or about the 11th of June, 1827, entered into a contract, with the Spanish Government, for providing tobacco for the Royal manufactories of Spain for five years, from June, 1828, at the prices mentioned: that the capital intended to be employed in the execution of the contract was estimated at 60,000l. sterling: that the defendant, soon after he had entered into the contract, came to an agreement with Don Pio de Elizalde, late of Madrid, deceased, that Elizalde should participate in the profits of the contract, to the extent of one-fifteenth, with a nominal capital of 4,000l. sterling; but it was agreed, between the parties, that although Elizalde was to participate in the profits of the contract to the extent of one-fifteenth, yet *that, in con- [319] sideration of some important services which he had previously rendered to the defendant, the defendant would not call upon him for more than one-half of such nominal capital; and |