but not that
o f one parti-
tioner.
A plea o f error
cannot be
admitted,
where the
party acformerly
fufpended the emancipation of his Have. The argument of
the two diiciples is, that the w'tndles, in faft,. teftify to the ‘aft of
others, (namely, the aft of fa zin g and poflejjing,') and iiot to their
own aft1; : becaufe their aft was jmerely difctiininatmg:'--and. fepa-
■ rating, to which evidence is not required ; hence their teftimony
muft be'admitted. 'Tahdvee obferves, that where the partitioners
receive pay for making the partition, it is univerfally allowed that
their evidence cannot be admitted ; 1 and indeed feveral doftors of our
feftt are of the fame opinion ; alleging that as, in that cafej their evidence
tends to prove that they have fully and accurately performed
the. work for which they received pay, it is in the nature of a representation,
on their own behalf. Our author, however, does not
lubforibe to this reafoning; for he remarks, that the two partitioners
could not have a view to their own intereft in their evidence, as the
partners have agreed that they fully and accurately performed the
work of partition for. which they receive-their pay, the only queftion
in difpute being the feizin and pojfefjion-, wherefore no imputation of
falfehood ought to fall on them.— I f only one partitioner give evidence,
it muft not be admitted; for. the evidence of one man alone againft
another is not fufficient.
C H A P . IV.
Of Pleas of Error in Partition; and of Claims of Right in O
regard to it.
A V here one of the partners complains of an error in the partition,
and that a part which ought to have fallen to him by the partition is
in the pofleffion of another, in this cafe, if he-have before acknowledged
'
ledo-ed that he had received his fhare, his complaint muft not be admitted
unlefs fupported by evidence; for it is, in faft, fuing to cancel
the partition after it has been accomplifhed; and it is to be prefumed
that there is no error, and that his complaint is falle. I f the complainant
cannot fupport it by evidence, the others muft be required
to deny the complaint upon oath; and if they refufe to fwear, their
refufal is conftrued as proof in favour of the complainant, and the
Kdzee muft caufe their property to be divided anew, agreeably to
their feveral proportions, as this is dealing with them according to
their own fufpicions. T h e author of this work thinks that in the
above cafe the'complainant’s fuit fhould, on account of his contra-
difting himfelf, be wholly rejefted.
I f the complainant allege that he did receive his whole right, but
that the other afterwards took a part of it, the denial of the other, on
oath, muft be Credited, as this is in faft a complaint of ufurpation. -
I f he allege that “ a certain village fell to him in confequence of
“ the partition, but that the other had not delivered it up to him,”
in this cafe, provided he have not previoufly acknowledged the ob- .
tabling pofleffion of his: fhare, and the other contradift him, both
muft be required to fwear;— beCaufe the difpute is with refpeft to
the -quantity which the complainant received in confequence a f the
partition; and hence the difference in the prefent inftance is analogous
to a dilpute concerning the quantity o f an article of fale,— in
which cafe a mutual oath is tendered to the parties (as has been fully
explained under the head of Sales ;) and fo here like wife.
I f one of the parties complain that an error took place in the
diyifion, his complaint muft not be attended to, it being held in the
fame light as a complaint of a fraudulent bargain, which in cafes of
fales concluded by the principals themfelves cannot be heard. In partition,
therefore, as in fades, fince both parties have mutually con-
VbL. IV . E curred,
knowledges
having received
his ■
fhare, unlefs
it be fupported
by
evidence*
A complaint
o f after-
aflumption is
a complaint
o f ufurpation,
In cafe o f a
complaint o f
non-delivery p
both parties
are fworn,
and the partition
is dif-
fblved and
made anew»
A plea o f error
cannot be
heard, i f the
partition was
made by the
parties.