Godfrey v Little
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 1831 |
| Date | 15 June 1831 |
| Court | High Court of Chancery |
English Reports Citation: 39 E.R. 534
HIGH COURT OF CHANCERY
S. C. Tamlyn, 221; 1 Russ. & My., 59.
[630] godfrey v. littel. June 15, 1H31. [S. C. Tamlyn, 221 ; 1 Russ. & My., 59.] In order to sustain a bill for a commission to ascertain boundaries, the Plaintiff must establish, by the admission of the Defendant, or by evidence, a clear legal title to some land in the possession of the Defendant, and also a ground for equitable relief; and where the quantity of the land of the Plaintiff, in the possession of the Defendant, is doubtful upon the evidence, the Court will direct a commission or an issue, as will best answer the justice of the case. The Defendant appealed from the decree of the Master of the Rolls in this cause. The judgment of His Honour upon the hearing in the Court below is reported in 1 Russell & Mylne, 59. the solicitor-general [Home], Mr. Skirrow, and Mr. Wigram, in support of the appeal, insisted that, according both to principle and practice, two things were necessary to be established by a Plaintiff, before he could call upon the Court to issue & commission to ascertain boundaries : first, he must satisfy the Court that he had a title to some portion of the land with respect to which the relief was prayed ; and, next, he must shew the quantity of land in acres, or in some other measurement, to which he was entitled. If he failed in the first point, no decree whatever could be made, and his bill must be dismissed. If he failed in the second, the Court might either :2 RUS3. & M. 631. GODFREY V. LITTEL 535 undertake to investigate and decide the question for itself, upon the evidence brought before it or under a reference to the Master; or else, if that course were found more convenient, it might send the matter to be tried by a jury upon an issue. But it was not the province of a secret and irresponsible body like Commissioners of Partition to investigate and determine a question of title. The Master of the Rolls considered it discretionary either to grant an issue or a commission. But this Court had no right to delegate to the decision of commissioners what was in fact matter of law. The 'Court might and often had directed an issue in such cases ; and, assuming (what was by no means admitted) that the Plaintiff in this case had made out the first [631] point, namely, his right to some portion of the intermixed lands, the Defendant would not have complained if that course had been adopted here. But he protested-and in that protest he was borne out by all the authorities in which the point had been taken, -and especially by the language of the decree in The liuke of Lmls v. The Ea/'l of .Strqfford (4 Ves., 180), as it appeared in the registrar's book-against being compelled to submit to the judgment of Commissioners of Partition a grave and complicated question of fact and law, a question which they were wholly incompetent to determine. In addition to the authorities cited in the former argument, the following cases were referred to :-WM v. Banks (2 Eq...
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