32 r·m1>1amAL ma:r·0m*¤R
think his power is then exhausted, and he must return the certihcate
to the local oifce for further proceedings in accordance with his de-
cision. At least, the power to partition the donation between the set-
, tler and; his wife seems committed to the judgment of the surveyor
general, and although he may be required by the direction of the
commissioner to exercise this power in a particular, case, and to cor-
rect errors committed in the exercise of it, as that the donation was
not divided into two equal parts,. I do not think he could be required
to divide it in a particular manner, as by an east and west line rather
than a north and south one, or to assign the north or east half to the
wife rather than the south or west one. So far as the partition and
allotment of the donation between the settler and his wife rests in the
- discretion of the ofhcer, I think the act commits the matter wholly to
' his judgment. ·
Assuming as I do, and as seems to be admitted by the defendants’
plea, that a suit for partition could not have been maintained bythe
plaintil‘fs’ ancestor, Lownsdale, against the defendants for partition
of the premises until, by the formal division of the donation, it was
ascertained and determined in which half of the same they would be
included, it follows that the statute of limitations did not commence to
run against the suit until such division was made. When, then, for
the purposes of this case, was this division made ? On September 29,
1853, when the settler made his final proof, and the matter was sub-
mitted to the surveyor general for examination and determination; or
on October 17, 1860, the date of the certincate in and by which the
division, so far as appears, is Grst formally made and announced? j
In the one case the limitation of 20 years, counting from the Bling
ofthe proof, or the deathof Nancy on April 15, 1854, had elapsed
before the passage of the act of October 17, 1878, and the plaintiffs'
right of suitwas barred, and in the other the limitation would not
have expired until October 17, 1880, and therefore the right of suit
was notbarred at the passage of said act.
Taking the facts as stated, and ·the construction of the donation act
as announced by Mr. Chief Justice Warm in Hull v. Russell, supra,
my conclusion is that the share or interest of Nancy in this donation
was not ascertained orset apart during her life-time, nor until the
patent certificate was issued on October 17, 1860, when and whereby
the division was madegiving the settler the east half, and the west
half to the wife, nominally, but in effect to those whom the act gave
it upon her death; and upon this certincate and in accordance there- A
with the patent subsequently issued.