Odiorne v. Seavey

4 N.H. 53 | Superior Court of New Hampshire | 1827

By the court.

The statute of June 26, 1810, provides that any person interested with others in any tract of land may make application to the justices of the superior court, who are empowered to cause partition to be made by a committee of five disinterested freeholders resident in the county in which the land is situated ; “ which division and partition being made and returned to said court, under the hands of said committee, or a majority of them upon oath, &c, and allowed, &c. shall be valid and effectual to all intents and purposes.”

It is believed that it has always been held necessary that all the individuals of the committee should attend for the purpose of making partition, although a report by a majority is by the statute made sufficient. No decision directly in point is however now recollected. But the decisions which have been made upon the statutes relating to references have a strong bearing upon the point. It has been repeatedly decided that in the case of referees all must hear the cause, although a majority may decide, 6. Mass. Rep. 496, Short v. Pratt, & a; 2. N. H. Rep. 484, Eastman v. Burleigh; and 123, Farwell’s petition.

We are therefore of opinion that the report in this case cannot'be accepted. All the members of the committee should have attended.

Report rejected.