While some of the objections to the report of the committee of partition have no validity, and others might be obviated by a recommitment, there is one at least which is fatal. It appears that among the lands subject to partition there was a tract of timber land, and that the committee, without the knowledge or consent of the plaintiff, employed one Barnard to examine the timber and give them his estimate of the quality and value; that he went with them upon the land (no others being present excepting that the plaintiff and his son saw them there, but not knowing the purpose for which Barnard was present), and after a careful examination gave them his estimates in the absence of the parties, and at a time of hearing of which neither party had notice, and that to some extent the estimates so made and received in evidence influenced the committee in the unequal division of the estate between the parties which is found to exist.

In the face of these facts it is useless to go further in this case. The proceedings detailed were manifestly irregular and erroneous in law. The committee, without fraud or corruption, unwittingly fell into a plain mistake, whereby injustice was done. For this mistake and injustice the report was properly set aside at the trial term. It was the only adequate remedy.

Exceptions overruled.

ALLEN, J., did not sit: the others concurred. *Page 545