
    
      Saunders Williamson et al. vs. T. Swindle et al.
    
    1. A writ of partition should never be issued by -tlio commissioners, until the rule to plead, (where a part of the defendants reside without the limits of the state,) has expired and the bill talten “pro confesso” against them. It must also appear that the absent defendants, have been made parties, by publication, and that the usual “sub. ad res-pondendum” for all the defendants has been prayed for in the bill, and has been issued and served.
    2d. The very sanctity which belongs to judicial proceedings renders it indispensably necessary, that all the parties, whose rights appear on the record, should be properly represented.
    
      Before Dunkin, Chancellor.
    Laurens,
    June, 1840.
    This case was submitted to the Court at the same time with Grayclon vs. Graydon; all the observations made in the decree delivered in that case are applicable to this. Superadded to which it may be remarked, that it does not appear that Wm. Williamson & John Williamson, two of the heirs of the estate, are in any manner party to the proceedings, and that the return of the commissioners in partition was made about six weeks before any notice was published for the absent defendants. It is true that the rule had expired and the bill had been taken pro-confesso before the motion was submiited to confirm the return, and if no other objection had existed, the Court would have granted the order, But the commissioners should not issue the writ until parties have had. the time allowed bylaw to shew cause against it, or to object to the principle on which it is issued. The Act also requires that the commissioners should be sworn. I think this should be-made to appear before the return is confirmed. Ordinarily the oath is endorsed on the writ, and it is the most satisfactory evidence to the Court. It is not for the Court to. say, that this is mere form. It is sufficient that the legislature have thought proper to prescribe it. In the concluding part of the bill a subposna was produced; and it required some examination of the record to find that two-of the five children were not complainants, and so far as appeared to the Court, were entirely ignorant of the proceedings. It is most probable the matter may have been perfectly understood by all interested ; but the very sanctity which belongs to the judgment of a Court, renders it the more indispensible, that all parties, whose rights appear on the record, should be properly represented.
    It is ordered that the parties have leave to amend the proceedings in the particulars to which reference has been made.
   Curia, per Dunkin, Chancellor.

This case presents-the same questions, and was heard at the same time, with Graydon vs. Graydon, on which the opinion of the Court was expressed at this term.

In respect to those points which are peculiar to this case, this Court concur in the views of the presiding chancellor;, and the appeal is dismissed.

BENJ. F. DUNKIN.

We concur:

David Johnson, Wm. Harper, J. Johnston..  