
    WILLIAM IRWIN, AGENT, &c. vs. MILES D. KING, ADM'R., &c.
    
    A petition was filed in the County Court, and order made for the partition of certain slaves among the tenants in common. The plaintiff was the agent of one of the petitioners. The Commissioners made a division, and awarded to the petitioner, as agent, certain slaves, aud also a sum'of money to be paid by another of the petitioners to him as agent, to equalize the shares. The report was returned, and confirmed by the Court, but no formal decree drawn. The agent cannot, by a notice- iri his own name, call upon the other petitioners to have the decree entered in iiis favor — or to pay tire sum so awarded.
    Appeal from the Superior Court of Law of Rocking-ham County, at the Fall Term, 1845, his Honor Judge Dick presiding.
    . John Moore, the plaintiff, Joseph Lemmon, (the defendant’s intestate,) and five other persons, were tenants in common of a parcel of slaves. They, under the Act of Assembly, filed a petition in the County Court of Rockingham, to have them divided. The Court decreed accordingly, and appointed commissioners to make the division. Moore, being unable to attend the commissioners, when they proceeded to perform their duty, appointed William Irwin his agent, to attend and see to his interest in the partition of the said slaves. The commissioners proceeded to make partition; and, in their report, they charged some of the petitioners, who had the more valuable dividends, with, certain sums of money, to be paid to those, who drew dividends of less value, in order to make each petitioner’s share equal. Joseph Lemmon was charged in the report as follows': “ Joseph Lemmon must pay to William Irwin, agent of John Moore, one hundred and seven dollars and sixty cents.” The report was returned by the commissioners into Court, and, no exceptions being taken by any of. the parties, it was confirmed. There was no formal decree drawn out by the Court, in conformity to the report. The plaintiff, afterwards, issued a notice, in the nature of a scire facias, to Joseph L®mmon, to pay the money reported against him, or show cause why execution should not issue for it. To this notice, the defendant pleaded nul tiel record, as if the proceedings were at common law. The cause came to the Sup'erior Court by appeal, where the Judge decided, that there was no such record ; and gave judgment against the plaintiff for costs ; and the plaintiff then appealed to this Court.
    
      Morehead, for the plaintiff.
    
      Kerr, for the defendant.
   Daniel, J.

The proceedings were not at common law; for partition by tenants in common of chattels could not be had in the common law Courts; they had to go into the Courts of Equity, to effect that object. The expense and delay in Chancery being great, the Legislature gave the County Courts Chancery jurisdiction, in the partition of slaves among tenánts in common. In this, case, whether the commissioners acted right, in charging the owners of the most valuable dividends with the payment of sums of money, to the owners of the less .valuable 'dividends, in order to equalize their shares in the slaves, is a subject not now necessary to enquire into ; as the report was returned, and no exceptions being taken to it by 'any of the parties, it was confirmed by the Court. The decree, strictly speaking, sliould Rave been drawn out by the Court in conformity to the report, as if the proceedings had been in the Court of Chancery. No doubt, that would have made the money payable to Moore, the party, and not to his agent. The judgment of the Superior Court was, therefore, upon an immaterial matter, and it must be reversed. The error consisted in treating this as a judgment of a Court of common law, and the notice as process to revive it; whereas the proceeding is, as in equity, and the notice was merely to ground a motion fox-drawing up the decree, or attaching the party for not complying with it, or to enable 'the party interested to take any other step, as in equity. It is impossible to regard it as a suit at common law; for there were not even adversary parties, but all the claimants were petitioners. The Superior Court will issue a writ to the County Court to proceed in the cause. There ought to be no costs of this proceeding in the County Court, for it was but a motion in the original cause there. But tlio appellant from the County Court, that is, Lemmon, should pay the costs both of the Superior Court and this Court.

Per Curiam. Adjudged accordingly.  