
    *Dorinda Beaty vs. John Hearst.
    Want of notice, is no ground to oppose the confirmation of the return of the Commissioners to a writ of Admeasurement of Dower. Where the return is perfect, and exactly in conformance with legal rules, and is verified by the oath of all the Commissioners, it is entitled to full credit, rather than the exparte affidavit of two of them.
    Before Earle, J., at Abbeville, Fall Term, 1839.
    A writ of Admeasurement of Dower had been directed to five commissioners, to lay off the demandant’s dowel’, or assess its value, in certain lands in Abbeville. To this writ the five commissioners, under their hands and seals, made return, that being first duly sworn, they went upon the land, and appraised its value, at the time of the alienation by the husband, at the sum of one thousand dollars, and assessed the sum of one hundred and sixty-six dollars and sixty-six and three-fourth cents, with interest from the 24th day of November, 1831, the day of the death of the husband, in lieu of dower.
    On the coming in of the return, and motion made to confirm the same, it was resisted on the part of the defendant, on grounds set forth in an affidavit made by two of the commissioners, and an affidavit made by himself. The commissioners stated that, in fixing the value, they referred to the death of the husband, and that they did not ascertain how much was held by the defendant. In the affidavit made by himself, he stated that he had no notice of the valuation by the commissioners, with a view to assess the dower ; and that the alienation was long previous to the death of the husband. On these affidavits the defendant moved to set aside the return, and to recommit the matter with instructions.
    I considered that it would be of mischievous tendency to avoid the official act of the whole number of commissioners, under the sanction of an oath, upon the voluntary and exparte statement of two of them, or upon the affidavit of the defendant, that he had no notice, which did not seem to be indispensable, if the commissioners had other satisfactory information.
    The motion of the demandant to confirm the return was allowed. The defendant moves to set aside the order.
    *The defendant appeals, and will move to reverse the decision made on the circuit, on the following ground :
    Because the affidavits submitted by him, which remained wholly uncontro-verted, after due notice to the plaintiff’s attorney, showed that the commissioners had proceeded without notice to the defendant, without knowledge of the time of alienation, without ascertaining the quantity of land, and without reference to the value at the time of alienation.
    
      Affidavits. — We, Samuel Cowan and Williams Truwit, two of the commissioners in this case, swear, that in valuing the laud in question, we had no papers — we knew the quantity only by the representation of Mr. Palmer, plaintiff’s father: how much the defendant held, we did not ascertain ; and we referred to the death of James Beatty, the only date we were informed of, in fixing the value.
    Samuel Cowan,
    William Truwit.
    Sworn to before J. H. Wilson, J. Q., Oct. 16th, 1839.
    
      I, John Hearst, the defendant, being duly sworn, say, that I had no notice of the valuation of the land by the Commissioners, with a view to assess the dower; that the alienation was long previous to the death of James Beatty, the husband of the demandant; and that the amount or value of the land, as assessed by the commissioners, far exceeds the amount given for the land at any time within the knowledge of this defendant.
    Jno. Hearst, Jr.
    
      
    
   Curia, per

Earle, J.

The commissioners appointed to execute the writ, act under the authority of the Court, and the sanction of an oath. In this case, they all united in the execution of the power confided to them, and in the most formal manner have made their joint return, setting forth the mode in which they have performed their duty. They state, distinctly, the fact that they went upon the land, and appraised its value at the time of the alienation by the husband ; and the question is, shall the Circuit Court refuse to confirm that return, on the affidavit of two only, out of the five commissioners, *tliat in valuing the land, they referred to the death of the husband, and not to the time of alienation ; and the affidavit of the plaintiff, that he had no notice. It seems to be rather a question of practice or discretion, than of principle. There is no doubt that a Circuit Judge may withhold confirmation of such a return, either in dower, partition, or in any other proceeding, and allow further time, on such showing as satisfies him that there has been error or mistake, or any departure from established legal rules. To confirm or to withhold confirmation for a term, becomes then a matter of discretion, to be exercised so as not to delay one whose right is clear, on the one hand, and not to sanction error and do injustice by precipitation, on the other. In this case, the return was perfect; the mode of proceeding was exactly conformable to legal rules ; and was verified by the oath of all the commissioners. This, to say the least, is entitled to full credit, rather than the exparte affidavit of two of them. Had these last entered into any explanations of the mode and grounds of proceeding, so as to show that the commissioners were mistaken in point of fact or law ; or, had a majority of them come forward, and presented the same ground, and suggested to have the subject recommitted, to correct errors ; or, had the defendant, on the filing of the return, taken a rule to show cause, or given notice of his motion to the other commissioners, then, in the absence of any sufficient explanation, the confirmation of the return might properly have been witheld, or the return set aside, and the subject recommitted. But the single fact stated in the affidavit of the two commissioners, is in direct conflict with their return. They have, in fact, sworn both ways; and I do not perceive that such a case was made out as to require that the Circuit Judge should have set aside the return, or withheld the confirmation. And I think that this is the more obvious from the fact that the defendant, in his affidavit, docs not swear that the valuation is too high, or that any injustice is done to him. In the opinion of a majority of the court, it was a question addressed rather to the discretion of the Judge ; and as the return was unexceptionable on its face, it was for him to be satisfied with the evidence aliunde to impugn it. And although they might have come to a different conclusion, and decided differently they do not feel at liberty to interfere with his judgment. We are all ^agreed that the want of notice was no ground to oppose the confirmation of the return. The summons and the writ described the land on which dower was to be admeasured or assessed, and the verdict had found that the defendant was in possession. Nothing more was needed.

Wardlaw and Perrin, for the motion. Burt and Thompson, contra.

Motion refused :

the whole court concurring. 
      
       Discretion of the Judge. See 7 Rich. 535. 2 Rich. 78. Post. 159, 191, 339. 4 Rich. 466. 10 Rich. 141. 9 Rich. 133, 454. 8 Rich. 451. Harp. 400. 2 Sp. 167, 265. 5 Strob. 87. 3 Strob.432. Rice, 298, &c., &c. An.
     