
    Calvin Symonds, Plaintiff in Error, versus Reuben Kimball.
    If, upon a petition for partition, the parties agree to certain commissioners to make the partition, there is no need of a judgment quodparUtio fiat.
    
    The commissioners need the
    if they return that they have been duly sworn, it is sufficient without other evidence of the fact
    No costs are given upon a petition for partition, except where an issue is joined and tried.
    This was a writ of error brought to reverse a judgment of this Court rendered at October term, 1799, upon a petition of the defendant in error, for partition of certain land in Woburn, * which he alleged to be holden by himself and the [ * 300 ] plaintiff in error, as tenants in common.
    The petition was originally presented at the Court of Common Pleas, and was brought up to this Court by appeal from a judgment on a sham demurrer. After a number of continuances, the parties appeared and agreed upon, and the Court did accordingly appoint A., B., and C., freeholders, commissioners to make partition of the premises as prayed for. The commissioners made return that, after being duly sworn, and after seasonable notice to the parties interested, they had set off to the petitioner his purparty by metes and bounds. The Court accepted the report, and gave judgment for the petitioner to hold his share in severalty, and to recover costs against Symonds, the respondent.
    The errors assigned were, 1. 2. The want of the interlocutory judgment quad partitio fiat. 3. There was no judgment that the partition of said premises should stand. 4. There was no judgment as to that part of the premises not assigned to the petitioner. 5. It does not appear by the record, that due and proper notice, or what notice was given to the parties by the commissioners. Nor, 6. That the commissioners were freeholders of or in said county of Middlesex. Nor, 7. That they were duly sworn. 8. The Court adjudged cost's to the petitioner, which by law ought not to have been. 9. The judgment was rendered that the petitioner should have his share of the premises in severalty, and nothing more; whereas the entry of said judgment on the record of the Court is also that he should recover his costs. 10. The general error.
    
      Bigelow, for the plaintiff in error,
    contended, as to the two first errors assigned, that it was necessary that there be two judgments upon a writ of partition . The statutes giving and regulating this method by petition expressly provide that the commissioners shall be appointed by the same court which orders the partition, necessarily implying that some court must order partition . Issue may be joined upon this point, and indeed it is in that [ * 301 ] stage of the proceedings only *that the petitioner’s whole title may be contested. For the third error, regularly there should be judgment quad partitio firma et stabilis imperpetuum teneatur 
      . The fourth error shows a great irregularity of the judgment, which ought to have assigned to each party his respective purparty or share. As to the fifth error, the commissioners ought to have returned what notice they gave. It is not enough to say they gave due notice . The sixth error is, that the record, although it declares them freeholders, does not allege them to be freeholders in the county, which they ought regularly to be. As to the seventh error, the form of the oath ought to appear that the Court may judge of its sufficiency. It does not appear in this case to what the commissioners were sworn. It might be that they took the oath of allegiance, for aught that the record shows . As to the eighth error, the statute authorizes judgment for costs only where an issue is joined and tried. The ninth error referred to two contradictory certificates in the case. Under the tenth or general error, Bigelow insisted that this being a process authorized by statute only, the provisions of the statutes ought to have been strictly pursued. The Court alone are authorized to appoint the commissioners; whereas in this case referees were chosen by the parties, for which the statutes have made no provision.
    
      Ward, for the defendant in error,
    argued that although regularly an interlocutory judgment is to be rendered in partition, yet that in this, as in all other actions, the parties may waive their legal rights, and make agreements of record which shall bind them. In this case the agreement that commissioners should be appointed amounted to an agreement that partition should be made, and superseded the necessity of the judgment quad partitio fiat. The same agreement goes also to cure several others of the errors assigned If proper and sufficient notice was not given to the parties by the commissioners, the exception ought to have been taken at the return. If this objection prevails, every judgment upon *partition [ * 302 ] in the commonwealth may be reversed. As to the evidence of the commissioners being properly sworn, they return that they were duly sworn; and every thing is to be presumed in favor of officers. To suppose them improperly sworn, would be to presume .corruption, both in the magistrate who administered the oath, and in the commissioners who took it. As to the judgment for costs, Ward suggested that an issue in fact was joined in this case, before the agreement was entered into, which he said might authorize such a judgment; but he did not appear to rely on the point.
    
      Bigelow, in reply.
    The agreement in this case amounts to no more than a nomination of commissioners, whom the Court accordingly appointed. But this did not do away the necessity of regularity in the other proceedings. There ought, notwithstanding, to have been entered the interlocutory judgment; it ought to appear that they were duly sworn, that they gave sufficient notice, &c., as much as if no such nomination had been made. At the return it was too late to object. The parties had no day in court. In the case of Tyng vs. Tyng, this Court accepted the return of the com missioners, and entered the final judgment after the death of the respondent was suggested on the record.
    
      
      
        Co. Lit. 167. 169.—Cro. Eliz. 635.—1 Ld. Raym. 610.—Cro. Jac. 384.—3 Bac. Abr. 212.—2 Bac. Abr. 192.
    
    
      
       1783, c.41. 1786. c. 52.
    
    
      
       C. Lit. 168, a.
      
    
    
      
       2 Bur. 7 3, Rex vs. Mayor, &c. of Liverpool.—1 Mass. Rep. 86, Lancaster vs Pope & Al.
      
    
    
      
       2 Bur. ubi supra
    
   Curia.

The whole purpose of the interlocutory judgment that partition be made, was fully answered by the agreeme it of the parties. Though upon a writ of partition at the common law, each parcener has his purparty assigned, yet it is sufficient upon a petition under our statute that the petitioner have his share set off to him. In many cases more is impossible, as the petitioner is entitled to partition, though his co-tenants are unknown. The commissioners returned that they gave seasonable notice, and the Court accepted their return. It is true the parties had no day in Court at that time to plead; but they might have made this, or any other objection to the acceptance of the report, and they would have been heard. It sufficiently appears that the commissioners were freeholders; and if it did not, the agreement of the parties in their nomination would cure the error. Sufficient appears in the record to [ * 303 ] support a * presumption that they were properly sworn. The statute authorizing a judgment for costs only where an issue is joined and tried, they ought not to have been awarded in this case.

The judgment was reversed as to the awarding of costs, and i (firmed as to the rest.  