
    Samuel Odiorne versus Amos Seavey.
    A report made by four of a committee appointed to make partition under the statute of June 26» 1810 will not be accepted by the court unless it appear that the other member of the committee was present when the partition was made.
    This was a petition, in which Odióme alleged that he was seized of one sixth part of a tract of land in. Newcastle, in common and undivided with Seavey, and prayed that partition might be made.
    At September term, 1825, a committee of five persons was appointed to make partition.
    At this term a report was produced, signed by four of the committee, in which it was stated that all the persons, appointed a committee as aforesaid, had been duly notified to attend the meeting of the committee to make partition ; but it in no way appeared that more than four of the committee attended.
    
      E. Cutts of counsel with Seavey
    contended, that the report could not be legally accepted. He admitted, that the statute made the report of a majority of the committee sufficient ; but urged that no report could be legal, unless all the individuals of the committee had been present when the partition was made.
    Hackett, of counsel with Odiorne.
   By the court.

The statute of June 26, 1810, provides that any person interested with others in any tract of land may make application to the justices of the superior court, who are empowered to cause partition to be made by a committee of five disinterested freeholders resident in the county in which the land is situated ; “ which division and partition being made and returned to said court, under the hands of said committee, or a majority of them upon oath, &c, and allowed, &c. shall be valid and effectual to all intents and purposes.”

It is believed that it has always been held necessary that all the individuals of the committee should attend for the purpose of making partition, although a report by a majority is by the statute made sufficient. No decision directly in point is however now recollected. But the decisions which have been made upon the statutes relating to references have a strong bearing upon the point. It has been repeatedly decided that in the case of referees all must hear the cause, although a majority may decide, 6. Mass. Rep. 496, Short v. Pratt, & a; 2. N. H. Rep. 484, Eastman v. Burleigh; and 123, Farwell’s petition.

We are therefore of opinion that the report in this case cannot'be accepted. All the members of the committee should have attended.

Report rejected.  