
    Joseph Harrington & Wife v. Joseph Barton.
    The return of the commissioners, appointed to make partition of real estate, must set forth the lands which they divide, and specifically what they set to each of the parties.
    This was a petition for a partition of lands in Charlotte, of which the said Joseph Harrington and wife, in right of said wife, and the said Barton were tenants in common.
    
      C. Adams, for petitioners — Maeck $/ Smalley, for petitionee.
   Commissioners were duly appointed, whose report and the facts in the case sufficiently appear in the opinion of the court, delivered by

Bennett, J.

There are several questions raised on the acceptance of the report of the commissioners; and there is one objection, which we think fatal ; and, consequently, there can be no occasion to pass upon any other. The commissioners made division of the lands described in the petition, and their return is as follows: “ Wo allot to the “ said Joseph and his wife a parcel of said land described in “ the said petition which parcel is set out by metes and bounds. They then proceed: “ and we allot to the said “Joseph Barton all and singular the remainder of the lands “ described in the said petition.”

The warrant in this case to the commissioners does not contain a description of the land which is to be divided, and it can only be ascertained by a resort to the petition ; and what lands are intended to be allotted to Joseph Barton can, in like manner, only be ascertained by a reference to the same petition. The statute, (page 173,) requires the return only of the commissioners to be recorded by the clerk, and also in the town clerk’s office, where the land lies; and, when it has been duly accepted and so recorded, it is made valid and effectual, to all intents and purposes as a valid division. It is therefore necessary that the commissioners should set forth in their return what lands they divide; and, specifically, what is set to each one of the parties, and not by way of reference to the pelit'on; and, for this d ¡feet, the report of the commissioners must be set aside, and a new commission issue.  