Row v. Row , 4 How. Pr. 133 ( 1849 )

Barculo, Justice.

The statute does not require notice of the commissioners’ proceedings to be given to the parties. Eor aught that is said by the statute, the commissioners may make partition without the actual knowledge of any of the parties. There would seem, however, to be a propriety in giving the parties some opportunity of being heard before the commissioners. As, however, a technical notice is not required, I think the notice and attendance of one of the defendants, as shown in this case, sufficient.

As this action was commenced under the code by summons and complaint, I take the opportunity to correct what seems to be a misapprehension on the part of one of the justices of this court, of the opinion in the case of Traver v. Traver (3 How. 321.) In deciding Myers agt. Rasback (4 How. 83,) Justice Grridley states that, in Traver v. Traver, I had expressed a doubt “ whether a suit for the partition of lands is a regular judicial proceeding.” I certainly had no intention of expressing any such doubt in relation to a suit. I did not intend to say that proceedings by ¿petition for partition were not merged in the legal actions of the code. The case of Traver v. Traver was one commenced by petition. If it had been commenced by bill in chancery, as a suit, the decision must have been otherwise; for the legal action of the code is expressly substituted for suits in equity by section 69, old code. As, under the former system, proceedings for partition could be commenced either by hill of petition; and as the bill has been abolished and the legal action substituted, it follows that the only remedies now remaining are the legal action of thq code and the old petition. Such is the understanding of the law, and such the uniform practice before the justices of this district.

The report of the commissioners must be confirmed.