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.