Zinn v. Prior

Decided April 15, 1805

Supreme Court of South Carolina · decided 1805-04-15

On the return of commissioners to a writ of partition, it appeared, that the return was made by four of the commissioners only; whereupon, it was objected, before Wilds, J. in Edgefield district, that all the five commissioners should have joined in making the return, according to the A. A. 1748. P. L. 218 ; which objection was sustained, and the return was rejected. The motion in this court, was to reverse this determination of the district court.

Decided 1805-04-15

Per Curiam.(Grimkje, Waties, Bay, and Brevard, Justices.)

¶1The decision of the district court was correct. The act oí 1748, authorizes the issuing of a writ, to be directed to five persons, who shall make partition, and shall make a return of the writ, under their hands and seals; but it does not authi-rize a majority of the five persons to do so. Wherever the law empowers a certain number of persons to do a joint act, they must all concur therein It was so decided in the case of the commissioners of inspection for Campbleton warehouse. Bay’s Rep. 348.

¶2Motion refused.

¶3Note. See 3 T. R 592. Where the legislature does not expressly require a joint execution of a power, and it would he attended with inconvenience to obtain it, the above construction does not hold. See Co. Litt. 113, 2 Inst. 380. 3 Vin. Abr. 421, 422. Bulst. 105.