#### Ex Parte J. J. Foster.

After a decree establishing the rights of the parties in partition, the duty of the Court in making distribution of the proceeds of the lands sold, is rather ministerial than judicial; and where the authority of one to receive the portion of some of the parties to the partition had been verified by the commissioner, it was held, the execution of the decree was not to be arrested on the application of another person, upon the suggestion that he was entitled to the money.

*Before DUNKIN, Chancellor, at Union District, June Term,*1838.

The petition states, that a bill was filed in this court by John Baily and wife and others, against William Cole and others, on the 5th of May, 1831, praying amongst other things, for the partition of a tract of land, which formerly belonged to John Cole, from whom the parties to the said proceedings claimed as tenants in common; that the said land was sold by the order of this court: to a part of the proceeds of which, Lucy Baily and her hus*18band, Jordan Baily, were entitled; Lucy Baily being a child, and one of the heirs at law, of John Cole, deceased. The petition further states, that some of the purchase money of said land has been paid to the commissioner, and the residue will shortly be collected, and that the said Lucy Baily and John. Baily, on the 14th of June, 1837, sold to the petitioner their interests in said land, and executed to him an assignment in writing for that purpose, authorizing him to receive the same, and refers to said assignment, a copy of which is filed, as (exhibit A,) under which he claims to have the interests of said Lucy Baily and Jordon, paid over to him, which the commissioner refuses to do without the order of this court. The prayer is, that the commissioner may be so ordered to pay over to the petitioner the distributive share of the said Lucy and Jordon Baily, in the proceeds of the sales of said lands and the rents thereof.

The petition was referred to the commissioner, and he reported the facts as set forth in the petition. William Cole and his counsel, having heard that some proceedings were about to take place before the commissioner, in relation to the petition, went to the commissioner’s office, and Cole, by his counsel, stated that he claimed the fund in question, and objected to any further proceedings, unless he was made a party — and immediately prepared and submitted to the commissioner, the following affidavit, viz: “ Personally came William Cole before me, and being sworn, deposed that he claims the interest of Jordon Baily and his wife, in the lands sold for partition, by the order of the Court of Equity, in the case of John Baily and wife and others, against this deponent; and that he thinks he has a just and equitable claim to the same.”— Upon the coming up of the report, the Chancellor made the following decretal order, viz:

“ The report of the commissioner having been read, on motion of Mr. Dawkins, it is ordered, that the commissioner pay over to the petitioner the proportion of the sales of the estate of John Cole, deceased, to which Jordon Baily and Lucy Baily, his wife, are entitled, under the proceedings heretofore had in the case of John Baily and wife and others, against William Cole.”

William Cole appealed from the foregoing order, on the follow*19ing ground, viz: That he is interested in, and claims, the fund in question — and that therefore he ought to be made a party to the proceedings, as this order will affect his interest therein.

*Herndon,*for the motion.

*Dawkins,*contra.

Curia, per Dunkin, Ch.

After the decree establishing the rights of Jordon Baily and wife, the duty of the court was rather ministerial than judicial. The report of the commissioner verified the authority of the petitioner from Baily and wife, to receive the fund, and it would be altogether irregular to permit an informal application of this character to arrest the execution of the decree.

The appeal is dismissed.

Johnson, Harper and J. Johnston, Chancellors, concurred.