on both sides should have the mutual use of the present partition wall. At that time there was a small one-story brick building on the lot adjoining on the west. Subsequently M.'s grantors conveyed this other lot to P., who tore down this small building, and erected one much higher, and extending further along on M.'s wall. Held, that the reservation in the deed to M. extended only to such portions of the west wall as were then used as a partition between the buildings, and that P. has no right to the mutual use of any other, or greater part of this west wall. Price v. McConnell, 255. See CHANCERY. INFANTS. PRACTICE. PARTNERS-PARTNERSHIP. 1. The giving of a note and mortgage by one of two copartners in settlement of a joint debt, does not discharge an account against the firm, unless they were received in satisfaction of it. Rayburn v. Day, 46. 2. If a note is given not under seal, by one of several parties, it will not satisfy the account, unless the parties so intended; and a recovery may be had upon the account, if the note is surrendered. A recovery cannot be had on the account if the note is still held by the creditor. Ibid. 46. 3. On a settlement of partnership affairs, if it is agreed that one of the partners shall collect a note and accounts, for the benefit of both, it will be presumed, that the money, as fast as received, should be divided between the parties. Metcalf v. Fouts, 110. 4. On a bill filed for a settlement of partnership accounts, where the proofs and statements leave everything in such doubt and uncertainty that it is impossible to do justice, the bill should be dismissed without costs. Vermillion v. Bailey, 230. 5. When by agreement, persons have a joint interest of the same nature in a particular adventure, they are, as between themselves, partners; although some contribute money alone, and the others labor alone. Robbins v. Laswell, 365. 6. If parties agree to share profits, they are partners as to such profits; although they do not agree to share in the losses. Ibid. 365. 7. A written agreement as to dividing profits may be extended tacitly by the mutual understanding of the parties, or by their conduct in relation to it. Ibid. 365. 8. If a declaration avers that a note is made payable to the plaintiffs by the name and style of Curtis and Baker, such a note may be read in evidence, although they declared in the names of Edwin Curtis and Joseph Baker, without alleging that they were partners, or that the note was made payable in any joint character. Wright v. Curtis, 514. PAYMENT. 1. The giving of a note and mortgage by one of two copartners in settlement of a joint debt, does not discharge an account against the firm, unless they were received in satisfaction of it. Rayburn v. Day, 46. 2. If a note is given not under seal, by one of several parties, it will not satisfy the account, unless the parties so intended; and a recovery may be had upon the account, if the note is surrendered. A recovery cannot be had on the account if the note is still held by the creditor. Ibid. 46. 3. The giving of a bond in satisfaction of a judgment, is in law a payment of it. Cox v. Reed et al. 434. See ATTORNEY AND CLIENT. JUDGMENT. PERSONAL PROPERTY. 1. The purchaser of personal property is not to presume, by a vague statement 3. A had placed goods with an auctioneer for sale, reserving to himself the right 134. 4. A complete transfer of personal property may be made, although the pur- 6. A railroad tank-house, locomotive and cars, are presumed to be annexed to Ginheimer et al. 462. 7. Where it appears that a party is to deliver grain and have the price of it at PLEADING. 1. If an action is brought against a railroad company under the statute, and 2. In an action upon an insurance policy, which contains a condition that in the 3. The statute of frauds must be pleaded, if it is to be relied upon by the de- 4. A partial failure of consideration may be pleaded to a promissory note given 5. A declaration against a railroad corporation for killing cattle, need not nega- 6. If a declaration avers a wrong with a continuendo, it may be obnoxious on 7. An averment that a sheriff's return was signed, is unnecessary; this will be presumed. Rives v. Kumler, 291. 8. Oyer cannot be craved of an instrument not under seal, of which profert is not made. If such an instrument is to be examined by this court, it should be presented by bill of exceptions, demurrer to evidence, by an agreed case, or by a special verdict. Gatton v. Dimmitt, 400. 9. It is allowable to include in the same declaration, divers distinct words of slander, of different import. Hall v. Nees, 411. 10. The plea of nul tiel corporation, is a plea in bar. Town of Lewiston v. Proctor, 414. 11. In an action to recover a penalty, for obstructing a highway, if the complaint gives a local description, sufficient to fix the precise point obstructed, and also the termini of the road, the latter may be disregarded. But when the allegation is general, that a road leading from one point to another has been obstructed, the existence of the road between the points named, must be proved as a matter of essential description. Ibid. 414. 12. A declaration upon the covenants in a deed averred the making of covenants of seizin, of power to sell, and of warranty, only; the breach included not only these, but also covenants against incumbrances and for quiet enjoyment. The defendant assigned as a ground for demurrer, that this one count set forth more than one cause of action. He'd, that as all these causes of action were of the same nature and could be answered by one plea, they might be joined in one count. That these separate breaches were to be regarded as so many distinct counts. That the demurrer being to the whole count, and one of the breaches being properly assigned, the demurrer should be overruled. Brady v. Spurck, 478. 13. Several causes of action of the same nature may be joined in one count. The defendant can plead specially to each cause of action. Ibid. 478. 14. The rule as to joining causes of action is, that when the same plea may be pleaded, and the same judgment rendered on all the counts, they may be joined. Ibid. 478. 15. In an action of covenant upon the covenant against eviction in a deed, the plaintiff alleged particularly the manner of his eviction, by showing the foreclosure of a mortgage given by the covenautor, and a sale under the decree. Held, that as it was not averred that a deed had been given under the decree, or that the time for redemption had expired, or that any actual eviction had occurred, a demurrer to the declaration should have been sustained. Ibid. 478. 16. The declaration in an action upon covenants in a deed of conveyanceclaimed an eviction by showing the foreclosure of a mortgage given by the covenantor, and a sale under the decree, but did not show that any deed had been given under the sale, or that the time of redemption had expired, or that an actual eviction had occurred. Held, that if the plaintiff had removed the mortgage, the measure of damages would have been the amount so paid, provided it did not exceed the purchase money and interestbut as it did not appear that the plaintiff had paid off the incumbrance or had suffered any eviction, nominal damages only should be awarded. Ibid. 478. 17. In an action upon covenants contained in a deed, brought by the last grantee of the land, he need not allege or prove that the intermediate assignees have kept their covenants. Ibid. 478. 18. If a declaration avers that a note is made payable to the plaintiffs by the name and style of Curtis and Baker, such a note may be read in evidence, although they declared in the names of Edwin Curtis and Joseph Baker, without alleging that they were partners, or that the note was made payable in any joint character. Wright v. Curtis, 514. See RAILROADS. PRACTICE. 1. A continuance will not be granted because a witness has said that he would be present at the trial and had been subpoenaed by the opposite party. The party desiring the testimony of the witness, should secure his presence at the trial. Moore v. Goelitz, 18. 2. In debt, recovery must be had against all or none of the defendants. People v. Organ, 27. 3. Upon an appeal from a justice of the peace, the Circuit Court should try the cause de novo, and it is error to dismiss the suit because the justice rendered judgment against two defendants when he had only obtained jurisdiction over the person of one of them. Stephens v. Cross, 35. 4. If a justice of the peace renders judgment against two defendants when only one has been brought into court, and the defendant who was served appeals the case and fails to prosecute his appeal, the Circuit Court may affirm the judgment as to him, and reverse it as to the other who has not been served. Ibid. 35. 5. The Circuit Court should not, in cases of appeal from a justice of the peace, authorize an amendment of the summons, by changing the names of parties. Henckler v. County Court, 39. 6. An action of ejectment is within the purview of the statute requiring security for costs; and if the plaintiff is a non-resident he must give security for costs before instituting suit; which is commenced by serving the declaration and notice. Farnsworth v. Agnew, 42. 7. If it appears from the bill of exceptions, that a plaintiff in ejectment was a non-resident at the time of the service of the declaration and notice, although the affidavit of the defendant to that fact is not saved in the bill of exceptions, the judgment dismissing the action for want of security will be upheld. Ibid. 42. 8. Upon a default, a writ of inquiry issues to have the damages assessed, which may be executed in court or be directed to the sheriff to execute in vacation. It would be regular for the sheriff to summon a jury from the bystanders, and have the damages assessed in the presence of the court. Etna Ins. Co. v. Phelps, 71. 9. Where an answer is filed for infant defendants, by one purporting to be their guardian ad litem, and the decree recites that he was so appointed, but the record shows no separate order of appointment, it will be presumed that the appointment was regularly made. Tibbs v. Allen, 119. 10. Where the record shows a notice by publication in a chancery cause, which recites the fact that an affidavit of the non-residence of the defendants was duly filed, but the affidavit does not appear in the record, this court will regard that recital as an official declaration by the clerk, and will presume that the affidavit was duly filed. Ibid. 119. 11. Where there are infant and adult defendants, and the adults alone prosecute a writ of error, they cannot assign for error those proceedings which only affect the interests of the infants. Ibid. 119. 12. Upon a bill for a partition brought by one of the heirs at law, in which it is suggested that the widow is entitled to dower in the lands sought to be divided, but the prayer does not ask that her dower be assigned, the court cannot decree an assignment of dower and appoint commissioners to set it off. Nor can the court give the widow an estate in fee in one-third of the land, in lieu of her life estate, for dower. Ibid. 119. 13. Where the affidavit and report of commissioners appointed to make partition bear date one day prior to the order of their appointment, and no specific objection is raised to this, it will be regarded as a mistake of the clerk in making up the record. Ibid. 119. 14. Commissioners appointed to make partition, should take the oath as provided by the statute, "to make partition in accordance with the judgment of the court as to the rights and interests of the parties." It is irregular for them to be sworn, merely to divide the land impartially. Tibbs v. Allen, 119. 15. Commissioners appointed to make partition, reported, "that from all the circumstances surrounding the pecuniary condition of the family, and the locality of the lands, they cannot be divided without prejudice to the owners." Held, that this report was not in conformity with the statute, and did not justify the court in ordering a sale of the lands. Ibid. 119. 16. A bill in chancery for a partition should set out the title of the petitioner, or show the interest he claims in the premises sought to be divided. Ibid. 119. 17. The decree in a chancery proceeding for partition, should set out the respective interests and titles of the parties, and it is error for the decree to provide for an equal division among the defendants without finding that they have equal interests in the land. Ibid. 119. 18. Infants are not bound by a decree unless all of the evidence necessary to establish it, is preserved in the record. Ibid. 119. 19. When a bill is taken as confessed, the court may, in its discretion, require proof as to all or any portion of the allegations in the bill, and the evidence need not be preserved in the record, or it may render a decree on the pro confesso order without evidence. Smith v. Trimble, 152. 20. A decree should ascertain the precise amount to be paid, and not leave it to computation. Ibid. 152. 21. If a non-resident is proceeded against by publication in a chancery cause, the court does not acquire jurisdiction over his person, unless a summons has been regularly issued, and returned by the sheriff. Ibid. 152. 22. After a notice has been given to the administrator of a deceased debtor, of the existence of a judgment against the decedent, in accordance with Sec. 3, Chap. 47, Rev. Stat., the judgment creditor may issue an execution, and also an alias or pluries, without further notice. Letcher v. Morrison, 209. 23. Depositions taken in one suit may be used in another between the same parties, about the same controversy. Mc Connel v. Smith, 232. 24. In an action upon a promissory note, by the assignee against the assignor, the defendant filed a demurrer to the declaration, which was overruled, and he elected to stand by it. It was competent for the clerk to assess the damages. Rives v. Kumler, 291. 25. In an action upon a bond, judgment should be so entered, that the whole may be satisfied, upon the payment of the damages. Freeland v. Board of Supervisors, 308. 26. If three defendants demur, and, after the demurrer is withdrawn, two of them plead, a judgment nil dicit should be entered against the party not pleading, and the jury should assess the damages against all. If but two plead, and the other abided by his demurrer, he could not be regarded as going to trial with the others. Ibid. 303. 27. It is generally a matter of discretion whether the Circuit Court will rule a party to file security for costs; but if the affidavit upon which the motion is founded be insufficient, the Circuit Court has no power under the statute to make the rule, and its decision will be reviewed in the Supreme Court. Ball v. Bruce, 332. 28. Upon a motion for a rule upon the plaintiff to file additional security for costs, an affidavit is insufficient which only avers the insolvency of the plaintiff and his security; it should show, in addition, that the circumstances of the principal or security have changed since the approval of the former bond. Ibid. 332. 29. The interrogatories to and answers of a garnishee are a part of the record, and need not be preserved by a bill of exceptions. Rankin v. Simonds, 352. 30. Where no issue is raised upon the answers of a garnishee, they must be taken as true, and the rights of the parties must be determined by them. Ibid. 352. 31. The garnishee has a right to set up any claim he has against the defendant, |