partitioned is good, if taken by demurrer or answer, but is too late if taken for the first time at the hearing.14 The omission of a plaintiff to allege that the parties do not own any other land in common in the State is held not to be a ground of demurrer.15 Under the rule that a defendant in partition may controvert the title or interest of a co-defendant, the Statute of Limitations may be set up against a judgment and mortgage of a defendant, and it is immaterial that the answer pleading the statute is served before the answer asserting the claim.16 In an action of partition by the widow of the deceased owner of land against the grantee of the administrator of such owner's estate, an answer in effect that the defendant was induced to purchase the land at administrator's sale, by the representations of the plaintiff to him that he would get a good title to the entire land, that she, as widow, would claim no interest in such land, and that she would take her interest in the other lands owned by her deceased husband, is a good defense to the action as an estoppel in pais." In a suit for partition against infants, the guardian of their persons and estates may appear in his own name as guardian and plead in their behalf.18 A court of equity has jurisdiction over an action brought to secure a partition of personal property between tenants in common thereof; 19 and when justice requires that real and personal estate be sold together, and the proceeds divided, it is within the province of a court of equity to do so in one action.20 The decree of a court of first instance, by which certain lands claimed under a Mexican grant were partitioned between the grantees, who took and held possession in accordance with the decree, is no defense to an action for the partition of a portion of the lands subsequently confirmed and patented to the grantees as tenants in common.21

1 Cal. Code Civ. Proc. 753; N. Y. Code Civ. Proc. 1542; Miller v. Sharp, 48 Cal. 394; Morton v. Outland, 18 Ohio St. 383.

2 Bradley v. Harkness, 26 Cal. 69; Alsbrook v. Reed, 89 N. C. 151; Stewart v. Monroe, 56 How. Pr. 193; Sullivan v. Sullivan, 66 N. Y. 37; Therasson v. White, 52 How. Pr. 62; Byers v. Danley, 27 Ark. 77. See Wommack v. Whitmore, 58 Mo. 448; Tabler v. Wiseman, 2 Ohio St. 207.

3 Bradley v. Harkness, 26 Cal. 69.

4 Senter v. De Bernal, 38 Cal. 637; Ship Channel Co. v. Bruly, 45 Tex. 6; Hanner v. Silver, 2 Oreg. 336; Harman v. Kelley, 14 Ohio, 502; Rogers v. Miller, 48 Mo. 378.

5 Hyatt v. Pugsley, 23 Barb. 285; Kane v. Rock River Canal Co. 15 Wis. 179.

6 Noble v. Cromwell, 6 Abb. Pr. 59; 26 Barb. 475; 27 How. Pr. 289; 3 Abb. Ct. App. 382.

7 N. Y. Code Civ. Proc.

1542; Alsbrook v. Reed, 89 N. C. 151.

8 Bullwinker v. Ryker, 12 Abb. Pr. 311.

9 Rogers v. Miller, 48 Mo. 378; Ship Channel Co. v. Bruly, 45 Tex. 6; Milligan v. Poole, 35 Ind. 64.

16 Barnard v. Onderdonk, 11 Abb. N. C. 349. That the right to partition is not affected by the lapse of the period of limitation: See Jenkins v. Dalton, 27 Ind. 78.

17 Wire v. Wyman, 93 Ind. 392. In partition by an heir against the widow and other heirs, an answer setting up a conveyance by the deceased to a third person constitutes no defense, unless they connected themselves with it, and not even then, unless their possession was hostile in its inception, or they had surrendered their prior possession and entered under the newly acquired title: Knolls v. Barnhart, 71 N. Y. 474.

18 Miller v. Smith, 98 Ind. 226; Bundy v. Hall, 60 Ind. 177.

19 Tinney v. Stebbins, 28 Barb. 290; Andrews v. Betts, 8 Hun, 322. 20 Prentice v. Janssen, 7 Hun, 86.

21 Mound City etc. Assoc. v. Philip, 64 Cal. 493.

179. Partnership - Complaint.-Where plaintiffs sue as partners, their right to sue as such depends upon the existence of a partnership, which therefore is an issuable fact, and must be alleged in the body of the complaint. Thus, in an action upon notes payable to a partnership, the existence of the partnership, and that the plaintiffs are members thereof, are material

and essential facts to the plaintiffs' cause of action." And the fact of partnership, and not the firm name, is the material allegation to be proved. It is however held, that if a defendant be sued as a partner, it is competent to prove that he had held himself out to the public as a partner, without alleging that fact in the complaint or petition. But in an action against partners, upon a promissory note signed by their individual names, the complaint alleged, and the court found, that the defendants were partners, and that they executed the note, yet there was held to be no sufficient averment in the complaint that the note was executed by the makers as partners, or for a consideration which passed to the partnership.5 An assignment by one partner of the firm property, in favor of a creditor of the firm, made without the authority of his copartner, is void; and if the assignment is so made with the authority or consent of the copartner, it must affirmatively appear in the complaint of the plaintiff, or the failure to give such authority or consent satisfactorily explained, otherwise the complaint will be open to demurrer. Ordinarily, one partner cannot sue his copartners at law in respect to their partnership doings; & and a complaint in an action by one partner against another is bad, which does not allege settlement of accounts, balance struck, dissolution, nor a promise to pay." But a complaint alleging a partnership between the plaintiff and defendant, its dissolution, an accounting, a certain sum found due the plaintiff, a demand therefor and refusal to pay, and asking judgment for the amount, was held not to be demurrable, although no promise to pay the amount was alleged.10 And a complaint upon an assigned partnership account, which does not state the consideration for the assignment, and does not aver a settlement of the partnership af

fairs, is good as against these objections first made after verdict." A complaint by a partner against his copartners for a dissolution, which shows willful acts of fraud by the defendants, the application by them of the partnership funds to their own uses, the making by them of false entries upon the books, the preventing of the plaintiff from having access to such books, and the willful concealment from him of the condition of the partnership business, is sufficient for that purpose.12 The right of a surviving partner to sue for the personal property and effects of the copartnership is well settled; 13 and a complaint in such action which alleges the existence of the copartnership, the death of the copartner, and the survivorship, is sufficient.1 A surviving partner is not liable to an action by the personal representative of the deceased partner, as a general rule, until demand is made for a settlement and refused, and where a demand is necessary it should be averred in the complaint.15 15 But where the complaint shows that the debts of the partnership are all paid, and that the only remaining assets of the firm are the unsettled individual accounts of the partners, and states the nature and extent of the defendant's indebtedness to the plaintiff, on account of the firm's transactions, an averment of a démand before suit brought is not necessary to the sufficiency of the complaint.16 A partner who sues his associate for an accounting must aver and prove, if denied, an indebtedness, or at least a probable indebtedness." But it seems that he need not show whether there are outstanding claims due to or from the firm, or whether there is property owned by the firm.18 And a complaint in such action, which alleges that the plaintiff had paid on account of debts and expenses a large sum, and that upon a settlement which had been vainly sought a large sum

would be found due the plaintiff, and that the firm owned much property, its business involving a long series of transactions, is held to be good against demurrer, although it does not in terms allege that the defendant had possession of any of the partnership property, or that he had any accounts to render. 19

1 Bischoff v. Blease, 20 S. C. 460. And see Anable v. Conklin, 16 Abb. Pr. 286; 25 N. Y. 470; 32, ante.

2 Bischoff v. Blease, 20 S. C. 460. And see Irvine v. Myers, 4 Minn. 229.

3 Stickney v. Carli, 5 Minn. 486.

4 Hancock v. Hintrager, 60 Iowa, 374.

5 Freeman v. Campbell, 55 Cal. 197.

6 Welles v. March, 30 N. Y. 344; Cooper v. Bowles, 42 Barb. 88; Stein v. La Dow, 13 Minn. 413; Brooks v. Sullivan, 32 Wis. 444; Holland v. Drake, 29 Ohio St. 441; Graves v. Hull, 32 Tex. 665; Hook v. Stone, 34 Mo. 329.

7 Steinhart v. Fyhrie, Sup. Ct. Mont. 6 Pacif. L. Rep. 367.

8 See Crater v. Bininger, 45 N. Y. 545; Torrey v. Twombly, 57 How. Pr. 149; Madge v. Puig, 12 Hun, 15; Foulks v. Rhodes, 12 Nev. 225; Blunt v. Williams, 27 Ark. 374; Rainsford v. Rainsford, 57 Barb. 58. 9 Torrey v. Twombly, 57 How. Pr. 149. And see Covert v. Henneberger. 53 How. Pr. 1.

10 Mackey v. Auer, 8 Hun, 180. And see Ludington v. Taft, 10 Barb. 447.

11 Kious v. Day, 94 Ind. 500.

12 Barnes v. Jones. 91 Ind. 161. And see Howell v. Harvey, 5 Ark. 270. 13 Laby v. Ericsson, 45 N. Y. 786; Brown v. Allen, 35 Iowa, 306; Bassett v. Miller, 39 Mich. 133; Quillen v. Arnold, 12 Nev. 248.

· 14 Manning v. Smith, 16 Nev. 85; Reese v. Kinkead, 17 Nev. 447. 15 Skillen v. Jones, 44 Ind. 136; Krutz v. Craig, 53 Ind. 561.

16 Anderson v. Ackerman, 88 Ind. 481.

17 Hunt v. Gordon, 52 Miss. 194.

18 Kuehnemundt v. Haar, 14 Jones & S. 188.

19 Carlin v. Donegan, 15 Kan. 495. Compare Lang v. Oppenheim. 96 Ind. 47.

? 180. Partnership—Answer.-A denial by answer that the plaintiffs "were copartners as alleged in the complaint or otherwise," puts in issue allegations of the copartnership of the plaintiffs. In an action against several as partners, the allegation of partnership is material, and an answer denying each and every allegation of the complaint puts the partnership as well as