ceeded in 1856 to make a partition of it and to determine their own shares in severalty. To this end, those who were of age applied personally, and those who were minors applied by guardian, to the proper probate court for a partition. Proceedings were thereupon had, by which the probate court, in form at least, decreed a partition of the west half among the children. To this partition all of the children actually and willingly consented by each, either personally or by guardian, taking possession and control of his or her portion in severalty, and by mutually paying and accepting owelty sufficient to fully equalize all the allotments. In 1874 the United States surveyor-general divided the land between the widow and the heirs. and among the heirs themselves, in exactly the same manner in which they themselves had partitioned it in 1856. Under these partitions, G. H. Short, one of the minor children, became entitled to and possessed of a share of said west half known as lot 7, which is the land in controversy. He held and used that lot as his own until 1865. La that year, his guardian, acting under direction of the court of probate, sold said lot to the appellee, Schofield, for a fair price, which, under direction of the court, was applied in paying a mortgage upon the premises and other debts proved and allowed against said minor's estate. G. H. Short became of age in 1866. In 1878, twelve years after attaining his majority, during which interval he had not, by word or act, objected to any of the foregoing proceedings, he gave to the appellant's grantor a quitclaim deed of all his right, title, and interest in the said donation claim; and about the same time the other heirs gave to the appellant's grantor similar deeds of their respective interests. At the execution of these latter conveyances, periods varying from one to twenty-one years had elapsed since each one of the heirs had become of age, during which times none of them had made any objection to the various proceedings above described. Meanwhile the appellees have put upon the premises permanent improvements of great value. Held, that even if the proceedings in the probate court for the partition and for the sale were irregular, the said heirs were estopped by their long acquiescence, after attaining their majority, from objecting to the regularity and validity of the partitions which had been made, or of the sale of the land by order of the probate court; and that their quitclaims to appellant's grantor conveyed no right, title, or interest in the premises. Id.

See PUBLIC LANDS, 11, 12.

OUSTER.

See EJECTMENT, 7.

OWNERSHIP.

See LARCENY, 11; STREETS AND HIGHWAYS, 18.

PARENT AND CHILD.

See CHINESE RESTRICTION ACT, 4, 9.

PAROL EVIDENCE.

See EVIDENCE.

PARTICULARS.

See BILL OF PARTICULARS.

PARTIES.

1. AN ACTION ON A FORTHCOMING BOND MAY BE BROUGHT in the name of the sheriff, for the use and benefit of the real parties in interest, against the sureties on such bond, without joining their principal, and without showing that judgment has been obtained against the principal or that the plaintiff has exhausted his remedies against him. Wagner v. Romero (N. M.), II, 269.

2. DEFECT OF PARTIES IN ACTION AGAINST PARTNERSHIP.-In an action against a partnership a defect of parties, consisting in a failure to name the individuals composing the firm, is waived by the appearance of the defendants, without specifically objecting to the defect. Baxter et al. v. Scoland et al. (Wash.), II, 552.

DIGEST I-IV. 11

3. ASSIGNEE-REAL PARTY IN INTEREST.-An assignee of a note and account sued on is the real party in interest, within the meaning of the code of civil procedure, although the consideration for the assignment is a payment to be made to the assignor after recovery in the suit. Bassett v. Inman (Col.), II, 534.

4. "PARTY," MEANING OF.-The word "party" imports the person or persons having a joint right or liability, whether one or more. People v. O'Loughlin (Utah), I, 164. 5. FORECLOSURE OF MORTGAGE-PARTIES TO ACTION FOR.-In an action to foreclose a mortgage, after a conveyance of the mortgaged premises and the death of the mortgagor, when no judgment against the estate of the latter is asked for, it is unnecessary for the mortgagee to present the note and mortgage to the administratrix of such estate for allowance. The mortgagee may maintain such action against the grantee of the mortgaged premises alone, without serving the administratrix, as she was not a necessary party to the action. Rickards v. Hutchinson (Nev.), I, 659. 6. THE INFANT SUCCESSORS IN INTEREST OF DECEASED DEFENDANTS IN AN ACTION FOR PARTITION may be substituted for such defendants on motion, without the issuance of a summons to bring them in. Such infants may appear by their general guardians, or by guardians ad litem appointed for them, and where the record is silent as to their manner of appointment, the regularity of such appointment will be presumed. Emeric v. Alvarado (Cal.), I, 708.

7. MISJOINDER OF PLAINTIFFS IN A MORTGAGE FORECLOSURE SUIT.-In a suit to foreclose a mortgage, where, in addition to the proper plaintiffs, other parties were unnecessarily and improperly joined as co-plaintiffs, and a demurrer was interposed to the complaint on that ground, the supreme court, on appeal, may render a final judgment in favor of the proper plaintiffs, and direct the court below to amend the complaint by striking out the parties improperly joined as co-plaintiffs, with such provisions as may be necessary to protect their rights. De Celis v. Porter (Cal.), I,

575.

8. PLAINTIFF WHO IS NOT THE REAL PARTY IN INTEREST in an action on a promissory note can not assign the same so as to entitle his assignee to prosecute such action in his own name. Skewes v. Dunn (Utah), I, 628.

9. SUBSTITUTION OF A DIFFERENT PLAINTIFF WILL NOT BE ALLOWED when it would result in injury to any right of the defendant. Id.

10. SUBSTITUTION OF A WIFE AS PLAINTIFF IN THE PLACE OF HER HUSBAND SHOULD NOT BE ALLOWED, when the effect of such substitution would be to permit her to testify in her own behalf, unless such substitution is made on condition that she does not testify. Id.

11. PRINCIPALS AND SURETIES ON AN INJUNCTION BOND MAY BE SUED TOGETHER in an action for the breach of the conditions thereof, and the damages assessed and awarded in such action. Duckett v. Price (Col.), I, 495.

12. TENANTS AT WILL OF A TRUSTEE ARE NOT NECESSARY OR PROPER PARTIES in an action against the trustee to compel a conveyance of the trust estate. Reynolds v. Lynch (Cal.), I, 344.

13. HEIRS OF A DECEASED MORTGAGOR NEED NOT BE MADE PARTIES in an action against his executor or administrator to foreclose the mortgage. Bayley v. Muche (Cal.), I, 125, 263. 14. ONE TO WHOM LANDS ARE GRANTED FOR THE PURPOSE OF MAINTAINING AN ACTION connected with the ownership thereof may prosecute such action in his own name, notwithstanding there is an oral agreement between him and his grantors that upon the termination of the litigation he would reconvey such lands to his respective grantors. Smith v. Logan (Nev.), I, 391. 15. IN AN ACTION BETWEEN CERTAIN APPROPRIATORS OF WATER TO DETERMINE THEIR RELATIVE RIGHTS THERETO, another appropriator, higher up the stream, who returns the water taken by him, undiminished in quantity, before the stream reaches the appropriator whose rights are interfered with, is not a necessary party. Id. See APPEALS, 16, 31, 73; CANCELLATION, 6; CORPORATIONS, 27; FRAUD, 7-9, 15; Instr ANCE, 2; JUDGMENT, 38, 39; LEASE, 3; LIBEL; MARRIED WOMEN, 7, 8; MORTGAGE, 11, 24, 31; NEGLIGENCE, 32; NEGOTIABLE INSTRUMENTS, 1-3; NUISANCE, 11, 13, 22; PARTNERSHIP, 15; PLEADING AND PRACTICE, 32; STREETS AND HIGHWAYS, 16, 17; SUPPLEMENTARY PROCEEDINGS, 3, 4; SWAMP LANDS, 8, 9; TRUSTS; WATER RIGHTS,

20.

PARTITION.

1. PARTITION OF GRANT BY JUDGE OF FIRST INSTANCE-POWER OF, TO MAKE.-In a proceeding before the judge of first instance for the partition of land granted by

the Mexican government to several grantees within larger and unlocated boundaries, the attempt of such judge to fix the boundaries of the land granted could give no additional force to the judgment of partition. If juridical possession had previously been given, its effect would be to confine all the rights of the grantees within the limits of such juridical possession, and the judge could not, pendente lite, or by his judgment, extend their rights beyond such limits. If juridical possession had not been given, the right of the grantees or their assigns to the temporary possession of all the lands, as the same appeared from the diseño and grant, could not be extended beyond the exterior limits thus appearing. Mound City Land and Water Association v. Phillips (Cal.), I, 579.

2. SUCH JUDGMENT OF PARTITION was binding and conclusive, if at all, only with re spect to its subject-matter. It affected merely the right to the temporary possession previously held in common. The lands beyond the boundaries which the United States, as successor of Mexico, established, continued to be government property until such boundaries were established. The right of the grantees to possess the same was not an equitable right which ripened into a legal title to the same lands upon final measurement; it was contingent, and limited in time, as to the lands which should be excluded by the final measurement. Id.

3. SUCH PARTITION AS TO LANDS WITHOUT THE LIMITS OF THE FINAL SURVEY AFTERWARDS MADE had effect, even as to the parties to it, only while their occupation lasted with the consent of the government, and ceased to operate, as a whole, if it made no provision for the separate disposition of the specific portion with respect to which the rights of the grantee ultimately became perfect, when the boundaries of such specific portion were determined. Id.

4. IN ALL ACTIONS FOR PARTITION, INCLUDING THOSE PROVIDED FOR IN SECTION 760 OF THE CODE OF CIVIL PROCEDURE, BEFORE ANY PARTITION IS ORDERED OR CAN BE MADE, the interests and shares of all the parties must be determined and adjudged by the court, and also the moieties in which the land is to be divided. Such moieties must be specified in the interlocutory judgment, so that the referees appointed to make the partition may have no question of title to determine, and may intelligently discharge the duties as to making the allotments devolved on them by the decree. An interlocutory decree which fails to observe such requirements is erroneous. Emeric v. Alvarado (Cal.), I, 708.

5. EVIDENCE OF THE PETITION OF A TESTAMENTARY EXECUTOR TO THE BOARD OF LAND COMMISSIONERS for the confirmation of a Mexican grant to his testator, is admissible in an action for the partition of such grant, when offered along with a copy of the will attached to the petition, the opinion of the board confirming the claim, and the decree of confirmation. Id.

6. AN ATTEMPTED PARTITION OF A MEXICAN GRANT, THE BOUNDARIES OF WHICH HAD NEVER BEEN DETERMINED by the United States, in pursuance of a written agreement for partition, in which all the tenants in common of such grant are named as parties, is null and void when it appears that some of such parties never executed such agreement, or where a much larger tract of land was included in such attempted partition than was included within the boundaries of such giant as the same were finally determined by the survey approved by the United States courts. And the same is true of all other deeds and transactions between such parties, the object and purpose of which are to facilitate and perfect such partition, when the same is the only consideration on which they are founded. Id.

7. PARTITION-TENANCY IN COMMON-PARTNERSHIP.-A tenant in common of land is entitled to a partition, although he has never been in actual occupancy, and notwithstanding his grantor and the defendant co-tenant were copartners in the crops raised on the land. Voce v. Daveggio (Cal.), III, 491.

8. A SUIT TO SET ASIDE A DECREE FOR THE PARTITION OF LAND SHOULD BE BROUGHT in the county where such land is situated. Bent v. Maxwell etc. Co. (N. M.), III, S. 9. PENDENCY OF A SUIT FOR PARTITION IN THE STATE COURTS, such suit being in the nature of a proceeding in rem, is a bar to a subsequent suit for partition of the same land in the United States courts, brought by a successor in interest, pendente lite, of some of the parties to such former suit against the successors in interest of the other parties. Martin v. Baldwin et al. (U. S. Cir. Ct., Cal.), II, 8.

See APFEAL, 75, 76; Fraud, 15; MISTAKE, 5; MINES AND MINING, 49; OREGON DONATION ACT, 2; RECEIVERS, 1; STATUTE OF LIMITATIONS, 20.

PARTNERSHIP.

1. PARTNERSHIP, HOW CREATED ESSENTIAL ELEMENTS OF.-A partnership is a contract between two or more competent persons to place their money, effects, labor, and

skill, or some or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions. Cogswell v. Wilson (Or.), IV, 489. 2. THE SAME-AGREEMENT TO SHARE PROFITS AND LOSS.-To constitute a partnership inter se, mere community of interest is not sufficient; there must be an agreement to share in the profits and loss. Such agreement must provide for an interest in the profits as profits, and not for a mere division of the gross earnings, and such profits must be shared as the result of the adventure or enterprise, and not simply as a measure of compensation. Id.

3. THE SAME-BREACH OF PARTNERSHIP AGREEMENT-DISSOLUTION OF PARTNERSHIP. The existence of a partnership does not depend upon the fact that each of the partners has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the partnership business commenced, the partnership continues until legally dissolved. Id.

4. THE EVIDENCE REVIEWED, and held that a partnership existed between the defendant and the plaintiff's vendor. Id.

5. A MINING PARTNERSHIP IS NOT RESTRICTED TO CASES where the MINE IS OWNED by the parties working it. Such partnership may exist as well where the parties have a joint interest and co-operation merely in the working of the mine, or in carrying on mining operations, as where they own the mine itself. Manville v Parks (Col.), I, 603.

6. THE RELATION OF MINING PARTNERSHIP BETWEen the DefendaNTS, WITH RESPECT TO THE MINING OPERATIONS, for the carrying on of which the debt sued for was created, held to be established by the facts. Id.

7. CO-WORKERS IN A MINING OPERATION, TO THE EXTENT OF THEIR INTEREST IN THE PROPERTY, are tenants in common, and in the working of the mine are considered as partners. Id.

8. ONE MEMBER OF A MINING PARTNERSHIP HAS IMPLIED AUTHORITY TO BIND THE FIRM for articles purchased, essential to the carrying on of the business, and the accomplishment of the purpose of the partners in working the mine, notwithstanding there is a secret agreement between such partners by which some of them were not to be liable for the expenses of the business. Such agreement could not affect the rights of those who dealt with the partnership without any notice of the limita tion upon the individual liability of particular members. Id.

9. DEFENSE OF SPECIAL PARTNERSHIP AND NOTICE THEREOF BY THE PLAINTIFF must be pleaded, or evidence thereof is inadmissible. Id.

10. THE FAILURE TO JOIN A DORMANT PARTNER AS DEFENDANT, in an action against a partnership, can not be pleaded in abatement; and the refusal to admit in evidence the deposition of such partner, when all his acts and declarations in reference to the subject-matter of the controversy are already in evidence, is not error. Pinschower v. Hanks (Nev.), I, 369.

11. JUDGMENT AGAINST A PARTNERSHIP ON ACCOUNT OF GOODS SOLD AND DELIVERED TO IT will be reversed when the evidence shows that many of the items of such account were furnished to one of the partners individually, and that the same were included in the findings and judgment against the firm. Burt v. Collins (Cal.), I, 566. 12. PARTNERSHIP AGREEMENT REDUCED TO WRITING, BUT NOT EXECUTED by the partners, is not evidence of the terms and conditions of the partnership. Tweed v. Lowe (Ariz.), I, 658.

13. FINDING AS TO PARTNERSHIP HELD SUPPORTED BY THE EVIDENCE. Snead v. Little (Cal.), II, 496. 14. PARTNER'S INTEREST IN FIRM ASSETS-ATTACHMENT FOR INDIVIDUAL DEBT-SALE BY SHERIFF-POSSESSION--ACCOUNTING.-A sheriff may attach and sell the interest of one partner in the partnership property, for his individual debt. Upon so doing, the sheriff may take possession of the entire firm assets, and transfer such possession to the judgment purchaser, who thereupon becomes a tenant in common with the other partners. If such property is sold by the judgment purchaser, and the entire proceeds converted to his own use, he is guilty of conversion, and an action by the remaining partners for an accounting will not be held barred by the statute of limitations, unless the date of such conversion is made affirmatively to appear. Wright v. Ward (Cal.), III, 626.

15. THE SAME-ACCOUNTING-INDISPENSABLE PARTIES.-In an action for such accounting, the partner whose individual interest has been sold is an indispensable party, although he is out of the state and his whereabouts unknown. Id.

16. PARTNERSHIP--ASSIGNMENT BY ONE PARTNER.-One partner, in the voluntary ab sence of his copartner from the state, has authority to assign any portion of the copartnership property to a creditor. Bernheim & Co. v. Porter (Cal.), III, 434.

17. THE VOLUNTARY ABSENCE OF ONE PARTNER FROM THE STATE does not operate as a dissolution of the partnership. Id.

18. THE TRANSFER BY ONE PARTY OF HIS INDIVIDUAL INTEREST in a portion of the firm property does not give his transferee the right to maintain replevin therefor as against a bona fide purchaser from the firm. Id.

19. PARTNER SELLING PARTNERSHIP PROPERTY IN BAD FAITH does not make the other partner a tenant in common thereof with a purchaser who acts in good faith. Crites v. Muller (Cal.), III, 649.

20. PARTNERSHIP LANDS-SALE BY ONE PARTNER TO BONA FIDE PURCHASER.-The equitable interest of a partner in land purchased by his copartner is discharged by a transfer of the legal title by the latter to a purchaser for value and without notice. McNeil v. First Congregational soc. (Cal.), IV, 421.

21. ACTION BETWEEN PARTNERS TO RECOVER ASCERTAINED BALANCE-PLEADINGS.-An action may be maintained by one partner against his copartner for the balance found due upon a settlement of the partnership affairs. In such action no express promise to pay such balance need be shown; it is sufficient if the sum has been ascertained and agreed upon by the act of both partners. But an averment of the settlement by the plaintiff is material, and without it his complaint is fatally defective. An averment that at the time of dissolution there was in the hands of the defendant "clear profits," amounting to a sum stated, is not equivalent to an allegation of settlement. Bean v. Gregg (Col.), IV, 241.

22. ASSIGNMENT OF FIRM PROPERTY BY ONE PARTNER for Benefit of Creditors.—A voluntary assignment of all the firm property, made by one partner in favor of a creditor, without the knowledge or assent of his partner, and against his previously expressed wishes, is invalid. Wilcox v. Jackson (Col.), IV, 326.

See ACCOUNT STATED, 3; ACCOUNTING, 1, 5, 6; ASSIGNMENT FOR BENEFIT OF CREDITORS, 3; JUDGMENT, 27, 31; LIENS, 1; NEGOTIABLE INSTRUMENTS, 17, 18, 25; PARTIES, 2; PARTITION, 7; SURETIES, 12.

PATENT.

1. VERIFICATION OF PLEADINGS.-Under section 914 of the revised statutes the pleadings in an actior. for the infringement of a patent must be verified as provided in section 79 of the Oregon code of civil procedure. Cottier v. Stimson (U. S. Cir. Ct., Or.), I, 251.

2. DOUBLE PLEAS OR DEFENSES. -Both at common law and under the code special pleas or defenses may be pleaded with the general issue or a denial of the allegations of the complaint. Id. 3. DEFENSES TO AN ACTION FOR INFRINGEMENT.-The five matters which may be given in evidence upon notice under the general issue, as provided in section 4920 of the revised statutes, as defenses to an action for the infringement of a patent, may be pleaded specially with the general issue, and other defenses thereto may be pleaded specially, either with or without the general issue and such notice. Id.

4. SPECIAL PLEAS CRITICISED.-Quære: Is it sufficient to allege in a special plea that the thing patented was not marked with the word "patented," without also alleg. ing that the defendant was not otherwise notified of the infringement? and is not a plea that the thing patented was not an invention when produced by the patentee a mere repetition of the special matter that said patentee was not the original and first inventor thereof? But a defense that an invention is not useful must be specially pleaded. Id.

5. INOPERATIVE PATENT-REISSUES.-A patent need not be inoperative in its entirety to entitle the patentee to a reissue. If it be inoperative in part, so far as not to secure all that the inventor is entitled to claim, and what he is entitled to claim appears in his specifications, it is inoperative within the meaning of the provisions of the statute, and entitles the patentee to a reissue in such form as to cover his entire invention. Giant Powder Company v. Safety Nitro Powder Company (U. S. Cir. Ct., Cal.), II, 79.

6. FRAUD IN REISSUE IS A QUESTION FOR THE PATENT OFFICE.-Whether a patentee innocently or fraudulently seeks a reissue of his patent is a question of fact for the officers of the patent office alone to determine; and their decision is conclusive in a collateral attack upon the patent. Id.

7. REISSUES IN IDENTICAL LANGUAGE OF A PRIOR PATENT VALID.-The owner of patent 78,317 surrendered it, and obtained a reissue in patent No. 5,619. The latter was surrendered and reissued in patent No. 5,799, for the purpose of correcting a clerical error. Reissue No. 5,799 was held by the circuit court of the ninth circuit