evidence the book of entries made by plaintiff, as the same was incompetent, irrelevant and immaterial. The only evidence in reference to and preceding the offer of the book in evidence was as follows: "Rendered the account to Lounsberry made out against the company at the time of delivery. Charged the same in my book of entries to the defendant." The plaintiff here offered in evidence his book of original entries, wherein the said ore appeared charged against said defendant. To the same defendant objected, upon the ground that the same was irrelevant, immaterial and incompetent, and that the same could not be received in order to prove a sale from plaintiff to defendant. The objection was overruled, and the entries made by plaintiff were read in evidence, to which ruling and decision the plaintiff then and there excepted. The question here was as to the contract of sale, and the book was received in evidence to prove this contract; this was error. To make the book admissible for any purpose it should not only have been shown to have contained the original entry of the party, but also to have been an account of his daily transactions, otherwise the entry will be simply a memorandum made by the party, to which he might refer to refresh his recollection, but ought not to be permitted as evidence to the court or jury in any sense: White v. Am'ler, S N. Y., 170; 1 Phillips on Ev. 311, and cases cited; Juniata Bank v. Brown, 5 S. & R. 226. For the errors above mentioned, the order of the court below in refusing a new trial is reversed, the judgment vacated, the report and findings of the referee are set aside and a new trial ordered; the defendant to recover its costs in this court. SCHAEFFER, C. J., and BOREMAN, J., concur. 1. Company interested as plaintiff made defendant: Jones v. Bolles, 5 M. R. 444. 2. In action based on fraud the partners of defendant need not be joined where plaintiff's dealt with defendant as a single party: Leslie v. Wiley, 47 N. Y. 648. 3. A part of the shareholders in a joint stock company may sue on behalf of themselves and the other shareholders, for the purpose of compelling directors to refund moneys improperly applied to their own use: Hichens v. Congreve, 4 Russ. Ch. 562. 4. Proper parties in actions of deceit against a corporation or its organizers: Arthur v. Griswold. 7 M. R. 46; Getty v. Devlin, 7 M. R. 29, 119; Hopkins v. Roseclare Lead Co., 72 Ill. 373. 5. The corporation not a necessary party in controversies between its stockholders, concerning their mutual interests: Faulds v. Yates, 3 M. R. 551. 6. Failure to join necessary parties; insufficient excuse for such failure: Westcott v. Minnesota Co., 6 M. R. 336. 7. The cestui que trust of a mortgagee is not a necessary party to the foreclosure: New Jersey Co. v. Ames, 12 N. J. Eq. 507. 8. New parties where plaintiff assigns after suit brought: Laird v. Boyle, 2 Wis. 431; Post PLEADING. 9. Where parties are made co-defendants in tort, their joint action must be proved: Keyes v. Little York Co., 53 Cal. 724; Post TAILINGS. Contra, parties severally diverting water held jointly liable: Hillman v. Newington, 57 Cal. 56. 10 Necessary parties in partnership accounting: Clark v. Ritter, 59 Cal. 669. Parties omitted on such bill are not affected: Santa Clara Ass'n v. Quicksilver Co., 17 Fed. 657. 11. Necessary parties to bill to compel assignment of lease held by directors against the right of the corporation: Bengley v. Wheeler, 45 Mich. 493. 12. Before stockholder can sue in his own name he must show effort at relief within the corporation: Foote v. Cunard Co., 17 Fed. 46; Dimpfell v. Ohio & M. Ry., 94 U. S. 209. 13. In action to procure transfer of stock the corporation is a proper party defendant: Johnson v. Kirby, 3 West C. R. 482; 4 Pac. 458. 14. When two divert water severally a joint action can not be maintained against them: Evans v. Ross, 8 Pac. 88. 15. Refusal of nominal plaintiff to authorize suit: Kimmins v. Wilson, 2 M. R. 159. COLEMAN V. COLEMAN. (19 Pennsylvania State, 100. B. & W. L. C. 260, Supreme Court. 1852.) Waiver of right to part. The right of partition is a beneficial incident of tenancies in common, but it may be waived by agreement of the parties in interest. 2 Agreement barring partition of Cornwall cre hanks-Faults. In 1787 tenants in common of certain lands, furnaces and forges of irregular deposits of iron ore unequally distributed over three contiguous hills the deposits differing greatly in quantity and quality in the several places where they were worked, broken in continuity by faults, and showing indications of the possibility of concentrating as they descended from the different points open on the surface, by articles of agreement jointly, appointed arbitrators to make partition of all the lands except the "mine hills" containing these deposits. Upon a previous effort to make partition of all the land, the arbitrators had reported that no just and equal partition of these ore deposits could be made. Upon the report of the latter arbitrators under the agreement amicable actions of partition were entered, and the court decreed accordingly, parting all the lands except the Bingham tract with forty acres adjoining, and the Cornwall ore banks, of which it was decreed by the court that they do still remain undivided, to be held by the parties as tenants in common according to their respective shares, and to the covenants and articles in the said agreements. The said agreements "had not only provided for partition of part of the land, but also that the ore banks not parted should remain together and undivided, and declaring it to be the intent of the agreement that neither of the parties should interrupt either of the other parties at any mine hole by them opened, and occupied for the purpose of raising iron ore. Under this decree the original owners, their heirs and assigns, worked the mines until 1851. In that year partition was sought, but the Supreme Court held, that the partition made in 1787 by the agreement of the parties in interest and decreed upon by the court, was binding on their successors in the title, not only because of the judgment of the court under which they claim, but because the covenants in the agreement of 1787 were real and ran with the land, though the words "heirs and assigns" were not used. Even if the covenants did not so run with the land as to give a right of action to an heir or alienee, they would serve to defeat this action for partition. The agreement of 1787 and the judicial proceedings had thereon constitute a bar to this action. Partition not set aside as to single tract. The continuance of the mine hills in common after the covenants between the parties and the decree of the court became the consideration for submitting to the partition of the rest of the estate. The implied warranty which attends partition 1 Avery v. Payne, 12 Mich. 540. 2 Blewett v. Coleman, 11 M. R. 160; note, 3 M. R. 434. attached in this case; and if what was done as to the mine hills were to be overthrown, it would destroy the whole of the partition. If the rest of the estate be held in severalty by virtue of the partition, by virtue of the same proceeding the mine hills are to be held in common. Covenant not to part. The words contained in said agreement "shall remain together and undivided as a tenancy in common," construed to mean a tenancy in common not for the present nor forever, but as long as the objects and purposes of the covenant in which they occur are in process of fulfillment, and so far they bar the action of partition. Error to the Common Pleas of Lebanon County. The writ in this case issued to the Court of Common Pleas of Lebanon County, to remove the record and proceedings in a certain action of partition wherein Robert Coleman and George Dawson Coleman were plaintiffs, and Robert W. Coleman William Coleman, Edward B. Grubb and Clement B. Grubb (plaintiffs in error) were defendants, and in which Henry P. Robeson and Clement Brooks were admitted to defend pro inter esse sui but not to become parties. PEARSON, J., directed a judgment quod partitio fiat to be entered, in consequence of which this writ of error was sued. The plaintiffs Robert Coleman and George D. Coleman, brought the action of partition to August term, 1851, to have partition made of three contiguous hills in Lebanon county, usually known as the Cornwall Ore Banks and Mine Hills, and severally known as the big mine or large iron hill, the middle hill and the grassy hill. From these ore banks the respective furnaces of these parties, and of those under whom they claimed, had been supplied with ore for above fifty years. The ore banks and mine hills consist of three hills, separated by narrow valleys, and containing in all about one hundred and eight acres. The surface land is uncultivated and of little value, but it is underlaid by a deposit of apparently ore, which is not equally distributed under the surface of the ground. It was alleged that the ore in the different hills is of different qualities or kinds, and that the iron ore in the same hill differs in quality. large quantities of iron The plaintiffs, in their declaration, alleged these ore banks and mine hills to be held together and undivided between the plaintiffs and defendants, setting out the courses and distances of the ore banks, and that the plaintiffs were entitled to have fifteen forty-eighth parts, and the said Robert B. Coleman and William Coleman to have twenty-five forty-eighth parts, and the said E. B. Grubb and C. B. Grubb to have eight fortyeighth parts; the whole into forty-eight parts to be divided; and the plaintiffs demanded partition thereof accordingly. On 10th September, 1851, R. W. Coleman and W. Coleman plead non tenent insimul; E. B. and C. B. Grubb plead the same. Robeson and Brooke, by their counsel, asked leave to become parties and to plead pro inter esse sui; their interest in the premises being set out in their statement. The court permitted them to appear by counsel and be heard, so as to defend their interest in the premises, but not to become parties to the proceedings. Various other pleas were filed, and also demurrers to special pleas; but the court directed all to be stricken off, and the case to be tried on the general issue. For the material facts as set out in the special pleas, and as disclosed by the evidence, see the opinion of Woodward, J. A jury was called, and under the charge of PEARSON, J., on 12th April, 1852, rendered verdict for the plaintiffs, that they have partition of the premises demanded in their writ, except as to a house and lot of ground, as to which proof had been given that it was held adversely by one of the defendants. Judgment guod partitio fiat was entered. Error was assigned to the judgment of the court, and to other matters. REYNOLDS, WEIDMAN, and MEREDITH, were for plaintiffs in error. HUGHES, KUNKEL, and PENROSE, for E. B. and C. B. Grubb; MCCORMICK and PENROSE, for Robeson and Brooke. KLINE and MORRIS were for R. Coleman and George D. Coleman, plaintiffs below and defendants in error. The opinion of the court, filed September 9, 1852, was delivered by WOODWARD, J. par The principal ground of defense against this action of tition is found in the agreement of 30th August, 1787. It is |