This action having been commenced and tried in the Marion Circuit Court, a question of jurisdiction is presented for our decision.

Section 74, Civil Code, by which the question is to be determined, is as follows: "Every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a person residing in this State must be brought in the county in which the defendant resides, or in which the injury is done."

As all the defendants resided in the county of Anderson when the action was brought the jurisdiction of the Marion Circuit Court depends upon the meaning of the words "in which the injury was done."

In determining this question the first and most natural inquiry that arises is, for what injury to the person of the plaintiff was this action brought? The affidavit was made and the warrant for the arrest was issued in the county of Anderson. But it is clear that if nothing more had been done the plaintiff could not have maintained this action in any court.

The personal injury of which the plaintiff complains and for which this action was brought is his arrest and imprisonment. That was accomplished-done in Marion county.

The action is against defendants who, it is alleged, maliciously and without probable cause procured the warrant of arrest to issue, by means of which the injury complained of was done. And, in our opinion, the jurisdiction of such an action is, in the meaning of the Code, no more determined by the county in which the criminal law may be wrongfully put in motion than it is controlled in an action for assault and battery by the place where a conspiracy may be hatched to accomplish the beating or wounding.

Necessarily every injury to the person accompanied with force must be done at the place where the person is at the time of the injury.

Wherefore, the judgment is reversed and cause remanded for a new trial as to appellee Edwards, and affirmed as to appellees, Ripy and Cohen.

Russell & Russell, Sam Avritt and Hill & Rives for appellant. P. B. Thompson, Sr., for appellees.

MCINTIRE v. McINTIRE'S EX'OR, &c.

(Filed January 29, 1885.)

Partition-Proper parties-Where an action is brought (under Civil Code, title 10, chapter 15) by a joint tenant for partition of the land, those only are entitled to be made parties who claim an interest jointly with him; those who claim adversely are not necessary or proper parties.

Appeal from Hardin Circuit Court.

Opinion of the court by Judge Lewis.

This action was instituted in the county court under chapter 15, title 10, Civil Code, by the executor of one joint tenant against another to have a tract of land held and claimed by them under the same deed divided between them.

In the petition which appellant offered to file he alleges that neither the testator of the plaintiff nor the defendant ever had a valid title to the land, but the deed under which they claim was fraudulently obtained from his deceased father, and is without consideration and void, and that he, as heir at law of his father, is the owner, and entitled to one-eighth of the land. Whether the court erred in overruling appellant's several motions to file his petition to be made a party defendant and to transfer the action to the circuit court is the question presented on this appeal.

The object of chapter 15 is to regulate proceedings for the division of land held jointly and the allotment of dower, and a person desiring a division may file in the circuit or county court a petition containing a description of the land, and a statement of the names of those having an interest in it. And when, as required by section 499, all persons interested in the March, 1885-3

property who have not united in the petition shall have been summoned to answer ten days before the commencement of the term, and the written evidence of the title to the land is filed with the petition, the court in which the action is pending is required to appoint commissioners to make the partition.

Section 23 provides that any person may be made a defendant to an action who claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of the question involved in the action.

But that section has no application to an action in the county court for a division of land, for the reason that by section 499 the persons who are required in such cases to be made defendants are specifically mentioned, being those having an interest in the land not adverse to the plaintiff, but a joint interest with him.

No other proceedings are required nor provided for by chapter 15, except such as are necessary to effectuate the division of land held jointly, or to allot dower, as the case may be.

It is true subsection 10, section 449, provides that a party summoned may by answer controvert the allegations of the petition, and contest the rights claimed therein, and in such case the action may, as authorized by subsection 11, be removed to the circuit court. But as only a party summoned is authorized by that section to file such answer, and only a person having or claiming a joint interest in the land with the plaintiff is required to be summoned, it would seem that a person claiming the land under a different and hostile title could not claim as his right to be made a party. It is not necessary to a division of the land amongst those holding it jointly that he should be a party, nor is he bound or his rights at all prejudiced by such division. Appellant has now, as he had before the judgment for the division was rendered in this case, the right to sue for the land, and, if entitled, to recover in the circuit court. Judgment affirmed.

Jas. Montgomery for appellants.

Bush & Robertson for appellees.

ARMSTRONG v. KLEINHANS & SIMONSON.

(Filed October 28, 1884.)

Trade-mark-Name of place—Injunction—Appellant used the words "Tower Place" to designate the place or store where he did businesss, and not the kind of business he did, Held-The words did not constitute a trademark, and he having moved could not enjoin the owner of the building or a subsequent tenant from continuing to designate the house as "Tower Palace."

Appeal from Louisville Chancery Court.

Opinion of the court by Judge Lewis.

Appellant, a merchant engaged in the clothing business in the city of Louisville, seeks in this action judgment requiring appellees, engaged in like business, to remove from a storehouse, No. 150 West Market street, occupied by them, a sign, "Tower Palace," denominated in the petition his trade-mark, and enjoining them from appropriating or using it by advertisement or otherwise.

The building was erected by J. G. Mathews, the proprietor, in 1871. But before it was fully completed he leased it to appellant, who took possession in November of that year, and occupied it until 1877, when he removed to a house on Jefferson street, where he has since carried on the same business.

Sometime after he left Mathews took possession of the house on Market street and used it as a carpet store until 1879, when he leased it to appellees.

Soon after appellant took possession of it a large and conspicuous open sign was placed above, but supported by a structure upon top of the building called a tower, and above the sign. was a flag, on each side of which were the words "Tower Palace." And the same words were also moulded in an iron slab used as a door sill at the threshold. Upon each side of the building, which was higher than those adjoining it, and some distance below the tower, was painted "J. M. Armstrong, Men and Boys' Clothing," and over the front door his name was put.

When appellant left the building he, without the consent of Mathews, took the sign from the tower and placed it upon the

house to which he removed on Jefferson street. But when Mathews took possession he put a new sign of "Tower Palace" where the other had been, and called his store, while he occupied the building, "Tower Palace" Carpet Store, and that sign was upon the tower when appellees got possession, and is yet there.

It appears from the evidence that appellees in advertising their business indicate the place where it is carried on as "Tower Palace, No. 150 West Market street," but describe their store as "The Mammoth Clothing Store," and the latter words, together with their firm name, are painted on the sides. of the building.

Immediately after taking possession in 1871 appellant commenced to advertise his business extensively in the newspapers and other ways usually resorted to by enterprising merchants, and succeeded in making both his business and the place on Market street widely and favorably known. And there is evidence tending to show that since his removal to Jefferson street he has lost some custom on account of the house on Market street being still designated by the nane of, and the business of appellees being advertised as conducted at, the "Tower Palace." But to what extent he has been injured by the confusion and clashing of interests caused by two houses in the same city, where the same kind of business is transacted, being called by the same name does not appear, nor is it necessary to inquire in order to determine whether he is entitled to the relief sought in this action.

The controlling question in the case is, has appellant acquired an exclusive property right to the name or sign "Tower Palace," transferable to any place of business he may occupy, or was it merely used by him while he did business on Market street as an appropriate description of the building there?

If he has a personal right to the name the use and appropriation of it by appellees in the manner they have done must be regarded as deceptive, and an unlawul injury to his business. But if, on the contrary, the name was originally intended