interfering with the service which defendant renders to the public as a common carrier of passengers. It seems to have experienced no difficulty at all in temporarily withdrawing its locomotives and cars from such service at suitable seasons, for a sufficient length of time to affix the complainant's couplings. Why it may not, in like manner, remove them, does not appear. Complainant may take decree for account and injunction. The terms of the injunction, providing from how many cars and locomotives the infringing couplings shall be removed each week, may be settled on notice; and if defendant will at that time present affidavits showing the character of the work required, the amount of its rolling stock in use and reserve, and its shop facilities, there need be no difficulty about arranging the terms of the decree; or, if it be preferred, defendant, instead of affidavits, may present its superintendent or master mechanic for examination to aid the sourt in settling the terms.

(D) Against Breach of Trust

DAVIS et al. v. BROWNE.

(Court of Chancery of Delaware, 1859. 2 Del. Ch. 188.)

Bill for the removal of a testamentary executor and trustee, and for other relief. The defendant was appointed executor and trustee by the will of Samuel B. Davis, deceased, and held a large es tate, real and personal, as executor and in trust for the children of the testator. Among the acts of the defendant alleged in the bill as ground for his removal were the sale of a specific legacy of stock bequeathed to one of the testator's sons; neglect to pay interest on a debt which was a lien upon part of the real estate held by him; unnecessary sale of the family plate at a sacrifice; that he was speculating in the securities of the estate; and that he threatened to sell unimproved land of the estate which would probably increase in value if it should be held for the cestuis que trustent. The prayer of the bill was that the defendant be removed as trustee, and be enjoined from further interference with the estate, and particularly from selling the trust property; that a receiver be appointed; and that the defendant be required to ac

count.

The complainants moved before answer for a temporary injunction and removal of the defendant.*

The statement of facts is abridged.

HARRINGTON, Ch. The ultimate object of this bill is to bring the executor and trustee of Samuel B. Davis, deceased, to an account. of his trusteeship, and to prevent his so administering the trust as to defeat the will of the testator and injure the devisees and legatees.

The object of the present motion is for immediate action, before answer, by injunction and temporary removal of the trustee. I think the case made by the bill sufficient to ground the application. It charges not merely such maladministration of the trust that it would be sufficient to rest upon the responsibility of the trustee and his sureties, but it is alleged that acts are threatened which might be irremediable.

I observe that the bill is defective in charging the defendant only as executor, in which character he is responsible to another tribunal. He should be charged as trustee.

Mr. Hood, upon leave granted, amended the bill, according to the chancellor's suggestion; and the orders moved for were then granted.

THROCKM.EQ.Jur. (2d Ed.)—36

affenied.

PARTITION, DOWER, AND ESTABLISHMENT OF
BOUNDARIES

I. Jurisdiction of Partition in Equity'

LABADIE et al. v. HEWITT.

(Supreme Court of Illinois, 1877. 85 Ill. 341.)

Bill by William C. Hewitt against James F. Labadie and others for partition. The defendants demur. Decree for complainant, and defendants appeal.

WALKER, J. It has been repeatedly held that when the general assembly gives a new remedy, by petition, under the statute, it in no wise affects the jurisdiction of the court of chancery; that the new remedy is cumulative; that the court of chancery may proceed under its original jurisdiction as though the cumulative remedy had not been given, unless limited or restricted by statute. The court of chancery has entertained and exercised jurisdiction in cases of partition from quite an ancient period. Courts of law were also invested with jurisdiction to adjudge and make partition, even before it became a source of equitable relief. After chancery assumed jurisdiction, the courts of law continued to make partition, without any change in their mode of procedure.

But the practice in the British courts of law was inconvenient and cumbersome, and our general assembly, to remedy the evil, gave a petition in lieu of the old writ of partition, and prescribed the practice thereunder. But it has never been supposed that in doing so they designed to take away the jurisdiction from the courts of chancery, or intended thereby in any degree to alter or amend the practice in that court. Hence bills have, since the partition act, been filed in chancery whenever the facts of the case have required such proceedings, and in doing so we are aware of no practice that requires the proceeding to conform to the practice of the partition act; in fact, the decisions of this court recognize the chancery practice as governing such proceedings. Chickering v. Failes, 29 Ill. 304; Kester v. Stark, 19 Ill. 328; Gregory v. Gover, 19 Ill. 608; Walker v. Laflin, 26 Ill. 472. The act of 1861 (Sess. Laws, p. 181), fully recognizes chancery proceedings as not being governed by the partition act, but being unable to avail of its provisions.

An examination of the bill in this case clearly shows that it was intended as a bill in chancery for partition. Its frame clearly shows that

1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 304-305.

to have been the primary object, and it must be considered as governed by chancery practice. That practice, in our courts, has never required such bills to be verified by oath; hence this objection was not well taken. Had the proceeding been under the statute, it would have been different, as the statute requires the oath. In other respects, the bill seems to be good in substance.

There is no force in the objection that the bill was multifarious. We fail to see in what it can be claimed to be so; but, even if it was, that objection could only be raised by demurrer, specifying it as a ground of objection. If not so raised, the objection is considered as waived; and it cannot be raised on trial or after decree rendered, though, if raised by answer, the court may or not, as it chooses, on the hearing, allow the objection. 1 Daniel, Ch. Prac. (1st Lond. Ed.) p. 451. Hence, even if the bill was multifarious, the objection comes too late.

It is next urged that the court erred by allowing Monchevant to pay for necessary repairs, to prevent waste and loss to the tenants in common. It is urged that he should have set up his claim by cross bill, or at least by answer praying relief, which would be treated as a cross bill. It is not denied that when such repairs to an estate owned in common are necessary and properly made, they become a charge. against the other tenants in common; and when one of them files a bill for partition, and in it admits the charge as correct and equitable, and asks that it may be satisfied out of the proceeds of the sale before partition is made of the money, and the other defendants demur, and thus admit the justice of the claim, no reason is perceived why the court, in adjusting the equities of the parties, should not decree its payment. Had the other defendants objected to its allowance, then he might have been required to a file a cross bill. But that is by no means certain in this proceeding, as, when the court acquires jurisdiction to make partition, it will do complete justice amongst all the parties in interest. Henrichsen v. Hodgen, 67 Ill. 179.

There was no objection that the bill did not pray the appointment of commissioners, as they were duly appointed, and examined the premises, and reported that they could not be divided without manifest injury to the parties in interest; and the act of 1861 authorized the court to sell the premises, and divide the money among the tenants in com

mon.

It is urged with much apparent earnestness that it was error to decree of the proceeds of the sale the payment of a sufficient sum to the administrator of the deceased, from whom the lands descended, to pay the debts allowed against him, which were proved up and allowed against the estate. The tenants in common held these lands charged). with the debts of the estate, and when the property could not be partitioned, and the estate had to be sold for the purpose, no objection is perceived to making such an order. It would not be just to the purchaser to have the money paid to the heirs, and leave the premises lia

ble to be again sold to pay the debts. It works no injury to the heirs, and deprives them of no right, and the premises will, no doubt, bring more to them than if they were sold subject to the debts against the estate. This is not a sale for the payment of such debts, but it is a sale that partition may be made in money, as it could not be done in land; and it is only equitable to deduct a sufficient sum from the proceeds of the sale to free it from the lien of the debts.

Had the land been susceptible of division, then the object of the bill would have been accomplished, and it would have been beyond the power of the court to have ordered the sale for the payment of the debts, but leaving the administrator to proceed to obtain an order from the county court for a sale.

The entire record considered, we fail to perceive any error for which the decree should be reversed, and it is affirmed. Decree affirmed.

(Supreme Court of Oklahoma, 1910. 25 Okl. 448, 106 Pac. 956, 27 L. R. A. [N. S.] 618, 138 Am. St. Rep. 929.)

Action by J. W. Yeoman against H. E. Julian and others. Judgment for plaintiff, and defendants bring error.

DUNN, J. This action comes to this court from a judgment of the district court of Comanche county, Two propositions are presented and relied on by plaintiffs in error for a reversal: First, it is contended that the court was without authority to decree a partition of the property involved which was personalty and held in common by the defendant in error Yeoman, who was plaintiff in the court below, and the defendants Julian, Cook, and Cassin, who appear in this court as plaintiffs in error; and, second, that the plaintiff Yeoman was without sufficient title to sustain an action of partition. We shall discuss these propositions in the order stated.

Assuming, for the purpose of consideration only, that the plaintiff had title to an interest in the property, we think there can be no doubt about his absolute right to present to the court his petition for a partition thereof, or of the jurisdiction of the court to entertain it. The property involved was a set of abstract books, and it is not claimed that they were severable and capable of being divided among the parties who were co-tenants thereof. From the evidence in the case it is clear

2 For discussion of principles, see Eaton on Equity (2d Ed.) § 309.