It has been said that "required" cannot mean "requested," because there was and has been no legislation providing any special mode by which a request can be made by or for the state. But effect must be given to the language of the act which provides for a request or demand. By accepting the act and executing the agreement the defendant consented to be bound by such reasonable request as is appropriate in the cases provided for. The defendant could disregard such reasonable demand only at its own risk, and would become liable on refusing to comply with it. Thus if one claiming to be a public messenger, or the convoy of a convict or insane person, shall demand free passage, the defendant must inform itself of his real character, and for the purpose of ascertaining it may adopt reasonable rules and regulations. Practically, there can be little difficulty in carrying out the intent of the statute. Of course the defendant, under pretense of an investigation, cannot avoid its duty, or escape responsibility by requiring unreasonable vouchers, or imposing conditions which will delay or interfere with the exercise of the right of a particular applicant.

The averment that a defendant, "although often requested," like the averment of a promise, is often made where the law implies a request or promise. It is an immaterial allegation. "In point of form there are in pleading two descriptions of request, one termed a special request, the other the licet sæpe requisitus." (1 Chitty on Pleading, 16th Am. ed., 541.) Where the special request is not necessary, the licet sæpe requisitus is of no avail, and the omission of it will not vitiate the pleading. (Quimby v. Lyon, 63 Cal. 395.) This merely formal allegation cannot be substituted for a special request to be alleged and proved.

The objection that the complaint was ambiguous and uncertain was taken by demurrer, and the demurrer was sustained. The Code of Civil Procedure contemplates one demurrer to a pleading, in which may be taken any or all

of the objections enumerated in section 430. If a demurrer is overruled, it is a determination that the pleading is good as against all the objections to it; and if, on appeal, it ap pears that any of the objections was well taken, the judgment is reversed. On the other hand, if any one of the objections taken is valid, and the demurrer is sustained below, the judgment based on the order sustaining it will be affirmed. Where the order sustaining or overruling the demurrer is general, the rule cannot be questioned, and as a general order is alone contemplated by the code, any matter inserted in the order other than the decision for or against the demurrer is surplusage, and not to be regarded. In the case at bar the order is either a determination that the complaint is insufficient, or the issues of law made by the demurrer have never been determined. A decision in favor of the plaintiffs upon the supposed issues made by the objections other than the specific objection mentioned in the order cannot be implied. The party against whom an order is made sustaining a demurrer is not entitled to notice of the motive or reasoning which induced the judge to make the order. In considering the appeal from the judgment, we are to treat the order on demurrer as if it were itself directly appealable. In such case both parties could not appeal, since the party in whose favor the order was made would not be injured by it. When one of several objections to a complaint is held valid and the demurrer is sustained, and the plaintiff declines to amend, but stands upon the complaint as sufficient, he cannot be permitted to say here that an "opinion" of the judge below-or matter in the nature of an opinion inserted in the order-indicates that the judge made the correct order for a wrong reason. The question always is: Ought the demurrer to have been sustained?

Judgment affirmed.

PATERSON, J., and TEMPLE, J., concurred.

[No. 9997.

Department One.-April 30, 1888.]

THOMAS NOONAN, APPELLANT, v. MATTHEW

NUNAN, RESPONDENT.

APPEAL FILING UNDERTAKING AND NOTICE.-An appeal is properly taken when the notice of appeal is served on the 12th of January, 1885, filed on the following day, and the undertaking on appeal is filed on the 16th of the same month. PARTNERSHIP-PURCHASE OF INTEREST OF DECEASED PARTNER.-The mere purchase of the interest of the estate of a deceased partner in the partnership property does not create a new partnership between the purchaser and the surviving partner of the old firm.

ID. PLEADINGS-ACCOUNTING-TENANCY IN COMMON.-A plaintiff, who bases his right to an accounting upon an allegation of a partnership between himself and the defendant, is not entitled to such relief upon the mere proof of a tenancy in common.

APPEAL from a judgment of the Superior Court of the city and county of San Francisco, and from an order refusing a new trial.

The action was brought to establish a partnership, decree its dissolution, and for an accounting of the partnership affairs. The complaint alleged that on the 30th of April, 1867, C. M. Armstrong and Matthew Nunan entered into partnership in the business of brewing malt liquors, under the name of the Hibernia Brewery, and on the 1st of May, 1867, they leased certain premises for the purpose of the business, and as a firm erected improvements thereon; that subsequently Armstrong died. intestate, and his interest in the partnership and its effects was purchased at a probate sale by the plaintiff, Thomas Noonan, for his own benefit, he paying the whole of the purchase price; that it was understood between the plaintiff and the defendant, that if he, the plaintiff, bought the interest of Armstrong, they would henceforth be partners in the business; that thereupon, by consent of all the parties, a deed conveying the interest of Armstrong's estate in the partnership effects was executed to the defendant, but that the same was in

tended to be and was in trust for the plaintiff, and that thereafter the business was continued, with great profit, on the same premises, with the same stock, and under the same name. The complaint, after further averring the refusal of the defendant to account for the profits of the business, prayed for a decree establishing the partnership between the plaintiff and the defendant, that the same be dissolved, and that the defendant account to the plaintiff for his proportion of the profits. The answer denied all the allegations of the complaint with respect to a partnership between the plaintiff and the defendant, and averred that the purchase of the interest of the estate of Armstrong was made by the defendant for his own benefit, and not in trust for the plaintiff. The court found that the defendant made the purchase in trust for the plaintiff, but that no partnership had ever existed between them, and that the defendant was not liable to account to the plaintiff. Upon these findings judgment was rendered in favor of the defendant, from which, and from an order refusing him a new trial, the plaintiff appealed. On the trial, the plaintiff, for the purpose of showing the existence of the partnership, offered in evidence the judgment roll in an action brought by the Odd Fellows' Bank against Thomas Noonan and Matthew Nunan et al., in which the question of the existence of the partnership was in dispute, and findings thereon had been made. The court excluded the evidence, to which ruling the plaintiff excepted. The further facts are stated

in the opinion of the court.

J. C. Bates and E. J. & J. H. Moore, for Appellant.

Notwithstanding the non-existence of a partnership, the findings show that the plaintiff and defendant were tenants in common, which is sufficient to entitle the plaintiff to an accounting. (McCauley v. Fulton, 44 Cal. 362; Heinlen v. Martin, 53 Cal. 345; Quackenbush v. Sawyer, 54 Cal. 411; Stokes v. Stevens, 40 Cal. 391; Decker v.

Howell, 42 Cal. 642.) The evidence shows the existence of a partnership. (Peacock v. Peacock, 16 Ves. 49; Featherstonhaugh v. Fenwick, 17 Ves. 298; 3 Kent's Com., 5th ed., 27.)

McAllister & Bergin, for Respondent.

The plaintiff, by his pleadings having based his right to an accounting upon an alleged partnership, is not entitled to such relief upon proof of a mere tenancy in common. (Murdock v. Clarke, 59 Cal. 693; Weill v. Posten, 77 Mo. 287; Ely v. St. Louis etc. R. R. Co., 72 Mo. 416; Kuhn v. Weill, 73 Mo. 216; Bolleen v. Smith, 73 Mo. 162; Price v. St. Louis etc. R. R. Co., 72 Mo. 416; Eden v. H. & St. J. R. R. Co., 72 Mo. 213; Truesdell v. Sarles, 104 N. Y. 167; Mondran v. Goux, 51 Cal. 153.)

MCKINSTRY, J.-The notice of appeal was served January 12, 1885, and filed on the 13th of the same month. The certificate of the clerk shows that the undertaking on appeal was filed on the sixteenth day of January, 1885. The motion to dismiss the appeal must be denied.

If the facts found in the action, Odd Fellows' Bank v. Noonan et al., to the effect that the right, title, and interest of the estate of Armstrong, deceased, in the leasehold and its appurtenances were purchased from the administratrix, in the name of Matthew Nunan, but really by the plaintiff herein,-who paid the whole purchase price therefor,-for his sole use and benefit (and the decree thereupon), determined any fact which tended to establish a partnership between the parties hereto, the ruling of the court herein, excluding the judgment roll in that action, did not injure the appellant, because the court below found the same facts in the present action.

The court found all the facts in this action which the judgment roll would have proved, so far as they are relevant to any issue herein.