similar expression, they were guilty of no vain repetition": Hargrave v. Cooke, supra.

But the doctrine that in equity, without statutory provision, partnership debts are both joint and several, is claimed by defendant in error to cover this case. This is purely a legal action; it is in the nature of assumpsit; no cause of action in equity is stated, and no equitable relief is demanded by either party. The code abolishes forms of action merely including the difference in this respect between actions at law and suits in equity, and provides a single method of pleading; it does not undertake to do away with the distinction between legal and equitable causes of action; it does not rescind the rule that the allegation and the proof must correspond; nor the correlative principle, that the judgment must follow the pleadings. To procure standing in a court of equity, and obtain equitable relief, the pleader must still state an equitable cause of action or defense. He cannot now, any more than he could before the code was adopted, obtain the benefit in a court of law of principles like the one here involved, which theretofore applied exclusively to chancery proceedings.

These remarks do not cover instances where some equitable principle has been by express statutory language or by clear implication incorporated into procedure at law. Nor do we assert that no case may ever arise wherein a party may have the benefit of a defense not presented by the pleadings, or waive objection to a variance between the pleadings and the proof and judgment. We are of the opinion that the foregoing equity doctrine does not apply to this case.

The last position taken by counsel for plaintiff in error which we shall consider is that the court erred at the trial in refusing to set aside the judgment previously taken against Ford's codefendants. The judgment which plaintiff moved to vacate was rendered over two years prior to this trial; a number of terms of the court had passed since the one at which it was entered; it was in plaintiff's favor and was given upon its application. The motion to vacate came from plaintiff and was not based upon any want or defect of jurisdiction save as hereinafter mentioned; no fraud or collusion and no irregular or improper conduct on the part of the defendants in procuring the judgment to be entered were charged.

Defendant Ford pleaded this judgment in bar in his answer to the amended complaint. To this answer no reply, demurrer or motion was filed. The application to vacate was not interposed until the trial was in progress, and until plaintiff had rested, and defendant had offered the judgment in evidence in his defense. The motion to vacate seems to rest mainly upon the ground that the judgment was rendered after jurisdiction had been divested by the filing of the petition and bond for removal to the federal court, and was, therefore, void. The record itself does not bear out plaintiff's assertion in this respect. It appears that the judgment was given and the petition and bond were filed on the same day; but the record

entry of the former precedes that of the latter, and we infer, therefore, that this was the order in which the acts took place.

It cannot be said that the judgment in question is void, even if we admit the correctness of counsel's position, that under the view we adopt as to the word'obligation, judgment on unwritten joint contracts against one joint defendant, without a determination of the cause as to the others, is irregular and void. At the time this judgment was pronounced the action was upon the promissory note. The liability upon this instrument was clearly rendered several by section 1834, ante. Under section 146 of the code we are of opinion that as the case then stood judgment might properly be taken against one defendant and the cause continue as to another.

The abandonment of the promissory note and subsequent procedure upon the original indebtedness was, as already remarked, plaintiff's own voluntary act. Plaintiff should have interposed its application for relief from the former judgment prior to the trial against Ford. But it is doubtful if this application would have availed anything had it then been made upon any ground that could truthfully have been stated. Courts have very limited discretionary power, except for a few well-known causes, to vacate or amend their judgments at a term subsequent to the rendition thereof.

No authorities need be cited to the proposition that in the absence of statute, judgments regularly entered are beyond the court's control after the term has expired.

A judgment procured by fraud, or by irregular or improper conduct of the successful party, or one entered without jurisdiction of the person against whom it is given, can hardly be said to be regularly entered.

These, therefore, constitute grounds on which, upon proper showing, courts sometimes presume to act at a subsequent time.

Section 75 of the code provides for relief from a judgment taken against a party through "mistake, inadvertence, surprise or excusable neglect. But this relief is only granted upon terms, and the showing therefore must be made in the manner pointed out by statute: if in vacation, it must be within five months after adjournment, and satisfactory reasons must be given for not applying during the term.

Plaintiff in error, as clearly appears from what we have said, was not in a position to secure the advantage of any one of the foregoing reasons or grounds in support of its motion.

We do not think the court erred in overruling the same.
The judgment must be affirmed.

SUPREME COURT OF NEVADA.

STATE, ex rel. BARNETT, v. FIFTH DISTRICT COURT.

Filed, March 24, 1884.

ADJUDICATION OF INSOLVENCY, EFFECT ON PENDING ACTIONS.-An order of the district court adjudging the defendant in a pending action an insolvent debtor and staying all proceedings against him, does not deprive the court in which such action is pending of jurisdiction, so as to make its subsequent action void.

APPEAL FROM JUSTICE'S COURT-EFFECT OF DISMISSAL-DAMAGES FOR FRIVOLOUS APPEALS. The dismissal of an appeal from the justice's court divests the district court of authority to proceed further, except to include costs on the dismissal. It cannot impose damages for frivolous appeals, nor directly, and without trial, reverse or affirm judgments brought by appeal from the justice's court.

REVIEW UPON CERTIORARI IS CONFINED to questions of jurisdiction.

APPLICATION for a writ of certiorari. The opinion states the

facts.

S. D. King, for the relator.

D. S. Truman, for the respondent.

BELKNAP, J. Brennan recovered judgment against Raphael in the justice's court for the sum of two hundred and twenty-eight dollars and fifty cents and costs, upon a moneyed demand.

Raphael appealed to the district court. The case was called for trial upon the twenty-seventh day of July, whereupon counsel for appellant moved a stay of proceedings, upon the ground that since the appeal had been taken his client had been adjudged an insolvent, under the insolvency laws of the state, by the seventh judicial district court.

The motion was denied because of the incompetency of the evidence by which the fact was sought to have been established, the only evidence being a printed slip, presumably taken from the newspaper in which the order for the meeting of creditors was published, as provided in section 8 of the act for the relief of insolvent debtors: Stats. 1881, p. 125.

A motion to dismiss the appeal was then made and sustained, and the case dismissed.

Subsequently the court took under advisement a motion for judgment for damages and costs, and two days thereafter sustained this motion, awarding plaintiff ten per cent. of the amount of the judgment rendered by the justice as damages.

Judgment was accordingly entered dismissing the appeal, affirming the judgment of the justice, with the damages sustained by reason of the appeal and costs.

Certiorari is brought for the purpose of reviewing these proceedings.

First-The relator relies upon the order staying proceeding as divesting the district court of jurisdiction.

The cases of Tufts v. Manlove, 14 Cal. 47, and Cerf v. Oakes, 59 Id. 132, are referred to as sustaining this position.

In these cases the estates of the insolvents were seized under process issued at the suits of creditors whose claims were provable on

the insolvency proceedings. The courts having jurisdiction of the proceeding acquired control of the property of the insolvents, and it was their duty to protect the assets, so that distribution could be made as required by law. In the former case it was held that notice of the order staying proceedings either to the officer or creditor was unnecessary; that the effect of the order was from the making of it, and that the proceeding was in this respect more in the nature of a proceeding in rem than in personam. If this were not so," said the court, "these proceedings might be made the means of the greatest frauds, and the statute would wholly fail in its purpose of distributing the insolvent's property, and the construction would defeat the power to allot anything to the petitioner, for if the personal service were necessary to give effect to the order, a creditor, or a few creditors, might keep out of the way of service and have the others restrained by service, and then those not served might come in and sweep all of the property": 14 Cal. 52. The general principle here acted upon affords no foundation for the idea that the proceedings in insolvency deprived the district court of jurisdiction. The subject-matter and the parties were within its jurisdiction, and the order staying proceedings did not divest it of authority to proceed so as to make subsequent action void.

The object of the provision requiring that all proceedings against the debtor shall be stayed is to preserve the estate of the insolvent for the proportionate distribution among his creditors and to protect him against needless lawsuits. The court in which the insolvency proceedings are instituted has control of the estate, and will protect it against creditors seeking to enforce the collection of their claims in any manner calculated to interfere with the operation of the insolvency law. Litigation is, therefore, in general unnecessary except to establish disputed demands.

If controversies arises which require an appeal to the courts, the law provides, at section fifteen, that not only the assignees may sue and be sued "in everything which respects the rights and actions which may belong to the insolvent or which may concern the mass of the creditors," but that "all suits brought against the insolvent prior to his surrender of the property, before the courts of other counties, shall be transferred to the court having jurisdiction in the county in which said insolvent shall have presented his schedule, and may be continued on motion and notice against his assignee."

If the assignee or debtor allows an action brought before the institution of the proceedings to proceed to judgment without this transfer or substitution, and without informing the court in some proper way of the adjudication of insolvency or of the order staying proceedings, we see no reason why the judgment should be treated as void in the absolute sense.

The district court was not bound to take judicial notice of the proceedings of the seventh district court. If the order and adjudication had been disregarded after having been proven, the action of the court would have amounted to no more than error: Bandy v.

Ransom, 54 Cal. 88; People v. Whitney, 47 Cal. 584; Pierson v. McCahill, 23 Cal. 249.

Second-After dismissing the appeal the court affirmed the judgment rendered by the justice, with damages and costs. The appeal alone had given the court jurisdiction of the case. By dismissing it the court divested itself of authority to proceed further except to include costs on dismissal, and left the judgment of the justice in full force, save as affected by the order staying proceedings.

The review upon certiorari is confined to the question of jurisdiction, and no other matter appearing in the record has been considered. It is proper to state, however, that district courts are not authorized to impose damages for frivolous appeals, nor to directly, and without trial, reverse or affirm judgment brought by appeal from justice's courts. Such cases must be tried anew: Comp. L., sec. 1643.

The judgment, beyond that of dismissal with costs, is annulled. Costs of this proceeding to be taxed against the respondent.

HAYDON V. NICOLETTI ET AL.

Filed March 25, 1884.

PLEDGEE-BONA FIDE HOLDER-NEGOTIABLE NOTE.-A pledgee of negotiable paper as collateral security is entitled to be protected as a bona fide holder to the same extent as one who becomes the absolute owner, and may maintain suit thereon in his own name, as the real party in interest. The only difference between the rights of such parties, as against the maker, is that the absolute owner may recover in full, while the pledgee, if there be equities, is restricted to the extent of his advances.

PARTNERSHIP IN NOTE, EVIDENCE OF.-A negotiable note, payable to two or more persons jointly, is not evidence that it is owned in partnership; nor is the fact that such note is in the actual manual possession of one of the payees such evidence. The evidence reviewed and held not to establish a partnership in the notes in question.

ASSIGNEE OF JOINT PROMISSORY NOTE-INDORSEMENT BY ONE PAYEE.-The assignee before maturity of a negotiable promissory note, payable to the joint order of two persons not partners, indorsed by one only of the two joint payees, takes the same subject to all the equities existing in favor of the maker, the same as though it had not been indorsed by either. Such note cannot be transferred except by the joint indorsement of all the payees.

APPEAL from a judgment of the district court of the seventh judicial district, for Washoe county, entered in favor of the plaintiff, and from an order denying defendants' motion for a new trial. The opinion states the facts.

R. M. Clarke, for the appellants.

Thos. E. Haydon, for the respondent.

LEONARD, J. Defendants appeal from the judgment and order denying their motion for a new trial.

It is alleged in the complaint that on the twentieth of December, 1878, defendant Nicoletti executed to defendants T. L. Lagomarsine and A. S. Lagomarsine his promissory notes, each for nine hundred and twenty-five dollars, payable in nine and twelve months from date, and to secure payment of the same gave a mortgage on land described. These averments are not denied. It is alleged, further,