
    DOANE v. FLEMING, ET AL.
    Partition — no appeal in statute affords cumulative remedy — chancery has jurisdiction — address of the bill — appeal quashed.
    Appeal does not lie to the Supreme from proceedings in the Common Pleas under the partition act of 1831.
    That act is cumulative to the mode of proceeding in partition; it does not take away from chancery its jurisdiction in such case.
    Whether a case is in chancery or not, may be determined by the address of the bill to the court.
    In Partition. Appeal from the Court of Common Pleas by the defendant.
    Doane, moved to quash the appeal.
   By the Court.

These proceedings were had in the Court of Common Pleas under the partition act; 29 O.L. 254. In such cases it has been often decided that no appeal lies. None is given by the statute, and the case is not embraced in the general clause for appeals. But it is claimed that the proceedings below were in chancery, and therefore may be appealed. It is true, the partition law provides only a cumulative remedy in partition, and does not take away the jurisdiction of chancery; and it is also true, that some of the orders in the Common Pleas are worded like proceedings in chancery; but the original petition is addressed to the court as a court of law. That we think must govern, as by that the petitioner selects his tribunal. The orders in vacation are the acts of the clerk, and his notions of form will not determine the jurisdiction of the court.

The appeal is quashed.  