
    Murray and others against Fitzsimmons, Ashley, Crammond, and the President, &c. of the Bank of North America.
    
      Inpttrliiion. The pouUoa of the plaintiffs , after set-sing forth heir rihgts, stated, that F, one of the'defendants, vras seized m fee of a moiety, subject to two mortgages, to A and C,and to P, the otherdefendants. .F and P pleaded in bar, that before ^representing of the petition of the plaintiffs, A and C assigned their mortgage to P. A and C pleaded npn ienent insinvul; the plaintiff replied, confessing alllhefacts in the pleas, and praying judgment of partition; and then gave notice of a motion for judgment on the pleadings. The defendants after-wards put in general demvrrersio the replication: but the court, upon the pleadings, gave judgment as prayed for by the* plaintiffs.
    HOPKINS, for the plaintiff, moved for judgment, quod partido fiat in this cause, upon the pleadings which, in substance, were as follows:
    The petition (after stating the rights of the plaintiffs, which were not contested,) set forth, that the defendant, Fitzsimmons, was seised in fee, of an undivided moiety of the premises, subject to two mortgages in foe, granted by him, the first of which was to the defendants, Ashley and Crammond, and the second, to the other defendants, the President, fyc. of the Bank of North America. Fitzsimons and the President, &c. of the Bank of North America, (after admitting the rights of the plaintiffs, and that Ashley and Crammond had hold such mortgage as the petition of the plaintiffs alleged,) pleaded, in bar, that before the exhibition of the petition, the said Ashley and Crammond had assigned their mortgage to the defendants, the President, &c. of the Bank of North America, and concluded, by praying judgment, whether partition ought to be made, &c. The defendants, Ashley and Crammond, pleaded fiore tenent insimul, and gave notice under the statute, of the same matter as was pleaded by other defendants.
    The plaintiffs replied, confessing all the facts contained in the pleas, and praying judgment, and that partition be made, &c. and that the court would proceed to ascertain the rights of the parties to the premises, &c.
    
      Munro, contra, objected,
    that general demurrers to the replications had been filed, and that the plaintiffs were not entitled to this motion, but should have joined in demurrer, and proceeded to notice the cause for argument.
    ■The court, he observed, could not consider the demurrer as frivolous; and it might be a question of importance, whether the act for the partition of lands comprehended those tenancies in common, which are created by statute; and whether the petition of the plaintiffs should not have shown, whether this was a tenancy in common by the statute, or at common law; that as the demurrer reached to the first fault in the pleadings, that question might be raised for'the consideration of the court. He observed, further, that the replication was improper, and not authorized by the act, nor such as the court could give judgment upon ; and that the plaintiffs ought to have demurred to the pleas of the defendants.
    It was admitted that the demurrers were not filed until after notice had been given of the present motion.
    
      Hopldns, in reply,
    said that if a demurrer to the pleas were proper, yet, as the replication confessed all the facts stated in the pleas, and asked the judgment of the court, it was, in effect, the same as a demurrer ; that if enough appears upon the record, to show the plaintiffs entitled to partition, the court ought to give judgment accordingly; though this particular mode of pleading was nol mentioned in the act; and that as to the nature of the tenancy in common, it was a rule, that where an estate is alleged in general terms, it shall be intended to be an estate at common law.
   Per Curiam.

The plaintiffs may take judgment as to Ashley and Crammond, that they go without day, and recover their costs; and as to the other defendants, that the rights of them and the other parties be ascertained and determined, according to the pleadings ; that partition be made accordingly, and that commissioners be appointed, in the manner directed by the act.

Rule granted.  