Jackson, Chief Justice.
[Preston F. Patton filed his petition for a partition of land, alleging that Childs and Nickerson were tenants in common with him. They pleaded in bar of the proceeding a former one instituted by them for the same purpose, to which Patton was a party, being served by publication. The case was submitted to the presiding judge without a jury. He held that the present application was barred by the former judgment, and the petitioner excepted.]