31.  The  court  may,  at  its  discretion,  in  an  action  on  contract,
render  judgment  against  a  part  of  the  defendants  and  continue  as  to
others.    Patten  v.  Shanklin,  14  B.  Mon.  17.
32.  An  equitable  action,  against  a  non-resident,  does  not  stand
for  trial  until  ninety  days  after  the  pleadings  ought  to  have  been
completed.     Harris  v.  Adams,  2  Duv.  143.
33.  If  the  case  presented  be  one  exclusively  cognizable  in  equity,
and  it  be  commenced  as  an  ordinary  action,  the  plaintiff  should
amend  his  petition  and  move  to  transfer  it  to  equity.  Cobb  v.
Stewart,  4  Met.  256.
b.    On  the  trial.
1.  It  is  too  late,  in  an  action  against  a  personal  representative,
after  the  evidence  is  concluded,  to  object  that  the  demand  had  not
been  proved  and  demanded  before  the  suit  was  brought.  Thomas'
Ex'rs  V.  Thomas,  15  B.  Mon.  184.
2.  The  court  may,  at  its  discretion,  in  an  action  on  contract,,
render  judgment  against  part  and  continue  as  to  others.  Patten
V.  Shanklin,  14  B.  Mon.  17.
3.  If  a  plaintiff,  in  an  action  for  the  recovery  of  land,  shows
himself  entitled  to  recover  any  part,  he  should  have  judgment  for
that  part;  although  he  may  fail  to  show  title  to  all.  Dickerson  v.
Talbott,  14  B.  Mon.  63,  64;   Young  v.  Adams,  14  B.  Mon.  132.
1  Since  this  dsoision  the  legislature  has,  by  act  approved  March  2,  1860,
Myers'  Supplement,  552,  enacted  that  a  witness  shall  not  be  exempt  from
attending  court  out  of  his  county,  by  reason  of  the  failure  of  the  party  sum-
moning him  to  pay  or  tender  his  traveling  expenses,  unless  the  witness,  at  the
time  of  being  summoned,  demands  the  same.
