O'Reilly's Adm'r v. Brady et al. during that time. If the firm had closed immediately upon the death of one of the members, the master would have disallowed any compensation for the services (in) winding up the firm; but in this case, the dividends here reported were made, admitting the charge to be one of the liabilities of the firm." The report does not purport to state the evidence which was adduced before the register; and the only exception which was taken to it, is the following: "The said complainant excepts to the report made by the register and master of this court in this case, and for cause of exception sets down the following: It will be seen by 'exhibit B' to the respondent Brady's answer, which purports to be a statement of the account of profits of said firm of Brady, Tynan & Co., that the said Brady has claimed, as a part of the expenses of said firm, thirty-five hundred dollars for office rent, and his personal services in winding up the unsettled business of said firm after its dissolution, by the death of Philip O'Reilly, complainant's intestate. Complainant would here also ask your Honor to refer to said Brady's answer upon this subject, in which he asks compensation for his individual services in winding up the business, &c. The said sum of $3,500, as claimed as aforesaid by Brady, has been allowed by the reg ister and master, as shown by his report, and for its allowance complainant excepts to said report, and asks that the same may be corrected by your Honor, as illegal and unjust." The chancellor overruled this exception, and confirmed the report; and his action in this respect is the only matter embraced by the assignments of error. J. B. MOORE and JOHN A. NOOE, for the appellant: 1. The allegations and proof must correspond. Relief can no more be granted upon proof without the necessary allega tions, than upon allegations without proof; and this rule is applicable to both bill and answer.-16 Ala. 797; 11 ib. 963; 6 ib. 518; 1 ib. 333; 3 ib. 426; 9 ib. 988; 3 Porter, 470; 4 ib. 297; 12 Vesey, 477; 2 Dan. Ch. Pr. 411. An order of reference must be founded upon, and cannot be made more exten. sive than, the pleadings and proof.-3 Johns. Ch. 587. The master should only hear evidence upon matters of account included in the pleadings.-16 Ala. 621. The rules of evi O'Reilly's Adm'r v. Brady et al. dence, which govern courts of common law, regulate proceedings in the master's office.-2 Barb. Ch. Pr. 493. Where the charges in the pleadings are specific, the inquiry is not open beyond the special matters charged.-3 Johns. Ch. 587. Evidence cannot be introduced of a matter not in issue, and the objection may be raised for the first time in this court.7 Paige, 490; 6 Johns. Ch. 567. Brady based his claim for compensation upon the ground of his "trouble in winding up the partnership"; while the master allowed it on the ground of "his continuing the trade after O'Reilly's death",—a fact which was not in issue. To have entitled him to compensation for carrying on the trade, he should have made the claim for it, and proved the value of such services.-13 Pet. 371; 3 Johns. Ch. 81. 2. The complainant's exception is not too general. It points out the error complained of; and this is all that is necessary.-8 Ala. 804; 13 Peters, 369. Even a general objection would entitle the party to the correction of error apparent on the record, as is the case here.-13 Peters, 369. When items are excepted to, it is the master's duty to certify the evidence by which the disputed items are sustained.8 Ala. 805. As he has not done so in this case, and as the report is deficient in the facts necessary to sustain the decree, it should have been set aside, even without an exception.Lang v. Brown, 21 Ala. 190. 3. A surviving partner, in the absence of an express agreement, is not entitled to compensation for continuing the trade after the death of his co-partner.-Gow on Partnership, 381; Collyer Do., 123; 1 Paige, 398; 1 Johns. 151; 3 ib. 431; 1 Vesey & B. 170; 1 Porter, 148. Without a stipulation to that effect, a partner is not entitled to compensation for conducting the trade, or for settling up the business, beyond his share of the profits.-2 Iredell's Eq. 420; 2 Dev. Eq. 481; 3 Johns. Ch. 431; 7 Paige, 483; 1 Hoff. Ch. 68; 1 Harr. 401; 2 Dev. & Bat. Eq. 123; 8 Dana, 214. It is the duty of the surviving partner, immediately after a dissolution, to settle up the business. If he continue the trade, it is at his own risk; and he will be liable to account for the profits, besides bearing all the losses.-Story on Partnership, § 343; Collyer O'Reilly's Adm'r v. Brady et al. Do., 79; 1 Hare, 253; 15 Vesey, 218; 5 ib. 539; 3 Kent's Com. 64; Equity Cases, by Parsons, 281. 4. The master's report cannot be sustained on the ground of compensation to the surviving partner for winding up the affairs of the partnership, for he was not entitled to compensation for such services.-1 Porter, 148; 2 Bouv. Inst. 133; 1 B. Monroe, 179; 2 Hill's Ch. 549; Riley's Ch. Cases, 166; 17 Pick. 519; 1 Knapp, 312. 5. The report is erroneous on its face. It is deficient in the facts necessary to sustain the decree, and should have been set aside, even without exception.-21 Ala. 192; ib. 433; 7 ib. 827; 3 Johns. Ch. 77; 6 Paige, 127; 10 ib. 496; 3 Dess. 584; 6 Vesey, 230; 9 Porter, 79; 2 Smith's Ch. Pr. 370. 6. The decree is erroneous, because it embraces matters not in issue between the parties, and not alleged in the pleadings.—16 Ala. 793; 20 ib. 768; 6 Johns. Ch. 564; Gresley's Eq. Ev. 230; Story's Equity Pleadings, § 257. WILLIAM COOPER, contra, contended, 1. That the defendant's claim for compensation, under the circumstances of the case, was properly allowed.-4 Cond. Eng. Ch. 133, 141; Collyer on Partnership, § 328; Story on Partnership, §§ 343, 349, and notes; 16 Vermont, 613; 15 Mass. 120; 2 Russ. 345; 1 Hare, 253, 265. 2. That the exception was too general and indefinite, and being certainly bad in part, was properly overruled in toto.— Darrington v. Borland, 3 Porter, 45; Wilkes v. Rogers, 6 Johns. 591; Alexander v. Alexander, 8 Ala. 797; Kirkman v. Vanlier, 7 ib. 217; Hodges v. Salmons, 1 Cox, 249; 1 Y. & Coll. 114; Green v. Weaver, 2 Cond. Eng. Ch. 204; 1 Simons, 404; 4 Paige, 382; ib. 427; 21 Ala. 433; 2 Smith's Ch. Pr. 372. RICE, C. J. (After stating the facts)-An exception to the report of a master is in the nature of a special demurrer, and the party objecting must put his finger on the error; otherwise, the part not excepted to may be taken as admitted.-Darrington v. Borland, 3 Porter's Rep. 9; Story v. Livingston, 13 Peter's R. 359; Royall v. McKenzie, 25 Ala. Rep. 364. O'Reilly's Adm'r v. Brady et al. When the only exception to a report is directed to a particular portion of it, which includes several distinct items or matters; and the exception does not point to any one of them in particular, but is leveled at all of them in mass, it may be overruled, unless the report appears to be wrong as to every one of them.-Royall v. McKenzie, supra; 2 Daniel's Ch. Pr. 1496, and notes. Conceding that the chancellor may allow an exception in part, and that he may direct the master to review his report upon grounds independent of those laid in the exception; (2 Daniel's Ch. Pr. 1496, 1501; Hoare v. Johnston, 4 M. & C. 127;) yet he is not bound to sustain an exception in part, which is bad in part. He commits no error in overruling such exception in toto, and confirming the report, in the absence of any other exception. It is unnecessary, in this case, to decide whether, where the partnership has continued for some length of time after the death of a partner, the survivor should be allowed any thing for his skill and personal services in continuing the business, or in winding up and settling it. However that may be, we consider it clear that, where a trading partnership and its business continued for a considerable length of time after the death of a partner, and his representatives elected to have a report and decree for the profits which accrued during that time, the surviving partner is entitled, at least, to an allowance and deduction for "tavern bills", and "other expenses incurred" "in the adjustment and settling up" of the affairs of the partnership.-Collyer on Partnership, §§ 199, 327, 328, and note 1: As there is nothing in the record which contradicts either the responsive statements of Brady's answer hereinabove set forth, or the report of the master, they must be taken as true; and taking them as true, the master was authorized, from what appears in them, under the pleadings, to allow to Brady at least a part of his said charge of $3,500—to-wit, the expenses incurred by him in adjusting and settling up the partnership affairs. Whether any other part of the charge of $3,500 could properly have been allowed, it is not material to inquire; for, as the exception of complainant was leveled at that charge Woosley v. Memphis and Charleston Railroad Company. as a whole, and is clearly bad as to part of it, the chancellor was authorized to treat it as bad in toto, and to confirm the report, that being the only exception to it. The decree is affirmed, at the costs of the appellant. WOOSLEY vs. MEMPHIS AND CHARLESTON RAIL- [JUDGMENT BY DEFAULT AGAINST DELINQUENT STOCKHOLDER IN RAILROAD CO.] 1. When office judgment for want of plea may be entered.-Under the provisions of the Code, in connection with the rules of practice in the circuit courts, (Code, §§ 2258-60; App. 714, 9th and 10th rules,) if the defendant fails to plead within the prescribed time, the plaintiff may have the default entered on the docket in vacation, at any time before pleas are filed, and claim the benefit thereof at the ensuing term of the court; but the defendant may plead at any time before the default is entered against him. 2. What is sufficient entry of office judgment.-An entry on the docket, in vacation, after the time for pleading has expired, in these words, "Plaintiff claims judgment against defendant for want of a plea," signed by the plaintiff's attorneys, with the date attached, and attested by the clerk, is not a sufficient entry of the default; nor is it sufficient to sustain a judgment by default at the ensuing term, after pleas are filed, although proof is made to the court that no pleas were filed when it was entered. APPEAL from the Circuit Court of Jackson. This action was brought by the appellee, to recover of William Woosley, the appellant, the amount of his unpaid subscription to the capital stock of said railroad company. The summons was issued on the 5th September, 1854, and was returnable to the ensuing September term of the court; but the summons was not executed twenty days before the return day, and the cause therefore stood for trial at the next term. At the March term, 1855, a judgment by default was rendered against the defendant, who was present by his attorneys, and excepted to the rulings of the court; and the |