None of the objections taken by the respondent are sufficient to defeat this proceeding.
*143The debt, and the lien for its security, accrued to the copartnership. All proceedings for enforcement of the claim must be had in the name of the copartnership, notwithstanding its dissolution and the assignment of his interest by one copartner to the other. The remaining partner takes all the rights of the firm, and may exercise them in the name of the firm, for all purposes necessary for their enforcement and for closing up the joint business. The demand was properly made therefore by Busfield in the name of the firm; and the statement that the whole interest belonged to himself does not injure its effect. Notice of a claim with a request for payment is a demand.
The jurisdiction of the magistrate is not limited by the amount of the claim, nor the value of the property. No other court has jurisdiction except by appeal. It is a special proceeding, authorized by statute, and given exclusively, in the first instance, to a justice of the peace or police court.
The summons, which was served upon the respondent as required by the statute, contained a notice to him, as owner of the property, to appear, “ to show cause why the prayer of the petition should not be granted,” and recited the substance of the petition. The proceedings were therefore properly instituted.
The objection on the ground of delay is without foundation. The respondent might have paid the debt and claimed the property at any time, if he had seen fit to do so. Until the adoption of the General Statutes, the creditor could do nothing with the property but to hold it, and wait for the debtor to redeem. Doane v. Russell, 3 Gray, 382. The statutes prescribe no time within which the proceedings for a sale shall be prosecuted.
The objection that the work conferred no additional value to the machine is not sustained by the agreed facts; and besides, the work having been performed according to an agreement with the respondent, as reported by the auditor, the plaintiffs are not responsible for its failure of success.
It was not necessary that the agreement should be in writing, nor that any previous notice should be given to the respondent, nor recorded in the town clerk’s office. This lien exists only with and depends upon possession by the claimant, and may be created “ by reason of any contract, express or implied.”
*144The objection to the item “balance due on settlement,” if taken seasonably, might have required a more particular statement, previous to the hearing before the auditor; but it cannot avail here. And we think the lien attaches for all expenditures, including cost of materials as well as labor.
Neither “ a just and true account,” nor “ a description of the property intended to be covered by the lien,” is necessary, as they are in the case of a mechanic’s lien, where the claim is to affect property not in the claimant’s possession, and must be recorded for the information of third parties. A demand only is required by the statute, as a preliminary to the proceedings for a determination, by the magistrate, of the claimant’s right to have an order for a sale of the property. In this case the demand was for a sum considerably larger than that reported by the auditor. The petitioners appear to have made the demand for the whole balance of their account, which included work and materials for which they had no lien. The auditor rejects all such items, and leaves the whole credit side of the account to stand against the items which he allows as covered by the lien. As no reason is assigned for this application of the credits, we may infer that it was done inadvertently. If the other items of the petitioners’ account were justly due, though not covered by the lien, and the respondent did not, at the time of making the payments, indicate his purpose to appropriate the payments specially to any part of the debt, it was the right of the petitioners to make the appropriation first to such other items, and demand the whole balance under their lien; provided it did not exceed the amount expended upon the property which was the subject of the lien.
Upon the facts reported by the auditor we can neither say that the petitioners are entitled to recover- the whole balance of account under their lien, nor that the demand was bad by reason of an excessive amount being claimed. These precise questions have not been argued before us, nor has the latter been raised by the respondent apparently in any stage of the proceedings. By the agreement of the parties the court is to “ enter such judgment as it sees fit ” upon the facts presented. It *145appears to us therefore that the judgment of the superior court should be affirmed, and an order issued for a sale of the property for the amount reported by the auditor, with interest and costs.