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10 Chase vs. Savage, &c. Co., 2 Nev. 9; Gore vs. McBrayer, 18 Cal. 582; Henderson vs. Allen, 23 Cal. 519.

11 Murley vs. Ennis, 2 Col. 300.

12 Post, Ch. XV., § 193.

13 Brundage vs. Adams, 41 Cal. 619.
14 Gore vs. McBrayer, 18 Cal. 582.

15 Crary vs. Campbell, 24 Cal, 634.

16 Hughes vs. Devlin, 23 Cal. 501.

17 McGillioray vs. Evans, 27 Cal. 92; Lenfers vs. Henke, 73 Ill. 105; Conant vs. Smith, 1 Aik. (Vt.) 67; Dall vs. Confidence M. Co., 3 Nev. 531; Adams vs. Briggs Iron Co., 7 Cush. 361.

18 Strettell vs. Ballou, 2 Col. Law Rep. 122.

19 Kahn vs. Central S. Co., 11 Rep. 249 (Sup. Ct. U. S., Jan., 1881).

§ 151a. Mining partnership.--Where two or more persons own a mine jointly, or as tenants in common, there may arise between them, without special contract for that purpose, the relation of partners. This occurs where they enter into an agreement to work the property for their mutual benefit, and do work it, contributing to the expense and sharing the profits according to the interest owned by each. This kind of partnership has some incidental rights and liabilities peculiar to itself, though they are governed by the ordinary rules applicable to partnerships, except as those rules are varied by the general usage. Each partner may transfer his interest and avoid incurring future liability without dissolving the partnership.2 Neither of the partners can bind his copartner by a promissory note or contract of indebtednesss without special authority, which it is incumbent on the holder or creditor to show.3 But the law presumes that each partner has authority to employ laborers and render the firm liable for the wages of employes. Nevertheless, where there is an express agreement among the partners that all such contracts to be binding must be ratified by all, and the employe has notice of such agreement, he cannot recover in the absence of such ratification. In case of sale by one partner of his interest, it

has been held that another member of the concern may have a lien upon the partnership property for moneys advanced beyond his proportion, and notice of such lien is imputed to one who purchases while the partnership operations are in progress.5 But the retiring partner parts with his equity to have the assets of the firm, applied to the payment of partnership debts, before the individual members can be called upon. The purchaser of an interest in the property being worked in partnership, by the purchase becomes a partner, with all the rights and liabilities belonging to the relation.7 Those owning the majority of interest in the property have in general the right to control the manner of working the same, provided that the exercise of such power is necessary and proper for carrying on the enterprise for the benefit of all. In case of manifest oppression, the minority in interest may obtain relief from a court of equity. But there can be no controlling interest which will serve to force the minority into the partnership relation.9 What are commonly known as "grub stake" contracts have been held to create a mining partnership with respect to the work of prospecting and location; but the rights and liabilities thus acquired and imposed were held not to be governed strictly by the law of commercial partnerships.10 But to give the furnisher of supplies an interest in the mines discovered, the relation must be a subsisting one at the time of discovery. If the prospector has abandoned his contract and entered into similar arrangements with another, the original furnisher will be entitled to no interest in the mines discovered.11 However, the main difference lies in the absence of the rule of delectus personæ, as applied to strict partnerships. Upon this depends the right of a surviving partner to control the interest of decedent; the effect of a transfer of interest by one of the members to dissolve the partnership, and cer

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tain equities which a retiring partner may have as to the appropriation of assets to the payment of partnership debts. These incidents do not belong to mining partnerships.12 There is nothing, to prevent the forming of a strict commercial partnership in working and developing mines if the parties are so agreed, and hold themselves out to the world as such partners, in which event the business and the relative rights and liabilities of the partners would be governed in all respects as though they were engaged in any other business with the same community of interest.13 The commercial partnership would probably be the necessary consequence of the ownership of the mine by a partnership, as such; but in general the property is owned by the copartners as tenants in common, and the partnership relation exists between them only as respects the working and development of the property and the profits of such work. Each member holds his interest in his own right. The partnership concern can not acquire any additional property for him, nor impose any conditions upon his disposition or acquisition of interests. Their allegiance to the association is confined to the business-the work in which they are engaged.14 As a consequence, when either of the partners contracts with a copartner to purchase an additional interest, it only affects the company as it enlarges his interest in the proceeds of the business and increases his liabilities. There is no presumption arising from the obligation imposed upon the purchaser by virtue of the relation of partnership, that he acts for his associates.15 But where one of the partners is empowered and authorized to purchase other property as the agent of the partnership, and he undertakes to act in that capacity, a purchase in his own name would impose a trust upon him in favor of his principal.16

1 Duryea vs. Burt, 28 Cal. 569; Skilman vs. Lachman, 23 Cal. 198. 2 Skilman vs. Lachman, 23 Cal. 198; Dougherty vs. Cleary, 30 Cal.

290; Kahn vs. Central Smelting Co., 11 Reporter, 249 (Supreme Court United States, January, 1881.)

3 Škilman vs. Lachman, supra; Jones vs. Clark, 42 Cal. 180.

4 Nolan vs. Lovelock, 1 Mont. 224; Taylor vs. Castle, 42 Cal. 367. 5 Duryea vs. Burt, 28 Cal. 569.

6 Jones vs. Clark, 42 Cal. 180.

7 Taylor vs. Castle, 42 Cal. 367.

8 Dougherty vs. Creary, 30 Cal. 290.

9 Supra, § 151.

10 Boucher vs. Mulvehill, 1 Mont. 306; Settembre vs. Putnam, 30 Cal. 490.

11 Johnston vs. Robinson, 2 Col. Law Rep. 110.

12 Jones vs. Clark, 42 Cal. 180; Taylor vs. Castle, 42 Cal. 367.

13 Decker vs. Howell, 42 Cal. 636.

14 First National Bank vs. Bissell, 1 Col. Law Rep. 158.
15 Ibid.

16 Settembre vs. Putnam, 30 Cal. 490.

§ 152. Corporations.—There is very little, if anything, respecting mining corporations, to distinguish their legal status, from that of corporations organized for other purposes. The rights and liabilities of members are distinguished from those of co-tenants and partners by the same rules that obtain respecting other business corporations except as they are varied by statute. It has been held that a contract with all the stockholders by which they agree to assign their stock to a trustee is the same as a contract with the corporation. Also, that where the legitimate expenses exceed the amount authorized by the by-laws, assessments may be levied upon the stock for the payment of the same.2 Where the statute, charter or by-laws prescribe certain methods of transacting the business of mining corporations, those methods must be substantially followed in order to render the acts valid and legal. But where the by-laws were adopted by the stockholders instead of the directors, and were duly recorded in the company's books and acted on and recognized for more than ten years, they were held to be the regular by-laws of the company. And where

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the corporation was reduced to three members, a failure
to ballot for officers at their meetings was held not to
invalidate their informal election of officers.5 It has
also been held that the correctness of minutes of corpor-
ate meetings, may be impeached by parol evidence on
behalf of the corporation.6

1 Gordon v. Swan, 43 Cal. 564.

2 Sullivan v. Triunfo, &c. Co. 29 Cal. 585.

3 State v. Curtis, 9 Nev. 325; State v. Pettineli, 10 Nev. 141; State V. Wright, 10 Nev. 167.

4 State v. Curtis, 9 Nev. 325.

5 Vermont, &c. Co. v. Windham bank, 44 Vt. 489.

6 Gilson, &c. Co. v. Gilson, 51 Cal. 341.


Mining claims-Real estate.-The interest which the miner obtains by possession and location in public mineral lands is generally regarded as real estate.1 It has been held to be an estate of inheritance, subject to the laws of descent as other real property, and to partition between co-tenants, whether they hold as tenants in common, co-purchasers or partners.2 And a suit, involving possessory title, held to raise "a question of title to real property in fee," and so not subject to arbitration.3 But the federal courts will not decree partition between mining claimants unless the bill be filed by one having title. In proceedings of this kind the jurisdiction is equitable, and therefore not governed by state statutes, but the practice follows the equity rules and precedents. Where partition is authorized by state statutes, the suit must be in the state courts.4 Mining claims have also been treated as real estate in determining questions of jurisdiction, and fixing the venue in actions involving the possessory right.5 The buildings and structures erected on the claim become fixtures and pass with the freehold, precisely as in case of permanent improvements on other real property. An engine and boilers

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