to be shared in the proportion stated in their agreement. The objects of a voluntary association of brokers do not, however, involve any such combination, or any communion of profits from the business transacted by the members. Like a business club, its principal object is the promotion of the convenience of its members by furnishing facilities which aid them in doing their business, and are, therefore, of benefit to them. It may be said, however, that the rights of the associates are not substantially different from those of partners, so far as their rights in the property of the association are concerned. The interest of each member in the property of the association is equal, but it is subject to the constitution and by-laws, which are the basis on which is founded the association. They express the contract by which each member has consented to be bound, and which measures his duties, rights and privileges as such.

It seems most clear to me that this constitution and the by-laws derive a binding force from the fact that they are signed by all the members, and that they are conclusive upon each of them in respect of the regulations of the mode of transaction of his business, and of his right to continue to be a member. Whatever are the rights acquired by a member and created by his admission to membership, the rules by which the membership is created or dissolved, and which control the affairs of the organization and the relations of members, entered into those rights when created and remained a part of them. In this proposition there is nothing against public policy, for the reason that whatever a member acquires is subject to the self-imposed condition that his title and the rights which accrue from his membership are regulated by, and are dependent upon, the laws adopted by the association, and expressly consented to by him when he joined. When Des Marets, plaintiff's assignor, joined the exchange, it may be perfectly true that he acquired property; but it was property given by the act of those who, in giving it, accompanied the gift with conditions which were incident to and a part of the property; and it was in no sense property created by the individual's act. I consider that there is an obvious distinction between property of the individual's own creation, to which he attaches conditions, or in the disposal of which he exerts a direction, whereby the claims of others are affected, and property which comes to him subject to conditions which may deprive him of its use or enjoyment. And so here, if the constitution, which forms the basis of this association, appropriates to his creditors in the association, or to any of its corporate objects, the peculiar property of the member, who, by force of constitutional provisions, has lost his membership, that was an incident entering into his title to it. When membership and the rights belonging to that status were conferred upon him, the gift was accompanied by a condition that the rights, of whatever nature, should revert to the association upon the happening of certain events, and he can not be heard to complain; nor can third persons, claiming to derive under him. He should be held to his contract, which was reasonable, and when entered into prejudiced no rights of others, nor conflicted with any statutory or common-law

right. A person acquires by his admission to membership only such rights as the constitution and by-laws of the association give him; and upon ceasing to be a member, by the competent judgment of the governing committee, he ceases to have any further concern or interest in the association, except it is given by its laws.

The New York Stock Exchange, by the accumulation of a great fund from a large membership, by the wise and successful management of the members, and by the acquisition of valuable facilities for the transaction of business, has given to membership an important pecuniary value. It is fair to presume that this prosperity and success were, in an important degree, due to the regulations adopted looking to the conduct by a member of his business, and the restraints imposed upon reckless or dishonest methods. Membership may be property; but it is not property in every sense. If it is property, it is incumbered with conditions when purchased, without which it could not be obtained. (Hyde v. Woods, 94 U. S. 523.)

By the constitution of this association, the powers of government are vested in a governing committee, whose decision, after the trial of a member for offenses under its laws, is final. Standing committees are appointed by them, and the committee on insolvencies is charged with the duty of immediately investigating every case of insolvency and of reporting whether the same was occasioned by reckless dealing or by doing business for improper parties. Should the governing committee, upon this report, determine that a member's failure was caused by doing business in a reckless and unbusinesslike manner, he may be declared ineligible for readmission by a majority vote of the entire governing committee. By section 2 of article 13 of the constitution, it is provided that "in every case where a member is deprived of his membership, or declared ineligible for readmission by the governing committee by reason of any offense against or under the laws of the exchange, his membership may be disposed of forthwith by the committee on admissions."

The plaintiff, appellant, contends that in such a case as this of Des Marets' severance from membership, there was no power under the constitution to distribute the proceeds arising from the sale of his membership, and that, in the absence of some express reservation of the right to dispose of those proceeds, they are the property of the member. The vice in plaintiff's argument is in the assumption that a member has any absolute property of his own in such a case. As we have before seen, the rules of the association were an incident to the rights acquired by a person upon admission; and one of those rules was that for conviction of an offense against or under the laws of the exchange, a suspended member might be deprived of right to readmission to membership. When expelled he ceases to have any interest in the association. His privilege to transact his business at that place has been lost. The association may fill the vacancy caused by his expulsion, or not, as they please. They can not be compelled to do so; but if they elect to admit a new member, and can derive, from so doing, any profit, that is their unquestionable right, with the

exercise of which others are not concerned. They may do with their own as they like. As I construe section 2 of article 13, above cited, its effect is that of an express reservation of the right to deprive a member, found guilty of an offense under its provisions, of all rights, interest and claim whatever.

The right is given to a member in good standing to propose for admission in his stead some one acceptable to the committee on admissions, and any profit he derives from his negotiations with the candidate is his. So if a member becomes honestly insolvent and fails to qualify under the rules for readmission, or if he dies, after the claims of the association are discharged, the proceeds may be paid to him or his legal representatives, as the case may be. But in the case of a member who, by misconduct.cognizable by the laws of the association, forfeits his right to continue to remain a member, there is reserved by the constitution the right to dispose of his membership. These rules are reasonable, and do not contravene any rule of public policy, and having been consented to by the plaintiff's assignor, deprived him. of any interest or rights in the association, of which he had ceased to be a member. These views lead to an affirmance of the judgment appealed from.

All concur.

Judgment affirmed.

Note. See Board of Trade of Chicago v. Nelson, 162 Ill. 431, 53 Am. St. 312; American Live Stock Co. v. Chicago Live Stock Exchange, 143 Ill. 210, 32 N. E. Rep. 274; Green v. Board, etc., 174 Ill. 585, 51 N. E. Rep. 599 (and see Evans v. Phil. Club, infra, p. 1165, and note).

Sec. 34. (5) From cost book mining companies.

SKILLMAN v. LACHMAN ET AL.1

1863. IN THE SUPREME COURT OF CALIFORNIA. 23 California 198-208.

Appeal from the county court, Nevada county.
The facts are stated in the opinion of the court.

CROCKER, J., delivered the opinion of the court-NORTON, J., concurring, and COPE, C. J., concurring specially.

This is an action upon a promissory note for $102, with interest at 3 per cent. per month, against the defendants, as members of the "Gold Hill Company," originally brought before a justice of the peace, where a judgment was rendered against the defendants, from which they appealed to the county court, where judgment was again rendered against them for $260.46 cents, besides costs, that sum being the principal and interest of the note, and from which they appeal to this court.

1 Arguments and opinion of the court on question of jurisdiction omitted.

The principal point raised by the appellant is that the owners of the claim are tenants in common and not partners; that Sprout was one of the owners, and that one co-tenant can not bind his co-tenants by a note given in the name of the company. This question of the relation which exists between persons owning several interests in a mine, and engaged in working the same, is a very important one. Whatever may be the rights and liabilities of tenants in common of a mine not being worked, it is clear that where the several owners unite and co-operate in working the mine, then a new relation exists between them, and, to a certain extent, they are governed by the rules relating to partnerships. They form what is termed a mining partnership, which is governed by many of the rules relating to ordinary partnerships, but which has also some rules peculiar to itself-one of which is that one person may convey his interest in the mine and business, without dissolving the partnership. (Ferreday v. Wightwick, 1 Russ. & Mylne 49.) Still, there may be a partnership in the working of the mine, subject to the rules relating to an ordinary partnership in trade. (Story on Part., § 82.) And this relation of partnership may be constituted either by express stipulation or by implication deduced from the acts of the parties. (Rockw. on Mines, 575.) But in the case of an ordinary mining partnership, something more will be required to raise the presumption of liability arising from persons holding themselves out to the world as partners than would be necessary in the case of an ordinary partnership. Such persons, in the absence of other circumstances, can not fairly be presumed to have intended to render themselves liable to all consequences of a commercial partnership. (Rockw. on Mines, 575.) The same author concludes his examination of this question as follows: "If the works are carried on by persons as mere owners of land, concurring in a general system of management for their common benefit, the shares of each person will only be liable for his individual engagement, and to the payment of debts contracted by himself, or his authorized agent, without interfering with the shares of the other tenants in common." (Rockw. on Mines, 579.)

There have been several decisions relative to the rights and liabilities of shareholders in mining companies to the public and among themselves, which it may be well to examine. In the case of Vice v. Lady Anson (7 B. & C. 409), which was an action for goods sold and materials furnished for working a mine, in which the defendant held one share, evidenced only by a certificate issued by the secretary of the company, the plaintiff, at the time he furnished the goods, had no knowledge that she was a shareholder. She had paid the deposit on some shares, and had spoken and written of herself (in private letters) as a shareholder of the company. The judge held that the plaintiff did not actually give credit to the defendant, and was not misled by her, and that she never held herself out to the world as a partner, and therefore she could only be chargeable on the ground of being really interested. The fact that she thought she had an interest did not make her interested; and he held that the certificate conveyed no interest in the mine, and therefore she was not liable. The correct

ness of this decision, that it was necessary to prove a conveyance of an interest in the mine, has been doubted.

The case of Dickinson v. Valpy (10 B. & C. 128) was an action by an indorsee of a bill of exchange, drawn and accepted by a mining company, against the defendant as a member of the company. The defendant had applied for and obtained shares in the company, on which he had paid several installments. The business of the company was transacted by a board of directors, and the bill had been drawn and accepted in pursuance of a resolution passed by them. It was held necessary for the plaintiff to show that the directors had power to bind the shareholders by drawing bills of exchange; and for that purpose, evidence should have been given of the nature and character of the business of the company, to show that in order to carry into effect the purposes for which it was instituted the drawing and accepting of bills was necessary, or to show from the practice of similar companies that it was usual to draw such bills. It was also held, that although in ordinary trading partnerships the law implied that one partuer had power to bind another by drawing and accepting bills, yet that rule did not apply to mining partnerships, without showing that it was necessary to carry on its business.

In Judson v. Bourne (6 M. & W. 461), it was held that the members of a mining company have authority by law (in the absence of any proof of a more limited authority), to bind each other by dealings on credit for the purpose of working the mines, if that appears to be necessary or usual in the management of the mines. In Hawtayne v. Bourne (7 M. & W. 595), the managing agent of the mining company had borrowed money from a bank to pay debts due to laborers who had levied distress warrants upon the materials of the mine, and it was held that there was no rule of law that such an agent could, even in case of an emergency suddenly arising, raise money and pledge the credit of his principals for its repayment; that the authority of the agent was only that he should conduct and carry on the affairs of the mine in the usual manner, and there was no proof of express authority to borrow money, or that it was necessary in the ordinary course of the undertaking.

A joint-stock company was formed to work a mine, in which the defendant became a shareholder and took part in its proceedings. The prospectus, issued on the formation of the company, stated that all supplies for the mine were to be purchased at cash prices, and no debt was to be incurred, and the scrip certificates also bore an indorsement to the same effect. The plaintiff supplied goods for the necessary working of the mine on the order of a resident agent appointed by the directors to manage the mine, which was the customary course in such concerns. Held, that the defendant was liable to the plaintiff for the price of such goods, notwithstanding the statements in the prospectus and certificates, unless it were shown that the agent had, in fact, no authority from the defendant, and that the plaintiff had notice thereof. (Hawkin v. Bourne, 8 M. & W. 703.)

Where a defendant is charged with a debt in an action for work and