The right of a shareholder in a mine to assign his share, so as to constitute the assignee a partner with the other shareholders, does not seem to have been always recognised. Thus, in Jefferys v. Smith (a), Lord Lyndhurst seemed to admit the power of the remaining shareholders to refuse to accept the assignee as a partner; the express point, however, did not arise in that case. In a previous stage of the same cause (b), the opinion of Lord Eldon was in favour of the right of the assignee. In a late case (c), the express point came before Lord Abinger, and his Lordship held clearly, that the delectus persone has no place in mining partnerships; that a shareholder, therefore, may assign to whom he pleases, and that the assignee thereupon becomes partner with the other shareholders, that is to say, may call the other shareholders to an account; for, practically speaking, as the whole concern is generally intrusted to a manager, the right to an account is the leading privilege of a partner in a mine.

In the same case, Lord Abinger held it to be unnecessary for a mining partner, in praying for an account in equity, to pray for a dissolution; inasmuch as his power to assign is, as far as regards himself, a power of dissolution.

As to the effect of bankruptcy, we may here remark, that although, if one of several miners become bankrupt, the partnership accounts may, in a Court of equity, be taken as in the case of an ordinary partnership, yet, in a Court of bankruptcy, it is otherwise; because the accounts there taken of the partnership depend on the hypothesis that the partnership has been dissolved by the bankruptcy (d).

II. 2. Another point which demands our attention is that of the rights of mortgagees of mining shares. It was strenuously argued in a late case (e) that whatever were the rights of absolute assignees of mining shares, mortgagees had no rights but those of mortgagees simply; and, consequently, that a mortgagee in possession of shares could not file a bill against the other shareholders for an account. Lord Abinger, however, held, that, as regarded all other persons but the mortgagor,

(a) 3 Russ. 169.

(b) 1 Jac. & Walk. 301.

(c) Bentley v. Bates, 4 Jurist, 552.

(d) Ex parte Broadbent, 1 Mont. & A. 635.

(e) Bentley v. Bates, supra.

the mortgagee stood in the same position as any absolute assignee of shares, and, consequently, that he could maintain such a bill. It may be remarked, also, that in the case of Rowe v. Wood (a), Lord Eldon seemed clearly to recognise the right of a mortgagee in possession to become partner, subject to the question in what manner the accounts were to be taken between him and the mortgagor, and subject to the rights of the mortgagor, as partner as well as mortgagor.

The substance of the doctrine to be gathered from the lastmentioned case is this: that a mortgagee in possession of mines is not bound to spend more upon them than a prudent owner; but that, if he become partner, the management must be considered with reference to the benefit of the other partner, as well as to the rights of the mortgagor and mortgagee; and that the mortgagee, though his mortgage be unsatisfied, cannot wholly exclude his partner from interference in the partnership. That, although, on the one hand, a Court of equity will not deprive the mortgagee of his possession by appointing a receiver, unless it be clearly shewn, and that almost by his own admission, that he has been fully paid; yet, on the other hand, the mortgagor, subject to the equities which may ultimately be declared between the parties, has a clear right to insist that regular accounts shall be kept of all receipts, payments, and transactions relative to the mine, and to have constant access for the purpose of inspecting the accounts: that, subject also to those equities, he has a clear right to controul the working of the mines; and that, if he is impeded in the exercise of any of these rights, he may receive relief in a Court of equity.

II. 3. As the shares in a mining partnership are assignable at the will of the owner, it follows that a Court of equity will entertain suits for the specific performance of an agreement to purchase or to sell such shares. It has been held, that a purchaser of a share in a mining business does not waive objections to the title, by taking possession of the property, and acting as a partner, when the contract stipulates that a good title shall be made by a specified day, and it appears to have been the intention of the parties that the purchaser should im

(a) 2 Jac. & Walk, 559.

mediately, and before that day, have the possession (a). And where, upon the bill of a vendor against the purchaser, charging gross mismanagement, specific performance of a purchase of a share in mines is refused for want of a good title, the Court, upon a record so framed, will refuse to direct accounts or inquiries as to the defendant's possession or management of the property, with a view to ascertain whether any and what sum ought to be paid, or compensation made, by him to the plaintiff (b).

III. The mutual rights and duties of mining adventurers must be determined by the general rules of partnership. And, although the shares of each are separate, and some possess a greater number of shares than others, yet a contract is implied between them that the concern is to be carried on in a practicable and feasible way. Therefore, all ought to work jointly and equally, or they ought to appoint a manager to conduct the business for them. Lord Eldon, referring to the collieries in the north, observed-"In my country, where there are frequently twenty owners of the same mine, if each is to have a set of miners going down the shaft to work his twentieth part, it would be impossible to continue working the mine (c).

However, if the partowners of a mine cannot agree to appoint a manager, a Court of equity will manage it for them. And, generally, where disputes arise between the miners, of such a

(a) Stevens v. Guppy, 3 Russ. 171. (b) Ibid.

(c) 1 Jac. & Walk. 302. On this subject, so far as it affects the mining laws of Spain and her Colonies, see Vol. 1, p. 187, of the Commentaries of Gamboa, as translated by Richard Heathfield, Esq., of Lincoln's Inn. "In deep mines," says the learned jurist, "admitting of a variety of works, we have occasionally met with instances where the partners have agreed to work the mine by regions; so that one should work in one direction, and the other in another; or where they have taken it in turn to work upon the vein at alternate periods of time.

Neither of these plans is free from inconvenience; the first being inconvenient from the thefts and disputes of the workmen and labourers; and the second, from the parties being apt to work out the vein, and cut away the pillars of support, in order to make the most of their time; yet they serve to quiet disputes between the owners; and the latter plan, that of working alternately, is a correct and legal one, as may be seen by the text of Ulpian (Dig. lib. 23); for, as the result is uncertain, and the chances of each party are equal, there can be no objection to its justice or legality."

nature as to require judicial interference, a Court of equity, as we have before mentioned, will apply the same remedies as are usually adopted in partnership matters. Therefore, if need be, it will decree a dissolution, an account, and a receiver (a).

Nor will the equities subsisting between the miners themselves be affected by the circumstance that some of them have not a good title to their shares. Thus, in the case of Jefferys v. Smith (b), A. being, as a partner, entitled to a share of extensive iron-works, and of the lands and premises on which they were carried on, agreed for valuable consideration to assign to B. his interest in the property and business: B. interfered and acted as a partner; but afterwards he assigned his share, and gave notice to the other partners, that he had withdrawn from the business; and, when called on to complete his purchase, resisted the performance of the contract successfully, on the ground that a good title could not be shewn. It was held that B., as between him and the other partners, was to be treated as a partner, and was to contribute to the partnership losses, until the time when he gave notice of his withdrawal from the concern, and assigned his share.

It ought to be noticed, that in the case of Senhouse v. Christian (c), Lord Loughborough advanced a doctrine of great importance, respecting the equities of miners. He held, that if a person, not having the legal interest in a mine, permit another to incur great risk and expense in working it, without giving such other person notice of his claim, he shall not afterwards be permitted to come into a Court of equity for the purpose of substantiating such claim.

IV. 1. A person will be chargeable as a partner in a mining company, either on the ground of being an actual partner, or of having held himself out to the world as such. But, to prove a person an actual partner in a mine, there must be some evidence that an actual interest has been conveyed to him, unless the co-adventurers work the mine by virtue of a license only. In Vice v. Lady Anson (d), an action was brought against the defendant, as one of the adventurers in a mining company, to

(a) Jefferys v. Smith, 1 Jac. & Walk. 298.

(b) 3 Russ. 158.

(c) 19 Ves. 159, cited.

(d) 7 Barn. & Cres. 409; 1 Man. & Ryl. 113; 1 Mood. & Malk. 43; 3 Car. & P. 19.

recover the price of goods sold, and work and materials furnished by the plaintiff for the working of the mine. The plaintiff, when he furnished the goods, had no knowledge of Lady Anson as a shareholder. It appeared, however, that she had spoken and written of herself in society and private letters, as being one; but she never signed any deed. She paid her deposits on her shares, and received certificates, stating that she was a proprietor of certain shares, and that her name was duly registered in the act-book of the mine. Upon this evidence, Lord Tenterden directed the jury, that, as the plaintiff did not give credit to Lady Anson, and as she had never held herself out to the world as a partner, she must be chargeable, if at all, on the ground of being really interested. Was there then any evidence from which it might be inferred that Lady Anson ever had any interest in the mines conveyed to her? He thought not. The partnership, if any, was not strictly a trading partnership; it was one formed for the purpose of working a mine, a species of real estate. An interest in real estate could only pass by certain formalities; and it was clear that the certificates were not sufficient to pass it, nor would the registration in the act-book of the company be sufficient. It did not appear that Lady Anson had derived any interest in the mines from any other person; and the certificates, which clearly did not in themselves pass any interest, furnished no evidence that an interest had passed. Under these circumstances, he thought that it was not satisfactorily made out that Lady Anson had any interest in the mine. After this charge, the plaintiff's counsel elected to be nonsuited, and the Court of King's Bench refused to set the nonsuit aside.

From this case it should seem, that, in order to charge a person as an actual partner in a mine, the deed of assignment of the shares must be proved. On the other hand, it has been inferred from the words of Lord Tenterden, that it would be sufficient, in an action of this nature, to give some evidence, from which the jury would be warranted in concluding that such a deed had been executed by the defendant (a).

Where the shares of a mining company stand in the name of a person who executes the deed of association, and holds the shares as trustee for another, then, if the latter becomes bank

(a) Lloyd & Welsby, 19.