not be relieved against on the ordinary ground of mistake in fact.

From the preceding pages, it will sufficiently appear to be a matter of no small importance for a lessee of mines, in which a large expenditure is often incurred, to ascertain the title of his lessor, for it may prove that the latter has no title at all to grant a lease; and then, it may happen, that, after years of toil, patience and anxiety, the adventurer may be deprived of his reward, when it is almost within his grasp, and even be compelled to refund the amount realized from his previous discoveries.

"The numerous cases in the books," says Lord St. Leonards, "where lessees, and persons claiming under them, have been evicted on account of defects in the titles of their lessors, strongly evince the danger of taking a lease without investigating the landlord's title. No title can be depended upon, however long the estate may have been in the same family. There may be a defect in a settlement, or the person in possession may have a partial estate only, with a power of leasing. All the leases of the Pulteney estate were set aside on account of a power of leasing not having been duly pursued; nor is this the only estate of which the leases have been vacated (p)." The leases of the Egremont estate have lately been avoided in the same way (q). The dangers arising from previous mortgages have been already pointed out.

A lessee who neglects to call for the title of his lessor will meet with no favour in a Court of Equity. It would be a case of pure negligence and inactivity. It has been clearly decided that a lessor cannot compel the specific performance of an agreement for a lease without the pro

(p) Sug. Vend. and Purch. vol. ii. p. 141, 10th ed.

(q) Doe d. Earl of Egremont v. Stephens, supra.

duction of a good title (r). It is not yet decided whether a lessee can, as plaintiff, call for the title of the lessor. But this right would seem to exist as a natural consequence from the decisions just referred to (s). A person incapable of granting a valid lease should not enter into any contract for that purpose; if he does, he should be visited with the consequences of the disclosure. It is quite settled, that the seller of a leasehold estate cannot, in the absence of stipulation or notice to the purchaser, make a good title, unless he can produce the title of the lessor (t).

In ordinary cases, the carelessness with which leases are accepted is sufficiently to be deprecated. But in mining operations, which necessarily presume the outlay of capital, and where an unexpected success may offer strong temptations to the real owners of the lands to avail themselves of the remedies of the law, it is, of course, of infinitely more consequence that the lessees should acquire an indefeasible interest. It is true, lords of manors, and other proprietors, are generally very liberal in their dealings with mine owners. But lessees should look to themselves, and should not imprudently expose themselves to the chance of being thus deprived of the benefits of their speculation, or to being driven to some humiliating terms of compromise, or to what may be still worse, a long and expensive course of litigation. But if it be imprudent on the part of the lessees to dispense with an investigation of title, it is also unfair, and in some instances, dishonest in the lessors, to withhold, in such cases, the evidence of their ownership. The lessors, in many cases, should bear in mind that the mining adventurers are not only increasing the general value of the estates by the employment of labourers, but that they are exploring and ascertaining, often at great risk and expense, the extent and

(r) Roper v. Coombes, 6 Barn. & C. 534; Stone v. Gwillim, Taunt. 433; Fildes v. Hooker, 2 Mer. 424.

(s) See Purvis v. Rayer, 9 Price, 448.

(t) Ibid.; Souter v. Drake, 5 Barn. & Ad. 992.

capability of property which might otherwise long remain undiscovered and unprofitable to all, but which, if their efforts are successful, may yield a far more abundant harvest than can be procured from the surface. It is unfair, therefore, to place lessees in a position in which they may not be well secured and freed from all apprehensions in respect of their interests in the property; and if a person assumes the character of a lessor, with the knowledge that the interest he is conferring is incapable of being supported, he is acting in a manner morally dishonest, although it may not always happen that he can be brought within the just punishment of the law.

CHAPTER X.

PARTNERSHIPS IN MINES.

I. The general Nature of Mining Partnerships-The Cost-Book System. II. The Contract and Dissolution of Partnership.

III. The Liabilities and Duties of Partners.

IV. The Partnership Property.

V. The Remedies of Partners with respect to each other.
Practical Remarks.

SECTION I.

THE GENERAL NATURE OF MINING PARTNERSHIPS-THE COST-BOOK SYSTEM.

ALMOST all mining adventures are, in this country, carried on by persons in partnership; and it will, therefore, be proper to bestow upon this subject a particular attention.

Mining has been described as a species of trade (a); but it does not follow that mining is such a trade as to subject the proprietors to the operation of the bankrupt laws.

The act of 6 Geo. IV. c. 16, s. 2, after enumerating several descriptions of persons, enacts generally, that all persons who, either for themselves, or as agents or factors for others, seek their living by buying and selling, or by the workmanship of goods or commodities, shall be deemed traders liable to become bankrupt. The words “buying and selling" are used in the old repealed statute of 21 James I. c. 19. The cases, therefore, which have been decided upon that statute, with respect to these words, are still applicable under the new law. But the words, "by the workmanship of goods or commodities," are additional,

(a) Story v. Lord Windsor, 2 Atk. 630; Lawton v. Lawton, 3 Atk. 16;

Amb. 114; Tredwen v. Bourne, 6 M. & W. 461.

and their operation affects several of the decisions which were previously made with reference only to the former words. It will be shown, however, that these additional words cannot be considered to have any reference to mining operations, or even to the processes immediately depending upon them.

In commenting upon the statutes regulating the law of bankruptcy, with reference to our immediate subject, it may be premised that the policy of the English bankrupt laws excludes from their operation all those pursuits and occupations which are necessarily or closely connected with the enjoyment of land. In this respect, these laws differ materially from those of most other countries whose code of commercial policy have been mainly derived, as in Scotland even, from the civil law. The English legislature, from the most remote period of its history, struggled severely and successfully in opposing the adoption of a code which was so much at variance with the spirit of the great source of English law-the feudal system. The strong bias of the English rulers in favour of the land, as the basis of feudal connection and personal importance, and the strong attachment of almost all classes to the pursuits of agriculture, long combined to cause our parliaments to look with peculiar jealousy upon any alterations which might tend to render the land more subservient to the purposes of commerce, or even completely available for the payment of debts. These feelings have, in recent times, yielded much to the urgent demands of society. But the English bankrupt laws have received, in these respects, little alteration. They still form, according to their original design, an exclusively commercial code; and this circumstance still continues to furnish a broad line of distinction with respect to the pursuits which render persons liable to their operation. They were not designed to regulate the general liabilities of a debtor following any pursuit which might expose him to the demands of creditors, nor to apply to those persons whose possessions are visible to all the world, and who do