in equity, would be invested with the title to the ore.1 But in order to be construed as a contract of sale, the instrument must contain words sufficient to transfer the title to the minerals, and for the contract to operate as an absolute sale of the minerals, where the grantor, under the contract, is a mining corporation, the contract must have been ratified by the stockholders, or contain the other statutory requirements for a conveyance by a corporation; and if there are any conditions in the contract to be performed by the purchaser, before he can enjoy the title to the ore, the same will not pass until these conditions have been performed.5

3

§ 266. Assignment of royalty. The rent or royalty, payable under a mining lease, can be assigned the same as an open account, but such assignment, in law, does not

1 "Under a written agreement, not under seal, to grant the right of digging all the ore on the lands, the grantee does not take a mere revocable license, but is in equity invested with the title to the ore. Fairchild v. Dunbar Furnace Co., 128 Pa. 485; 47 Phila. Leg. Int. 424; 18 Atl. 443. "An instrument granting a right to mine coal in and to remove it from the lessor's land, although called a lease, is a grant of an interest in the land itself, and not a mere license to take the coal." Hope's Appeal (Pa.), 29 W. N. C. 365; Re Lazarus's Estate, 145 Pa. 1; 1 Pa. Adv. R. 238; 29 W. N. C. 372; 6 Kulp, 333; 23 Atl. 372. See also Austin v. Coal Co., 72 Mo. 535; Kirk v. Mattier, 140 Mo. 23.

2 In re Hancock's Estate (Pa. C. P.), 7 Kulp, 36. For lease, which was held a sale of coal in place, see Genet v. Delaware & H. Canal Co., 19 L. R. A. 127; 50 N. Y. S. R. 53; 32 N. E. 1078; 136 N. Y. 593. See also Kirk v. Mattier, supra.

"A deed of a mining corporation to any part of its mine does not pass the title unless ratified by two-thirds of its stockholders, as provided in Cal. Act, April 23, 1880" (Cal. Stat. 1880, p. 131), § 1. Pekin Min. & Mill. Co. v. Kennedy, 81 Cal. 356; 22 Pac. 679.

1 Ante, idem. Williams v. Gaylord, 185 U. S. 147.

5 See Lazarus's Estate (Pa. Orph. Ct.), 6 Kulp, 53.

Taylor Land. & Ten. (Vol. 2), p. 2, § 426. And the lessor may assign the royalty without assigning the reversion, or convey the reversion and

have the same effect as the assignment of an open account.1 It is regarded as the assignment of a contract and like all other contracts and all rights of action arising from their breach, except those of a personal nature, the right to collect royalty may be transferred from one person to another. It is the mere assignment of a chose in action. But the doctrine of privity, which obtained at common law, law, has a peculiar effect upon the liability of the parties to such a transaction.3 The privity of contract is not transferred to the purchaser on the assignment, for this is a mere personal privity, and extends only to the persons of the original lessor and lessee, The royalty, however, is considered a part of the corpus of the estate, and as the privity of estate remains annexed to the estate, the assignee, under the assignment, acquires a right of action against the lessee for the recovery of the royalty. The law creates the covenant on the part of the lessee, to pay the royalty to the assignee, instead of the original lessor, and after the assignment the

4

6

retain the royalty. Willard v. Tillman, 2 Hill, 274; Dixon v. Niccolls, 39 Ill. 372; Watson v. Hunkins, 13 Iowa, 547; Hunt v. Thompson, 2 Allen, 341.

1 Ante, idem. For lease of a coal bank, held a sale of the coal, see Tiley v. Mayges, 4 M. M. R. 320.

2 Taylor's Land. & Ten., §§ 426-436 et sub. For liability of lessee for royalty upon unworkable mine, see Phillips v. Jones, 8 M. M. R. 344.

3 Taylor's Land. & Ten., § 439 and foot note on p. 16. A miners' strike, which prevents the excavation and transportation of coal, is a defense to suit on covenant for royalty, as these things are beyond lessee's control. Givens v. Providence Coal Co. (Ky. 1901), 60 S. W. Rep. 304.

4 Taylor, supra.

But see Stockb. I. Co. v. Cone Ir. Works, 102 Mass. 80; Fanning v. Tolker, 40 Mo. 129; Hatfield v. Lockwood, 18 Iowa, 296.

See Taylor, § 439 et sub.; 32 Hen. VIII., C. 34; Leach v. Koening, 55 Mo. 451; Fisher v. Deering, 60 Ill. 124.

6 Funk v. Kincaid, 5 Md. 404; English v. Key, 39 Ala. 113; Taylor's Land. & Ten., § 439 and cases cited.

assignor cannot be bound by equities which the lessee had acquired against him, after having notice of the assignment,1 nor by equities arising before the institution of suit on the assignment.2

§ 267. Time of the essence. — Time is generally considered of the essence of a contract whenever it appears to have been part of the real intention of the parties that it should be so. But when the character of the undertaking renders time material to the performance of the contract and the rights of the parties would be affected thereby, it may be implied as an essential to the contract, from the nature of the subject-matter with which the parties are dealing, even though there is no declaration of intention that it should be so in the contract. The nature of all render time essen

mining transactions, is such as to tial, for, as observed in all of the older cases, "no science, foresight or observation can afford a sure guarantee against sudden losses, disappointment and reverses, and a person claiming an interest in such undertakings ought therefore to show himself in good time willing to partake in the possible loss as well as profit." And so time has been held to be a necessary element in contracts for the sale of mines, mineral and

1 Taylor's Land. & Ten., § 450 et sub.

2 Taylor's Land. & Ten., § 442 et sub.

3 Fry Spec. Per. of Con., p. 414; Reed v. Chambers, 6 Gill. & J. 490; s. c. 7 Paige, 22; Smith v. Brown, 5 Gilm. 309.

4 Hipwell v. Knight, 1 Y. & C. Ex. 416; Fry Spec. Per. Con., p. 416; Newman v. Rogers, 4 Bro. C. C. 391.

Clegg v. Edmondson, 26 L. J. Ch. 681, et idem (L. J. J.) 673; Hull Coal Co. v. Emp. Coal Co., 113 Fed. Rep. 256. In a contract for oil, time is essential. Christies App., 9 M. M. R. 42. And as affecting the question of tender, see Fisher v. Worrell, 14 M. M. R. 624.

Per K. Bruce, L. J., in Pendergast v. Turton, 1 Y. and C. C. C. 110.

mining plants 1 and works, and also in agreements to purchase mining stocks and calls.2 But courts of equity were at one time inclined to neglect all considerations of time in the specific performance of contracts for sale, not only as an original ingredient in them, but as effecting them by way of laches, and although time has now come to be regarded as an essential element in mining contracts, it is presumed that if the promisor had used reasonable diligence to discharge his obligation; if he had acted in good faith and his delay was not without just cause, a court of equity would exercise jurisdiction under these mitigating circumstances, and adjust the rights of the parties according to equitable principles, and especially would this be true if the promisee had not suffered unreasonable damage on account of the promisor failing to perform on the day set.

1 Parker v. Frith, 1 S. & S. 199 and note; City of London v. Mitford, 14 Ves. 58; also, Eads v. Williams, 4 De G, M. & G. 674; Neldon v. Smith, 36 N. J. L. 148; Beninger v. Hanks, 61 Pa. St. Pa. 343. But see Falls v. Carpenter, 6 M. M. R. 397.

2 Sparks v. Liv. Water Works Co., 13 Ves. 428.

8 Fry Spec. Per. Con., pp. 415, 422; and Lloyd v. Collett, 4 Bro. C. C. 469 and note.

4 "The working of a mine is a trade of a fluctuating character, and this incident brings it within that class of cases where time is the essence of the contract." Macbryde v. Weekes, 22 Beav. 533; M. M. D. 189. See also Fooley v. Fletcher, 3 H. & N. 769. As between vendor and purchaser, see Lockhart v. Ogden, 30 Cal. 547; also Hancock v. Hodgson, 4 Bing. 269.

5 Macbryde v. Weekes, 22 Beav. 533; Bisp. Prin. Eq., § 391, pp. 451-432; Tilley v. Thomas, L. R. 3 Ch. 67; Broshier v. Gratz, 6 Wheat. 528; Remington v. Irwine, 2 Harris (Pa.), 143. In equity time is not of the essence unless the nature of the transaction demands it. Ante, idem. But see Goldsmith v. Guild, 10 Allen, 239; 1 Sug. V. & P. 411 (8 Am. Ed.).

6 Ante, idem. Tiernay v. Roland, 3 Harris (Pa.), 429. "Time is not of the essence of an executory contract for the purchase of land where the delay in payment has been acquiesced in and the vendee has continued in possession, the vendor retaining his notes for purchase-money; although

§ 268. Contracts of mining partnerships. The doctrine of agency applies to contracts of mining partnerships, the same as to those in other branches of trade, and the different members of such a firm are bound by the contracts of their copartners, when the agreement is made in the usual course of the business and is beneficial or necessary to the purposes of the partnership. In many particulars mining partnerships are governed by the same rules relating to ordinary commercial partnerships, but they differ from a mercantile partnership in many important particulars.*

3

sudden and immense value has been given meanwhile to the premises by the discovery of gold." Falls v. Carpenter, 1 Dev. & Bat. Eq. 277 (N. C.); M. M. D. 241.

1 Bainb. on Mines, 317 et sub. Wait's Act. & Def. Vol. 4), p. 435; Hawkens v. Bourne, 10 L. J. Ex. 361.

2 Nolan v. Lovelock, 1 Mon. T. 224; Taylor v. Castle, 42 Cal. 367; B. & W. L. 521. But an incoming partner is not liable for contracts of the firm made before he became a member. Babcock v. Stewart, 58 Pa. St. 179. As to how far liability can be limited by contract between the members of the firm, see Vice v. Fleming, 1 Y. & J. 227; Vice v Lady Anson, 1 M. & W. 96; 1 Man. & Ry. 113; 7 B. & C. 409. "Each member of a mining copartnership has power to bind the company by any contract within the scope of the partnership, and is a general agent of his copartners for such purpose. The fact that some of the partners were dormant, or the fact of their subsequent dissent does not affect the joint liability." Burgan v. Lyell, 2 Mich. 102; M. M. D. 265. The majority have the right to control the Creary, 30 Cal. 290. And it is doubtful if one partner could limit his liability for necessaries used by firm. Nolan v. Lovelock, supra.

firm business. Dougherty v.

3 Decker v. Howell, 42 Cal. 36; B. & W. L. C. 508; Wade's Am. Min. Laws, § 151a, pp. 213-215; Bainb. on Mines, 343; Arundell on Mines, 30. "Mining has been called, in England, a species of trade. A colliery has been held not only the enjoyment of an estate, but in part carrying on a trade." Tredwin v. Bourne, 6 Mees. & W. 461; Ambler, 114. "Still, a purchaser of a coal mine, who worked it and sold the coals, was not considered a trader under the English bankrupt laws." Port v. Turton, 2 Wils. 169; Blanchard & Weeks Ld. Cas., p. 548.

The chief distinctions between mining and commercial partnerships, have beer classed by the authors in Blanchard & Weeks Ld. Cas. (pp. 552