both of those above referred to, it would be sufficient to justify the corporation to remove or disfranchise such officer or member.1 In order to justify a corporation, however, to remove an officer or disfranchise a member, for the commission of an indictable offense, it must appear that there has been a previous trial and conviction, before a competent tribunal, according to the laws of the place. where the offense was committed; 2 and it is essential in every case of expulsion, that the officer or member accused should be notified a sufficient time beforehand, to enable him to have a fair and impartial trial and a full opportunity to defend himself.3 No stockholder can be disfranchised in a mining corporation, or other private corporation, owning property, unless the company is given the authority in its charter to deprive such stockholder of his interest in the property of the corporation, and when the charter prescribes the mode by which the power is to be exercised, in the exercise of its authority, the corporation must conform to the requirements of the charter, but where the manner of procedure is not prescribed by the charter, but the power of amotion is generally conferred upon the corporation, it may adopt its own method in the expulsion of members, provided the member is not deprived of his legal rights.6 1 Ante, idem. Ofcers are but agents and their authority terminates as other agents. Van Dusen v. Star Q. M. Co., 36 Cal. 571. But as to necessity of notice from committee, where it is provided for, see Bates v. Sierra Nevada Co., 18 Cal. 171. But a court cannot, by quo warranto, remove the officers of a mining corporation. Neall v. Hill, 16 Cal. 146. 2 Until this is shown the member would be entitled to the "legal presumption of innocence," so often indulged in to protect the guilty. 3 State v. Adams, 71 Mo. 570-586. 4 Ante. 5 And it would seem, upon principle, that the authority should be strictly complied with, as the duties and power border very nearly upon the exercise of judicial and legal functions. Dickson v. Chamber of Commerce, 29 Wis. 45. § 327. How dissolved. - A mining corporation may be dissolved in any one of the four following ways, i. e., " (1) By statute, (2) By surrender of its charter, (3) By loss of all its members, and (4) By forfeiture."1 In order that a corporation may be dissolved by statute, however, the authority should have been reserved by the charter of the company for that purpose,2 and the corporation itself, cannot, by any corporate act, work a dissolution of the company for the purpose of avoiding its debts or liabilities; 3 nor will a corporation be dissolved by the resignation of all its officers, or the loss of certain of its members, provided there are sufficient left to continue with the business and fill up the vacancies that have occurred. But according to its terms and the nature of its existence, a corporation may subject itself to a dissolution by surrendering its charter,5 or by making such a willful misuse of its franchises that it would forfeit them to the State.6 In order to work a forfeiture, however, the proceedings must have been instituted by the State, and the misuser of its franchises must have resulted from its own willful conduct or neglect, and not produced by mere accident or mistake.8 If there have been acts on the part of the corporation sufficient to work a forfeiture of its franchises, the forfeiture 1 See text-books on Corporations. 2 Otherwise the legislative act of creation would be inconsistent with that of revocation, but generally the reservation is made in the charter. 3 Insolvency and non-user, however, may furnish ground for a decree of dissolution. Nimmans v. Tappon, 2 Saw. (N. Y.) 652. 4 Canal Co. v. Ry. Co., 4 Gill. & J. (Md.) 1; N. Y. Marble & Iron Works v. Smith, 4 Duer, 362. Like a natural person, it can voluntarily surrender any legal right it has, even to its right to exist. 6 Miners Ditch Co. v. Zellerman, 36 Cal. 543. Miners Ditch Co. v. Zellerman, 36 Cal. 543; Crump v. U. S. Min. Co., 7 Gratz (Va.), 352. 8 Ante, idem. may be enforced by scire facias, where there has been a willful and illegal use of the proper legal authority possessed by the corporation,1 or by a quo warranto proceeding, if the company has not been legally constituted, or is not acting legally in the exercise of its corporate powers.2 But in the absence of statutory authority a court of equity has no jurisdiction to determine whether a corporation has forfeited its franchise, or violated the provisions of its charter, for the general powers of a court of equity do not extend to this matter, and the question can only be determined by a court of law.3 1 Beach on Cor., § 53. 2 Quo warranto is the common and most ordinary proceeding to determine all abuses of corporate authority. 3 Doyle v. Peerless &c. Co., 44 Barb. 239. In the absence of some statutory power a court of equity cannot dissolve a mining corporation and divide its property among the shareholders. Taylor v. Decatur Lead and Zinc Co. (Ala. 1901), 112 Fed. Rep. 449. CHAPTER XXI. PARTNERSHIP IN MINES. SECTION 328. Mining partnerships generally. 329. How partnership is proved. 330. Agreement for mining adventure. 331. Same-Parol agreements for partnerships relating to land. 332. Agreements to share profits. 333. Partners distinguished from co-owners. 334. Same-Co-owners partners in profits only. 338. When shares in mines considered realty. 340. Same How partnership liability determined. 343. Same-By conveyance of partnership property. 345. Rights and obligations inter sese. 346. Same-Trust relation arising from. 347. Same-Right to an account. 348. Same-Right to contribution. 349. Same-In case of dissolution. 350. Right of assignee to compel accounting. 352. Laches in mining partnerships. § 328. Mining partnerships generally. There is no delectus personae in mining, as in other commercial partnerships, and the partnership is not dissolved by the death of a partner, or a sale of the interest of a partner to a stranger, hence a surviving partner has no authority to take control of the partnership property as a survivor. When a stranger purchases shares in such a partnership, he presumptively becomes a partner, although he may not participate in the management of the partnership affairs. And new members in a mining copartnership are liable for the firm debts before they become members of the firm, if they purchase with knowledge, subject to the payment of such debts.3 § 329. How partnership is proved. The question whether a person is or is not a member of a mining partnership, is determined in precisely the same way as one's membership with an ordinary commercial partnership. It is not necessary to prove articles of copartnership, in order to bind one as a member of a mining partnership, for if he has, as a matter of fact, been dealing as such, he is to all intents and purposes, a partner in the business, although there may have been no articles of copartnership subscribed to,5 and even though there may be 1 Fereday v. Wightwick, 1 Russ. M. 45; Decker v. Howell, 42 Cal. 636; Jones v. Clark, 42 Cal. 180; B. & W. L. C. 525; Charles v. Eshelman, 2 M. M. R. 65. 2 Jefferys v. Smith, 3 Russ. 158; Taylor v. Castle, 42 Cal. 367; B. & W. L. C. 521. 3 Duryea v. Burt, 28 Cal. 569; B. & W. L. C. 489. “An incoming partner is not liable on contracts of the firm, made before he became a member." Babcock v. Stewart, 58 Pa. St. 179. "An assignment of his share by a partner in iron works, though made to an insolvent person, is not the less effectual in putting an end to the assignor's liability." Jefferys v. Smith, 3 Russ. 158; M. M. D. 261. The distinction between commercial partnerships and mining partnerships, consisting in the absence, in the latter, of the right to select one's partner, is not noted, by some of the authorities, except in the case of partnerships operated on the costbook principle, which is perhaps the true type of mining partnership. See Chap. Cost-Book Companies. 4 Lindley Part., p. 204, § 148; Ralph v. Harvey, 1 Q. B. 845. But see Hickman v. Cox, 3 C. B. (N. 8.) 523. Lyell v. Sanbourne, 2 Mich. 109; Nolan v. Lovelock, 1 Mont. 224; Duryea v. Burt, 28 Cal. 569; B. & W. L. C. 489; Taylor v. Castle, 42 Cal. 367; B & W. L. C. 521; Snyder v. Burnham, 77 Mɔ. 52. |