the assignee is entitled to all the remedies for procuring a settlement, that the original partner would have had against his copartner, if there had been no assignment made, and he can compel an accounting from the drawee, under the assignment, without making his assignor a party to the suit. And as one co-owner can dispose of his interest in a mine, without the consent of his co-owners, an accounting of the profits will ordinarily be directed, although no dissolution is sought by the assignee.2 § 351. Receivers of mines. The power to appoint a receiver in the dissolution of a mining partnership, is discretionary with the court, and, as in the case of other partnerships, the court may either appoint or refuse to appoint a receiver as it deems proper, under the circumstances. If no dissolution or winding up of the partnership is sought, a receiver will not, usually, be appointed.4 But if the different members of the partnership cannot agree as to the proper mode of operating the mine until it can be sold, or if a dissolution or winding up of the business is sought, the court will generally appoint a receiver and manager to operate the mine.5 If the 1 Atkinson v. Cash, 79 Ill. 53, where division and allowance to partners was made. Fawcett v. Whitehouse, 11 M. M. R. 250; Bullard v. Kinney, 11 M. M. R. 348. 2 Doll v. Confidence Co., 11 M. M. R. 214. Durea v. Burt, 28 Cal. 569; B. & W. L. C. 489. "An assignee of the interest of a partner (in iron works) not being recognized as a partner by his assignor's associates, does not, by his acceptance of the assignment, incur any liability as between himself and the copartners." Jefferys v. Smith, 3 Russ. 158; M. M. D., p. 268. 3 Bispham's Prin. Eq. 510, p. 560; Kerr on Receivers, 90–97 (2d Am. Ed.). 4 Ante, idem. Also MacSwinney on Mines, p. 113; Roberts v. Eberhardt, Kay, 148. Nor will the court appoint a receiver in a doubtful case. Chicago Co. v. U. S. Co., 12 M. M. R. 571. 6 Maynard v. Railey, 2 Nev. 313; Shulte v. Hoffman, 18 Tex. 678; partner carrying on the business has not been guilty of any misconduct, or is laboring under no other disability, the court would be justified in appointing him receiver, without compensation for his services.1 But where there are differences between the partners growing out of the alleged misconduct of any member of the firm, it is not proper for the court to appoint any of such members as receiver.2 After a receiver has been appointed, he becomes an officer of the court and must give security for the proper management of the partnership affairs; 3 he should take possession of the partnership effects and securities, collect and pay the partnership debts, turn over his accounts and balance to the court, and, in general, conduct the winding up of the business with the same degree of skill and caution as he would do, if engaged in a settlement of his own affairs. § 352. Laches in mining partnerships. - The doctrine of laches is applied to all kinds of cases where the party applying for relief has himself been guilty of gross neglect, and equity makes no distinctions in refusing its relief on account of such conduct.5 The doctrine is especially applicable to mining transactions and others of a speculative nature, where every new move is necessarily accompanied by a certain amount of risk, and where time is such an Boyce v. Burchard, 21 Ga. 74; Miller v Jones, 39 Ill. 54; Clegg v. Fishwick, 1 M. & G. 294; MacSwinney Mines, p. 115. 1 Lindley Part., §§ 555 and 557. The duty of liquidation may devolve on a member of the firm either by agreement or operation of law. Bisp Prin. Eq., § 510, p. 560. 2 Bisp. Prin. Eq., supra. 9 Kerr on Receivers, Chap. VI. (2d Am. Ed.); Bisp., § 579. 4 Kerr on Rec., supra. Wilmington Min. Co. v. Allen, 9 M. M. R. 106. He is a mere custodian and has only such powers as are con ferred by the court. Bisp. Prin. Eq. 579-580. 5 Bispham's Prin. Eq., § 260, p. 324. A party may also lose his right to complain of fraud by delay. Ante; Roth v. Vanderlyn, 44 Mich. important element in every undertaking.1 Accordingly, it has been held that where one of several persons, who have agreed to become partners, unfairly leaves the others to perform the work and then comes forward to claim a ghare in the profits, the courts would not assist him to obtain a share of the gains, after he had remained quiet to avoid responsibility in case of a loss.2 In disputes, therefore, between mining partners, each should be careful to assert his claims while the dispute is still fresh; for if one stands by without asserting his claims, until the mine has been rendered prosperous by his copartners' activity, and then comes forward to claim his part of the profits, he will be refused redress on the ground that he has applied too late.3 1 Fry Spec. Per. of Con., 416-418; Blanchard & Weeks Ld. Cas., p. 397; Earnest v. Vivian, L. J. Ch. (N. 8) 513; Walker v. Jeffries, 11 L. J. Ch. (N. s.) 209; Pollard v. Clayton, 1 Kay & J. 462. 2 A period of nine years has been held to bar the rights of a copartner to an accounting and a share of the proceeds from a lease renewed in the name of an individual member. Clegg v. Edmondson, L. J. Ch. (N. s.) 673; B. & W. L. C. 569. 3 See Slemmer's Appeal, 58 Pa. St. 169; Mor. Min. Dig., p. 270. But what would be considered an unreasonable time for waiting to claim relief is largely in the discretion of the court and would be determined by the chancellor according to the facts in the case before him. Bispham's Prin. Eq., § 260; MacSwinney, p. 120; Clark v. Hart, 6 H. L. Cas. 633; Rule v. Jewell, 18 Ch. D. 660. "The case of mines has always been considered by a court of equity as a peculiar one. The property is of a very precarious description, fluctuating continually, sudden emergencies arising which require an instant supply of capital, and in which the faithful performance of engagements is absolutely necessary for the prosperity and even the existence of the concern. And, therefore, where parties under these circumstances stand by and watch the progress of the adventure to see whether it is prosperous or the contrary, determining that they will intervene only in case the mine should turn out prosperous, but determining to hold off if a different state of things should exist, courts of equity have said that those are parties who are to receive no encouragement; that if they come to the court for relief, its doors shall be closed against them; that their conduct being inequitable, they have no right to equitable relief." Clarke v. Hart, H. L. Cas. €55; Hart v. Clarke, 19 Beav. 349; 6 De G., M. & G. 232; M. M. D. 160. CHAPTER XXII. JOINT-STOCK MINING COMPANIES. SECTION 353. General nature and definition. 358. Rights and duties of officers. 359. Same Misconduct of trustees or managers. 360. Contracts of joint-stock companies. 361. Company property and assets. 362. Same-Right to hold real estate. 363. Consolidation of different companies. 364. Parties to actions by and against. 365. Same- Actions between company and members. § 353. General nature and definition. A joint-stock company is an association of persons, whose capital is thrown into one mass and employed for the general purposes for which the company was organized, every member sharing the losses and gains according to the proportion of capital that he has invested.1 Joint-stock companies are much more common in England than in the United States, and on account of the difficulty and expense attending incorporation there, numerous statutes have been enacted, requiring certain formalities to be observed in the organization. In the United States, however, all companies not organized under special or general law of the legis 1 3 Kent's Comm. 262; Wait's Act. & Def., Vol. IV., p. 159. 26 Geo. 4, c. 91, § 2; 4 & 5 Wm. 4, c. 94; 7 Wm. 4 & 1 Vict., c. 73; 7 & 8 Vict., c. 111-113; and for table of English Sts. see Lindley on Part., Vol. I., § 11; 25 & 26 Vict., Ch. 47. lature, are regarded regarded as ordinary partnerships; 1 the rules of law respecting them are the same, and aside from the rules and by-laws governing the election of officers and the transaction of the company's business," the only thing necessary to entitle one to the rights of membership and subject him to the consequent liabilities is the subscription of his name to the articles of association and the payment of his portion of the stock. But jointstock companies differ from ordinary partnerships, in that they are aggregate bodies, and from corporations principally, on account of the individual liability of the different members. However, they partake largely of the essentials of both partnerships and corporations, and are rather an association of persons whose legal status is intermediate between the two." 1 Robbins v. Butler, 24 Ill. 397; Bullard v. Kinney, 10 Cal. 60; Wells v. Gates, 18 Barb. 557; Butterfield v. Beardsley, 28 Mich. 412; Cox v. Bodfisch, 35 Me. 302; Moo re v. Brink, 6 Thomp. & C. 22; Wait's Act. & Def., Vol. 4, pp. 159 and 160; Lindley Part., Vol. I., pp. 6 and 7. Joint-stock companies were entirely unknown to the English common law, and companies neither partnerships nor corporations were formerly regarded as nuisances. McIntire v. Connell, 1 Sim. (N. 8.) 233. See Bubble Act, 6 Geo. 1, c. 18. Repealed in 1825, 6 Geo. 4, c. 91; and for history of joint-stock companies see Lindley on Part., Vol. I., Sec. 6 et sub. A share in a joint-stock company is not the equivalent of a corresponding sum of money, but is such, subject to the rights and duties of the other members and third parties in regard to such share. Borland's Tr. v. Steele, 70 L. J. Ch. 51; Hogg v. Hoag, 107 Fed. Rep. 807 (1901). 2 Pars. on Part., 542; Wait's Act. & Def., p. 160 and cases cited. 3 Dennis v. Kennedy, 19 Barb. 517; Walburn v. Ingilby, 1 Myl. & K. 61; Wait's Act. & Def., p. 160. • Lindley on Part., § 6, Vol. I., and cases cited. & Wait's Act. & Def., Vol. 4, p. 159, and cases cited. Ante, idem; Oliver v. Liverpool &c. Ins. Co., 100 Mass. 531, 539; McAntire v. Connell, 1 Sim. (N. s.) 233, and cases cited; Lindley on Part., Vol. I., p. 7 and following. |