ute to the assets of the company, if he had ceased to be a shareholder two years prior to the time when the mine was last worked, or before the date of the winding-up order, for this has been specially provided for by statute.1

§ 375. Same Member's authority to bind company. There is no implied authority, either in a member or the general superintendent of a cost-book company, to bind the association or its members on a contract in the name of the company, and the company cannot be held on such a contract, and especially when it is not necessary for carrying on the mining operations, unless special authority to make such a contract has been delegated by the company.3 The different members of the company are regarded as coadventurers, and they have no authority, as such, to pledge the credit of the company for borrowed money, even though it was borrowed for purposes of the concern; and the rule

4

yer on Mines, 93; Wordsworth Law of Mining, 193; Beach on Pri. Cor. 179; Bainb. 343; Arundell on Mines, 30; 16 Jurist, 22; Peel v. Thomas, 15 C. B. 714.

1 Lindley on Part. 133, 348. "The transferor becomes free from all liability as soon as he procures his transferee's name to be registered." MacSwinney Mines, p. 464; Thomas v. Clark, 18 C. B. 662; Cox's Case, 4 De G., J. & S. 55; Lanyan v. Smith, 3 B. & S. 945; Watson v. Eales, 23 Beav. 294. "But a mining company, on the cost book system, formed before the passing of the joint-stock companies' winding-up act, 11 and 12 Vict., c. 45, is not within its operation." In re Wheal Lovell M. Co.; Ex parte Wyld, 18 Law J. Ch. 139; 1 Mac. & Gor. 1; M. M. D., p. 61. 2 "The prohibition extends to directors, pursers, and agents, and to one member acting for another." B. & W. L. C., p. 539; Ricketts v. Bennett, 4 Com. B. 686; Burmester v Norris, 6 Ex. Ch. W. H. & G. 796; Beach Pri. Cor., § 179 p. 311; Skillman v. Lachman, 23 Cal. 206; MacSwinney, p. 460.

3 Beach, supra; Jones v. Clark, 42 Cal. 180; Charles v. Eshleman, 5 Colo. 107; MacSwinney, p. 460; Lindley on Part., §§ 133, 348; Hawtowyn v. Bourn, 7 M. & W. 595.

4 Ante, idem. Burmester v. Norris, 6 Ex. W. H. & G. 796; B. & W. L. C. 538, 540; German Min. Co., 4 De G. M. & G. 40.

is just the same in regard to the managing agent of the company, for the mere fact that he has charge of the business of the association does not give him any implied authority to borrow money on the credit of the company.1 But the doctrine of agency applies to cost-book companies the same as ordinary partnerships, and where the "purser" acts within the general scope of his authority, each member of the company is liable to creditors who have furnished the company with necessaries for carrying on the mining operations, provided they are furnished in the customary manner, and this liability could not be avoided by the company even though the creditor had no knowledge at the time he furnished the materials that they would be used in the business of the company."

It re

§ 376. Same-Liability for torts of company. sults from the partnership relation and consequent liability of the members of a cost-book mining company, that for torts of the company, or its authorized agents, in the line of and within the general scope of the company's business, the members are liable. Accordingly, the members of a cost-book mining company have been held liable in damages for a nuisance, resulting from the working of the company's mine. But as the liability of a shareholder ends with the transfer of his shares," he would not be re

1 Burmester v. Norris, supra; B. & W. L. C. 540; Beach on Pri. Cor., § 179 et seq.; Jones v. Clark, supra; Charles v. Eshleman, 5 Colo. 107; Lindley on Part., §§ 133 and 348. But see Newton v. Daily, 1 F. & F. 26; B. & W. L. C., p. 540.

2 Collyer on Mines, 93; Wordworth's Law of Mining, 193; cf. Hawkins' Case, 2 Kay & J. 253; Beach on Pri. Cor., supra; Cox' L. Case, 4 De G., J. & S. 56; Turner v. Hill, 11 Sim. 1; MacSwinney, p. 459.

3 MacSwinney, p. 462.

4 Matthews v. King, 3 H. & C. 910; MacSwinney on Mines, supra. 5 Curling v. Flight, 6 Ha. 45; More v. Malachy, 1 M. & Cr. 560; MacSwinney Mines, p. 466.

sponsible for the commission of a tort, unless he had notice of same prior to the transfer.1

§ 377. Transfer of shares. — As before explained, a member can transfer his shares and the consequent liability on the same, so far as his partners are concerned, without the consent of the other members of the company, and without a dissolution of the company.

This is done by a transfer, or a simple relinquishment of the shares, providing the rules of the company do not prohibit it, and as soon as the notice of relinquishment is given the "purser," or the fact of the transfer entered by him in the cost-book, the new membership of the transferee of the shares in the company becomes complete. The mode of transferring the shares, like all other business of such companies, is very simple; it is usually done by a written instru

1 Matthews v. King, supra; MacSwinney, p. 462.

2 "Any adventurer may transfer his shares without the consent of his co-adventurers, the transfer, as soon as registered, working a dissolution of the partnership as to him, and the liability ceasing. Death or bankruptcy does not necessarily have that effect." (Rogers on Mines 381.) Blan. & Weeks Ld. Cas, p. 540.

3 Rogers on Mines, 383-384.

"The relinquishment should be an absolute surrender of the share into the hands of the company for the benefit of the other adventurers, and of all interest in the mine, and the engines, machinery, and personal effects of and belonging to the mines, and it may then be in any form." (Rogers, 384.) Blan. & Weeks Ld. Cas. 541.

5 See, as to rule requiring notice to person, Mayhew's Case, 5 De G., M. & G. 837; Fenn's Case, 4 De G., M. & G. 285; In re Welsh, Potosi M. Co.; Lofthouse's Case, 2 De G. & J. 69. Whether a relinquishment or transfer has occurred is a question for the jury. Courteis v. Johnson, 10 Exch. 242, note; Mor. M. Dig. 60.

6 Rogers on Mines, and authorities, supra.

7 "The instrument of transfer should state that the transferor sells, signs, and transfers, for a valuable consideration, parts or shares in a certain mine or adventure, naming it, and giving its location, together with a like share or proportion of and in the engines, tools, tackle,

ment, in which the transferor acknowledges that he has transferred, and the transferee that he has accepted1 the shares mentioned, which document is signed by both parties and addressed to the "purser," and the entry of the fact of the transfer by the" purser," in the cost-book of the company, regardless of the form of the entry, has the effect of introducing a new partner into the concern. And the other members of the company have no right to object to the introduction of a new partner into the company, provided he buys his shares from a member of the company, for, as before explained, the delectus persona of other partnerships has no application to the case of cost-book companies.3

§ 378. Calls - Liens Foreiture.—The different members are liable to calls on their respective shares, and in default of a payment thereof, the company has a lien upon such shares for the calls due,5 the" purser can sue to enforce the

materials, ores, moneys, and appurtenances and fixtures generally belonging to it, and in all dividends and profits in respect to the shares, and all interests, privileges, and vantages to be derived therefrom." Blan. & Weeks Ld. Cas. 541.

1 The transferee should indorse on the same instrument, in apt words, a certificate that he accepts the said shares, describing them, subject to the same terms and conditions, rules and regulations, as the transferor held them." Blanchard & Weeks Ld. Cas., supra.

2 Wharton's Law Lexicon, tit. Cost-Book Min. Cos.; Beach on Pri. Cor., § 629; Lindley on Part. "The transferor should not afterward hold himself out as an adventurer, or in any way interfere with the company's affairs, or he will be held liable for so doing." (Rogers on Mines, 383, 384; citing Re Bodwin United Mines, 26 L. J. Ch. 570; Northey v. Johnson, 19 L. T. 104.) Blanchard & Weeks Ld. Cas., p. 541.

3 Collyer on Mines, 93; Dickinson v. Valpy, 10 B. & C. 128; Bissell v. Foss, 114 U. S. 252; Kahn v. Smelting Co., 102 U. S. 641; MacSwinney Mines, p. 463; Libri's Case, 30 L. T. 186; Watson v. Spratley, 10 Exch. 222.

4 MacSwinney Mines, p. 453.

3 Hart v. Clarke, 6 De G., M. & G. 249; Watson v. Erles, 23 Beav. 274.

company's lien,1 and the shares forfeited for non-payment of the calls. But independently of statute, calls could not be made for future expenses, and in any event, to authorize a forfeiture, it would seem there should be a default in the payment of calls regularly issued.

6

7

379. Right to an accounting. —-As in the case of an ordinary mining partnership, any member of a cost-book company is entitled to an accounting, and in such a proceeding it is not necessary to seek a dissolution of the company. The company may maintain an action against a member for a fraud upon its rights; a member can sue for a fraud and by tendering his shares recover his payments made thereon, and a member can sue a member for an account upon particular shares. In a suit by a member against the company, however, all the members must generally be made parties to the action.10

8

9

1 Teppet v. Johns, Topping, 187; Graves v. Cook, 2 Jur. (N. s.) 475. 2 Peel v. Thomas, 15 C. B. 714; MacSwinney, p. 453. Forfeiture is authorized by statute in England, 32 & 33 Vict., Ch. 19, Sec. 16.

8 MacSwinney, p. 453.

4 MacSwinney Mines, supra. "A power in coadventurers to forfeit the shares of one of their number for non-payment of calls is not necessarily incident to a mining adventure conducted on the cost-book principle." Clarke v. Hart, 6 H. L. Cas. 633. See Clarke v. Hart, 19 Beav. 349; 6 De G., M. & G. 232. "Where such a power exists by agreement between the parties, it is to be treated as strictissimi juris, like a power of forfeiture with respect to an estate, and the forms to be observed in declaring the forfeiture must be strictly followed." Id. M. M. D. 174. MacSwinney Mines, p. 451; Sibley v. Minton, 27 L. J. Ch. 53.

6 Ante, idem.

More v. Malachy, 1 M. & Cr. 559; Turner v. Hill, 11 Sim. 1; Turner v. Borlose, 11 Sim. 17.

8 Clark v. Dickson, E. B. & E. 148.

9 More v. Malachy, supra. See Chapter, Accounting.

19 Cox v. Stephens, 11 N. R. 929: Sibley v. Minton, supra.