being one of trust, each member is held to a strict rule of good faith and fair and open dealing.1 Accordingly, property purchased with partnership funds is held in trust for the firm; 2 no partner should place himself in a position which will bias him against the discharge of his duty, and for this reason, none are permitted to receive any secret profit or clandestine bonus, and if any such is received it will be held for the firm; 4 no partner can charge any profits to the firm 5 and an agreement for compensation would not be implied from the mere fact of service rendered. Each partner is entitled to his interest in the partnership property, and for any disposition thereof, without the consent of such partner, he is entitled to an accounting from his associates.' But, on account of the fluctuating value of mines, each partner to be entitled to participate, should contribute to the joint venture. If, when the

8

1 Jennings v. Rickard, 15 M. M. R. 624; Bank v. Bissell, 11 Id. 547. 2 Settembre v. Putnam, 11 M. M. R. 425.

3 Burton v. Mookey, 11 M. M. R. 342.

4 Warring v. Crow, 12 M. M. R. 280; Fawcett v. Whitehouse, 11 M. M. R. 250.

5 Burton v. Mookey, supra.

6 Godfrey v. White, 11 M. M. R. 562. But, see Duff v. McGuire, 12 Id. 353.

7 Phillipps v. Reeder, 11 M. M. R. 419.

8 Rhea v. Vannay, 11 M. M. R. 318. “Where, in a proceeding for the dissolution of a partnership, the court found that there was due the complainant a certain sum over and above the amount of his expenses in the business, and the court rendered judgment for that sum in his favor against the said partnership: ' Held, that the judgment was erroneous." Levi v. Karrick, 8 Iowa, 150; 13 Id. 344; M. M. D. 472. "A court may require the production of books in and of an account, but should not extend the order in such case beyond the necessities of the object in view; an order to ascertain the rental value of salt works does not justify an account of the entire operations of the concern in the manufacture of salt." Stuart v. White, 25 Gratt. (Va.) 300; Mitchell v. McCall, Id.; M. M. D. 4. Accounting is the sole remedy of tenants of an oil lease, who are also copartners. Johnson v. Price, 172 Pa. St. 427; 33 Atl. Rep.

mine is being worked at a loss, they refuse to contribute, they will not be permitted to share the profits when it has become valuable,1 and an abandoned partner, operating on his own account, cannot be called upon to account by his deserting partners, when the mine has proven valuable.2

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§ 605. Against trustee. Perhaps one of the most frequent cases for the remedy by way of an accounting is that of beneficiary against trustee, which obtains in all the different classes of trusts. One purchasing a title, with the money of another, must account therefor; partners, or other fiduciaries, are not permitted to make secret profits at the expense of their copartners; 4 proceeds of ore coming to a trustee must be accounted for, and a trustee claiming the property or proceeds of an adventure with his beneficiary's funds is liable therefor to the rightful owner. In these, and numerous other cases, the trustee is liable for the amount actually received by him; but a trustee is not generally responsible for a losing venture, if without fraud

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698. See, also, Wilton Coal Co. v. Pancoast Coal Co., 170 Pa. St. 437; 33 Atl. Rep. 110.

1 Settembre v. Putnam, 11 M. M. R. 425.

2 Rhea v. Tothem, 11 M. M. R. 321; Rhea v. Varmog, 1 Id. 315. In an accounting between mining partners all the members of the firm should be made parties. Settembre v. Putnam, 30 Cal. 490. On an accounting between partners it was held error to divide the real estate, subject to the debts outstanding; it should have been sold and the proceeds divided, after payment of the firm debts. Moran v. McInerey, 129 Cal. 29; 61 Pac. Rep. 575. Where a partnership agreement is contingent and not consummated, a suit for accounting and dissolution will not lie; the remedy for breach of the contract, is a suit at law. Wachter v. Heman, 82 Mo. App. 243.

3 Bank v. Bissell, 11 M. M. R. 547.

4 Hirbour v. Reeding, 11 M. M. R. 514.

5 Briggs v. Davis, 14 M. M. R. 585.

6 Wilkinson v. Stafford, 14 M. M. R. 522. Greenwood's App., 14 M. M. R. 603.

or negligence 1 on his part, and is, unless guilty of bad faith, only answerable for ordinary care and diligence.2

§ 606. Between lessor and lessee. The lessor of a mining lease has always been held entitled to maintain a suit in equity, against his lessee, for an accounting of the ore removed. And a suit for an accounting will lie, whether an injunction would be granted to restrain the working or not, as mining has always been considered a species of trade, and where royalty or rent is found to be owing after the account, the court can also allow interest, if deemed equitable. Notwithstanding annual accounting has been made by the lessee and his payments accepted by the lessor, an accounting will be decreed covering the whole period, if it can be shown the payments of royalty were incorrect or that items of ore were omitted without the lessor's knowledge,' and the lessee will be compelled to produce his books, to ascertain the correct rent or value of the mine, for the period in dispute. But if the lessee has been evicted from the premises, he will not be made

1 Wilkinson v. Stafford, 14 M. M. R. 522.

2 Greenwood's App., supra. "An account of the profits of coal mines cannot be decreed in favor of a party out of possession. He must bring his ejectment." Sayer v. Pierce, 1 Ves. 232; M. M. D. 3. "Where a bill prays an account of ore dug on complainant's lands, a court of equity will decree it in a proper case, but the complainant must show that he is in possession." Bracken v. Preston, 1 Pinney (Wis.), 585; M. M. D. 3.

3 Pulteney v. Warren, 6 Ves. 73; Jeffries v. Smith, 1 J. & W. 302; Parrott v. Palmer, 3 M. & K. 632; Jesus Coll. v. Bloome, Amb. 55; 3 Atk. 262.

4 MacSwinney, p. 226.

5 Ernest v. Vivian, 33 L. J. Ch. 517; Wright v. Pitt, 12 Eq. 416; Gast v. Barker, 2 B. C. C. 61.

6 Newton v. Nack, 43 L. T. ' Perry v. Atwood, 8 M. M. 8 Stuart v. White, 5 M. M.

(N. s.) 197; MacSwinney on Mines, p. 226. R. 440.

R. 454.

to account for rent or royalty during the period of his eviction and this would be a good plea, covering the period called for by an account, the same as it would be to an action for rent for the same time.1

§ 607. Against assignee of lessee. It would seem that there would be sufficient privity of estate between the lessor and an assignee of the lessee to entitle the former to bring an account,' as a working and claiming under the lease ought certainly to subject the assignee to the payment of the royalties due thereon, or, if not, and he should be treated as a mere trespasser, he should still be held liable for an accounting, either of the royalty,5 or the full value of the ore removed." But English cases and eminent authority exist to the effect that a lessor cannot maintain a suit for an accounting against the assignee of his lessee."

§ 608. Licensor against licensee. As in the case of a lessor, a licensor has been held entitled to the equitable remedy of an account; his right to proceed by such rem

1 Filley v. Meyers, 4 M. M. R. 320; Walker v. Tucker, 8 M. M. R. 673, where only a partial eviction was held to be a good plea. Lessor entitled to accounting against lessee. (W. Va.) Swearingen v. Steers, 38 S. E. Rep. 510. Where the royalty in a lease depends upon the quantity of mineral mined, equity will compel an accounting from the lessee. Swearingen v. Steers (W. Va. 1901), 38 S. E. Rep. 510.

2 Watson Coal Co. v. Casteel, 9 M. M. R. 130.

3 Wright v. Pitt, 12 Eq. 408; Clavering v. Westley, 38 Wms. 402; Great West. R. Co. v. Rans, L. R. 4 H. L. 650.

4 MacSwinney, p. 240.

5 Powell v. Burroughs, 8 M. M. R. 531.

6 Jegon v. Vivian, 8 Id. 628.

' MacSwinney on Mines, Quarries and Minerals, p. 240; Walters v. North Coal Co, 5 De G., M. & G. 629; Cox v. Bishop, 8 De G., M. & G. 815.

• Wright v. Pitt, 12 Eq. 408.

edy, against the assignee of the licensee, would be similar to that occupied by the lessor and the equitable owner of a lease,1 and the rights and duties of the parties, in an accounting, is analogous to that of lessor and lessee."

§ 609. Incident to injunction and partition. - When a proceeding for partition of a mine, or mining land, is had in a court of equity, the court will not only proceed to divide the land, but if the equities of the parties also demand, will direct an accounting of the rents and profits, or proceeds from the ore sold. Neither cotenant would, ordinarily, be entitled to enjoin the working by the other, as each has the right to use the estate according to its nature, but as mining is a consumption or carrying away of the estate, the working tenant is bound to account to the others for their share of the ore removed; 5 and an account is frequently ordered, as incident to an injunction.6

- The usual recovery by

§ 610. Measure of recovery. the co-owner of ore removed is held to be the value of his share of the mineral taken, less the cost of removal.' The actual working expense is ordinarily ascertained and allowed the working tenant. And this is always true where the working was in pursuance of a contract,

1 MacSwinney Mines, p. 254.

2 Ex parte, Hankey, 1 Mont. & M. 247.

3 Dahl v. Confidence Mining Co., 11 Mor. Min. Rep. 214.

4 McCord v. Mining Co., 64 Cal, 134. "Account may be had in the case of mines, although no injunction is granted; although the contrary may be the rule in cases of timber." Parrott v. Palmer, 3 Myl. & K. 632; M. M. D. 4.

255.

5 Goller v. Fett, 30 Cal. 481; McCord v. Mining Co., 64 Cal. 134.

6 Ackerman v. Hartley, 1 M. M. R. 74; Thomas v. Oakley, 7 M. M. R.

7 Goller v. Fett, 30 Cal. 481.

8 Graham v. Pierce, 14 M. M. R. 308.