9. It is a question for a jury whether a contract for the delivery of a certain number of barrels of oil is fulfilled by the delivery of a less number of barrels containing the requisite quantity of oil: Cullum v. Wagstaff, 2 M. R. 573.

10. A contract to convey land if vendee should find oil upon it, construed to mean if found in a reasonable time: Dark v. Johnston, 9 M. R. 283.

11. Right of corporations to lay pipe for the transportation of oil: United N. J. R. R. v. Standard Oil Co., 7 M. R. 625; Central R. R. v. Standard Oil Co., 7 M. R. 604; West Va. Co. v. Ohio River Co., 22 W. Va., 600; 46 Am. Rep. 527.

12. Conflagration of oil while in the act of delivery: Rochester Co. v. Hughey, 4 M. R. 282.

13. As to whether oil is a mineral, see note 8, 10 M. R. 421.

WEISMAN V. SMITH ET AL.

(6 Jones' Eq. 124. Supreme Court of North Carolina, 1860.)

1 Pre-emption agreement between partners, when waived. Where there is a privilege of pre-emption in a contract between mining partners, a subsequent sale, by consent, of a part interest of one partner, or a descent cast, will prevent the further operation of the covenant. Application of the rule to the facts. By agreement, Smith was to furnish funds to purchase certain plumbago lands and convey an interest to Weisman under a contract of partnership, one of the terms of which was that neither should convey without allowing his partner the refusal, or first privilege of purchase. After some years Weisman, with Smith's consent, sold half his interest in the mines to a third party. After one or more transfers, this third party's interest was represented by a company formed to work the mines. Weisman then filed a bill averring a tender under the refusal clause, and seeking a conveyance of the entire premises from the then various owners. Held, that it might be doubted whether the court would in any case decree a specific performance upon a contract tending to monopoly; but that the sale of an interest by consent to third parties without provision for the partner's right of pre-emption, justified the inference that such right of pre-emption was not further to be insisted upon.

Cross-bill-Distinct equity. Where the defendant has a distinct equity, he must set it up by a cross-bill or by an original bill; he can not have the benefit of it by an answer.

2 Statute of Limitations in favor of deceased partner. After the death of one of the members of a copartnership, the Statute of Limitations begins to run in favor of his personal representatives against a claim to have an account of profits received by him.

Cause removed from the Court of Equity of Wake County.

The plaintiff, Weisman, and Richard Smith, deceased, on 21st of January, 1843, entered into an agreement in writing, to purchase and work in copartnership, black lead or plumbago mines in the county of Wake. Smith, by said agreement, was to advance the requisite funds to purchase the lands containing the mineral, to an amount not exceeding $10,000, and as soon as the lands were purchased, Smith was to convey one half thereof to Weisman in fee and Weisman was to pay Smith $3,500 at the expiration of five years, without interest, for his moiety, for which the plaintiff pledged his interest;

1 Wild v. Milne, 11 M. R. 207.

2 Union Co. v. Taylor, 5 M. R. 323; Watts' App., 8 M. R. 223.

and should the purchase of the necessary lands exceed $10,000, the excess should be a charge upon the profits of the concern. As soon as the purchases were made the parties were to commence the business of raising, preparing for market, and selling the mineral under the name and style of "Smith and Weisman,' and the plaintiff was to lend his constant attention to the business personally. The covenant concludes thus: "And it is further covenanted as follows, to wit: that if either party shall, at any time, wish to withdraw from the said concern, he shall not be at liberty to sell or convey his share or moiety, or any part or portion thereof, to any other person, before he shall have given to his co-partner at least twelve months' notice thereof, and to whom the refusal to purchase shall always be given within that time; and the parties do severally bind themselves, their heirs, executors, administrators or a signs, to the strict performance of this last article."

Smith, in pursuance of this contract, bought a large quantity of land, lying mostly in separate and disconnected parcels for which he took deeds in fee simple to himself, for which he paid an excess over $10,000 of about $6,000, and the bill charges that he cut firewood and received rents from the said land, up to the time of his death in 1852, and afterward his devisees, the defendants, Penelope and Mary Ann, did the same, until they sold the whole of their interest in the premises in April, 1854.

The plaintiff also charges that the said Smith obtained large quantities of mineral, plumbago or black lead, which he sold in the northern markets, and for which he received the money, at high prices, but did not account with the plaintiff for any part of it.

In October, 1849, Weisman, with the consent of Smith, agreed to sell to one James Hepburn one half of his interest in the said mines, to wit, one fourth part thereof, at the sum of $10,000; and on receiving the sum of $3,500 in cash, and $6,500 in a note payable to Weisman, and indorsed by him to Smith, he, Smith, made to Weisman and Hepburn a deed for one half of all the several tracts of land that had been purchased by him for the purpose of mining as stated, except two small tracts hereafter referred to, and took from them a mortgage of their interest to secure the said sum of

$6,500. This latter sum Smith claimed for advancements made by him over and above the sum of $10,000, which he was bound by the contract to invest. This sum of $6,500 has since been paid by Hepburn to the assignees of Smith.

In the month of April, 1854, James Hepburn sold his interest in these mining lands to William H. Winder, of the city of Philadelphia, and subsequently, to wit, on 20th of April, 1854, Mrs. Penelope Smith and Miss Mary Ann Smith, the devisees of the said Richard Sinith, sold their interest, to wit, one half of the said land, to the said William II. Winder, and he took a deed in fee for the same. Winder and others obtained a charter from the governor of the State in 1854-5 for an incorporated company, called the Herron Mining Company, and the lands and mines were worked afterward by that company. The bill alleges that previously to the sale to Winder the plaintiff proposed to Mrs. Smith and her daughter to take their share of the lands and mines according to the provision of the covenant, and offered them a full price for them, but they refused to let them have them; that he has made offers to Winder and to the Herron Mining Company to pay them what they gave for the premises and take the whole property, but they have refused to comply with this request.

The bill was filed on the 24th of September, 1857, and insists that the plaintiff is entitled, according to the terms of the contract of 1843, to have his election to take the whole of the lands, etc., purchased from the Smiths by Winder, and sold to the corporation at the price the latter gave for them; and he now elects, and prays the court to decree him a conveyance of the premises by the said Herron Mining Company; also an account from the executors of R. Smith of his share of the rents and profits derived from the property by him in his lifetime, and an account of the same from Mrs. Smith and her daughter, while they had and used them; also, from Winder and the Herron Mining Company, since they have come into possession.

The answers of the several defendants were filed, but it is not necessary to notice more of their contents than that they insist on the Statute of Limitations in bar of the accounts asked for, all the time pleading three years before the filing of the plaintiff's bill. Also, Mrs. Smith and her daughter say that

at the time of the sale to Hepburn, it was expressly agreed that the mill and mill site should remain the property of Smith exclusively, and should be excepted from the conveyance by him to Weisman and Hepburn, and that by the agreement of all parties, an instrument of writing was drawn up to that effect which the plaintiff promised to sign, but that he suddenly left the city of Raleigh and returned to Philadelphia, and that another portion of the four acres was to be exempted for a church.

GRAHAM and G. W. HAYWOOD, for the plaintiff.

MASON and B. F. MOORE, for defendant Winder.

MILLER, for the Smiths.

PEARSON, C. J.

1. The plaintiff is not entitled to a specific performance of that part of the agreement executed by him and Richard Smith on the 21st of January, 1843, in which it is stipulated that if either party should wish to sell, he shall give the other "the refusal," or what was aptly called on the argument "the right of pre-emption."

We are inclined to the opinion, that a court of equity would not have interfered to compel a specific performance between the original parties. Such stipulations are against public policy, and operate in restraint of alienation; for which reason they are not favorites, either in courts of law or courts of equity. At law, an understanding of this nature is not treated as a grant of an easement or privilege, or as a condition, so as to be attached to the land, in respect to which it is made, but merely as a collateral personal covenant, for a breach of which the party may be entitled to an action for damages : Blount v. Harvey, 6 Jones' Rep. 186; Keppel v. Bailey, 2 Mylne & Keene, 577, where it is said, "incidents of a novel kind can not be attached to property at the fancy or caprice of any owner," because "it is clearly inconvenient to the science of the law that such a latitude should be given." "Great detriment would arise and much confusion of rights, if parties