were allowed to invent new modes of holding and enjoying real property, and to impress on their lands a peculiar character, which would follow them into all hands, however remote."

Considerations of this kind apply as forcibly in equity as at law; consequently, the court should not treat such agreements as creating a trust binding the parties and privies to a specific performance, but should leave the party aggrieved by breach thereof, to his remedy at law. If one takes land in fee simple, and covenants not to alien, a court of equity will not interfere by injunction to prevent him him from so doing, but will leave the party to his remedy at law. That is clear. The covenant under consideration is, in effect, a modified agreement not to alien, and falls under the like reason.

We are also inclined to the opinion that the effect of the sale by Weisman to Hepburn, with the concurrence of Smith, of one half of his interest in the lands, and of the deed executed by Smith to Weisman and Hepburn, vesting in them, as tenants in common, the legal right to one undivided moiety of the lands, made such a change in the relation of the parties as to annul and supersede the stipulation which had been made between Weisman and Smith, in respect to the right of pre-emption. It was based on the footing of the co-partnership, and was an emanation of the idea entertained by the parties of a "grand monopoly" in respect to the mines, which suggested that if one of the parties should ever wish "to withdraw from the said concern," it was highly probable that the other party would desire to become the owner of the whole, and the stipulation was made to enable him to possess himself of the monopoly. The firm, which was known under the name and style of "Smith and Weisman," was dissolved by the transactions above referred to, and it is fair to infer that the idea of the monopoly was abandoned and passed away when the firm ceased to exist; for no allusion is made to this stipulation in Sinith's deed, and Hepburn is not required to become a party to it, although he acquired one fourth of the land as a tenant in common. All mutuality was in this way destroyed, and the fulfillment of the stipulation was, in fact, rendered impracticable. Was Weisman, owning one fourth, entitled to a pre-emption right in respect to the whole of Smith's half

or only to one half of that half? Did Weisman communicate to Hepburn an interest in the pre-emption, so as to give him the right as to one fourth, both in respect to Smith and Wei: man? Was Smith bound to offer the refusal to Weisman alone? Or to Weisman and Hepburn jointly? Or to them severally, each one fourth? And, per cont a, had Smith a pre-emption right as against Weisman alone, or Weisman and Hepburn jointly? Or the two severally? The parties have not enabled the court to answer these questions. The absence of any provision for this new state of things raises a presump tion that the stipulation in question was treated and considered by all parties as being defunct.

We are of opinion that upon the death of Mr. Smith the stipulation did not follow the land and bind his devisees in respect to it, so as to entitle the plaintiff to enforce it against them or their assignees. It could only have this effect by giving to it the character of a trust. We can conceive of no ground to clothe it with this character. On the contrary, the considerations above suggested tend to show that the court would not allow it to be so treated, except as between the original parties, even if an intention to make it a trust, had been expressed by the terms of the agreement.

The clause whereby the parties "bind themselves, their heirs, executors, administrators and assigns, to the strict observance of this article," has no further effect than the same words added to a bond for the payment of money. It may be that the plaintiff can maintain an action at law against the personal representatives of Smith or his real representatives, that is, his devisees, for breach of this covenant, but there is no ground on which he can treat a purchaser as holding in trust for him; because no trust was created in his favor by the original agreement.

2. The plaintiff is entitled to a declaration in the decree, that he owns one fourth of the legal and equitable estate in all the lands set out in the deed executed by Smith to Weisman and Hepburn, 1st of February, 1850, free from an incumbrance or lien, by reason of the mortgage executed by himself and Hepburn to Smith, and to a further declaration that the mortgage debt has been satisfied, and to a decree for a reconveyance. This equity was yielded by the defendants on the

argument, except as to four acres of land which, it is alleged, are given to the church, and four acres on which the mill is situated; in respect to which they allege a cross equity to have a specific performance of an agreement to convey the same to Smith, executed by Weisman and Hepburn. Whether the defendants will be able to establish the cross equity, or whether it can be met by the plaintiff on the ground that it was obtained without consideration, and by the undue exercise of the influence which Smith held over them by reason of being a creditor, and having them in his power, or will, at all events, be allowed only to the extent of giving a lien on the mill as a security for the amount expended by Smith in the erection of the mill, are questions into which we will not enter, because they are not presented in a proper manner by the pleadings. Where the defendant has an equity, he must set it up by a cross-bill. This is a well settled rule of the court. The decree, however, in this case will be so framed as to be without prejudice to this equity of the defendants, so as to enable them, if so advised, to seek to have it set up by an original bill, when the matter can be fully presented without being attended by the complication and confusion that a cross-bill filed in this case would necessarily have produced, considering the very voluminous pleadings and exhibits relevant to the several equities which the plaintiff seeks to enforce.

3. The plaintiff's right to an account against the personal representatives of Smith, is barred by the Statute of Limitations. It is true that as between copartners and tenants in common, the Statute of Limitations does not run, until, as Henderson, C. J., expresses it in Wagstaff v. Smith, 2 Dev. Eq. 264, "there is a cesser of the privity or connection from which the accountability arises." In that case, and in Northcott v. Caspe", 6 Ired. Eq. 303, the relation of the parties was not changed; but in our case, on the death of Smith, there was a change in the relation of the parties. Smith, of course, could no longer be a copartner, or a tenant in common, and, consequently, an action accrued for or against his personal representatives to have an account of the profits received, which action is barred by the statute; for, although his wife and daughter acquired his estate, as devisees, the estate passed

to them as assignees, and the relation which had previously existed between him and the plaintiff was of course at an end. So the right of action in respect to the profits accrued at that time; for there was a cesser of his privity or connec'tion as tenant in common," a new relation then commenced between him and the devisees, and the case is the same as if one tenant in common sells. That is, a cesser of his relation as tenant in common; and a cause of action then accrues to all of the tenants in respect to the arrearages of profits, and a new relation begins between the other tenants and the purchaser.

The bill was filed on 24th September, 1857. Mrs. Smith and Miss Mary sold to Winder 20th of April, 1854, at which time there was a cesser of the connection with the plaintiff as tenant in common. So, the plaintiff's right to an account against them is barred, except from the 24th of September, 1854. For all profits or moneys received for, or on account of, or out of the lands, after that date, he is entitled to an account as against Mrs. Smith and Miss Mary, and the defendant Winder, and the Herron Mining Company. How far the fact that the developments of lead ore cropped out in so many places and the quantity of wood was so great as to leave ample room for all the tenants in common to come and take their share, distinguishes that species of profits from the receipt of rent, either in money or product paid by the lessees of the several houses and cleared pieces of ground in the. many tracts of land, is a question which may be presented by exception to the account.

Decree accordingly.

PER CURIAM.

1. A title bond giving the privilege of purchase, without obligation to purchase, or other consideration, is a mere option and nudum pactum: Gordon v. Darnell, 2 M. R. 220; Smith v. Reynolds, 2 M. R. 227; Finerty v. Fritz, 1 M. R. 438.

2. Contract to work mines with option to purchase: Gordon v. Swan, 3 M. R. 84.

3. Time within which option must be exercised: Carondelet Works v. Moore, 2 M. R. 625.

BLEWETT V. COLEMAN ET AL.

(40 Pennsylvania State, 45. Supreme Court, 1861.)

Waiver of right to part. By contract the right to partition may be waived: affirming Coleman v. Coleman, 11 M. R. 183, and Coleman v. Grubb, 23 Pa. St. 393, previous controversies between the same parties.

A traditional survey agreed at one time to have been made and supposed to have been at that time made, but never satisfactorily proved, and a subject of continued contention, can not be treated by courts as binding upon the parties, although they have attempted to fix it by subsequent survey.

1

Discovery of copper after con'ract concerning partition of iron ores.

Where tenants in common by agreement continued their tenancy in common, and arranged for the enjoyment of their respective rights in a certain manner of all the iron ore in certain deposits, their rights in copper or other more valuable ore subsequently discovered in the same tract would remain unchanged; or at least they would still be tenants in common therein.

Rights of lessee of one co-tenant. A party who has mined ore as tenant of one of several co-owners, may recover in trespass against another of the co-owners for taking away the ore so mined by such tenant; otherwise, if he fail to prove the alleged lease or license under which he mined the ore.

The receipt of rent is evidence of ratification.

Balancing of interests. Where the interest of a witness is equally balanced between the parties, he is competent and may testify.

Error to the Common Pleas of Lebanon County.

This was an action of trespass vi et armis, brought March 16, 1860, by Benjamin Blewett v. Robert W. Coleman and Artemus Wilhelm, to recover damages for taking and carrying away a quantity of copper ore which had been mined by him in the Cornwall mine hills of Lebanon county, and for injuries done to the shanties and shafts which he had erected and sunk on the premises, under a lease from persons claiming to own certain rights or workings in said ore hills.

The defendants, by their attorney, entered the plea of not guilty, to which Coleman added the plea of liberum tenementum, which was followed by a replication and a new assignment. Afterward an assignment and special plea of license, and a

1 McCord v. Oakland Q. Co., 64 Cal. 134; 49 Am. R. 686.