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should be compensated. If entirely lost, then the full va ue of the estate and property would be the measure. There is always some standard for this, as we constantly see the sales and purchases of such interests. Whatever ascertains this, is proper evidence upon which a jury may base their estimate: Sedgwick on Damages, 69; Schr. Lively, 1 Gal. 314; Forsyth v. Palm er, 2 Harris, 96; O'Conner v. Forster, 10 Watts, 418; and Hoy v. Gronoble, 10 Casey, supra. We think, therefore, for the reasons given, that the learned judge opened too wide a range for damages in that part of his charge. For this, as well as the other reasons assigned, this judgment must be reversed. Judgment reversed and venire de novo awarded.

SKILLMAN V. LACHMAN ET AL.

(23 California, 199. Supreme Court, 1863.)

Jurisdiction on appeal-How determined. Where a plaintiff appeals against a judgment for the defendant, the jurisdiction of the Supreme Court, as to amount, is determined by the complaint. Where the plaintiff appeals from a judgment in his favor, then it is the difference between the judgment and the sum claimed. Where the defendant appeals from a judgment in his favor, the amount in dispute is the difference between the judgment and the counter-claim. Interest goes to make up the amount in dispute, and if the interest added to the principal swells the judgment to the sum at which the court takes jurisdiction, it is the same as if the principal had equaled that amount.

'Where the several owners of a mine co-operate to work it, they form a mining partnership.

2 A mining partnership differs from an ordinary partnership, in certain inci dents, to wit: inter alia (1) the sale of his interest by one partner does not dissolve the relation; (2) no one partner can bind the company by note or contract of indebtedness in the name of the company. Where the note of the mining firm is sued on, the plaintiff must prove that the person executing the same had authority to subscribe the company's name.

The power to purchase materials for the use of the mine does not imply the power to execute a note bearing interest.

Title to stolen stock can not be divested out of the real owner by sale at auction and purchase by innocent buyer.

1

1 Dougherty v. Crary, 1 M. R. 35; Higgins v. Armstrong, 10 Pac. 232; Nolan v. Lovelock, 9 M. R. 360.

2 Duryea v. Burt, 11 M. R. 395.

Appeal from the County Court, Nevada County.

C. WILSON HILL, for appellant.

THOMAS P. HAWLEY, for respondent.

CROCKER, J. delivered the opinion of the court, NORTON, J. concurring, and COPE, C. J. concurring specially.

This is an action upon a promissory note for one hundred and two dollars, with interest at three per cent. per month, against the defendants, as members of the "Gold Hill Company," originally brought before a justice of the peace, where a judgment was rendered against the defendants, from which they appealed to the county court, where judgment was again rendered against them for two hundred and sixty dollars and forty-six cents, besides costs, that sum being the principal and interest of the note, and from which they appeal to this

court.

The respondent contends that as the note was for the sum of one hundred and two dollars only, this court has no jurisdiction of the case. Where the plaintiff is appellant, and the judgment is for the defendant, the jurisdiction of this court is determined by the amount claimed by the complaint, for that is the "amount in dispute" in such cases: Gillespie v. Benson, 18 Cal. 410; Votan v. Reese, 20 Id. 89. But if the appeal is by the plaintiff from a judgment in his favor, then the "amount in dispute" is the difference between the amount of the judgment and the sum claimed by the complaint: Votan v. Reese, 20 Cal. 89. So, upon the same principle, if the appeal is taken by the defendant from a judgment rendered against him for a sum exceeding two hundred dollars, exclusive of costs and percentage, this court has jurisdiction of the case because the amount of the judgment is the "amount in dispute" on the appeal. So, too, if the appeal is taken by the defendant from a judgment in his favor, where he has set up a counter claim, if that judgment is for a sum more than two hundred dollars less than he claims in his answer, this court has jurisdiction. The respondent contends, however, that the interest due on the demand forms no part of the amount to be

included in the estimate of the "amount in dispute." In this he is mistaken. The interest forms part of the demand sued for, and should properly be included in the estimate. It follows that the objection to the jurisdiction of this court is not well taken.

The transcript in this case is very imperfect; neither the notes sued on nor the pleadings are inserted in it. It appears, however, that the plaintiff furnished the "Gold Hill Company" (a company of persons who were working a mine together) with a quantity of lumber, for which the note was given, and which was signed, as follows: "H. P. Sprout, Foreman for Gold Hill Company." When the note was offered in evidence in the county court, the defendants objected that it was the note of Sprout, and not of the company, which was overruled and excepted to. Judging from the signature it would appear to be the note of Sprout alone, and the words "Foreman for Gold Hill Company" are merely descriptio persona; but the terms of the note itself may show that it was, in fact, intended to be the note of the company. This point we can not determine, as the note does not appear in the transcript.

The principal point raised by the appellant is that the owners of the claim are tenants in common and not partners; that Sprout was one of the owners, and that one co-tenant can not bind his co-tenants by a note given in the name of the company. This question of the relation which exists between persons owning several interests in a mine, and engaged in working the same, is a very important one. Whatever may

be the rights and liabilities of tenants in common of a mine not being worked, it is clear that where the several owners unite and co-operate in working the mine, then a new relation exists between them, and, to a certain extent, they are governed by the rules relating to partnerships. They form what is termed a mining partnership, which is governed by many of the rules relating to ordinary partnerships, but which has also some rules peculiar to itself-one of which is that one person may convey his interest in the mine and business, without dissolving the partnership: Fereday v. Wightwick, 1 Russ. & Mylne, 49. Still, there may be a partnership in the working of a mine, subject to the rules relating to an ordinary partnership in trade: Story on Part., Sec. 82. And this rela

tion of partnership may be constituted either by express stipulation or by implication deduced from the acts of the parties: Rockw. on Mines, 575. But in the case of an ordinary mining partnership, something more will be required to raise the presumption of liability arising from persons holding themselves out to the world as partners than would be necessary in the case of an ordinary partnership. Sach per sons, in the absence of other circumstances, can not fairly be presumed to have intended to render themselves liable to all the consequences of a commercial partnership: Id. The same author concludes his examination of this question as follows: "If the works are carried on by persons as mere owners of land, concurring in a general system of management for their common benefit, the shares of each person will only be liable for his individual engagement, and to the payment of debts contracted by himself, or his authorized agent, without interfering with the shares of the other tenants in common." Id. 579.

There have been several decisions relative to the rights and liabilities of shareholders in mining companies to the public and among themselves, which it may be well to examine. In the case of Vice v. Lady Anson, 7 B. & C. 409, which was an action for goods sold and materials furnished for working a mine, in which the defendant held one share, evidenced only by a certificate issued by the secretary of the company, the plaintiff, at the time he furnished the goods, had no knowledge that she was a shareholder. She had paid the deposit on some shares, and had spoken and written of herself (in private letters) as a shareholder of the company. The judge held that the plaintiff did not actually give credit to the defendant, and was not misled by her, and that she never held herself out to the world as a partner, and therefore she could only be chargeable on the ground of being really interested. The fact that she thought she had an interest did not make her interested; and he held that the certificate conveyed no interest in the mine, and therefore she was not liable. The correctness of this decision, that it was necessary to prove a conveyance of an interest in the mine, has been doubted.

The case of Dickinson v. Valpy, 10 B. & C. 128, was an action by an indorsee of a bill of exchange, drawn and accepted

by a mining company, against the defendant as a member of the company. The defendant had applied for and obtained shares in the company, on which he had paid several installments. The business of the company was transacted by a board of directors, and the bill had been drawn and accepted in pursuance of a resolution passed by them. It was held necessary for the plaintiff to show that the directors had power to bind the shareholders by drawing bills of exchange; and for that purpose, evidence should have been given of the nature and character of the business of the company, to show that in order to carry into effect the purposes for which it was instituted the drawing and accepting of bills was necessary, or to show from the practice of similar companies that it was usual to draw such bills. It was also held, that although in ordinary trading partnerships the law implied that one partner had power to bind another by drawing and accepting bills, yet that rule did not apply to mining partnerships, without showing that it was necessary to carry on its business.

In Tredwen v. Bourne, 6 M. & W. 461, it was held that the members of a mining company have authority by law (in the absence of any proof of a more limited authority), to bind each other by dealings on credit for the purpose of working the mines, if that appears to be necessary or usual in the management of the mines. In Hawtayne v. Bourne, 7 M. & W. 595, the managing agent of the mining company had borrowed money from a bank to pay debts due to laborers who had levied distress warrants upon the materials of the mine, and it was held that there was no rule of law that such an agent could, even in case of an emergency suddenly arising, raise money and pledge the credit of his principals for its repaymint; that the authority of the agent was only that he should conduct and carry on the affairs of the mine in the usual manner; and there was no proof of express authority to borrow money, or that it was necessary in the ordinary course of the undertaking.

A joint stock company was formed to work a mine, in which the defendant became a shareholder, and took part in its proceedings. The prospectus, issued on the formation of the company, stated that all supplies for the mine were to be purchased at cash prices, and no debt was to be incurred; and

VOL. XI-25

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