partnership interest therein proportionate to his ownership as aforesaid.

"And plaintiffs further show that the said Harkness has, during the whole period of the copartnership aforesaid, managed and controlled its business and affairs, has had the same under his sole supervision, and has collected and received all the rents and profits arising from the sales of water from said ditch, which sales have amounted, exclusive of expenses, to the net aggregate of about the sum of nine thousand five hundred and fifty dollars, all of which he has retained and converted to his own use, except the sum of two hundred and sixty dollars paid over to plaintiffs during the year A. D. 1858. And the said plaintiffs, upon their information and belief, aver that the said Harkness is indebted to them in about the sum of four thousand dollars for money had and received by him, as their proportion of the proceeds from said ditch, and they aver that they have oftentimes, prior to the commencement of this suit, demanded of the said defendant to pay over to them their proportion of the said proceeds, and to render an account of the business and affairs of said copartnership, and that the said defendant has hitherto, and still does, obstinately and without any just ground, refuse to settle with plaintiffs or to render an account, or to pay over plaintiffs' portion of the said proceeds, or any part thereof, except the said sum of two hundred and sixty dollars before mentioned ; and plaintiffs represent that their copartnership interest in said ditch, so long as it shall remain in the possession and under the control and management of the said Harkness, will be utterly worthless to them and yield no income, and they say and aver that said ditch property can not be divided or partitioned without serious damage to the whole property.

"And plaintiffs further show that defendant Harkness, on the 7th day of July, A. D. 1860, executed, acknowledged [and] delivered to the defendant Armstrong, a mortgage on his undivided interest in said copartnership property, to wit, the ditch aforesaid, purporting to be given to secure a debt for two thousand one hundred dollars, bearing interest at the rate of two per cent. per month from date until paid, which mortgage was recorded in the recorder's office of Placer county, on the 10th July, A. D. 1860, and remains unsatisfied upon the record. And plaintiffs say that said mortgage was given to secure the

individual indebtedness of the said Harkness to said Armstrong, and that the same and the demand therein mentioned are subject and subordinate to the rights of the plaintiffs as copartners of the said Harkness.

"Plaintiffs claim that the amount which may be found due them on a settlement of the said copartnership takes precedence and has priority over the said mortgage.

"Wherefore, the premises considered, plaintiffs pray the decree of the honorable court for a dissolution of the copartnership existing between them and the defendant Harkness. They ask that an account be taken between them and the said Harkness touching the affairs, rents, and property of said ditch, and for judgment against said Harkness for the sum which may be found due upon the taking of said account; that the sum so found due be decreed to have priority over the mortgage lien of said Armstrong; that said ditch be sold to the highest bidder for cash, after giving due notice of the time and place of sale, and the proceeds arising from such sale be applied as follows, to wit:

"First-To the costs of this action, and the expenses of making said sale.

"Second-That eight nineteenths of said proceeds, after deducting said costs and expenses, be paid over to plaintiffs. "Third-To the payment of the Armstrong mortgage.

"Fourth-The surplus, if any, to be paid to defendant Harkness. And plaintiffs further ask that they may be purchasers at said sale, and that after the application of the proceeds as may be directed by the court, that the said Armstrong be decreed to satisfy his said mortgage.

"And plaintiffs pray for such other and further relief as equity sanctions, and for general relief.

"HALE & SMITH, "Aitorneys for Plaintiffs.”

The defendant demurred to the complaint. The demurrer was overruled, and defendant answered. On the trial plaintiffs recovered judgment and defendant appealed both from the judgment and from an order denying a new trial.

CHARLES A. TUTTLE, for appellant.

TWEED & CRAIG, for respondents.

SANDERSON, C. J., delivered the opinion of the court.

The demurrer to the complaint ought to have been sustained. It proceeds upon two legal theories which are wholly inconsistent. It first alleges a copartnership in general terms in the ditch, which is followed by allegations respecting the management thereof and its rents and profits. It then drops the copartnership theory and adopts that of a tenancy in common in real estate, and avers that the ditch can not be divided or partitioned without serious injury, and asks that an account of the rents and profits may be taken and the ditch sold, etc. The pleader seems to have been unable to determine which was the true theory, and in his doubt and uncertainty, concluded to partially incorporate both in his complaint, being satisfied that one or the other must suit the facts to be developed by the evidence. In addition, and apparently for the purpose of completing his salmagundi, the pleader throws in a note and mortgage of the defendant upon his interest in the ditch, and asks that it may be foreclosed and defendant's equity of redemption cut off by an absolute sale, as in partition, of the ditch. This style of pleading, if allowed, would lead to most pernicious results. All correspondence between matters of allegation and matters of proof would be dispensed with and the judgment or decree allowed to proceed upon a theory of its own and not secundum allegat, but regardless of the pleadings.

We can not, if so disposed, discard any part of the complaint as surplusage, for the complaint does not state facts sufficient to constitute a cause of action under either theory. In the absence of any special facts constituting them something else, the proprietors of ditches in the mining districts are tenants in common of real estate, and their rights in the ditch and in the profits arising from the sales of water, although in the latter respect analogous to those of copartners, are governed by the law of tenancy in common. The ditch is real estate, and each proprietor buys in, or sells out, or incumbers his interest at pleasure, regardless of the knowledge, or consent, or wishes of his co-proprietors, and without affecting the legal relation existing between them beyond the going out of one and the coming in of another. This can not be done where a copartnership exists. One can not buy in or sell out of a partnership

at pleasure. Such an act would of itself work a dissolution of the partnership and necessitate its final settlement and closing out. A tenancy in common results from a rule of law by which it is also controlled and governed. A partnership, on the contrary, is the result of agreement between parties, which also supplies the rules for its government. The former relation is undisturbed by a change of tenants, but the latter admits of no change as to its members; and where a change takes place by the consent and agreement of all the parties concerned, the old firm is thereby dissolved and a new one created. Thus the incidents annexed to each have a different origin and are diverse; also, the proceedings for a dissolution of these relations are different and are grounded upon entirely different facts. As to the first, the mere desire of one of the tenants is sufficient to set the courts in motion; but as to the latter, cause must be shown.

The complaint in this case does not aver a contract of copartnership between the plaintiffs and defendant; on the contrary, it is apparent from the facts, so far as they appear, that there was no partnership between them. The averment is that the plaintiffs, on the 12th of April, 1858 under the style of the Dutch Flat Water Company, became the copartners of the defendant Harkness in a certain water ditch, describing it. In the next paragraph it is shown how they became copartners by the averment that at the date aforesaid they became the owners of seven nineteenths of said ditch, and thus as seven is to eleven, became the copartners of the defendant. The two allegations must be read together. So the idea of a copartnership is grounded entirely upon the fact of a purchase by the plaintiffs of an interest in the ditch in which the defendant was and had been a part owner with plaintiffs' grantors, and not upon any contract of copartnership between them and the defendant. After what has been said, it is hardly necessary to add that a partnership with defendant was not the result of the plaintiffs' purchase. Upon the partnership theory, therefore, the complaint fails for the want of facts to uphold it. Upon the theory that the action is brought for a partition of real estate, the complaint is equally defective because the primary facts upon which a right to a partition is founded (section two hundred and sixty-four of the Practice Act) are nowhere averred.

So far as the real facts of the case can be surmised by the dim light afforded by the record, the plaintiffs' remedy is by suit for partition. In such an action the mortgage claim of the plaintiffs can be settled and adjusted, and, as collateral to the main question, an account of the water-rates can be taken and the rights of the parties therein respectively ascertained. The judgment is reversed and the plaintiffs allowed to amend their complaint upon the payment of the costs on this appeal and the costs of the former trial in the court below.

DURYEA V. BURT ET AL.

(28 California, 569. Supreme Court, 1865.)

1Mine owners working claim together. If the owners of mining ground purchase adjoining ground and pay for it out of a common fund, and work the common property sharing the profits and loss of the enterprise in accordance with their respective interests, the elements of a partnership exist among the different owners, although there is no express stipulation between them to share the profits and losses.

2 Mining and ordinary partnerships distinguished. Mining partnerships are distinguished from ordinary trading partnerships in not being founded on the delectus personæ, from which principle the rights and obligations of ordinary trading partnerships are derived.

Assignment no dissolution. One of the peculiar rules attaching to mining partnerships is that one person may convey his interest in the mine and business without dissolving the partnership.

L'en of partner against assets. It is a general principle, applicable to this case, that each member of a partnership has a specific lien on the partnership property, not only for the debts and liabilities due to third persons, but also for his own share of the capital stock and funds and for all moneys advanced by him for the use of the concern. Real estate as partnership assets. Real estate acquired by mining partners for the purposes of the partnership concern, is subject to all the debts of the partnership and subject to the debts of one of the partners incurred in the administration of the property.

Purchase of interest subject to lien-Notice when presumed. If the interest of a mining partner in the common property is purchased while another party has a lien against such interest, the lien subsists after the conveyance, unless it is lost by reason of the purchase being in

Note 1, ante, p. 381.

2 Skillman v. Lachman, 11 M. R. 381; Fereday v. Wightwick, 11 M. R. 247; Charles v. Eshelman, 2 M. R. 65.