veyed, and remained subsisting thereon when this action was commenced, and that the court erred in deciding otherwise.

It may be laid down as a general principle 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. In the words of Lord Hardwicke, "When an account is to be taken, each is entitled to be allowed against the other everything he has advanced or brought in as a partnership transaction, and to charge the other in the account with what the other has not brought in, or has taken out more than he ought; and nothing is to be considered his share but the proportion of the residue on the balance of the account." Coll. on Part., Sec. 125; Story on Part., Sec. 97; Buchan v. Sumner, 2 Barb. Ch. 167. The subjection of personal property of a partnership constituting its capital stock to the principle stated, is generally of no difficulty; but where the property employed in the partnership enterprise is real estate, held by the several partners as tenants in common, the question has been regarded as one of more embarrassment; mainly, we apprehend, because of the nature of the property itself and the law controlling its descent, and the inability of any one of the tenants in common to charge or dispose of any greater or other interest in such real property than that which he may have and hold.

Without entering at much length upon an examination of the English and American authorities on the subject, we may say that the doctrine is well established in America, that real estate purchased by partners, with partnership funds, for partnership purposes, is at law held by them as tenants in common; but in equity it is deemed as held in trust as a part of the partnership property, applicable, in the first place, exclusively to pay the partnership debts: Burnside v. Merrick, 4 Met. 541; Hoxie v. Carr, 1 Sum. 173; Story on Part., Secs. 91, 92; Jones v. Parsons, 25 Cal. 104, 105; Pierce v. Trigg, 10 Leigh, 406; Sigourney v. Munn, 7 Conn. 11; Buckley v. Buckley, 11 Barb. 74, 76; Buchan v. Sumner, 2 Barb. Ch. 197, 206; Divine v. Mitchum, 4 B. Mon. 488; Dyer v. Clark, 5 Met. 562. In the case last cited, at page 577, Mr. Chief

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Justice Shaw said: "It appears to us, that considering the nature of the partnership and the mutual confidence in each other which that relation implies, it is not putting a forced construction upon their act and intent to hold that when property is purchased in the name of the partners, out of partnership funds and for partnership use, though by force of common law they take the legal estate as tenants in common, yet that each is under a conscientious obligation to hold that legal estate until the purposes for which it was so purchased are accomplished, and to appropriate it to those purposes by first applying it to the payment of the partnership debts, for which both his partner and he himself are liable; and until he has come to a just account with his partner. Each has an equitable interest in that portion of the legal estate held by the other, until the debts, obligatory on both, are paid, and his own share of the outlay for partnership stock is restored to him." And in Howard v. Priest, the same learned judge decided that real estate thus acquired is held in trust, "each holding his property in trust for the partnership, until the partnership account is settled, and the partnership debts paid." Id. 585.

In Buchan v. Sumner, Chancellor Walworth, in an elaborate opinion, in which he reviewed the English and American cases on the subject, considered the American decisions in relation to real estate purchased with partnership funds, or for the use of the firm, as establishing these two principles: First. That such real estate is, in equity, chargeable with the debts of the copartnership, and with any balance which may be due from one copartner to another upon the winding up of the affairs of the firm. Second. That as between the personal representatives and the heirs at law of a deceased partner, his share of the surplus of the real estate of the copartnership which remains after paying the debts of the copartnership, and adjusting all the equitable claims of the different members of the firm as between themselves, is considered and treated as real estate: 2 Barb. Ch. 200, 201; and at page 206 he said: "Although a court of equity considers and treats real property as part of the stock of the firm, it leaves the legal title undisturbed, except so far as is necessary to protect the equitable rights of the several members of the

firm therein." In Pierce v. Trigg, the Court of Appeals of Virginia held that land purchased by two partners with partnership funds for partnership purposes, and used as part of the stock in trade, is to be regarded in equity as partnership property; and though, if the conveyance has been made to both partners, there will, upon the death of one, pass to his heirs a legal title, yet the whole beneficial interest devolves upon the survivor, and he may sue the heirs, compel a sale and dispose of the proceeds as he would of the personal estate of the firm. The principles declared in these cases, it is said by Collyer," are founded in sound policy and obvious justice, and the correctness of them appears to be incontestable." Coll. on Part. Sec. 135; and of this opinion was Chancellor Kent: 3 Kent's Com. 39. The case of Jones v. Parsons, 25 Cal. 100, accords in doctrine with the cases from which we' have quoted.

In Sm th v. Jackson, 2 Edw. Ch. 28, the vice-chancellor held, that though real estate be purchased with joint funds for partnership purposes, there is no survivorship as to the real estate, and that upon the death of one of the partners, his share, as a tenant in common, descends to his heirs, unless it is agreed by the partners themselves to consider it as personalty, and then the agreement works the change. That when real property is acquired by partners with partnership funds, and used for partnership purposes, it will not be deemed partnership property, liable to partnership debts, by the mere taking of the deed in the joint names of the partners! To render it partnership property, and liable as such, he held it must appear that it was acquired for the purposes of the partnership by some express act or understanding of the partners; in which case equity would apply the lands to pay the partnership debts. This decision, and others to the same effect, Chancellor Kent observed, appeared to him to be a sacrifice of a principle of policy, and, above all, a principle of justice, to a technical rule of doubtful authority. There is no need, he said, of any other agreement than what the law will necessarily imply from the fact of the investment of partnership funds by the firm in real estate for partnership purposes. If the partners mean to deal honestly they can not have any other intention than the appropriation of the investment, if

wanted to pay the partnership debts: 3 Kent's Com. 39, note. Chanceller Kent evidently favored the doctrine held by Lord Eldon in Selkrig v. Davies, 2 Dow. Parl. 231, 242, and in Townsend v. Devaynes, reported in 1 Mont. on Part. 97, and by Sir John Leach in Fereday v. Wightwick, 1 Russ. & M. 45, and Phillips v. Phillips, 1 Myl. & K. 649, and Broom v. Broom, 3 Myl. & K. 433, that all property involved in a partnership ought to be considered as personalty, even in the absence of any special agreement in respect to it. In the case of Thornton v. Dixon, 3 Bro. C. C. 199, Lord Thurlow held, that in the absence of any agreement or other act affecting its general character, real estate, held as part of the partnership property, retained its original character as real estate, and upon the death of one of the partners his share passed to his heir or devisee; and Sir William Grant in Bell v. Phyn, 7 Ves. 453, and Balmain v. Shore, 9 Ves. 501, adopted the same opinion. While the doctrine of the cases is somewhat conflicting, we think the principles stated by Chancellor Walworth, in Buchan v. Sumner, as rules deduced from the American decisions, are a sound and just exposition of the law on the subject (2 Barb. Ch. 200, 201); and as a corollary of these rules, the real property of the partnership may be considered and treated as part of its capital stock, leaving the legal title undisturbed, subject to the law controlling as to its alienation, descent and distribution, except in so far as may be necessary to protect the rights of creditors and of the several members of the firm. We do not think the jurisdiction of a court of equity depends for its exercise, subjecting real estate thus acquired and used by a partnership to the payment of the debts of the concern, upon an express agreement of the parties to that effect. That real property shall be subject to the purposes for which it was purchased or brought into the partnership, involves the assumption that the partners understood among themselves and intended that it should be held in trust for the uses of the partnership by the several tenants in common. This understanding may be implied from the acts or conduct of the parties. The circumstance that property, whether it be real or personal, is invested in a partner ship enterprise, affords cogent evidence of intention that it shall constitute a part of its capital stock. Therefore we do

not deem it essential that such intention must be manifested by an express agreement. The agreement is implied from the circumstances, by the rules of law and logic; and it is only equitable to the creditors and members of the partnership that the property should not be withdrawn until the affairs of the association may be adjusted and each of its members shall have his just due: 3 Kent Com. 39, note.

A portion of the real estate involved in the controversy, as we understand the case, was acquired by the persons originally interested prior to their actually engaging in the business of mining, and it may perhaps be supposed the authorities cited do not therefore apply. If such mining ground was obtained by the parties solely for the purpose of extracting gold from it, and for that object was brought into the partnership as its capital, it must be regarded as partnership property in the qualified character already expressed. The land being obtained for the sole object of mining, and invested in the mining partnership, it is impossible on principle to distinguish it as resting upon any other footing in its relation to the partnership than mining land acquired by the partnership for mining purposes after the joint enterprise is fully in operation: Crawshay v. Maule, 1 Swanst. 523; Coll. on Mines, 88; Rockwell on Mines, 578. Mr. Rockwell, after noticing what was said by Sir John Leach in Fereday v. Wightwick, observes that "it may be concluded that when persons acquire interests in lands apparently for the sole purpose of working the mines in them, they must be considered as entering into a commercial partnership. There does not appear," he continues, "to be any ground for distinction in such cases, if the parties have even acquired a permanent and absolute interest in the property." But he submits it as a general rule in such cases that "there must not only be an express intention to work the mines, but this object must have been either solely contemplated by the parties, or of such paramount consequence as to effectually over-balance any other advantages anticipated from the estate." This, in our judgment, refers the rule to a principle just in itself and easily to be understood.

In support of the right of the plaintiff to the relief which he seeks, as well as to the doctrines which, it may be, are