Bybee was a member. Besides, the fact that he settled with E. C. Robinson, who then represented Hawkett as well as himself, and took his individual note for the amount and a mortgage upon his individual interest in the mine as security, without paying any attention to Bybee or his interest, is a circumstance tending to show that Magruder did not then regard the debt as due from Bybee.

On the other hand, counsel for the plaintiff insist that Bybee was not, by the terms of the agreement of July 26th, to become a partner with Hawkett and Robinson until the proceeds of the mine had reimbursed them for the money expended in its purchase and improvement, which, it is admitted, it never did.

In my judgment the agreement created a partnership from its date, consisting of Hawkett, Robinson and Bybee, for the purpose of operating the mine, and that, whenever it was operated by any or either of them, they all became liable for the debts thereby incurred; and the fact that a division of profits between the partners was postponed until the money advanced by Hawkett and Robinson for the purchase of a two thirds interest, and the improvement of the whole of it, does not affect the unqualified agreement of the parties in words of the present tense-" to mine and operate said mining property as a company."

In Beauregard v. Case, 91 U. S. 134, a question of partnership arose under very similar circumstances. In the course of the opinion of the court, delivered by Mr. Justice Field, it is said:

"There was in this agreement all the essential conditions for the creation of a partnership-provision for a union of services and money, and a division of profits and losses. The postponement of a division of profits Letween the three partners until the capital advanced by two of them should be refunded, with interest, did not alter the character of the agreement as one of partnership, nor the liability of all the partners to third persons for debts contracted in the prosecution of its business."

But admitting the partnership, and assuming that this debt. is a valid demand against the firm, and that therefore Bybee is liable therefor, I do not see how Magruder and Hawkett can set up their claim in this suit.

So far as Bybee is concerned this is a suit to enforce the agreement of July 26th as a personal contract against Hawkett and E. C. Robinson, and as a mortgage against the property. Magruder and Hawkett are not parties to it, nor have they any rights in it except by reason of the lien of their mortgage, and that to have their mortgage adjudged valid and assigned its proper place in the order of time and payment. But it is admitted that it is subsequent in point of time to that of the plaintiff, and that its payment out of the proceeds of this property as a debt secured by a lien thereon must be deferred until that is satisfied. But the defendants have no standing in this suit or right in this property except as mortgagees, and that is subordinate to the plaintiff's. This is not a suit to recover anything from the defendants, Magruder and Hawkett, and in which they can, therefore, plead a counter claim or set-off. Neither can they, if they would, convert their answer into a species of cross-bill and subject the sum which the plaintiff may obtain in this suit to enforce his mortgage against the property in question to the satisfaction of an independent personal claim which they may have against him. If they wish to enforce such a claim against him as a member of the partnership created by the agreement of July 26th, the courts are open to them to bring their action against him for that purpose.

The plaintiff paid the balance of the debt to Kubli of $382.68 as follows: He signed the note of Hawkett and Robinson therefor as surety, drawing interest at 1 per centum per month, upon which Kubli obtained judgment, which the plaintiff paid; and he now seeks to recover what he paid on that judgment, including the interest, costs and attorney fee, rather than the original amount, with legal interest.

But the liability of Hawkett and E. C. Robinson arises upon the agreement of July 26th, which is to pay the debt specified therein, with such interest as the law will allow thereon, none being agreed upon, and the costs properly chargeable against them in this suit for its collection. Whether the plaintiff has gained or lost in his contract as surety, or in the acquisition. of these claims, is nothing to the defendants. As has been said, their liability in this suit is measured by the agreement of July 26th.

The plaintiff, on his own account and as the representative of the other creditors mentioned in said agreement, has the first lien upon this property for the sum of $2,382.68, the aggregate sum of said claims, with interest thereon at the legal rate, to wit, 10 per centum per annum, from July 26, 1878, to January 25, 1880, a period of one year and six months, and at 8 per centum from then to July 1, 1882, making in all the sum of $3,113.36, together with the costs and expenses of this suit, except as to the defendants against whom the bill is dismissed.

The defend nts, Magruder and Hawkett, have the second lien upon the undivided two thirds of the property for the full amount of their note and mortgage, with interest as therein provided, and the costs of their defense.

The defendant John L. Robinson, as the assignee of Jesse Robinson, has the third lien upon said undivided two thirds of said property for the full amount of his note and mortgage, with interest as therein provided, and the costs of his defense.

The decree of the court will be that the bill be dismissed as to the defendants who are not liable to the plaintiff in this suit, and have no interest in the subject of it, namely, Jesse Robinson, Thomas Robinson, William W. Irwin, William Smith, Kasper Kubli, John Bolt, James F. Gazley and A. A. Fink, and that they, and each of them, recover costs from the plaintiff; that the master of this court sell this property as upon an execution at law, and apply the proceeds, after paying the costs and expenses of the sale, upon the claims aforesaid in the order specified.

1. Contract of partnership, how affected by the fact that the partners are also tenants in common: Graham v. Pierce, 19 Grat. 28; Post TENANTS IN COMMON.

2. Partnership relation created by contract to work mine on shares: Henderson v. Allen, 6 M. R. 227.

3. Members of an unincorporated mining association are tenants in common: Santa Clara Ass'n v. Quicksilver Co., 17 Fed. 657.

4. Co-tenants working a mine are partners: Dougherty v. Creary, 1 M. R. 35; Manville v. Parks, 7 Colo. 128.

5. The firm is held for fraudulent representations of a single partner: Peckham Iron Co. v. Harper, 41 Oh. St. 100.

6. Contract for manufacture and sale of brick construed to be a partnership rendering both parties liable for a breach of contract of sale: Farmers Ins. Co. v. Ross, 29 Ohio St. 429.

7. Shareholder held liable as a partner in respect of contracts entered into by joint stock company, notwithstanding misrepresentation in prospectus as to number of shares sold, such shareholder having an opportunity to learn the facts: Steigenberger v. Carr, 3 Scott's N. R. 466; 3 M. & G.

191.

8. A sold coal of his firm to another firm, of which he was a member, with notice to his partner, and at the full market value: Held, that he was not liable to account for profits received by him as partner in the purchasing firm: Freck v. Blackiston, 83 Pa. St. 474.

9. A contract by which a person, about to start for California, agreed with his former partners to share the profits of his mining business while there, upon certain terms, held, to be a contract of partnership: Harıis v. Hillegass, 54 Cal. 463.

10. Distinction between corporate and partnership liability: N. Y. Iron Mine v. First Nat. Bank, 1 M. R. 453.

11. The receipt of a percentage upon the gross amount of sales made to customers by the person who recommended such customers, does not constitute him a partner as against third persons: Pott v. Eyton, 3 C. B. 32.

12. An unincorporated association can not sue under its copartnership name: Mexican Mill v. Yellow Jacket Co., 11 M. R. 175.

13. The associates in a void corporation, treated as partners: Hill . Beach, 12 N. J. Eq. 31.

14. Land brought into a partnership as stock, treated as personalty: West Hickory Mining Ass'n v. Reed, 80 Pa. St. 38.

15. The fact that tenants in common of ore land entered into a partnership for manufacturing iron, and that the proceeds from their ore land were entered in the firm books, did not make the land and the proceeds firm property: Grubbs' App., 3 M. R. 416.

16. Partnership interest in land and quarry held to pass to heir at law and not to personal representative: Steward v. B’akeway, L. R. 6 Eq. 479. 17. In ejectment for an interest in a mining claim to which the plaintiff holds the legal title, the answer being a general denial, defendant can not defeat the action by showing the claim to be partnership property: Lowe v. Alexander, 15 Cal. 297.

18. After the sale of an interest in a lease of a colliery, by one partner to his copartners, and a dissolution of the partnership, a railroad company paid $10,000 damages for the location of its road on he leased property prior to the dissolution. Held, that each of the former partners was entitled to his proportionate share of the sum: Blackiston's App., 8 11⁄2 Pa. St. 339.

19. Distribution of partnership effects upon dissolution: Faulds v. Yates, 3 M. R. 551.

20. Bill for dissolution of mining partnership, involving questions of settlement of accounts, compensation of copartner, appointment of receiver, etc.: Levi v. Karrick, 13 Iowa, 344; 8 Id. 150.

21. For an action for the dissolution of a mining partnership and the conveyance to plaintiff of a specific interest in the partnership property, see Welland v. Huber, 13 M. R.

22. Partnership in iron works terminated by assignment of interest and

notice to other partners: Jefferys v. Smith, 3 Russ. Ch. 158; 1 Jac. & W. 298.

23. Lease of interest in partnership mines by one to the other partner operates as a dissolution or suspension of the partnership. Partnership dissolved by war: McAdams v. Hawes, 9 Bush. (Ky.) 15.

24. The relationship of general agency among partners: Lyell v. Sanbourn, 1 M. R. 313; Manville v. Parks, 7 Colo. 128.

25. A partner who buys in an outstanding interest in partnership property for the purpose of curing a defective title, buys for the benefit of the concern: Forrer v. Forrer, 29 Grat. 134.

26. The partner of an agent is not under a fiduciary relation to the principal of that agent by reason of his partnership with such agent: Hardenbergh v. Bacon, 1 M. R. 352.

27. One partner can bind another only in regard to partnership transactions: Jones v. O'Farrel, 1 Nev. 354.

28. One partner can not sue the other in an action at law; the remedy is by bill in equity for a dissolution and an account: Barnstead v. Empire Co., 5 Cal. 299; Stone v. Fouse, 3 Cal. 292.

29. One partner may maintain an action against his copartner for his moiety of the value of mining materials and utensils sold to the latter upon dissolution without final settlement of partnership accounts: Jackson v. Stopherd, 4 Tyrw, 330; 2 Cr. & Mees. 361.

30. Assumpsit will lie for a balance struck between partners: Knerr v. Hoffman, 65 Pa. St. 126.

31. Two persons who form a partnership for mining under a lease, all the capital and implements belonging exclusively to one, may maintain a joint action for trespass upon the mines: Douty v. Bird, 60 Pa. St. 48; Post TRESPASS.

-.

32. For the rules governing a mining prospecting partnership, see Boucher v. Mulverhill, 12 M. R. —; Lawrence v. Robinson, 12 M. R. 33. Partnership with lunatic: Rowlands v. Evans, 9 M. R. 644. 34. Partnership interest in mines subject to partition: Hughes v. Derlin, 12 M. R—.

35. Ratification of act done for benefit of partnership: Lyell v. Sanbourn, 1 M. R. 313.

36. Ratification by one partner is a ratification by all: Id.

37. Partners in mining lease precluded by laches from obtaining relief against enforced dissolution: Clegg v. Edmondson, 8 M. R. 180.

38. A partner wh› a tends almost exclusively to the partnership, though such business be very great, is not entitled to special compensation without special contract to that effect: Forrer v. Forrer, 29 Grat. 134.

39. Joint liability of partners for injuries arising from unsafe condition of shaft though known only to one: Mellors v. Shaw, 9 M. R. 678. 40. Authority of miring partners to hire laborers qualified by contract that such hiring should be ratified: Nolan v. Lovelock, 9 M. R. 360.

41. Purchaser of partnership property at sheriff's sale on execution against one of the partners, is not entitled to a delivery of the property but only to an accounting: Barrett v. McKenzie, 24 Minn. 20. Such sale passes the interest of the defendant partner only: Ward's App., 5 M. R. 666.