may not be presumed to have passed from him. To affect this, would require a possession of the cestuis que trust for twenty years, without any for mal recognition of the title of the trustee. And if such a possession has even subsisted for that period, it will be insufficient, if the acts of ownership can be properly referred to the acquisition of an equitable estate only, or did not necessarily demand an investigation of the title. (a) It could only be contended that the conduct of the trustee has induced a sacrifice of his beneficial interest in the particular share to which he was originally and absolutely entitled. But, it is conceived, it would require a strong case to call for the interference of a Court of Equity against an owner of the legal estate. Vigilantibus non dormientibus leges subserviunt. The other persons interested would make the expenditure with the full knowledge of the circumstances. It was their duty, therefore, to have effected a different arrangement before entering upon such a course of expenditure.

CHAPTER V.

ON PARTNERSHIPS IN MINES.

WHATEVER may be the nature of mining, and whether the occupation may be so pursued as to be excluded from the operation of the bankrupt laws or not, it may be carried on as a trade, in a manner which will subject the adventurer to all the consequences of a particular partnership.

The question of the existence of a partnership, however, may often depend upon very nice considerations, and is described in one case by Lord Eldon, as a very difficult question; (b) for the adventurers may only be the joint tenants, or tenants in common, of an estate in land, the profits of which they combine to enjoy and realize, by consenting to appoint a general system of management. In this situation, they will be considered, with respect both to themselves and third persons, as the ordinary owners of land, working their respective shares of the mines, responsible only for their own acts, subject to no laws of partnership whatever, and possessing distinct rights in the property.

It becomes, therefore, important to discuss a question which in cases of alleged partnership, must always be preliminary to further proceedings.

It may be laid down, as a general rule, that when the trade is carried on in such a manner as to bring the adventurers within the operation of the bankrupt laws, a partnership must, in such cases, always necessarily subsist,

(a) Doe d. Grosvenor v. Swymmer, 1 Lord Ken. 385. See also Doe d. Milner v. Bright(b) Crawshay v. Maule, infra.

wen. 10 East, 583.

for they will be commercial traders without reference to the production of minerals at all.

The quantity of interest which the owners for the time being may have in the lands will not influence the question of liability to the bankrupt laws.For the same reasons it will not affect the question of partnership. Whether any or all of the owners have acquired an absolute or limited interest of any description, they may agree to enjoy the possession of the common object in a particular manner.

Neither does there appear to be any reason for supposing that, though one owner was possessed solely of the legal estate, and others had only equitable interests, arising too in different proportions, and evidenced by different means, any presumption of partnership would necessarily arise from that circumstance; for lands are frequently enjoyed in this manner by tenants in common, and there is nothing inconsistent with their rights of ownership.

If, however, it could be distinctly shown that the land was not intended to be held in common, but to remain the absolute property of any one or more of the parties, evidenced, for instance, by the payment of rent, a case of commercial partnership, it is conceived, might fairly be presumed with respect to all concerned.

The relation of partnership, as will be afterwards shown, may he constituted either by express stipulation, or by implication deduced from the acts of the parties.

When the mining operations are carried on by several landowners under a co-partnership deed or agreement, or even a verbal agreement, from which it may be clearly established that the parties intended to enter into a trading adventure, and to become co-partners in the ordinary and commercial sense of the word, a partnership will, of course, be constituted, not only as between themselves, but as to all other persons. But with respect to the presumption arising from persons holding themselves out to the world as partners, it is sufficiently obvious that something more is required in such cases than what would be necessary to establish a partnership under ordinary circumstances. For all the characteristic features of a general partnership may be equally applicable to persons who work the mines under their lands as parts of the profits of those lands. Such persons, in the absence of other circumstances, cannot fairly be presumed to have intended to render themselves liable to all the consequences of a commercial partnership. The question in such cases, will, therefore, naturally arise-viz., what additional circumstances will be requisite, in the absence of express agreement, to raise the presumption of partnership.

The first case which occurred on this subject was that of Crawshay v. Maule. (a) In that case certain lands had been held in tenancy in com

(a) 1 Swanst 523.

mon, from which considerable quantities of iron and coal had been extracted, and upon which every extensive iron works had been erected. A Bill was filed by one of the co-tenants against the others for a dissolution of partner ship. As the facts bearing upon this particular point were not sufficiently set out in the Bill, an affidavit in explanation of the nature of the business was ordered, in which it was stated, that the iron works at Cyfarthfa had been conducted as a trading concern-that the produce of the mines consisted of ironstone, coal, and limestone-and that at the works, large quantities of iron had been, and were manufactured, sometimes from the materials obtained from the leasehold land in question, and sometimes from pig iron and finers' metal purchased in London, Plymouth, and Bristol; that from the first establishment of the works, the proprietors had been in the habit of making very considerable purchases of iron ore from Lancashire, pig iron, and finers' metal, and of old wrought iron, naval and ordnance stores, for the purpose of manufacture at the works into various sorts of iron, and re-selling them in that manufactured state; that these purchases had been made by the successive firms with a view to profit, by manufacturing the articles purchased into bar and other iron for re-sale, and not merely for mixing the same with the iron produced from the works for improving the latter, or bringing it to a better market. Lord Eldon obseved, that it was dfficult to establish that this was an interest in land, distinct from a partnership in trade-a mere interest in land, in which a partition could take place; for when persous, having purchased such an interest, manufacture and bring to market the produce of the land (1) as one common fund, to be sold for their common benefit, it might be contended that they have entered into an agree ment, which gives to that interest the nature, and subjects it to the doctrines of a partnership in trade.

It may be observed, that all these acts are equally applicable to strict owners of land who are not partners in a trade, and this idea must have suggested itself to the mind of Lord Eldon. For on a subsequent day he remarked, that a very difficult question might arise, whether, if the parties being originally tenants in common of a mine, agreed to become jointly interested in the manufacture of its produce for the purpose of sale, they continued mere tenants in common of the mine-still more, if not only carrying the produce of their own mine to market, they became purchasers of other property of a like nature, to be manufactured with their own. On a still subsequent day, Lord Eldon in delivering final judgment, said that after repeated consideration, he entertained no doubt that it was a trading concern, and that a partnership had subsisted.

If the contents of the affidavit alluded to in the above case were correct,

(1) It should be observed that the affidavit above referred to, by which it appears that they brought to market the manufactured produce of other lands, was not then before the Court.

there could be no doubt that the concern was a trade, which subjected the parties to the operation of the bankrupt laws, and therefore to the consequences of partnership. The purchase of other materials for the sake of manufacturing and selling them, as distinct articles of commerce, was quite suffi cient to divest them of the exclusive character of owners of land.

It may be observed, that, in the above case, the parties were also interested in the lands in the same proportions, as in the trade itself. It may perhaps be presumed, that when the proportions differ, the intention of the parties to become partners will be more readily, though not necessarily implied.

The point was shortly afterwards adverted to in another case before the same Chancellor. But it did not form part of the ground of decision in that case, as it was decided that a manager of the mine might be appointed by the Court, even if the parties were not actual partners, but only tenants in common of land. (a)

In another case, six persons had taken a lease for years of mines, and also another lease of the surface lands, under which the mines were situated, and had worked the mines as a joint concern, divided into equal shares. One of them was appointed manager, and had become much indebted to it. He afterwards became bankrupt, and it appeared he had mortgaged his shares. A Bill was filed for the sale of the property; and that it might be declared, that the shares of the bankrupt should be applied, in the first place, in repaying to the partnership the debt which he had incurred in the management of the concern. The truc question, therefore, was whether the parties stood in the relation of partners to each other. The above case of Crawshay v. Maule, was very properly distinguished, in the argument, from the present case, in which no other articles appear to have been purchased; and it was contended, that if the rules which are applicable to common trading partnerships, were to be extended to part owners of mines, it would be difficult to foresee what consequences might follow, affecting interests of the greatest magnitude, and placing many individuals of the highest rank and fortune in situations which they never contemplated—and that the parties must be considered as tenants in common of the mines and lands. But Sir John Leach, M. R. observed, it was true, a mining concern differs in some particulars from a common partnership-but it had been repeatedly held to be in the nature of a trading concern. He said that in Crawshay v. Maule, Lord Eldon had expressed a doubt, whether, if persons previously entitled as tenants in common to mines, were to form a mining concern, the general princi ples of partnership would apply, and he (the Master of the Rolls) was not aware that the particular point had ever been decided; but the distinction there was, that the interest in the mines was expressly acquired for the purpose of a partnership, and the general principle was therefore to be applied. (b)

(a) Jefferys v. Smith, 1 Jac. and W. 298.

(b) Fereday v. Wightwick, 1 Russ. and M. 45.

This decision seems to rest upon substantial reasons. The question is then one depending upon intention. And 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 to be any ground for distinction in such cases, if the parties have even acquired a permanent and absolute interest in the property. But it does not follow that, in every such case, such an inference can be drawn from the acts of the parties. An estate may be purchased or acquired for a definite period by a tenant in common, who may proceed forthwith to work the mines. But the mines may not have formed the only or even the primary inducements for effecting the purchase or acquisition. Much will always depend upon the particular facts. But it is submitted, as a general rule, that, in all such cases, 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 overbalance any other advantages anticipated from the estate. For the mines may form very important considerations in the arrangements of capitalists, and yet their existence need not preclude the motives which may proceed from the supposed general advantages of the investment.

This principle, however, will regulate, by far, the greater proportion of mining cases, not specially provided for, in this country, where it is usual for adventurers, only to obtain limited interests in the mines themselves, without acquiring any rights to the general inheritance. It may, therefore, be safely asserted, that, in all such cases, where the obvious intention of the parties to acquire interests in the land for the sole purpose of carrying on mining speculations can be deduced from the nature of those interests, and the manner of their acquisition, the parties will be considered, from these circumstances alone, to have entered into a particular partnership, and to be liable to all its consequences.

On the other hand, if it can be shown, that lands have been long in the possession of the different parties, or of those through whom they claim, or that they have been acquired without any intention to work the mines as an exclusive object, and if, after the mining operations have commenced, the parties have carefully avoided the assumption of the outward indicia of partnership, they must, it is conceived, be considered merely as the proprietors of land exercising the common acts of ownership in a manner adapted to the nature of their respective interests in it.

If an interest in opened mines is enjoyed by persons as a distinct inheritance or possession, it would appear, that it will only be under peculiar circumstances, that the parties can be considered to be exempt from the obli gations of partnership. The intention, in general, will be too strongly expressed. It is quite possible, however, for persons to have been originally entitled to distinct shares in such a property, without ever having received