probably it will be well for the parties when no more is heard about it, because whilst the jury in that case did not find it the jury in this case did, and the next jury may or may not find it according to the accidents of the trial. The title of the parties ought to be kept on a more stable foundation.

It will result from thus putting the Clark survey out of the case that the question which the court discussed about the right of the Grubbs or their lessee to take copper ore can not arise in the case. For, what if the adjectives and nouns in the papers do all refer to iron ore-it was not those papers that constituted the title of the parties to the contents of the hills. They owned the hills and all they contained before the papers were made, and what the papers did was to compel the signers and their successors to enjoy the hills as tenants in common and not as tenants in severalty. If the hills contained copper or more precious ores, the whole hills being an estate. in common, the ores, whatever their name, were a common estate also. If the agreements were limited to iron ores, the property in all other ores was unchanged. It is not worth a moment's consideration, therefore, whether the expression "any ore" in the supplemental agreements could fairly be construed to include copper ore.

When the case shall be tried on the grounds that have been indicated, the question whether the plaintiff had or had not the right to mine outside the Weidle lines, and whether he was not a tenant at will, will most likely disappear. We can not foresee how they will arise. The Weidle survey is nothing but a re-location of the Clark survey, and when one is set aside the other must go with it. The ore in question was mined under a written lease, executed by Eckman on behalf of the Grubbs. The term had not expired, and therefore it seems to us no question about a tenancy from year to year, or at will, can arise. Whether Eckman had authority to execute the lease, or whether, if his authority was defective, the Grubbs had ratified his act, were questions of law and fact on which Blewett's rights depended essentially. The receipt of rent on the foot of the lease would be evidence of ratification. These it seems to us, will be the questions in the case. Coleman, as tenant in common with the Grubbs, had no right to seize the ore mined by Blewett under a lease or license from the

Grubbs. If Blewett had neither lease nor license from the Grubbs, he is not entitled to damages as against Coleman.

We think the interest of the Grubbs was so balanced that there was no error in admitting them to testify.

The judgment is reversed, and a venire facias de novo is awarded.

1. Right of action for wrongfully raising ores from lands situate in another State, may be assigned and prosecuted by the assignee in New York: Hoy v. Smith, 49 Barb. 360.

2. Royalty reserved on ore by tenant for life will go to remainder-man: Basset v. Basset, Amb. (Appendix) 843; Post TENANT FOR LIFE.

3. Ore is quasi rent of mines: Campbell v. Leach, Amb. 740.

4. One tenant in common can not grant the right to dig ores to the prejudice of his co-tenant: Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394; Post TENANT IN COMMON.

5. Degree of skill and diligence required in fulfillment of contract to cleanse ore: Campbell v. Gates, 2 M. R. 502.

6. Contract for the sale of iron ore at the "Ogden mine " corrected so as to cover ore intended to be sold but which did not come from the Ogden mine proper: Firmstone v. DeCamp, 10 M. R. 439.

7. Ores dug from mineral lands of the United States are personal property, and as such subject to State taxation: Forbes v. Gracey, 94 U. S. 762; Post TAX.

8. Construction of contract for the sale of ores to be regulated by assay: Kennedy v. Schwartz, 2 M. R. 679.

9. Construction of ore contract as to time of delivery with reference to presumed knowledge of the capacity of the furnace to which it was to be delivered; measure of damages: Rhodes v. Cleveland Rolling Mill, 17 Fed. 426.

10. An agreement to deliver ore, made and signed in the name of the superintendent: Held, t he agreement of the corporation: Post v. Pearson, 108 U. S. 418.

11. Assay; when evidence allowed of erroneous assays: Phipps v. Hully, 18 Nev. 133.

12.

Question discussed as to the name to be given to an ore which contains a mechanical combination of several ores, to some of which plaintiff is entitled and some of which belong to defendant: Boston Franklinite Co. v. New Jersey Zinc Co., 13. N. J. Eq. 216.

13. Usage may be shown as to how ore is to be delivered: Steel Works v. Dewey, 37 Ohio St. 242.

GASTON V. PLUM ET AL.

(14 Connecticut, 344. Supreme Court of Errors, 1841.)

Interest necessary in plaintiff. In order to sustain a bill in chancery, it is necessary that the plaintiff should have an interest in the subject of that suit, or a right to the thing sought.

Bill by owner of right to mine, brought after assignment. The grant of a right to mine is not of such a fiduciary capacity, or so personal in its character, or so uncertain in its nature as to be incapable of assignment; therefore, where the grantee of such a right has a signed the same before bringing his bill he has no interest in the suit and his bill must be dismissed.

Bill in chancery for the specific performance of an agree

ment.

The subject of the agreement was a tract of land in Cheshire, called "The Dick Farm," owned by Rufus Plum, one of the defendants, containing about forty acres, having a vein of barytes running through it, which, at the date of the agree. ment, had not b en opened or its value ascertained.

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Plum, being desirous of having the experiment made, whether, by mining, valuable minerals might be found on the land, to induce the plaintiff to undertake the labor and expense of so doing, on the 21st of January, 1839, signed and delivered to the plaintiff the following written instrument: This certi fies that I hereby give, grant and bargain with N. H. Gaston, of New Haven, to give him full power and liberty to dig or mine on my land in Cheshire, called 'The Dick Farm;' also to transport and carry away any stone or mineral which he may dig, or cause to be dug on my land, within one year from the first day of May next, provided he shall fill up the hole or level the ground again at the expiration of the time, or pay a fair value for the damage of the land; also that I will give him the preference, at the expiration of the time, in making a new contract for digging the same. (Signed) Rufus Plum." At the time of the execution and delivery of this instrument no consideration in money was paid by Gaston to Plum; nor did Gaston bind himself, or enter into any agreement with 1 Boyle v. Laird, 7 M. R. 301.

Plum, to enter on the land or dig thereon, or carry away any stone or mineral therefrom, unless the instrument imports on its face an obligation so to do; yet the right or privilege which Gaston acquired by virtue of the instrument, especially that clause which gave him the preference in making a new contract, was of great value to him. On the 11th of May, 1839, Gaston, by a writing made and signed by him on the back of said instrument, assigned to a company of persons associated by the name of "The Mineral and Manufacturing Company," all his interests under the instrument, which assignment was in the following words: "In consideration of one dollar and other valuable considerations, received to my full satisfaction of the Mineral and Manufacturing Company, I hereby grant, assign and set over unto the said Mineral and Manufacturing Company, the within written instrument, and all my interest, right and privilege in the land therein mentioned, with the appurtenances, and all benefit and advantage which may be derived from the within instrument; to have and to hold the same unto the said Mineral and Manufactuing Company, their successors and assigns, subject to the conditions and provisions of the within instrument. Dated at New Haven, the 11th day of May, 1839. (Signed) Nelson H. Gaston."

Under this assignment said company have ever since held all Gaston's interest acquired by the first mentioned instrument. (The remaining facts in the case it is not necessary, for the present, to state.)

The case was reserved for the advice of this court as to what decree ought to be passed.

BALDWIN & BRISTOL, for the plaintiff.

R. I. INGERSOLL and KIMBERLY, for the defendants.

STORRS, J.

In chancery, it is necessary that the plaintiff, in order to sustain a suit, should have an interest in the subject of the suit, or a right to the thing demanded: Coop. Eq. Pl. 166; 7 Conn. Rep. 342.

In the present case it is found by the court that, before the

bringing of the bill, the plaintiff had granted and assigned to the Mineral and Manufacturing Company all his interest, right and privilege in the land which is the subject of the contract, of which he seeks a specific performance, and all benefit and advantage which might be derived from that contract; and from the assignment, which is recited, it appears that it does not even contain any covenant of warranty, or any other description, on the part of the plaintiff. There is, therefore, such an entire destitution of interest on his part, in the subject of this suit, that to a bill founded on the contract set up in this case, brought by the assignee, who would be the proper plaintiff, it would not be necessary to make the present plaintiff a party; and, indeed, we see no objection to his being a witness in the cause.

The plaintiff endeavors to obviate this difficulty, on the ground, 1, that the contract is fiduciary and personal in its character; and 2, that the interest of the plaintiff in it is contingent and a mere possibility; and, therefore, that it is incapable of assignment.

We do not think, however, that the contract is of a fiduciary character, or in the nature of a personal confidence; there is nothing in it which makes it necessary that it should be performed personally by the plaintiff, or requires his peculiar skill, science or judgment; nor, in our opinion, is it of that uncertain and contingent description that it can not, on that account, be transferred; if it were, it is not such an interest as courts of equity would regard. They will protect it, if at all, in behalf of the real owner.

The plaintiff has referred us to

v. Wallford, 4 Rus

sell, 372. In that case Wallford, for a valuable consideration, agreed to surrender a copyhold to Curtis, who, on borrowing money from Wright, agreed with him that he, Curtis, would surrender the same copyhold to Wright, by way of mortgage security, of which last agreement Wright gave notice to Wallford. The court held that, in a bill brought by Curtis to compel Wallford to surrender to him, Wright need not be made a party. We do not see the bearing of that upon the present. case. There was no assignment or transfer by Curtis of any interest to Wright, but only an executory agreement between them, and in order to enable Curtis to fulfill it on his part, it