was necessary that Wallford should first fulfill his prior agreement with Curtis. And the court entertained a bill on behalf of Curtis to compel Wallford to do so. Although it would tend to promote the execution of the agreement between Curtis and Wright, the latter had no interest in the agreement between Curtis and Wallford as required him to be made a party in a suit brought by Curtis to enforce it.

The plaintiff having no interest in the subject of the bill, it. ought for that reason to be dismissed.

We refrain from expressing an opinion on the merits of the case. It would be improper to do so in the absence of the assignee, who is the real party interested, and who has, therefore, a right to be heard.

In this opinion the other judges concurred.

Bill dismissed.

NOTE.-See Edwards v. Stonington Cemetery Association, 20 Conn. 473; Chipman v. City of Hartford, 21 Conn. 494.

GOLLER ET AL. V. FETT ET AL.

(30 California, 481. Supreme Court, 1866.)

1Tenants in common may join in an action. Tenants in common in a mine, each owning undivided interests acquired at different times, may sue jointly to recover possession of all of their several undivided interests. 2 Verbal sale of mining claim. A verbal sale of a mining claim, even if accompanied with a delivery of possession, does not pass the legal title. 8 Damages for trespass on gold claim. The damages for wrongfully removing the gold-bearing earth from a claim, and extracting the gold therefrom, are the value of the gold less the expense of digging the gold-bearing earth and separating it from the realty, so as to make it personal property.

Appeal from the District Court, Fourteenth Judicial District, Placer County.

The plaintiffs averred in their complaint that they were, on

1 Brown v. Warren, 16 Nev. 229; Weese v. Barker, 7 Colo. 178; Bullion Co. v. Croesus Co., 5 M. R. 255.

2 Cited, King v. Randlett, 5 M. R. 605; Felger v. Coward, Id. 273. Hendricks v. Spring Valley Co., 58 Cal. 191; 41 Am. R. 257.

the 8th day of January, 1866, the owners of and in possession of seven twelfths, undivided, of a tract of mining claims at Forrest Hill, Placer county, known as the "Uncle Sam Claims," and that defendants then ousted them therefrom.

The answer set up that the claim which the plaintiffs made to said seven twelfths was not of a joint but several interest therein, and that for said reason the plaintiffs were improperly joined as such in the action.

On the trial, Goller and Hoffman testified that they made verbal purchases from Benfeldt of interests in the Uncle Sam Claims-Goller of four twelfths, in April, 1865, and Hoffman of three twelfths, in August, 1865. Fett, one of the defendants, purchased the Uncle Sam Claims from Benfeldt, and received a deed duly acknowledged from Benfeldt, dated January 3, 1866. The other defendants were Fett's hired hands. When Fett purchased he went into possession of the entire claim. Goller and Hoffman had been working in the claims with Benfeldt up to the time of Fett's purchase.

After the testimony of plaintiff had closed, defendants moved for a nonsuit, because, among other reasons, if plaintiffs had any interests in the mine they were several, and acquired at different times, and they could not maintain an action jointly to recover them.

The court denied the motion.

The mine was worked through a tunnel several hundred feet in length, extending into the side of a mountain, and the gold-bearing earth was obtained by drifting the gravel to the height of five or six feet above the bed rock.

Plaintiffs, in making out their case, proved the amount of gold defendant had taken out of the claims, and claimed as damages seven twelfths of its value. Defendants offered to prove by a witness, in order to reduce damages, what was the expense of digging the gravel and transporting it to the mouth of the tunnel, where it was washed. The court, on objection of plaintiff, rejected the testimony.

The court instructed the jury that, if the jury believed from the testimony that Be..feldt owned the Uncle Sam mining ground, and while he owned and possessed the same he made a verbal sale of interests therein to plaintiffs, then, if plaintiffs entered into possession under the verbal sale, such

verbal sale was as valid and effective to convey title as a written bill of sale.

The defendants' attorney excepted to the charge.

Plaintiffs recovered judgment for the possession of the seven twelfths of the claim, and for the value of seven twelfths of the gold dust taken out, as damages. Defendants appealed.

The other facts are stated in the opinion of the court.

CHARLES A. TUTTLE, for appellants.

Jo. HAMILTON, for respondents.

By the Court, SHAFTER, J.

The plaintiffs sue to recover the possession of certain mining ground, of which they claim to be the owners to the extent of seven twelfths. The allegations of the complaint are denied in the answer, and the defendants plead specially, title in defendant Fett, and a misjoiner of parties plaintiff. The plaintiffs recovered a verdict at the trial, on which judgment was duly entered for seven twelfths of the premises undivided. The appeal is from the judgment, and from the order denying defendants' motion for a new trial.

Both parties claim under Benfeldt-the defendant Fett by a written conveyance, in due form, executed January 3, 1866, and including the whole of the property; the plaintiffs by verbal sales and transfers of possession previously made, the sale to Goller being of four twelfths, made in April, 1865; that to Hoffman being of three twelfths, made in August of the same year.

First. Assuming the sales and transfers by Benfeldt to the plaintiffs respectively, they became thereby tenants in common of the mine, and as such were authorized to sue jointly under the act of 1857: Stat. 1857, p. 62; Touchard

v. Keyes, 21 Cal. 208.

Second. The legal title to the seven twelfths claimed by the plaintiffs did not pass to them by the verbal sales and transfers of 1865. The point arises under the act of 1860; It was considered arguendo in Patterson

Stat. 1860, p. 175.

v. Keystone Mining Co., 30 Cal. 360, that the provision that "conveyances of mining claims may be evidenced by bills of sale or instruments in writing not under seal," contained in the first section of the act, was mandatory, and that it was intended that that method of conveying mining claims should exclude conveyances by parol, even though accompanied by a delivery of possession. The point, however, was not directly adjudged in the case referred to, but it is now determined in conformity with the views therein expressed. The court below, in opposition to this view of the effect of the act of 1860, instructed the jury that if they found a verbal sale by Benfeldt to the plaintiffs respectively, accompanied by delivery of possession, that such verbal sales "would be as valid and effective to convey title as written bills of sale." This instruction was erroneous, and for anything we can know to the contrary, the jury may have based their verdict upon it, without reference to other instructions, presenting to the jury. an alternative ground, on which, if found, the plaintiffs would be entitled to recover. We can not, therefore, intend that the jury ever put their minds upon the question as to whether Fett bought in 1866, with notice of the equitable right of the plaintiffs which their entry and possession had perfected.

Third. The court erred also in refusing to permit defendants to prove the expense of digging the gold bearing earth. The point was directly adjudged in Maye v. Yappen, 23 Cal.

306.

Judgment reversed, and new trial ordered.

SAWYER, J., concurring specially.

I concur in the judgment, on the last ground discussed in the opinion of Mr. Justice Shafter, but I am compelled to dissent from the views expressed under the second point discussed. The construction adopted would, upon the same principles, render a conveyance of a mining claim under seal void, as well as a verbal sale accompanied by a transfer of the possession to the vendee. I can gather from the language of the act no intention on the part of the legislature to abrogate any mode of conveyance before established. It seems to me that

the only object of this particular provision was to remove a doubt before entertained by many as to whether a written conveyance of a mining claim required a seal to render it valid. I can not think it was contemplated that a conveyance of a mining claim should be restricted to the form of conveyance permitted by the act.

Mr. Justice SANDERSON expressed no opinion.

THE PROPRIETORS OF THE MEXICAN MILL V. THE YELLOW JACKET SILVER MINING CO.

(4 Nevada, 40. Supreme Court, 1868.)

1Suit in partnership name dismissed. A motion to dismiss an appeal from an order refusing an injunction because the appellants," the proprietors of the Mexican Mill," are neither natural nor artificial persons, sustained, because they have no authority to prosecute under a copartnership name, and the proceeding is an absolute nullity.

No plaintiff, a fatal defect-No amendment. An objection that no person, either natural or artificial, is named as plaintiff, is not waived by failure to demur under section 40 of the Practice Act of Nevada, which provides that defendant may demur because there is a defect of parties plaintiff or because the plaintiff has no legal capacity to sue; the defect is one which can not be cured by amendment; the objection may be taken at any time, and a motion to dismiss upon that ground will be sustained.

Appeal from the District Court of the Second Judicial District, Ormsby County.

R. M. CLARKE, for appellants.

HILLYER & WHITMAN, for respondent.

By the Court, JOHNSON, J.

An appeal is sought here from an order of a district court refusing an injunction, pending other proceedings, in what counsel for appellant is pleased to denominate a civil action.

These proceedings originated with a complaint in which 'Dicey on Parties, rule 20, p. 169.