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the agent and told him to sell at such prices. is the alleged interference with the butties. est approach to interference in this case. greement, and the defendant took the side of the butties, and said they were right in what they did; but I think that is not such an interference as would authorize me to appoint a receiver at the instance of a partner who really seems to have the whole thing in his own hands. He at this moment is appointing and discharging workmen, and has not been interfered with in any of those proceedings by the defendant, Eberhardt.

It is further said that the mine will be drowned, because Eberhardt will not co-operate to prevent it; but the plaintiff may do what he likes to prevent that; he can not get money for that purpose from Eberhardt, but neither would the receiver be able; though I do not think that any one would advise Eberhardt, if it were done bona file, in due exercise of the plaintiff's powers of management, that he could resist payment of the expenses out of the profits arising from the sale of the coals. In Jefferys v. Smith, the case was really this: One art owner said, "I am owner, and I will manage the concern;" the other said, "I will manage it;" and there was there a direct interference. And Lord Eldon said, "In my country, where there are frequently twenty owners of the same mine, if each is to have a set of miners going down the shaft to work his twentieth part it would be impossible to continue working the mine. Must not a contract be implied that it was to be carried on in a practicable and feasible way? Where there are part owners of a mine, and they can not by contract agree to appoint a manager, this court will manage it for them." If Eberhardt had said, I will send my people to work my part of the mine, this case would have been like Jefferys v. Smith in that respect, and I should then have struggled hard to have found some mode of relieving the plaintiff; but I am of opinion that no case has been made for such relief. Non co-operation, which leads one partner to act upon his own responsibility until interfered with, is not a ground for appointing a receiver of the property; and I think that this is not a case in which I should struggle to get over the difficulty; and therefore, there must be no order on this

motion.

REID V. BARNHART ET AL.

(1 Jones Eq. 142. Supreme Court of North Carolina, 1845.)

Mine worked on family arrangement-Admission of partner against partner-Division of nugget. John Reid was the owner of a gold mine. His sons and sons-in-law agreed to work it, paying him one third, and dividing the residue equally among those who worked on the several days. Any one not working was at liberty to furnish one of his white family as a hand. The plaintiff sent his son on a certain date in his place. On this same day a nugget of gold weighing over nine pounds was found. The others then denied that the son had been accepted as a hand. It appeared that he had commenced work and then been sent for a dipper, and while absent one of the partners had made a remark in the nature of a concession that he was a hand, etc. Held, that this admission was evidence against all the partners; and that the plaintiff was entitled to his share in the proceeds of that day's labor, he having been thus represented by his son.

This cause was transmitted to the Supreme Court from the Court of Equity of Cabarrus County.

The bill is filed by George Reid, against George Barnhart, Robert Motley, Andrew Hartsell and John Reid, the younger. The case is that John Reid, the elder, was the owner of a gold mine in the county of Cabarrus, and in the month of November, 1834, he granted permission to his son and sons-inlaw, who were the plaintiffs and defendants, and three others, to work upon the following terms: They were daily to pay him, the father, one third part of the gold found, and the residue of each day's gains was to be divided equally among those who worked on the several days. The son and sons-in-law were themselves to do the work personally unless they should be kept away at any time by sickness or indispensable business, in which case one so absent should be at liberty to send one of his white family as a hand in his place. The son and sons-in-law agreed to work the mine upon those terms, and proceeded to do so accordingly. On the 20th of November, 1834, the four defendants attended at the mine and went on to work in per son, the plaintiff and the three other sons-in-law not being there. But the plaintiff, being necessarily detained at home,

sent Arthur Reid, his son, to work in his stead that day, and Arthur worked accordingly, as the plaintiff alleges. Shortly after the operations of the day were begun one of the defendants found a large lump of gold weighing about nine pounds avoirdupois weight, which, after paying to the father his share, the defendants divided among themselves.

The bill was filed by the plaintiff, claiming from the defendants an equal share of the gold found on that day, upon the ground that his son was sent by him, as his substitute, as he had a right to do, as he was an able and sufficient hand, out of his own family, and, at all events, that he had been accepted by the defendants as a hand and had been set to work in his father's place.

The answer admits that Arthur Reid was at the mine on the day mentioned, and at work, but the defendants say he worked by himself and for himself, and not with or for them; and they deny that they did receive him as a hand on account of his father, or that they would have done so, inasmuch as they alleged he was too young to do a man's work.

Upon the point thus in dispute there was much conflict in the depositions; so much so as to induce the court to direct issues to be tried in the Superior Court of Cabarras: 1st, whether Arthur Reid was received by the defendants as a hand to work in the stead and lieu of his father before the finding of the piece of gold on the 20th day of November, 1834, and 2d, if he were so received, whether he had been discharged upon the finding of the piece of gold.

On the trial of the issues, Judge Battle presiding, several witnesses were offered by the plaintiff, to prove that Arthur Reid was at the mine, at work, on the day in question, and that he was at one time sent to some distance by one of the defendants (but which is not stated) for an implement used in the mine, called a dipper, and that while he was gone the defendant Motley complained "that he stayed too long, and said that Arthur must be smarter, or he would send him home, and that George Reid, the plaintiff, should come himself or send a better hand." This was objected to as evidence against the other defendants, on the ground that one | artner could not receive another person as partner without the concurrence of his copartners. But it was received by the court, and the jury

found upon that and other evidence both the issues in favor of the plaintiff against all the defendants.

His Honor thereupon stated the case so as to present the question, and enable the defendants to move this court to direct the issues to be tried over again if the court should be of opinion that the evidence was not proper against the defendants, and the defendants' counsel made that motion.

RUFFIN, C. J.--We are of opinion that his Honor rightly admitted the evidence. It is not a question about the admission of a stranger into the partnership by one of the partners without consulting his companions, for there is no pretense that Arthur Reid was to become a partner, or entitled even to wages for his labor from the defendants.

The father was the partner, and he had become so by agreement with all the defendants; and the only question was, whether he had complied with his contract so as to entitle him to a share of the gains by sending a competent hand in his stead, as provided for on the agre: ment. The plaintiff says he did, and to establish it he says the defendants themselves accepted the person he sent as a hand for him. It is surely evidence of the fact of acceptance that the young man was engaged openly in the work, and that one of the defendants, from the deference due to his years, or superior skill, undertook to direct the operations of this person, for the common good; spoke of him as his father's substitute, no one at the time making objection to the hand, nor to the acts or declarations of the person thus assuming authority over the hand. Such circumstances tend certainly to show that all concerned recognized Arthur as the substitute of his father.

The court therefore is satisfied with the result of the trial. It entitles the plaintiff to the decree he asks, and it must be referred to the clerk, to take an account of the sum due to the plaintiff in the premises and inquire which of the defendants holds the fund.

Decree accordingly.

'RHEA V. VANNOY ET AL.

(1 Jones Eq. 282. Supreme Court of North Carolina, 1854.)

2 Accounting sought by deserting and insolvent adventurers. Rhea, Vannoy, Garland and McKay, entered into a written agreement for the purchase of lands, and to work them by mining, etc., as partners. One of the specifications was that such disposition was to be made of the property as a majority might deem advisable. Lots were purchased under statutory sales, the legal title, however, remaining in the State. After outlays made it appeared that the land would not pay for mining. Two of the partners who were wholly insolvent deserted the adventure; a third, who was at least partially insolvent, went to Georgia, "where he thought the prospects of finding gold were 'more flattering." Vannoy, being left as the only partner adhering to the adventure, to relieve his sureties and save further liability for unpaid purchase money, disposed of the land for the best price obtainable. Held, that the abandonment by three out of the four partners superseded any contract for a concurrence of the majority. 2, That neither of the abandoning partners had any equity against Vannoy's disposition of the property, especially as against a purchaser at a fair rate without notice of any equity. Limitation of the account. All that such abandoning partners could ask under such circumstances would be an account of the moneys received on the disposition of the land, and for any tolls, rents or profits arising out of the mining or other operations of the adventure.

Cause removed from the Court of Equity of Cherokee County, at Spring Term, 1854. The facts of the case sufficiently appear from the opinion of the court.

J. BAXTER and GAITHER, for the plaintiff.

WILLIAMS and J. W. WOODFIN, for defendants.
PEARSON, J.

In 1838, the plaintiff, Rhea, and the defendants, Vannoy and Garland and McKay, whose heirs are defendants, entered into a written agreement, under seal, in regard to certain tracts of land bid off at the land sales, in Cherokee county, among others, lots Nos. 4 and 5 in District 7, the subject of this controversy. According to this agreement the parties were to

2

1Se Rhea v. Tathem, 11 M. R. 321.

Jekyl v. Gilbert, 1 McNight. S 1. Ca 29; Davis v. Johnston, 4 S m. 539; Clegg v. Edmondson, 8 M. R. 180.

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