The court below rendered judgment in favor of the plaintiff. The defendants appealed from the judgment and from an order denying a new trial.

The other facts are stated in the opinion.

WHITING & NAPHTALY, for appellant.

QUINT & HARDY, for res ondent.

By the Court, WALLACE, J.

The court below should not have denied the motion of the defendants for a new tria! because they had not served their statement in support of the motion. They had filed it within the time provided in the stipulation of June twenty-third. Neither the stipulation, nor the statute, nor any rule of the court below which has been called to our attention, required them to serve it. (Sec. 195.)

The point is now, however, made in argument here, that the motion for new trial was correctly denied, because the defendants, though they filed, did not serve their notice of intention to move for a new trial. But the answer is, that the plaintiff did not make this objection, nor reserve his right to make it, when he proposed his amendments to the statement. Had he done so, the fact of service might possibly have been shown, or a waiver of it in some way made to appear.

The action is brought to quiet the alleged title of the plaintiff to certain mining ground, being an undivided interest in the Delphi mining claim, in Kern county. The answer denies the plaintiff's title. On the trial the plaintiff undertook to show that he had acquired the interest and estate formerly owned by the defendants in the mine. For this purpose he offered and read in evidence, against the objections of the defendants, a conveyance made by Ross, the sheriff of Kern county, running to the plaintiff as grantee, and purporting to convey to the latter the estate of the defendant Adams in the premises.

This conveyance in substance recites, that in the Clear Creek Mining District, in Kern county, an assessment was levied

against the owners and shareholders of the Delphi claim, for the purpose of defraying the expenses of prospecting and working it; that Adams, owner of an undivided interest, neglected and refused to pay, after notice given; that thereupon his interest in the claim was advertised for ten days, and was sold by the sheriff to the plaintiff, pursuant to the provision of "An act concerning partnerships for mining purposes," etc. The plaintiff also read in evidence, against the objections of the defendants, a conveyance to himself, made by the sheriff, and purporting to convey to the plaintiff the interest of Devlin, the other defendant in the mining claim, and reciting, mutatis mutandis, the same matter recited in the Adams deed, already mentioned.

The objections taken by the defendants to the introduction of these deeds were numerous, and among the rest was the objection that there was no authority of law shown in the sheriff to convey the property of the defendants to the plaintiff, and that the conveyances do not sufficiently set forth a compliance with the requirements of the act of the legislature to which they refer. The argument upon either side has proceeded here upon the assumed constitutionality of the statute itself, through the provisions of which the plaintiff claims to have acquired the title of the defendants; and we shall, therefore, determine the case without reference to that question.

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It will be seen that the statute, 1865-6, p. 828, in the first section, distinctly designates the persons who “shall be subject to the provisions and liabilities imposed by the act." Such persons must be copartners-"copartners for the purpose of prospecting or working said mining claim," in the lanof the statute. guage It is not enough that they are owners and shareholders," as these deeds recite that Adams and Devlin were, or that they are associated together for the purpose of working or prospecting a mining claim on the public lands. So long as these and no other relations exist between the parties, their interest in the mining claim is not subject to be divested by such proceedings as those here relied upon. Notice must first be given to such occupant, locator, or person associated, that he will be thenceforward deemed and held to be a copartner "for the purpose of prospecting or working said mining claim." Such a notice given to those who are

owners, or shareholders, or locators, or occupants, etc., by one who is jointly concerned with them in the enterprise, would have the effect, under the provisions of the statute, to change the relations of the parties inter sese, and create a mining copartnership between them; and only after that had been effected, a notice or notices looking to the levying of an assessment, etc., under section two of the act, etc., may be served, and other proceedings taken, according to the further provisions of the statute. There is no authority whatever to proceed as here attempted under the statute, unless the mining copartnership be first created between the parties; and there being no evidence tending to show that fact, the court below should have excluded the conveyance offered by the plaintiff. Judgment and order denying new trial reversed and canse remanded.

CROCKETT, J., being disqualified, took no part in this decis

ion.

JONES V. CLARK ET AL.

(42 California, 180. Supreme Court, 1871.)

1Power of superintendent to bind partnership. A superintendent of a mining partnership has no authority, as superintendent, to purchase ditch property for the purpose of supplying the company with water to work their claims, or to give the company's note in payment. There must have been special authority for that purpose, or his acts must have been afterward ratified, otherwise the partnership will not be bound. 2 Acts of superintendent afterward ratified-Estoppel. A promissory note given by the superintendent of a mining partnership, in payment for property purchased by him in the name of the company and for its use, will be held to be ratified by the company, although not authorized at a company meeting, if the partnership afterward uses the property so purchased and acquiesces in the payment by the company of the interest upon the note, until after the debt would be barred, if the note were held invalid. By such conduct the company is estopped from disputing the validity of the note.

Parties-Retired partner. In a suit to dissolve a partnership and for an accounting, and to have a note held by the plaintiff paid out of the partWithington v. Herring, 5 Bing. 442; Ricketts v. Bennett, 11 M. R. 278; Brown v. Kidger, Id. 343; Decker v. Howell, Id. 492; Manville v. Parks, 7 Colo. 128; Post v. Pearson, 108 U. S. 418.

2 Lyell v. Sanborn, 1 M. R. 313; Union Co. v. Rocky Mt. Bank, Id. 432.

nership assets, if a retired partner still continues bound by the note, he has nevertheless parted with his equity to have the partnership debts paid out of the partnership property, and if a proper, is certainly not a necessary, party to the proceeding. Survivorship. A mining partnership is not dissolved by the death of one of the partners; and the survivor has no right to take control of the property. Such a rule only applies where the delectus personæ exists. Damages -Sluicing away bed-rock and re ervoir. Damages allowed by the referee for the washing away of bed-rock by the plaintiff in sluice mining, which, from the facts found, were altogether hypothetical, were properly stricken out by the court below; but damages for the destruction of defendant's reservoir, should have been allowed.

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

There was a judgment in this case in February, 1869, dismissing the action as to the defendants Robert O. Cravens, Mary J. Cravens, J. Willis Low and Ezra S. Bradlee, dissolving the partnership known as the "Dardanelles Mining Company," existing between the plaintiff, defendant Clark, and the estate of William R. Longley, deceased, and ordering a reference to take an account as to the partnership affairs as between the said partners, and as to their transactions with the defend ants Robert Winspear an John M. Miner.

In its findings, upon which the foregoing judgment was based, the court below, after reciting the facts, proceeded as follows:

"From the foregoing facts I find as matters of law: First, that said promissory note set forth in the complaint, dated August 1, 1862, has been fully ratified and confirmed by said Dardanelles Company, and is to be held as the note of said company," etc.

The referee, J. I. Fitch, Esq., filed his report in August He found, among other things, that J. Russell Glover in December, 1867, acquired from the plaintiff one half share of his said two and one half shares, and that, at an election held in that month, Glover was put in the place of Clark for superintendent. As to the injuries occasioned by the washing away of the bed-rock, the referee reported as follows:

"XVIII-The Dardanelles Company, in working their claim, did not clean up their bed-rock very closely, but saved the rock for future working. The rock contained gold in considerable quantities, in places to the depth of four or five

fect, and was sufficiently soft to enable the workmen to 'pick it up.' The rock was of such a character that the gold could not be extracted by ordinary sluice washing. This rock was regarded by the company, and all others acquainted with it, as valuable, and had been saved by the company to be worked only when they had determined upon the proper mode, and were prepared with the means of working accordingly. Clark had, during several years, subjected this rock to various tests and experiments, to determine the proper mode of working it. The result of these experiments was the conviction that but a small part of the gold could be obtained by the usual sluice washing; that if it was to be worked by sluicing at all, that the tailings should be caught, allowed to lie and slake in the air for a considerable time, then sluiced again, and this opera. tion to be repeated four or five times. In the experiments referred to quite satisfactory results were had, by first burning or heating the rock and afterward washing it. The most satisfactory result, however, was obtained by crushing the rock before washing it. In the summer of 1867 Clark was offered, by two parties, $15,000 for this bed-rock, and desired to sell it; but plaintiff would not consent. One of the parties, the Chinaman who bought the tailings, offered $8, 00 cash, and the balance in installments; and the other $10,000 cash, and the balance to be paid afterward. During the last winter Jones and Glover have picked up and sluiced down the cañon about half of this bed-rock, and have not realized from it more than enough to pay expenses. Clark forbid Jones from working this rock. Jones and Glover knew of the experiment made by Clark, and knew that it had long been the opinion of the company that the gold could not be extracted by the or dinary sluice washing. Jones, on the trial, claimed that as much of the gold was saved in the way he worked it as in any other; that the cañon was more than a mile long, and is owned by the company, is very steep and rocky, and that the gold would be freed in its passage down the cañon.

"XIX. On the 20th day of January, 1869, plaintiff, Jones, and said Glover, made a contract with the Oro Company, which owns mining claims adjoining the Dardanelles claims, by which it was agreed that the Oro Company could wash its dirt through a tunnel and flume of the Dardanelles Company,