Opinion of the Court-Sanderson, C. J.

action. The Court granted the motion, defendants' counsel excepting.

Plaintiffs recovered judgment in the Court below, and defendants appealed.

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

Jabish Clement, for Appellants.

The rule of law is, that where the wrongful act of the decedent did not result in any benefit to the estate, no cause of action survives against the administrator. This rule is laid down, and all the previous authorities upon the subject are cited and discussed in People v. Gibb, 9 Wend. 30. To the same effect are Wilbur v. Gilmore, 21 Pick. 252; Osborne v. Bell, 5 Denio, 370-76.

George F. & Wm. H. Sharp, for Respondents.

By the Court, SANDERSON, C. J.:

I. The first point made by counsel for appellants, to the effect that the cause of action set forth in the complaint does not survive against the personal representative of the defendants' intestate, is answered by the one hundred and ninety-seventh section of the Act to regulate the settlement of the estates of deceased persons, which provides that "any person or his personal representatives shall have an action against the executor or administrator of any testator or intestate who in his lifetime shall have wasted, destroyed, taken or carried away, or converted to his own use, the goods or chattels of any such person, or committed any trespass upon the real estate of such person."

II. The second point, to the effect that no proof was made of the presentment of the claim to the defendants for their allowance or rejection, as provided in the one hundred and thirty-eighth section of the Act to regulate the settlement of the estates of deceased persons, is answered by the

case of Hentsch v. Porter (10 Cal. 555), where it was [569] held that the objection *in question must be made in the Court below, and cannot be made for the first

Points decided.

time in this Court. It does not appear from the record that the defendants, either at the trial, or on the motion for a new trial, in any form objected to a recovery on that ground. For the reasons stated in Hentsch v. Porter, the objection cannot be entertained by us.

We cannot disturb the judgment upon the ground that the verdict is against the weight of evidence. Upon the question of title the evidence was conflicting, and we think it was fairly submitted to the jury by the instructions of the Court.

Judgment affirmed.

Mr. Justice SHAFTER expressed no opinion.

WILLIAM H. DURYEA v. HIRAM BURT, JOHN DEPUY AND EDWARD BURRELL.

1 WHAT CONSTITUTES A MINING PARTNERSHIP.-If two or more persons acquire a mining claim for the purpose of working the same and extracting the mineral therefrom, and actually engage in working the same, and share, according to the interest of each, the profit and loss, the partnership relation subsists between them, although there is no express agreement between them to become partners, or to share the profits and losses.

DISSOLUTION OF MINING PARTNERSHIP.--One of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership.

MINING CLAIM OF A MINING PARTNERSHIP IS PARTNERSHIP PROPERTY.--The mining ground belonging to and worked by a mining partnership and acquired for mining purposes, whether purchased with partnership funds or brought into the concern by individual members as a portion of the capital stock, is, in equity, for the purpose of a settlement of the partnership affairs, to be treated as partnership property.

LIEN OF MEMBER OF MINING PARTNERSHIP ON ITS PROPERTY.-Each member of a mining partnership has a lien upon the partnership property for the debts due the creditors of the concern, and for moneys advanced by him for its use, which he may enforce in equity, even if there has been no agreement among the partners that such lien shall exist.

2 PURCHASER OF INTEREST OF ONE MINING PARTNER HOLDS IT SUBJECT TO

1. Cited, Dougherty v. Creary, 30 Cal. 300; McConnell v. Denver, 35 Cal. 369; Nolan v. Lovelock, 1 Mont. 227; Decker v. Howell, 42 Cal. (42.

2. Cited, Jones v. Clark, 42 Cal. 191. Findings of Court when construed as an opinion. cited, Jones v. Block, 30 Cal. 229.

0-327

Argument for Appellant.

LIEN.--If a member of a mining partnership sells his interest in the mine, the purchaser takes it subject to any lien existing in favor of a copartner for debts due the creditors, or advances made for the uses of the concern, unless he becomes a purchaser in good faith for a valuable consideration, without notice of such lien.

NOTICE OF LIEN ON SALE OF MINING PARTNER OF HIS INTEREST.--If, while a mining company is engaged in working its mining grounds as [570] partners, *one partner sells his interest in the mine, the purchaser will be deemed to buy with notice of any lien resulting from the relation of the partners to each other and to the creditors of the partnership.

APPEAL from the District Court, Eleventh Judicial District, Nevada County.

The plaintiff appealed from the judgment and from an order denying a new trial.

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

D. Belden, for Appellant.

The joint enterprise of Duryea and Burt in working these mines under an agreement to share the profits and losses constituted a partnership. (Coll. on Part., Secs. 4 to 86; Story on Part., Sec. 19; 3 Kent's Com. 24; Champion v. Bostwick, 18 Wend. 183; Laffan v. Naglee, 9 Cal. 678.) And each of the partners has a specific lien upon the partnership stock for the debts of the firm, and also for his own advances made to his copartners. (Coll. on Part. 109; Story on Part. 145; Chase v. Steel, 9 Cal. 64; Conroy v. Woods, 13 Cal. 629; Bradford v. Kimberly, 3 Johns. Ch. 431; Mumford v. McKay, 8 Wend. 441; Bullock v. Hubbard, 23 Cal. 500.) And in equity all real property acquired with partnership funds, or for partnership purposes, is regarded as personal estate, so far as the payment of partnership debts and the adjustment of partnership affairs is concerned. (Coll. on Part. 116 to 145; Story on Part. 92; Collumb v. Read, 24 N. Y. 573; Buckley v. Buckley, 11 Barb. 76; Buchan v. Sumner, 2 Barb. Ch. 198; Sigourney v. Munn, 7 Conn. 11; Dyer v. Clark, 5 Met. 978; Depuy v. Leavenworth, 17 Cal. 267; Jones v. Parsons, 25 Cal. 100.) "So if real

Argument for Appellant.

estate be purchased with partnership funds, or for the uses of the partnership, held in equity charged with the partnership debts." (Buchan v. Sumner, 2 Barb. Ch. 198; approved in Collumb v. Read, 24 N. Y. 573.)

We have thus far considered this case under the general rules governing commercial partnership. I [571] shall now endeavor to show that in an ordinary mining partnership, such as this is found to have been, the equitable lien in favor of the partnership is extended rather than limited. Says Story: "Thus, for example, there may be a partnership in the working of the mine, for Courts of equity constantly treat the working of a mine as a species of trade, and apply the same remedial justice to such cases as they do to ordinary partnerships" (Story on Part., Sec. 82); and quotes with approbation the language of Lord Eldon, in Crawshay v. Maule (1 Swanst. 518, 523, 526): "Whatever may be the rights and liabilities of tenants in common of a mine not being worked, it is clear that where the several owners unite and co-operate in working the mine, then a new relation exists between them, and to a certain extent they are governed by the rules relating to partnerships, and this relation of partnership may be constituted either by express stipulation, or by implication deduced from the acts of the parties."

The case of Fereday v. Wightwick (1 Russ. and M. 45), is precisely like the present. Said Sir John Leach: "This property was acquired by these partners for the purposes of the partnership concern; therefore, though in the nature of real property, it is subject to all the debts of the partnership, and to the claim of one of the partners incurred in the administration of the property." (Coll. on Mines, 79.) The same case afterwards appeared in 1 Tam., quoted in 2 Harrison's Dig. 3876.

The learned Judge whose findings and conclusions of law accompany this case, states that there was no agreement between Duryea and Burt that there should be a lien upon either interest for the company debt, and his legal conclusions would seem to indicate that without such an

Argument for Respondents.

agreement the partnership lien would not exist. With all deference, we submit that this lien does not spring from express agreement, but is created by operation of law upon the partnership relation and the equitable necessities of the

case, and that where real property has been acquired [572] with partnership funds, or for the *uses of the partnership, or where the partners by their conduct or management indicate an intention to treat it as partnership property, and do so treat it, equity will, in furtherance of justice, so consider it.

Hawley & Williams, for Respondents.

The question to be determined is, whether in an ordinary mining company, such as that in the case at bar is found to have been, the relationship of proper partnership and the equitable lien peculiar to such relation exists between the members, in the absence of any express understanding of any nature as to the relationship existing, and in the absence of any agreement or contract whatever, that the interest of either in the claims was to be held subject to a lien for the common liabilities. Were the case at bar one of proper partnership, and the interest purchased by Depuy and Burrell of defendant Burt, held by him in trust for the purposes of such partnership, yet, Burrell being a bona fide purchaser, without notice of the character of the property, would take to the extent of one-half the interest conveyed by Burt to himself and Depuy, a title discharged of the lien of the copartnership and of the claims of the joint creditors. (Story on Part., Sec. 358; Coll. on Part., 3d ed., 120-122; Dyer v. Clark, 5 Met. 580; Hoxie v. Carr, 1 Sum. 182, 183; 8 Ohio, 365; Depuy v. Leavenworth, 17 Cal. 262.)

But we contend that a proper partnership did not exist between the parties Duryea and Burt in the case at bar, and that the facts as found are wholly insufficient to raise such relation and the equitable lien incident thereto by implication. Appellant, in support of his position, cites Story on Partnership, Sec. 82, to the point that there may be a partnership in the working of a mine, and that in such