Pacific Coast Law Journal.

VOL. 1.

APRIL 6, 1878.

Current Topics.

No. 6.

THE removal of the records of the Supreme Court to Sacramento, for the April Term, to be held at that place, accounts for the absence this week of our usual notes of unwritten opinions. Our attorney at Sacramento will prepare them for our next issue. This great inconvenience to all who have occasion to consult the records has been remedied by the new bill, which soon goes into effect, requiring separate records to be kept at each place of holding terms.

THE Governor signed the bill permitting women to become attorneys-at-law. Practically, we attach no importance whatever to the new law. Mr. Glover introduced a bill in Congress to allow women to be admitted to practice before the Supreme Court of the United States. The bill passed the House of Representatives, but is now pending in the Senate upon an adverse report of the Judiciary Committee. Their report is that Congress had no power to regulate the admission of attorneys to the Supreme Court of the United States; that the power is exclusively in the Court. The action of the Senate upon the report may be quite material, should our Supreme Court attempt to declare its power and exclusive right to say who shall be admitted to practice before it, notwithstanding the legislative act. Unless the Constitution of our State gives this power specially to the Legislature our Supreme Court could, with as much consistency, declare its sovereignty in such matters.

Supreme Court of California.

JANUARY TERM, 1878.

[No. 5,602.]

[Filed March 30, 1878.]

NISBET vs. NASH.

MINING PARTNERS, WHO ARE. - John Nisbet, the plaintiff's grantor, and the defendant Nash, sold an undivided one-half of certain mining grounds to the defendants Fletcher and Sexey. All began working and contributing to the development of said claim; but finding that it was unproductive, suspended work. The plaintiff again, and without the consent of the defendants, began work, and expended further money on said property. The Court below held that the plaintiff and defendants were not mining partners. Held, error.

This is an action for a partition of mining property and for an accounting of the partnership transactions growing out of the mining partnership. In September, 1865, the defendants, Nash and John Nisbet, conveyed to the defendants, Sevey and Fletcher, the undivided one-half of the mining ground involved in the action. The four then procured a patent of the United States for the ground.

Between 1865 and 1869, they expended in opening the mines more than $3,000. The operations on the mines were then discontinued till the winter of 1869-70. John Nisbet, it is alleged, without consulting the others, did in 1870 begin the work again and expended the sum of $1,700. Afterward the said John Nisbet conveyed to his brother William, the plaintiff in this case, his one-fourth interest in the mine. William Nisbet afterward commenced work on the mine and expended labor and money in further developing it. The defendants did not give their consent to this, and refused to furnish money or labor.

The plaintiff now brings this action for a partnership accounting.

The Court below found that the plaintiff and defendants were not mining partners, from which judgment the plaintiff appealed. The defendant also appealed from other orders of the Court.

Belcher and Belcher for defendants.

The owners of a mining claim are tenants in common in the ownership of the mine. In the working of it they are mining partners. This partnership begins when by the consent of the parties work on the mine begins, and it ceases when the work ceases. Civil Code, Sec. 2,511; Duryea vs. Burt, 28 Cal. 569.

A majority in interest of the part owners of a mine have a right to control the business of working. Civil Code, Sec. 2,520; Dougherty vs. Creary, 30 Cal. 300.

P. O. Hundley for plaintiff.

When Fletcher and Sexey purchased an undivided onehalf of the mining claim from Nisbet and Nash and engaged in working the claim, expending $3,000, they became mining partners. Civil Code, Sec. 2,511; Taylor vs. Castle, 42 Cal. 370; Duryea vs. Burt, 28 Cal. 578; Dougherty vs. Creary, 30 Cal. 300.

In the bond defendants executed for the purchase money they obligated themselves to work the mine to pay the amount of the bond.

The sale made by John Nisbet to Wm. Nisbet did not dissolve the copartnership. Civil Code, Sec. 2,516; Duryea vs. Burt, 28 Cal. 569; Taylor vs. Castle, 42 Cal. 370.

The partners are mutual agents of each other in all things which respect the copartnership, and the act of one in the name of all in their common business is obligatory on the others. Story on Agency, Sec. 37.

PER CURIAM.

The Court erred in finding that plaintiff and defendants were not mining partners. They were.

The Court should have found, whether or not the partnership had been dissolved.

If, on a re-trial, the District Court shall find that the partnership has been dissolved, the decree must be for an accounting. If the Court shall find that it has not been dissolved, it will become its duty to determine, whether or not, plaintiff is entitled to a decree of dissolution; and if it shall find that plaintiff is entitled to such decree, the decree should also provide for an accounting.

It is not necessary to determine, whether John Nisbet is a necessary party to this action or any accounting.

Judgment and orders denying new trial reversed and cause remanded for a new trial-each party to pay one-half of the costs of these appeals.

[No. 5,533.]

[Filed March 28, 1878.]

THOMPSON vs. CORPSTEIN.

ESTRAY CATTLE-WHAT ARE NOT UNDER THE ACT OF MARCH, 1874.- Cattle passing over and along a public road in charge of a herder, and not being upon the road for the purpose of being pastured there, and in passing did casually eat of the grass growing at the roadside, are not estrays and subject to proceedings under the Statute of March, 1874.

SAME. The Court below found that the plaintiff's cattle had been driven to Wolf Creek for the purpose of being watered, and while there in the charge of a herder, who had fallen asleep for the moment, were found pasturing upon both sides of the road. Held, that in the absence of an intent to so pasture them, the cattle would not be subject to proceedings under the Act.

In the Statute of March, 1874, concerning roads and highways in the county of Santa Clara (237), it is enacted that no stock of any kind shall be "allowed to pasture upon any public highway, and it shall be the duty of any roadmasters and deputy roadmasters, within their respective districts, to take up all animals found pasturing upon the public highways, and to deal with said animals as provided in an act to amend an act concerning estrays and animals found running at large in the county of Santa Clara," etc.

Upon reference to the latter act it is therein provided,

that the estray cattle, or cattle running at large upon any public road, may be taken and impounded.

It is apparent that both acts deal with the case of cattle running at large, or being estray, and not with cattle passing over and along a public road in charge of a herder, and not being upon the road for the purpose of being pastured there.

It was not the intention of the act that cattle being driven along the road in charge of a herder, and which, in passing, should casually eat of the grass growing at the roadside, should for that reason be subjected to proceedings by the roadmaster under the act first referred to. The Court below found that the plaintiff's cattle had been driven from the plaintiff's land to Wolf Creek upon the Stephen's Creek road for the purpose of being watered, and while there in charge of a herder, who seems to have fallen asleep for the moment, were found pasturing upon both sides of the road.

There is no pretense that the plaintiff, or the herder, intended that the cattle should pasture upon the road and that they were found eating the grass there, was owing solely to the accident of the herder falling asleep for the moment, while in charge of the cattle. Had he fallen down in a fit, or been disabled by a sudden attack of disease, the same consequence might, and probably would have ensued, but we do not think that in the one case, more than in the other, the cattle would be subject to proceedings under the Act.

We are of opinion that the conclusion of law, second in number, deduced by the Court below, "That the plaintiff was pasturing and permitting to pasture, the cattle referred to, upon said highways, when the same were seized by the defendant," cannot be supported upon the facts found at the trial.

The action is replevin, and the facts as to the value of the cattle, and the damage, if any, sustained by the plaintiff, are put in issue by the pleadings, but are not determined by the findings. We cannot, for this reason, direct final judgment for the plaintiff here, and there must be a new trial of the action below.

Judgment reversed and cause remanded for a new trial.