that he was ready to relieve plaintiff, Haas, of the burden of his salary. It does not appear that the other owners made any objection to this new arrangement. In addition to giving defendant notice of his withdrawal from the enterprise of working the mine, plaintiff also posted a written notice at the shaft-house, giving similar notice to all persons employed by or dealing with Slater in working the mine.

The acceptance of plaintiff's notice by defendant, and his express assent to its terms, the communication thereof to the other owners, and their acquiescence therein, together with his posted notice to all other persons interested, justify the conclusion that there was a withdrawal by plaintiff from any mining copartnership which may have theretofore existed between the several co-tenants. The other owners, as well as plaintiff and defendant, having notice of the new arrangement, the court was warranted in finding that there was a complete termination by mutual consent of plaintiff's liability to defendant under the original contract of employment, and that by this means plaintiff's interest in the proceeds of the mining property was entirely severed from that of his co-tenants.

The defendant continued working the mine and extracting ores therefrom for several months after the withdrawal of plaintiff as aforesaid. The evidence was somewhat conflicting as to the rate of monthly wages the defendant was entitled to receive; but it is clear that defendant at the close of his employment reserved out of the proceeds of the mine his monthly wages at the full rate and for the full time as originally claimed by himself, disregarding altogether the abrogation of the original contract resulting from plaintiff's written notice, his own response and the acquiescence of the other owners.

Though not specifically so stated, it is obvious that the finding and judgment of the court were based upon the amount of plaintiff's interest in the surplus proceeds of the mine in the hands of defendant, according to the theory that plaintiff's liability under the original contract had been terminated and his interest in the proceeds of the mine severed from that of his co-tenants.

The findings of fact by the trial court upon the conflict

ing evidence can not properly be disturbed. Plaintiff's share in the proceeds of the mine having been entirely severed from that of his co-tenants, there appears to be no legal obstacle to his recovery of the same in this action. The judgment of the County Court is accordingly affirmed. Affirmed.

1. Judgment can not be taken against members of a firm not served. Davidson v. Knox, 67 Cal. 143.

2. Relation of the members to each other-fraud between, on mining option. Caldwell v. Davis, 10 Colo. 481.

3. Partnership to buy and sell land must be in writing. Young v. Wheeler, 34 Fed. 98. A partner may sell the entirety in a parcel of land. Id.

4. Ownership of mine in name of one partner. Liability for miners' liens. Rosina v. Trowbridge, 17 Pac. 751.

5. Partner lent his partner all the share of the borrower and took security. Held, entitled to foreclosure before accounting. Bull v. Coe, 18 Pac. 808.

6. Where partner aids defendant he is estopped to claim division of the judgment recovered. Miller v. Chambers, 34 N. W. 830; 5 Amer. St. Rep. 675.

7. Sale between, after concealment, for low price, set aside. Bowman v. Patrick, 36 Fed. 138.

8. Sufficient evidence of acts to prove a quarry co-partnership. Organization of partnership into corporation not notice to third parties. First Nat. Bank v. Conway, 30 N. W. 215.

9. Must account for profits, where one partner is the active agent and contracts for his own benefit. Kimberly v. Arms, 129 U. S. 512. 10. Quarry not firm assets. Lien of partner. U. P. Ry. v. Kennedy,

20 Pac. 696.

11. Construction of articles. Skill against capital. The skilled partner liable to contribution on the losses. Hellebush v. Coughlin, 37 Fed. 294.

12. Loans between the members are not partnership items and may be sued for without a settlement. Bull v. Coe, 77 Cal. 54.

13. Defendants were mine owners in unequal parts and agreed to work the mine in proportion to their interests. Held, that a mining partnership was proved. Randall v. Meredith, 11 S. W. 170.

14. A mining partner may not borrow money on the credit of the firm, but such borrowing will hold the firm if ratification be proved. Id.

15. A mining partnership may be proved by parol testimony, but the evidence in such case should be clear. Mayhew v. Burke, 29 Pac. 106. 16. The majority interest controls and the minority owner may be enjoined from working except as directed by plaintiff. Hawkins v. Spokane M. Co., 28 Pac. 433.

THE UNITED STATES V. THE MARSHALL SILVER MINING CO. ET AL.

(129 U. S. 579. Supreme Court, 1889.)

When the United States retires from the prosecution of a suit instituted to vacate a patent of public land, without causing the appeal to be dismissed, and another party, claiming the same land under another patent, is in court to prosecute the appeal, this court will not dismiss it on the motion of the appellee as of right, but will look into the case, and if the circumstances require it, will hear argument on the case and decide it.

Errors in land office. Errors and irregularities in the process of entering and procuring title should be corrected in the land department, so long as there are means of revising the proceedings and correcting the errors.

Silence for more than eight years after a party has abandoned a con

tract for patent of mineral land, and has submitted to a decision of the question by the land department, however erroneous, is such laches as amounts to acquiescence in the proceedings and precludes a court of equity from interfering to annul them. Patent set aside only for gross irregularity. When the officers of the land department act within the general scope of their powers in issuing a patent for public lands, and without fraud, the patent is a valid instrument, and the court will not interfere, unless there is gross mistake or violation of law.

Scope of Bill to Vacate Patent. A bill in chancery brought by the United States to set aside and vacate a patent issued under its authority, is not to be treated as a writ of error, or as a petition for a rehearing in chancery, or as if it were a mere retrial of the case before the land office.

Presumption of Regularity. The holder of a patent from the United States can not be called upon to prove that everything has been done that is usual in the proceedings in the land office before its issue; nor can it be called upon to explain every irregularity, or even impropriety, in the process by which the patent was procured.

Appeal from the Circuit Court of the United States for the District of Colorado.

JOHN H. HICKCOX, JR., and J. K. REDDINGTON, for appellant.

R. S. MORRISON and SIMON STERN, for appellees.

MILLER, J.

The case before us originated in a bill in equity brought in the Circuit Court of the United States for the District of Colorado, in the name of the United States of America, by its attorney general, and the district attorney of the United States for that district, against the Marshall Silver Mining Company and the Colorado Central Consolidated Mining Company, defendants. The purpose of the bill was to set aside and vacate a patent issued by the Government to the Marshall Silver Mining Company, for a vein or lode of mineral deposit, lying in the Griffith mining district, in the County of Clear Creek, Colo., known as the "Tunnel Lode No. 5," dated on the 8th day of June, 1874. Afterward another patent, including a part of the same land covered by the one just referred to, was issued to McClel lan, Rist and Webster, upon what was called the "Cayuga Lode," on the 31st day of January, 1882.

The grounds which are set up in the bill for vacating the first-mentioned patent are mainly such as go to show that its issue fraudulently deprived the holders of the second instrument of the right to the title of so much of the land as is covered by the conflicting boundaries described therein, so that the result of a decree annulling the first patent would be to give to the claimants under the second, the paramount title. The Circuit Court, after hearing the case on the bill, two different demurrers, answers, replication, and a large amount of testimony, dismissed the suit. From that decree the present appeal was taken by the United States.

At the beginning of this term the attorney for the Government filed in this court a statement that the United States had no pecuniary interest in the suit, and the officers charged with the conduct of such matters on the part of the Government declined to take any farther part in the argument of the case. They did not, however, dismiss the appeal, and made no objection to its prosecution by the private parties interested in the matter, who had conducted the case from its inception. Thereupon a motion was made by the appellees and argued before the court, to dismiss the appeal, which was resisted by the counsel interested in the

second patent. Under all the circumstances, the court determined to hear it, refused the motion, and, after thorough argument, the case is now before us for decision.

The charges which are made the basis for the relief sought here may be comprehended under two heads, although they are so mingled together in the bill that it seems doubtful whether they were intended to be considered and treated as separate propositions. The main ground is an allegation of fraud, practiced upon the parties claiming the Cayuga lode, by collusion between those having the management of the claim to Tunnel lode No. 5, and certain officers of the land department, and particularly the register and receiver of the land office located at Central City.

The material facts are that the claimants to both of these lodes seem to have been prospecting in that vicinity, and discovered mineral in their different claims about the same time. They each had their claims staked out and surveyed by deputy surveyors of the United States, and about the same time they each made application to the land office for their entry, with a view of obtaining patents therefor. Upon the application being made for a patent upon the Cayuga lode, the Marshall Silver Mining Company, discovering that it interfered with a portion of their claim, brought a suit in the local court of the State, under the act of Congress on that subject (Sec. 2326, Rev. St.), against McClellan, Rist and Webster, asserting the superiority of their claim to a patent for the land in controversy. The statute provides that the judgment in such a suit shall govern the rights of the parties in the land office. This suit was on the docket of the court for some time, perhaps a year or more. In the meantime Rist, one of the parties in interest under the claim to the Cayuga lode, made a disclaimer in the local land office of the proceedings taken by his partners, in the name of McClellan, Rist and Webster, and so far as he was interested in that claim directed the proceedings to be dismissed. Accordingly the register and receiver of that office made an entry dismissing the claim to the Cayuga lode, and the application for a patent thereon, under the belief, as they expressed it, that such was the necessary result of the action of Rist.

One of the questions of fact which is disputed in this