Opinion of Johnson, J., concurring specially.

the property sold by them. Such being the case, a demand which serves no purpose except to establish a conversion was unnecessary, because, to employ the language of Lord Ellenborough in Hurst v. Gwennop (2 Starkie R. 306), "the very act of taking the goods from one who had no right to dispose of them was of itself a conversion."

Upon principle and authority, therefore, we conclude that the judgment must be affirmed.

By JOHNSON, J., specially concurring:

This action is in the nature of trover at common law. As understood in modern practice, the gist of this action is the conversion of a chattel, the property of the plaintiff, of which he had or at least was entitled to the possession, at the time it came to the hands of the defendant. (9 Bac. Abr. 629.) The action being founded upon a con[*503] joint right of property and possession, any act *of a defendant which negatives or is inconsistent with such right amounts in law to a conversion. The question is, does he exercise a dominion over it in exclusion, or in defiance of plaintiff's right? If he does, that is in law a conversion, be it for his own or another person's use. (Id. 630; 5 Cow. 325.)

If a party have illegally taken away or wrongfully assumed the right to goods in the manner which in the very taking or mode of performance constituted a conversion, then no further step is in general necessary, because the right to sustain an action of trover is in that case already complete. But in a case where the original taking was lawful, and the detention only illegal, it is absolutely necessary, and it is in most cases advisable, in order to secure sufficient evidence of a tortuous conversion on the trial, to give a formal notice of the owner's right to the property and possession, and make a formal demand in writing of the delivery of such possession to the owner. (1 Chit. Pr. 565–6.) Later authority holds that the demand need not be in writing. But where there has been an actual conversion it is not necessary to prove a demand and refusal (which is merely an evidence of a conversion), as if, for instance, a

Opinion of Johnson, J., concurring specially.

person purchase another's goods from one having no right to sell them and takes them into his possession, it is assuming upon himself the property and right of disposing of another's goods, and amounts to a conversion. (1 Dev. N. C. R. 308.)

This statement of the law will not be questioned. How, then, stands this case upon the facts about which there is no dispute? Tritle, for himself and his co-defendants, composing "The Petaluma Mill company," had in good faith bought the wood from parties who, it is shown, had no authority to cut or carry it away from the possession of the plaintiff. Ellis, the attorney of plaintiff, called upon Tritle, stated his authority, and the claim which plaintiff made to this wood. In the conversation that followed, Tritle stated in substance that "he had bought and paid for it, and did not intend to pay for it again, and would use it." These declarations of his most certainly brings it within the rule stated, which amounts to an actual conversion, and no formal demand for the delivery of the wood was necessary. Therefore, I do not *consider it neces- [*504] sary to go into the further inquiry as to the question of demand, certainly not for the purpose of either attacking or defending views heretofore expressed by the court in reference to another and entirely distinct character of action, as to demand under our statutory proceeding of claim and delivery of personal property, when it must be seen that the character of the actions are so essentially different. If the questions made and determined in the case of Perkins v. Barnes, referred to, are not already the settled law of this court, I prefer that it shall be done at some future time when the question properly arises.

I see no sufficient ground of error in respect to other points made by appellants, and hence must concur in the judgment of affirmance.

Argument for Appellant.

HENRY K. MITCHELL, APPELLANT, v. WILLIAM T. O'NEALE, RESPONDENT.

[4 NEVADA, 504.]

PRESUMPTION IN FAVOR OF LEGAL TITLE OF LONG STANDING.

claiming an interest in property, who has allowed another to take the title in his own name and to treat it as his own for years, must make out a strong and satisfactory case.

PARTNERSHIP AGREEMENT WITHOUT MUTUALITY VOID. - An agreement of partnership between two persons, by which one, without furnishing any means or doing anything to further the common enterprise, is to share equally in the profits and property acquired, is without mutuality, founded on no consideration, and void.

ACCOUNTING BETWEEN TENANTS IN COMMON OF A MILL.-Where the relation of tenants in common in a mill was established between two persons, and it appeared that one had the entire management of the concern, occasionally paying some of the proceeds to his co-tenant, but that no settlement had taken place: Held, that though there was no partnership shown, it was a proper case for an accounting between the parties. IDEM.-Ileld, that the plaintiff, under the pleading was entitled to an accounting as to the milling business, and that, so far as that was concerned, it was error to dismiss the bill.

[*505] ORDERING OTHER NECESSARY PARTIES INTO COURT.-If, in a judicial accounting between two of a larger number of tenants in common in a milling business, it be found that for a full adjustment of the account between such two the other tenants in common should be brought in, the court may order them brought in.

APPEAL from the District Court of the First Judicial District, Storey County.

The material facts are stated in the opinion.

Williams & Bixler and Aldrich & De Long, for Appellant:

Argued that Mitchell was a sub-partner with O'Neale, (Coll. Part., sec. 184), and that on a bill for settlement of such partnership the general partners were not required to be made parties. (Coll. Part., sec. 365; 1 Dau. Ch. Pr. 1865, 211.) They claimed that for the above reason Hall and Clark were not required to be made parties; that moreover they had been settled with, (1 Dan. Ch. Pr. 209; Towle v. Pierce, 12 Met. 329), and that the plaintiff was only seeking an account of the profits which the defendant received out of the transactions on joint account.

Opinion of the Court--Lewis, C. J.

C. J. Hillyer & Mesick and Seely, for Respondent:

This suit can settle the affairs of no other partnership than the one alleged. (Tryon v. Sutton, 13 Cal. 494.) The complaint charges a partnership, describes its character, and sets forth the terms of the contract upon which it is based. It was necessary to do this distinctly and with legal certainty, or the bill would have been defective and insufficient to support a judgment. (Story's Eq. Pl., sec. 241.) It is equally clear that the proofs must sustain the contract as stated, or the plaintiff must fail. (1 Chit. Pl. 304 et seq.)

David Bixler, for Appellant, in reply:

Where a bill calls for an account of partnership transactions, and its whole frame is adapted and confined to that object, the defendant may plead in bar that he is no partner. (Coll. on Part., 22 368, 370.) So far as the Crown Point stock transaction is concerned, the fact that no allegation was contained in the bill that Hall and Clark had been settled with could certainly not have prevented the plaintiff from obtaining an account of it. (13 Cal. 494.)

The prominent points in the evidence were discussed at great length by the respective counsel.

*By the Court, LEWIS, C. J.:

[*514]

The examination of this case has conducted us to these conclusions: First. That the evidence is not sufficient to establish a copartnership between the plaintiff and defendant of the general character alleged in the bill; Second. Whether a partnership of any kind were proven or not, the plaintiff made out a case entitling him to an accounting with respect to the operations of the Marysville mill, and therefore that his bill should not have been dismissed.

As it is desirable to dispose of this case upon its merits, we will proceed to give the reasons which have conducted us to these conclusions. Whether a general partnership between the parties existed or not is a proposition not by any means relieved from doubt, for the plaintiff testifies

Opinion of the Court-Lewis, C. J.

positively, as alleged in the bill, that a partnership was entered into which was to extend to the business of milling and crushing metalliferous rock, and generally to all matters and things which the said defendant might see proper to engage in; but the testimony of the defendant is direct, positive and unqualified that no partnership agreement of any kind was ever entered into between himself and the plaintiff. Such conflict in the testimony of two persons of unquestioned veracity must necessarily involve the first conclusion arrived at in considerable doubt. The burden of proof, however, is on the plaintiff, and in a case of this kind where it is sought to obtain the legal title to, and possession of, a large amount of property, both real and personal, all the outward evidence of right and title to which is in the defendant, the proof should be very satisfactory indeed to justify a decree such as that sought by this bill. He who claiming an interest in property, yet allows another to take the title in his own name and to treat it as his own for years, cannot complain if when he seeks to establish his right to such property he is required to make out a strong and satisfactory case. The courts have ever been averse to disturbing the title of the ostensible owner of real property, except upon clear and weighty proof. The inclination is always to favor the legal title and maintain it in him who holds it. But the testimony on behalf of the plaintiff in support of the partnership falls far

short of being satisfactory or convincing. Indeed, [*515] upon a candid weighing *of all the testimony, and placing upon it the most favorable construction possible for the plaintiff, still, whether such general partnership as that attempted to be proven was in fact entered into remains exceedingly doubtful. The very inequality of the original agreement of partnership, accepting it as explained by Mitchell, at once creates the impression that he must have been mistaken as to its character. It appears that all the work and labor were to be performed by O'Neale, whilst the only obligation which the agreement seems to have imposed upon the plaintiff was that of sharing the profits and accepting an equal interest in the property acquired by

the