this court, at a term held at Spokane, decided the question the other way in the case of Northern Pacific Railroad Company v. Stanton. At that time the court did not have an opportunity to study the question as thoroughly as it appears to have been studied by the counsel who have argued this case. No opinion was prepared, and the considerations upon which the decision was based have not been publicly set forth. Therefore, to justify a departure from precedent, it is proper at this time to say the court then considered that the act of congress of June 3, 1878, authorizing the sale of lands chiefly valuable for stone, on the same terms as timber lands (1 Supp. Rev. St. U. S. [2d Ed.] p. 167), and the act of August 4, 1892, authorizing the entry of lands chiefly valuable for building stone under the placer mining laws (2 Supp. Rev. St. U. S. p. 65), placed stone lands in a class separate and distinct from other mineral lands, and justified an inference that the word "mineral," as used in prior acts, was understood and intended by the legislative branch of the government as having a limited definition including only metalliferous minerals. The second section of the act of 1892 extends the act of 1878 to all the public land states, so there can be no presumption that it repeals the act of 1878 by implication. The court, as then informed, supposed that its decision in the Stanton Case was in harmony with the rule at that time prevailing in the land department. See Conlin v. Kelly, 12 Land Dec. Dep. Int. 1; Clark v. Ervin, 16 Land Dec. Dep. Int. 122; Hayden v. Jamison, Id. 537; South Dakota v. Vermont Stone Co., Id. 263; Florence v. Delaney, 17 Land Dec. Dep. Int. 120; Tucker v. Navigation Co., 19 Land Dec. Dep. Int. 414. In the presentation of this case the attorneys on both sides have made oral and written arguments supporting their respective contentions with great force and much learning, and, after considering the same with deliberation, I am fairly convinced that the reasons controlling the decision in the Stanton Case are insufficient, and it appears, also, that the practice in the land department is now gov erned by a different rule, as shown by the action of the department in issuing a patent to the defendant for the land which is the subject of controversy in this case. In its common and ordinary sig nification the word "mineral" is not a synonym for "metal," but is a comprehensive term, including every description of stone and rock deposits whether containing metallic substances or entirely nonmetallic. Congress having chosen a word of such broad significance to define the class of lands reserved from the grant to the Northern Pacific Railroad, the courts and the land department have no authority to construe the act, giving a narrow or limited definition to the word, in order to enhance the value of the grant, and to diminish the rights of the general public in the lands reserved, unless the act itself, or other acts of congress, prescribe conditions which require an interpretation of the statute allowing the word to have force only in a restricted sense. The granting act itself does not expressly or by implication so prescribe, otherwise than by making an exception of coal and iron. Looking, then, for other acts of congress, which might be regarded as giving a legislative construction to the granting act, I find only one which indicates a purpose

to give a legislative definition to the word "mineral," as it is there used; that is, the act of February 26, 1895, to provide for the examination and classification of certain mineral lands in the states of Montana and Idaho (2 Supp. Rev. St. U. S. p. 385). This statute pro vides for a commission to examine and classify the odd-numbered sections of land within the limits of the Northern Pacific Company's grant in the states of Montana and Idaho, and the third section reads as follows:

"That all said lands shall be classified as mineral which by reason of valuable mineral deposits are open to exploration, occupation, and purchase under the provisions of the United States mining laws, and the commissioners in making the classification hereinafter provided for shall take into consideration the mineral discovered or developed on or adjacent to such land, and the geological formation of all lands to be examined and classified, or the lands adjacent thereto, and the reasonable probability of such land containing valuable mineral deposits because of its said formation, location, or character; provided, that the word 'mineral,' where it appears in this act, shall not be held to include iron or coal."

If congress had intended by this act to interpret the reservation clause of the granting act so as to give a restricted definition to the word "mineral," there is no good reason why it should not have directed that only lands valuable for the metalliferous minerals therein should be classified as mineral lands; and it is significant that, instead of prescribing any such limited rule, the words of the act correspond with the words in the grant expressing the purpose to reserve all minerals, the test being, not the nature or quality of the mineral, but its value; and lands containing any mineral deposits of sufficient value to be subject to sale by the government under the provisions of the United States mining laws are required to be classified so as to come within the class of lands which are reserved. This statute must be understood as referring to the United States mining laws in force at the time of its enactment, including the act of August 4, 1892, by which lands "that are chiefly valuable for building stone" were made subject to entry under the provisions of the law in relation to placer mineral claims. It may be conceded that congress could not, after the granted lands had been earned, by any form of enactment withdraw any part not in fact originally reserved, and the court is not at all inclined to give any such effect to the act of 1895. But the complainant in this case contends for an interpretation of the granting act in accordance with a supposed particular legislative intent, which is not expressed by the words of the statute according to the definitions found in the dictionaries, and in prosecuting an inquiry as to the intent of the legislature it is not improper to give due consideration and weight to the repeated and harmonious expressions found in the statutes. It is not to be presumed that the intention or purpose of congress with respect to what lands should be granted and what reserved was changed between the time of making the grant and the enactment of the law providing for the classification of the lands within the limits of the grant in the states of Montana and Idaho, when no such change of intention or purpose is declared. On the other hand, it is fair to presume that the intention of congress was

the same with respect to mineral lands reserved from the grant in other states that is expressly declared with reference to lands in Montana and Idaho.

On the part of the complainant it has been argued that prior to August 4, 1892, lands valuable for the deposits of stone contained therein were not regarded by congress as mineral lands, else congress would not have enacted the law of June 3, 1878, providing for the sale of such lands on the same terms as timber lands, nor have enacted a law specially providing for the entry of lands chiefly valuable for building stone under the laws providing for the disposi tion of placer mineral lands, and it must be admitted that this argument is supported by the decision of the circuit court of appeals for the Ninth circuit in the case of McFadden v. Milling Co., 97 Fed. 670. I should not feel at liberty to disregard a decision of the appellate court if the case under consideration necessarily had to turn upon the same point, but while it is true that the act of 1892 only prescribes a rule for the future, and therefore may not be treated as being declaratory of the previously existing law, still it does not follow as a logical deduction that lands chiefly valuable for the ledges and deposits of stone therein had been theretofore considered by congress as nonmineral. If a new statute should be passed, providing a particular method of acquiring title to lands containing valuable deposits of nickel or zinc, and also providing that the same character of lands may be entered under the general mining laws of the United States, thus giving to purchasers an option to acquire the title by either method, it would be just as reasonable to say that by implication the new law had added something to the list of recognized minerals as to suppose that the act of 1892 had the effect to place stone for the first time in the list of minerals. On the part of the defendant an argument has been made that, because there was apparent confusion in the practice of the land department, growing out of contradictory rulings with reference to stone lands, the act of 1892 was intended to avoid the consequences of certain decisions which class stone as nonmineral, and therefore it must be inferred that the act was intended to restore stone lands to the classification of mineral lands, in harmony with the general policy of the government. I do not rest my decision upon that inference. I hold that it does not clearly appear from all or any declarations of the legislative will that the word "mineral" in the grant to the Northern Pacific Railroad was there used in a restricted sense, and the rules for construing statutes making grants require that effect be given to the whole act, including the reservation clause, according to the common and general definition of the words selected by congress. Decree for the defendant.

TOWLE v. HAMMOND.

(Circuit Court of Appeals, Sixth Circuit. February 6, 1900.)

No. 660.

1. PARTNERSHIP-PURCHASE OF CO-PARTNER'S INTEREST IN FIRM.

A partner's purchase of the interest of another partner in a firm does not inure to the benefit of a third partner, as a matter of law or equity, even though the purchaser acquired the equity of redemption in the interest after the failure of the selling partner.

2. SAME-SALARY OF PARTNER-WEIGHT OF EVIDENCE.

A partner testified that when the firm was formed it was agreed that H. and I., two of the partners, were to receive no salary, but that P. and the witness were to be paid a salary. The books kept by I. showed that from the organization of the firm H. received a salary, and that I. did not. P. never made any objection. Held, that the unsupported evidence of the witness is insufficient to establish his claim as to H.'s salary. 3. SAME-PARTNERSHIP ACCOUNTS.

The mere failure of a witness to recall the receipt of money on a certain date 20 years before, where it was conceded that he did receive money from the same source at some time, will not impeach a charge against a partner in the partnership accounts, for an advance to the witness, where the account in every other respect is entirely accurate.

Appeal from the Circuit Court of the United States for the Eastern District of Michigan.

This is an appeal by Marcus M. Towle from a decree of the circuit court dismissing his bill in equity against the personal representatives of George H. Hammond, deceased. The prayer of the bill was for an accounting by the administrators of the estate of George H. Hammond to Towle for profits received by Hammond in the business of slaughtering cattle and transporting meat by refrigerator cars from what is now Hammond, Ind., to the Eastern markets and to Europe, in which business, the bill averred, Towle and Hammond had been associated together as partners, with others, from the year 1869 to 1877, and thereafter as sole partners until 1881, and subsequently as fellow stockholders in a corporation organized to conduct the same business. The bill, in effect, charged that Hammond had control of the business, kept the books under his supervision at Detroit, and that Towle, whose part of the business was done at Hammond, knew nothing of the books or of the profits earned, and that, by misrepresentation of material facts, Hammond had induced Towle to accept as his share of the capital stock of the corporation organized in October, 1881, one-fifth thereof, when he was entitled, by reason of his actual ownership in the business at that time, to one-third of said capital stock. It was further averred in the bill that, in the partnership books kept under Hammond's direction, Towle had been charged in his personal account with items amounting to more than $100,000, which were properly chargeable to the business of the firm and corporation, and that such false charges had inured to the benefit of Hammond. The bill further charged that, under the direction of Hammond, money had been paid out of the firm funds as loans to different persons, and charged to Towle's personal account, but that when these loans had been repaid Hammond had appropriated them to his own use, and had not credited them to Towle.

The administrators of Hammond answered, admitting the business relationship between Hammond and Towle as averred in the bill, but denying all charges of fraud. The answer further pleaded the bar of the statute of limitations, both that of six years, and also that of two years for the presentation of claims against the estate of deceased persons. The bill, in anticipation of . a plea of laches, had set forth, in considerable detail, why complainant had not before discovered the fraud; the chief ground being that Hammond managed the business at Detroit, while Towle superintended the slaughtering of cattle at Hammond, and rarely, if ever, visited Detroit, and never examined the

books; and, further, that Hammond concealed the evidence of the fraud from Towle, and that never until a suit was brought against Hammond by one Davis for the settlement for royalties upon a patent on refrigerator cars was Towle advised of the actual facts upon which he now seeks a recovery.

The following is a short history of the transactions involved in this controversy:

In September, 1869, Towle, the complainant, and one Plummer, who were butchers in Detroit, and who had in a small way been transporting slaughtered beef to the Boston market for sale, associated themselves with George H. Hammond, the defendant's intestate, and one Caleb Ives, for the purpose of carrying on the business of slaughtering cattle and selling the meat in the Eastern markets. Prior to this time, Hammond and Ives had entered into a contract with Samuel H. Davis and David W. Davis and Thomas B. Rayl, by which the Davises and Rayl, who owned a patent for refrigerator cars, gave a license to Hammond and Ives to use said patent for transporting meat, for the consideration that Hammond and Ives should build cars according to the patent, and conduct the business of slaughtering cattle and transporting the meat, after it had been dressed, to the Eastern market, and should pay the owners of the patent one-sixth of the profits of the business. This contract was made in July, 1869, and the partnership between Hammond and Ives and Plummer and Towle was entered into in September of the same year. Plummer and Towle did not have any interest in the patent except as it was used in the business in which they were partners. To the original partnership, Hammond contributed $4,000; Ives, $4,000; Plummer, $2,000; and Towle, $2,000. The contract of partnership was oral, but under it Hammond and Ives were each to receive one-third of the profits, and Plummer and Towle each one-sixth. Land was purchased in the name of all of them on the Calumet river, on the state line between Indiana and Illinois, and slaughter houses were there erected. To Plummer was assigned the duty of buying cattle in Chicago and elsewhere; to Towle, that of superintending the slaughtering and dressing of the cattle at Hammond and the shipping of the same; to Ives. that of keeping the books at Detroit; and to Hammond, the general management of the business at Detroit and elsewhere. The business was fairly profitable from 1869 until the death of Plummer, in 1873. After the death of Plummer, Hammond, Ives, and Towle met Plummer's representatives in Detroit, and Plummer's interest in the business was purchased for $25,000. In the partnership which succeeded Plummer's death, the profit and loss account upon the books which were thereafter kept by M. W. Allen, brother-in-law of Ives, who was called into the business to represent Ives' interest, showed that Hammond had seven-fifteenths interest, Ives five-fifteenths, and Towle threefifteenths. The bill avers that the division should have been, under the agreement, two-fifths to Hammond, two-fifths to Ives, and one-fifth to Towle. There were no written articles of partnership, and the agreement, if there was one expressed, was oral. The original partnership had been called Hammond, Plummer & Co. Upon Plummer's death, the partnership then formed was known as George H. Hammond & Co. Hammond, Ives, and Towle carried on the business under this name together until March, 1877. Ives had been engaged in a good many other business ventures, and, becoming involved in the summer of 1876, induced Hammond, for his accommodation, to indorse notes aggregating in amount something over $66,000. To secure Hammond against loss on these indorsements, he executed to him two instruments, the first of which authorized Hammond to apply, to the payment of any of these notes which he might be called upon to pay, Ives' share of the profits in the business, and the second of which, executed a few days later, was a chattel mortgage of Ives' interest in the partnership, whereby Ives purported to convey title and to vest in possession of Hammond his share in the firm of George H. Hammond & Co. The condition of the mortgage was that Ives should take up and pay his notes upon which Hammond was accommodation indorser, and save Hammond harmless from liability thereon. Notwithstanding the assistance which Hammond thus gave Ives, on March 11, 1877, he was obliged to make a common-law assignment for the benefit of creditors, and 10 days later filed a petition in bankruptcy in the United States district court for the Eastern district of Michigan. Immediately after Ives' assignment