
    *Graham & als. v. Pierce.
    January Term, 1869, Richmond.
    [100 Am. Dec. 658.]
    1. Tenants in Common—Statute.—Every tenant in common has a right to possess, use and enjoy the common property, without being accountable to his co-tenants for rents or profits, except under the statute, for so much as he may receive beyond his just share or proportion. Code, ch. 145, § 14.
    
    2. Same—How the Common Property to Be Used.— Tenants in common are not bound to use the common property jointly, by means of a contract of partnership between them, but may possess, use and enjoy the common property severally, accounting to their co-tenants for so much of the rents and profits as they may receive beyond their just share and proportion.
    3. Same—Measure of Accountability to Co-Tenants— Rents.—As a general rule, where a tenantin common uses the common property to the exclusion of his co-tenants, or occupies and uses more than his just share or proportion, the best measure of his accountability to his co-tenants is their shares of a fair rent of the property so occupied and used by him.
    4. Same—Same—Exceptions—Issues and Profits.—But there may be peculiar circumstances in a case making it proper to resort to an account of issues, profits, &c. as a mode of adjustment between the tenants in common.
    5. Same—Lead Mines—Adjustment—issue and Profits. —In the case of a tenancy in common in lead mines, an account of issues and profits is the proper mode of adjustment. And in settling the accounts of the operating tenants, they should not ibe charged a certain sum per ton for the ore raised from the mine, or credited with an estimated sum per ton for raising the ore and manufacturing the lead; but'each so operating is to be charged with all his receipts and credited with all his expenses on account of the operation of the mine.
    *6. Same—Same—Same—Improvements by Tenant in Common.—In such a case the operating tenant in common should have a credit in his account for improvements made by him which were necessary to his operation of the mine.
    7. Same—Liability to Co-Tenants for Destruction of Common Property,—A tenant in common occupying and using the 'common property separately, will be responsible to hisj co-tenants, if he wilfully or by gross negligence, has destroyed or wasted the common property.
    8. Same—Same—Bill Must So Charge.—But he cannot be held responsible for such destruction or waste in a case in which the bill does not charge it.
    9. Same—Commissioner’s Report—Exceptions to Accounts Stated,—The commissioner for settling the accounts of the parties, says in his report— “The complainants will hereafter render an account of a remnant of the business still left in their hands.” There are exceptions by both parties to the accounts as stated; but the court overrules them all, confirms the report, and makes a final decree in favor of the defendant. It being not probable that the further account referred to by the commissioner, will lessen the amount due the defendant, if there be no other error, the appellate court may amend the decree by providing for the further account, and affirm it.
    In February 1854 David Graham and thirteen other persons, partners under the name of the Wythe Union Dead Mines Company, filed their bill in the circuit court of "Wythe county, against Alexander Pierce and Alexander N. Chaffin. The plaintiffs allege in their bill, that they are the owners of fourteen sixteenths of valuable lead mines lying in the county of Wythe, to which is attached a large quantity of land and valuable fixtures for the manufacture of lead on an extensive scale ; and the remaining two sixteenths belong to Alexander Pierce and Alexander 1ST. Chaffin. That the property is incapable of division without greatly impairing its value. That the plaintiffs formed a partnership in February 1848, under the style of the Wythe Union Head Mines Company, to continue until February 1858, for the purpose of mining and manufacturing lead. That they had purposed to the other parties to join them, but that Pierce had refused to do so, and had taken possession of a part of the property and improvements and was working them separately. *That whilst the plaintiffs were working on the principle of reducing all their expenditures to the cash value, and their business showed large profits, Pierce was doing great injury to the property, expending a great deal in improvements that were not necessary to the working of the mines as a whole, and was employing hands who were incompetent and idle. That he was carrying on a store in connection with his mining operations, and would employ only such hands as would take their payment for wages from his store, and was conducting his operations so as to shew small profits from his mining, and would afford large profits upon his sales from his store, which he claims as his own, and that he had not made any dividend of his profits from mining, up to the time of filing the bill, and from what they knew of the principle on which his business was conducted, they had but little hope that any length of time would produce a different result. They insist that the profits from the store should be considered as partnership profits, and should be accounted for as such. The defendant Chaffin had stood aloof, taking no part in the business.
    The prayer of the bill is, that an account may be directed, of the operations of the said Pierce in the manufacture of lead at the mines where he was operating, from the commencement of his business in February 1848, to the time of filing the bill, and that in taking said account the commissioner be directed to ascertain what amount of lead he had made, and at what average price per ton; what profits had been derived therefrom, and to whom they rightfully belonged. Also what profits had been realized by Pierce during the same time, from the mercantile establishment which had been carried on by him in connection with the making of lead at the mine, and any other account which will be necessary to show the liability of Pierce to the other owners of the joint ’x'property, growing out of his operations at the said mines; and that all the joint owners may be decreed their just proportion thereof: That if it shall seem equitable and just, the profits of the mercantile concerns which may be carried on at the mines in connection with the making of lead shall be the common property of the joint owners thereof, and distribution decreed to them according to their respective rights; and for general relief. There was a prayer for partition by a sale or an allotment of part and sale of the residue, if upon the final hearing this should seem advisable ; but there was no action upon this question.
    Pierce filed his answer on the 10th day of May 1855. He says that all the owners joined in carrying on the business of manufacturing lead from the year 1838 to 1848, at which time the partnership expired. That the parties could not agree upon terms for continuing the business jointly. That the plaintiffs took possession of all the improvements. That the defendant before he could realize anything from his interest in the property, was obliged to make large expenditures for sinking shafts, building furnaces, and constructing buddies and crushing mills ; all of which became fixtures on the estate, and are valuable improvements ; and as such his outlay upon them, out of his own means, is a proper charge against the receipts of the proceeds of lead. As to the profits of the store, he claimed they were his own, made by his own means; and in fact the plaintiffs had abandoned the claim, to share them. He insists the plaintiffs shall account to him for his share of the profits of manufacturing lead made by them ; says he is ready to account for rent and profits of the property after deducting from the gross receipts all his expenses in putting up fixtures &c., cost of manufacture, transportation and sale; and he asks that whatever sum is due him from plaintiffs may be set off against what is due from him to them ; *and he insists that to see what the proper balance would be, the plaintiffs must render a full account of their operations.
    On the day before the answer of Pierce was filed, viz. on the 9th of May 1855, the plaintiffs and Pierce entered into an agreement under seal, by which Pierce sold to them all his interest in the property belonging jointly so the parties in the suit except a certain tract of land specified, for fifteen thousand dollars; and he bound himself, if he should thereafter acquire an interest in the property, that he would not come into competition with the owners of the property in the manufacture of lead ; but that the business should be conducted jointly with the other owners who might be operating for the joint benefit of all interested. And it was further agreed that Pierce might continue to smelt the ore he then had on hand ready washed for smelting, until the 1st of June following ; and that the contracts made by Pierce with other parties for raising lead &c. which were in progress, should be carried out ; and that the plaintiffs were to receive from Pierce all the ore both washed and unwashed, and slag that was on hand on the 1st of June. And it was further agreed that as they had each been engaged in merchandising in connection with the manufacture of lead, they will, in the future settlement of their accounts, relinquish and abandon all claims, each upon the other, to mercantile profits, and in the settlement of their accounts they will have reference only to the quantity of lead made, the expense of making, transportation and sales, as disconnected with the mercantile business. And it was further agreed, that in respect to the privilege of Pierce continuing the business as above stated, until the 1st of June, the expenses incurred or to be incurred,' and the profits, were to be brought into account, and settled between the parties ; and that this agreement was not to preclude either *party from having a fair and full settlement of all matters between them concerning the manufacture and sale of lead, with the single exception, that the mercantile profits made by either party was not to be brought into the account.
    On the 10th of May, by consent of parties, Wm. A. Stuart was appointed a commissioner to take an account of the manufacture and sale of lead by the plaintiffs and the defendant Pierce from and after the 17th day of February 1848, to be reported to the court together with any matters specially stated &c.
    The commissioner returned his report on the 6th of April 1857, in which he states that he has taken the account as directed, from February 1848 to the 17th of February 1857; and the complainants will hereafter render an account of a remnant of the business still left in their hands. He reported that the profits made by the plaintiffs during the period, was $98,762 65, of which the share of Pierce and of Chaffin was each, $5,904 05 ; that the profits made by Pierce, which were due to the joint owners of the property, were $3,815 38, of which Pierce and Chaffin would each be entitled to $229 62, and the balance was due to the plaintiffs. And that upon the settlement of both accounts there was due from the plaintiffs to the defendant Pierce, $2,587 91, on the 17th of February 1857.
    All the parties excepted to the report ; but it will only be necessary to state those of the plaintiffs, as the other exceptions did not come before this court. The plaintiffs excepted to the report:
    1st. To all allowances made by the commissioner to the defendant Pierce, for buildings, fixtures and other supposed improvements; upon the ground that an occupying tenant in common, before he can entitle himself to such allowances, must show that such buildings &c. were necessary to the interest of the entire estate, or added permanently to the value thereof. The supposed *improvements, for which'said Pierce has claimed credits, are shewn by the evidence in the cause, to have been unnecessary for the general interests of the estate ; to have added nothing to its permanent value ; and to have merely subserved the temporary purposes and promoted the individual interest of the defendant Pierce.
    2d. To the whole frame and principle of the report. Instead of going into a detailed statement and account of the transactions and expenditures of the defendant Pierce— transactions and expenditures in which it is shewn by his own manager, that his object seemed to be to make money for himself, regardless of the interests of the other owners—it was the duty of the commissioner to fix a proper cash value per ton on the manufacture of lead, thus reducing all the operations and transactions of both concerns to a uniform standard. In this connection it will be seen that the two concerns worked on wholly different principles. The complainants reduced everything to a strict cash value, and charged the miners no profit on articles furnished by them. The defendant Pierce, on the contrary, charged a profit (usually fifty per cent.) upon everything furnished by him. It is further shewn that Pierce only employed such hands as consumed all their wages in living ; that all were trifling; none worth their wages. It is also in proof that Pierce declared that a small proprietor might make a large quantity of lead, and make a profit on expenditure by selling goods. He has not denied the charge in the bill that his great object was to conduct the business in' such a manner as to shew no profits for dividend with his co-tenants, but to make a large profit for himself upon the expenditures. His own account, and the report of the commissioner, show how fully and unflinchingly he has carried ont this design. Fie operated for seven years and a little over three months ; and by his own '^account he brought the rnines several thousand dollars in debt. The commissioner’s account, after scaling his charges in many instances, shews only a profit of $3,875 38, upon a manufacture of 1250/¿ tons, or at the rate of $3 05 1-9 per ton on the lead sold; Whilst at the same time, upon the operations of the complainants manufacturing and selling 2668tons, there is a profit shewn of $98,76265, or at the rate of about $37 per ton; and this, too, whilst the complainants have expended many thousands of dollars on valuable and permanent improvements ; have paid the taxes on the entire estate ; purchased and paid for the Preston survey of 242,000 acres, at the price of $ , and paid the taxes thereon ; and have incurred law expenses and other charges to a large amount, with which their expense account is burdened, and which contributed to swell the amount of their charges in the commissioner’s report.
    3d. Because the commissioner has not charged the defendant Pierce with the sum of $920, the damages recovered against the complainants upon the dissolution of an injunction. Pierce claims that he was working the mines on joint account. The damages to the business thus carried on by him are in lieu of the profits which he would have made while the injunction was pending. Those profits would have accrued to the general owner, not to Pierce alone. The damages allowed in their stead must take the same direction.
    4th. To the allowance to Pierce of a credit for the amount of claim on George Earp, of $2,789 22. In his account he charges himself with the nett sales of lead made by said Earp of Philadelphia, and afterwards credits himself with said turn of $2,780 22, on the grounds of Earp’s insolvency ; this credit being objected to on the ground that Pierce had not shown *that due diligence was used by him in attempting to recover the debt.
    5th. Should the commissioner’s plan and principle of stating the account be approved and adopted by the court, then we except to the allowance of the salary, board, &c. of R. C. Fox, T. W. Carter and J. W. Brown, on the ground that Pierce individually should bear one-half of their salaries, &c. they being employed one-half their time or more in his business.
    It is impossible to give a statement of the evidence in the record. It may be stated, that although these parties owned a large tract of land, the lead mines seem to have been located on about twenty acres of it. They had been worked previous to 1838, by several of the joint owners, separately, each accounting for the profits he made to all the owners. In 1838, a partnership was formed by all the owners for the joint working of the mines, which was to continue until 1848. In February 1848, all the owners but Pierce and Chaffin formed another partnership for carrying on the manufacture and sale of lead, which was to continue until 1858; and they took possession of all the localities and machinery which had been used by the former company. Chaffin declined to join the partnership, and did not attempt to carry on the business himself ; but Pierce took possession of a part of the land and proceeded to carry on the mamifacture and sale of lead separately. In what spirit the business was conducted by both the parties, as well as the nature and sufficiency of the evidence upon which the exceptions of the complainants are based, will appear from the opinion of the court.
    In May 1857 the cause came on to be heard, when the court overruled all the exceptions, both of the plaintiffs and the defendant, and confirmed the report, and decreed that the plaintiffs should pay to the defendant Pierce the sum of two thousand five hundred *and eighty-seven dollars and ninety-one cents, with legal interest thereon, from the 17th of February 1857 till paid ; that being the amount reported by the commissioner as due from the plaintiffs to Pierce ; and that they should pay the costs in proportion to their respective interests in the property, as it was held before the sale by Pierce to the plaintiffs.
    From this decree the plaintiffs applied to the Court of Appeals at Eewisburg for an appeal; and in their petition they made another question, which is stated in the opinion of the court. Pierce also applied for an appeal; and both appeals were allowed. After the war the case was sent to Richmond, and from thence to the District Court of Appeals at Abingdon. In July 1867 the case came on to be heard, when the District court was of opinion—that as it appeared from the commissioner’s report that the accounts between the parties were not fully settled and stated, ^but that the complainants were thereafter to render an account of some matters not reported on by him, the Circuit court should not have proceeded to a final determination of the cause, but should have confirmed the said report and recommitted the cause to the commissioner, with instructions to state and settle the matters of account between the parties, referred to as not settled; but not to reopen or disturb the account so far as already settled, and make report of his proceedings to the Circuit court; and upon the coming in and confirmation of such new report should pronounce such decree as equity may require. It was therefore decreed that so much of said decree as is declared to be erroneous be reversed and annulled, with costs to Pierce against the plaintiffs ; and that the residue of the decree be affirmed. And the cause was remanded, &c.
    From this decree the plaintiffs applied to this court for an appeal, which was allowed.
    *Wm. Daniel, for the appellants.
    Staples and Johnston, for the appellee.
    
      
      Code, ch. 145, § 14: “An action of account may be maintained against the personal representative of any guardian, baliff or receiver, and also by one j oint tenant or tenant in common, or his personal representative, against the other as baliff, for receiving more than his just share and proportion, and against the personal representative of any such joint tenant or tenant in common. ”
    
    
      
      Tenants in Common—rieasure of Accountability.—As a general rule, the proposition laid down in the third headnote, that where a ténant in common occupies the common property to the exclusion of his co-tenants, he is liable for a reasonable rent of the common property which he occupies, seems well settled. But, asheld in Early v. Friend, 16 Gratt. 21, he is only liable for a reasonable rent for the property in the condition it was when he came into possession, and he is not accountable for issues and profits actually made by the application of his skill, labor and capital to the property. This case is approved in White v. Stuart, etc., 76 Va. 546, and in the principal case. See also, Paxton v. Gamewell, 82 Va. 706, approving the principal case as to the point here laid down, and Rust v. Rust, 17 W. Va. 910.
      As to this rule there seems to be no distinction between tenants in common and joint tenants. See Newman v. Newman, 27 Gratt. 722, where the rule of the principal case is applied to a case of joint tenants.
    
    
      
      Same—Same—Exceptions—Issues and Profits.—But, as stated in the fourth headnote to the principal case, the rule stated in the above note is subject to an exception, growing out of the peculiar circumstances of the case, where it may be necessary to resort to issues and profits that an equitable and fair adjustment may be reached. As to this exception, and the method of adjustment in such case, see Early v. Friend, 16 Gratt. 21; Newman v. Newman, 27 Gratt. 722 et sea., quoting at length from, and sustaining, the principal case; Ruffners v. Lewis, 7 Leigh 720 ; 2 Min. Inst. (4th Ed.) 498; note appended to Newman v. Newman, 27 Gratt. 722; Williamson v. Jones, 43 W. Va. 582, 27 S. E. Rep. 419.
    
   MONCURE, P.

delivered the opinion of the court.

The court is of opinion that every tenant in common has a right to possess, use and enjoy the common property without being accountable to his co-tenants for rents or profits, except under the statute for so much as he may receive beyond his just share or proportion. Code, p. 586, ch. 145, § 14. And although it may be best for the interests of all the tenants in common to use the common property jointly, by means of a contract of partnership between them, yet the individual owners have a right to decide that question for themselves, and are not bound to enter into such contract of partnership ; but may possess, use and enjoy the property severally, accounting to their co-tenants for so much of the rents and profits as they may receive beyond their just share and proportion as aforesaid. Therefore the appellee, Alexander Pierce, was not bound to enter into copartnership with his co-tenants in the use and operation of the lead mines in question ; but had a right to use and enjoy the property separately on the conditions aforesaid.

The court is further of opinion, that although, as a general rule, where one tenant in common occupies and uses the common property to the exclusion of his co-tenants, or occupies and uses more of the common property than his just share or proportion, the best measure of his accountability to his co-tenants may be their shares or proportions of a fair rent of the property so occupied arid used by him, according to the principle laid down in the case of Early & wife v. Friend, &c., 16 Gratt. 21, 52. Yet, as was said in that case, “there may be peculiar circumstances in a case, malring it proper to resort to an account of issues, ^profits, &c. as a mode of adjustment between the tenants in common.” Id. p. 54 ; Ruffners v. Lewis’ ex’ors, 7 Leigh 720. Under the circumstances of this case it was proper to resort to an account of issues, profits, &c. as a mode of adjustment between the tenants in common. It is not a case of land used for agricultural purposes only, in which there is no difficulty in ascertaining a fair rent for use and occupation; nor is it such a case as that of Early & wife v. Friend, &c. where the property consisted of salt works, the yearly value of which might be ascertained with reasonable certainty, and where a money rent had been contracted for and paid to some of the tenants in common, which furnished a standard for ascertaining the amount due to others ; but it is the case of a lead mine, the yearly value of which, and more especially of an undivided and uncertain portion of which, is incapable of ascertainment. Nor would it be just, in settling the account of issues and profits, to charge the occupying and operating tenants with a certain sum per ton for the quantity of ore raised from the mine, nor to credit them with an estimated sum per ton for raising the ore and manufacturing the lead, as contended for by the appellants. Such a mode would be founded on conjecture merely, and would be very unequal and unjust, as it could not be known what would be the cost of raising ore, which would depend upon its situation in the mine, its degree of richness, and the facility or difficulty of getting at it, as well as upon the uncertain price of labor ; nor what would be the cost of manufacturing' lead, which would depend upon the varying price of labpr and supplies. The best mode of settling such an account, and one which is perfectly just, supposing the tenant to have been capable and faithful, is to charge him with all his receipts, and credit him with all his expenses, on account of the operation of the mine. This mode had been pursued *by the owners of this mine prior to 1838, when several operations were conducted by different owners, who accounted with the other tenants for their shares and proportions of the nett profits. It was also pursued by them from 1838 to 1848, during which period they all operated in one partnership. The same course ought to be pursued in regard to the operations since 1848, which were conducted by the appellants and the appellee separately. They severally conducted their operations with the expectation of accounting for nett profits with the other tenants in common, and kept their accounts accordingly. The agreement of the 9th of May 1855, recognizes that mode of settlement as the proper one, and provides for the making of such a settlement. And the consent decree entered on the next day, the 10th of May 1855, directs accordingly. The account was therefore properly settled in that mode.

The court is further of opinion that in settling the account of the appellee Pierce the commissioner properly gave him credit for improvements made by him, and the Circuit court therefore did not err in overruling the appellants’ 1st exception to the report of the said commissioner. The said Pierce having a right as tenant in common to occupy and operate the mine, had also a right to make such improvements as were necessary for that purpose and to deduct the cost of such improvements from the proceeds of the operation. It does not appear that he made any improvements which were not necessary or were not of permanent value to the estate, or that he incurred any unnecessary expense in making them. All of them were necessary to his convenient occupation and use of the mine, except perhaps the small expense incurred in fixing up a building already on the land, for a store; and if it be true as seems to be the case, that good management in conducting the operations of a mine requires that a *store should be kept in connection with such operations, then the fixing of the storehouse.was a proper improvement to be made and charged for in the account. But whether it was necessary or proper for the operation of the mine or not, it was a permanent improvement of the property, which enured to the benefit of all the owners, and the expense of making it is therefore properly chargeable to them in the account. Although the improvements which were already on the property when Pierce commenced his operations may have been, as alleged, “amply sufficient for the judicious and beneficial conduct of the business,” yet those improvements, or nearly all of them, were in the exclusive use of the appellants; and Pierce could not exercise his right as a tenant in common to occupy and use the mine without making other improvements which were necessary for that purpose. But it appears from the account of the appellants that a large amount was expended by them in making improvements after Pierce commenced his operations, which amount is charged in the said account and was allowed by the commissioner. And it appears from the evidence that the improvements made by Pierce, or nearly all of them, have been actually used by the appellants since they became purchasers of Pierce’s interest in the mine.

The court is further of opinion that the Circuit court did not err in overruling the appellant’s second exception to the commissioner’s report, being “to the whole frame and principle of the report.” Reasons have already been given to show that in this case it was not “the duty of the commissioner to fix a proper cash value per ton" on the manufacture of lead,” with a view of settling the account upon that basis, but to go “into a detailed statement and account of the transactions and expenditures” of the parties, with a view to a fair and just settlement between them on account of profits actually received. The chief complaint *of the appellants is, that Pierce conceived and conducted his separate operations of the mine with a view to his own profit and without any regard to the interests of his co-tenants in common ; that he conducted a store in connection with his operations of the mine ; that his plan was, to turn the profits of the combined operation as much as possible in the channel of the store, the whole of the profits of which were' his, and to divert them from the business of the mine, the profits of which he had to share with his co-tenants ; that he charged a large profit upon every thing furnished by him from his store, and only employed such hands as would consume all or most of their wages in living, requiring them to buy all of their supplies from .him ; that all of them were trifling, and none of them were worth their wages ; and that the result of his operations of the mine has been to make a very small profit compared with the profit made by the appellants, whose operations they say were conducted on a different principle. If this complaint had been materially sustained by the proofs, it ought to have had an important effect on the result of the case ; but we are of opinion that it is not. As to the remark of Pierce, to which one or two of the witnesses testify that a small proprietor might make a large quantity of lead, and make a profit on expenditures by selling goods; it does not appear when it was made, and it seems to have been a casual remark not sufficient to indicate a fraudulent purpose on the part of Pierce to pursue such a plan. He had a right to keep a store in connection with his mining operations, as the appellants did in connection with theirs ; and according to the testimony it appears that it is conducive to the convenient and profitable operation of the mine to keep a store in connection therewith. He did not charge any thing more for articles furnished from the store for use in his mining operations, or for the use of the hands, than he '^'charged for similar articles sold by him to other customers, or than other merchants in the neighbourhood charged for similar articles sold to their customers. And the commissioner, in settling his account, deducted the profits included in the charges for articles used in his mining operations, so as to place him and the appellants on the same footing in that respect, they having charged only cost for such articles used in their operation. If his hands were trifling and their services mot worth their wages, it does not appear that he did not employ the best he could procure, and it is not pretended that he employed more than w-ere necessary to his mining operations, or that he paid them higher wages than were paid by the appellants for similar hands. The profits of his store were small, and much less than were the profits of the appellants’ store during the same period. As to the profits of his mining operations compared with those of the appellants, it is impossible to ascertain them from the materials in the record, as a large amount of ore extracted by him from the mine was turned over by him when he sold out to the appellants, and the proceeds of it have gone into their accounts, thus swelling their apparent profits, while the apparent profits made by him are reduced by the expense of raising the ore and partly manufacturing it. The appellants had the great advantage of being in possession of almost all the old improvements and fixtures, and proceeded to carry on their mining operations without interruption, and no doubt with experienced hands, while the appellee had to make new improvements and probably employ new hands, and it was therefore a long time before he could commence his mining operations. He seems to have desired to do the best he could for the interest of himself and his co-tenants. Unfortunately, he and they conducted rival establishments, both in regard to mining and merchandising ; and still more unfortunately, the effect *of this rivalry was to produce ill feeling between them and to cause them to throw stumbling blocks, instead of facilities, into each other’s way. The natural fruit of all this was, to involve them in angry and expensive litigation. But the appellants have no cause to cofnplain of the appellee in this respect, and seem to have been, at least, as much in fault as he in bringing about these evils. The account between them may therefore be considered as balanced on that score. The necessary effect of rival establishments, even if they had produced no ill feeling nor conflict of action between the parties, would have been, to reduce the profits of each by increasing the price of labour and supplies, and reducing the price of goods sold at the stores. The evil was greatly increased in this instance by the ill feeling and conflicts which were engendered by the rivalry between those parties. But, as before stated, the appellants have no just cause of complaint on that ground.

The court is further of opinion that the Circuit court did not err in overruling the appellants’ third exception to the commissioner’s report, “because he has not charged the defendant Pierce with the sum of $920, the damages recovered against the complainants upon the dissolution of an injunction.” The ground of this exception is, that these damages were allowed by the jury in lieu of profits which Pierce would have made but for the injunction ; and as the profits would have belonged to all the tenants in common, so ought the damages. But we cannot tell what influenced the jury in allowing damages in the action brought by Pierce upon the injunction bond. We cannot presume that they intended to compensate, not only the loss which Pierce alone sustained by the injuncj tion, but also the loss which the appellants | themselves, who were in effect the defendants j in the action, sustained by their own inS junction. We cannot presume that the *jury intended to allow damages, of j which only one sixteenth would enure to j the plaintiff in the action, while fourteen six-j teenths would enure and be returned to the ! defendants themselves. The action, though j in form ex contractu, was in substance ex i delicto, and the evidence may have been such ] as to warrant the jury in allowing exemplary | damages ; in which case, of course, the defendants who did the wrong could have no right to participate in the benefit of the damages. Besides, we have no account in the case of the cost and expenses incurred by the plaintiff in prosecuting the action,'or of the costs ; and expenses incurred by him in the injunc- ¡ tion suit, over and above the legal costs i recovered against the other parties.

The court is further of opinion, that the Circuit court did not err in overruling the appellants’ fourth exception, which is “to fhe allowance to Pierce for the amount of claim on George Barp of $2,780, upon the ground that it was lost.” Without reviewing the evidence in regard to this claim, it is enough to say that we do not consider it sufficient to show that the claim was lost by the negligence of Pierce. On the contrary, we think it shows that the claim was not lost by such negligence.

The court is further of opinion, that the Circuit court did not err in overruling the appellants fifth and last exception, which is to the allowance of the salary, board &c. of agents employed by Pierce. The ground of this exception is that these agents were employed as well about the individual business of Pierce as in his mining operations. But the salary of only one agent during the period of those operations is allowed by the commissioner, and it appears that at least one agent was necessary and was employed in those operations during said period.

There is another assignment of error in the petition of the appellants to the District court for a supersedeas *to the decree of the Circuit court, being the 7th which remains to be noticed, and is in these words : “The court erred in decreeing a balance in favor of Pierce against your petitioners under the facts of the case. Pierce refused to co-operate with them and set up a rival establishment which he so conducted as to yield comparatively no profits, and he is shown to have injured the common interests far more than the amount of his interest in the profits made by the company. No damage is allowed your petitioners for the injuries they have sustained. The decree allows him profits in their operation without holding him to account for corresponding profits or damages inflicted.” Damage necessarily resulted to the appellants, both in their mining and mercantile operations, from the carrying on of similar operations by appellee, and that is the kind of damage to which the witnesses no doubt generally refer in their testimony in this cause. But as the appellee had as much right to carry on his operations as the appellants had to carry on theirs, such damage is merely damnum absque injuria. The appellee had no right to destroy or waste the common property, and if he had wilfully done so, or by gross negligence had occasioned such destruction or waste, he would, undoubtedly, have been responsible, in some form or other, for the injury thus done to his co-tenants. Some of the witnesses in this case speak of much waste having been committed in the mining operations of the appellee by the unskillful and careless conduct of his agents hands. It does not appear that he did not employ the best agents and hands he could under the circumstances. But a sufficient answer to this complaint is, that there is no charge in the bill of any such waste or destruction. It is a bill for partition and for the settlement of an account by the appellee both of his mining and mercantile operations. The chief complaint of it is, that he had so conducted his operations *as to make a large profit by merchandising and a small profit by mining, and the complainants say, that “after very mature reflection and much actual experience, at least a portion of them have come to the conclusion that the profits of the mercantile establishment, the’necessary and indispensable accompaniment of the successful manufacture of lead, ought in equity and justice to be regarded as the joint property of the owners thereof, and that they ought to be participants in them equally, to the extent of their several interests in the subject out of which they were made.” The complainants therefore pray for an account and relief accordingly. After the bill, but before the answers were filed, to wit, on the 9th of May 18S5, an agreement was made between the parties, whereby it was, among other things, agreed that Pierce should sell his interest in the mine and certain lands thereto attached for $15,000 ; and that “if said Pierce should hereafter acquire or purchase, lease or otherwise,, any interest in the property before described, he is under no circumstances to work his own interest, or to come into competition with the other owners in the manufacture of lead, but the business in regard to the manufacture of lead, in the event he shall acquire any further interest, is to be conducted jointly, in conjunction with the other proprietors, who may be operating for the joint benefit of all interested.” And it was further agreed by the parties, “that as they have each been engaged in merchandising in connection with themanufacture of lead, they will in the future settlement of their accounts, relinquish and abandon all claim, each upon the other, to mercantile profits, and in the settlement of their accounts they will have reference only to the quantity of lead made, the expense of making, transportation and sales, as disconnected with the mercantile business,” “and that this agreement is not to preclude either party from having a fair and full settlement of all the matters *between them concerning the manufacture and sale of lead, with the single exception, that any mercantile profits made by either party is not to be brought into the account.” On the day after this agreement was entered into, a consent decree was made, directing a commissioner to “take an account of the manufacture and sales of lead by the said complainants and by the said defendant Pierce from and after the 17th day of February 1848, to be by him stated,” &c. It was the duty of the commissioner under this decree to take an account only “of themanufactureand sale of lead by the” parties respectively, and not of any conjectural damages arising from any supposed destruction or waste of the property occasioned by the act or neglect of any of the parties, as that matter was not embraced in the bill, nor in the agreement aforesaid, nor in the said decree for an account. The commissioner therefore, in taking the account, properly disregarded that matter, and all the evidence in relation thereto.

The commissioner having taken the account, and ascertained a balance to be due •thereon by the appellants to the appellee, made his report, in which this passage occurs : “The complainants will hereafter render an account of a remnant of the business still left in their hands.” The Circuit court overruled all the exceptions to the report, confirmed the same, and rendered a decree for the payment of the said balance, but took no notice of what was said in the report in regard to the future account to be rendered by the complainants as before stated, although the decree was final. The District court was of opinion that the Circuit court should not have proceeded to a final determination of the cause, but should have confirmed the said report and recommitted the cause to the commissioners, with instructions to state and settle the matters of account between the parties, referred to in his fieport as not settled, but not to reopen or disturb the account so far as already settled, and make report of *his proceedings to the court, and upon the coming in and confirmation of such new report, should pronounce such decree as equity may require; and the District court decreed accordingly, reversing in part and affirming in part the decree of the Circuit court, and remanding the cause for further proceedings, but gave to Pierce his costs in the District court. We think that instead of reversing in part and affirming in part the decree of the Circuit court as aforesaid, the District court might perhaps, more properly, have amended the decree of the Circuit court by directing the account to be taken which, according to the commissioner’s report, the complainants were thereafter to render as aforesaid, or by reserving liberty to any of the parties thereafter to apply by motion in the cause in the said Circuit court for an order for such an account, and then have affirmed the said decree thus amended. It is not probable that the result of that account will diminish the balance already reported to be due to the appellee, and it seems therefore to be unnecessary to withhold the payment of the said balance until that further account can be settled. The appellants do not object to the decree of the Circuit court for not directing a further account. On the contrary, they say that “no exception was ever taken to the report because it was incomplete, or was not a finality;” “neither party asked for a new order for an account, nor for a recommitment of the report“the decree taken by Alexander Pierce was final, disposing of the subject and the costs—-no other or further proceeding was asked for by him ;” and they therefore contend that the decree of reversal on that ground is erroneous. But as this error, if it be one. is to the prejudice of the appellee, and he does not complain, but is content with the decree of the District court as it is, we therefore think it ought to be affirmed.

Decree affirmed._  