delivered the following dissenting opinion:
Four persons together located the Montreal mining claim, two of such persons holding two hundred and fifty feet each, and the other two holding five hundred feet each. They all worked the mine together, each bearing his share of the expense and receiving his share of the profits. The two smaller shareholders were bought out by the plain-tiff, the appellant, thus making him the owner of one-third of the claim, that is, five hundred feet. The appellant and the other remaining two owners continued the working of the claim as before, each bearing his ratable share of expenses and receiving his proportion of the profits. After this had gone on awhile, other parties bought out the two-thirds of the claim not owned by appellant, but the same manner of working the mine and division of the expense, loss and profit, continued. Subsequently the respondents, the old Telegraph mining company, and L. E. Holden, made a purchase of the two-thirds interest, not owned by appellants, they thus becoming the owners of one thousand undivided feet in said location, the appellant remaining the owner of one-third thereof. The respondents, however, having come into possession of the ground, refused to recognize appellant’s right or to allow him any share in the workings of the mine, but excluded him therefrom and from the location.
The appellant thereupon brought his action to recover possession of-his said one-third interest, and for an accounting and for an injunction. The respondents made answer that he (appellant) had no rights therein, but that they were holding possession adversely — under an older location — the No Tout Don’t, and that the No You Don’t and the Montreal were *204upon one and the same vein. Afterward, respondents filed a supplemental answer, claiming to have received patents from the General Government for the No You Don’t claim, and the Nez Perces, the Third Western Extension of the Telegraph, the Roman Empire and the Montana, and to have purchased a claim called the Grecian Bend. That the vein located as the No You Don’t, with its apex in the No You Don’t, in its dip and downward course passes under and through all of the above named localities, and that it is an unbroken and continuous vein from the No You Don’t through all of these localities and into the Montreal; that the No You Don’t and Montreal are one and the same vein, the Montreal being embraced within the parallel end lines of the No You Don’t, extending vertically downward, and that the No You Don’t, being the older location, controlled.
A jury trial being had, the verdict and judgment were for the respondents, and thereupon the appellant brought the case to this court. A majority of this court, have affirmed the judgment of the District Court, but as I deem that a variety of errors were committed in the court below, whereby the case was not fairly placed before the jury, I am unable to unite with the other members of the court in affirming the action of the court below.
A supplemental answer was filed by respondents in the court below. The appellant moved to strike it out, specifying the objectionable parts, which taken together, composed the whole supplemental answer. One part could thus be stricken out and the other parts remain. It was urged, however, that as this answer had been filed by leave of court, it could not thereafter be stricken out on motion.
Our practice act (§ 66) provides that, in proper cases, parties may be allowed to file supplemental pleadings, but it does not say that objections thereto may not be taken in the usual ways, by motion or demurrer. The general rule as to motions laid down in the practice act (§ 57) is, that “ if irrelevant or redundant matter be inserted in a pleading, it may be stricken *205out by the court on motion of any person aggrieved thereby.” There are no words saving supplemental answers from the application of this rule.
No patents are set up in the original answer, but a variety of them are set up in this supplemental answer, and amongst them are the patents to the Nez Perees Chief and the Third Westerly Extension of the Telegraph. Yet nowhere, either in the supplemental or in the original answer, is there not a single allegation or statement bringing either the Nez Perees Chief or the Third Westerly Extension of the Telegraph into connection in any way with the merits of the case. Nothing whatever is claimed under either of them. No portion of the vein or surface ground of the Montreal is therein claimed under either of them. It would seem, therefore, that they were both immaterial and irrelevant to the issues involved in this case, and that such portions of the supplemental answer as set them up should have been stricken out.
Nothing was claimed under either of the other patents, except the No You Don’t. They were merely stated as having been obtained by the respondents, yet the respondents clung to exactly the same position held in the original answer, namely, that they claimed under the No You Don’t location, and that the Montreal and the No You Don’t were one and the same vein. If nothing be claimed under a patent, and to claim under it would be wholly inconsistent with the real cause of defense set up, I do not perceive how such patent could at all affect the case. It would be immaterial to the issue.
There were several questions at issue, the most material ones being as to the continuity of the No You Don’t vein into the Montreal, and as to abandonment of the No You Don’t location. The issuing of the patent to the No Yon Don’t would not tend to solve either of these questions, nor any minor question involved. The respondents would still have to meet these questions by other evidence, just as they would if no patent had existed. The patent, therefore, to the No You *206Don’t, was a wholly immaterial matter, and should not have been set up, and if set up should have been stricken out on motion.
Upon the trial these patents were offered in evidence and admitted over appellant’s objections; and it is claimed that the patents are. conclusive evidence of respondent’s title in this action.
The patents may be and no doubt are conclusive evidence of title as against all who set up claims subsequent thereto, but the whole current of authority, some of the very authorities quoted in the opinion of the majority of the court in this case, show that such a position is untenable.
A patent is prima facie valid, yet this presumption of validity may be rebutted. It is true that in United States Courts this rebuttal can extend only to the length of showing the patent void ab initio by reason of the fact that the land was not subject to entry, or that the officers had no authority to issue the patent, or that the land had been previously granted to another, or been reserved from sale. But the reason given in these decisions why the United States Courts in cases brought in these courts, can only go to the extent indicated is, that by the process act of 1792 such courts are compelled to rigidly maintain the distinctions between proceedings at law and in equity in the same suit. Bagnell v. Broderick, 13 Peters, 446; Fenn v. Holmes, 21 How. 481; Bennett v. Butterworth, 11 How. 669.
If, therefore, this be purely an action at law, and governed by the process act of 1792, the patents are conclusive, except upon the grounds specified.
If, however, we were working under this rigid rule, yet some, at least, of these patents should even then be rejected. The evidence of the respondents themselves shows that no vein of mineral bearing ore was ever discovered within the surface limits of either Nez Perces Chief or Third Westerly Extension of the Telegraph, and that none existed there except that of the No You Don’t, and that these facts were well *207known to those applying for tlie patents. As admitted in the .majority opinion, a patent thus issued is void, and if so they could not be upheld as a defense, and the fact that a party desired surface ground can be no justification for violating law in this or any other case.
But the Territorial courts are not subject to the Process Act of 1792. It is now a well established doctrine that the courts of the Territories are not bound by the laws governing United States courts as to pleadings and practice. Hornbuckle v. Toombs, 18 Wall. 648.
And this doctrine of the Supreme Court of the United States has been confirmed by an act of Congress entitled: “An Act concerning the Practice in Territorial Courts and appeals therefrom,” approved April 7, 1874.
The Supreme Court of the United States in the case of Hornbuckle v. Toombs, very justly remarks that “ the enforced separation (as in the United States Courts under the Process Act of 1792,) of the two remedies, legal and equitable, in reference to the same subject matter of controversy, leads to interesting exhibitions of the power of mere form to retard the administration .of justice.”
But the Supreme Court of the United States has gone further, and does not leave us to deal only with the general principles laid down. It has recognized the authority to set up equitable defenses in actions at law in cases coming from State courts, where the State laws authorize such commingling of legal and equitable matters. Minnesota v. Batchelder, 1 Wall. 115; O'Brien v. Perry, 10 Black. 132.
In this Territory this commingling of law and equity is authorized by statute (C. Pr. Act, § 64) and allows equitable defenses to be set up as a bar to recovery in actions at law. C. Pr. Act, § 49.
Whatever grounds would, therefore, in equity be sufficient to set aside a patent, so far as the same conflicted with the rights of the adverse party, may be shown to defeat the patent in an action at law. And it is a recognized doctrine that in *208suits in equity between the parties claiming land, the courts will inquire into tlie facts of a disputed title under a patent and if necessary reject the patent. Comejoys v. Vasee, 1 Pet. 212; Garland v. Winn, 20 How. 8; Lyle v. Arkansas, 22 How. 192; O'Brien v. Perry, 1 Black. 139; Lindsey v. Haws, 2 Black. 554; Cunningham v. Ashley, 14 How. 377.
The theory of the code practice is to settle all conflicting rights as to the same subject matter in one suit, and thus discourage a multiplicity of suits. Under our Practice Act, which allows of equitable defenses, the validity of the patents set up may be inquired into, and if necessary rejected, in actions at law.
Were the objections urged against these patents, therefore, either in law or in equity, sufficient to reject them or render them invalid as to appellant?
The appellant objected to the -No You Don’t patent upon the grounds that the location had been forfeited and abandoned before the location of the Montreal, and that neither the locators nor their assignees reoceupied the ground until after the Montreal location had been made, and that the affidavits upon which the patent issued were false and fraudulent. The rule of law is that when a party abandons a location the ground is open to location again by any other or the same party, and that the original locator cannot again return to re-occupy the land under his abandoned location; if it has in the meantime been located and held by . another, the intervening locator takes the priority. If, then, this condition of affairs could have been shown by the appellant, as was offered to be done, his rights were in equity superior to those of the patentee, in whom there was an utter want of right. This defense to the patent was a complete one, and should have been admitted.
As heretofore stated, the evidence of respondents showed that no mineral vein was discovered in either the Nez Perces Chief or in the Third Westerly Extension of the Telegraph, and that the applicants for the patents to these claims well knew this fact. Upon the application of the respondents, the *209court in one of its instructions (fifteenth) for the respondents, correctly stated that the right to surface ground depended upon the discovery of a vein within the surface limits, and that if a party had no title to any vein under a location, he can have no title to any surface ground. Yet the respondents were allowed to introduce those patents as evidence to the jury, and the patents were declared to be conclusive evidence of respondents’ title. Can a man recover, in either an action at law or in a suit in equity, upon void title papers? Such patents should not go to the jury, and if once admitted they should be stricken out of the evidence when their true character should become known.
Two of the patents were objected to (especially that of the Roman Empire, which embraced the discovery shaft of the Montreal) upon the grounds, which the appellant offered to prove, that the boundaries had been changed after the locations were made; that the locations as made, and as they existed prior to the patents, did not show any conflict with the Montreal nor were they contiguous thereto, yet as these boundaries appeared in the patents they embraced parts of the Montreal ground, and that such patents were obtained upon false and fraudulent affidavits. Such changing of boundaries was wholly unauthorized and a gross violation of the rights of appellant. "When these patents were applied for there was no surface conflict, nor any conflict below ground, between them and the Montreal. The Montreal claimants, therefore, could make no objection to issuing the patent even if they had known of the application. The bare possibility that two lodes are the same would not warrant a protest against issuing the patent. (Week’s Min. Lands, p. 249-250.) The issuing of a patent is a ministerial act, and the patents are based upon ex parte affidavits, and, indeed, the whole proceedings in the application for and granting of patents are ex parte and summary, and the courts can look beyond them. They do not contemplate a litigation of the rights between the applicant and third parties *210but only between the applicant and the government. Minnesota v. Batchelder, 1 Wall. 115.
The evidence to show the change of boundaries should have gone to the jury, and the patents should have been declared to be no defense.
But respondents were not willing to risk their defense upon the patents alone. They introduced evidence to show that they had complied with the requirements of the law in the matters preliminary to the patent and necessary to make valid locations. Such evidence was wholly unnecessary if the patents were conclusive evidence of title. The appellant offered to prove a contrary state of facts, and that the law had not been complied with in the preliminary steps. I can see no valid reason why this should have been refused him. If one party has the right to show that the acts necessary to be done were done, the adverse party should have the privilege of showing the reverse.
It is urged, however, that the appellant cannot avail himself of any of these objections to the patents because he did not in terms plead them. It would seem that it is not necessary to plead abandonment, (Bell v. Brown, 22 Cal. 671,) but we will assume that it is necessary to do so.
Under our system of pleading the appellant could file no pleading in which any of those objections to the patents could be set up. The objections are matters of defense and no part of appellant’s cause of action. A complaint cannot contain defensive matters, but only a statement of such facts as constitute the plaintiff’s cause of action. The filing of a supplementary complaint could not remedy it, for such a pleading could no more than the original complaint contain anything not going to make up plaintiff’s cause of action. It could not state his cause of defense to new matter in the answer. That is the office of a reply, but under our system of pleading a reply is not allowed, nor is there any other pleading allowed which could taire its place. -If a party have no opportunity to show a fact by his pleading, he may exhibit the matter thereof *211in evidence, and tbe court and jury are bound thereby. 13 How. 307.
But we are not left to this rule of simple justice without a statute. Our Practice Act fully meets the difficulty and makes ample provision therefor, by prescribing that the new matter of the answer shall be “ deemed controverted by the adverse party.” (§ 65.) Thus all defenses, legal or equitable, which the plaintiff may have to the new matter of the answer, shall be treated as expressly pleaded. The law itself makes the reply. No written reply could have more effectually met the case. The objections to the patents, therefore, were by the law treated as .pleaded, and as completely so as the party himself could have done. The appellant was entitled to be heard in support of his reply, and the evidence offered for that purpose should have gone to the jury.
But it is said further that the plaintiff could not urge his objections to the new matter of the answer, for the reason that he had no vested rights in the Montreal, and consequently could not be injured.
The plaintiff owned a one-third interest in the Montreal location, and had been in possession with the other owners, and was ousted of possession by defendants, Whatever questions might exist between the government and the locator or his assignee as to vested rights, there can be no possible doubt that as between the locator and a'third party the locator or his assignee had some rights, which the law guaranteed to him. The government had authorized him to locate the ground, and said that he should have the exclusive right to purchase the vein and certain specified surface ground. If the locator was not, as against a third party, entitled to the possession of the ground, he was at the mercy of any trespasser who had the physical power to dispossess him. Our laws authorized the first locator to sue for the possession; it is a good ground upon which to base ejectment. If he were not vested with any right in the property or in the possession, then the law authorized him to hold that which he had no right to hold, and to *212sue for possession of that in which he had no right. It is not probable that such a condition of things was ever contemplated by the law. The Supreme Court of the United States recognizes there that the locator has “legal rights,” and such as should be protected by the courts. Shepley v. Cowan, 1 Otto, 338; Lyle v. Arkansas, 9 How. 328.
It is admitted that the appellant could go into equity and enforce his rights. What rights? If he had no vested rights in this property or its possession what grounds had he for equitable interposition? In California the rights of the locators are fully recognized as vested, and this we deem to be the established doctrine. It cannot be allowed that a bona fide locator, as to his mine, has no rights which anyone need respect.
A portion of the Montreal was outside of the surface ground of all the patents, and parts of the workings of the Montreal were outside of the patented surface of any of the claims; but the Roman Empire patent covered the discovery shaft of the Montreal. Such parts as were outside of the patent could not be held under the patent unless it was on the dip of the patented vein, and within its end lines. But this is not claimed to be the case as to the Roman Empire. The appellant could not be ousted of such ground as he held possession of, when the party ousting neither had or claimed any right thereto. A party in possession of land, although a trespasser, cannot be ousted of his possession except by him who is entitled thereto. He who forcibly ejects another from mining land cannot justify his action by pleading that the title was in another and not in him whom he dispossessed.
It is said that expert testimony was improperly allowed respecting the identity of the No You Don’t and the Montreal lodes. When the subject matter of inquiry is one of common observation or common knowledge upon which lay or uneducated minds are capable of forming their judgment, experts are not allowed to express their opinions; but in matters of science, or art, or skill in some particular profession or busi*213ness their opinions ’ are admissible. Hastings v. Steamer Uncle Sam, 10 Cal. 331; Milwaukie v. Kelley, 94 U. S. (4 Otto,) 472.
In the case at bar the workings showed all the evidence that was claimed to exist as to the identity of the No You Don’t and the Montreal veins. It was claimed that the No Yon Don’t vein had been traced into the Montreal vein by the workings exposed to view. It would seem that no scientific knowledge, nor any knowledge above that of common observation was necessary to tell whether this had been done or not. If the connections between these two alleged veins had not been made, and the whole line of the veins had not been opened to view, the opinions of scientific men would have been the highest character of evidence in ascertaining whether the two veins were one and the same; but when that question is claimed to have been solved by the tracings, such opinions would appear not to be necessary.
The respondents were allowed to prove that the apex of the Montreal vein was within the surface boundaries of the Nez Perees Chief. There was no such claim in the answer or in the supplemental answer, but the defense set up was that the apex of the Montreal was within the surface ground of the No You Don’t. This the appellant was required to meet. If respondents are not to bo confined to their defense as pleaded, but be allowed to prove a defense wholly repugnant thereto, there could be but little use for pleadings. But pleadings are not snares and traps made to deceive, but are to be truthful statements of causes of action or of defense, and the law requires the parties to be confined to them. Any departure from this just rule thwarts the very object aimed at by requiring pleadings. I do not see that respondents had any right or shadow of right to show that the apex of the vein was anywhere else than in the place alleged in the answers.
The next class of exceptions have reference to the instructions. In the discussion of the general principles I have already considered some of the doctrines involved in the *214instructions. Some of those which I have not thus considered I will now notice.
In the third instruction for the defense, which is excepted to, the words of the statute alone are used in specifying, that to make a valid location, “ the claim must be distinctly marked on the ground.” "Without any explanation as to the meaning of these words in the law, it is evident that the jury would be misled. The words should not be taken in a literal sense. Had the jury been told this, and that they meant simply that the boundaries should be designated by monuments, posts, or other similar means, there would have been no ground'for objection in the respect to indefiniteness. But there was no issue before the jury as to the boundaries of the Montreal, and on that ground also the instruction was justly objectionable.
The seventeenth instruction for the defense (as the same is numbered on p. 127 of the printed transcript) is likewise objected to. Its meaning is not clearly manifest, but the purport of it seems to be that if parties were in actual occupancy, being present upon the ground, but holding for the owners, and two-thirds of the owners sold their interest to a stranger and induced those holding the possession for the owners to give up the possession to the purchaser of such two-tliirds interests, then the said purchaser’s title was good as to the whole location, and he could ignore such of the owners as did not consent to this transfer oí possession to him. If such were really the doctrine intended to be declared, it would hardly be necessary to say that the instruction could not be upheld, as being at war with both law and justice. Tet such would appear to be the fair construction of its wording. It says that if the jury find that “Herr, Wadsworth and others were in actual possession of said Montreal mining claim, and that they turned over the peaceable possession to said defendants,” etc. What are we to understand from the word “ others”? If we go to the evidence we find that it must include the plaintiff (appellant), for Kerr & Wadsworth had no more possession than the appellant. It either included the plaintiff (appellant) or it *215assumed that'Kerr & Wadsworth were-in possession, and that the plaintiff was not, when the evidence shows that neither of them nor the plaintiff were present on the ground. The employees of the owners were upon the ground, but their possession was no more the possession of Kerr & Wadsworth than of the plaintiff. If the word “ others ” was intended to embrace the plaintiff, then it was not based • -1 facts, as there was no evidence whatever that plaintiff ever turned over the “ possession to the said defendants.” There was not only an entire absence of any such evidence, but, further, the evidence given showed that the plaintiff had nothing to do with the transfer of possession and did not consent to it. If the wrord referred to the employees of the owners, then the instruction was not based upon facts, for it assumed that Kerr & Wads-worth werfe in the actual possession and on the ground, with the employees, and of this there was no evidence. And further, the jury would be led to believe that a delivery of possession by workmen, without the consent of the owner, was in law sufficient to defeat the claim of the owner of the mine to the possession. It may be that nothing which I have shown regarding this instruction was intended by it, but it seems to me that the interpretations I have attached to it are necessary and natural. If any other meaning was intended it should have been more definitely expressed. As the instruction stands it, to my mind, is clearly an improper one.
I do not think the instructions were consistent, and consequently they could not fairly present the case to the jury.
Tpe whole tenor of the twentieth instruction for the respondents is that the patents are not conclusive evidence, but in the nineteenth and other instructions, their conclusive character is declared. It was improperly assumed as a fact proven, in the twentieth instruction, that the respondents had done everything necessary to be done to entitle them to the legal title, when these facts' were to be passed upon by the jury. And I think the further objection to the twentieth instruction will hold good, that in giving what purported to be a summary of *216the case, the summary was but partial and imperfect. An erroneous doctrine was also conveyed in the same instruction, that a party acquiring possession from two-thirds of the owners could repudiate the claim of the other third, and maintain title and possession under an adverse title. Appellant was ousted of possession on the 10th of April, 1876. On that day the defendants had neither possessory title nor any other kind of title to the No You Don’t, or Nez Perces Chief, or Third "Westerly Extension of the Telegraph.
These titles were afterward obtained. A party cannot enter by one title and claim by an adverse one to the injury of others interested.
We have now considered all of the principles involved in this case, except the one which was raised in the instructions asked by the appellant respecting mining partnership.
It was successfully maintained in the court below that a mining partnership was in no respect different in their constitution from common trading or commercial partnerships. This I deem to have been error.
Said partnerships may arise by implication, (Rockwell on Mines, 575,) and if in this case a partnership existed, it would strongly tend to show that respondents admitted the rights of appellant to the ground itself, as the right to share in profits of the mine as partners was based upon the fact of such joint ownership.
A species of partnership similar to what is now known as mining partnership was known and recognized under the old Spanish system of mining. They were authorized and promoted under what are known as the “ Ordinazas de Minerva” as far back as 1873. Yale on Mining Claims, 261; Blanchard & Weeks’ Leading Mining Cases, 547.
Similar parnerships have for a long time been known in Germany. Collier on Mines (side page), 95.
Likewise in England similar partnerships long since grew up from necessity, and, as it appears, without any statutory aid or authority. In Collier on Mines, a small but reliable work *217published in England in 1819, and in this country in 1853, it is said that mining partnerships had then been long recognized as a species of trading partnership, but they “ were early recognized as differing from ordinary trading partnerships, in not being founded on the delectus ‘persones, from which principle the rights and obligations of ordinary trading partners are mainly derived.” And, says that author again, “ it was decided after many doubts, that a mining partner had a right either to relinquish or transfer his share without the consent of his co-partners, and that upon his death or bankruptcy, the law instead of dissolving the partnership, would transfer it to his executor or assignee; and the power of partners to bind each other by engagements entered into with non-partners was restricted.” Collier on Law of Mines (side page), 90.
Could there be a better description of a mining partnership, as known among us, than Collier lias thus given?
That author quotes English cases extending back many years prior to the publication of his volume, in which these mining partnerships were upheld by the courts.
The cost-book system of carrying on mining enterprises, and under which the tin and copper mines of Cornwall and Devon-shire were worked, was that of a mining partnership, as con-tradistinguished from trading partnerships; and Collier says of such cost-book system, that “ the principal distinction from ordinary partnerships seems to be the absence of the delectus persones.” Collier (side page), 95.
So we find that mining partnerships did not have their birth upon this western coast, but were known and recognized as a necessity in other lands long before California even was known as a mining country. 'With, the increase of mining in California, as elsewhere, these partnerships have grown up and become, as it were, a part of the common law. The courts of California, following the English rule, recognized them as a necessity, and the legislature of that State in its wisdom has not seen proper, after a trial of the system for nearly thirty years, to do away with them.
*218California has, since 1849 to the present time, been the parent, the leader in the development of the mineral resources of this western portion of our country, and she has stamped her laws and usages upon this whole mining region in and west of the Eocky' Mountains. The other mining communities growing up outside of that great State have recognized her leadership, and followed where she led the way in encouraging and nurturing the mining interests. The decisions of the California courts, including those of mining matters, are generally followed in the western mining States and Territories. Blanchard & Weeks, 129-130; Mather v. U. S. G. & S. M. Co., 1 Nev. 203.
As a consequence, in Utah for years past, these mining partnerships have, by common consent, been recognized. Miners are accustomed to them, and great business interests have been carried on under them. At this date, therefore, after years of acquiescence by the people generally, it is the duty of the courts to uphold the system and not unsettle mining interests by changing the rule. If that which .has become a second nature to mining enterprises, had best be modified or abrogated altogether, let the appeal be made to the legislative authority to do the work, making the proper savings of present acquired rights and interests.
But it is claimed that there is no such partnership in the property. We deem the generally accepted rule to be the reverse. Blanchard & Weeks’ Leading Mining Cases, 556, 561; Nolan v. Lovelack, 1 Mon. 224; Duryea v. Burt, 28 Cal. 569; Skillman v. Lachman, 23 Cal. 198; Dougherty v. Creary, 30 Cal. 290; Settembre v. Putnam, 30 Cal. 490.
The evidence cleared showed that a mining partnership existed between Miller, Klopenstein, Devorso and Berassa, and that it continued after appellant’s purchase, with appellant as partner in the place of Miller and Klopenstein, and this partnership existed until the entry by the respondents. The retiring of partners does not dissolve a mining partnership, nor does the coming in of new partners in their stead, dissolve it. This is *219a rule laid by all the authorities respecting the characteristics of mining partnerships. One partner cannot dispute the title of the partnership, nor claim under any other title, and any title which he subsequently acquired inures to the benefit of all of the partners.
If at any time the partnership ceased to exist, the owners became merely tenants in common of the land, and as we have seen one tenant in common caunot avail himself of any outstanding title which he may own or afterward acquire, to defeat recovery by a co-tenant.
For the reasons which I have endeavored to set forth above, I am unable to unite with the majority of the court in their opinions, or in the conclusions to which they have arrived, but believe that this cause should be reversed.