also Transportation Co. v. Chicago, 99 U. S. 635, and other cases hereinafter considered.

There has heretofore been no interpretation of our constitutional provision by this court with reference to damages, such as those complained of in the case before us.

The rights of the parties in Colorada Cent. R. v. Mollandin, 4 Col. 154, occurred prior to the adoption of that instrument; and for this reason, although the decision was rendered subsequent thereto, no mention was made or discussion had of the constitutional inhibition. But section 48 of chapter 18 of the Revised Statutes of 1868 provides that private property shall not be "taken or injuriously affected" without compensation. This statute remained in force till 1876; and it may be urged that the decision in the Mollandin case, supra, was governed thereby. We may admit that the words of the statute, "injuriously affected," are as comprehensive in meaning as the word "damaged" used in the Constitution, and yet not be concluded by the foregoing decision. The statute was not relied upon or discused in that case; not a word appears in the opinion itself nor in the briefs and arguments of counsel to show that it was even remotely considered. The opinion of a court is not decisive of a question not mentioned therein, although the same might, and perhaps should, have been passed upon. It is generally a party's privilege to waive a statutory right; and courts, particularly those of last resort, do not as a rule press upon litigants the benefit of a right or privilege which they have elected not to invoke or claim. Had the court been called upon for a construction of that statute, it is probable that a view would have been adopted similar to the one here announced as to our constitutional provision.

The sixty-eighth section of the Land Clauses Consolidation Act, 8 & 9 Vict., ch. 18, contains the following language: "If any party shall be entitled to any compensation in respect of any land or any interest therein which shall have been taken for or injuriously affected by the execution of the works, and for which the promoters of the undertaking shall not have made satisfaction," such compensation was to be determined as in the act provided. It will be observed that this section contains the words "taken" and "injuriously affected," used in our statute of 1868, and it is not improbable that these words were borrowed, either directly or indirectly, from sec. 68 aforesaid, or from some other English act using them in the same connection. The English courts, in interpreting this statute, have usually (not always) held that the words "injuriously affected" only allow compensation where a right of action would have existed at common law; yet in their application of this construction they have been extremely liberal, sometimes declaring that actionable at common law which we generally do not so consider.

In McCarthy v. Metropolitan Board of Works, L. R., 7 C P. 508; 5 Eng. R. 256, the action was brought to recover for the depreciation in value occasioned to plaintiff's premises by the stopping up and destruction of a certain dock near the same. Plaintiff had no right or easement in the dock other than his right as one of the public;" "nor was there appurtenant or otherwise belonging to plaintiff's premises any easement or privilege in or to the dock." But by reason of their proximity thereto-there being only a narrow street between the buildings-were rendered valuable, either to sell or occupy; and by the destruction thereof they were permanently damaged and diminished in value. The court, per Willis, J., says: "Notwithstanding the striking differences of opinion which have been expressed upon this subject, I cannot entertain the slightest doubt that what was done here was an injurious affecting of the plaintiff's property, which would

have given him a cause of action before the statute, and which entitles him to compensation under section 68." The plaintiff's recovery of $1,900 was sustained.

In East and West India Docks v. Gattke, 3 McN. & G.$155,defendant professed to have incurred "great pecuniary loss and damage by reason of the construction of the plaintiff's railway in the immediate vicinity of his premises;" he claimed compensation under said act, on the ground that his property was injuriously affected. The lord chancellor declines to maintain an injunction permitting defendant's proceeding by suit to collect damages for the injury. His lordship suggests that under this statute a party is entitled to compensation where his lands are not "taken, used or directly interfered with," but where there is a consequential" injury, resulting in the actual depreciation of the value thereof.

66

Beckett v. Midland Ry. Co., L. R., 3 C. P. 82, was a case where the highway, fifty feet wide in front of plaintiff's premises, was narrowed by means of a railroad embankment to thirty-three feet in width. Plaintiff claimed, among other things, that by the nar rowing of the road and the embankment the value of his property was reduced. Bovill, C. J., speaking of the property's being injuriously affected under said section 68, says: "I am also of opinion that but for the act of Parliament which authorized the making of the railway and the narrowing of the road, an action might have been maintained by the plaintiff for such injury and that he is entitled to claim compensation under the provisions of the act I have referred to;" and Willis, J., "I am of the same opinion. * * * It must be conceded that there was a damage to the owner of the house from the narrowing of the road in front of it. It is not worth so much to sell or let as it was before. I will not cite authorities upon a matter which is so plain."

The learned judge who delivers the opinion in Rigney v. City of Chicago, 102 Ill. 64, formulates the rule deducible from the foregoing and other cases in the following language: "If there has been some direct physical disturbance of a right, either public or private, which the plaintiff enjoys in connection with his property, and which gives to it an additional value, and [if] by reason of such disturbance he has sustained special damage with respect to his property in excess of that sustained by the public generally, the common law would, but for some legislative enactment, afford him redress. A recovery was sustained where the injury resulted from the construction, without negligence, through the public street, of a viaduct by the municipal authorities."

It is immaterial whether or not we declare the English rule thus formulated in Illinois sufficiently to recognize a right of action at common law in cases like this; for whether we so conclude and say with these English cases, interpreting words similar in meaning to those of our Constitution, that such language only gives a right to recover where it would have existed at common law, or whether we interpret the provision of our Constitution, as did Lord Westbury the English statute, as recognizing a new right of action, the result is the same: in either event parties are entitled to compensation for such injuries as are here complained

of.

Lord Westbury, in the case of Ricket v. Directors, etc., of Metropolitan Ry. Co., L. R., 2 Eng. & Ir. App. 175, questions the correctness of the above rule as applied to the English statute, in the following vigorous language: "If this view be correct, it follows that it is a mistake to lay down, as I find it in several cases, and in effect, in the judgment of four judges in this case, that the injury intended by the words 'injuriously affected' must be one for which, if there has been no

statute enabling the company to do the act, an action would have lain for the injury at common law;" and again he says: "Where therefore the general railway acts use the term 'injuriously affected,' the word 'injuuriously' does not mean 'wrongfully' or 'unlawfully,' nor does it imply that compensation is limited to cases where the act done is such as but for the powers given would be a tort at common law. The words mean damnously affected' only. * * * There is nothing in the statutes to warrant the position that there should be no compensation where at common law there would have been no right of action."

In Transportation Co. v. Chicago, 99 U. S. 635, the court, in speaking of the Constitution of Illinois of 1870 say: "It ordains that private property shall not be taken or damaged for public use without just compensation. This is an extension of the common provision for the protection of private property."

or

The following cases were decided under constitutional inhibitions similar to ours in this respect, and they assume without discussion that the words ". damaged," thus used, are the recognition by their respective Constitutions of a new right of recovery; they do not limit such right to cases where an action would, without the constitutional provision, have lain at com. mon law: Williams v. G. C. & S. F. Ry., 1 Denver L. J. 267; Graves v. G. C. & S. F. Ry., 1 Tex. L. Rev.; Johnson v. Parkersburg, 16 W. Va. 402; Moore v. City of Atlanta, 1 Denver L. J. 78; City of Atlanta v. Green, 67 Ga. 386; City of Elgin V. Eaton, 83 Ill. 535. The two Texas cases-i. e., those of Williams and Graves, supra-were brought to recover for injuries from the use of the street by a railroad. The others were against the cities for damages caused in grading the streets by their respective councils. The right to recover compensation was sustained in all. As will be observed, we do not go so far as some of these cases; that our position might not be misunderstood, we have, at the risk of being charged with obiter dictum, suggested that as at present advised, we think that for injuries caused by a reasonable change or improvement of the street by the council, in a careful manner, the abutting owner should not recover.

We now proceed to consider the liability of the city in this case for such compensation. The ordinance before us might perhaps be construed as in no way undertaking to compromise the rights of adjoining owners in cases like this to compensation, by simply granting a license on behalf of the public and the city government to occupy the street in question; we might possibly regard it as merely a declaration that both the city government and the general public consented to such use of the street, and would interpose no objection or obstacle thereto. To this extent the council had power to act; beyond this it could not go. Under such a view of the ordinance no one would contend for a moment that the action against the city could be maintained. On the other hand, if the ordinance in question was intended to confer upon the company a right to use the street for railroad purposes, without compensation to adjoining owners where permanent injury results from the use, it is in this respect an effort to authorize something expressly forbidden by the Constitution. The act of the council was a clear usurpation of power not possessed; the ordinance, in so far as it denies the right to compensation, is ultra vires and void. We find no statutory provision authorizing such action by the city council, and if such a statute existed it would also be void. But if the city council assume, or attempt to assume, powers not conferred, their action is not binding upon the corporation. 2 Dill. Mun. Corp., §§ 767, 768. 563, and cases cited. Certainly a municipal corporation cannot be

bound by the action of its council sauctioning, or attempting to sanction, disobedience of law.

The case of Stack v. City of East St. Louis, 85 111. 377, cited by counsel, might possibly be thought to recognize a right of recovery in a case like this, upon the doctrine of principal and agent. But we cannot realize the fitness of this application of the rule of agency. If the city council determine to make some change in a street for the benefit of the public, and proceed to do the work, the contractors or employees would be the city's agents; for injuries arising from their unskillfulness or negligence the municipality would unquestionably be liable. But the construction of an ordinary railroad is not, as we have found, an improvement of the street for the convenience and benefit of the local public. It is a private enterprise, for private profit. True, the city attaches certain conditions to the license granted, such as that the road-bed shall be upon a certain grade; that culverts shall be constructed for the gutters, and planks laid at the crossings, but otherwise the municipal authorities do not control the enterprise; whether we term the railroad company purely a private, or whether call it a quasi public corporation, the situation remains unchanged. In constructing and operating the road it is acting for itself, and not for the city. It is no more the city's agent than is the individual licensed by ordinance or resolution to engage in some legitimate private business requiring such license or authority. If the railroad company disobey the law in building or operating its road the city is no more responsible therefor than it would be for a tort of the private individual in the pursuit of his business aforesaid.

Af

The remaining question to be passed upon refers to the measure of damages adopted by the court in admitting testimony and in charging the jury. Unlike actions for trespass to realty, where the plaintiff can only recover for the injury done up to the commencement of the suit, in suits of this kind a single recovery may be had from the whole damage to result from the act, the injury being continuing and permanent. ter thorough examination of the cases we are of opinion that the following rule is just and equitable, and that it is sanctioned by the weight of authority when the action is against the proper party, and the plaintiff is entitled to recover the measure of his compensation— is the actual diminution in the market value of his premises for any use to which they may reasonably be put, occasioned by the construction and operation of the railroad through the adjacent street. The jury of course must not consider any fluctuations in value resulting from other causes. No personal inconvenience or annoyance, no interference with his trade or business, no decrease in the rental value of his premises occasioned by the construction or operating of the railroad, and no temporary interruption or damage thereby constitutes the test. None of these things can enter into the question, except as they may appropriately aid in determining the actual depreciation in market value of the realty and improvements. If by reason of the proximity of the railroad thereto, plaintiff's property is in any way peculiarly benefited; that is, if he experiences a benefit therefrom not shared generally by the property-owners of the city, such benefit should be considered and the value thereof allowed in determining the amount of his compensation.

The judgment will be reversed and the cause remanded, with directions to the District Court to dismiss the action.

[That owner is entitled to compensation if he owns fee, see Railroad Laws of New York (ed. 1883), Appendix, page 9. As to right to lay tracks without compensating owner of adjoining lands, id. 21, When fee remains in owner, id. 19.-ED.]

PARTNER.

SUPREME COURT OF THE UNITED STATES. MAY 5, 1884.

THOMPSON V. FIRST NATIONAL BANK OF TOLEDO, OHIO.

A person sued as a partner, and whose name is shown to have been signed by another person to the articles of partnership, may prove that before the articles were signed or the partnership began business, he instructed that person that he would not be a partner.

A person who is not actually a partner, and who has no interest in the partnership, cannot by reason of having held himself out to the world as a partner be held liable as such on a contract made by the partnership with one who had no knowledge of the holding out.

The testimony introduced by the plaintiff also tended to show that before the bank commenced business Whiteside caused to be printed blank checks, certificates of deposit, and advertising circulars, bearing the names of the partners, and of Thompson as one of them, which were used in the business of the bank; that from that time until 1876 advertisements were published by Whiteside's direction in a newspaper of Logansport, stating that the partnership was engaged in the business of banking, the names of the partners, and of Thompson as one of them, and that all the persons so named were individually liable for the debts of the partnership; that the fact that Thompson was so advertised as a partner was brought to his knowl edge, and he admitted the truth of the published statement; that he at different times during this period, in conversation with the partners and with third persons,

states the case.

GRAY, J. This action was brought by the First National Bank of Toledo, Ohio, a National banking association established at Toledo, against William H. Standley, William H. Whiteside, Josephus Atkinson, Edward R, Thompson and Joseph Uhl, as partners in the business of private bankers at Logansport, Ind., under the name of the Peoples' Bank, upon a draft for $5,000, drawn and accepted by the partnership on August 25, 1877, payable in ninety days after date to the order of the plaintiff's cashier, and taken by the plaintiff in renewal of a like draft discounted by it for the partnership on May 5, 1877.

Thompson filed a separate answer, denying that he was a member of the partnership, or liable to the plaintiff on the draft sued on. He died pending the suit, and it was revived against his administra

tors.

Upon a trial by jury, the plaintiff introduced evidence tending to show that about April 10, 1871, a partnership known as the Peoples' Bank was formed at Logansport, for the purpose of carrying on a private banking business there for one year, and the articles of partnership were reduced to writing and signed by Standley, Whiteside, Atkinson, Uhl, and others in their own name, aud in Thompson's name by Whiteside, who was his son-in-law and cashier of the partnership; that none of the partners other than Thompson and Whiteside were acquainted with the business of banking; that late in the previous winter, or early in the spring, Thompson, who resided at Delaware, Ohio, was at Logansport, engaged in promoting the scheme of forming the partnership, and urged Uhl to take stock in it to the amount of $2,000, and for the purpose of inducing Uhl to do so, agreed himself to take an equal amount of stock, and represented that he had had experience in such a banking partnership, and that it was a money-making institution, that be was worth about $75,000, and would make Uhl safe if he would join them in forming the partnership, and that he wished to establish it, and Whiteside was to be its cashier; that Uhl, who was a man of means, then agreed to take the same amount of stock as Thompson; that thereupon Thompson, in the presence of Uhl, Standley, and others, authorized Whiteside to sign his name to the partnership, and to act for him in the organization of the bank; that the partnership entered upon the business of banking at Logansport with Whiteside as its cashier; and that about April 1, 1872, some of the partners sold out their interests to other members of the firm, and new articles of partnership were executed, to which Thompson's name was sub. scribed by Whiteside; but that Thompson was not

and on two or three occasions, when in the banking house, was introduced as a director and stockholder in the partnership, and did not deny the fact; that the partnership carried on the banking business at Logansport under the same name from its original formation until August 25, 1877, when it failed in business, and its assets passed into the hands of a receiver, and that all its members except Uhl and Thompson were insolvent; and that the plaintiff began to do business with the partnership in October, 1873, and continued to do so until its failure.

The bill of exceptions, after stating the evidence introduced by the plaintiff, added:

"But no testimony was given, showing that the plaintiff or any of its officers had knowledge during said period as to the persons who constituted said partnership, or of said advertisements published in the papers of Logansport as aforesaid, or of the fact that the name of Thompson appeared upon said checks and certificates of deposit, or in said circulars as aforesaid, as one of said partners; or that the plaintiff or any of its officers, servants, or agents, had knowledge of said conversations with Thompson concerning his said alleged connection with said firm, or of any of said alleged statements by him relative to said matters; or that said Thompson had ever held himself out to the plaintiff as a member of said firm."

The defendants introduced evidence tending to contradict the evidence introduced by the plaintiff, and to show that although Thompson, before the partnership was formed, had a conversation with those who afterward became partners, on the subject of forming a partnership for banking, he never authorized Whiteside to sign his name to the partnership articles, or to act for him in the organization of the bank, and never agreed to take stock in, or paid any money into the partnership, or participated in its proceedings, or received any dividends, or knew that his name was used in the checks, certificates of deposit, circulars or advertisements of the partnership; that his name nowhere appeared on the books of the partnership, except on the stock book; that after the checks and certificates of deposit first printed had been used up, new ones were printed on which his name did not appear, and others on which none of the names of the partners appeared; that just before the partnership commenced business Thompson received a letter from Whiteside, inclosing a form of assignment from him to Whiteside of the stock in the partnership for which Whiteside had subscribed in Thompson's name, and that Thompson, after adding the words, "which you took for me," signed the assignment, and inclosed it in a letter to Whiteside, which Whiteside received, and shortly

afterward posted in the stock book at the place where Thompson's name appeared; and that Whiteside, when he signed Thompson's name to the articles, expected that Thompson would take the stock so subscribed for, and upon his failure to do so, procured the assignment aforesaid, and himself paid in the capital which he had agreed that Thompson should pay in,and himself received the dividends which would have gone to Thompson.

The defendant offered to prove, by the testimony of Whiteside and his wife, that Thompson, after the time when the evidence for the plaintiff tended to show that he authorized Whiteside to sign his name and to take stock for him as a partner, and before any partnership articles were signed, or the partnership commenced business, instructed Whiteside that he would not become a partner therein. The defendants also introduced evidence that Thompson's letter, inclosing the assignment aferesaid, had been lost after being received by Whiteside, and offered to prove its contents. But the court declined to permit the defendants to prove either of these matters, and excluded the testimony so offered, and the defendants excepted to each of the rulings.

After the testimony had been closed, the defendants requested the court to instruct the jury that "if they found from the testimony that Thompson was not in fact a member of said partnership, the plaintiff could not recover, unless it further appeared from the testimony that Thompson had knowingly permitted himself to be held out as a partner, and that the plaintiff had knowledge thereof during its transactions with said partnership."

The court refused to instruct the jury as requested; and instructed them that the first question for them to determine was whether Thompson was a partner in the firm on August 25, 1877, and if they found he was, they need not go further, but might upon that finding return a verdict for the plaintiff; and that if they found he was not a partner, it was for them to determine whether he had held himself out, and permitted the officers of the bank to hold him out to the world as a partner in the business; and upon this branch of the case instructed them, among other things, as follows:

"The defendants' counsel insist that no recovery can be had on this ground, unless the plaintiff shows by the evidence upon the trial of the cause that he gave credit to the bank, looking to the defendant as a part of it; in other words, that the credit was extended in part to the defendant Thompson. We entertain a different opinion. It is not necessary for the plaintiff to show here that at the time it discounted the acceptance sued on it especially relied upon the defendant Thompson for its payment. If Thompson had held himself out to the world in this public manner, through these advertisements and the other means brought to your attention, as an interested party, as liable for the obligations of the bank, the plaintiff is entitled to the benefit of that fact, without showing that it knew that Thompson was a partner in the bank, or without showing that it specially gave credit to this particular defendant. This publication is of such a character as to entitle the plaintiff to rely upon it, without such proof as the defendants' counsel insist ought to be made here; that is, that the plaintiff knew of these advertisements, etc., and relied upon Thompson for the payment of this debt."

"If he was not at any time a partner, but still permitted the officers of said bank to hold him out by ad. vertisements and otherwise, as shown in the evidence, and permitted himself to be introduced as a director and stockholder, as is shown by the evidence, if he permitted that to be done, then as between him and

third parties such as the plaintiff, he is estopped from denying his liability as a partner."

The jury returned a general verdict for the plaintiff, upon which judgment was rendered. The defendants, having duly excepted to the refusal to instruct as requested, and to each of the instructions above quoted, sued out this writ of error.

The errors assigned were, 1st, the exclusion of the evidence of Whiteside and wife; 2d, the exclusion of the evidence of the contents of Thompson's letter to Whiteside; 3d, the refusal to instruct the jury as requested; 4th, the instructions given and excepted

to.

The plaintiff at the trial sought to charge Thompson with liability as a partner upon two grounds: First, that he was actually a partner. Second, that if not actually a partner he had held himself out to the world as such. And the case was submitted to the jury upon both grounds.

The first and second assignments of error relate to the exclusion of evidence offered by the defendants bearing upon the first ground of action. The third and fourth assignments of error relate to the instructions given and refused as to the second ground of action.

The oral testimony offered by the defendants to prove that Thompson, before the partnership articles were signed, and before the partnership began business, instructed Whiteside that he would not become a partner therein, directly tended to contradict the testimony introduced and relied on by the plaintiff to prove that Thompson was actually a partner; and was erroneously excluded. The first assignment of error is therefore sustained.

From the connection in which the offer of evidence of the contents of the letter from Thompson to Whiteside appears in the bill of exceptions, it is quite possible that this evidence was equally admissible for the same purpose. But the bill of exceptions is defective in not stating what the contents of the letter were, and not showing that they were material, or that the exclusion of the proof of them was prejudicial to the defendants. The second assignment of error therefore is not sustained. Packet Co. v. Clough, 20 Wall. 528; Railroad Co. v. Smith, 21 id. 255.

The remaining and the principal question in the case is, whether the liability of Thompson, by reason of having held himself out as a partner, was submitted to the jury under proper instructions.

The court was requested to instruct the jury that if Thompson was not in fact a member of the partnership, the plaintiff could not recover against him, unless it appeared from the testimony that he had knowingly permitted himself to be held out as a partner, and that the plaintiff had knowledge thereof during its transactions with the partnership. The court declined to give this instruction; and instead thereof instructed the jury, in substance, that if Thompson permitted himself to be held out to the world as a partner, by advertisements and otherwise, as shown by the evidence, and to be introduced to other persons as a partner, the plaintiff was entitled to the benefit of the fact that he was so held out, and he was estopped to deny his liability as a partner, although the plaintiff did not know that he was so held out, and did not rely on him for the payment of the plaintiff's debt, or give credit to him, in whole or in part.

This court is of opinion that the Circuit Court erred in the instructions to the jury, and in the refusal to give the instruction requested.

A person who is not in fact a partner, who has no interest in the business of the partnership and does not share in its profits, and is sought to be charged for its debts because of having held himself out, or permit

ted himself to be held out, as a partner, cannot be made liable upon contracts of the partnership, except with those who have contradicted with the partnership upon the faith of such holding out. In such a case, the only ground of charging him as a partner is, that by his conduct in holding himself out as a partner he has induced persons dealing with the partnership to believe him to be a partner, and by reason of such belief, to give credit to the partnership.

As his liability rests solely upon the ground that he cannot be permitted to deny a participation, which though not existing in fact, he has asserted, or permitted to appear to exist, there is no reason why a creditor of the partnership, who has neither known of nor acted upon the assertion or permission, should hold as a partner one who never was in fact, and whom he never understood or supposed to be, a partner, at the time of dealing with and giving credit to the partnership.

There may be cases in which the holding out has been so public and so long continued that the jury may infer that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect. But the question whether the plaintiff was induced to change his position by acts done by the defendant or by his authority, is as in other cases of estoppel in pais, a question of fact for the jury, and not of law for the court. The nature and amount of evidence requisite to satisfy the jury may vary according to circumstances. But the rule of law is always the same, that one who had no knowledge or belief that the defendant was held out as a partner, and did nothing on the faith of such a knowledge or belief, cannot charge him with liability as a partner if he was not a partner in fact.

The whole foundation of the theory that a person, who not being in fact a partner, has held himself out as a partner, may be held liable as such to a creditor of the partnership who had no knowledge of the holding out, and who never gave credit to him or to the partnership by reason of supposing him to be a member of it, is a statement attributed to Lord Mansfield in a note of a trial before him at nisi prius, in 1784, as cited by counsel in a case in which it was sought to charge as a partner one who had shared in the profits of a partnership. By so much of that note as was thus cited, which is the only report of the case that has come down to us, it would appear that in an action by Young, a coal merchant, against Mrs. Axtell and another person, to recover for coals sold and delivered, the plaintiff introduced evidence that Mrs. Axtell had lately carried on the coal trade, and that the other defendant did the same under an agreement between them, by which she was to bring what customers she could into the business, and the other defendant was to pay her an annuity, and also two shillings for every chaldron that should be sold to those persons who had been her customers or were of her recommending; and that bills were made out in their joint names for goods sold to her customers; and that the jury found a verdict against Mrs. Axtell, after being instructed by Lord Mansfield that "he should have rather thought, on the agreement only, that Mrs. Axtell would be liable, not on account of the annuity, but the other payment, as that would be increased in proportion as she increased the business. However as she suffered her name to be used in the business, and held herself out as a partner, she was certainly liable, though the plaintiff did not, at the time of dealing, know that she was a partner, or that her name was used." Young v. Axtell, at Guildhall Sittings after Hilary Term, 24 Geo. III, cited in Waugh v. Carver, 2 H. Bl. 235, 242. But as the case was not there cited upon the question of liability by being held out as a partner, it is by no means certain that we have a full and accurate report

of what was said by Lord Mansfield upon that ques. tion; still less that he intended to lay down a general rule, including cases in which one, who in fact had never taken any part in or received any profits from the business, held himself out as a partner.

In delivering the judgment of the Common Bench in Waugh v. Carver, Chief Justice Eyre said: "Now a case may be stated, in which it is the clear sense of the parties to the contract that they shall not be partners; that A. is to contribute neither labor nor money, and to go still further, not to receive any profits. But if he will lend his name as a partner, he becomes, as against all the rest of the world, a partner, not upon the ground of the real transaction between them, but upon principles of general policy, to prevent the frauds to which creditors would be liable, if they were to suppose that they lent their money upon the apparent credit of three or four persons, when in fact they lent it only to two of them, to whom, without the others, they would have lent nothing." 2 H. Bl. 246.

This statement clearly shows that the reason and object of the rule by which one, who having no interest in the partnership, holds himself out as a partner, is held liable as such, are to prevent frauds upon those who lend their money upon the apparent credit of all who are held out as partners; and the later English authorities uniformly restrict accordingly the effect of such holding out.

In Mclver v. Humble, in the King's Bench in 1812, Lord Ellenborough said: "A person may make himself liable as a partner with others in two ways, either by a participation in the loss or profits; or in respect of his holding himself out to the world as such, so as to induce others to give a credit on that assurance." And Mr. Justice Bayley said: "To make Humble liable, he must either have been a partner in fact in the loss and profit of the ship, or he must have held himself out to be such. Now here he was not in fact a partner, and the goods were not furnished upon his credit, but upon the credit of Holland and Williams." 16 East, 169, 174, 176.

In Dickinson v. Valpy, in the same court in 1829, Mr. Justice Parke (afterward Baron Parke and Lord Wensleydale) said: "If it could have been proved that the defendant had held himself out to be a partner, not 'to the world,' for that is a loose expression, but to the plaintiff himself, or under such circumstances of publicity as to satisfy a jury that the plaintiff knew of it and believed him to be a partner, he would be liable to the plaintiff in all transactions in which he engaged and gave credit to the defendant, upon the faith of his being such partner. The defendant would be bound by an indirect representation to the plaintiff, arising from his conduct, as much as if he had stated to him directly and in express terms that he was a partner, and the plaintiff had acted upon that statement." 10 B. & C. 128, 140. See also Carter v. Whalley, 1 B. & Ad. 11.

In Ford v. Whitmarsh, in the Court of Exchequer in 1840, a direction given by Baron Parke to the jury in substantially the same terms was held by Lord Abinger, Baron Parke, Baron Gurney and Baron Rolfe (afterward Lord Cranworth) to be a sound and proper direction; and Baron Parke, in explaining his ruling at the trial, said: "I told the jury that the defendant would be liable if the debt was contracted whilst he was actually a partner, or upon a representation of himself as a partner to the plaintiff, or upon such a public representation of himself in that character as to lead the jury to conclude that the plaintiff, knowing of that representation, and believing the defendant to be a partner, gave him credit under that belief." Hurlstone & Walmsley, 53, 55. In Pott v. Eyton, in the Common Bench in 1846, which was an action by bankers to recover a balance