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for personal use in the immediately coming season, and not unsuitable in quantity or quality or value. 'Persons arriving in the United States' are citizens returning or foreigners visiting or emigrating. The statute applies to all equally. If as the result of our construction of the law it shall happen that citizens returning from abroad may obtain, as to their personal wardrobes, a pecuniary advantage over citizens who remain at home, that is but an

incidental advantage attendant on the opportunity to go abroad. If foreigners visiting or emigrating are not compelled to pay duties on their unworn wearing apparel, it is merely exempting them from a tax the imposing of which has a tendency to induce them to remain abroad. The words 'in actual use' require no such construction, and under the guarded rule we have laid down the government will, on the one hand, not lose any revenue which the statute intends to give it, and does give it, and persons arriving from abroad will be enabled to bring with them their usual and reasonable wearing apparel in actual use, without being required to have worn it before landing."

FURNITURE.- Paintings and works of art are not "household furniture," within a taxing act. Lea's Appeal, Penn. Com. Pleas, June 28, 1884. The court said: "The word 'furniture' is undoubtedly susceptible of use in a sense that will include paintings, engravings and works of art and curiosity, used in the ornamentation of a house. Worcester's dictionary gives a very pertinent example from Addison, there are many noble palaces in Venice; their furniture is not very rich, if we except the pictures.' But is this its general, ordinary and popular meaning, which the Legislature had in mind when it used the words 'household furniture,' in describing the articles it meant to tax? Webster's principal definition is as follows: 'Whatever must be supplied to a house, a room, or the like, to make it habitable, convenient or agreeable; goods, vessels, utensils, and other appendages necessary or convenient for housekeeping; whatever is added to the interior of a house or apartment for use or convenience.' This fairly represents the ordinary meaning of the word, and it does not include the idea of mere ornament. Ornamentation is not furniture, though incidentally to its own purpose it may contribute to the idea of furnishing. The expression, household furniture,' says Sawyer, J., in Towns v. Pratt, 33 N. H. 345, 'must be understood to mean those vessels, utensils, or goods which are designed in their manufacture originally and chiefly for use in the family, as instruments of the household, and for conducting and managing household affairs.' Pictures are certainly not 'designed originally and chiefly for use in conducting and managing household affairs.' They are clearly not furniture in the artist's or even in the dealer's hands, as a table or bureau would be in the hands of the manufacturer; nor would they probably be so considered, if bought and stored away in a closet or

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lumber room. Indeed, this view seems to have governed the assessors in the present matter, as we are informed that they did not assess as furniture, paintings, etc., hung in a separate room or gallery intended for display only. Why then do they become furniture if hung in a parlor or other room not reserved exclusively for them, but devoted to other household uses? Only, if at all, because in the progress of civilization and the development of the refining influences of art, there are now but few households, however humble, that are restricted to the bare necessities of life, and that have not some little contribution to the gratification of taste. In this sense pictures may be called furniture, but this is not the popular sense of the word, nor is it the sense in which the Legislature intended to use it. It lacks the idea of household utility that makes the basis of the definition of household furniture. The legal decisions that can afford us light on this question are few. The case of Towns v. Pratt, in 33 N. H., has been already quoted. There the words household furniture were held not to include a trunk, though used to keep clothes in, nor a small, mahogany 'cabinet box,' by which, say the court, we understand an article designed in its material and workmanship rather for ornament than use. * ** * Ministering to the taste of the owner, rather than the necessities or convenience of the household.' On the other hand, there is a class of cases arising under wills, in which pictures, statuary or ornaments are frequently included under the term furniture. These however are peculiar, and rest upon the intention of the testator. A good example of this class is Richardson v. Hall, 124 Mass. 237, where there was a devise of the homestead, with all the household furniture, plate, jewelry, books, etc., showing an intent, as Colt, J., says, 'that the house should remain the family's place of residence, and that they should keep up the same establishment and the same style of living.' This class of cases affords us little assistance in the construction of a taxing statute. The act of April 29, 1844, P. L. 497 (Purdon, 1380, pl. 147), under which the present assessment is made, enumerates a large number of things taxable, among which are 'all household furniture, including gold and silver plate.' It is the established rule that the words of statutes are to be taken in their ordinary and popular sense, and it is plain that in this case the Legislature so intended, for they added the words 'including gold and silver plate,' as something which would not naturally be embraced in the term furniture which had preceded. But in the class of cases arising under wills plate constantly passed as furni ture, and in the ancient fashions, lately revived by the revolving circle of social customs, our grandmothers thought more of their display of plate on the sideboard than of pictures on their walls, and considered a room at least as well 'furnished' by the former as by the latter. There was always therefore a larger sense in which furniture might include pictures as well as plate, but it was not the

ordinary and popular sense of the word. This was restricted to the universal implements of household service, which every family was expected to have deplorable and bewildering confusion in which that

the puerile and groundless distinctions which have been introduced into the law of partnership, and the

department of jurisprudence has been involved by half a century's adherence to the unjust and still more absurd rule laid down in Grace v. Smith, 2 U. Bl. 998; and Waugh v. Horner, 2 H. Bl. 247, that mere participation in the profits of a business renders the recipient

liable as partner to creditors, even though no partner

ship exists between the parties.

in greater or less quantity and costliness, but all in some degree, and this, provided it exceeded in value the limit of the act, $300, was the furniture' which the Legislature intended to tax. This conclusion is fortified by the construction universally put on the act at the time of its passage. Some of the earlier American taxing acts used words household utensils' (5 Dane's Abridgment, ch. 136, art. 14, § 23), and those which spoke of furniture' meant the same thing. For forty years the act has been understood and administered, by tax-gatherer and tax-payer alike, not to include paintings and similar objects. It is to be hoped that the exigencies of the State will never require the taxation of art, which all civilized men in all ages of the world have sought to encourage and develop, but if such a departure from established usage is to be made it should be by a new and clear expression of the legislative will, not by a new reading of a statute nearly half a century old."

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CRUELTY TO ANIMALS.-In Brady v. M'Argle, 14 Ir. L. R. 174, the Law Times says, "the question was with respect to dishorning cattle, or cutting off their horns quite close to the skull, for the purpose of keeping them from injuring one another when feeding in a yard, and obtaining a higher price for them at market. The practice appeared to be one common among farmers, but it was proved that it occasioned much suffering to the animals, and the question really came to be whether it was a sufficient justification that the act was done, not wantonly, but for the purpose of convenience and profit to the owner. The magistrates declined to convict on the.merits, but the Exchequer Division came to a different decision, and it is to be hoped that the judgment will be adopted in the future on similar occasions."

plored, yet we think that the blind reverence for authority, the unreasoning adherence to rules once established, no matter how unjust, absurd or opposed to sound principle, is a still greater evil, and one that is certain to bring forth an abundant harvest of refined distinctions, which, to use the language of an eminent jurist, "Can be better felt than expressed," and which are wholly unintelligible to even a mind endowed with that nice discriminating power which can sever and divide a hair 'twixt north and north-west side." Courts unwilling to overrule a doctrine once established, and at the same time convinced of its palpable unsoundness and of the gross injustice involved in its application, and therefore unwilling to apply it to a case in which the facts are not precisely the same as in the case in which it was originally enunciated, find no escape from their dilemma except by attempting to draw between the two cases a distinction so fine that no mental microscope is powerful enough to magnify it into a difference perceptible to the mind's vision. The truth of these statements is fully exemplified by

This rule is utterly without foundation in principle, and has frequently wrought the greatest injustice in its application. Mr. Baron Bramwell, referring to it in Bullen v. Sharp, L. R., 1 C. P. 86, characterized it as a

rule which had "caused more injustice and mischief

than any bad law in our books."

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Mr. Justice De Grey, who is unquestionably the author of this abortion in the law, sagely remarks in Grace v. Smith that "every man who has a share of the profits of a trade ought also to bear his share of the loss." Why? is the question that at once suggests itself to the reader. His question is answered, his doubts are forever set at rest, and all further argument is precluded by this unanswerable logic, "because he (the sharer in profits) takes a part of that fund on which the creditor of the trader relies for payment."

tinguished?

Nor is it true that merely taking from the creditors a portion of the fund to which they have a right to resort for payment of their claims, renders the recipient liable as partner to such creditors. Creditors have an undoubted right to resort to the entire partnership property for the collection of their demands. Out of this property clerks, agents and servants are paid for their services; landlords receive their rent, and all kinds of business expenses are paid. They who accept payment under these circumstances therefore take from the creditors a part of the fund on which creditors have a right to rely for payment of their claims, and are consequently under Justice De Grey's doc

PARTNERSHIP BY FARTICIPATION IN PROFITS.

WHILE the uncertainty in which the law often is trine partners as to creditors, and liable as such; and

decisions is to des yet or willing to incur the

This reasoning would disgrace a fifth-rate pettifogger. The conclusion of liability is not a logical sequence from the premise he assumes; and moreover his assumption of the premise is unwarranted, because it embodies a false statement of fact. A person who receives a portion of the profits does not take from the

creditor a portion of the fund on which he relies for

payment, for the very simple reason that there can be no profits until all the debts have been paid. How can that be a fund for the payment of debts which can have no existence until after all debts have been ex

risk of having insanity imputed to him by asserting that they are partners as to any one?

If the responsibility of a person to creditors depends upon his taking from them a portion of the fund to which they have a right to resort for payment, then every manager, clerk, agent and porter is liable as partner; and the creditors themselves who receive payment of their claims will find to their surprise that they must disgorge in favor of other creditors, who must in turn hand back the ducats to the first-named creditors because they have taken from each other a portion of the property, out of which they each have a right to enforce payment of their respective claims, and are therefore mutually liable as partners to each other.

The rule enunciated in Grace v. Smith continued to be orthodox in England till 1860, when the House of Lords had the courage and good sense to declare it a rank heresy. Cox v. Hickman, 8 H. L. C. 268. In this case the liability of a person to creditors was placed upon a foundation which cannot be shaken or under

mined. The real test of liability is whether the party sought to be charged as partner is a partner in fact. The doctrine laid down in this case has been uniformly followed by the English courts. Bullen v. Sharp, L. R., 1 C. P. 86; Holme v. Hammond, L. R., 7 Exch. 218; Molwoo v. Court of Wards, L. R., 4 P. C. 419; Ex parte Tennant, L. R., 6 Ch. Div. 303; Kelly v. Scotto, 49 L. J. (N. S.) Ch. 383; S. C., 42 L. T. (N. S.) 827; Gilpin v. Anderby, 5 B. & Ald. 594.

The purport of the opinions delivered in Cox v. Hickman in the House of Lords is very clearly and succinctly stated in Holme v. Hammond, supra: "The principle to be collected from them appears to be that partnership, even as to third parties, is not constituted by the mere fact of two or more persons participating or being interested in the net profits of the business, but that the existence of such partnership implies also the existence of such a relation between those persons as that each of them is a principal, and each an agent for the others."

Blackburn, J., in Bullen v. Sharp, supra, in referring to Cox v. Hickman, says: "I think that the ratio decidendi is that the proposition laid down in Waugh v. Carver, viz., that a participation in the profits of a business does of itself, by operation of law, constitute a partnership, is not a correct statement of the law of England; but that the true question is, as stated by Lord Cranworth, whether the trade is carried on on behalf of the person sought to be charged as partner, the participation in the profits being a most important element in determining the question, but not being in itself decisive; the test being in the language of Lord Wensleydale whether it is such a participation in the profits as to constitute the relation of principal and agent between the person taking the profits and those actually carrying on the business.

The case of Molwoo v. Court of Wards, supra, is an exceedingly strong authority. It was a case of a loan of money, for which the borrower was to pay a share of the profits of the business in which the money was to be used. The borrower agreed with the lender to allow him to control the business in several important particulars; and yet it was held that the lender was not thereby rendered liable to creditors as partner. We must not omit the terse and cogent argument of Mr. Baron Bramwell in Bullen v. Sharp. He says: "They say that the defendant is a partner with his son, and that if not partners inter se, they are so as regards third parties. A most remarkable expression. Partnership means a certain relation between two parties. How then can it be correct to say that A. and B. are not in partnership as between themselves; they have not held themselves out as being so, and yet a third person has a right to say they are so as relates to him? A. is not the agent of B. B. has never held him out as such; yet C. is entitled as between himself and B. to say that A. is the agent of B. Why is he so entitled if the fact is not so, and B. has not so represented?"

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"In fact

comes to this sensible conclusion. He says:
the strong tendency of the above decisions is to estab-
lish the doctrine that no person who does not hold
himself out as partner is liable to third persons for the
acts of persons whose profits he shares, unless he and
they are really partners inter se; and it is perhaps not
going too far to say that this is now the law." 1 Lind.
on Part. 42. This was the rule of the Roman law, and
is the doctrine of the modern foreign law throughout
Europe. That the courts of this country have always
felt the rule enunciated in Grace v. Smith to be uu-
sound and unjust is manifested by the numerous ex-
ceptions to the rule which have been established in
cases in which the rule could have been applied as rea-
sonably as in any case in which it has been applied. One
exception is in favor of servants and employees. The
courts have uniformly held that an agreement to re-
ceive a certain percentage of profits as compensation
for services does not render the participant in profits
liable to the creditors of his principal or master.
Bradley v. White, 10 Metc. 303; S. C., 43 Am. Dec. 435;
Deming v. Cabbott, 6 Metc. 82; Richardson v. Hughitt,
76 N. Y. 55; S. C., 32 Am. Rep. 267; Burckle v. Eck-
hardt, 1 Den. 341; S, C., 3 N. Y. 132; Loomis v. Mar-
shall, 12 Conn. 69; S. C., 30 Am. Dec. 596; Nicholas v.
Thielges, 50 Wis. 491; Smith v. Bodine, 74 N. Y. 30;
Lewis v. Greicher, 51 id. 231; Ambler v. Bradley, 6 Vt.
119, Hanna v. Flint, 14 Cal. 73; Barber v. Cazalis, 30
id. 92; Higgins v. Graham, 51 Mo. 17; Edward v.
Tracy, 62 Penn. St. 374; and cases cited in note 1 at page
20, volume 1, Lind. on Part.

Another exception to the rule is that a lease of a farm on shares, or of any property on condition that the lessee is to pay as rent a certain share of profits, will not impose upon the lessor the liability of a partner. McDonnell v. Battle House Co., 67 Ala. 90; S. C., 42 Am. Rep. 99; Beecher v. Bush, 45 Mich. 188; S. C., 40 Am. Rep. 465; Brown v. Jaquette, 94 Penn. St. 113; Putnam v. Wise, 1 Hill, 234; Christian v. Crocker, 25 Ark. 327; Holmes v. Old Colony R. Co., 5 Gray, 58: Donnell v. Harsh, 67 Mo. 242; Dwinell v. Stone, 30 Me. 384; Jeter v. Penn, 28 La. Ann. 230; S. C., 26 Am. Rep. 98.

Numerous other authorities might be cited, but these are sufficient, as the point is well settled. This doctrine of non-liability applies in all cases in which the party sought to be charged as partner has received, or is to receive a share of profits as compensation for services performed or for the use of property furnished. Story on Part., §§ 41-48; 3 Kent, 33. There has been frequently before the courts of this country the question whether an agreement to receive a certain portion of profits as compensation for the use of money loaned will render the participant in profits who merely lends his money liable as partner to creditors. The decided weight of authority is against the liability. Williams v. South, 7 Iowa, 434; Hart v. Kelly, 83 Penn. St. 286; Smith v. Knight, 71 Ill. 148; S. C., 22 Am. Rep. 94; Harvey v. Childs, 28 Ohio St. 319; S. C., 22 Am. Rep. 387; Eastman v. Clark, 53 N. H. 276; S. C., 16 Am. Rep. 192; Eagar v. Crawford, 76 N. Y. 97; Richardson v. Hughitt, id. 55; S.C., 32 Am. Rep. 267; Curry v. Fowler, 87 N. Y. 33; Boston & Col. Smelt. Co.v. Smith, 13 R. I. 27; S. C., 43 Am. Rep. 3; In re Francis, 2 Sawy. 286, Polk v. Buchanan, 5 Sneed, 721; Gibson v. Stone, 43 Barb. 285; S. C., 28 How. Pr. 468; Lord v. Proctor, 7 Phila. 630; Campbell v. Dent, 54 Mo. 325; Benedict v. Heterick, 35 Supr. Ct. (N. Y.) 405. There are some authorities which apparently militate against this doc. trine; but a careful analysis of them will show that they are only apparently and not really opposed to it. Parker v. Canfield, 37 Conn. 250; S. C., 9 Am. Rep. 317; Leggett v. Hyde, 58 N. Y. 272; S. C., 17 Am. Rep. 244; Wood v. Mallett, 7 Ohio St. 172; Mason v. Partridge, 66

99

Mason v. Partridge is not in point, for it appears in
that case that the parties had endeavored by agree-
ment to restrict the liability of Partridge, who was
sought to be charged as partner to the sum of $2,000.
There was therefore an actual partnership between the
parties, and of course Partridge was liable, because
the common law recognized no special or limited part-therefore must then consent. The only effect of the

N. Y. 633; Rosenfield v. Haight, 53 Wis. 260; S. C., 40 merely provided that Hyde should become a partner
Am. Rep. 770.
at the end of the year "if the firm and he should feel
satisfied; that is, if they should then both agree.
Under this agreement Hyde could not become a part-
ner without the firm's being satisfied at the end of
the year. The firm must therefore then consent. Nor
could the firm compel Hyde to enter the partnership
without his being satisfied at the end of the year. He

nership, and his attempt to restrict his liability as
partner was therefore futile. In Rosenfield v. Haight
the court based its decision that Haight, whom credit-
ors were seeking to charge as partner, was liable as
such on the ground that he was to receive three-fifths
of the profits, not as compensation for the use of his
money, but as a party interested as principal in the
business.

agreement was, that Hyde might become a partuer at
| the end of the year if they should both agree to it
then. So might Hughitt in Richardson v. Hughitt
have become a partner at the end of the year if both
himself and the firm had then agreed to it. There
this slight and immaterial difference between the two
cases, which in the fog of an ill-considered opinion
looms up as a distinction of considerable magnitude,
fades away into a distinction involving no difference
in principle under the clear light of searching analysis.
The case of Leggett v. Hyde should not have been de-
cided as it was decided; and it is clear that the court
would never have pronounced the judgment it did
pronounce had it not been fettered, or rather had it
not deemed itself fettered by authority. It is true
that at the time of the decision of that case the rule
laid down in Grace v. Smith had been considered by
the courts of that State, to be the correct rule. This
error crept into the jurisprudence of the State because
of an unquestioning adherence to the unsound doc-
trine enunciated in Grace v. Smith. That doctrine
has at last been emphatically repudiated in Richard-
son v. Hughitt. Wood v. Mallett, 7 Ohio St. 172, has
been so far as it can be construed as sustaining the prin-
ciple that mere participation in profits as compensa-
tion for a loan creates a liability as partner, overruled
by the case of Harvey v. Childs, 28 Ohio St. 319; S. C.,
22 Am. Rep. 387. This case is an exceedingly strong
one, and it will be well to advert very briefly to the
facts which were therein involved. The plaintiff
sought to recover of the defendant the value of cer-
tain hogs sold by plaintiff to one Potter, on the ground
that defendant was Potter's partner. The following
are the facts on which it was claimed that defendant
was liable to the plaintiff as partner: Potter went to
defendant and told him that he had contracted for
about two car loads of hogs to be delivered the next
day at Loudonville, and that he had no money to pay
for them. He requested defendant to advance the
money and take an interest in the hogs, but defendant
refused to do so. Potter then proposed that if defend-
ant would let him have the money to enable him to
pay for the hogs he had bought and others he might
have to buy to make the two car loads, defendant
should take possession of the hogs when carried to
Loudonville as security for the money; take them to
Pittsburgh; sell them and take his pay from the pro-
ceeds of the sale; that he might have one-half of the
net profits, and that in no event should he sustain any
loss, but that Potter should pay the money advanced
by defendant in case the amount realized from the
sale of the hogs should be insufficient.

In other words the court held that the agreement made Haight a partner in fact for all purposes, because he was actually interested in the management and prosecution of the business. At page 266 the court say: "But it is said in answer to this view that the intention of the parties was, that Haight should receive three-fifths of the profits as a mode of compensation for the use of his money, but that he was not to participate in the profits as such. On looking at the different clauses of the agreement, it is very clear to our minds that this construction is not correct." The court expressly recognized the soundness of the doctrine that there is no liability as partner when there is a mere participation in profits as compensation for the use of money by distinguishing the case at bar from Richardson v. Hughitt, 76 N. Y. 55, in which that doctrine was enunciated:

"The case of Richardson v. Hughitt is much more similar to the one at bar, but still that is distinguishable. The court construed the agreement in that case as amounting to a contract for a loan, and the provision as to profits being intended merely as a mode of providing compensation to the lender for the use of his money advanced." The lender there received the share of the profits not as a partner but on account of the debt owing to him by the firm, the court holding that he was only interested in the profits of the business as a measure of compensation for the use of his money. Leggett v. Hyde, supra, has been practically overruled by the Court of Appeals in Richardson v. Hughitt and Curry v. Fowler, 87 N. Y. 33.

In Richardson v. Hughitt the court attempted to distinguish Leggett v. Hyde from the case at bar, and based that distinction upon the statement that in Leggett v. Hyde the "money was advanced with a view to a partnership and for the benefit of Hyde himself." If the money had been advanced with a view to a partnership in the immediate present, then the distinction would have been sound, for the very obvious reason that that fact would have rendered Hyde liable on the ground that he was a partner in fact. Such however was not the purport of the agreement. The loan was made with a view to a partnership not at the time of making the loan, but "at the end of the year * ** if the firm and he should feel satisfied." Hyde was sought to be charged as partner by credi tors whose claims accrued before the end of the year, and therefore before he was to become an actual partHence he was not a partner at that time and the fact that there was a possibility of his becoming a partner in the future does not render that case any different on principle from Richardson v. Hughitt. When the debts were contracted Hyde was a mere lender of money to the firm as Hughitt was in the last case. By virtue of the agreement, executed at the time of the loan, Hyde possessed no greater rights and was under no greater obligations with respect to becoming a partner than Hughitt, for the agreement

ner.

The defendant accepted the proposition and advanced Potter $2,500. Afterward Potter, without the knowledge of defendant, bought of plaintiff the hogs, the value of which the plaintiff sought to recover from defendant in this case. These hogs formed part of the two car loads which were sold by defendant in Pittsburgh. The proceeds of the sale were not sufficient to pay defendant the money loaned, and Potter paid him the balance.

The court held that defendant was not liable as partner.

The case is a very strong one, for the reason that there not only was an agreement to share profits, but the defendant was authorized to and actually did take

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possession of and sell the property. The only remaining authority which would seem to sanction the early doctrine of liability from mere participation in profits as compensation for a loan is Parker v. Canfield, 37 Conn. 250; S. C., 9 Am. Rep. 317. That case on a careful examination will appear to sustain no such rule. It is apparent from the facts of the case that it was the intention of the parties that a partnership should exist between the parties, and that the device of a loan was resorted to under advice of counsel, in order that certain of the partners might escape liability as such.

This appears from the statement of facts in the opinion of the court, which is as follows: "In January, 1866, counsel was applied to to draw the papers, and the parties then learned that their agreement would make them partners. Thereupon it was agreed upon by the defendants that the money invested by Canfield and Hutchinson (who were sought to be charged as partners) should be regarded as a loan, and the attorney was requested to prepare a writing which should secure to them one-third of the profits without subjecting them to liability as partners."

The debts on which Canfield and Hutchinson were held liable as partners were debts that were contracted after the agreement was attempted to be changed into a loan. Now it is clear that they were both partners in fact prior to that time. The court so expressly held. "The defendants, while acting under their verbal agreement, were clearly partners both inter se and as to third parties." There was nothing in the modification of the agreement which indicated that that relation was to be changed. Canfield & Hutchinson were to lose no right to exercise the same control over the business which they could exercise before as partners. The only purport of that modification was that for the purpose of shielding them from liability, their investment in the business should be "regarded as a loan." They were therefore still partners, and their attempt to restrict their liability of course afforded them no exemption from partnership responsibilities.

While the court referred with approval to the doctrine of Grace v. Smith, yet what was said on the subject was mere obiter, as the court based its decision on the ground that the two defendants, Canfield and Hutchinson, were parties in fact as well after as before the modification of the original agreement. The court say: "The business is one in which the defendants are all interested. The defendauts are all principals. Andrews, as their agent, is using funds furnished by them all in a manner agreed upon by them all for their joint benefit and profits."

These are all the cases which appear to give any countenance to the notion that participation in profits as compensation for a loan rendered the recipient liable as partner. We have already referred to the American cases, which most emphatically denounce that heresy in the law. We will now briefly advert to the English authorities. The case of Molwoo v. Court of Wards, L. R., 4 P. C. 419, has been referred to already. In that case the person whom the creditors attempted to hold as partner advanced large sums of money to certain merchants, and took as security a charge on their business with extensive power of control, and stipulated for a large commission on their profits whilst any thing remained due to them, and for payment of his principal and twelve per cent interest. The court held that the transaction was a loan, aud that the lender was not liable as partner. This, like the case of Harvey v. Childs, supra, is a very strong one, as the lender, like the lender in that case, had, by the terms of his agreement, a right to exercise an extensive control over the business. Pooley v. Dwier, 5 Ch. D. 458, is not in conflict with this case. It was not a case of loan. The so-called lenders were not abso

lutely entitled to a repayment of their loan. Their right to a return of their advances depended upon the success of the business, and so far from having under their agreement a right to insist on a repayment of the full amount loaned, they might be compelled to refund whatever they had already received by way of profits, or on account of their loan. It was therefore not a mere loan of money, to be repaid at all events, but the investment of capital in business, with the risk of loss of that capital in case the business should prove unsuccessful. The parties having agreed to share losses, were partners inter se under all the authorities, and they were liable for all losses, even beyond the amount of their investment, because it was not in their power to restrict their liability as partners without forming a special partnership under the statute.

We will now refer more particularly to a few of the American cases already cited. In Curry v. Fowler, 87 N. Y. 33, the court say: "In Richardson v. Hughitt 76 N. Y. 55, it was held by this court that a person who has no interest in the business of a firm or in the capital invested, save that he is to receive a share of the profits as compensation for services or for money loaned for the benefit of the business, is not a partner, and cannot be held liable as such by a creditor of the firm. The case cited is very similar in its leading aspects to the one at bar."

The question was directly involved. Fowler, who was sought to be charged as partner, had loaned $50,000 to certain owners of real estate to enable them to erect certain buildings thereon. Fowler was to receive as compensation for the use of his money interest thereon and one-half of the profits arising on a sale. The claim was for work performed and materials furnished in the erection of these buildings. Held, that Fowler was not liable as partner. In Boston and Colorado Smelting Co. v. Smith, 13 R. I. 27; S. C., 43 Am. Rep. 3, the syllabus accurately states the decision: "An agreement to lend money and indorse to a certain amount for the purposes of the borrower's business, in consideration of a certain percentage of the net profits of that business, does not constitute the parties partners as between themselves or as to third parties."

The authorities are unanimous to the effect that an agreement to receive a certain share of profits as compensation for a loan does not render the parties partners inter se. Ruddick v. Otis, 33 Iowa, 402; Emans v. Westfield, 97 Mass. 230; Linter v. Milkin, 47 Ill. 197; Adams v. Fink, 53 id. 219; Pinkney v. Keyler, 4 E. D. Smith, 469; Salter v. Hum, 31 N. Y. 321. In Smith v. Knight, 71 111. 148, the Supreme Court of Illinois, after referring to the two cases in that State cited first above, decided that the lender in that case could not be a partner as to creditors, as he was not a partner in fact; that the only question in the absence of estoppel was whether the party sought to be charged as a partner actually was a partner. After citing those two cases the court say: Those cases were between the alleged partners. It remains to inquire, as this is a case between alleged partners and a third party, whether any act was done by Knight, Baker & Co. to make them partners as to third parties. Notwithstanding this agreement, did they hold themselves out to the public as partners?" The court thus expressly held that the test of a partnership between the parties is the test of a partnership as to creditors in the absence of estoppel, and that therefore no creditor can hold a person liable as partner who is not in fact a partner, provided he has not estopped himself from denying the partnership relation. This case was also a case of a loan. The purport of the decision is clearly stated in the syllabus: "A. agreed to advance money to B. from time to time up to a certain amount to enable B. to carry on business, and B. agreed to pay interest to A. an the average balance advanced, and also

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