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8. Dormant or Secret Partners, 550. 9. Mortgages to Partners, 553.

10. Liability, when Joint and Several, 554.

IV. PARTNERSHIP PROPERTY.

1. Generally, 556.

2. Whether Joint or Separate Assets, 559.

3. Leases, 566.

4. Conversion.

a. In General, 569.

I. THE CONTRACT.

1. WHAT CONSTITUTES A PARTNERSHIP.

The Partnership Act 1890 (53 & 54 Vict. c. 39), now defines (s. 1) the nature of a partnership, (s. 2) the rules for determining the existence of a partnership.

Statutory Definition.]-Partnership is the relation which subsists between persons carrying on a business in common with a view of profit.

b. Realty purchased out of Partnership Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 1 (1).

Funds, 571.

5. Lien of Partners, 574.

6. Use of Trade Name, 575.

7. Good will.-See Goodwill.

8. Death of Partner, 579.

V. CAPITAL.

1. Interest on, 579.

2. Interest on Overdrafts, 583.

VI. PROFITS AND LOSSES.

1. Profits.

a. Generally, 584.

b. Proportions, 584.

e. Whether Capital or Income, 590. d. Profits of Capital retained, 592. e. Profits of Separate Business, 596. 2. Losses.

a. Contribution to, 597.

VII. RETIREMENT OF PARTNER.
1. Agreement to Retire, 599.
2. Notice of Dissolution, 599.

3. Rights of Creditors against Retired
Partner, 599.

4. Rights of Retired against Continuing Partner, 606.

VIII. DEATH OF PARTNER.

1. Rights of Surviving Partner, 610.

Persons who have entered into partnership with one another are for the purposes of this act called collectively a firm, and the name under which their business is carried on is called the firm name. Partnership Act, 1890, s. 4 (1). As to Scotland, see (2).

a. General Principles.

As to the statutory power of a partner to bind the firm, see now Partnership Act, 1890, ss. 5—

16.

Cases Before the Act, 1890 Law of Principal and Agent.]-The law as to partnership is a branch of the law of principal and agent. A partner embraces both characters; and where a man orders another to carry on trade, whether in his own name or not, to buy and sell, and to pay over all the profits to him, he is the principal, and the person so employed is the agent; and the principal is liable for the agent's contracts. This is the true principle of partnership liability. Cox v. Hickman, 8 H. L. Cas. 268; 9 C. B. (N.S.) 47; 30 L. J., C. P. 125; 7 Jur. (N.s.) 105; 8 W. R. 754.

A right to participate in profits affords cogent, often conclusive, evidence that the trade in which the profits have been made was carried on in part for or on behalf of the person setting up

2. Liability of Deceased Partner's Estate to such a claim; but the real ground of the liaCreditors, 612.

bility is that the trade has been carried on by persons acting on his behalf. The liability of one partner for the acts of his co-partner is in truth the liability of the principal for the acts of Partner's his agent.-Per Lord Cranworth. Ib.

3. Rights as between Deceased Partner's Estate and Firm, 619.

4. Administration of Deceased Estate, 624.

IX. BANKRUPTCY OF PARTNER, 627.

X. DISSOLUTION OF PARTNERSHIP.

1. By Notice, 633.

2. Grounds for Dissolution.

The proper test of liability as a partner is not whether the party sought to be charged has stipulated for the participation in profits as such, but whether the person by whom the trade was actually carried on carried it on in the capacity of agent for him. Ib.

A. and B., who carried on the business of iron

a. Conduct and Breach of Articles, 638. masters in co-partnership, by a deed, purporting

b. Death of Partner, 643.

e. Lunacy of Partner, 644.

d. Bankruptcy of Partner, 647.

e. Other Grounds, 647.

3. Advertisement in Gazette, 648.

4. Effect of, 649.

5. Action for, 651.

6. Sale by Court, 652.

7. Liability to Third Parties, 654.

XI. ACTIONS BY AND AGAINST PARTNERS. 1. Generally, 662.

2. Action by, 662.

3. Action against.

a. Generally, 669.

to be made between A. and B. of the first part, five persons named as trustees of the second part, and the several persons whose names were contained in a schedule as creditors for the sum therein mentioned and who should execute the deed of the third part, reciting that A. and B. were indebted to the several persons, parties thereto of the third part, and that they had agreed to assign all their estate and effects for the benefit of such creditors, assigned the works and all their property and effects to the trustees upon trust to carry on the business under the name of the Stanton Iron Company, and out of the profits to pay interest on mortgages, &c., and to pay and divide the net income of the business remaining after answering the purposes

b. Proof of Liability and Evidence, 674. aforesaid, unto and among all and singular the

4. Practice and Pleading, 679.

5. Payment into Court, 684.

creditors of A. and B. in rateable proportions according to the amount of their respective

debts:-Held, that, under this deed, the creditors | parte, Harris, In re, 4 De G. J. & S. 523; 32 executing it did not become liable as partners L. J., Bk. 68; 9 Jur. (N.S.) 850; 8 L. T. 745. for debts contracted by the trustees in carrying on the trade. Ib.

Partnership

Agreement to commence in The law of partnership is a branch of the law futuro-Commission, when earned.]—The deof agency, and the test of partnership is not fendants agreed with the plaintiff to remunerate simply whether the alleged partner was to him in the event of their taking into partnership receive a share of profits, but whether he con- one M. introduced by the plaintiff. The defenstituted his alleged co-partners his agents for dants afterwards entered into a written agreecarrying on business. The receipt of profits is ment with M., by which it was agreed that they only important as a consequence of such agency, should enter into partnership as and from a and a ground for inferring it in certain cases. specified future day, when a formal deed of English and Irish Church and University Assur- partnership should be executed carrying out ance Society, In re, 1 H. & M. 85; 8 L. T. the terms of the agreement. This agreement 724 11 W. R. 681. recognised and adopted the agreement between the plaintiff and defendants. No partnership deed was ever executed, nor did M. ever, in fact, act a partner of the defendants :-Held, first, that the agreement between M. and the defendants did not constitute a present partnership; secondly, that there was evidence of a "taking into partnership" within the meaning of the agreement between the plaintiff and defendants so as to entitle the plaintiff to his commission. Harris v. Petherick, 39 L. T. 543.

The test whether a person who is not an ostensible partner in a trade, is nevertheless, in contemplation of law, a partner, is, not whether he is entitled to participate in the profits, although this affords cogent, often conclusive, evidence of it, but whether the trade has been carried on by persons acting on his behalf. Kilshaw v. Jukes, 3 B. & S. 847: 32 L. J., Q. B. 217; 9 Jur. (N. S.) 1231; 8 L. T. 387; 11 W. R. 690.

When a person is sought to be made liable on the ground of his being a partner, the true test is, whether or not he has constituted the other Use of Name.]-Where A.'s name is used in alleged partner his agent in respect of the part-partnership by other partners as a partner, but nership business. Bullen v. Sharp, 35 L. J., C. P. 105; L. R., 1 C. P. 86; 12 Jur. (N. s.) 247; 14 L. T. 72; 14 W. R. 338; 1 H. & R. 117-Ex. Ch. And see Hollom v. Whichelow, col. 378.

To make a man liable as a partner there must either be a contract between him and the ostensible person to share jointly in the profits and losses, or he must have permitted the other to make use of his credit, and to hold him out as one jointly answerable with himself. Hoare v. Dawes, 1 Dougl. 371.

Verdict. To establish a partnership between two defendants, a verdict on an issue directed out of a court of equity, to try whether the defendants were partners, and for what time, on a bill filed by one of them against the other, is admissible to establish a partnership, the verdict having found them to be so. Whatley v. Manheim, 2 Esp. 608.

Partnership and Company.]-An ordinary partnership is a partnership composed of definite individuals, bound together by contract between themselves to continue combined for some joint object, either during pleasure or during a limited time, and is essentially composed of the persons originally entering into the contract with one another. A company is the result of an arrangement by which parties intend to form a partnership which is constantly changing, a partnership to-day consisting of certain members and tomorrow of some only of those members, along with others who have come in; so that there

he receives no part of profits, &c., nor are any articles of partnership entered into by A. and others: Held, but a nominal partnership. Jacobsen v. Hennekenius, 5 Bro. P. C. 482.

Gift of Shares by Will.-R., being in posses sion of mines and iron works, under leases of unequal duration, by will bequeathed 25,000. to B. "as a capital for him to become partner with my executors of one-fourth share in trade of all those works so long as the lease endures." with a devise to H. and his wife of residue of his

estates, real and personal. By codicil testator gave to W. three-eighths of concern of ironworks: "the partnership will stand at my death, W. three-eighths, H. three-eighths, B. twoeighths." After R.'s death W., H., and B. carried on works for two years, selling iron manufactured not only from the produce of the mines, but from other sources:-Held, that codicil revoked residuary clause in favour of H.'s wife as to the trade, and that concern was a partnership in trade. Crawshay v. Maule, 1 Swanst. 495; 1 Wils. 181; 18 R. R. 126.

Provisional Committeemen.]-Provisional men are not to be considered as partners. A provi sional committeeman who has paid the amount of a bill incurred in consequence of an order made by the committee, may in an action for money paid recover contributions from other members of the committee who concurred in giving the order. Botard v. Douglas, 1 W. B. 287.

will be a constant shifting of the partnership, Commencement of Partnership.]—Where no and with the intention that, so far as the part-time is fixed for the commencement of a partners can, by agreement between themselves, nership in an agreement between the parties, it bring about such a result, the new partnership must be taken to have commenced on the date shall succeed to the assets and liabilities of the of the agreement. Williams v. Jones, 5 B. & C. old partnership. Smith v. Anderson, 50 L. J., 108; 7 D. & R. 549; 29 R. R. 181. See col. 398. Ch. 39; 15 Ch. D. 273; 43 L. T. 329; 29 W. R. 21-C. A.

b. Joint Adventures. Power to Nominate Person as Partner.]-A Joint tenancy, tenancy in common, joint propower given to an individual of nominating him-perty, common property or partnership, does not self or any other person a partner in a business of itself create a partnership as to anything so does not constitute him a partner. Davis, Er held or owned, whether the tenants do or do not

share any profits made by the use thereof. | company, and with that view purchased proPartnership Act 1890 (53 & 54 Vict. c. 39), perty, and incurred debts and expenses. The s. 2 (1).

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Cases before 1890 Joint Speculation Buying and Selling of Land - Conversion.]H., who was a solicitor, had for many years previously to his death been engaged in various land speculations jointly with C. The speculations consisted in the buying and selling of plots of land, the laying out of the land for building purposes, and the advancing of money to builders. The lands were generally bought in consideration of chief rents, and then sold to builders at increased chief rents, which were retained by H. and C. The conveyances of the lands bought were taken either to H. and C. jointly or to C. alone. A banking account was kept in the names of H. and C., and statements of account were made out every half-year, but there were no partnership articles between H. and C. Upon the death of H., there being an intestacy as to certain lands and chief rents which had been acquired by him in the course of his joint speculations with C., the question arose as to whether H.'s share of the property went to his heir-at-law or to his next of kin, as being partnership property and subject to conversion:-Held, that the proper inference to be drawn from the evidence and statements of account was, that the relations which had existed between H. and C. was that of partners, and that they were not co-owners of real estate, but that the property in question constituted partnership assets, and, therefore, that the property must be treated for the purpose of devolution as personal estate of H., to which his next of kin were consequently entitled. Hulton, In re, Hulton v. Lister, 62 L. T. 200-C. A.

Building Speculation.] - An agreement in reference to a building speculation upon the S. estate, bought with the money of A., provided that B., in consideration of his services to enable A. to realise the estate, should be paid one-half of the profits after A. had made certain payments; that B. should bring in a third of certain fees which he might receive from builders, and bear one-half of any losses, and generally it was agreed that he should receive and bear one-half of the profits and losses upon the whole transaction; but the agreement was not in any way to be construed into a partnership between the parties, and should wholly and solely relate to the S. estate. B.'s services were to be the consideration for the agreement, and he was not to charge for his time and trouble, but only actual disbursements made by him for the benefit of the estate and for realising it for A. and B.'s mutual benefit:-Held, that the agreement constituted a partnership between the parties, and a dissolution was declared. Moore v. Davis, 11 Ch. D. 261; 39 L. T. 60; 27 W. R. 335.

Joint Ownership.]-Joint ownership of property accompanied with joint occupation distinguished from partnership, and one of the joint owners held not entitled to a lien on the property for money advanced by him and laid out on it. Duties of guardians of infants, whether wards of court or not, stated. Kay v. Johnston, 21 Beav. 536.

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Syndicate of Promoters.] - Certain persons joined together for the purpose of forming a

project became abortive; and upon a bill filed for an account on the footing of a partnership: -Held, that this was not a partnership, and the bill was dismissed. Hamilton v. Smith, 28 L. J., Ch. 404; 7 Jur. (N.S.) 32; 7 W. R. 173.

Working Patent.]-A. entered into an agree ment with B., that B. should work his patent at A.'s expense, first by way of experiment; and if A. was satisfied, and expressed his satisfaction in writing, then the patent was to be worked on certain terms of payment to B., B. undertaking to devote his time; and there were provisions for terminating the agreement in case the profit of the manufacture fell below a certain sum. A bill, filed in equity, made a case that experiments had been made; that the defendant represented the invention would answer, and led the plaintiff into expense; but it did not allege that the plaintiff was satisfied, or had expressed his satisfaction in writing, nor did it distinctly allege any fraudulent misrepresentation by the defendant; it prayed a dissolution of the joint concern, and a lien on the patents for the money expended by A.:-Held, on demurrer, that there was no partnership; that the agree ment was merely for an experiment until A. should have expressed his satisfaction in writing. Osborne v. Jullion, 3 Drew. 596; 26 L. J., Ch. 6; 4 W. R. 767.

Running Steamer.]-By an agreement entered into in 1871 between M. and the trading firm of Schacher Brothers, M. agreed to pay them 2,000l., which was to be invested by them in the purchase of a steamer, to be used for purposes of trade. For this sum M. was to receive interest at the rate of 5 per cent. per annum, and to have one-eighth interest in the steamer; i.e., to have one-eighth of the annual results after there had been deducted therefrom the abovementioned 5 per cent., all expenses of equipment, and a further sum of 10 per cent. on account of the annual depreciation in value of the steamer. M. also agreed to pay Schacher Brothers, within a year from the date of the agreement, a further sum of 4,000l.; and, on payment of the lastmentioned sum, M. was to become interested in all the business of the firm of Schacher Brothers to the extent of three-sixteenths of the whole, and was to cease to have the said one-eighth interest in the steamer. M. duly paid to Schacher Brothers the 2,000l., and also paid them, at different times, various sums, not however amounting altogether to 4,000l. :-Held, that the agreement did not constitute M. a partner in the firm of Schacher Brothers in respect of the special venture, i.e., the one steamer. Meyer v. Schacher, 38 L. T. 97.

Supply of Arms to Foreign Government.]— Two defendants, who carried on business in partnership as ship and insurance brokers, and the plaintiff, who carried on business alone as a merchant and commission agent, jointly agree l to supply arms to a foreign government. In the first contract with that government the defendants were described only by their partnership name, and it was signed on their behalf in that name. The second contract was signed by an agent of the plaintiff and the defendants, who was described in it as acting on behalf of the defendants (giving only the name of the firm)

and the plaintiff, and as "agent of the two houses above named " :-Held, that on the form of these contracts, in the absence of evidence to the contrary, the adventure must be considered to have been undertaken by the defendants as one person and the plaintiff as another person, and not by the three as individuals, and that the plaintiff was entitled to a moiety of the profits. Warner v. Smith, 1 De G. J. & S. 337; 32 L. J., Ch. 573 8 L. T. 221; 11 W. R. 392. See also Read v. Hollinshead, 7 D. & R. 444; 4 B. & C. 867.

time of the purchase of the goods for the adventure by A. and B., although C. did not go with them to make the purchase, nor authorise them to purchase on the joint account, but A. and B. alone in fact made the purchase; and although C. also purchased in his own name, and paid for goods to be sent out at the same time, in which B. was to share the profit or loss, and these goods were consigned for sale and return to the same person who went out as supercargo on the joint account of the three. Gouthwaite v. Duckworth, 12 East, 421.

Common Carriers-Stipulation against Part- Equitable Contribution in Respect of Default nership.]-A. and B., &c., were common carriers in Payment of a Loss by one of Contracting from L. to F., a separate portion of the road Parties. -By agreement between the plaintitis. being allotted to each, and it having been stipu- the defendants, and Messrs. L. B. & Co., a cargo lated also, that no partnership should exist of Californian wheat was to be shipped for their between them; A. for himself and the other joint account by the correspondents of L. B. & parties, agrees with the Mint to carry coin from | Co.. at San Francisco, consigned to the plaintiffs L. to F., and afterwards makes another agreement with the Mint to carry other coin to places not on the road-Held, that all the parties were entitled to share in the profits of this agreement. Russell v. Austwick, 1 Sim. 52; 27 R. R. 157.

Assignment of Business by Debtor to Creditor -Provision for Re-assignment.]-By an agreement in writing W., a trader, who was insolvent. assigned all his machinery, stock, and book-debts to B., his largest creditor; B. agreed to carry on the business as before in W.'s name, to engage W. as manager at a weekly salary, to discharge the existing and future trade liabilities of W., and to find funds for carrying on the business, All profits made were to be placed to the credit | of W., and as soon as the losses were made up B. was to resell the business to W. without any further responsibility on the part of B., or any consideration on the part of W. B. having become bankrupt and W. having become bankrupt, a question arose as to the ownership of the business-Held, that, under the agreement, B. and W. took a joint interest in the business. Smith, Ex parte, Whiteley, In re, 67 L. T. 69— C. A.

Shipments on Joint Adventure.-A., B. and C. agreed that each should furnish 3,0007, worth of goods, to be shipped on a joint adventure, the profits to be divided according to the amount of their several shipments :-Held, that this did not constitute a partnership between the three, so as to make B. and C. responsible for goods bonght by A. to furnish his quota of the cargo. Heap v. Dobson, 15 C. B. (N.S.) 460.

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at Liverpool for sale upon certain special terms:
the shippers to reimburse themselves for cost and
insurance of the cargo by drafts on the plaintiffs
at sixty days' sight to the extent of 458. per
quarter, less freight, and for the balance of
invoice, amount by separate drafts at sixty days'
sight upon each of the above parties for one-
third of the excess. The cargo was shipped, and
a bill was drawn by the San Francisco house for
29,3531. 18s. 1d., on account of the invoice price
of the wheat, less freight, upon the plaintiffs,
and was duly accepted and paid by them, to-
gether with freight, insurance, and other charges
in respect of the cargo; and the wheat on arrival
was sold by the plaintiffs at a loss. In Decem-
ber, 1883, L. B. & Co. became insolvent, and
compounded with their creditors for 30 per cent.
of their liabilities, which composition the plain-
tiffs received, leaving an unpaid balance of
1.7601. 10s. 9d. due from that firm for their share
of the loss on the adventure:-Held, that the
purchase and shipment of the wheat was a joint
adventure, each of the three firms to participate
equally in the profit or loss; and that the defen-
dants, according to the rule of equity, which,
since the Judicature Act. 1873, is to prevail, were
liable to contribute equally with the plaintiffs to
make good the default of L. B. & Co. Lowe v.
Dixon, 16 Q. B. D. 455; 34 W. R. 441.
And see col. 378.

c. Participation in Profit and Loss.

The receipt by a person of a share of the profits of a business is primâ facie evidence that he is a partner in the business, but the receipt of such a share or of a payment contingent on or varying Double Adventures.] - A. and B., general with the profits of a business does not of itself partners in trade, being indebted to C. on the make him a partner in the business. Partnerjoint account of the three in a special joint ship Act, 1890 (53 & 54 Vict. c. 39), s. 2 (3). adventure, with a view to liquidate that balance, | C. agreed with A. and B. to join with them in another adventure, of which he was to have one moiety and it was agreed that A. and B. should purchase goods for the adventure, and pay for them; and the returns of such adventure were to be made to C., to go in liquidation of his demand on them : but C. was to bear his proportion of the loss, if any, and also to receive his share of the profit, if any, after reimbursing himself out of the returns the amount of his advances previously made to A. and B. :-Held, that this agreement constituted a partnership between the three in the adventure at and from the

Share of Profits of Business-Co-ownership of Real Estate.]-The receipt of a share of profits in a business is, under s. 2, sub-s. 3 of the Partnership Act, 1890, primâ facie evidence of a partnership. This may, however, be rebutted by a consideration of the whole of the circumstances of each case. Budeley v. Consolidated Bank (38 Ch. D. 238) considered. Davis v. Davis, 63 L. J., Ch. 219: [1894] 1 Ch. 393; 8 R. 133; 70 L. T. 265; 42 W. R. 312.

Lean to Trustee-Fixed Payments out of Profits-"Share of Profits."]-Where a sum of

money is advanced to a trader under an agree-parties. Badeley v. Consolidated Bank, 57 ment in writing, whereby it is stipulated that the L. J., Ch. 468; 38 Ch. D. 238; 59 L. T. 419; 36 lender shall have the entire control of the busi- W. R. 745-C. A. ness and an option (which has not been exercised) of becoming a partner, and shall receive by way of remuneration for his services and for interest on his advance certain fixed weekly payments out of the profits of the business, such an agreement does not constitute the lender a partner, but the money so advanced is an advance upon the terms of "receiving a share of the profits" within the meaning of s. 2, sub-s. 3 (d), of the Partnership Act, 1890, and he is consequently postponed to the other creditors. Young, In re, Jones, Ex parte, 65 L. J., Q. B., 681; [1896] 2 Q. B. 484; 75 L. T. 278; 45 W. R. 96; 3 Manson, 213.

Bovill's Act-Action to Enforce Security.]-An action to enforce a security given by a trader who has become bankrupt is not an action to recover principal, profits, or interest within the 5th s. of Bovill's Act, and may, therefore, be maintained by a person entitled to receive a share of the profits of a trader, although the other creditors of the trader have not been satisfied. Ib.

General Principle.]—An agreement to share profits and losses is not, at any rate as between the parties to the agreement, conclusive as to their being partners; the question of partnership depends on the intention of the parties as shown by the agreement. Pawsey v. Armstrong, 18 Ch. D. 690, infra) observed upon. Walker v. Hirsch, 54 L. J., Ch. 315; 27 Ch. D. 460; 51 L. T. 581; 32 W. R. 992. And see London Financial Association v. Kelk, 53 L. J., Ch. 1025; 26 Ch. D. 107; 50 L. T. 492.

The proper test of liability as a partner is not whether the party sought to be charged has stipulated for the participation in profits as such, but whether the person by whom the trade was actually carried on, carried it on in the capacity of agent for him. Cox v. Hickman, 8 H. L. Cas. 265; 9 C. B. (N.S.) 47; 30 L. J., C. P. 125; 7 Jur. (N.s.) 105; 8 W. R. 754. And see Hollom v. Whichelow, 64 L. J., Q. B. 170.

Participation in profits, although strong evidence, is not conclusive evidence of a partnership. The question of partnership must be decided by the intention of the parties, to be ascertained from the contents of the written instruments, if any, and the conduct of the parties. The plaintiff advanced money to a contractor to enable him to carry out a contract with a railway company for the construction of a railway, and the parties executed a deed by which the contractor assigned to the plaintiff all his machinery, plant, &c., and all shares and debentures he might receive from the company, to secure the repay. ment of the loan. The deed contained the following provisions :-(1) That the plaintiff should receive ten per cent. interest on the money advanced, and ten per cent. of the net profits of the contract; (2) that the contractor should apply all the moneys advanced in carrying on the works; (3) that if the contractor should become bankrupt the plaintiff might enter and! complete the works; (4) that the plaintiff might sell the property in case of default, but that he should not sell the shares or debentures within twelve months after the completion of the contract; (5) that in calculating the net profits the contractor should be allowed to draw out 1,0007. a year for his services. Letters passed between the plaintiff and the contractor in which the money advanced was spoken of as "capital" and working capital," and expressions were used showing that both parties had a common interest in the works -Held, that the stipulations in the deed and the expressions in the correspondence were all consistent with the object of securing repayment of the money advanced, and were not sufficient evidence of a partnership between the

Although a right to participate in the profits of a trade is a strong test of partnership, and there may be cases where, from such perception alone, it may as a presumption, not of law but of fact, be enforced; yet, whether that relation does or does not exist must depend on the real intention and contract of the parties. Mollwo v. Court of Wards, L. R. 4 P. C. 419. When an association of two or more persons is formed for the purpose of carrying on, or continuing to carry on, business, and those persons are to share indefinitely the profits of the business, they are to be treated as partners in that business, unless there are surrounding circumstances to show that they are not really partners. Pooley v. Driver, 46 L. J., Ch. 466; 5 Ch. D. 458; 36 L. T. 79; 25 W. R. 162.

In the absence of something in the contract to show a contrary intention, the right to share profits, as profits, constitutes, according to English law, a partnership. Ib.

A co-partnership in profits is a co-partnership in the assets by which the profits are made. Syers v. Syers, 1 App. Cas. 174; 35 L. T. 101; 24 W. R. 970.

No Interest in Capital.]-Partner constituted by a share in profits without interest in capital. Hodgkinson, Ex parte, 19 Ves. 291; G. Cooper, 99; 13 R. R. 199.

To constitute a partnership, the parties must participate as well in the losses as in the profits. Grace v. Smith, 2 W. Bl. 1000.

Participation in profits is not conclusive evidence of the existence of a partnership. It is very cogent evidence, and, if it stands alone, may be conclusive evidence of a partnership. But the effect of participation in profits may be outweighed by other circumstances. Tennant, Ex parte, Howard, In re, 6 Ch. D. 303; 37 L. T. 284; 25 W. R. 854—C. A.

A participation in the profits, though cogent, is not conclusive, evidence of a partnership. Bullen v. Sharp, col. 367. And see also Kilshaw v. Jukes, col. 367.

Third Parties-Effect on.]-One who takes a share of the profits, as such, of a trading concern, thereby becomes a partner as to third persons, on the ground of those profits forming a portion of the fund upon which creditors have a right to rely for payment. Pott v. Eyton, 3 C. B. 32; 15 L. J., C. P. 257.

Yet the receipt of a percentage upon the gross amount of sales made to certain customers by the person who recommended such customers, does not constitute him a partner as against third persons. Ib.

Proviso that Partnership should not Exist.]An agreement to share the profit and loss of a business entitles each party as against the other to the general rights of a partner, including an

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