the price of the 50,000 bricks and the further advances; that S. would forthwith proceed with two of the eight houses, and keep accounts of his expenditure in respect of them, which accounts were to be open to the inspection of H.; that S. would deposit his building contract with H. as security; that S. would use the 50,000 bricks in the erection of the two houses only; that S. would procure the leases of the two houses to be granted to the nominees of H.; that the leases should be sold at prices to be fixed by H., and the proceeds applied in payment of the moneys owing from S. to H.; that H. "should be entitled also, as a further consideration, and in addition to the said advances therein before mentioned, absolutely to one moiety of the profit on the said two houses," such profit to be the difference between the net cost price of erection and the proceeds of sale; and that if the proceeds of sale of the two houses should be insufficient to pay the moneys owing to H. and the moiety of the profit before mentioned, the remaining houses should be charged therewith. The plaintiffs had supplied S. with timber for the erection of the two houses-Held, that (independently of the stat. 28 & 29 Vict. c. 86, s. 1), the agreement entered into between S. and H. did not constitute H. a partner with S. in respect to the two houses, so as to render H. liable to the plaintiffs for the timber supplied by them. Kelly v. Scotto, 49 L. J., Ch. 383; 42 L. T. 827.

reason of his interference in the management and working of the company :-Held, that, upon the agreement, no partnership existed between A. and B.; and that, upon the evidence, there was no ground for inferring that A. had held himself out in any way to any person as a partner in the company. Dean v. Harris, 33 L. T. 639.

Advance to Business to be carried on for Benefit of Nominee of Lender and Borrower.]— In 1856 an agreement was entered into between H. and D., under which the former was to carry on business during twenty-one years for the benefit of himself, and of any person whom the latter might name within eight years. D. was to make advances, and to become surety to a bank for H.'s drafts, and the profits were to be applied, first, in payment of a salary and allowances to H., then in repayment of the advances made by D. with interest, and subject thereto were to belong as to one-third to H., and as to two-thirds to the nominee of D. D. died in 1861, without exercising his right of nomination, and in 1863 H. became bankrupt. On an application by the executors of D. to prove under the bankruptcy for the amount due to his estate under the arrangement :-Held, that the agreement did not constitute a partnership between H. and D.; and that the executors of the latter were entitled to prove. Davis, Ex parte, Harris, In re, 4 De G. J. & S. 523; 32 L. J., Bk. 68; 9 Jur. (N.S.) 859; 8 L. T. 745.

B. agreed with a builder that the builder should find the stock, plant, and materials for building houses, and he would find the funds, the ground landlord granting leases of the houses on completion, by which they would become in equity the joint property of B. and the builder; the houses were then to be sold, and the proceeds brought into account, B. being credited with advances and debited with receipts of purchase-money, the builder to be debited with certain allowances, and the balance of profit and loss to be divided equally. A joint account was to be opened at a bank, and either party could draw on it for the purposes of the agreement :Held, that B. and the builder were partners, so that the builder could pledge B.'s credit for plant, stock, and materials for the houses. Noakes v. Barlow, 26 L. T. 136; 20 W. R. 386—Ex. Ch. Developing Mines.]-In 1872, A. entered into a written agreement to lend B. 2,000l. as capital to enable him to develop certain coal and iron mines, the lease of the mines to be deposited with A. as security for the moneys advanced. The agreement also provided that A. was to be paid 3d. per ton on all coal and ironstone by way of commission; that B. was to receive a salary, which was not to commence until all the moneys advanced by A. had been repaid; that "after payment of the above, and the royalties, and Advances to Carry on Opera.]-K. advanced rents, and costs of raising and preparing, and money to G. on the faith of a letter which he indelivering to market the produce of the sisted constituted a contract of partnership in mines," A. was to be entitled to three-fourths, the profits of the business of the Italian opera and B. to one-fourth, of the net profits; and A. at Covent Garden. G. insisted that it amounted was to be free from all liability except in respect to nothing but an agreement to pay the amount of the money advanced by him. B. worked the of the loan and the interest on it out of the mines under the name of a company. In 1874 profits (if any should arise), but that the conA. died, and there was then due to him the sum cern remained his alone. The letters which of 11,000l., in respect of advances made by him | passed between the parties were held to bear to B. under the agreement. The mines proved a this construction, and, therefore, an account as failure, and the creditors of the company, B. of the profits of a partnership was refused. being insolvent, sent in their claims to the exe- Knox v. Gye, 42 L. J., Ch. 234; L. R. 5 H. L. cutors of A., alleging that A. was a partner in 656. Affirming, 10 Jur. (N.S.) 908; 12 W. R. the company by virtue of the agreement, and by | 1125.

Financing Businesses.]-E. experimented in sewage, B. in yeast, and W. supplied both of them with money for the purpose. The three traded ostensibly as partners under the names of Stuart & Co., Ward & Co., and Hofmann & Co., and ultimately under that of Hofmann, Bowing, Ellis & Co. Prior to 1869, the terms of the ostensible partnership subsisted in parol only, the two businesses being speculative and hazardous; but in 1869, success in the yeast manufacture appearing to have been at last obtained, a draft deed of partnership was prepared, but before its execution a rupture occurred among the partners or intending partners, and the deed remained unexecuted. B. and W. expelled E. forcibly from the premises, and subsequently took out a patent for the yeast invention in their own names. E. filed a bill claiming to be restored to the partnership and to have the benefit of the patent, and an injunction and an account. It was proved that no yeast had ever been sold-Held, that these circumstances showed no partnership between E. and W. and B. Ellis v. Ward, 21 W. R.

VOL. X.

100.

And see supra, col. 368.

13

The advance was made with reference to the | vance, and the addition of "and Co." was made business of the Italian opera at Covent Garden, to the name of the firm, the advance appearing the lease of which theatre was in the name of to have been taken as a loan, and the addition to G. alone. That theatre was burnt down in 1856, have been made without the concurrence of A. : and G. hired another theatre (the Lyceum) and—Held, that there was no partnership. Tur carried on the business of the Italian opera quand, Ex parte, Vanderplank, In re, 2 Mont. D. there, and in two years' time returned to a new & D. 339; 11 L. J., Bk. 1; 6 Jur. 67. theatre at Covent Garden which had been built in the interval, and of which the lease, as in the former case, had been granted in his name alone :-Held, that the true construction of the letters between the parties showed that the agreement between them was confined to the old Covent Garden theatre alone, and, therefore, an account of profits alleged to have arisen at the Lyceum and the new Covent Garden theatres was refused. Ib.

Mortgage of Patents.]-W., being in difficulties, mortgaged to M. certain patents, to secure advances previously made for the purpose of developing the patents, and paid him, out of the proceeds of the patents, 67. a week :-Held, that this payment did not constitute a partnership between them. Macmillan, Ex parte, Whittaker, In re, 24 L. T. 143.

Advance by Father for Sons.]-A father advanced 1,000l. in a partnership concern, for the benefit of his sons A. and B., reserving to himself power if they died, to substitute two other sons for them. The partner gave credit in his books to A. and B. for 5007. each. A. and B. both died under age; and after their death the partner, by the father's direction, transferred two sums of 5007. each, in his books, to C. and D., two other sons, but without adding any interest or profit thereto from the accounts of A. and B. The business was, by the father's directions, carried on in the partner's own name, and the profits carried in his books to his own ac count:-Held, that there was no trust created for C. and D.; that the partnership was with the father, and the share of the profits were his assets. Pilsworth v. Mosse, 14 Ir. Ch. R. 163.

Father Security for Son.]-A father, whose son was about to become a member of Lloyd's and to commence the business of an underwriter, became security for him, in compliance with the rules of Lloyd's, to the amount of 10,000l. The son executed a written agreement, which contained a recital of the security given by the father, and by which the son covenanted with the father that S., and no other person, should underwrite at Lloyd's in the name of the son; that S. should be paid 2007. a year and one-fifth of the net profits of underwriting; that the father should be at liberty to withdraw the whole of his security on notice being given to the son and other necessary parties, and immediately after such notice S. should cease to underwrite for the son or in his name; and that half the net profits of underwriting, deducting the share of S., should, together with 257. per annum, be considered as owing and should be paid to the father by the son. The business was carried on in the son's name alone, the creditors not knowing that the father was in any way connected with it :-Held, that no partnership was constituted between the father and the son. Tennant, Ex parte, Howard, In re, 6 Ch. D. 303; 37 L. T. 284; 25 W. R. 854—C. A.

Mortgage of Tea Plantations.]-Agreement in writing entered into between W. & Co., British merchants, carrying on business at Calcutta with a Hindoo rajah, by which, in consideration of moneys already advanced, and which might be thereafter advanced by the rajah to them, they agreed to carry on the business subject to the control of the rajah in several particulars, stipulating that the rajah should receive a commission of fifty per cent. on all profits made by the firm, until the whole amount of the debt due to him should be paid off, with twelve per cent. interest upon all cash advances which had been or might be thereafter made by him to the firm. Further advances having been made by the rajah to the firm, W. & Co. executed to him a mortgage of certain tea plantations to secure the then amount of his advances, and the rajah by a deed released his right to commission and interest under the original agreement between them. No proceeds of the business were ever received by the rajah, and though he was credited in the books of the firm with a considerable sum, that sum was never received by him, and was afterwards written back in the books of the firm. The rajah did not interfere or exercise any such control in the business as to make him an ostensible partner in the firm :— Held, that having regard to the restrictions and modifications made of late in the rule of law formerly prevailing, that participation in the net proceeds of the business made the partici- A contract for the remuneration of a serrant pant liable as a partner to third parties; and, or agent of a person engaged in a business, by a looking at the whole scope of the agreement, share of the profits of the business, does not of the primary object was to give security to the itself make the servant or agent a partner in the rajah as a creditor of the firm of W. & Co., and business, or liable as such. Partnership Act, that the participation given him in the net 1890 (53 & 54 Vict. c. 39), s. 2 (3), (b), reprofits of the business was not sufficient to es-enacting Bovill's Act, 1865 (28 & 29 Vict. c. 86), tablish a partnership between W. & Co. and the s. 2. rajah, as regarded third parties. Mollwo v. Court of Wards, L. R. 4 P. C. 419.

Advance-Refusal to Sign Articles.]-Where there had been a treaty for a partnership between the bankrupt and A., and articles drawn up which A. had refused to sign, but one of such articles was that A. should advance a sum of 2,000l., and A. did in fact make such an ad

e. Remuneration of Servants or Agents out of Profits.

Cases before 1865.]-An agent who is paid by a proportion of the profits of the adventure, is not therefore a partner in the goods. Meyer v. Sharpe, 5 Taunt. 74; 2 Rose, 124.

Where there was an agreement between the sole owner of a lighter and his man, that the latter should work her, and the net profits should be equally divided between them :-Held, that they

were partners in the concern, and that the man | attention to the business as might be required was liable for repairs as well as his master. Dry for conducting the same; that proper books of v. Boswell, 1 Camp. 329.

constitute a partnership :-Held, there being an absence of every incident of partnership except that of sharing in the profits, that that circumstance alone did not constitute the indenture a contract of partnership, but that it amounted only to a contract of hiring and service. Stocker v. Brocklebank, 3 Mac. & G. 250; 20 L. J., Ch. 401; 15 Jur. 591.

Taking Charge of Glebe Land.]-The following agreement:-" S. W. engages to take charge of the glebe land of the Rev. J. C., his wife undertaking the dairy and poultry, at 15s. a week, till Michaelmas, 1850, and afterwards at a salary of 251. a year, and a third of the clear annual profit after all expenses of rent, rate, labour and interest on capital, &c., are paid on a fair valuation, made from Michaelmas to Michaelmas. Three months' notice on either side to be given, at the expiration of which time the cottage to be vacated by S. W., who occupies it as bailiff, in addition to his salary. March 12, 1850. (Signed) J. C., S. W.," is not a contract of partnership, but an agreement for the hire of a labourer. Reg. v. Wortley, 2 Den. C. C. 333; 21 L. J., M. C. 44; 15 Jur. 1137.

Clerk.]-On a negotiation for a partnership, it was agreed in writing that B. should not be a partner, but a clerk only for three years to T. B.'s salary was to be ascertained by the profits of the business, but so as not to render B. a partner. B. appeared to act in the business as a partner, and the business was carried on under the name of T. & Co. :-Held, that the agreement did not constitute a partnership. Edmondson v. Thompson, 31 L. J., Ex. 207; 8 Jur. (N.S.) 235; 5 L. T. 428; 10 W. R. 300.

A partner in a firm contracted to give his clerk one-third portion of his (the partner's) own share in the profits. The other partners knew of and assented to this arrangement :Held, that this did not make the clerk a partner. Holme's Case, 2 Lewin, C. C. 256.

Foreman-Notice to Dissolve Served on.]Bill by A. for an account against B. and C., alleging himself a partner with them. B. and C., by their answer, deny the partnership, and state that A. was employed by them as their foreman, but that on account of its being contemplated to take A. into partnership, the accounts had been made out in the joint names of B., C., and A., the tools, &c., marked with their names. They admitted having served A. with a notice to dissolve partnership, and also admitted a specification of certain buildings and other work which was required by them, which specification described the work required to be done as being upon the property of B., C. and A. :-Held, that there was sufficient evidence of the existence of a partnership between B., C. and A. Smith v. Sherwood, 10 Jur. 214.

Oyster Dredgers.]-Where a bill was brought for the customary tithes of oysters, alleging the customary payment to be in the owners and occupiers of boats employed in the fishery and usually moored within the parish :-Held, that it was not necessary to make the dredgers for the oysters, who had no interest in the boats, but who shared in the profits of the oysters, parties to the bill. Oyster dredgers agreeing to receive from the owners of the boats, who were their employers, a stipulated share of the profits arising from the sale of the oysters :-Held, not to be co-adventurers with the owners. Perrott v. Bryant, 2 Y. & Coll. 61; 6 L. J., Ex. Eq. 26.

"R. & Son."]-From 1849 R. resided with his father, and assisted him in his business. The signboard, the invoices, and the banking account were in the name of "R. & Son." They drew and accepted bills under the same title, and executed a deed which described them as copartners :-Held, nevertheless, after the death of the son, in 1862, that they were not partners inter se. The circumstances relied on were, the absence of any division of profits in the books, which were kept by the son; the absence of proof of the son's having any capital or being entitled to receive any share of the profits; the fact of his having, when he ceased to reside with his father, made no request for an account of the profits, but accepted 11. a week as a remuneration until his death, six months afterwards; and the testimony of the members of the family. Radcliffe v. Rushworth, 33 Beav. 484.

Remuneration for Services

Book-keeper and Cashier.]-In June, 1844, A. entered the service of B. as book-keeper and cashier, and so continued until December, 1848, without coming to any agreement as to the amount of his salary. It was stated by A., that in December, 1848, it was agreed between him and B. that the salary should be at the rate of 250l. a year, from June, 1844, and that the reason that such arrangement was not made before was, that B. was engaged in making experiments in a certain manufacture, from under Special which he hoped to derive a considerable fortune, Agreements-Tally-shop.]-E., being concerned out of which A. expected to be paid. B. became in a colliery, entered into an agreement with J. bankrupt in February, 1849 :-Held, that A. was for opening a tally-shop near it, for the purpose a clerk, not a partner, and was entitled to prove principally of supplying goods to the workmen. for his salary. Hickin, Ex parte, 3 De G. & S. E. built the shop, and his name was placed over 662; 19 L. J., Bk. 8; 14 Jur. 405. the door. J. managed the shop. E. received in the first instance 77. per cent., and afterwards 51. per cent. on the amount of all sales to his workmen, and J. received all the rest of the profits. The plaintiffs were the assignees of bankers with whom J. had opened an account, and who had advanced money to J. for the purchase of goods for the shop. There was no evidence to show that credit was in fact given to E. The jury having found that there was no sharing of profit and loss between E. and J., and that credit was not given by the bankrupts to E. :-Held, that the verdict was not against the evidence, that

Claim by former Servant to be Partner.]Where a former servant claims to be a partner, his case must be made out by strong evidence. Pawsey v. Armstrong, 50 L. J., Ch. 683; 18 Ch. D. 698; 30 W. R. 469.

An arrangement made by A. B. with C. D., to give him a moiety of the profits of the business, instead of a previous salary for his services, constitutes him a partner. Digby, Ex parte, and Buckton, Ex parte, 1 Dea. 311; 2 Mont. & Ayr. 735.

as credit was given to J. alone, E. could only be | be left in the secretary's hands to meet the current made liable on the ground of an actual partner-expenses, but that all orders for the payment of ship between him and J., and that E.'s taking money should be drawn by the secretary upon 51. per cent. on the sales to his workmen, did not, as a matter of legal inference, render him liable as a partner to third persons, but was in the nature of a commission on certain sales supposed to be effected through his influence over his workmen. Pott v. Eyton, 3 C. B. 32; 15 L. J., C. P. 257.