Rumford Chemical Works v. Finnie.

although it was customary to notify the Commonwealth, such notice was by no means essential; that the county attorney had represented the jailer or sheriff; and that upon the matter of the order of court by which the prisoner was committed, it was not material whether it was a mere order or not, so that the commitment into custody was for the same matter. The prisoner was, therefore, ordered to be discharged.

RUMFORD CHEMICAL WORKS, TO USE, ETC., V.

FINNIE.

CIRCUIT COURT-WESTERN DISTRICT OF TENNESSEE— MAY 13, 1879.

NEW TRIAL AFFIDAVITS OF JURORS

-COMPUTATION OF VERDICT.

1. Affidavits of jurors are not admissible to show the mode of computation adopted by the jury to be contrary to the law and the evidence.

2. SUIT FOR THE INFRINGEMENT OF A PATENT.-On motion for a new trial defendants offered affidavits of jurors to show the method of calculation adopted by the jury, with items of debit and credit as allowed in determining the verdict, to demonstrate that such verdict was contrary to the law as charged by the court, and unsupported by the evidence.

H. T. Ellett and Pierce & Dix for, and Geo. Gantt and McKissick & Turley against, the motion.

HAMMOND, J.-The jury having made a mistake in their figures, by which the verdict was rendered at one thousand dollars more than they really found, on information to the court and counsel and upon application of the jury, the mis

Rumford Chemical Works v. Finnie.

take was corrected by entering a remittitur as appears by the record. The plaintiffs waived any affidavits of the jurors to show that mistake and confess it. Nevertheless, the defendants offer to prove by the affidavits the mode of calculation adopted by them to reach the verdict, (the jury having preserved their figures) in order to show as a ground for a new trial that it was contrary to the evidence, and not authorized by the charge of the court. The Supreme Court of the United States, in United States v. Reid, 12 How. 361, 366, declined to lay down any rule on the subject, and I do not find that they have since considered it. It is certainly contrary to the English cases to admit these affidavits, and it is said that Tennessee is the only State where they are admitted. "Public policy forbids the introduction of jurors' affidavits to prove anything which may have transpired in the jury room whilst consulting upon their verdict. To allow verdicts to be overthrown by the evidence of jurors would open a door for tampering with the jury, and might lead to consequences, in their operation on judicial proceedings, of every mischievous and pernicious character. To guard against such consequences, it is better the door should be at once closed against the introduction of jurors as witnesses to overturn their verdict. By the ancient law and practice the affidavits of jurors might be received to impeach their verdict; but previous to our revolution, at least as early as 1770, the doctrine in England was distinctly ruled the other way, and has so stood ever since. It is admitted, notwithstanding a few adjudications to the contrary, that it is now well settled, both in England and, with the exception of Tennessee, perhaps in every State of the confederacy, that such affidavits cannot be received, and, we believe, upon correct reasoning. If it were otherwise, but few verdicts could stand. It would open the widest door for endless litigation, fraud and perjury, and is condemned by the clearest princi

Rumford Chemical Works v. Finnie.

ciples of justice and public policy." Graham and Waterman on New Trials, 1429, 1430.

It is probable that this court is not bound by the Tennessee practice on this subject, but I do not place the judgment on that ground. R. R. Co. v. Horst, 93 U. S. 291. I think the Tennessee cases, all taken together, go only to the extent of admitting affidavits of the jurors to show misconduct, such as casting lots or playing cards for their verdict; and not to the extent of attacking the judgment of the jury by showing it to be defective in the intellectual process employed in reaching the verdict. Caruthers' History of a Lawsuit, § 384; Crawford v. The State, 2 Yerg. 60; Booby v. State, 4 Id. 111; Hudson v. State, 9 Id. 407; Bennet v. Baker, 1 Id. 399; Johnson v. Perry, 2 Id. 570; Harvey v. Jones, 3 Id. 157; Norris v. State, Id. 333; Saunders v. Fuller, 4 Id. 518; Fletcher v. State, 6 Id. 256; Cochran v. State, 7 Id. 545; Nelson v. State, 10 Id. 518; Luster v. State, 11 Id. 170; Lewis v. Moses, 6 Coldw. 197; Galvin v. State, Id. 283; R. R. Co. v. Pillow, 9 Heisk. 253; Wade v. Ordway, 1 Baxt. 229; Junnaway v. State, 3 Id. 206. See, also, Hall v. Robinson, 25 Iowa, 91; Henly v. Luce, 31 Me, 246; Little v. Larrabee, 2 Id. and note; Jackson v. Dickson. 15 Johns. 309.

Motion overruled.

Beyond dispute a participation in the profits of a business is prima facie strong evidence of a partnership in it, but a loan to a person engaged in trade on condition that the lender shall receive a rate of interest in proportion to profits, or a share of the profits, does not of itself constitute the lender a partner, nor does a contract to remunerate a servant or agent of a person engaged in trade by a share of the profits, of itself, render such servant or agent liable as a partner.

On petition to charge Margaret Holst as a partner in the firm of J. C. Ward & Co., and to adjudicate her a bankrupt. She claims that the facts only show that she lent her money on a contract to receive one-fourth of the profits as interest on the loan. The creditors insist that she was a partner in fact, and certainly so as to creditors.

Vance & Anderson, for creditors.

Estes & Ellett, for defendant.

HAMMOND, J.-Partnership is a contract of two or more persons to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss in certain proportions. 3 Kent, 24. There is no difficulty in the ordinary course of busi

In re Ward & Co.

ness with the case of an actual partner, who appears in his character of an ostensible partner. The question as to the persons on whom the responsibility of partner ought to attach in respect to third persons arises in the case of dormant partners who participate in the profits of the trade and conceal their names. They are equally liable, when discovered, as if their names had appeared in the firm, and although they were unknown to be partners at the time of the creation of the debt. 3 Kent, 31. A partnership inter sesethat is, in relation to the persons engaged as between each other can commence only by the voluntary contract of the parties, expressed in their agreement, or implied from their dealings with each other and the outside world. 43 Mo. 391. But parties as to third persons, and sometimes even as between themselves, may become partners by the legal effect of their agreement, or of their acts and dealings, although they may not be aware of such legal effect, and may not believe themselves partners and may deny it. 31 Vt. 395.

It is urged by the creditors in this case that the simple fact that Mrs. Holst participated in the profits makes her, by operation of law a sharer in the losses and liable for debts, and that every one who has a share in the profits ought to bear his share of the losses. 1 Smith L. Cases, 381.

1

An agreement between persons to share in certain proportions of the profits of a business does not necessarily make them partners as to each other under circumstances which certainly do render them liable as such to third persons. Ware, 452. The rule of law formerly prevailing, that participation in the net profits of a business made the participant liable absolutely to third persons as a partner, has certainly been greatly modified in England and in this country. 83 Penn. St. 290. We have been favored by learned counsel with arguments on both sides, based upon a reference to the