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the plaintiff to discontinue, which is all that is necessary to sustain this judgment."

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COMMON WORDS AND PHRASES. OLESTATION.- Adultery on the part of the wife, resulting in the birth of a child, is not “molestation” of the husband within the meaning of a covenant in a deed of separation. Fearon v. Earl of Aylesford, 12 Q. B. Div. 539. Denman, J., said: "Molestation must be, as it seems to me, by some act. The fact of having a child is not an act done by the woman herself in the sense of being a voluntary act. If the act of adultery is not per se an act of molestation, how can it become an act because it is followed by the birth of a child?" But it was left to the jury to say whether holding out the child as the son and heir of the defendant "molestation."

was

should not be exercised against the right, except in cases where the rights of the defendant might be prejudiced. Under the statute however, authorizing a judgment to be rendered in case of set-off for any balance found due the defendant upon the trial, the rule is and should be different. In such a case really two suits are pending before the court to be tried at the same time. In the one the plaintiff has the affirmative of the issue, and in the other the defendant has the affirmative. It is only after the trial, when the extent of each party's claim has been ascertained, that the liquidation of the smaller claim occurs by way of set-off, or can be made by the court or jury. The statute requires the defendant to bring forward his claim for adjudication at the time the plaintiff brings his suit, and thereby determines the time when the defendant shall have his claim adjudicated, at the peril of doing so at his own expense. In all other respects the case stands as though two separate suits were brought to determine the rights of the parties, and I fail to see why both cases should not be governed by the same rules, and receive the same treatment at the hands of the court. Simple justice requires this, and I can see no reason why the equitable rules upon which the whole doctrine of set-off is based should not be carried out in the practice in these cases. Adopting this rule the plaintiff would have no more right to discontinue the defendant's suit than the latter would that of the former; and such, I think, should be the law. These views find support in the following authorities, which I think should govern this case: Thomas v. Hill, 3 Tex. 269, 270; Bradford v. Hamilton, 7 id. 55, 58, 59; Francis v. Edwards, 77 N. C. 271, 275; Riley v. Carter, 3 Humph. (Tenn.) 230; Rees v. Van Patten, 13 How. Pr. 258; Cockle v. Underwood, 3 Duer, 676; Van Alen v. Schermerhorn, 14 How. Pr. 287." Cooley, C. J., and Champlin, J., dissented, Cooley, J., observing: "The Texas cases are not in point, as they are decided under the civil law, which does not prevail in this State. Egery v. Power, 5 Tex. 501; Walcott v. Hendrick, 6 id. 406; Bradford v. Hamilton, 7 id. 55. The case of Francis v. Edwards, 77 N. C. 271, was decided upon a construction of the code of that State, and therefore has no bearing. In Riley v. Carter, 3 Humph. 230, the defendant had obtained judgment for his set-off in justice's court, and the plaintiff removed the case to the Circuit Court by certiorari, and then, in that court, was given leave to dismiss his suit. This was palpable error, and the court so held; but we discover no analogy between that case and this. The defendant had his judgment, and unless error was shown had a right to retain it. The three New York cases of Cockle v. Underwood, 3 Duer, 676; Rees v. Van Patten, 13 How. Pr. 258; and Van Alen v. Schermer-policy for a less sum. The company was held liahorn, 14 id. 287, are not in point, because decided under the State code; but so far as they can be considered as having a bearing, they are against the defendant instead of for him, for they all recognize the power of the court in its discretion to permit

To. This sometimes means "toward." In Moran v. Lezotte, Michigan Supreme Court, June 11, 1884, the court said: "The difficulty here is in harmonizing the part of the description which extends the tract conveyed to the rear of the said Gazette Trombley land,' with the part which specifies the quantity. If the rear line of the tract is to be the rear boundary of the parcel conveyed, this is impossible. The question then is whether effect can be given to every part of the description without making the rear line of the tract the rear line of the parcel conveyed. And the solution of this question must depend upon the meaning to be imputed to the words to the rear,' as here made use of. The word 'to,' as commonly made use of, conveys to the mind the idea of movement toward and actually reaching a specified point or object, and the meaning is not satisfied unless the point or object is actually attained. But this use is not universal; the word is sometimes employed in a sense that embraces a part of this idea only, or simply as a word of direction, as we say to the north or to the south, when we mean in those directions merely; or as in the army an officer might command a wounded man, or any impediments, to be taken to the rear. In many cases the word has a meaning nearly synonymous with 'toward,' and if in the Bonay deed it has been used in that sense all the parts of the description can be perfectly harmonized."

DROP. This word received construction in Winne v. Niagara Fire Ins. Co., 91 N. Y. 185. The general agent at a certain place sent the company a statement of policies to expire in a certain month, which was called the "expiration sheet." Opposite the plaintiff's policy the company wrote "drop," and returned the sheet to the agent. He construed the word to mean "decrease," and issued a new

ble on this, on the ground that the word was am-
biguous, and the principal was bound by its agent's
So "drop" does
adoption of one of its meanings.
not necessarily mean "let go of" or "discontiune,"
but may mean "lower," "reduce," "diminish.”

SHOW, INDICATE.-In Coyle v. Commonwealth, Pennsylvania Supreme Court, January, 1884, the court said: "It is true, perhaps, that what is merely indicated by certain facts may not be shown by them. Although the words 'show' and 'indicate' are sometimes interchangeable in popular use, they are not always so. The present ordinary use of the words discioses a difference in signification, and that difference is, perhaps, more recognizable when these terms are applied to the law or to medical science. To show' is to make apparent or clear by evidence, to prove, whilst an 'indication' may be merely a symptom, that which points to or gives direction to the mind."

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Not exceeding in quantity or quality or value what
the plaintiff was in the habit of ordinarily provid-
ing for himself and his family at that time, and
keeping on hand for his and their reasonable wants,
in view of their means and habits in life, they were
to be regarded as 'wearing apparel in actual use' of
a person arriving in the United States, even though
they had not been actually worn.
If a person resid-
ing in the United States should purchase wearing
apparel here, in a condition ready for immediate
wear without further manufacture, intended for his
own use or wear, suitable for the immediately ap-
proaching season of the year, and not exceeding in
quantity, quality or value the limit above men-
tioned, no one would hesitate to say that such
wearing apparel was in actual use' by such person,
even though some of it might not have been actu-
ally put on or applied to its proper or personal use.
The word 'actual' in the lexicon has as a meaning
'real,' as opposed to 'nominal,' as well as the mean-
ing of 'present.' 'In use' is defined to be 'in em-

PRESENCE.- In People v. Bartz, Michigan Supreme Court, April 23, 1884, the court said: "Was the offense committed in the presence of the officer? If it was, he was authorized to make the arrest without a warrant. I think it was committed in his presence. The distance was the width of the avenue. He was in sight of the person discharging the pistol, and did not lose sight of him while pur-ployment;' 'out of use' to be 'not in employment; ' suing to make the arrest. Had the shooting occurred in the day-time no such question would be raised. A person's presence does not depend upon whether he can be distinctly seen or discerned by another. An assemblage of persons in a room lighted with gas do not cease to be present when the gas is turned off and they are left in total darkThe presence of the officer in this case was so apparent to respondent that he deemed it prudent to absent himself as soon as he discharged the revolver. The court instructed the jury, as matter of law, that when a pistol is fired off in that way the testimony tended to show this was so. The officer could see the flash of the pistol and hear the shot, and the person who fired the shot could have been in sight, if it had been light, so he could have seen him. It was sufficiently in his presence in the meaning of the law."

ness.

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'to make use of, to put to use,' to be 'to employ, to derive service from.' These definitions aid in showing that it is too narrow a construction of the words 'in actual use,' as applied to this case, to say that they require that the wearing apparel should have been actually worn. It is manifest that by the words 'in actual use,' Congress did not intend that those words should be limited to wearing apparel on the person at the time. They must have a more extended meaning. The test of having worn the article, as a criterion whether it is 'in actual use,' is arbitrary, and without support in the statute. An article of wearing apparel bought for use, and appropriated and set apart to be used by being placed in with, and as a part of, what is called a person's wardrobe is in common parlance, in use, in actual use, in present use, in real use, as well before it is worn as while it is being worn or afterward. The test of wearing must therefore be rejected. What test shall be adopted? We are aided by the other language of the statute in say

must not be 'merchandise,' and must not befor sale.' These words of limitation, on the one hand, serve to indicate that on the other, if the articles, being wearing apparel of the arriving passenger, are fairly personal effects of his, and not merchandise, and not for sale, a construction of the words in actual use' is to be sought for which will carry out the spirit and intent of the entire provision of the statute, and while it comports with the ordinary habits of passengers and travellers, will not open the door for fraud. Such a construction we believe that one to be which we have laid down for

ACTUAL USE.-In Astor v. Merritt, United States Supreme Court, April, 1884, the court thus construed the words "wearing apparel in actual use." "It is contended here for the defendant that un-ing that the articles must be 'personal effects,' and worn wearing apparel, purchased for an approaching season, cannot be exempt from duty, as in actual use,' before that season has arrived, while wearing apparel proper for the season of arrival from abroad may, unless there is a want of good faith, be considered as in actual use,' whether it has been already used or not. We are of opinion that the court should have given a different construction from that which it gave to the statute, as applicable to the facts of this case. If the articles in question were: 1. Wearing apparel owned by the plaintiff, and in a condition to be worn at once without further manufacture. 2. Brought with him as a passenger, and intended for the use or wear of himself or his family who accompanied him as passengers, and not for sale, or purchased or imported for other persons, or to be given away. 3. Suitable for the season of the year which was immediately approaching at the time of arrival. 4.

a case like the present. As regards citizens of the United States returning from abroad, and foreigners visiting this country, it cannot be supposed that Congress intended they should have worn all the wearing apparel they bring, or else pay duty on it, or that they shall not bring with them, free of duty, wearing apparel not worn, bought in good faith

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."

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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

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

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ordinary and popular sense of the word. This was restricted to the universal implements of household service, which every family was expected to have 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,”

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."

PARTNERSHIP BY FARTICIPATION IN PROFITS.

HILE the uncertainty in which the law often is involved by conflicting decisions is to be deplored, 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

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

deplorable and bewildering confusion in which that 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.

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."

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."

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 extinguished?

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. trine partners as to creditors, and liable as such; and yet what lawyer or judge would be willing to incur the 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 eutitled if the fact is not so, and B. has not so represented?"

Under these authorities it is clear that the question of liability to creditors in England depends entirely upon the existence of a partnership inter se. If a partnership has been established between the parties, of course all the partners are responsible for firm debts; but no one can be charged as partner who is not a partner in fact, unless he has by his acts or declarations estopped himself from claiming that he is not a partner.

There are therefore only two grounds of liability to creditors; the party sought to be charged as partner either must be a partner in fact or he must have estopped himself from denying the existence of a partnership relation between himself and another.

Mr. Lindley, after reviewing the English cases,

"In fact

comes to this sensible conclusion. He says: the strong tendency of the above decisions is to establish 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 unsound and unjust is manifested by the numerous exceptions to the rule which have been established in cases in which the rule could have been applied as reasonably 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 receive a certain percentage of profits as compensation for services does not render the participaut 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. Eckhardt, 1 Den. 341; S. C., 3 N. Y. 132; Loomis v. Marshall, 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

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