nership transaction in which both parties had a community of interest in the capital stock employed in business, and also a community of interest in the profits resulting therefrom; and this being the case they were partners as to third persons, and liable as such. The fact that the real transaction is sought to be concealed under the guise of a lease, as is apparent, cannot change the legal effect of the agreement, and is unimportant in arriving at the real intent of the parties as expressed in the entire instrument.

The conclusion we have reached is, that the judgment appealed from should be affirmed, and it will be so ordered.

PARTNERSHIP-LIABILITY OF ONE HELD OUT As a Partner. -This ques tion is fully discussed in the extended note to Hahlo v. Mayer, 22 Am. St. Rep. 757; but see, also, the note to Fletcher v. Pullen, 14 Am. St. Rep. 361. PARTNERSHIP-WHAT CONSTITUTES.-A partnership is the contract relation subsisting between persons who have combined their property, labor, and skill in an enterprise or business as principals for the purpose of joint profit: Spaulding v. Stubbings, 86 Wis. 255; 39 Am. St. Rep. 888; Goldsmith ▼. Eichold, 94 Ala. 116; 33 Am. St. Rep. 97, and note, with the cases collected

PARTNERSHIP EXISTENCE, WHEN QUESTION OF LAW.-Where the terms of an agreement and the facts are all admitted, whether or not a partner ship existed is a question of law: Morgan v. Farrel, 58 Conn. 413; 18 Am. St. Rep. 282, and note; but whether the existence of certain facts constitutes a partnership often depends upon the intention of the parties as between themselves, and evidence of such intent should be received when any doubt exists in order to ascertain the rule applicable to third persons: Macy v. Combs, 15 Ind. 469; 77 Am. Dec 103, and note.

In the case of Dubos v. Jones, 34 Fla. 539, the question was presented whether the following agreement constituted the parties partners as to third persons:

“THIS AGREEMENT entered into this 21st day of September, A. D. 1885, by and between Robert H. Jones, and Daniel Bowen, doing business as firm of Jones & Bowen, of county of Duval, and state of Florida, of first part, and M. L. Hoover, of the same state and county, of the second part:

"Witnesseth: That the parties of the first part agree to sell and deliver to the party of the second part such groceries and goods usually kept in a grocery store as may be agreed on between the parties from time to time to be necessary to keep up and conduct the business carried on in the store of the party of the second part on lot ten (10) in block two (2) in South Jacksonville, Duval county, state of Florida, on the following terms and conditions, to wit: 1. That said goods are to be sold by the party of the first part to the party of the second part for the lowest wholesale market price, and one-half of the profits made on sale of said goods by the party of the second part in the manner hereinafter stated, said half of the profits being paid to parties of first part in consideration of the time extended party of second part in payment for said goods, and of time extended in payment of debts now due parties of first by parties of second part.

"2. That the mortgage of even date herewith from the party of the second part to the parties of the first part shall include as a lien thereon the

said goods as agreed herein to be sold, and shall secure the said indebtedmess due parties of first part herein mentioned.

"3. That the parties of the first part may place a person in said store of party of second part, who shall have the control and management of the books and business carried on by party of second part, and no debt shall be created in said business except on the consent of the parties of the first part.

"4. That the party of the second part shall be entitled to draw out of said business fifty dollars per month for his services in conducting the business of selling the said goods so placed in said store, and he shall give his entire time and attention to said business in consideration of said sum of fifty dollars per month, and the profits of said business to accrue to him as herein provided.

"5. That the proceeds of sale of all goods in said business shall be carefully kept and paid over each week to parties of first part on the debts now due them, and that hereafter may become due them, from the party of the second part for goods sold him as aforesaid, and on the other debts of party of the second part for goods in his said business.

"6. That at the end of two years the party of the second part shall be entitled to draw out or be paid one-half the profits of said business, if at that time all debts due parties of first part and all other debts of saia business are then paid, and the remaining one-half of said profits shall be paid to parties of first part, as part of purchase money of the goods sold to party of second part before that time aforesaid.

7. That the parties of the first part hereto shall not be liable for any debts heretofore created in said business of party of second part by him, or by Hoover and Lewis, nor hereafter created by said party of the second part, their only connection with this business being to furnish the goods to party of the second part on the terms herein expressed.

"8. That at any time when the parties of the first part have been paid their said claims due from party of the second part as herein stipulated, it shall be at the option of either of the parties hereto to treat and regard this agreement as no longer binding or of any effect; and, should the parties of first part find that the said business is not paying a profit above men tioned, it shall be at their option to withdraw from this agreement, and to cease to sell goods to party of the second part on the terms herein speci. fied. And that, unless otherwise mutually agreed upon hereafter by the parties hereto, it shall not be binding on the parties of first part to sell more than two thousand four hundred dollars worth of goods under this agreement.

9. That party of second part will renew lease of store at the end of one year according to the terms of his lease for same time from E. W. Gillen, if so requested to do by parties of first part. The salary of person placed in charge of business under paragraph 3 herein shall be paid out of receipts of business herein referred to."

In construing this agreement the court said: "We do not think the agreement constituted these parties partners inter sese. It provides, it is true, for a division between them of the profits of the business; and the law at one time in England, and in some of the American courts, treated such sharing of profits as the true test that established a partnership; par ticularly so as to third persons (Waugh v. Carver, 2 H. Black. 235), but this doctrine has become entirely obsolete, and is no longer law either in England or in this country: Cox v. Hickman, 8 H. L. Cas. 268; Denny v. Cabot, 6 Met. 82; Parchen v. Anderson, 5 Mont. 438; 51 Am. Rep. 65; Culley v.

Edwards, 44 Ark. 423; 51 Am. Rep. 614; Eastman v. Clark, 53 N. H. 276; 16 Am. Rep. 192; Boston etc. Smelting Co. v. Smith, 13 R. I. 27; 43 Am, Rep. 3: Beecher v. Bush, 45 Mich. 188; 40 Am. Rep. 465; Meehan v. Valentine, 145 U. S. 611; Plunkett v. Dillon, 4 Del. Ch. 198; Greend v. Kummel, 41 La. Ann. 65; Ex parte Tennant, In re Howard, L. R. 6 Ch. Div. 303; Mollwo v. Court of Wards, L. R. 4 P. C. App. Cas. 419; Polk v. Buchanan, 5 Sneed, 721. This agreement upon its face, and in express terms, repudiates the idea of a partnership between the parties inter sese, and shows clearly that the status thereby between Jones & Bowen on the one hand and Hoover on the other is that merely of debtor and creditor. . . . . The whole agreement, in all of its provisions, shows clearly that Hoover was already the debtor of Jones & Bowen, and that he was to continue to be such debtor, and in a larger sum; and that the instrument was designed to secure Jones & Bowen in the payment of that indebtedness. The law is now well settled that, where a person loans or advances money or goods to another to be invested in some business or enterprise, the lender to share in the profits as or in lieu of interest on, or in repayment of, such loan or advance, does not constitute a partnership; neither will it constitute a partnership as to third persons unless the acts of the parties in furtherance of the agreement between themselves amount to such a holding of themselves out as partners as that third persons are misled into a reasonable belief that a partnership exists in fact. To constitute a loan the money advanced must be returnable in any event. It is not a loan if repayment is contingent upon the profits, for in such case it is made, not upon the personal responsibility of the borrower, but upon the security of the business. Neither must the transaction be a mere device to obtain the benefits of a partnership without incurring its responsibilities, for in such case, whatever else the parties may call it, it will be construed to be a partnership: Authorities supra; 17 Am. & Eng. Ency. of Law, 850, et seq., and citations.

"The agreement under consideration provides, as before stated, for the repayment, in any event, by Hoover of the advancements made to him by Jones & Bowen, and we do not think it subject to the charge of being a mere subterfuge to secure the benefits of a partnership minus its responsi bilities. The conclusion reached by the referee, to the effect that this agreement, within and of itself, did not constitute Hoover, Jones & Bowen partners inter sese, or as to third persons, we think was correct. Parties however, who cannot be regarded as partners as between themselves, may, nevertheless, under certain circumstances, growing out of their acts, dec, larations, and dealings, be regarded as such as to third persons. Thus, a person holding himself out as a partner in a firm, or perinitting himself to be so held out, will be held liable as such as to third parties, whatever may have been his actual relations with the firm or its members. The doctrine now in the ascendancy, however, is that one not a partner in fact cannot be held liable to third persons on the ground of having been held out as such, except upon the principle that where third persons have been misled by such holding out, he is equitably estopped from denying that he is a partner, and consequently he is now held liable, as a general rule, only to such per sons as have been misled by or who have acted upon such holding out; or, as it is expressed by Justice Gray, in Thompson v. First National Bank of Toledo, 111 U. S. 529: A person who is not in fact a partner, who has no interest in the business of the partnership, and does not share in its profits, and is sought to be charged for its debts because of having held himself out, or permitted himself to be held out, as a partner, cannot be made liable upon

contracts of the partnership except with those who have contracted with the partnership upon the faith of such holding. In such a case the only ground of charging him as a partner is, that, by his conduct in holding himself out as a partner, he has induced persons dealing with the partnership to believe him to be a partner, and, by reason of such belief, to give credit to the partnership. As his liability rests solely upon the ground that he cannot be permitted to deny a participation which, though not existing in fact, he has asserted or permitted to appear to exist, there is no reason why a creditor of the partnership, who has neither known of nor acted upon the assertion or permission, should hold as a partner one who never was in fact, and whom he never understood or supposed to be, a partner, at the time of dealing with and giving credit to the partnership.' The same judge says further in the same case that 'there may be cases in which the holding out has been so public and so long continued that the jury may infer that one dealing with the partnership knew it and relied upon it, without direct testimony to that effect': 17 Am. & Eng. Ency. of Law, 879-881, and citations.

"It seems to be well settled also that the question whether the plaintiff was induced to change his position or extend credit by acts or declarations done or made by the defendant or his authority is, as in other cases of estoppel in pais, a question of fact for the jury, and not of law for the court: Thompson▾. First National Bank of Toledo, 111 U. S. 529; 17 Am. & Eng. Ency. of Law, 882; 1 Lindley on Partnership, sec. 53; Woods v. Duke of Argyle, 6 Man. & G. 928; Lake v. Duke of Argyle, 6 Q. B. 477.

"We have already seen that the agreement between the firm of Jones & Bowen on the one hand and Hoover on the other did not, in and of itself, constitute them partners inter sese or as to third persons, but that its provi sions, if carried out, involved the performance of such acts by the defendants as would tend to constitute such a holding of themselves out as partners as that third persons might readily be misled into the belief that they were partners in fact, and upon the strength thereof might extend credit to them as such, in which event the law would hold them liable as such, and they would be estopped to deny it. The feature of the agreement tending most strongly to this result is the provision for Jones & Bowen placing their agent in charge and control of the books and business carried on by Hoover, and taking charge of the funds arising from the sale of goods, and paying them out to the creditors of Hoover, and their control over the incurment of debts in the business of Hoover. All of these things tend strongly to mislead third persons into the belief that they were responsible for the business and its liabilities; but, as before shown, in order for them to be liable to third persons as partners, when they are not such in fact, in consequence of a holding out as such, it is incumbent upon the party seeking to establish the liability to show that he has been misled by the holding out, and that he has been induced thereby to extend credit upon the belief, created by the acts or declarations of the defendants, or, by their permission, through the acts or declarations of others, that they were partners."

In conclusion the court said that the plaintiff in this case "has failed entirely in his proof to show that any declarations or acts upon the part of Jones & Bowen have so misled him into a belief that they were partners of Hoover as to induce him to extend credit to the latter, and that would operate as an estoppel upon them to gainsay their liability as partners."

LIS PENDENS.-A purchaser of lands pendente lite takes his title therein subject to the final decree in the pending suit.

RES JUDICATA.-A DECREE IN A SUIT FORECLOsing a Mortgage, whether right or wrong, is binding on the parties to the suit and those purchas ing from them, or either of them, during its pendency, and it cannot be attacked collaterally if the court had jurisdiction of the parties and of the subject matter.

LIS PENDENS IS NO MORE THAN THE ADOPTION OF THE RULE IN REAL ACTIONS at common law, where, if the defendant aliens after the pendency of the writ, the judgment in the real action overreaches such alienation.

LIS PENDENS BEGINS FROM THE SERVICE OF THE SUBPŒNA after the filing of the bill. A purchaser from the defendant while the suit is pending acquires his interest subject to such decree as may be rendered on the hearing.

LIS PENDENS.-TO THE EXISTENCE OF A VALID LIS PENDENS three things are necessary: 1. The property must be of such a character as to be subject to the rule; 2. The court must have jurisdiction both of the person and of the res; 3. The res or property involved must be suffi ciently described in the pleadings.

LIS PENDENS. THE DESCRIPTION OF THE PROPERTY IN THE PLEADINGS is sufficient if any one reading them must be able to learn thereby what property is intended to be made the subject of the litigation. The legal maxim that that is certain which can be made certain applies to the question whether property is sufficiently described to create lis pendens. LIS PENDENS-AMENDMENTS.—If a bill originally so defective in its descrip tion of property, or, in the language of the prayer, as not to create lis pendens, is afterward cured by amendment in these particulars the lis pendens will commence at the time of filing the amendment, if the defendant has been served with process.

LIS PENDENS.-DELAY OR LAPSE OF TIME IN THE PROSECUTION OF A SUIT will not create any estoppel against the right to enforce the rules of lis