fact that all agreements as to which no particular form is demanded may either be proven as made expressly or proven as made by implica tion, the fact of this public use of the name, apparently that of a copartnership, must be given its due effect. At this point we return to Ex parte Sheen, 6 Ch. D. (1877) 235 It is true that it was held by the Court of Appeals that the mere fact that one who has held himself out to a small number of creditors as a copartner with a trader is not barred from proving against the trader, whatever may be his liabilities to the few persons with reference to whom he may be estopped; but Lord Justice James, in his opinion, at page 237, observes that there was no actual copartnership in the case, and "no ostensible partnership, no holding out to the world, that is, to creditors generally, that there was a partnership, * * * so as to make a joint estate.' This fairly implies that a hold ing out such as we have here may, at least to some extent, support a finding that there was a copartnership by implied agreement, or that the parties had drifted into the relationship of copartners in fact. This subject is treated sufficiently in Williams on Bankruptcy Prac tice (8th Ed.) 166, 167, where there is a discussion of reputed ownership, which, of course, does not exist in the United States to any definite extent, and also of an ostensible copartnership of the kind referred to by Lord Justice James, with some examination of the authorities on both these topics, which it is not necessary for us to follow out. It is plain that the original arrangement between the two brothers. did not contemplate a copartnership, but simply an intrusting by Henry to James of property belonging to Henry, to enable James to work it up for his own benefit. True it is that, in regard to the proposed corporation, the trustees of the estate of Henry Hudson cite Fay v. Noble, 7 Cush. (Mass.) 188, Bank v. Almy, 117 Mass. 476, and Ward v. Brigham, 127 Mass. 24, to the point that parties who join in the contemplated organization of a corporation do not thereby become copartners. Two of these cases relate to the general proposi tion that members of a de facto corporation which is defectively organized are not copartners, and the other to peculiar circumstances with regard to the relations among themselves of partners contemplat ing a corporation; the peculiar circumstances establishing no genera principle. None are at all in point here. The intention to form corporation slumbered so thoroughly, and so long, that it is of no effect. Probably the best definition of partnership is that found in the partnership act of 1890 (St. 53 & 54 Vict. c. 39), which reads a follows: "Partnership is the relation which subsists between per sons carrying on a business in common, with a view of profit." is necessary to note the significance of the words "carrying on business," which implies a relation entirely different from the en forced relation of tenants in common, as the owners of a ship d of a house, who must either let the property lie idle or keep it in som way occupied or used, deriving a return from such occupation o use. Various illustrations of the force of this distinction will b found in Pollock's notes to the act referred to, entitled "A Dige of the Law of Partnership," (5th Ed.) 2, 3. Mr. Justice Gray, in Meehan v. Valentine, 145 U. S. 611, 618, 12 Sup. Ct. 972, 36 L. Ed. $35, gives a definition almost precisely like that which we have cited from the partnership act, as follows: The requisites of a partnership are that the parties must have joined together to carry on a trade or adventure for their common benefit, each contributing property or services, and having a community of interest in the profits." The difficulty with definitions, like some of those brought forward by the trustees of the Henry Hudson estate, is that they put the agreement to share profits to the forefront. The right to share profits is, of course, an element in a true copartnership; but, when it is said that a copartnership involves an agreement to share profits, it goes beyond the legislative definition, and that of Mr. Justice Gray which we have quoted, and unnecessarily beyond them. The right to share profits, of course, exists; but the right may arise without anything in the nature of an express agreement, indeed, without anything in the nature of an implied one. The right to share profits is an indication of the existence of a copartnership, but it may result from an agreement to that effect, or it may flow out of the relationship which exists between the parties. It is true that the present case is embarrassed by the fact that, in the absence of any agreement as to the profits, in connection with the further fact that Henry Hudson conributed only assets, while James Hudson contributed only personal services, it may be difficult to determine how profits would have been shared, and therefore it is plausible to suggest that there could have been no profits, and consequently no partnership. NevertheJess, both of these details are met by Paul v. Cullum, 132 U. S. 539, 9, 10 Sup. Ct. 151, 33 L. Ed. 430, where it was observed that, in the absence of any evidence showing a different intention, partners ald be held to share equally both profits and losses. The result is that, whatever may have been the intention when Henry Hudson put the property into the hands of James Hudson to be managed by him, those gentlemen and the circumstances of the siness drifted entirely away from it, and the relations between tem must be determined by what afterwards ensued. Those relaions embraced all the elements necessarily included in the definitions given by the partnership act and by Mr. Justice Gray; and is impossible to characterize the substantial result except as has en done by the learned judge of the District Court. The question of interest passed on by the learned judge of the strict Court was fully explained by us in Hutchinson v. Otis, 115 d. 937, 53 C. C. A. 419, in an opinion passed down on May 22, 2, which is the same case reported as Hutchinson v. Otis, 190 U. S52, 23 Sup. Ct. 778, 47 L. Ed. 1179. His decision in regard thereto nformed to the rule stated by us, and was undoubtedly correct. The decree of the District Court is affirmed, and the appellee recovers his costs of appeal against the appellants as trustees. CITY OF GRAND FORKS v. ALLMAN. (Circuit Court of Appeals, Eighth Circuit. April 22, 1907.) No. 2,465. 1. MUNICIPAL CORPORATIONS-ACTIONS AGAINST FOR PERSONAL INJURY-CONDITIONS PRecedent. Under Rev. Code N. D. 1899, § 2172, which requires as a condition prece dent to the maintaining of an action against a city for a personal injury that a verified claim setting forth the time, place, cause, and extent of the injury shall be presented to the mayor and common council for audit and allowance within sixty days after the happening of the injury, a claim is duly presented where it is presented to and filed by the city auditor within the specified time. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, § 1704.] 2. SAME-OBSTRUCTION IN STREETS-DUTY TO REMOVE. It is the duty of a city whenever a dangerous obstruction appears in its streets, even though it was unauthorized, to use reasonable diligence to remove it, and what constitutes such diligence depends on the facts in each case, and especially upon the fact whether the existence and dangerous character of the obstruction was known, or in the exercise of reasonable supervision and diligence could have been known by the city in time to have caused its removal before it produced the injury complained of. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations. §§ 1612-1615.] 3. SAME-ACTION FOR PERSONAL INJURY-QUESTION OF NEGLIGENCE. In an action against a city to recover for a personal injury, it was shown that, when walking at night on one of the most frequently used streets of the city, plaintiff fell over a loose plank and was injured, that some time before a water pipe had been temporarily laid in the street upon the pavement and covered to prevent freezing, and that the plank in question had been placed on the covering to keep it in place. Although it was not so placed by authority of the city, it had been there for a week or more prior to the injury. Held, that under such evidence the question of the city's negligence was properly submitted to the jury. [Ed. Note. For cases in point, see Cent. Dig. vol. 36, Municipal Corporations, $$ 1745-1752.] 4. TRIAL-VERDICT-CONSISTENCY WITH SPECIAL FINDINGS. A general verdict for the plaintiff in an action against a city to recover for an injury received by plaintiff by falling over an obstruction in a street, returned under instructions which authorized such verdict if the jury should find that the obstruction had been there for such length of time that the city in the exercise of reasonable care should have known of it, is not inconsistent with the answer to a special interrogatory stating that the jury were unable to find the length of time the obstruction had been there, where the evidence tended to show that it had been there for a number of days, but left the exact length of time uncertain. In Error to the Circuit Court of the United States for the District of North Dakota. Scott Rex, for plaintiff in error. C. J. Murphy and Fred S. Duggan, for defendant in error. ADAMS, Circuit Judge. Allman, the plaintiff below, brought this suit against the city of Grand Forks to recover damages for injuries sustained by him by falling over an obstruction in one of the public streets of the city. He recovered a judgment in the Circuit Court, and the city on this writ of error challenges it in argument and brief for three reasons: (1) Because there was no preliminary presentation of the claim for damages given to the city as required by section 2172 of the Revised Code of North Dakota of 1899; (2) because there was no substantial proof of negligence on the part of the city; (3) because the verdict was in disharmony with the special findings made by the jury. Was there a proper preliminary presentation of the claim? Section 2172 of the Code requires as a condition precedent to maintaining a suit of this kind against the city that the claim "shall within sixty days after the happening of such injury or damage, be presented to the mayor and common council of such city by a writing signed by the claimant and properly verified, describing the time, place, cause and extent of the damage or injury." On February 6, 1905, within 60 days after the injury, which occurred on December 17, 1904, plaintiff presented to the city auditor a claim for damages corresponding to the requirements of section 2172, supra, and the same was filed by the auditor. A regular meeting of the council was to be held that evening, but for want of a quorum it was not held until February 16th, when the auditor advised the council of the filing of the claim and was instructed to return it to plaintiff with the information that, when presented according to the requirement of the statutes, it would be considered. A brief reference to the statutes and decisions of North Dakota will serve to show that the filing of the claim with the auditor was a presentation of it to the mayor and council within the meaning of the law. The mayor and common council of each city is constituted a board of audit of such city. Section 2171, Rev. Code 1899. The city council consists of the mayor and aldermen. Section 2172, Rev. Code, 1899. Only one writing signed by the plaintiff and properly verified is contemplated by section 2172, supra. When so executed and verified, it is to be presented to the mayor and council "for audit and allowance." Section 2174. Giving due consideration to these provisions of the statutes considered collectively, we cannot agree with counsel for the city that the claim should have been presented to the mayor separately from the council. The claim manifestly should be so presented to the body authorized to audit it as to secure the attention of that body, and, when that is done, it would seem that the requirement of the statutes has been complied with. It was therefore properly presented to the mayor and common council sitting together as a board of audit. The mayor constituting one member of the council and one member of the board of audit was, to all intents and purposes, presented with the claim when it was presented to the council. There obviously must be some way of presenting a claim which the city cannot, by its own action, thwart or prevent. If it could nly be presented to the council when in session, that body, as illustrated in this case, might fail to meet during the period within which the claim was required to be presented, and thus by its own wrong work a defeat of a meritorious claim. It was sought to be presented on February 6th, when a regular meeting of the council should have been held, but which, without any fault of the complainant, was postponed until after the statutory time for presenting the claim had elapsed. The city auditor is by law required to keep his office at the place of meeting of the council or elsewhere as directed by the council; to keep a record of the proceedings of the council; to be the custodian of the corporate seal and of all papers and records of the council; and to audit and adjust all claims and demands against the city before they shall be allowed by the council. Sections 2168, 2170, Rev. Code, 1899. It appears from these provisions and from the obvious necessity of providing an effective way of presenting a claim to the final auditing board that the auditor is clearly intended to be the medium of approach to the council, and that, when a claim is presented to and filed with him for audit and adjustment, it is presented to the council; and this, we understand, has been so held in the recent case of Pyke v. City of Jamestown, decided by the Supreme Court of North Dakota, February 15, 1906, and reported in 107 N. W. 359, wherein, after referring to the legislation just pointed out, it is said: "The auditor is the proper official channel through which all claims for damages reach the city council and is the official representative of the city council for receiving all claims and demands against the city, including claims for personal injuries." In the last-mentioned case a large number of authorities are cited, and the conclusion there reached forcibly commends itself to our approval. Was there sufficient evidence of negligence to justify the jury's finding to that effect? The streets of a city are made and maintained at public expense for the use of its citizens and others who may lawfully pass over them, and a duty is cast upon a city to exercise all reasonable supervision, care, and precaution to maintain them in a reasonably safe condition so as to avoid, as far as possible, injury to the traveling public. This general rule necessarily implies a minor one that the city must, whenever even an unauthorized, dangerous obstruction appears on its streets, use reasonable diligence to remove it. This duty is imposed upon defendant city by statute (section 2148, Rev. Code 1899, subd. 10), as well as on general principles of law. Barnes v. District of Columbia, 91 U. S. 540, 23 L. Ed. 440; District of Columbia v. Woodbury, 136 U. S. 450, 10 Sup. Ct. 990, 34 L. Ed. 472. What is such diligence depends upon the facts of each case, and particularly upon the fact whether the existence and dangerous character of an obstruction has been known, or in the exercise of reasonable supervision and diligence could have been known, by the city long enough to enable it to remove it or cause it to be removed before an accident happens. The foregoing propositions of law are not disputed by either side, and were in substance and effect given by the learned trial judge to the jury in this case. What are the facts? Plaintiff on the evening of December 17, 1905, when dark, was walking with two friends from East Grand Forks to Grand Forks. He had just crossed the bridge connecting the two places, and was walking from the west |