ant was in fact dead, a belief justified by the fact that she had been absent for more than seven years, and the most diligent inquiries among her friends and acquaintances could discover no trace of her. And it is insisted for the defendants that the administration of Whitly should be held so far valid as to constitute a protection to the innocent parties who, in good faith, paid to him money due the complainant. A similar case has never before arisen in this State so far as we know. It is a question that has recently attracted some attention. Previous to the decision of the Court of Appeals of New York, in 1875, in the case of Rodrigas v. East River Savings Institution, 63 N. Y. 460, it seems not to have been doubted that such an administration would be absolutely void. Chief Justice Marshall said such an act, "all will admit, is totally void” (Griffith v. Frazier, 8 Cranch, 9), and there are numerous dicta and several decisions to the same effect. Pinson v. Ivey, 1 Yer. 306; Allen v. Dundas, 3 Tenn. 125; Wilson v. Frazier, 2 Humph. 30; Jochumsen v. Suffolk Bank, 3 Allen, 87; 2 Taylor on Evidence, §§ 1490 and 1523. The case in 63 N. Y., before referred to, raised the direct question. Administration had been granted upon the estate of one who had been absent, and not heard from for more than seven years, and money collected from his debtor. It turned out that he was not in fact dead, and the question was whether the payment made by the debtor was a protection against a sound demand. The judges were divided in opinion four to three- the majority holding the payment a protection. The decision has been severely criticised by Judge Redfield in 15 American Law Register. It is fair, however, to say, that the opinions present that side of the question with all its force, and show that at least something may be said in its favor. The argument may be briefly stated thus: Upon proof of death the surrogate was compelled to act and grant administration-proof of seven years' absence without being heard from was prima facie evidence of death which the surrogate might be unable to rebut, and therefore he was compelled to act and grant the letters of administration-armed with these letters the administrator could demand payment, and the debtor could not resist, and therefore it being a payment compelled by law, the debtor ought to be protected, especially as it is the act of the supposed decedent in remaining absent without communicating with his friends for more than seven years that causes the injury, and consequently he, rather than the debtor, ought to suffer. The decision, however, was to some extent placed upon the statutes of New York, which were assumed to be peculiar in this respect- that is to say, before administration can be granted the fact of the person dying intestate shall be proven to the satisfaction of the surrogate, who shall examine the person applying touching the time, place and manner of the death, and may examine any other person, and for that purpose compel their attendance as witnesses. While it is conceded that in general the finding by the court of the fact upon which the jurisdiction depends is not conclusive of the jurisdiction, yet it is maintained that as in this instance the court was required to hear evidence and determine the facts, the determination must be conclusive until revoked, so far as concerns third persons who had acted upon the faith thereof. It does not seem clear that an administration granted under such a statute would in this respect be different from administration granted under a statute simply authorizing the granting of administration upon the estates of deceased persons, but it is unnecessary in the present case to pursue this branch of the inquiry. The force of the argument in favor of the validity of the administration seems to apply especially to a case of this character, where the assumption of death rests upon the fact of seven years' absence without being heard from, and the hardship of requiring a debtor, who has recognized an administrator appointed under such circumstances, liable to a second payment seems, peculiarly pointed. It must, however, be in principle immaterial what the proof of death may be as to the effect of the judgment. Whether the court find or assume the fact of death upon proof of seven years' absence, or upon testimony of witnesses directly to the point, the question must be the same, that is to say, it is the finding or assumption of the fact of death by the probate court, conclusive until revoked by the same court, or reversed on appeal, for we have no statutes authorizing administration to be granted upon proof of seven years' absence without being heard from. It is simply a common-law rule of evidence, and it has no more force than any other evidence that may turn out to be untrue; administration granted upon such evidence is no more lawful than if granted upon false testimony of witnesses. It may be the misfortune of the parties in interest in either case, that for the time being they are unable to show the real truth. In such a case there is real hardship in requiring a debtor to pay the second time, but such is always the effect of holding, as courts are often compelled to do, that former judgments have been rendered without jurisdiction. The defendants in this case were unable to defeat the demand of Whitly, because they were unfortunately unable to prove the real truth-such misfortunes occur. The hardship to the debtor cannot be regarded greater than to hold the creditor bound by an administration of his estate in his life-time. To deprive him of his property and rights by a proceeding of this character, to which by no sort of construction can he be regarded as a party, is violation of first principles. It is said, however, that it is the fault of the supposed decedent in remaining absent for seven years without communicating with friends that gives rise to the presumption of death, and causes the injury, and he ought, therefore, to be bound by his own acts. The seven years' absence may be willful, or it may be the result of insanity, imprisonment or other misfortune. The failure of friends and acquaintances to be informed as to the residence of the absent one, or that he still lives, may be the result of accident or other cause. In what cases the conduct of a person in remaining absent, and conniving at the acts of a pretending administrator, should be held fraudulent and an estoppel, it is unnecessary to inquire, as such is not the present case. Whitly, to whom administration was granted as next of kin, turns out to be in no wise related to complainant, and she could not have anticipated such a proceeding, or be held to have connived at it by remaining absent. A debtor in a case like the present could always obtain the indemnity which in this case was obtained by applying to a Court of Chancery, that is, a bond of indemnity against the contingency of the creditor returning alive - an indemnity that perhaps ought to be provided by statute, and there could be no more hardship in requiring the debtor to look to such a bond for indemnity than in requiring the creditor to do so. The money, when thus paid, should be recovered back either by the debtor who had paid it, or by the creditor who returns alive; and if the security of the bond fail, it would be as great a hardship, to say the least of it, to require the creditor to lose it as to throw the loss upon the debtor. Therefore the question of hardship is out of the way, and the fact that the administration was granted upon proof of seven years' absence forms no exception to the general rule-and we return to the question whether administration upon the estate of a living person is valid. Has a probate court, under our statute, juris demnation was granted in two different counties about the same time. Judge Reese said the letters granted in the county other than the county of the intestate's residence were void; other similar cases are referred to in the case of Jochumsen v. Savings Bank, 3 Allen, 87. If the judgment of the probate court as to the residence of the intestate is not free from a collateral attack, it can hardly be said that the judgment of the court as to the death of the party can stand upon a diction to grant administration otherwise than upon the estates of deceased persons? Our statutes have not the supposed peculiarity of the statutes of New York; they simply authorize administration upon the estates of deceased persons, and if the person be not dead, the court would be acting ultra vires to appoint an administrator. But it is said the probate court has jurisdiction to ascertain the fact of death, and its judgment finding that fact is conclusive until revoked or reversed. The general principle is, that the juris-higher ground. In fact, so far as our researches have diction being conceded the judgment is conclusive of all matters involved; but if the jurisdiction be disproved, then the judgment is void for all purposes. If it be conceded that the jurisdiction rests upon the existence of a particular fact, then it will not do to say that the finding of that fact by the court is conclusive of its own jurisdiction. for this would be, to use a common expression, "reasoning in a circle." The judgment is conclusive if the court had jurisdiction, and its judgment that it had jurisdiction is conclusive of the jurisdiction. There may be in some cases confusion as to what constitutes the jurisdictional facts, but this would seem to be about as clear an illustration of it as could be found: That a probate court has assumed that a certain person is dead, and has granted administration upon his estate, when, in fact, he was not dead. A similar illustration is given by Chief Justice Marshall; he says: "If by any means whatever a prize court should be induced to condemn as prize of war a vessel which was never captured, it could not be contended that the condemnation operated as a change of property. The proper distinction is illustrated in the case of Allen v. Dundas, 3 T. R. 125, where it was held that payment to one named as executor in a forged will which had been presented and allowed in the prerogative court was a protection against the demand of one who had procured the proceedings on the forged will to be set aside and himself appointed administrator, this upon the ground that the person being dead the court had jurisdiction; but the judge said that if the person was not in fact dead, the whole proceedings would be void-so that the jurisdiction rests upon the fact of death, and this being clearly shown untrue, it must result that the entire proceeding was without jurisdiction and void. For at least it sounds almost absurd to say that any man is to be bound by the judgment of a probate court that he is dead. The argument that the court has jurisdiction to ascertain the fact of death is fallacious. For this must assume that the court may decide the question either way, and if it conclude that the person is not dead, then it has no jurisdiction for any purpose. While the court may hear evidence of the death, the fact is generally assumed, and if the court undertake to put its finding of the fact in the form of a judgment, it gives it no greater validity. This conclusion is sustained by the great weight of authority; the direct question was fully considered in a case precisely similar by the Supreme Court of Massachusetts, and this view held by the unanimous opinion of the court. Jochumsen v. Savings Bank, 3 Allen, 87. The principle is directly involved in the case of Thompson v. Whitman, 18 Wall. 457. By the laws of New Jersey it was made unlawful for any one not at the time a resident or inhabitant of the State to gather clams, oysters or shell-fish in the waters of that State, and the law authorizes the seizure of the vessel and its forfeiture, which may be declared by any two justices of the peace of the county in which the seizure occurred. The suit was in the United States court against the sheriff who had carried away the vessel, the defense was the judgment of condemnation of two justices of the peace of New Jersey, which judgment recited the fact that the vessel had been seized in their county. This was held not conclusive, and it being shown that the seizure was not in the county, the judgment of con gone, the case of Rodrigas v. East River Savings Institution stands alone, and even that decision seems to have been rendered doubtful upon a second hearing of the case. See Melia v. Simmons, 19 Alb. L. J. 198. As a further argument against the validity of the administration we need only see to what it would lead. If the administration was valid until revocation, as argued in the present case, then it must result that the decree of the Chancery Court in the bill filed by Whitly to collect these notes was likewise conclusive, for in that view it was a bill filed by one who was for the time being properly authorized to act as administrator to collect assets due the estate, the proper defendants were made, and the court had jurisdiction of the subject-matter, and the decree rendered in the cause must in that view be held conclusive upon all parties. But suppose the decree had been in favor of the defendants in the cause, and no such notes had ever been executed, or that they had been paid, would the complainant in the cause be bound by the adjudication? Is it possible that she could thus lose her property and rights by a proceeding to which she was in no seuse a party. The decree was in fact for only part of the debt. Without attempting to further follow the discussion into refinements it is sufficient to say that it will at last bring us back to the plain common-sense view of the question, to which we think there is no sufficient answer, and that is, that there is no law for administrating upon one's estate until after he is dead, and that no living man is bound by the adjudication of a court that he is dead. It might be different if we had a statute such as exists in Rhode Island, or such as the New York court seems to have construed theirs to be, providing that after an absence for a given time one's estate may be administered as if he were dead, subject only to his right to reclaim the proceeds, in the event he return; even then it would be a question whether this would not be depriving a man of his property without due process of law. See Albany Law Journal of 15th May, 1880, p. 383. But at any rate, we have no such statute. We hold the entire proceedings void. We also hold Whitly, and his sureties on his bond of indemnity, liable to the extent of the penalty for the money received by him. The amount thus realized will be paid to complainant in exoneration to that extent of the trust property. 1 Lea, 586. It appears that some of the persons to whom Whitly distributed the fund have voluntarily paid to complainant part of the amount; an account of this, as ordered by the chancellor, will be taken, and the amount credited on the decree on the indemnity bond. Under the circumstances we disallow interest during the war, and until 1st June, 1865, in accordance with our holding in similar cases, upon the ground that the parties were for the time separated by the lines of the hostile armies, and occupying toward each other the relation of public enemies between whom commercial intercourse was forbidden. With this modification the decree of the chancellor will be affirmed, and the cause remanded, and the costs of this court divided. Freeman, J. dissented. MCFARLAND, J. (upon a petition for a rehearing). We have been asked to rehear this case on account of its novelty. The only additional argument offered is a review of the question in the American Law Review of May, 1880. This article concedes that the weight of authority is in favor of our conclusion, and refers to additional authorities in its support that we have not had access to. Moore v. Smith, 11 Rich. Law (S. C.) 569; Melia v. Simmons, 45 Wis. 334. The author only undertakes to say that something may be said on the other side of the question, and puts forth somewhat doubtingly the suggestion that the jurisdiction does not depend upon the fact of death, but upon the allegation of the fact in the application for letters of administration. If disposed to enter further into the discussion we think it could be shown that this position is unsound, but we are content to rest our conclusions upon the reasons and authorities already given. The other points in the petition have been fully considered in the foregoing opinion. As to the interest after June, 1865, while it is true that complainant was absent with the notes in her possession, so that they could not have been paid, yet it is not shown that the defendants were ready, or desired to make payment, or that they lost the interest. Petition for rehearing dismissed. WHEN JOINT ENTERPRISE IS NOT PARTNERSHIP. RHODE ISLAND SUPREME COURT, MAY 29, 1880. BOSTON & COLORADO SMELTING Co. v. SMITH. Agreement under seal between A and B by which B was to loan A $5,000 for one year, or indorse his note for that amount for that time, and also indorse his notes to an additional amount not exceeding $2,000 if B thought such sums required for A's business. For this A was to pay B ten per cent of his net business profits of the year, and two per cent of his net profits for each $1,000 indorsed for him over said sum of $5,000. A also agreeing to conduct his business to the best advantage, and to keep accurate accounts thereof to be at all times open to B's examination. Held, an executory agreement which if carried into effect would make A and B copartners neither as between themselves nor as to third persons. Held, further, that the lenders having no voice in the management of the business and no interest in the capital, the agreement was for a loan of money or credit in which a percentage of profits took the place of interest. Held, further, that such a contract did not, according to the later English cases, create a partnership at common law. A brought assumpsit against B and others whom A claimed to be copartners of B for goods furnished them under a sealed agreement executed by A and B. Held, that the action would not lie. As against B, A's claim rested on a specialty, and as B alone could not be made liable in assumpsit, so B in company with others could not be held in assumpsit. Semble, that if a partnership existed between B and his codefendants, the partners who did not execute the sealed agreement could only be reached by a bill in equity filed by A. A SSUMPSIT. Heard by the court under the subjoined stipulation. George Fuller and James M. Ripley, for plaintiff. DURFEE, C. J. This is an action of assumpsit for goods sold and delivered by the plaintiff corporation to the defendants, who are alleged to have been copartners in business at the time of their delivery. The names of the defendants are, first, William T. Smith, and second, certain persons constituting the firm of Mason, Chapin & Co., to wit: E. Philip Mason, William P. Chapin, Charles S. Bush, and Samuel L. Peck. Two questions, one of which may be decisive of the case, are submitted to the court for determination, preliminarily to the full trial. The first is, whether the following agreement between the defendant William T. Smith and the other defendants is evidence of a copartnership between them. "This indenture, made this twenty-fifth day of April, in the year eighteen hundred and seventy-eight, between William T. Smith, of Providence, in the State of Rhode Island, of the first part, and Mason, Chapin & Co., of the said Providence, of the second part, Witnesseth: That in consideration of the agreements herein made, the said party of the first part covenants with the said parties of the second part, that on the first day of May, in the year eighteen hundred and seventy-nine, he will pay to them ten per centum of the net profits of the business, carried on during the year preceding the day last named, under the name and style of 'Elmwood Chemical Works, William T. Smith, Treasurer,' in consideration of their loan to him of $5,000, or of their indorsements for him to that amount, for and during the year aforesaid, and will also pay to them two per centum of said net profits for each sum of one thousand for which they may indorse for him during said year in addition to said sum of $5.000; and that he will conduct said business during said year to the best advantage, and keep accurate accounts thereof upon books which shall be at all times open for examination by them. "And that the said parties of the second part, in consideration of the foregoing agreement, covenant with the said party of the first part: that they will loan to him $5,000 for the term of one year, from the first day of May, eighteen hundred and seventy-eight, or indorse his note for that amount, renewable from time to time during said term, and will also during said year, if in their judgment required for the proper management of his business aforesaid, indorse his notes to an amount not exceeding $2,000 in excess of said $5,000. "In witness whereof, the said parties hereto set their hands and seals, the day and year first above written. [Seal.] [Seal.] "WILLIAM T. SMITH, "MASON, CHAPIN & CO. "Executed in the presence of Edgar G. Robinson, witness to both signatures." The contract, it will be noted, is executory, and of course does not create a partnership between the parties to it until something is done to carry it into effect. We presume, therefore, that the meaning of the question put to us is, Is the contract such that it would create a partnership between the parties to it, if carried into effect according to its terms, or such that if so carried into effect, it would render the parties to it liable as copartners to third persons? We will consider the question as if so propounded. If we regard the contract simply as a contract between the parties to it, to be construed as contracts are usually construed, so as to carry out their intention, we think there can be no doubt that it can only be considered a coutract for a loan of money or credit in consideration of a percentage of profits in lieu of in terest. It gives the lenders no voice in the management, and no interest in the capital, of the business. It gives them only a percentage of the profits for a single year in a continuing business. It is true they are to have the right to inspect the books, but only for information. The contract calls the business his, i. e., the borrower's, and it remains exclusively his as much during the continuance of the loan as before or afterward. The contract, as between the parties to it, is therefore simply a contract for a loan of money or credit, and if, when carried out, it renders them liable as copartners, it is not because they have agreed to become such, but independently of their agreement, by force of an arbitrary or artificial rule, or by operation of law. The plaintiff corporation contends that the members of the firm of Mason, Chapin & Co. have, by sharing or being entitled to share the profits of the business carried on by Smith, become, if not actual copartners with him, at least liable with him as copartners to third persons for the debts contracted by him in the prosecution of his business. The position taken by the plaintiff corporation has the support of the earlier English and of numerous American decisions, and, previous to the decision of Cox v. Hickman in the House of Lords, in 1860, was so well established that Judge Story, in his work on the Law of Partnership, while he questions whether it would not have been "more conformable to true principles, as well as public policy, to have held that no partnership should be deemed to exist at all, even as to third persons, unless such were the intention of the parties, or unless they had so held themselves out to the public," declares, nevertheless, that "the common law has already settled it otherwise," and that "therefore it is useless to speculate upon the subject." Story on Partnership, § 36. The ground of the doctrine was that a person who shares the profits ought to share the losses, because he takes a part of the fund out of which the losses are to be paid. But the ground will not bear examination; for in point of fact, the losses are no more payable out of the profits than out of the capital, and in other cases it has been decided, quite inconsistently with this ground, that it is only a participation in the net, not the gross, profits, which makes the participant a quasi partner. Other grounds, but none more satisfactory, have been suggested. Indeed, the doctrine, though well received by some judges, appears to have been always regarded by others as an anomaly or legal solecism. It was soon relaxed in favor of agents or servants, who, it was held, might take a share of profits by way of compensation for their services without becoming quasi partners. The English courts, however, refused to extend the exception to cover a loan of money, though upon principle it is impossible to discern any difference whether a portion of the profits goes to pay for services or for money contributed to the business. Mr. Lindley, in his excellent work on Partnership, suggests that this difference of decision was owing to the statutes against usury, because in many cases a loan of money for a share of profits could only be upheld by regarding the lender as a partner. Lindley on Partnership (3d ed.), 23-5. Such was the state of the law, as it was generally understood, or to put the matter as some of the later English judges prefer to put it, as it was generally misunderstood, when, in 1860, the House of Lords decided the case of Cox v. Hickman, 8 H. L. 268. The gist of that decision was that a mere participation in profits does not make the participant a partner unless he has in fact agreed to become such, but is only prima facie evidence that he is such, and is rebuttable by counter-proof to be found in the contract or transaction or in the circumstances connected with it. The real question is, did the person who is sought to be charged on account of his participation in the profits ever enter into the relation of copartner with the other participant, or in other words, do they participate on the common footing of principals in the business? And in explication of the question, it was said that the law of partnership is a branch of the law of agency, inasmuch as, wherever an actual partnership exists, the partner who ostensibly carries on the business does it for himself and as agent for his copartners; or to put the matter in another form, he and they carry it on through him on their joint account, so that in law, on the principle of agency, whatever he does in the prosecution of the business they do, and whatever debts he contracts they contract with him. In Holme v. Hammond, L. R., 7 Exch. 218, 230, it is stated that 233 the import of the opinions delivered in the House of Lords in Cox v. Hickman is correctly summed up by O'Brien, J., in Shaw v. Galt, I. R., 16 C. L. 375, thus: "The principle to be collected from them appears to be, that a 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 a 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." The doctrine promulgated in the decision of Cox v. Hickman has been developed and applied in England in many subsequent cases, and may now be regarded as established law in that country. Bullen v. Sharp, L. R., 1 C. P. 86; Holme v. Hammond, L. R., 7 Exch. 218; Mollwo, March & Co. v. The Court of Wards, L. R., 4 P. C. 419; Pooley v. Driver, L. R., 5 Ch. Div. 458; Ex parte Tennant, L. R., 6 Ch. Div. 303, the substance of which is seated in Hart v. Kelley, 83 Penn. St. 286, 290; Lindley on Partnership (3d ed.), 35-47. The doctrine has likewise been laid down or approved in many American cases. Hart v. Kelley, 83 Penn. St. 286; Harvey v. Childs & Potter, 28 Ohio St. 319; Smith v. Knight, 71 Ill. 148; In re Francis, 2 Saw. 286; 7 Nat. Bank. Reg. 259; Williams v. Soutter, 7 Iowa, 435; Polk v. Buchanan, 5 Sneed, 721; In re Ward & Co., 8 Rep. 136; Richardson v. Hughitt, 8 id. 177. Indeed, it has been maintained that the American cases, generally, have never gone to the same extent as the earlier English cases. Eastman v. Clark, 53 N. H. 276. Some of the cases above cited are stronger than the case at bar. Bullen v. Sharp is such a case. In Mollwo, March & Co. v. The Court of Wards, the borrower agreed to carry on the business, subject to the control of the lender in several particulars, and to pay the lender twenty per cent of the profits until the advances were repaid with twelve per cent interest, and yet it was held that no partnership was created, the primary purpose being security for the loan. In Polk v. Buchanan the lender was to have one-fourth of the net profits for his accommodations, which were to continue for two years, and to have the product of the business placed under his control, and yet he was held not to be a partner. In Williams v. Soutter it was held that a loan of two thousaud dollars, to be repaid at the expiration of a year, with interest at the rate of thirty per cent, or one-third of the net profits of the business, did not make the lender a copartner with the borrower. In Cox v. Hickman, Lord Chief Baron Pollock supposes, as a case in which a partnership would clearly not exist, the case of a loan to be repaid by the application of one-half the net profits as they might arise, the lender to have the power to see that the profits were applied. If these cases are law, we do not see how it carrying out the contract in the case at bar. can be held that a copartnership would result from In Pooley v. Driver, L. R., 5 Ch. Div. 458, 474, 488, there was an agreement by the recipients of the accommodation to carry on the business "to the best of their ability." The court relied on this, in connection with other features of the contract, to show that a partnership was in reality created under the cover of a loan. For the law will not tolerate any evasion, but wherever the agreement creates as a matter of fact the relation of partnership, no mere words to the contrary will prevent, as regards third persons, its having its legitimate consequences. Ex parte Delhasse, L. R., 7 Ch. Div. 511. In the case at bar, however, we find no reason to suspect any latent design to create a partnership under the disguise of a loan; for though there is here, as in Pooley v. Driver, an agreement on the part of the borrower to carry on the business to the best advantage, we do not think it affords any inference that a partnership was intended, for it is scarcely more than the law itself would require, namely, that the borrower shall conduct with good faith, and it is certainly less significant than the stipulations given in some of the cases above cited And see Ex parte Tennant, L. R., 6 Ch. Div. 303. The lenders make a condition of the loan that the borrower shall carry on the business to the best advantage, because they are dependent on him, the business being his and not theirs. The plaintiff contends that there is a distinction between an agreement for participation and actual participation, and that while the former may be only prima facie, the latter is conclusive evidence of partnership. We do not find that the distinction is well founded in either reason or precedent. It certainly is not well founded if partnership is a fact dependent on agreement, and not a mere matter of legal imputation, and as we understand the current of modern decision, it is such a fact; and the only case in which a person, who is sought to be charged as a partner, is precluded from proving the actual fact is when he has held himself out, or permitted himself to be held out, as a partner. The plaintiff also contends that inasmuch as participation in profits, if not conclusive, is at least prima facie evidence of partnership, it is for the jury to say whether the defendants are partners or not. This may be so if there is testimony outside the contract and its execution going to show the existence of a partnership. But if there is no such outside testimony, if all that the members of the firm of Mason, Chapin & Co. have done is to carry the contract into effect according to its terms, then the question is wholly for the court; for nothing done in execution of the contract could create a partnership unless the contract is itself a contract for a partnership, and whether it is or not, it being in writing, is simply a question of legal construction. The Roman law and the modern foreign law, Judge Story says, do not create partnerships as to third persons between parties without their consent, and therefore, he adds, the common law appears to have pressed its principles to an extent not required by, if it is consistent with, natural justice. Story on Partnership, § 37. If Judge Story were living to-day he would doubtless rejoice to find that the common law, as expounded by the highest judicial tribunals in England, does not diverge from the Roman and modern foreign law, nor from natural justice, so widely as ho had inferred from the earlier English cases. It is certainly a great advantage to have the law in harmony with natural justice. A law that no person can share in the profits of a business without becoming liable as a partner for its losses is not such a law, for it subjects men, without any fault on their part, to liabilities, as if by contract, which they never contracted. In this State there is no reported decision which is inconsistent with the later English cases, and we think the later English cases are to be accepted as the truest and most authoritative exposition of the common law. Taking then the first question to be as previously stated, namely: Would the contract, if carried into effect according to its terms, make the parties to it copartners, or render them liable to third persons as copartners? we answer it in the negative. The second question arises thus: The action is assumpsit for goods sold and delivered. The goods were sold by contract under seal, executed May 1, 1878, by the plaintiff and the defendant Smith, and were subsequently delivered under it. The contract purports to be simply the individual contract of Smith with the plaintiff. The defendants contend that assumpsit cannot be maintained. The question is, can it be maintained? Ordinarily an action of assumpsit does not lie for money due on a contract under seal so long as an action can be maintained on the specialty. Gilman v. School District, 18 N. H. 215; Clendennen v. Paulsel, 3 Mo. 230; Brown v. Gauss, 10 id. 265; Young v. Preston, 4 Cranch, 239; Pierce v. Lacy, 28 Miss. 193; Hawkes v. Young, 6 N. H. 300; Wilson v. Murphey, 3 Dev. 352; Shack v. Anthony, 1 M. & S. 573; Evans v. Bennett, 1 Camp. 300, 303, note. The reason is because assumpsit lies only on simple contracts, and when a contract by specialty exists, all simple contracts of the same purport are merged in it. If, therefore, the action were against Smith alone, we think it clearly could not be maintained, and of course it cannot be maintained against him and others unless they were copartners with him. The question is, then, can it be maintained against him and others if they were his copartners? There is in our opinion an insuperable obstacle to it. For if he is not liable individually in assumpsit because he is liable on his contract under seal in the higher form of action, how can he be liable jointly with others; the cause of action, which originally came into existence under the contract under seal, remaining always one and the same? We do not see how he can, consistently with the rules of pleading or with the rule that the same cause of action cannot exist at the same time as a simple contract and as a specialty. It is only in caso the contract under seal could be regarded as collateral to an implied contract on the part of all the defendants that the action could lie, but it cannot be so regarded because it is itself the original or principal contract, and being express leaves no room for any contract by implication. Banorgee v. Hovey, 5 Mass. 11; Kimball v. Tucker, 10 id. 192; Blume v. McClurken, 10 Watts, 380; Eames v. Preston, 20 Ill. 389. The plaintiff has cited numerous cases, of which the three following are most in point: Cram v. Bangor House Proprietary, 12 Me. 354; Van Deussen v. Blum, 18 Pick. 229; Fagely v. Bellas, 17 Penn. St. 67. In the first of these cases the contract was for the benefit of a corporation, but was signed and sealed by its agents with their own names and seals. It was held that an action of assumpsit would lie against the corporation which had received the benefit of the contract. The court appear to treat the sealed contract as if it were not binding either on the corporation or its agents, and if this was so, the decision was right beyond any question. Moreover the action was against the corporation alone and not against any person who signed the contract under seal. In the second case the action was debt, not assumpsit. The declaration contained, besides a special count on the contract, general counts for work done and materials furnished, and the court permitted the plaintiff to recover on the latter counts, notwithstanding the contract was under seal and signed in the firm name by only one of the partners. The case appears to have been decided without regard to the previous and thoroughly considered case of Banorgee v. Hovey, the contract apparently being considered a nullity, whereas it was, according to the precedents, the deed of the partner who signed it. The case of Fagely v. Bellas is directly in point, but it is a mere decision without reasons assigned or precedents cited. We do not think these cases ought to control our decision. The contract here was executed by Smith in his own name, and thero can be no doubt that he is individually bound by it. There are cases which hold that where the partner who executes the obligation is insolvent, the other partners may be reached in equity, there being no remedy against them at law. Purviance v. Sutherland, 2 Ohio St. 478; Linney's Admr. v. Dare's Admr., 2 Leigh, 588; Sale v. Dishman, 3 id. 548; Weaver v. Tapscott, 9 id. 424, 426; James v. Bostwick, Wright (Ohio), 142; Wharton v. Woodburn, 4 Dev. & B. 507. These decisions rest on the assumption that at law an action will lie only on the specialty. And wo think if there is any remedy against the non-executing partners it is in equity. We think, therefore, there being no claim that the goods were furnished otherwise than in fulfillment of |