terest or participation in the profit and loss of the business or adventure, as principals, either indefinitely or in fixed proportions. Secondly, where there is, strictly speaking, no capital stock, but labor, skill, and industry are to be contributed by each in the business, as principals, and the profit and loss thereof are to be shared in like manner. Thirdly, where the profit is to be shared between the parties, as principals, in like manner, but the loss, if any occurs beyond the profit, is to be borne exclusively by one party only. Fourthly, where the parties are not in reality partners, but hold themselves out, or at least are held out by the party sought to be charged, as partners to third persons, who give credit to them accordingly. Fifthly, where one of the parties is to receive an annuity out of the profits, or as a part thereof.1 Wherever, therefore, the evidence brings the case within either of these classes, a partnership, as against the parties, will be sufficiently proved. (a) § 483. In contract against partners. It is essential, in an action the interest in the profit must be mutual; terest in the profits, as a principal trader.' 1 Story on Partn. § 54; Id. §§ 55-70; (a) Where one lends money to a firm, which money is to be paid back absolutely without regard to the profits of the firm, the fact that he is to receive a part of the profits does not make him a partner, as he does not share the risk of loss. Eager v. Crawford, 76 N. Y. 97. Nor is he if he takes part of the profits as interest. Hart v. Kelley, 83 Pa. St. 286. If, however, he receives the share of the profits qua profits, he is liable as partner to third parties. Leggett v. Hyde, 58 N. Y. 272. Where persons agree to share the profits of a business, an agreement between themselves that they shall not be partners will not affect third parties. Haas v. Roat, 16 Hun (N. Y.), 526. Societies and clubs formed for political or social purposes-e. g. the so-called "Granges" -are not partnerships. Richmond v. Judy, 6 Mo. App. 465; Edgerly v. Gardner, 9 Neb. 130. Where a number of people act as a corporation, under a corporate name, without any legal organization, their liability to third parties is that of copartners. Mar seilles, &c. Co. v. Aldrich, 86 Ill. 504. (b) See, on this question of partnership from a participation in the profits, Berthold v. Goldsmith, 24 How. (U. S.) 536; that is, each person must have a specific in- Denny v. Cabot, 6 Met. (Mass.) 85; Holmes v. Old Colony R. R., 5 Gray (Mass.), 58; Fitch v. Harrington, 13 Gray (Mass.), 468; Brigham v. Dana, 29 Vt. 1; Legett v. Hyde, 58 N. Y. 272; Parsons on Partnership, 71, and n. (1); where the true test is said to be, "Did the supposed partner acquire by his bargain any property in, or any control over, the profits, while they remained undivided? If so, he is liable to third persons, and otherwise not." Also Braley v. Goddard, 49 Me. 145; Atherton v. Tilton, 44 N. H. 452. In Cox v. Hickman, 8 H. L. Cases, 268, 306, and s. c. 9 C. B. N. s. 47, it is held that the test whether a person who is not an ostensible partner in a trade is nevertheless, in contemplation of law, a partner, is not whether he is entitled to participation in the profits, - although this affords cogent, often conclusive, evidence of it, but whether the trade has been carried on by persons acting on his behalf. This rule is followed in Kilshaw v. Jukes, 3 B. & S. 847, and English and Irish Church University in re, 1 H. & M. 85. See also, upon this and other kindred points, a valuable paper in 17 Am. L. Reg. 209, on the "Criteria of Partnership.' ex contractu against partners, that the evidence of partnership should extend to all the defendants;1 otherwise the plaintiff will be nonsuited. But the utmost strictness of proof is not required; for though, where they sue as plaintiffs, they may well be held to some strictness of proof, because they are conusant of all the means whereby the fact of partnership may be proved; yet where they are defendants, the facts being less known to the plaintiff, it is sufficient for him to prove that they have acted as partners, and that by their habit and course of dealing, conduct, and declaration, they have induced those with whom they have dealt to consider them as partners.2 (a) Hence, if two persons have in many instances traded jointly, this will be admissible evidence towards the proof of a general partnership, and sufficient, if the instances of joint dealing outweigh the instances of separate dealing, to throw upon the defendants the burden of proving that it was not such a partnership. And though the partnership was established by deed, yet, against the parties, it may be proved by oral evidence of partnership transactions, or by the books of the 1 Young v. Hunter, 4 Taunt. 582. In assumpsit, the fact of partnership is put in issue by the plea of non assumpsit. Tomlinson v. Collett, 3 Blackf. 436. 2 2 Stark. Evid. 585, 586; Evans v. Curtis, 2 C. & P. 296. If it be clear that the party, at the time of the acts and admissions, was not a partner, they will not render him liable for a prior debt of the firm. Saville v. Robertson, 4 T. R. 720. Nor will an admission of a partnership in one transaction bind the party as a partner in another matter not connected with it. De Berkom v. Smith, 1 Esp. 29. If the articles of copartnership are produced in evidence against the firm, it will be sufficient to prove the signatures of those who are parties to the suit. Beach v. Vanderwater, 1 Sandf. S. C. 265. 8 Newnham v. Tethrington, cited in Collyer on Partn. p. 450; Etheridge v. Binney, 9 Pick. 272. The signature of a joint note by two persons is no evidence of a partnership between them. Hopkins v. Smith, 11 Johns. 161. But the signature of the name of a firm is evidence against the person signing it, that he is one of the partners. Spencer v. Billing, 3 Campb. 312. Alderson v. Clay, 1 Stark. 405; Widdifield v. Widdifield, 2 Binn. 249; Allen v. Rostain, 11 S. & R. 362. (a) Where one represents himself or causes others to represent him as being a member of their firm, he is liable to those who trade with the firm, believing him to be a partner. Rice v. Barrett, 116 Mass. 312; Rowland v. Long, 45 Md. 439; Brugman v. McGuire, 32 Ark. 733. To establish this liability he must know or have reason to know that he is regarded as a partner. Re Jewett, 15 Bankr. Reg. 126. Where the plaintiff seeks to fix a liability on the defendants as partners by reason of their carrying on business in such a way as to hold themselves out to the world as partners, evidence may be given of the whole manner of carrying on the business, and those who have had dealings with them are admissible as witnesses to testify to these facts. Parshall v. Fisher, 43 Mich. 529. In settling the affairs of a firm, where it was found that the same partners carried on business in two places, under different names, it was held that all the assets of the two nominal firms should be applied to paying all the creditors of both. Re Williams, 3 Wood C. C. 493. firm.1 (a) But evidence of general reputation, or common report of the existence of the partnership, is not admissible, except in corroboration of previous testimony; unless it be to prove the fact, that the partnership, otherwise shown to exist, was known to the plaintiff.2 (b) § 484. Proof by declarations and admissions. A partnership may also be proved against the parties, by their respective declarations and admissions, whether verbal, or in letters or other writings. Thus where, upon the trial of the question of partnership, the defendants, in order to render a witness competent, executed a release to him, the release was permitted to be read by the plaintiff, as competent evidence in chief to establish the partnership.3 (c) So, also, an entry at the custom-house, by one partner in the name of the firm, is admissible, though not conclusive evidence for the same purpose. In other cases, the act, declaration, or admission of one person is not admissible in evidence to establish the fact that others are his partners, though it is ordinarily sufficient to prove it as against himself.5 (d) But if, in an action 1 Richter v. Selin, 8 S. & R. 425; Champlin v. Tilley, 3 Day, 306; Hill v. Manchester Waterw. Co., 2 N. & M. 573. 2 Allen v. Rostain, 11 S. & R. 362: Whitney v. Sterling, 14 Johns. 215; Bernard v. Torrance, 5 Gill & Johns. 383. See also Gowan v. Jackson, 20 Johns. 176; Halliday v. McDougall, 20 Wend. 81; Brand v. Ferriday, 16 La. 296. Dec 3 Gibbons v. Wilcox, 2 Stark. 43. And see Parker v. Barker, 1 B. & B. 9. larations made to a third person are admissible, though not made in the presence of the other parties. Shott v. Strealfield, 1 M. & Rob. 8. Ellis v. Watson, 2 Stark. 453. 5 Burgue v. De Tastat, 3 Stark. 53; Flower v. Young, 3 Campb. 240; Tinkler v. Walpole, 14 East, 226; Cooper v. South, 4 Taunt. 802; Whitney v. Ferris, 10 Johns. 66; Tuttle v. Cooper, 5 Pick. 414; Robbins v. Willard, 6 Pick. 464; McPherson v. Rathbone, 7 Wend. 216. See ante, vol. i. § 177; McCutchin v. Bankstone, 2 Kelly, 244; Grafton Bank v. Moore, 13 N. H. 99. (a) Entries in the books of a firm are not evidence against any one to show that he is a member of the firm. Robins v. Warde, 111 Mass. 244. Nor, in a suit between partners, are entries in the plaintiff's books, charging the defendant as a partner, admissible. McNamara v. Draft, 40 Iowa 413. for this is hearsay. Cook v. Penrhyn Slate (b) Brown v. Rains, 53 Iowa, 81; Sager v. Tupper, 38 Mich. 258; Carlton v. Ludlow Woolen Mills, 27 Vt. 496; Brown v. Crandall, 11 Conn. 92; Bowen v. Rutherford, 60 Ill. 41. Such general reputation does not make such a prima facie case as calls on the defendant to introduce any evidence to rebut it. Taylor v. Webster, 39 N. J. L. 102. And see 495. post, § 485. The partnership cannot be proved by the report of a mercantile agency, (c) Where three parties are sued as partners, and no service is made on one, his declarations are inadmissible as proof of the partnership. Smith v. Hulett, 65 Ill. (d) Allcott v. Strong, 9 Cush. (Mass.) 523; Dutton v. Woodman, Id. 255; Chase against three as partners, two have acknowledged the existence of articles of copartnership, which the third, on due notice, refuses to produce at the trial, the jury will be warranted in finding the fact of partnership upon this evidence alone.1 In one case, where the issue of partnership was raised by a plea in abatement, for the non-joinder of parties as defendants, the admission of liability as a partner, by one not joined in the suit, being good in an action against him, was held to be also receivable on this issue, to prove him a partner.2 (a) § 485. Defences. The proof of partnership may be answered by the defendant, by evidence of an arrangement between the parties, by which either the power of the acting partner to bind the firm, or the defendant's liability on the contracts of the firm, was limited, qualified, or defeated; provided the plaintiff had previous and express notice. The defendant may also show that he was not a partner in the particular trade in which the transaction took place, and that the plaintiff knew the fact; or, that the partnership was previously dissolved; or, that he had notified the plaintiff not to deal with his partner, without his own concurrence.5 (b) § 486. Surviving partner. Witness. In an action against the administrators of a deceased partner, the surviving partner is a competent witness to prove the partnership; for he has no interest in the matter, such an action not being maintainable at law. But in an action brought by the surviving partner as such, the widow of his deceased partner is not a competent witness for 1 Whitney v. Sterling, 14 Johns. 215. 2 Clay v. Langslow, 1 M. & Malk. 45. Sed quære, and see ante, vol. i. § 395; Miller v. M'Clenachan, 1 Yeates, 144. 8 Minnett v. Whitney, 5 Bro. P. C. 489; Collyer on Partn. 214, 456; Ex parte Harris, 1 Madd. 583; Alderson v. Clay, 1 Campb. 404. 4 Jones v. Hunter, Dan. & Lloyd, 215; Collyer on Partn. 456. Willis v. Dyson, 1 Stark. 164; Lord Galway v. Matthew, 10 East, 264. v. Stevens, 19 N. H. 465. And such admissions need not be made at the exact time at which the cause of action arose, if they are sufficiently near it to allow a reasonable inference that the partnership existed at the time when the cause of action arose. Sager v. Tupper, 38 Mich. 258. But cf. Ruhe v. Burnell, 121 Mass. 450. (a) The admissions of one partner, made after the dissolution of the firm, are not admissible against the other parties. Hogg v. Orgill, 34 Penn. 344. (b) But proof of the dissolution must be by notice published in a newspaper at least, and actual notice to all correspondents. Notoriety is not proof of the dissolution, it being a private and not a public matter. Pitcher v. Barrows, 17 Pick. (Mass.) 361; ante, vol. i. §§ 137, 138; Dickinson v. Dickinson, 25 Gratt. (Va.) 321. him, her testimony going to increase the fund, of which she is entitled to a distributive share. A dormant partner is a competent witness for his partner in an action by the latter, if he releases his interest in the subject of the suit.2 1 Allen v. Blanchard, 9 Cowen, 631. 2 Clarkson v. Carter, 3 Cowen, 84. |