particulary from Scotland, might draw erroneous conclusions as to the true relation existing between them as a family, by seeing men in middle life zealously bending their energies under the guidance of their father to the promotion of the success of the business. Whoever should apply customs prevalent among native Americans to this state of facts would unhesitatingly conclude that all were in partnership. And so, no doubt, many were deceived, nor was it deemed necessary by any of the parties, on all occasions, to undeceive them by a full explanation of this family arrangement. But the question here is, what was the actual fact, and not what observers supposed was the fact from appearances. It is the internal truth we are seeking, and these external appearances are only important as they may enable us to arrive at this truth; and when we so find the truth by indubitable proof in a different direction than that indicated by these external appearances, then these must go for naught. Here we have the positive testimony of every living man who has the absolute knowledge of the facts, including the complainant himself, all testifying most unqualifiedly that there was no partnership. And all these witnesses stand unimpeached either directly or indirectly. True, in the appellee's argument, they are denounced in the most unmeasured terms. We, however, believe that the complainant told the truth when he swore there was no partnership, and believing this, the case is ended. If he did tell the truth, if his brothers have not committed corrupt perjury with him, then this decree was wrong, for there was no partnership. The law does not authorize us to discard this positive testimony unless we can show, from the record, sufficient reason for it. This we cannot do. In the appellee's argument, filed nunc pro tunc, great complaint is made of the insufficiency and unfairness of the abstract, and had the appellee failed an amended abstract under the rule, setting forth fully the omitted portion of the record deemed important, it would have relieved us of much of the labor of this cause. The volume of testimony in the case is immense, to the great mass of which we cannot even allude in an opinion, but must content ourselves with stating our conclusions, barely alluding to some of the most vital of the proofs. The decree is reversed and the bill dismissed. Decree reversed. THE ORIGINAL TEST OF A PARTNERSHIP GRACE V. SMITH 2 Wm. Bl. 998 (1775) Assumpsit for goods sold and delivered. Motion for new trial after a verdict for the defendant. This was an action brought against Smith alone as a secret partner with one Robinson, to whom the goods were delivered, and who became bankrupt in 1770. On the 30th day of March, 1767, Smith and Robinson entered into partnership for seven years, but in the November afterward some disputes arising, they agreed to dissolve the partnership. The articles were not cancelled, but the dissolution was open and notorious, and was notified to the public on the 17th of November, 1767. The terms of the dissolution were that all the stock in trade and debts due to the partnership should be carried to the account of Robinson only. Smith was to have back £4,200, which he brought into the trade, and £1,000 for the profits then accrued since the commencement of the partnership; that Smith was to lend Robinson £4,000, part of this £5,200, or let it remain in his hands for seven years at five per cent interest, and an annuity of £300 per annum, for the same seven years. For all which Robinson gave bond to Smith. In June, 1768, Robinson advanced to Smith £600 for two years' payment of the annuity and other sums by way of interest, and gratuities, and other large sums at different times, to enable him to pay the partnership debts, Smith having agreed to receive all that was due to the partnership, and to pay its debts, but at the hazard of Robinson. On the 1st of August, 1768, the demands of Smith were all liquidated and consolidated into one, viz. £5,200 due to him on the dissolution of the partnership, £1,500 for the remaining five years of the annuity, and £300 for Smith's share of a ship; in all £7,000, for which Robinson gave a bond to Smith. On the 22d of August, 1769, an assignment was made of all Robinson's effects to secure the balance then due to Smith, which was stated to be £10,000. Soon after the commission was awarded. Davy, for the plaintiff, insisted that the agreement between Robinson and Smith was either a secret continuance of the old partnership, or a secret commencement of a new one, being for the retiring partner to leave his money in the visible partner's hands, in order to carry on his trade, and to receive for it twelve and a half per cent profits of the trade; and that he ought therefore to be considered as a secret partner. And he relied much on the case of Bloxham & Fourdrinier against Pell & Brooke, tried at the same sittings (7th of March, 1775) before Lord Mansfield in the King's Bench, as in point. "This was also a partnership for seven years between Brooke & Pell; but at the end of one year agreed to be dissolved, but no express dissolution was had. The agreement recited that Brooke being desirous to have the profits of the trade to himself, and Pell being desirous to relinquish his right to the trade and profits, it was agreed that Brooke should give Pell a bond for £2,485, which Pell had brought into the trade, with interest at five per cent, which was accordingly done. And it was further agreed that Brooke should pay to Pell £200 per annum for six years, if Brooks so long lived, as in lieu of the profits of the trade; and Brooke covenants that Pell should have free liberty to inspect his books. Brooke became a bankrupt before anything was paid to Pell. And this action being brought for a debt incurred by Brooke in the course of trade, Lord Mansfield held that Pell was a secret partner. This was a device to make more than legal interest of money, and if it was not a partnership it was a crime. And it shall not lie in the defendant Pell's mouth to say, 'It is usury and not a partnership.' Gross and Adair, for the defendant, argued that the present case is very distinguishable from that of Bloxham and Pell. Pell was to be paid out of the profits of the trade, as appears from the covenant to inspect the books, which else would be useless. His annuity was expressly given, as and in lieu of those profits. It was contingent in another view, as it depended on the life of Brooke, by whom those profits were to be made. In our case the annuity is certain, not casual; it does not depend on carrying on the trade, nor to cease when that is left off, but is due out of the estate of Robinson. It is not a necessary dilemma, that it must be either usury or partnership. It may be, and probably, was a premium for the good will of the trade. Two thousand guineas is no uncommon price for turning over the profits of a trade so beneficial that it appears to have been rated at £1,000 to each partner in the space of less than eight months. And whether that sum is agreed to be paid at once, or by seven instalments, it is the same thing. Besides, whether there be or be not a secret constructive partnership is a question proper for a jury, who have here decided it on a consideration of all the circumstances. DE GREY, C. J. The only question is: What constitutes a secret partner? Every man who has a share of the profits of a trade ought also to bear his share of the loss. And if any one takes part of the profit he takes a part of that fund on which the creditor of the trader relies for his payment. If any one advances or lends money to a trader it is only lent on his general personal security. It is no specific lien upon the profits of the trade, and yet the lender is generally interested in those profits; he relies on them for repayment. And there is no difference whether that money be lent de novo or left behind in trade by one of the partners who retires. And whether the terms of that loan be kind or harsh makes also no manner of difference. I think the true criterion is to inquire whether Smith agreed to share the profits of the trade with Robinson, or whether he only relied on those profits as a fund of payment; a distinction not more nice than usually occurs in questions of trade or usury. The jury have said that this is not payable out of the profits, and I think there is no foundation for granting a new trial. GOULD, J., same opinion. BLAKSTONE, J., same opinion. I think the true criterion (when money is advanced to a trader) is to consider whether the profit or premium is certain and defined, or casual, indefinite, and depending on the accidents of trade. In the former case it is a loan (whether usurious or not is not material to the present question), in the latter a partnership. The hazard of loss and profit is not equal and reciprocal, if the lender can receive only a limited sum for the profits of his loan, and yet is made liable to all the losses, all the debts contracted in the trade, to any amount. NARES, J., same opinion. Rule discharged. (See Sailors v. Nixon-Jones Co. for present test of a Partnership.-Ed.) EXISTENCE OF A PARTNERSHIP DEPENDS ON THE SAILORS V. NIXON-JONES PRINTING COMPANY Action by the Printing Company against Sailors, Woodward and Guibout, to recover for printing done for the "Union Mercantile Agency," under which name it was alleged that defendants were partners. Each of defendants owned an interest in certain books and business of a commercial agency, and on January 2, 1885, they agreed to unite their interests as a partnership under the name of Union Mercantile Agency. It was agreed, however, that for two years Sailors was to be relieved from any participation in the business, and during that time he was neither to share in the management nor in the profits or losses of the business. At the expiration of that time, he was to take an active part. In May, 1885, Guibout ordered the printing for which the action was brought. Guibout, in his deposition, testified that he told the plaintiff when the order was given that the firm consisted of himself, Woodward and Sail ors. He also testified that he told Sailors of the order and that the latter agreed to help pay. This Sailors denied. No participation by Sailors in the business was shown. Judgment for plaintiff, and Sailors appealed. MORAN, J. The contract of January 2, 1885, between Woodward and Guibout and appellant, did not constitute appellant a partner in the business which Woodward and Guibout were to conduct in St. Louis. True, the word "partnership" is used to designate the relation of the parties but the whole agreement shows plainly that Sailors was a joint owner merely, and that the business was to be conducted wholly by the others and they were to have the entire profits accruing, and bear all losses that might happen in running the business, till, at the end of two years, Sailors was to come into a participation of the business, and thereafter share the profits and losses of the business that should be done. It was a contract which bound appellant to become a partner at the end of two years, but such contract would not make him liable for debts contracted before his relation as partner commenced. The agreement is very explicit that he shall not share the profits nor be liable for the losses. He retained only his one-third ownership in the books and good-will of the business, and had no control over its management and no right beyond seeing to the preservation of the property. The fact that the parties to such relation themselves call it a partnership will not make it so. Where the question of partnership is to be determined from a contract between the parties to it, the relation must be found from the terms and provisions of the contract, and even though parties intend to become partners, yet if they so frame the terms and provisions of their contract as to leave them without any community of interest in the business or profits, they are not partners either in fact or in law: Parsons on Partnership, 91. A partnership inter se must result from the intention of the parties as expressed in the contract, and they cannot be made to assume toward each other a relation which they have expressly contracted not to assume. The terms of the agreement, where there is one, fix the real status of the parties toward each other. If there is no agreement, then if they deal with each other as partners, sharing losses and profits, their interest will be gathered from their acts, and they will be partners inter se. Collyer on Partnership, 2 and note. A mere community of interest in property will not make the owners partners. There must be an agreement for a joint venture and to share profits and losses; and in the absence of such a mutual agreement they are mere tenants in common of the property and the act of one will not bind the other: Chase v. Barrett, 4 Paige (N. Y.) 148; Niehoff v. Dudley, 40 Ill. 406; Smith v. Knight, 71 Ill. 149, 22 Am. Rep. 94. As the contract did not make appellant a partner, he could only be |