(z) Langdale, ex parte, 18 Yes. 300

1 A partner in an unlawful business is without remedy against his co-partners, Snell v. Dwight, 120 Mass. 9; Dunham v. Presby, ib. 285; Lane v. Thomas, 37 Tex 157; Watson v. Murray, 8 C E. Green, 257; In re South Wales, &C Co. 2 Ch. D. 763; although an account may be had of that portion of a firm's business that may be legal, Anderson v. Powell, 44 Ia. 20. - K.

But * the mere sharing of profits, without any connection whatever in the business, is not enough to constitute a partnership. (a) Thus, if one firm agrees with another, that each shall continue and carry on its own business independently, but that the profits and losses of each firm shall be divided between the two, the two firms do not enter into partnership, nor do the members of one of the firms become partners with the members of the other. (b) There need not, however, be a community of interest in the property, if there be in the profits, and some connection in the business. (c)1 But the setting apart of a portion of the profits to pay the debt of a third person, does not make him a partner. (d) So too, a joint purchase, but for the purpose of distinct and separate sales by each party on his own acoount, does not constitute the purchasers partners. (e) And this, however unequal the shares may be, and even if one of the parties has no direct interest or property in the capital of the firm. If one party furnishes material at a certain price, and another manufactures it at a certain price and has charge of the selling of the articles, the two dividing the profits, this does not make them partners, as between themselves. (ee) The cases are quite numerous which turn upon the question what facts suffice to create a liability as a partner. They are determined by the special circumstances of each case, and it is difficult to draw general rules from them. (ef) In the absence of specific stipulations or controlling evidence, the presumption of law is, that the partners share the profits equally. (/)

The articles may provide or omit a period for the continuance of the partnership. But if such a period be provided and the time expires, and then the partnership is renewed by agreement, it has been held that the new partnership is founded upon

(a) Merrick v. Gordon, 20 N. Y. (6 Smith) 9.3; Fawcett v. Osborn, 32 Ill. 411; Morgan v. Stearns, 41 Vt. 397.

(b) Smith v. Wright, 5 Sandf. 113. And see Pattison v. Blanchard, 1 Seld. 186.

(c) Briggs v. Vanderbilt, 19 Barb. 222; Ellsworth v. Tartt, 26 Ala. 133; Miller v. Price, 20 Wis. 117.

(d) Drake v. Ramsay, 3 Rich. L. 37.

(e) Bauchor v. Cilley, 38 Me. 553; Stoallings v. Baker, 15 Mo. 481.

(ee) Hitchings v. Ellis, 12 Gray, 449.

(ef) The following are recent interesting cases on this question: Pratt v. Landon, 12 Allen, 544; Emmons v. Westfield Bank, 97 Mass. 230; Merwin v. Playford, 3 Rob. 702; Strong v. Place, 4 Rob. 385.

(f) Peacock v. Peacock, 16 Ves. 49; Farrar v. Beswick, 1 Mo. & R. 527; Gould v. Gould, 6 Wend. 263. But see Thompson v. Williamson, 7 Bligh, 432. See Story, Part. § 24, ad Jin. note.

1 In the absence of agreement the presumption is that there is community of interest in both property and profit and loss. Robinson v. Ashton, L. R. 20 Eq. 25; Whitcomb v. Converse, 119 Mass. 38; Citizens' Ins. Co. v. Doll, 35 Md. 89; Flagg v. Stowe, 85 Ill. 154; Knight v. Ogden, 2 Tenn. Ch. 473; Hankey v. Becht, 25 Minn. 212. See Syers v. Syers, 1 App. Cas. 174. - K.

the same terms as the old one, in the absence of opposing testimony. (g)

*It is certain that persons may be copartners as to third parties, and brought within all the liabilities of partnership as to them, who are not partners between themselves. (h) For whether they are partners as between themselves is determined chiefly by reference to their own intention; but whether they are partners in respect to third parties is determined by a consideration of this intention, and also of that actual participation of profits which is held to require of them to participate in the losses, because it diminishes the fund from which the losses are to be paid; (i)1 and also of the way and degree in which the person ought to be charged as partner has been held out to the world as such, so that the person seeking to charge him had good reason to believe a debt of the partnership carried with it his responsibility. (j)

(q) Dickinson v. Survivors of Bolds & Rhodes, 3 Desaus. 501.

(h) If parties are so associated in business as to make them partners with respect to third persons, but expressly agree that a partnership shall not exist, they are not partners as between themselves. Gill v. Kuhn, 6 S.& R. 333; Heskith v. Blanchard, 4 East, 144. If, however, parties by their conduct, have treated their contract as a partnership, and have so held themselves out to the world, it is unnecessary to put a construction upon the written contract, as between themselves and others. Stearns v. Haven, 14 Vt. 540. See also Drennen v. House, 41 Penn. St. 30.

(i) As to what participation of profits makes one a partner, see infra, n. (m).

1 This statement accurately represents the law as it stood a few decades ago. From a dictum in Grace v. Smith, 2 W. Bl. 998, the doctrine arose that one who took a share of the profits of a business, though not necessarily a partner in fact, might be treated as such by creditors though he had not held himself out as a partner and though his credit had not been relied on. As expressed by Dt Grey, J., in the case just cited " Every man who has a share of the profits of a trade ought also to bear his share of the loss. If any one takes part of the profits, he takes a part of the fund which the creditor relies on for payment." Waugh v. Carver, 2 H. Bl. 235, is the leading case illustrative of this doctrine, and other cases of similar point are Cheap v. Cramond, 4

B. & Ald. 663: Gilpin v. Enderhey, 5 B. & Ald. 954; Barry v. Nesham, 3 C. B. 641; Heyhoe v. Burge, 9 C. B. 431.