In 1860, however, the House of Lords in effect overthrew this doctrine and overruled these cases by its decision in Cox v. Hickman, 8 H. L. C. 268. And the last-named case and those which have followed it have clearly established in England that no one who is not actually a partner can be treated as such by third persons unless, by holding himself out as a partner or consenting to others doing so, he has subjected himself to an estoppel. Kelshaw v. Jukes, 3 B. & S. 847; Bullen v. Sharp, L. R 1

C. P. 8G; Mollwo v. The Court of Wards, L. R. 4 P. C. 419; Ex parte Tennant, 6 Ch. D. 303; Dean v. Harris, 33 L. T. Rep. 639; Meyer v. Shacher, 38 L. T. Rep. 97; Kelly v. Scotto, 42 L. T. Rep. 827; Badeley v. Consolidated Hank, 38 Ch. D. 238.

And in this country in recent cases the courts have very generally approved and followed the doctrine of Cox v. Hickman, and the later English cases Meehan v. Valentine, 145 U.S. 611; Culley v. Edwards, 44 Ark. 423; La Fevre v. Castagnio, 5 Col. 564; Vinson v. Beveridge, 3 MacA. (D. C.) 597; Smith v. Knight, 71 Ill 148; Chaffraix v. Lafitte, 30 La. An. G31; Beecher v. Bush, 45 Mich 188; Colwell v. Brit-ton, 59 Mich. 350; Kellogg Newspaper Co. v. Kan-ell, 88 Mo. 594; Parchen v. Anderson, 5 Mont. 438; Eastman v. Clark, 53 N. H. 276; Wild v. Davenport, 48 N J. L. 129; Central City Bank v. Walker, 66 N. Y. 424; Richardson v. Hughitt, 76 N. Y. 55; Eager v. Crawford, 76 N. Y. 97; Curry v. Fowler, 87 N. Y. 33; Cassidy v. Hall, 97 N.Y. 159; First Bank v. Gallaudet, 122 N. Y. 655, 657; Harvey v. Childs, 28 Ohio St. 319; Hart v. Kelley, 83 Pa. 286; Boston, etc. Smelting Co. v. Smith, 13 R. I. 27; Buzard v. First Bank, 67 Tex. 83; Chapline v. Conant, 3 W. Va. 507; Darling v. Bellhouse, 19 U. Can. Q. B. 268. - McDonnell v Rattle House Co. 67 Ala. 90; Parker v. Canfield, 37 Conn. 250; Morgan v. Parrel, 58 Conn. 413, 422, seem contra. See also Hackett v. Stanley, 115 N. Y. 625.

If one lends money to be used by the borrower in his business, the lender to receive interest, and in addition thereto a share of the profits of the business, a question may arise whether he is a lender on usury or a partner. He would seem indeed to be both; only a usurer as between the lender and borrower, but a partner as to third persons; and it may depend upon the manner in which the question is presented, whether the character of a usurer is to be fixed upon him. If he sues the borrower for repayment of the money, it seems to be competent * for the borrower to allege in his defence the usurious character of the loan. (k) But if a third party who is a creditor of the borrower, upon a debt which has arisen in the business in which the money was lent to be used, sues the lender as a partner, on the ground that he took away profits to which the creditor might look for his debt, the lender will be held as such partner, and it is not competent for him to set up his contract as usurious, for he may not rest his defence upon his own wrong. (l)1

A question has frequently arisen, where a clerk, agent, or salesman has been taken into partnership, to render in fact the same services as before, or a person received to render such services who had not been previously employed, upon an agreement that the services shall be compensated not by a salary, but by a share of the profits. Is such person a partner as to third parties? It will appear, by the cases cited in the notes, that there has been some uncertainty upon this point. From many of the cases it would seem that a rule of this kind was adopted; namely, that where the bargain was that A should receive for his services one tenth of the profits, this made him a partner; but if he was to receive a salary, equal in amount to the one-tenth part of the profits, this did not make him a partner. This rule is somewhat technical, but not altogether so, and would doubtless be applied to such a contract now, if the words used were not accompanied by other language, or by facts which required, or at least justified a different interpretation. Whether a person were a partner with others, should be determined in this as in other cases by a consideration of their intention, and of the way in which the alleged partner was held forth to the public, and the interest and power he had in or over the fund to which the creditors of the partnership could look for their security. Where A employs B, and agrees to give him, in lieu of wages, or by way of wages, a certain proportion of A's profits, this need not give B any right to control the business or interfere therein in any way. They are not * then necessarily partners, because there is no reciprocity between them: unless some other sufficient reason exists for so treating them. But the reason usually alleged as that for which he who shares in the profits is held liable as a partner for the debts, namely, that he has diminished the fund from which the debts are to be paid, seems to be regarded as not applicable to one who takes wages, though they may be measured by the profits; and if this is the bargain in fact, the manner of its expression would seem not to be material. It is certain that while the salesman took a thousand dollars a year as wages for his services, this did not make him a partner. The fund to pay debts grew up in some measure from his services, and he was • entitled to be paid out of it for them; and if he now has, instead of a fixed salary, a share of the profits, it might still be clear from the contract and circumstances, that the arrangement was intended not to pay him more than his services were worth, but only to make his wages dependent in some degree upon his services, and so to stimulate him to make the profits, or the general fund to which the creditors must look, as large as possible. Lord Eldon's reason for the rule seems to be, " that where the salesman has an amount of money equal to one-tenth of the profits, this gives him no action of account, and therefore he is not a partner; but where he is to receive one-tenth of the profits, this gives him an action of account, and therefore makes him a partner; " but this seems open to the objection that the question of partnership is prior, and should determine the right of account; whereas this reason would regard the right of account as prior, and determining the question of partnership. (m) Lord Eldon says, " the cases