(j) Cottrill v. Vanduzen, 22 Vt. 511; Gilpin v. Temple, 4 Harring. 90; Furber v. Carter, 11 Humph. 271; Grieff v. Bon-dousquie, 18 La. An. 631; Sherrod v. Langdon, 21 Ia. 518.

(k) Morse v. Wilson, 4 T. R. 353. See also Gilpin v. Enderby, 5 B. & Ald. 954; s. c. 5 Moore, 571.

(l) Grace v. Smith, 2 W. Bl. 998; Morse v. Wilson, 4 T. R. 353; Case of Lane, Fraser & Boylston, cited in 17 Vesey, 405, Sumner's edition. See Gibson v. Stone, 43 Barb. 285.

1 This is not now generally law. See p. * 158, note 1, and cases cited.

If, however, a transaction on the face of it a loan is colorably made for the purpose of constituting a partnership in effect while evading the liabilities of that relation, the parties will be held as partners. Pooley v. Driver, 5 Ch. D 458; Ex parte Mills, 8 Ch. D. 569; Badeley v. Consolidated Bank, 34 Ch. D. 536; 38 Ch. D. 238; Adam v, Newbigging, 13 Ap. Cas. 316; Rosenfield v. Haight, 53 Wis. 260.

(m) It seems to be well settled, that a business a salary, equal in amount to a contract to pay one employed in certain certain proportion of the profits, will not

*have gone to this nicety," and speaks of the rule above mentioned as settled; but we have not succeeded in finding in the * English reports, previous cases or authorities which can be regarded as establishing this rule. And we regard it as now an established rule that if a party is paid for his services as an employee of the firm, whether by a salary or a share in the profits, he is not a partner. And if a partner has a right to elect a salary for his services instead of a share of the profits, and in good faith elects a salary, he ceases to be a partner. (mm)

In a recent English case it is said that the test to determine the liability of one sought to be charged as a partner, is whether the trade is carried on in his behalf, and the participation of profits such as to establish the relation of principal and agent, between the person taking the profits and those who carry on the business. (mn)1 But if two or more persons carry on a business, make such a person a partner. The question of profits is of importance only in determining the amount of salary. Neither will a certain salary, together with a commission of a certain per cent upon the profits, make the receiver a partner. Miller v. Bartlet, 15 S. & R. 137; Stacker v. Brockelbank, 5 E. L. & E. 67; Dunham v. Rogers, 1 Barr, 255; Denny v. Cabot, 6 Met. 82; Hodgman v. Smith, 13 Barb. 302; Brockway v. Bur-nap, 16 id. 309; Atherton v. Tilton, 44 N. H. 452. And the better opinion seems now to be, that an agreement by which a person is to receive a certain portion of the profits for his salary, does not constitute a partnership, such person having no specific interest in the profits themselves, as profits. See Loomis v. Marshall, 12 Conn. 69; Burcle v. Eckart, 1 Denio, 337; s. c. 3 Comst. 132; Vanderburgh v. Hull, 20 Wend. 70; Ogden v. Astor, 4 Sandf. 311; Newman v. Bean, 1 Foster (N. H.), 93; Reed v. Murphy, 2 Greene (Iowa), 574; Goode v. M'Cartney, 10 Tex. 193; Glenn v. Gill, 2 Md. 1; Drake v. Ramey, 3 Rich. L. 37; Bartlett v. Jones, 2 Strob. 471; Hodges v. Dawes, 6

Ala. 215; Wilkinson v. Jett, 7 Leigh, 115. But see Heyhoe v. Burge, 9 C. B. 431; Taylor v. Terme, 3 Har. & J. 505; Everitt v. Chapman, 6 Conn. 351; Bradley v. White, 10 Met. 303. See also Ambler v. Bradley, 6 Vt. 119; Blanchard v. Coolidge, 22 Pick. 151; Denny v. Cabot, 6 Met. 82; Champion v. Bostick, 18 Wend. 184. Where a broker bought wheat for E. & H. with their funds, and an agreement is made between the three that the broker shall dispose of the wheat, and that the profits shall be equally divided, the broker is neither partner nor joint owner of the wheat. Hanna v. Flint, 14 Cal. 73. See also Holmes v. Porter, 39 Me. 157; Chase v. Stevens, 19 N. H. 465; Matthews v. Felch, 25 Vt. 536; Pott v. Eyton, 3 M. G. & S. 32, and Heimstreet v. Howland, 5 Denio, 68. See also Lafou v. Chinn, 6 B. Mon. 305; Barry v. Nesham, 3 M. G. & S. 641; Conklin v. Barton, 43 Barb. 435.

(mm) Bidwell v. Madison, 10 Minn. 13; Parker v. Fergus, 43 Ill. 437.

(mn) Bullen v. Sharp, L. R. 1 C. P. 86.

1 It being stated that participation in profits is merely cogent evidence of partnership, Holme v. Hammond, L. R. 7 Ex. 218; Mollwo, etc. Co. v. Court of Wards, L. R. 4 P. C. 419; Pooley v. Driver, 5 Ch. D. 458; Ex parte Tennant, 6 Ch. D. 303; Harvey v. Childs, 28 Ohio St. 319; Eastman v. Clark, 53 N. H. 276.

Where both profits and losses are to be shared it is almost conclusive evidence of partnership, especially if there is a capital or stock which is owned jointly and used in the business. Beauregard v. Case, 91 U. S. 134; Autrey v. Frieze, 59 Ala. 587; McGill v. Dowdle, 33 Ark. 311; Harris v. Hillegass, 54 Cal. 463; Morse v. Richmond, 97 Ill. 303; Kuhn v. Newman, 49 Ia. 424; Aultman v. Fuller, 53 Ia. 60; Marsh v. Russell, 66 N. Y. 288; Falkner v. Hunt, 73 N. C. 571; Jones v. Call, 93 N. C. 170; sharing the profits, and one who is the most active partner, as salesman or the like, calls, in the articles, his share of the profits a salary, he is nevertheless a partner as to third persons; the rule as to wages or salary applying only to those who are strictly only employed by the firm. (mo)

It is sometimes difficult to distinguish between partnership and tenancy in common; and this question is often important, as determining between the adverse rights of the creditors of the individual owners, and those of persons who claim as partnership creditors. In general, if the property owned jointly is so * owned for the purpose of a joint business, and is so used, and the profits resulting form a common fund, it is partnership property; otherwise not. (n)1

(mo) Brigham v. Clark, 100 Mass. 430.

(n) Post v. Kimberly, 9 Johns. 470; Murray v. Bogert, 14 id. 318; Hawes v. Tillinghast, 1 Gray, 289. Where the owners of land let it, agreeing with the occupiers to receive one half of the grain, etc, in consideration of the occupancy, the owners and occupiers, together with other persons whom the occupiers admitted to a share in the grain in consideration of their doing a portion of the farm work, were held to be tenants in common of the grain. Putnam v. Wise, 1 Hill (N. Y.), 234; Caswell v. Districh, 15 Wend. 379; Walker v. Fitts, 24 Pick. 191; Frost v. Kellogg, 23 Vt. 308; Case v. Hart, 11 Ohio, 364; Smyth v. Tankersly, 20 Ala. 212; Jackson v. Robinson, 3 Mason, 138. A and B were tenants in common with C and D of a ship in certain proportions, and purchased a cargo by an agreement, on their account in the like proportions for a voyage, and consigned the same to the master for sale and returns; it was held that they were tenants in common of the cargo, and not partners. Story, J.: " It does not by any means follow because the purchase was made for the account of all, or the shipment was made in the names of all, that this constituted them partners in the sense of a joint interest. They might authorize a common agent to purchase or ship goods for them according to their several and separate interests, without involving themselves in a joint partnership responsibility. In my judgment there was no community of interest in the cargo, as partners. It appears from the admissions of the parties, as well as the proofs, that they never were, nor designed to be partners; and that they held their titles to undivided portions of the cargo, not as a common, but as a separate interest. They were, therefore, tenants in common of the cargo, having no general commu-nity of the profit and loss, but only a proportion according to their separate interests. If either had died, his share would not have survived to the others." Harding v. Foxcroft, 6 Greenl. 76. See Thorn-dike v. De Wolf, 6 Pick. 124. Where one party furnishes a boat and the other sails it, an agreement to divide the gross earnings does not constitute a partnership. Bowman v. Bailey, 10 Vt. 170; Duryea v. Whitcomb, 31 Vt. 395.

Duryea v. Whitcomb, 31 Vt. 395. And it is immaterial that the parties expressly agree that there shall be no partnership. Ex parte Delhasse, 7 Ch. D. 511; Moore v. Davis, 11 Ch. D. 201.

But it is possible that there should be community of profit and loss and yet no partnership, Walker v. Hirsch, 27 Ch. D. 460; Snell v. DeLand, 43 Ill. 323; Chaffraix v. Lafitte, 30 La. An. 631; Dwinel v. Stone, 30 Me. 384; Monroe v. Greenhoe, 54 Mich. 9; McDonald v. Matney, S2 Mo. 358; Clifton v. Howard, 89 Mo. 192; Osbrey v. Reimer, 51 N. Y. 630; Edwards v. Tracy, 62 Pa. 374; Farrand v. Gleason, 56 Vt. 623. See also Nelms v. McGraw, 93 Ala. 245; Demarest v. Koch, 129 N. Y. 218.

1 See as to a joint ownership of land, Letorey v. Korstall, 27 La. An. 83; Steward v. Blakeway, L. R. 6 Eq. 479: L. R. 4 Ch. 003; as to a joint ownership of a steamboat, Adams <•. Carroll. 85 Penn. St. 209; Ward v. Bodeman, 1 Mo. App. 272. See also Quackenbush v. Sawyer, 54 Cal 439; Fanners' Ins. Co. v. Ross, 29 Ohio St. 429.

Farming on shares does not constitute a partnership. Tayloe v. Bush, 75 Ala. 432;