ownership of the partnership funds, according to the intention of the parties, and an agreement, either expressed or implied, to participate in the profits or losses of the business, either ratably or in some other proportion to be fixed upon by the copartners." Apply this test to the contract in this case, and it will be obvious that no partnership subsisted between the parties. It was manifestly the intention of the parties, that no such association should exist between them. It was an arrangement, in which benefits were to be realized by one firm from the other, and compensation conferred in proportion to the profits of a particular branch of their respective business operations, and unlike a partnership arrangement, the one party was expressly excluded from any participation in the business of the other, contributed nothing, and incurred no loss. The stipulations in the agreement, its qualifications and guarded phraseology, are repugnant to essential elements of a partnership inter se, and show that it could not have been contemplated by the parties. Judge Story, in his work on Partnership, sec. 30, says: "It may be laid down as a general rule, that in all such cases, no partnership will be created between the parties themselves, if it would be contrary to their real intentions and objects." We conclude, then, as between the parties, that no partnership existed, and therefore the agreement in that respect was admissible in evidence.

2. The agreement was next objected to, on the ground that it was not a contract between the parties to this suit, as one member of a firm can not bind his copartner under seal. This rule, in its general application to common-law proceedings, can not be disputed. But originating chiefly from technical reasons, connected with the doctrine of agency, it has been considerably relaxed by recent decisions, in order to accommodate the advancement of commercial intercourse, and the exigencies of business associations.

It now appears to be well settled that a sealed instrument made by one partner in the name of the firm is binding upon his copartners who assent to the contract before its execution, or subsequently adopt it either by parol or other evidence of ratification: Cady v. Shepherd, 11 Pick. 405 [22 Am. Dec. 379]; Clement v. Brush, 3 Johns. Cas. 180; Bond v. Aitkin, 6 Watts & S. 165 [40 Am. Dec. 550]. In Swan v. Stedman, 4 Met. 548, it was held that the adoption of such an instrument, might be shown by mere silent assent thereto.

It now remains to be seen, whether John Rivereau of the firm of A. Alexander & Co., and Silas Haight of the firm of Joseph

Price & Co., have sufficiently assented to and adopted the instrument signed by their respective partners, in the company names. So far as Rivereau is concerned, the simple fact that the suit was brought in the partnership name amounts to a sufficient adoption of the instrument on his part, and precludes the defendants from denying his participation in its execution: Dodge v. McKay, 4 Ala. 346. In relation to Haight, it appears by the bill of exceptions, that the plaintiffs below introduced him as their witness, and among other things proved by him, that the firm of Joseph Price & Co. consisted of said Price and himself; that after said agreement was drawn up, it was shown to him, and he assented to its correctness, and was satisfied with its provisions, and that under it, the respective parties went on and transacted business. That this amounted to a full sanction and ratification of the agreement by all the parties can not, we think, be questioned.

Again, it appears by the testimony of Haight, that the said firms were engaged in the storage, forwarding, and commission business at the time the contract was entered into, and it may therefore be very correctly regarded as within the scope of their commercial dealings, as an agreement which would have been equally binding upon the parties without a sealed or even a written instrument. It could not, consequently, be vitiated by the addition of a seal: Anderson v. Tompkins, 1 Brock. 456; 3 U. S. Dig. 393, sec. 26; Deckard v. Case, 5 Watts, 22 [30 Am. Dec. 287]. In Tapley v. Butterfield, 1 Met. 515 [35 Am. Dec. 374], it was held that one partner has authority, without even the knowledge of his copartner, to mortgage the whole stock in trade, to secure a particular creditor of the firm; it was also held that the rule that one partner can not bind his copartner by deed, does not prevail when he thereby conveys property of the firm which he might have conveyed without such deed, and hence it was concluded by the court in that case, that the sealed mortgage of the goods executed by one partner in the name of the firm bound both of them, and constituted a valid lien upon the property. These authorities show to what extent the rule in question is relaxing in its adaptation to business operation, and they also support the conclusion to which we have arrived in this case, that all the parties to this suit became parties to and were held by the instrument in question.

3. Evidence was given by the defendants below, showing that the plaintiffs, after the contract was entered into, ceased to do business as forwarding and commission merchants, and that in

consequence, the defendants had been obliged to hire additional lands, and also that by virtue of a city ordinance, they had been compelled to pay forty-seven dollars wharfage.

In relation to this evidence, instructions were given, to which objections are urged. We have carefully examined the several instructions, as given, refused, or qualified by the court, and can see nothing that will justify a reversal of the proceedings. Upon the first branch of the evidence the jury were instructed, that if plaintiffs abandoned the contract before any violation thereof by the defendants, that they also had a right to abandon it on their part, provided the abandonment of plaintiffs was not by their consent or at their request. They were also instructed, that if the plaintiffs neglected to perform their part of the contract, in consequence of which the consideration of the agreement failed, they could not recover. These instructions, we think, comprise all that was material for the defendants below, and all they should require in a just submission to the jury, or in a fair adjudication of their rights. Upon the other point, the court instructed the jury, that if after the contract an ordinance was passed creating a liability on either party, by way of taxation or license, and if the parties still continued to act under the contract as they did prior to the passage of such ordinance, it could not be set up in avoidance of the contract. We think the plaintiff in error has no reason to complain of this instruction. It is stipulated in the contract, that it should not interfere with any ordinance that might be passed relative to the landing, the wharf, and wharf-boats. It appears, then, that such ordinances were anticipated when the agreement was entered into, and still the parties agreed that they should respectively conduct their own business at their own expense, and sustain their own losses. Any tax for license upon the business of either firm would come under the denomination of expenses, which, according to the agreement, should be defrayed by the party incurring them. And agreeable to the instruction if the party voluntarily continues in the transaction under such additional expense, it shows an acquiescence in it, which will prevent an avoidance of the contract.

It is true, that a portion of the special instructions asked for in this case might have been given with propriety, but as the substance of those special instructions was included in those of a more general character, there was no impropriety in refusing them: Gentry v. Borgis, 6 Blackf. 261.

Judgment affirmed.

SHARING IN PROFITS OF BUSINESS CONSTITUTES PARTNERSHIP ordinarily, though it gives no title to the capital stock: Bartlet & Co. v. Jones, 49 Am. Dec. 606 Property jointly owned by the partners is not required to constitute a partnership: Champion et al. v. Bostwick and Wife, 31 Id. 376; but though the right to jointly share profits makes the parties liable as copart ners, there may be cases in which a person receives a compensation for his services in proportion to the gross profits of the business, without his becoming a copartner: Id. and note 382, where other cases in this series are collected: Bradley v. White, 43 Id. 435.

INDIVIDUALS MAY BE LIABLE AS PARTNERS AS TO THIRD PERSONS, while as between themselves they are not: Allen v. Dunn, 33 Am. Dec. 614; Heran v. Hall, 35 Id. 178, and generally, as to what constitutes a partnership, see note to Loomis v. Marshall, 30 Id. 608.

AUTHORITY UNDER SEAL IS NECESSARY TO ENABLE ONE COPARTNER TO BIND THE OTHER by a note, under seal, in the name of the partnership, and previous assent, by parol or subsequent adoption, will not render the unauthorized bond of a copartner binding as to the other: Turbeville and Darden v. Ryan, 34 Am. Dec. 622; contra: Cady v. Shepherd, 22 Id. 379; but if the other partner be present and assent to the execution of the instrument, he will be bound by it: Fichthorn v. Boyer, 30 Id. 300; Hart v. Withers, 21 Id. 382; and generally, see Robinson v. Crowder, 17 Id. 762; Morse v. Bellows, 28 Id. 372, and notes to cases above cited.

WHERE PROPER INSTRUCTIONS COVERING WHOLE GROUND OF CONTROVERSY are given by the court, the judgment will not be reversed merely because some instructions asked for and rejected might have been granted: Mutual Safety Insurance Co. v. Cohen, 43 Am. Dec. 341.

THE PRINCIPAL CASE IS CITED to the point that parties may be adjudged partners as to third persons when they could not be so regarded as between themselves, in Stanchfield v. Palmer, 4 G. Greene, 23; Ruddick,v. Otis & Snow, 33 Iowa, 404; Williams v. Soutter et al., 7 Id. 446.

DE FRANCE v. SPENCER.

[2 G. GREENE, 462.]

DEFENSE TO ACTION FOR SETTING FIRE TO PRAIRIE.-Ordinary prudence and honest motives in setting fire to a prairie, and due diligence in preventing it from spreading, are all that is necessary to constitute a good defense to an action for damages occasioned by such fire.

ERROR to Jefferson district court. The opinion states the facts.

Slagle and Acheson, for the plaintiff in error.

C. Negus, for the defendant.

By Court, KINNEY, J. Spencer sued De France and Karns before a justice of the peace, for damages sustained by reason of a fire which he alleged was set out by the defendants, and by them permitted to communicate with his premises. Before the

justice, the defendant in error obtained a judgment, from which the defendants below appealed. In the district court a verdict was returned by the jury against De France for twenty dollars. To reverse the judgment upon this verdict he has sued out a writ of error, and assigns for error the following instruction of the court: "He who voluntarily sets out fire on his own land is responsible for the damage done by its spreading upon the lands of others, even though he uses due diligence to restrain it."

This instruction was erroneous. The statute relied upon to sustain the instruction provides, "that if any person or persons shall set on fire or cause to be set on fire any woods, prairies, or other grounds whatever, other than his own, or shall permit the fire set out by him to pass from his own prairie or woods to the injury of any person or persons, every person so offending shall on conviction thereof, for every such offense, be fined in any sum not exceeding fifty dollars, and shall be liable to an action to the party injured, for all damages which he, she, or they may have sustained in consequence of such fire:" Laws of 1846, p. 3, sec. 1.

Aside from this statute, it would not be contended that a person would incur liability for damages sustained by fire passing from his own premises, if he had used proper caution and diligence in preventing it. This principle is fully sustained in Clark v. Foote, 8 Johns. 421; Bachelder v. Heagan, 18 Me. 32; Ellis v. Railroad Co., 2 Ired. L. 138.

Does our statute change this rule, and make an individual responsible for damages done by fire passing from his own premises, when it was not within his power to prevent it? We think not. The meaning of the statute is, that a person shall not willingly or carelessly permit or suffer the fire to pass so as to injure another; or if he does, that he should be liable to the party injured. If a person does all in his power to prevent the fire from passing, but if, in opposition to all of his efforts, it still passes, onto the premises of another, he does not, in contemplation of the statute, permit it to pass. It encroaches upon his neighbor against his best efforts, without his consent or permission, and he should not be held liable for any damages which it may occasion. While a person has a right to set fire to his own grounds, yet if he does so when, from their contiguity to those near him, or from high wind, or other cause, the result would lead to mischief, in such case he would be liable if injury is done to his neighbor's property; because he could not exercise diligence to prevent fire with that success as if the