been placed where the firm would know it was set up, and could admit or contest it in time to save loss and complication.

The record and the argument on White's behalf give us no satisfactory means of knowing the proper extent of such a claim if valid. The balances as finally struck have rendered an awkward method of accounting harmless, but it seems to us that if the accounts had been correctly drawn out to begin with, this question would appear differently. The charges made by Rathbone & White evidently treat the money paid for the land and not the land itself as the original capital. Many of the payments on which interest is claimed were purchase money payments. We do not see from the record that Godfrey & Brother did not pay, at one time or another, the price of their one third interest. Whether Affred Rathbone has fully paid for his, concerns the private dealings of the defendants and not the firm. Leaving the land payments out of the question, the amount of advances becomes much diminished, and much less likely to have been deemed entitled to interest. But, whatever the amount may have been, the case does not show that any one expected it would be regard ed as a loan to the firm for any period, or at any rate of interest. Until some such idea was suggested, or some such claim asserted, it was not incumbent on complainants or Alfred Rathbone to suppose the advances were made except to suit Rathbone & White's convenience. They never asked to have the money refunded, and they never made interest claims, and they do not bring themselves within any doctrine which would put the other partners in the wrong for objecting to the allowance of interest.

White also complains because he was charged individually with a purchase of plaster which he paid for out of firm money, amounting to $1,429. We think this was clearly shown to have been a private speculation. And upon a few other items brought out on the argument, but not very earnestly urged, we are not disposed to disturb the conclusions, which we think were warranted by the testimony.

An item disallowed by the superior court for $125 paid by complainants to Mr. Goldsbury for examining the books and getting balances should, we think, have been allowed. This

was done in 1875 and the beginning of 1876, partly in concert with Alfred Rathbone. It is evident that from the manner in which the books were kept-although no doubt fairly keptthere was a good deal of difficulty in knowing just how matters stood. The balances had not been made up at all in the usual business way for about nine years. It was perfectly reasonable that any partner should desire an adjustment, and it was also reasonable that complainants should have some voice in procuring a competent accountant to do it. The work was done openly and not clandestinely, and the assistance of Alfred Rathbone was asked and given, and the results were of utility to all the firm. The preparation was necessary, and some one else would have been employed to do it if Goldsbury had not been. If not, we think some confusion would have been created. We think the expenditure may justly be considered as a common charge. We do not think it necessary to change the decree upon amounts and balances except as indicated heretofore.

But we do not think the decree for partition can be sustained. If all the parties had consented to it, the decree might not be objectionable, because partition can be made by consent. But partition is not an incident to a suit for accounting, and the partners have a right usually to have the assets disposed of, if they choose. If not disposed of, all that could be done would be to leave the land as a distinct tenancy in common, so that the tenants could have it partitioned in a separate suit if they should see fit. It is difficult to maintain a partition in such a case as this, unless on the theory that the court having an equitable jurisdiction to give partition generally, it may be done to avoid circuity of action.

Supposing such a practice permissible, upon which we need not decide, the Superior Court of Grand Rapids has no separate and original jurisdiction in partition outside of the city. Partition is unquestionably a local proceeding, and the circuit. court is the only court of equity able to enforce it.

The land should be sold and the proceeds divided.

There is one matter to which we feel constrained to refer with surprise. Several witnesses, and among them several of the parties, are stated by the commissioner to have waived the reading of their depositions before signing them. The

integrity of these gentlemen is not denied, and both commissioner and counsel seem to have supposed the practice correct. Except for the failure of any one to move to suppress, all this testimony must have been rejected. It is in no sense sworn testimony, any more than if they had signed affidavits in blank. It is merely the certificate of the commissioner that so far as he remembers they swore as he has certified. Where it appears on the face of a deposition that the party signing it does not know its contents, it exhibits a degree of carelessness in regard to the solemn obligation of an oath which has been, with how much truth we do not know, attributed to custom house oaths, but which we never saw before, and hope never to see again in the course of justice.

The reductions in the a lowances will take from complainants $5,875, from White $4,800, and from Alfred Rathbone $3,900.

This will leave their respective claims against the firm as follows: Complainants, $7,996.40; Amos Rathbone, $5,412.94; White, $3,983.94; Alfred Rathbone, $7,111.57.

The Superior Court, in order to avoid confusion, reduced the cash payments to each partner on his indebtedness against the firm by deducting $24,000 from the aggregate as made up and scaling down each share by its ratab'e proportion. The decree thus distributed actually about $15,000 on debts before dividing the balance. Under the present reduction a similar scaling may be made by deducting $1,000 for each twelfth share, so that complainants will be paid in cash in the first instance, by the receiver, $3,996.40; Amos Rathbone, $2,912.94; White, $1,483.94, and Alfred Rathbone, $4,111.57.

The decree must therefore be modified so as to require the payment of these sums in the first instance, and the distribution of the remaining assets must be made as soon as practicable in the proportion of each partner's interest in the firm. The lands must be sold by the receiver at public auction, on a notice of not less than six weeks, in a Grand Rapids newspaper, and the sale must be in parcels, according to the same division attempted to be made by the original decree by partition. Any partner bidding may pay for land struck off to him by allowing on the purchase so much of the proceeds of the aggregate sales as would fall to him on distribution.

As the changes in the decree operate so as to make it impossible to say that one appellant had prevailed rather than another, the costs of printing the record will be apportioned according to the interest of the partners in the firm, each party in other respects to pay his own costs. The decree will be modified accordingly. The other justices concurred.

LE FEVRE V. CASTAGNIO.

(5 Colorado, 564. Supreme Court, 1881.)

1 Interest in profits as means of compensation. Interest in profits does not necessarily make a person a partner or liable as a partner. If interested in the profits of a mine only as a means of compensation, he is not a partner. In such case his interest is not a property in the profits as such, but a claim against them as a fund out of which, when ascertained, he is to be compensated.

2 Evidence-Admissions of agent. In a suit against copartners for wages, the declaration of a party in the employ of the defendants as to the intention of one of the defendants to pay in a few days is not competent evidence unless his agency for that purpose is first established.

Appeal from the District Court of Ouray County.

Castagnio brought this action for work done by himself, Collitto and Wensen (the two latter having assigned their claims for work to Castagnio), against Moffett and LeFevre as partners. A verdict was rendered in favor of the plaintiff in the district court and judgment entered, from which Le Fevre appealed to this court.

The complaint alleged that in October, 1877, Le Fevre and Moffett were partners, working the Yankee Boy mine under lease, and while so working as partners, plaintiff and his assign-ors entered into a contract with LeFevre and Moffett to work on the mine. That they did the work, and that of the amount earned a certain amount was due and unpaid.

The defendant Moffett answered, admitting that plaintiff and his assignors worked for himself and Le Fevre; that the amount claimed was earned, but that plaintiff and his assign

1 Darrow v. St. George, 8 Colo. 592.

2 Alexander v. Cauldwell, 5 M. R. 650.

ors expressly contracted that they would not hold him and Moffett personally for their wages, but they would look to the ore mined for their pay and have a first lien on the ore mined therefor. He further averred that the lease on the Yankee Boy mine, under which he and Le Fevre worked, expired in July, 1878; at that time their partnership ceased; that at the time there was ore on the dump, and tools, furniture and provisions which were partnership property, sufficient to pay the said claims; that Le Fevre took possession of them, and asks that Le Fevre be compelled to satisfy the claims out of the ore, etc.

Le Fevre in his answers, among other things, denied the partnership in toto, and further denied that as a partner, or individually, he employed plaintiff or his assignors, or that they, or either of them, ever did work for him individually or as a partner.

The agreement between Moffett and Le Fevre, adverted to in the opinion of the court, was as follows:

"This agreement, made and entered into this twenty-third day of October, A. D. 1877, by and between Robert W. Moffett, of the county of Ouray and State of Colorado, and Leon Le Fevre, of the county of Hinsdale and State aforesaid, witnesseth that the said Rob't W. Moffett, on or about the 5th day of October, 1877, leased for the term of one year, from the owners thereof, the mining claim or lode known as the Yankee Boy,' situate in Mount Sneffles mining district, Ouray county, State aforesaid, for the purpose of working and taking ore therefrom; and that being without the means necessary to work to advantage the said mine, in consideration of the covenants on the part of the said Le Fevre to be performed as hereinafter provided, hereby agrees to pay to the said Le Fevre one fifth of all the profits that may be derived from working said mining claim during the time of his lease aforesaid; that is to say, from the 5th day of October, 1877, to the 5th day of October, 1878; and the said Rob't W. Moffett further agrees with the said Le Fevre, that he will deliver to said Le Fevre all oes that shall be taken out of said mine on the dump thereof, on the terms hereafter named, until all sums that may now be due, or that may hereafter become due to said Le Fevre for advances made thereon, shall have been fully repaid; and the said Moffett agrees and binds himself