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PARTNERSHIP. (What is meant by community of profit.) The test of partnership is a community of profit; but to constitute such community of profit, the party must have a specific interest in the profits themselves, as profits, in contradistinction to a stipulated portion of the profits as a compensation for his services. Loomis v. Marshall et al., 12 Conn. 69. 2. (Same.) Therefore, where A, residing at a distance from a factory of cloths, occupied by B, entered into an agreement with B, by which A was to furnish a full supply of wool for the factory, for two years; B was to manufacture such wool into cloths, in a good and workmanlike manner, and to devote the entire use of the factory to that purpose, for such term; and the net proceeds of the cloths, after deducting incidental expenses and the charges of sale, were to be divided, so that A should have fifty-five per cent, and B forty-five per cent. thereof; in the manufacture of satinets from such wool, A was to pay fifty-five per cent, and B forty-five per cent. of the cost of the warp; the expense of insurance effected on wool or cloths was to be borne by A and B, in the same ratio as their interest was in the final division of the avails of the cloths ; and in case of the destruction of any wool or cloth by fire, the amount to be received from the insurers was to be divided between A and B according to the loss sustained by each; in an action brought by C for work and labor done in the factory, against A and B as partners, it was held, that B had no other interest in the profits, than a compensation for his labor and materials, by a percentage on the avails of the cloths; and, consequently, that A and B were not liable as partners. [The chief justice dissenting.] Ib. PAYMENT. (Presumption from part.) An indorsement of part payment upon a written contract, when it is proposed to be used for the purpose of rebutting a presumption of payment of the balance, can have reference only to the time such part payment purports to have been made. Hayes v. Morse, 8 Vermont,316. PLEADING. (Action against surety.) In an action against a surety on a joint and several promissory note, the surety pleaded, that he tendered to the plaintiffs the amount due on the note, in order to be enabled to recover the same of the principal, but that the plaintiffs refused to receive it. The plaintiffs replied, that at the time of such tender, an action was pending in their favor, against the principal ; that they offered to receive the sum tendered in satisfaction of the note, provided that the surety would pay the costs legally due in such action, and indemnify them against the payment of costs to the principal; that the surety refused so to do; that afterwards the plaintiffs, having recovered judgment in such action, offered to receive of the surety the amount due on the note, in full satisfaction of their claim against him, which the surety refused to pay. It was held, that the replication was not double, the last averment being mere surplusage; and that such replication properly concluded with a verification. Hampshire Manufacturers Bank v. Billings, 17 Pick. 87. POSSESSION. (Delivery on condition.) A delivery of property to another, to be paid for at a given price, and to become his, upon condition that the price be paid, is not fraudulent as against the creditor of the vendee. Bigelow v. Huntley, 8 Wer. 150. 2. (Same.) And in case it be attached by the creditor of the vendee, before condition performed, the vendor will hold the same against the attaching creditor. The vendor has a right, in such case, to determine the bailment, and resume the possession. Ib. 3. (Same.) And, although a specific time is given for the payment of the price, which has not expired, yet, if the property be attached, upon process against the vendee, and the vendor receipt the same to the officer, he becomes entitled to the possession, and may maintain trespass or trover against a subsequent attaching creditor of the vendee, who takes the property from his possession. Ib. 4. (Same.) In such case, the right of possession being in the vendor, though only as receiptor, the rule, that the plaintiff cannot recover when he has not the right of possession, does not apply. Ib. 5. (Where in the hands of a third.) Where personal property, when sold, is in the possession of a third person, and that person is fully informed, both by the vendor and vendee of the property being sold, this is a sufficient change of possession to protect it from the creditors of the vendor. Pierce v. Chipman, 8 Wermont, 334. 6. (Same.) The purchaser of a chattel committed it to the keeping of a third person, who suffered it, without the knowledge or consent of the purchaser, to go back into the possession of the vendor, when it was attached by his creditor. Held, that the creditor might hold the chattel. Emerson et al. v. Hyde, 8 Vermont, 352. 7. (What required by law.) The law requires such change of possession, as indicates to the world at large a change of ownership ; and if such possession is not taken by the purchaser, it is no excuse that he entrusted the chattel to another, who was negligent or unfaithful. Ib. PRESENTMENT. (Note payable at a particular place.) If a note be made payable at a particular place, a presentment and demand are not necessary to entitle the holder to recover against the maker. Hart et al. v. Green, 8 Vermont, 191. PRESUMPTION. (Of payment of bond.) No presumption of payment of a bond can arise from mere lapse of time of any period short of twenty years. Mattocks v. Bellamy, 8 Wer. 463. PRINCIPAL AND AGENT. (Money of principal lent by agent.) Where an agent employed to collect money in New York, and to remit it to the principal, lent it there to the defendants, to whom he was indebted in a sum larger than the amount lent, telling them, that he could lend it until he should be ready to return home, but without informing them that the money belonged to the principal, it was held, that the defendants could retain the money as against the principal, even after notice that it belonged to him. Lime Rock Bank v. Plimpton, 17 Pick. 159. 2. (Lien of agent.) Where the agent of the original owner of property effects an insurance thereon, for the account of whomever it may concern at the time of loss, and by the terms of the policy, the insurance money, in case of loss, is made payable to such agent, if the assured assigns his interest in the property, to a bona fide purchaser or mortgagee, before any loss has accrued, the agent has no lien upon the insurance money, as against such assignee, for a general balance due from the assignor. Rogers v. Traders' Insurance Co., 6 Paige, 583.
PRINCIPAL AND SURETY. (Liability of surety.) As a general rule, the surety in a bond is not liable beyond the amount of the penalty, although the principal and interest due by the condition of the bond exceeds that amount. But it seems, that interest, by way of damages for the detention of the debt, during the time the defendant delays its collection by an improper or protracted litigation, may be recovered even as against a surety. Mower v. Kip, 6 Paige, 88.
2. (Joint sureties.) Joint sureties are bound as between themselves to contribute equally to discharge the debt for which they are jointly holden, and if one of them pays the whole, he is, in equity, subrogated to all the rights and remedies of the original creditor for the payment of his debt, not only as against the principal debtor, but also as against the co-sureties, to the extent they are equitably bound to contribute. Cuyler v. Ensworth, 6 Paige, 32.
3. (Surety in bond to government.) In an ordinary case of surety ship for a debt which is justly due, if the principal debtor neglects to pay it at the time stipulated in the contract, the surety may file a bill against such debtor and the creditor, to compel the former to pay the debt and the latter to receive it, and thus to relieve the surety from further liability. But this principle of equity is not applicable to the case of a surety in a bond to the government, where a breach of the condition is a forfeiture of the whole penalty of the bond; as the court of chancery will not lend its aid to enforce a forfeiture or penalty against the principal in the bond, before the surety has become absolutely fixed with the payment of the penalty by the recovery of a judgment against him as such surety. Gibbs v. Mennard, 6 Paige, 258.
4. (Promise by principal to surety.) A promise by a principal to pay into the hands of his surety, for his indemnity, the amount for which the surety has become accountable, whenever the latter shall be called on for payment by the creditor, or shall have reason to doubt the ultimate ability of the principal to save him harmless, is a valid promise, on which an action may be sustained by the surety; and it is not a prerequisite to an action, founded on such a promise, that the surety should have paid the debt, or any portion of it. Fletcher v. Edson, 8 Vermont, 294. PROBABLE CAUSE. (Evidence to shew.) To shew probable cause, the facts proved must be such as would reasonably induce an impartial and reasonable mind to suspect and believe that the party prosecuted had committed the offence charged; but mere suspicion or conjecture does not amount to probable cause. Stone v. Stevens, 12 Conn. 219. 2. (Suspicion of theft.) To constitute probable cause for a prosecution for theft, it is not sufficient that such circumstances existed, as would cause such suspicion and belief that the party prosecuted had taken the articles alleged to be stolen; the taking of an article from another not being necessarily synonymous with the stealing of it. Ib. PROMISSORY NOTE. (Recovery on when cancelled.) A party may recover on a promissory note which has been voluntarily given up to be cancelled. Reynolds et al. v. French et al., 8 Vermont, 85. 2. (Same.) If a debtor, by false and fraudulent representation, as to his situation, induce his creditor to deliver up to him his promissory notes upon payment of a part only of what is due, the creditor may, upon proof of the fraud, recover the balance of his debt in an action on the note. Ib. 3. (Delivery, essential to.) Delivery is essential to the validity of a promissory note. Chamberlain v. Hopps et al.,8Vermont, 94. 4. (Same.) The maker of a promissory note takes it from the holder, for the purpose of obtaining the signature of a surety. Another signs as surety, but the principal refuses to re-deliver, the note. The surety is not liable to a suit on the note. Ib.