
    Aretas Ferry versus Luther Henry.
    Where the complainant had agreed to sell goods for the defendant for four years for half of the profits, and the defendant agreed to board and clothe him out of the goods, and the complainant transacted the business accordingly, and at the end of the term the defendant possessed himself of the books and papers of the concern and detained them from the complainant, it was held, that the complainant, if he was not a partner of the defendant, had at least a joint interest in the books and papers, and so was entitled, under St. 1823, c. 140, [see Revised Stat, c. 81, § 8,] to a remedy in chancery against the defendant»
    ■ This was a bill in chancery, in which the complainant set forth, that in April 1821, he entered into partnership with the respondent, and signed an agreement to the following effect:— “I hereby agree to sell goods in Granby or some other place for L. H. for the space of four years, if he thinks best, for one half of the profits arising from sale of said goods. The s.aid L. H. on his part agrees to board and clothe me out °f the goods — that after this agreement was signed, the respondent took it into his possession ; that the complainant had never had in his possession any evidence of the partnership agreement, except a similar paper signed by the respondent ;■ that in pursuance of this agreement, the complainant commenced selling goods and transacting the other business of a country trader, on the 1st of June, 1821, and continued in the faithful conduct of that business for the space of four years; that during that period, the goods furnished by ■ the respondent, or for which he was accountable, amounted in value to 7168 dollars, and that the complainant paid to him 5077; that at the expiration of the four years, after the payment of the board and clothing of the complainant, and the discharge of every claim against the concern except the balance due to the respondent, there were goods on hand amounting at their retail price to 966 dollars, and there were due to the concern, on notes and on book, 4010 dollars; that by the direction of the defendant, the business was carried on in the name of the complainant alone; that on the 1st of June, 1825, the respondent, having possessed himself of the goods, bills, account books, notes and other papers belonging to the concern, refused to make any settlement with the complainant, unless he would allow certain unreasonable charges, and further refused to suffer the complainant to examine any of the goods, bills, account books, notes and other papers ; and that on the next day the respondent delivered to the complainant half of the goods on hand in part payment of what was due to him, but refused to produce the agreement before mentioned, or any of the books and papers, and to make a settlement of the partnership business ; — and the complainant prayed that the respondent might be compelled to come to a fair and just account with him, and to pay him whatever might be justly due on account of the premises.
    The defendant demurred generally, on the ground tho the case did not come within the chancery jurisdiction of the Court.
    The St. 1823, c. 140, provides (§ 1), that where any goods &c., writing or other personal property of any person shall be detained from him, so that the same cannot be come at to be replevied, this Court, on application by bill &c., may order the same to be delivered up, or compel such discoveties &c. as equity shall require; and (§ 2) that this Court may determine in equity all disputes between copartners, joint-tenants and tenants in common, in cases where there is no adequate remedy at law.
    
      Sept. 29th.
    
    
      E. H. Mills and Ashmun supported the demurrer.
    It is clear that the agreement stated in the bill did not make these parties copartners. It created simply an agency. To con stitute a partnership there must be a participation in loss as well as in profit; but here the defendant was to bear- the whole loss. It is well settled that persons may be partners as it regards third persons, and not so as between themselves. Gow on Partn. 1, cites 1 H. Bl. 37; Waugh v. Carver, 2 H. Bl. 235; Cheap v. Cramond, 4 Barn. & Ald. 663; Hesketh v. Blanchard, 4 East, 144; Wish v. Small, 1 Campb. 331, note; Meyer v. Sharpe, 5 Taunt. 74; Wilkinson v Frasier, 4 Esp. R. 282; Rice v. Austin, 17 Mass. R. 197; Muzzy v. Whitney, 10 Johns. R. 228. The case of Dob v Halsey, 16 Johns. R. 34, which is the only one adverse to our positions, conflicts with many of the above cited cases. The first section of the statute does not apply, for the defendant was the proprietor of the stock, books, notes, &c. The beneficial interest was in him.
    
      Newcomb and Wells, contra.
    
    1. The complainant was concerned indefinitely in the profits, and as he contributed his time and labor, he participated in the loss ; he was moreover expressly authorized to make contracts ; it follows that he was a copartner with the defendant. That they were partners in respect to third persons is conceded, and the presumption of law then is, that they were so as between themselves, there being no express agreement to the contrary. Gow on Partn. 1; Hamper, Ex parte, 17 Ves. 404; Dob v. Halsey, 16 Johns. R. 34; Gill v. Kuhn, 6 Serg. & Rawle, 337; Peacock v. Peacock, 2 Campb. 45.
    2. But if they were not partners, the notes &c. belonged to them as joint-tenants or tenants in common, and so the case is within the statute
    
      
      April term 1827, Greenfield
    
    3. Or the defendant was an agent, having a claim upon the notes &c. for the balance due to him, and so the first section of the statute applies.
   Per Curiam.

This demurrer is overruled. The case stated ln the bill is either that of a partnership between the complainant and respondent, or that of a joint interest in the funds of the store, either of which cases is within the provisions of the statute of 1823 giving jurisdiction to this Court as a court of chancery. A discovery is necessary to enable the complainant to know his portion of the profits, and the books and accounts of the store must be produced for the purpose of malting a settlement, unless by the answer which may be filed it shall appear that the bill ought not to be sustained. 
      
       See Revised Stat. c. 81, § 8
     