The principle involved in this view of the contract is supported by courts of acknowledged reputation, and by text-writers of authority. In Everly v. Durborrow, 8 Phila. 93, a bill was filed for an account between partners, where one contributed money, and the other time and skill, and the whole capital was lost, but the relief was denied by Judge Sharswood, who cited the following language from Lindley on Partnership: "Whatever at the commencement of the partnership is thrown into the common stock belongs to the firm, unless the contrary can be shown"; and then said what, he adds, does not contradict this: "At the expiration of this partnership, this capital shall be returned without interest before the final division of profits. But here there are no profits to be divided; there is no capital to return, Everly has lost his money, and Durborrow has lost what he set against it, his time and services enhanced in value by his knowledge of the business." This, it is true, was a nisi prius decision, but the great name of Judge Sharswood gives it just authority. The same view was held by the eminent Chief Justice Robertson, of Kentucky, in Heran v. Hall, 1 B. Mon. 159, 35 Am. Dec. 178, who said: "It is a general rule that when the capital of one party is money, and that of the other labor or other personal service, they are not partners inter sese in the technical sense, merely because they had no mutual interest in the profits, and that nothing else appearing, even considering them partners in the stock, he whose capital was labor would not be liable to him whose capital was money for contribution for any loss of capital in the adventure; for in such a case each will have sustained a correspondent loss of his capital; and neither of them would therefore be liable to the other for contribution."

758. In Cameron v. Watson, 10 Rich. Eq. 103, the same view was expressed by Chancellor Dunkin, quoting from Puffendorf: "In partnerships where, on the one side, labor is contributed, and on the other only the use of money, that partner who contributed the money does not always admit the other to a share of the principal, but only to a share of the profit which such labor and money joined together might produce. According to this rule, if there should be nothing gained by the partnership concern, A should lose his labor and B his interest, which would be equal and just. And should the original stock be diminished by the same rule, A loses only his labor, whereas B would lose interest and a part of his principal. At the dissolution B would be entitled to claim his money capital before any division of

profits. A could claim nothing as profits until the amount put in by B was returned. On the other hand, if it was not there, B, who had thus risked his property, must submit to the loss."

In Manly v. Taylor, 50 N. Y. Sup. Ct. 26, this opinion is said to be sustained by the weight of authority, and in Hasbrouck v. Childs, 3 Bosw. 105, the subject is discussed by Judge Murray Hoffman with great learning and fullness. After stating the general rule of equality, he says: "The case is very different when labor is furnished as an equivalent for the use of money only, and not as of equal value with the money itself. The contributor of capital has then a right to reclaim the amount from the fund. The contributor of labor is not liable for any part of a loss of such money. Res perit domino, is the maxim strictly applicable; and if any portion of the money is unexhausted, the party who advanced it receives it back." And in support of his statement he cites the passage from Puffendorf quoted in Cameron v. Watson, 10 Rich. Eq. 103, and says: "After a careful examination of the English authorities, I am satisfied that we are at liberty to adopt any just principle for the valuation of labor contributed to the partnership funds which the agreement of the parties does not preclude, and equity may dictate. 759 . . . . It is obvious that had the losses exhausted the whole capital Hasbrouck would in effect be made the guarantor of Child's capital in proportion to his interest in the profits-I apprehend that the agreement does not imply this, that the law does not warrant it, and certainly justice disclaims it."

The Pennsylvania, Kentucky, and South Carolina cases to which we have referred have been reviewed and disapproved in Whitcomb v. Converse, 119 Mass. 43, 20 Am. Rep. 311, but we are satisfied they state the sounder rule for the case before us.

We are confirmed in this conclusion by the language of the supreme court in London Assur. Co. v. Drennen, 116 U. S. 461, where the court said: "Persons cannot be made to assume the relation of partners as between themselves, when their purpose is no partnership shall exist. There is no reason why they may not enter into an agreement whereby one of them shall partici pate in the profits arising from the management of particular property without his becoming a partner with the others, or without his acquiring an interest in the property itself so as to effect a change of title." And also by what is said in Paul v. Cullum, 132 U. S. 550: "While in the absence of written stipulations or other evidence showing a different intention, part

ners will be held to share equally both profits and losses, it is entirely competent for them to determine as between themselves the basis upon which profits shall be divided and losses borne, without regard to their respective contributions, whether of money, labor, or experience to the common stock."

We think the decree of the circuit court was erroneous. Decree reversed and bill dismissed, with costs to appellants above and below.

PARTNERS INTER SESE-WHO ARE NOT-CONTRIBUTION FOR LOST CAPITAL.-In a joint adventure where one person furnishes money and another labor, they are not partners inter sese, in the technical sense, merely because they have a mutual interest in the profits; and he who contributes the labor is not liable to him who advances the money for any part of the capital lost in the venture: Heran v. Hall, 1 B. Mon. 159, 35 Am. Dec. 178. But see Whitcomb v. Converse, 119 Mass. 38, 20 Am. Rep. 311

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

LUNT v. COOK.

[175 Massachusetts, 1.]

MORTGAGE SALE-LEVY ON EQUITY OF REDEMPTION -PURCHASE AT FORECLOSURE BY MORTGAGOR.-Where a mortgagor's equity of redemption has been levied upon, a subse quent purchase of the property by him at foreclosure sale operates as a conveyance of the title to him, and not as a discharge or release of the mortgage, and hence a deed given by virtue of a subsequent sale of the equity of redemption which had been levied upon is of no effect.

Writ of entry to recover land. The property was originally conveyed by deeds to the defendant (tenant), the grantee being described as George Ward Cook, trustee. There were no other words to indicate a trust aside from this description. The tenant gave a mortgage of the premises to one Bowley on May 29, 1897, which contained a power of sale. February 19, 1898, all of the tenant's interest in the property was attached. April 22, 1898, demandant recovered judgment against the tenant, and on May 21, 1898, he levied execution on the tenant's equity of redemption. June 22, 1898, the mortgagee sold under the power of sale to the tenant, George Ward Cook, agent, and gave a deed. July 28, 1898, after prior attachments had been dissolved, the officer sold the tenant's equity of redemption previously levied upon. The tenant offered in evidence a certificate of an entry to foreclose the mortgage given by him to Bowley. The demandant requested the following rulings: 1. The deeds from Hall, guardian, and from Bowley and others to Cook, trustee, did not create an estate in trust; 2. Such deeds conveyed an absolute title to Cook; 3. The evidence does not es

tablish a trust; 4. The deed from Bowley to Cook, agent, dated June 22, 1898, operated as a discharge of the mortgage given by Cook to Bowley; 5. The words "trustee" and "agent" in the deeds do not affect the construction of the deeds; 6. These words must be rejected as surplusage; 7. As matter of law, upon the evidence, the demandant is entitled to judgment; 8. The tenant is not entitled to judgment as matter of law. The judge made all the rulings, except the fourth, seventh, and eighth. Demandant excepted. Judgment for the tenant.

F. H. Pearl, for the demandant.

H. J. Cole, for the tenant.

3 MORTON, J. The effect of the levy was to devest the tenant of the equity of redemption: Capen v. Doty, 13 Allen, 262; Pub. Stats., c. 172, sec. 45; Stats. 1896, c. 464, sec. 1. All that remained to the tenant was the right to redeem from the levy: Pub. Stats., c. 172, sec. 32. This was taken away by the foreclosure proceedings, and the deed under the power of sale contained in the mortgage operated as a conveyance of the title to the tenant, and not as a discharge or release of the mortgage. The doctrine of merger does not apply. The rulings which were requested and refused were rightly refused.

4

Judgment for the tenant.

EXECUTION SALES OF THE EQUITY OF REDEMPTION are discussed in the monographic note to Atkins v. Sawyer, 11 Am. Dec. 193-198.

BONNEY v. BONNEY.

[175 Massachusetts, 7.]

MARRIAGE AND DIVORCE-CRUEL TREATMENT.-The acts of a wife in failing to stay at home and take care of her sick husband, or in refusing to consent to his hiring a nurse so to do, and in neglecting to properly administer medicines to him, he being under the care of a physician and financially able to procure proper food and nursing, do not constitute such cruel and abusive treatment as will authorize a suit for divorce, though his health was temporarily injured thereby.

P. A. Aubertin and R. O. Harris, for the libelant.

No counsel appeared for the libelee.

LORING, J. We are of opinion that the acts of the libelee did not amount to cruel and abusive treatment within