her own money or money obtained from the sale of the produce of the farm; that Margaret's name appeared on the notes in 1912 as an accommodation to her; and that at no time was a co-partnership agreement made, or was such a thing recognized by her.

A number of witnesses were called who testified either that they dealt with these parties as partners, or that they dealt with Anna as an individual in operating the farm. Dr. Stubbs testified that they told him they would be responsible for the medical services rendered to their mother. This, however, did not make them partners, but was in compliance with their agreement with their father.

The relation of these parties as to the farm simply grew out of their having been left on it, to care for their mother, by their brother and father, both of whom went away shortly after the lease was made, and did not arise from any express or implied agreement of co-partnership between them. They were no more than co-tenants of the farm, and this did not make them partners. As the defendant, with her own money, and at her own risk, conducted the business, she had to bear all losses, and is likewise entitled to all profits that have been made.

It is agreed by both the parties that the operation of the farm resulted in loss during the first year or two, so that the plaintiff would be entitled to nothing, if an agreement of co-partnership had been made by them, as she dissolved and ended it in 1913. It is true that she says in the latter part of her testimony that she did not dissolve it. What she did say and what she did do was a dissolution of it, however, if one existed, no matter whether she calls it that or not. She therefore suffers no loss by our finding that no agreement of co-partnership was made.

CONCLUSIONS OF LAW.

In order to prove the existence of a partnership much stronger testimony is required, when the controversy is between the alleged parties to it than is required between such parties and third persons. Its formation between the parties must rest on a contract expressed or implied; Gibb's Estate, 157 Pa. 59. Where the interest of the third parties is not involved, much stronger proof is

required to establish the existence of a partnership than where the question arises between alleged partners and third persons: Tillinghast v. Berkery, 10 York 129. The parties to this suit having been left in possession of the farm, bore the relation to each other of tenants in common while they were in possession. There is no presumption that a partnership arises from that relation alone; Neill v. Shamburg, 158 Pa. 263. Tenants in common may become partners but they must agree to assume that relation to each other, as it does not arise by implication from their relation as tenants in common: Brady v. Colhoun, 1 P. & W. 140; Dunham v. Loverock, 158 Pa. 197. These cases are authority for our refusal to find that a partnership agreement had been entered into in this case.

2. There being no partnership shown the bill must be dismissed at the costs of the plaintiff. A decree will be drawn by counsel for the defendant to this effect in accordance with the equity rules.

July 5, 1919. Opinion by Hassler, J.

We have examined the exceptions to our findings and conclusions, and are not convinced that any error was committed in arriving at them. We, therefore, dismiss the exceptions, and direct counsel for the defendant to draw up a decree in accordance with the Equity Rules. Exceptions dismissed.

OXNAM v. OXNAM.

Husband and wife were living together in an apartment which they were compelled to vacate. They then agreed that he should go with his mother and she should go with her relatives. In order to reestablish the home, the husband imposed certain conditions which the wife held under consideration. Subsequently, the wife begged her husband to establish her home, and if her request would be complied with she would cease her employment. The libel in divorce set a date for the desertion which, under the evidence, was nothing more than separation, and under the facts as fully established by the testimony, as found by the master, there was not such a wilful and malicious desertion as would entitle libellant to a divorce.

An offer to establish a home must be made in good faith in order to begin the running of the period necessary to obtain a divorce on ground of desertion.

The allegata and probata in the libel sur divorce must agree, otherwise libel must be dismissed.

In the court of Common Pleas of Montgomery County. No. 10, October Term, 1918. Divorce.

Theo. Lane Bean, Attorney for Plaintiff.

Larzelere, Wright & Larzelere, Attorneys for De

fendant.

Opinion by Swartz, P. J., January 19, 1920. The master found that the petition should be dismissed upon two grounds: first, that the desertion did not begin on October 22, 1916, as alleged in the complaint; and, secondly, that even if this objection could be waived, the evidence did not show that the wife had committed wilful and malicious desertion.

At the hearing and argument before the Court counsel for the libellant endeavored to show that the master was in error in reaching these conclusions.

The parties were married on March 4, 1916, after an acquaintance of six months. Before marriage Mrs. Oxnam lived in Philadelphia and was employed in that city as a stenographer and bookkeeper, receiving compensation at sixty-five dollars per month. Mr. Öxnam lived in Norristown, and was earning eighty-five dollars per month in said borough.

The parties agreed, before marriage, that they would go to housekeeping in the said borough, but that the wife was to continue her employment in Philadelphia until the husband had established himself and completed the house or bungalow that was in process of construction at Audubon. He had to pay certain monthly installments for the cost of the lot and building.

They rented housekeeping rooms in an apartment building, and continued to occupy the same until August 31, 1916. The wife continued her Philadelphia employment during all this time. There were no disputes or quarrels during this period, except that the husband complained that the wife could not give proper attention to her home duties as long as she continued to make her daily trips to Philadelphia. He asked her to give up her position and find similar employment in Norristown. She claimed that she could not obtain the wages in Norristown that she was then receiving in the city. The wife made some inquiries concerning employment in this

borough, but the husband made no efforts to find a position for her. He asked her to make a trial in Norristown. She answered that then she might lose her Philadelphia position, and that her wages were needed to pay for the bungalow, furniture, and other needs.

They placed their earnings in a common box, and there was not enough surplus at the end of any month to show that they could meet their assumed obligations without her earnings.

Their landlord notified them to quit because there was too much noise in their rooms. The members of a boat club were in the habit of visiting the Oxnam apartments. There is no proof that the wife was any more responsible for these noises than her husband.

Each requested the other to procure a new home. Nothing was done by either, and when the time for leaving the apartments arrived it was agreed that the husband should go to his mother's home in Norristown, and that the wife should live with her relatives in Philadelphia until other arrangements could be made.

This was a separation by mutual consent, and not a desertion on the part of the wife.

Between August 31 and October 22, 1916, the wife made three visits to see her husband at the home of his mother where he resided. She remained all night on each occasion, and they occupied the same bed. On each visit the subject of renewing their housekeeping was discussed. The husband, however, imposed conditions under which he would resume living with his wife.

There was a controversy as to these conditions so imposed by the husband. The correspondence shows that they were more severe than those testified to by the husband before the master, but taking his version of the conditions, he demanded that she should give up her employment, and stop drinking, then he would take her back and provide a house. He admits that each time she replied that she would consider the proposition, and then decide, and let him know. This is her testimony. When she left on October 22, 1916, the last of her three visits at the mother's house, they kissed good-bye. This certainly was not wilful and malicious desertion, yet this is the day assigned in the libel as the period when the desertion began.

The master finds no evidence to support the charge of drunkenness made against the wife. If there is such evidence it relates to a single occasion. She was under the influence of gin a short time after the marriage. The liquor was furnished by the husband because she suffered from cramps at the time of her menstrual period. He even purchased gin for her before marriage, and for the same medicinal purpose.

When she was under the influence of liquor, as the husband knew, because he furnished the gin and filled the glass for her again and again, he did not protect her nor respect her condition, but allowed a young man to enter her bed room, without any remonstrance or protest on his part. Another occasion is specified, when the smell of liquor, it is alleged, was on her breath. The third specification relates to another visit at the mother's house, on a rainy night. The wife explains the cause of her condition, and declares it was not due to liquor. If she is truthful the members of the mother's family are in error. It is not necessary to pass upon this disputed question. She worked continuously both before and after her marriage for the same employer. She was always on duty, in a responsible position, and never gave a single indication that she used intoxicating drink. This is the evidence of the manager of the establishment. Surely, proof that a wife was intoxicated but a single time will not justify her husband in excluding her from his home, or charging her with desertion because she declined to say that she would stop drinking. She avers that at this time his sole request was that she should give up her employment.

She took the demand under consideration on October 22nd, and promised to make a decision. Clearly there was no desertion by her on that date.

The allegata and probata must agree, and the libellant must establish the desertion as of the date alleged. That was decided by this Court, as well as by the Courts in other counties of this Commonwealth: Brown v. Brown, 28 Dist. Rep., 153.

The husband was not in a position to exact the requirement that she should give up her work in Philadelphia. Marriage is a civil contract, and when he stipulated that she should continue her employment until he finished his house, or secured a home, it was his duty to