had always sustained a fair character, though he had been unfortunate in trade, and that he left New England publicly, and brought with him to this country most respectable testimonials, of the rectitude of his moral principles, of his integrity, intelligence, and ability.

On the part of the defendant, John C. Wright, esq. and William Lowry, esq. were introduced, with sundry documents, to prove that plaintiff had borne the name of Milton Goodenow, before and after his coming to Steubenville to reside. The plaintiff's counsel conceded, and wished it to be understood, that they did not deny that the plaintiff had generally used the Christian name of Milton only, before and after he came to Steubenville, which was in September, 1812, until he was admitted to the bar in August, 1813.-Mr. Wright also stated that the plaintiff brought letters of introduction from his brother, and perhaps from others, to him, when he came to Steubenville-that he then used the name of Milton only; that he read law with him awhile; and that he gave him a certificate of good moral character, by the name of John Milton Goodenow, upon which he was admitted to an examination before the Supreme Court. Witness further stated, that when plaintiff first came to Steubenville he invited him into his family, where he resided for some time, and his conduct was fair and honorable.

The case was opened to the jury by Mr. Root, for the plaintiff-but the counsel for the defendant declined arguing the cause to that tribunal. They moved the court to instruct the jury that the plaintiff was not entitled to recover on the words proven, because—

1. The words were not in themselves actionable.

2. That if intended to be made so, by reference to the professional character of the plaintiff, they would not support an action because they related to a time anterior to the plaintiff 's admission to the bar.

3. That, if the words were spoken, as he contended they were, in confidence, they were not actionable, without express malice were proven: and,

4. That, if spoken by the defendant in discharge of his official duty as president judge, he was protected by the law, and no action would lie.

This motion was argued by Mr. Wright for the defendant, and Mr. Doddridge for the plaintiff and when the argument on the motion was closed, Mr. Silliman proposed to conclude the case by an argument for the plaintiff to the jury: but it was objected to by the defendant; and ruled by the court, that the practice had long been settled-that where the counsel for the plaintiff þad made an argument to the jury, (the testimony being closed,) to which the defendant's counsel declined to reply, he is not permitted to address the jury a second time.

The COURT instructed the jury upon the law governing the action, and"that words, although not actionable in themselves, may become so when spoken of a man in his professional or official character, if they impute to him dishonesty, want of skill, or any other matter that renders him unfit for the profession or occupation which he fills-That malice is the gist of the action; and that malice is implied from the untruth of the charge; but that this implied malice may be done away by circumstances: that it is necessary for public good that judicial officers, as well as others in whom an appointing power is lodged, should be protected in a free and unrestrained communication on the qualifications of candidates before them; but this should be exercised

in good faith, and ought not to be used as a cloak to cover malicious or wanton attacks upon those who may offer themselves for public employment. If, in the case submitted, the jury should be of opinion that the words were spoken in the discharge of the defendant's official duty, as presiding judge of the court before whom the plaintiff was a candidate for an office which was in the power of that court to bestow, and that the words were spoken in confidence, and without malice, they would then be stripped of that malice which constitutes the legal character of slanderous words, and the defendant would be entitled to a verdict: But this was a question of fact to be left to the jury to decide; and if they should not find the situation of the parties, and the circumstances under which the words were spoken-the time, manner and place of speaking-such as to divest them of their natural malicious import, the defendant would not stand excused."

The jury found the defendant guilty, and assessed the plaintiff's damages at six hundred dollars.

The defendant filed reasons for a new trial, and also in arrest of judgment. The reason for a new trial was as follows:

The verdict is against the law and evidence in this, that the only evidence upon which the verdict could be rested, is evidence of consultations and conversations held by the defendant to and with judges M'Elory and Moores, his associate judges of the court of common pleas of Jefferson county, of and concerning the appointment of a prosecuting attorney for said county, for which office the plaintiff was a candidate, and that by the law of the land no action of slander will lay, or can be sustained upon, and for words so spoken in the discharge of an official duty.

In arrest of judgment it was alledged that the third, fourth, fifth, and sixth counts in the declaration were not actionable.

The motion for a new trial was argued for the defendant by Hallock, and the defendant himself and by Silliman for the plaintiff.

Mr. Silliman, for the plaintiff. Hammond in support of the motion.

The COURT were unanimously of opinion that the seventh count was bad. Judges PEASE and HITCHCOCK were of opinion that all the other six counts were good. Judges BURNET and SHERMAN were of a different opinion as to some of the counts. The court therefore being equally divided on the motion in arrest, it failed; and the cause was certified back to Jefferson county, that examination might be had as to the abandonment of the seventh count. If the fact of abandonment is made out, judgment to be entered for the plaintiff on the verdict-otherwise judgment arrested.

Note by the Reporter.-The proceedings of the trial of this cause are abstracted from minutes of the trial published by the plaintiff. The account of the argument upon the motion for a new trial is taken from a copy of the defendant's brief, as furnished by himself.

In charging the jury the court are made to say, "that the words although not actionable in themselves, may become so when spoken of a man in his professional or official character, if they impute to him dishonesty, want of skill, or any other matter that renders him unfit for the profession or occupation which he fills.

It is possible that these latter terms may be understood by the profession to embrace much more than the judges intended. To prevent any misconceptions on this point, the Reporter subjoins, from his own notes, the following case decided at Dayton, June term, 1823, by Judges Pease and Burnet.

ASPINWALL v. WILLIAMS, ET AL.

In order to constitute a partnership, a communion of profit and loss between the parties is essential, and this is the true criterion, to determine, whether persons are parties or not.

Articles of agreement, for constituting a partnership, assigning to each party the performance of certain things to put the business into operation, constitutes a partnership immediately, and not from the commencement of the business itself.

When no name is adopted in the articles of co-partnership, and a contract is made by one partner on the joint account, a note given by such partner, in the name of himself and Co., is binding on all.

This cause was tried before the Supreme Court of Hamilton county, at May term, 1823, and a verdict rendered for the defendant. A motion was made for

a new trial and reserved for decision upon a case stated, at the special session in Columbus.

The substance of the case is as follows: On the 31st of July, 1818, the defendants entered into contract, of which they made a memorandum in writing, in the following words:

"MEMORANDUM of an agreement made and entered into this thirty-first day of July, one thousand eight hundred and eighteen, between Jacob Williams, of Mill-creek township, Hamilton county, and State of Ohio, on the first part, and Benjamin Gardner, jun., and William Chase, of Newport, State of RhodeIsland, on the second part, witnesseth, that the said Jacob Williams, Benjamin Gardner, jun. and William Chase, do agree to erect and build a distillery for the distillation of grain, jointly to share and share alike the cost of said establishment, to be erected on the ground of said Williams, near where he now resides. Now the conditions of this agreement are such, that the said Williams does, for himself, his heirs, and assigns, agree to lease for the occupation of said establishment, a certain lot of ground, not to exceed more than two, or be less than one and one half acres of land, through which there is a running stream of water, for the sole use of said establishment, or those interested therein; this lease to continue for the full term and time of fifteen years, to commence from the time of signing these instruments: and for his part doth further covenant and agree to erect the necessary buildings in order to go into the operation, to commence thereon immediately: the said Gardner and Chase, do on their part agree to provide the stills and worms of said establishment. It is further understood that a store of goods shall be established, to be furnished by said Gardner and Chase; and after the establishment shall be completed, the goods and stills on the spot, an equal proportionate of the amount paid by each shall take place, and a full adjustment be made. The whole establishment, goods, &c. &c. is to be equally owned by us three. The said Gardner to manage all things appertaining to the distillery inwards, and the said Chase all that concerns the out-door business of the

ANONYMOUS.

The action was brought for saying of the plaintiff, "he cannot get business any more :-he is so steady drunk that he cannot do business any more. The people will not employ him." The declaration contained the proper averments that the plaintiff was a physician, and obtained his living by the pursuit of his profession, and that the words were spoken of the plaintiff's professional conduct, capacity, business, &c.

Upon the trial of the cause, the speaking of the words being fully proven, the counsel for the defendant urged to the jury that the words were not actionable, because they did not touch the professional skill and capacity of the plaintiff, nor his professional integrity—that if it were actionable to say of a physician that he was drunk, or steady drunk, every individual ought to have

establishment; the said Williams to be consulted in all things, and his advice always to have due weight. Further, we, the said Jacob Williams, Benjamin Gardner, jun. and William Chase, do by these presents bind ourselves, our heirs, and assigns, for the full and faithful performance of the above obliga. tions; and should either of the parties feel disposed to sell or dispose of their interest therein, the remaining parties shall have the offer to buy out; and after the expiration of the lease, it shall be at the option of the said Williams to continue, or sell out; and that a settlement of all accounts shall take place quarterly, or half yearly. Respecting the purchase of grain it is understood, that whatever purchases each of the parties may make, it is to be binding on all the parties, or that what sales of whiskey or gin each one may effect, the other parties are to comply with."

Received five hundred dollars, in full for all damages, costs and debts, and especially for all damage on or respecting this article.

JACOB WILLIAMS.

After the making of this contract, the defendant, Chase, proceeded to New York with letters from merchants in Cincinnati, stating the character and responsibility of the defendant, Williams, upon the credit of which the plaintiff sold him a quantity of merchandise, and took a note for the amount executed by Chase in the name of Williams, Chase & Co. Upon this note the action is brought. It was admitted that Williams knew nothing of Chase carrying letters recommending his credit, to New York. It was also admitted that none of the goods came to the use of Williams, and that the business of distilling was never commenced between the parties.

HAMMOND for Plaintiff. CORRY for Defendant.

Opinion of the Court by Judge Burnet.

The question to be decided is, was there a partnership at the date of the note, so as to render Williams liable to this action.

On the part of Williams it is contended, that these articles do not show a partnership, at the time the note was given, but only a project for a partnership, to be consummated at a future day.

an action for the same words, which would be subverting the foundation upon which actions for words now rested, and opening a new and most mischievous source of litigation.

The counsel for the plaintiff resisted these arguments and inferences with great labor and ability; but the court coincided substantially with the defendant's counsel in the points made by them, and charged the jury that the words were not actionable. The defendant had a verdict. The plaintiff's counsel moved for a new trial, but did not argue or press the motion.

The following case decided by Judges Pease and Brown, at Belmont, 1818, may also serve to show something of the opinions of the Judges in respect to the action for words.

BARRET V. JARVIS.

The declaration in this case charged that the defendant, with the intent of causing the plaintiff to be considered a mulatto and a relation of negroes, and thereby to cause him and his family to be excluded from the society of white people, and denied the right of suffrage, spoke of the plaintiff and his daughter Polly, to one Z. M. these words: "I understand that you are going to marry Barrett's daughter; I am sorry you should for they are akin to negroes." The defendant pleaded two pleas: first, that he spoke the words as a report, and named his author at the time; second, a justification. Upon both these pleas issues were joined. A verdict was found for the plaintiff, 75 dollars damages. A motion was made in arrest of judgment, upon the general ground that the words were not actionable. The Court of Common Pleas, consisting of Judge Tappan and his associates, arrested the judgment. A writ of error was brought by the plaintiff to the Supreme Court, and the judgment of arrest was affirmed.

For the plaintiff it is insisted, that the contract created a complete partnership from the moment it was signed, and that the stipulations as to what each partner shall do, are nothing more than a distribution of the services to be performed by each, for, and on account of the joint concern.

In deciding the question submitted, it is necessary to ascertain what constitutes a partnership in the view of the law. Having done so, we may determine the true construction of this contract, and whether it did or did not create a partnership between the parties, from the time of its execution.

A partnership has been defined to be "a contract of an association, by which two or more, contribute money, goods, or labor, to the end that the profits may be ratably divided between them." This definition, as far as it goes, is said to be unexceptionable; but it is incomplete, as to third persons, between whom and the parties the question most frequently arises. In this respect, it is observed that he who shares in the profits, ought to bear his proportion of the losses, because by taking the profits he takes the fund on which the creditor relies for payment. In order to constitute a partnership so as to make a person liable as a partner, there must be some agreement between him and the ostensible person, to share in the profits, or he must have permitted the ostensible person to use his credit, and to hold him out as one jointly answerable with himself. (1 Com. on Cont. 286. Doug. 371.)

In order to constitute a partnership, a communion of profit and loss between the parties is essential, and this is the true criterion to judge by, when the ques. tion is, whether persons are parties or not. (1 Blac. 43, 48.) Where one takes a moiety of the profits, he shall, by operation of law, be made liable for losses. (2 H. Blac. 247.) But where an agreement was made for the purchase of goods, in the name of one, for the benefit of several, but the agreement did not extend to a joint sale of the goods, a majority of the court held that it was not a partnership, but had the agreement extended to the sale as well as the purchase, all would have been liable, though but one was known in the purchase. (1 H. Blac. 37.) Though in point of fact, parties are not partners, yet if one so represent himself, and by that means gets credit for the other, both shall be liable. (1 Esp. Rep. 29.) In the case of Waugh v. Carver and Giesler, (2 H. Blac. 235) it was admitted that the parties to the contract did not intend to become partners, or to carry on trade at the risk of each other, or to become liable for each other's losses, but yet it was determined that as to third persons they were partners, because it appeared from certain parts of the agreement that they intended to share the profits. This case was decided principally on the authority of Grace v. Smith (2 Blac. Rep. 998) in which it was settled that every man who takes a share of the profits, ought, by operation of law, to bear his share of the loss. Let these principles be applied to the case before us, and there does not appear to be any room for serious doubt. It might have been the intention of the parties to the agreement that each person should pay for the articles, or goods, he purchased; but the expectation of partners is not to affect the legal rights of their creditors. The question is not simply, what the parties intended by the contract, but whether third persons had not a right to rely on their joint credit. To determine this we must refer to the agreement itself. The first provision is, that the three parties to the contract, do agree to erect and build a distillery jointly, to share and share alike the cost of said establish