437. When the decree of a judge raises a presumption against the jurisdiction of the courts of the United States, in cases of captures, it will not be improper for the district attorney to cause the necessary depositions to be taken de bene esse, to be used by the executive in case the appellant does not prosecute his appeal or the decree be affirmed. Capture within the United States,* 10p. Att'y Gen'l, 39.

§ 438. A district attorney of the United States may assure a counterfeiter who shall disclose his accomplices, and produce the plates and counterfeited paper, of a pardon; but the mere disclosure is not enough. Assurance of Pardon,* 1 Op. Att'y Gen'l, 77.

§ 439. It is the duty of United States district attorneys to attend all the courts of their respective districts when thereunto required by the government, whether such courts be state or federal. Duties of District Attorneys,* 2 Op. Att'y Gen'l, 318.

§ 440. The attorney of the United States for the District of Columbia is not bound, by the second section of the Maryland act of 1795, to order writs of ca. sa. for fines, etc., on the application of the marshal; nor can the marshal order them without the authority of the district attorney, who has a discretion in that respect which the marshal has no right to control. Levy Court v. Ringgold, 2 Cr. C. C., 659.

§ 441. There is no act of congress imposing upon the attorney of the United States for the District of Columbia the special duties imposed upon the attorney-general of Maryland and his deputies by the statutes of Maryland. Ibid.

§ 442. The district attorney of the District of Columbia is specially charged with the prosecution of all delinquents for crimes and offenses; and these duties do not end with the judgment or order of the court. He is bound to provide the marshal with all necessary process to carry into execution the judgment of the court. This falls within his general superintending authority over the prosecution. The Levy Court of Washington County v. Ringgold, 5 Pet., 451.

§ 443. No delivery of property on bail can legally be made in cases where the United States are a party, without due notice to the district attorney that he may have a hearing before the court. Ex parte Robbins, 2 Gall., 320.

§ 444. Acts of a de facto officer are valid so far as they concern the public, or the rights of third persons who have an interest in the things done. County of Ralls v. Douglass, 15 Otto 728.

§ 445. The acts of public officers, appointed or elected, are valid as to third persons, and cannot be questioned collaterally although they fail to observe the positive prescriptions of law to give a bond or take an oath before entering upon the exercise of their duties. But the decisions in relation to the acts of officers de facto are restricted to those who hold office under some degree of notoriety, or are in the exercise of continuous official acts, or are in possession of a place which has the character of a public office. Merchants called in by the collector to estimate the value of merchandise take no rank as public officers, and as to them the statute (act of March 2, 1799, sec. 20, 1 U. S. Stats. at Large, 641) is mandatory, and their acts without the sanction of an oath are void. Vaecari v. Maxwell, 3 Blatch., 368.

§ 446. One who was appointed to an office without authority, and who never performed any official duty as such officer, and never had the reputation of being such officer, is not an officer de jure or de facto. Schenk v. Peay, 1 Dill., 267; 1 Ch. L. N., 363; 10 Int. Rev. Rec., 54.

§ 447. A person convicted by a judge de facto, acting under color of officer, though not de jure, and detained in custody in pursuance of his sentence, cannot properly be discharged upon habeas corpus. Griffin's Case, Chase's Dec., 364; In re Griffin, 2 Am. L. T. (U. S.) Rep., 93.

§ 448. An appraiser is a quasi judge or legislative referee. If such an office has been even colorably created, and the incumbent has discharged de facto its duties, his acts, so far as the public or third persons are concerned, are as valid as if they were the acts of an appraiser de jure. Gibb v. Washington, 1 McAl., 430.

$449. Persons appointed as judges, under an act of the state of Oregon, of constitutionally created and existing courts, and acting as such judges, although the act authorizing said appointment be unconstitutional, and the appointees under it therefore not judges de jure, are nevertheless judges de facto, and their acts, while so in office, are held valid and binding as to third persons. And it appearing that the petitioner has been convicted of an offense charged against him in a court having jurisdiction of the subject-matter and the person, held by at least a de facto judge, he is not restrained of his liberty or adjudged to lose his life, so far as the court can inquire, without due process of law, and his petition for a habeas corpus is denied. In re Ah Lee, 5 Fed. R., 899; 6 Saw., 410.

§ 450. Where a person is the acting secretary of a territory, though not regularly appointed, a public obligation created by debts which would have been binding on the government if made by a regular secretary cannot lawfully or justly be repudiated on the mere ground that

the secretary's title to the office was defective. The acts of an officer de facto are always held to be good where the public or third parties are concerned. The legality of his appointment can never be inquired into except upon `quo warranto or some other proceeding to oust him, or else in a suit brought or defended by himself, which brings the very question whether he was an officer de jure directly in issue. Officers de Facto,* 9 Op. Att'y Gen'l, 432.

§ 451. If officers are elected, though irregularly, under a city charter, and are exercising powers thereunder, they are officers de facto, and their acts respecting the public are valid; but when a town organization is without legislative authority, the officers elected are neither officers de jure nor de facto. Welch v. Ste Genevieve, 10 Am. L. Reg. (N. S.), 512; 1 Dill., 130; 14 Int. Rev. Rec., 93.

$452. Where a marshal of the United States in Utah served the process in a suit for the foreclosure of a mortgage, made the sale under the decree, and executed a deed for the premises to the purchaser, under the understanding of the law then held, that he was the proper officer to perform such services, his acts were valid as being those of、an officer de facto, although it was afterwards held by the supreme court of the United States that his authority extended only to cases where the United States were concerned. Hussey v. Smith, 9 Otto, 20.

OFFICIAL BONDS.

See BONDS.

OHIO.

See STATES.

OHIO RIVER.

See WATER-COURSES.

OPENING AND CLOSING.

See PRACTICE.

OPTIONS.

See CONTRACTS.

ORDERS.

See PRACTICE.

ORDINANCE OF 1787.

See CONSTITUTION AND LAWS.

ORDINANCES.

See CORPORATIONS,

SUMMARY - Participation in profits, §§ 1, 2, 4.— By operation of law, § 3.— Statements and declarations, §§ 5, 6.

§ 1. Participation in the profits of a business does not necessarily make one liable as a partner, but the fact of such participation is to be treated as presumptive evidence of a partnership. In re Francis. §§ 7, 8.

*Edited by CHARLES R. DARLING, ESQ., of the Boston Bar.

$2. By the terms of a written agreement between F. and a certain firm F. agreed to advance to the firm a certain sum of money and to keep the firm books, the firm to pay him twelve per cent. interest on the money (that being the highest legal rate of interest), and a certain proportion of the profits, but not less than a certain sum per month, as compensation for keeping the books. In a proceeding to hold F. as a partner for the debts of the firm, B., one of the partners, testified that F. was an actual partner as to the profits, though not in the losses, but that this fact did not appear in the written agreement because he held a clerkship in a bank which did not allow its employees to be engaged in any outside business. It appeared that once during the absence of B., F. had assumed control of the business without claiming to have any special authorization, although at the trial he produced a power of attorney under which he claimed to have acted. After the failure of the concern he made active efforts to induce the creditors to settle, making promises to one of them indicating some authority in the premises. The sum guarantied him as compensation for keeping the books seemed to be a fair compensation of itself, and the additional agreement for a percentage of the profits was apparently intended as a device to cover up a usurious loan or a partnership. In view of these circumstances, held, that the weight of evidence was in favor of the conclusion that F. was a partner, but if the evidence should be considered as evenly balanced, he should still be held as a partner, as the presumption of partnership, arising from participation in the profits, put the burden of proof upon him. Ibid.

§3. A partnership may arise between parties as to third persons by mere operation of law against the intention of the parties, but a partnership inter sese can exist only when such is the actual intention of the parties. Hazard v. Hazard, §§ 9-11.

§ 4. Mere participation in the profits will not make parties partners inter sese, unless they so intend it. Where, therefore, A. agreed with B. to run the latter's factories for a certain proportion of the profits of the business, it was held that there was no partnership as between the parties themselves, and that B. could not maintain a bill against A. for an account. Ibid.

5. One not actually a partner will not render himself liable as such merely by stating to individuals that he is, if those seeking to hold him could not have known of such statements when they dealt with the firm. Benedict v. Davis, §§ 12–15.

$6. To rebut such statements as evidence of a partnership in fact, the contract made between the parties may be shown. Ibid.

[NOTES. See $$ 16-62.]

IN RE FRANCIS.

(District Court for Oregon: 2 Sawyer, 286-301. 1872.)

Opinion by DEADY, J.

STATEMENT OF FACTS.- On October 29, 1872, the firm of Walter Brothers filed their petition in this court, alleging that at and between the dates hereinafter mentioned, W. W. Francis and W. A. Buchanan were partners, doing business at Portland, under the name and style of "W. A. Buchanan," and praying that said "firm and its members" be adjudged bankrupts for the following causes:

I. That said firm on September 10, 1871, made their promissory note, payable nine months after date, to the order of the petitioners, for $200, with interest at one per centum per month; and that on and after June 10, 1871, they fraudulently stopped payment of said note during a period of fourteen days.

II. That there is due the petitioners from said firm the sum of $500.29, the same being a balance of account for goods sold said firm between November 1, 1871, and October 1, 1872.

III. That on September 15, 1872, said firm, being then insolvent, paid $250 to a creditor thereof, to wit, Field & Frie, of San Francisco, with the intent to thereby give a preference to such creditor, and to defeat and delay the operation of the bankrupt act.

Buchanan made default, but on November 6, Francis answered, denying in effect that he was a partner with Buchanan in any of the alleged transactions or indebtedness. On November 12 and 13 the issue was tried by the court

without a jury, and reserved for decision. The following facts are admitted or satisfactorily proven:

I. That the matters stated in the opinion, except as to the allegation of partnership between Francis and Buchanan, are true.

II. That on January 24, 1871, Paul Richter and W. A. Buchanan were doing business as furniture dealers and upholsterers, under the firm name of Paul Richter & Co., and that on said day said firm made an agreement in writing with said Francis, to the effect following:

1. Francis agrees to advance said Richter & Co. the sum of $3,000 "in all before June, 1871, and to also keep the books of the firm for one year from said date," unless agreement terminated in the meantime.

2. Richter & Co. agree to pay Francis interest monthly at the rate of twelve per centum per annum upon said $3,000, and any further sum which he may advance to them, and also, "as remuneration for keeping the books of the firm, a sum equal to one-sixth of the net profits of the firm which shall be made during the year 1871."

3. If Francis is absent from the city, a deduction in proportion to the length of such absence to be made from his remuneration.

4. Agreement may be terminated at the pleasure of either party, on giving. the other notice in writing, in which case the amount then due Francis to "be repaid in notes of firm of $1,000 each," payable at intervals of sixty and thirty days after such notice, with interest at the rate of twelve per centum per annum; and if agreement terminated before end of year 1871, Francis to be paid as compensation for keeping books a fair sum, "not less than $45 per month."

III. On August 1, 1871, Richter retired from the firm, and said written agreement was modified by a verbal one, then made between B. and F., to the effect that the latter should receive one-fourth of the net profits of the business for keeping the books, but not less than $25 per month, profits or no profits. IV. For the five months ending December 31, 1871, Francis' share of the profits amounted to $389, $250 of which was added to the $3,000 due him, and a new note, payable on demand, taken by him for the amount, with interest at the rate aforesaid, signed W. A. Buchanan; but during the year 1872 the business made no profits.

V. Francis advanced the sum of $3,000 as per agreement, in January, 1871, and the $250 left in the business as aforesaid, and kept the books until September, 1872, during which time he loaned W. A. Buchanan, to be used in the business, from $2,000 to $2,500, on current account, which was secured by sufficient collaterals, and received from the business for all the money so advanced and loaned, interest monthly at the rate aforesaid, and $25 per month.

VI. Francis was not known by the creditors of W. A. Buchanan to be a partner in the business, nor did he, during the time of his employment therein, volunteer any direction or advice in the conduct of it, except for a few weeks in 1872, while Buchanan was absent from the city, when he took into his custody the daily receipts of sales, and in some instances directed the salesman whom to credit and whom not; but during this time he had written authority from W. A. Buchanan to act as his agent, which authority, however, was not exhibited to said salesman, or any one else, so far as appears, until it was produced on the trial.

VII. That Buchanan was adjudged a bankrupt, individually, on the petition of one of his creditors, in this court on October 28; and that the liabilities