would afford no presumption of a grant at common law as against the owner of the mines.

"It remains to be considered whether the statute 2 & 3 Will. IV. c. lxxi. gives to the plaintiff and those who claim under him any such right. We are clearly of opinion that it does not. The whole purview of the Act shows that it applies only to such rights as would before the Act have been acquired by the presumption of a grant from long user. The Act requires enjoyment for different periods without interruption,' and therefore necessarily imports such a user as might be interrupted by some one capable of resisting the claim; and it also requires it to be 'of right.' But the use of the water in this case could not be the subject of an action at the suit of the proprietors of the mineral field lying below the level of the Cromford Sough, and was incapable of interruption by them at any time during the whole period by any reasonable mode, and as against them it was not 'of right;' they had no interest to prevent it, and until it became necessary to drain the lower part of the field, indeed at all times, it was wholly immaterial to them what became of the water, so long as their mines were freed from it.

"We therefore think that the plaintiffs never acquired any right to have the stream of water continued in its former channel, either by the presumption of a grant or by the recent statute, as against the owners of the lower level of the mineral field, or the defendants, acting by their authority; and therefore our judgment must be for the defendants."

In a recent case the law was again stated as follows.

The right to a stream flowing in a natural channel through a man's land, and the right to water flowing to it through an artificial watercourse constructed on his neighbour's land, do not rest on the same principles. In the former, each riparian owner in succession is prima facie entitled to the free flow of the water in its natural channel, and to its reasonable enjoyment as it passes through his land. But in the second case, any right to the flow of the water artificially guided must rest on some grant or arrangement, proved or presumed, from or with the owners of the land from which the water is artificially brought, or on some other special legal origin. (See Rameghur Pershael v. Koonj Behari, L. R. 4, App. Cases.)

It has also recently been decided that if an artificial stream has been used and enjoyed in such a manner and for such a time as would give adverse rights in the case of natural streams, the same may be acquired in the artificial stream. (Sutcliffe v. Booth, 32 Law Journal, Q. B. 136.)

CHAPTER VIII.

PARTNERSHIP IN COLLIERIES.

Ir would carry this treatise beyond its intended limits to go fully into the law of partnership. But as it is designed to be a help to private individuals concerned in collieries, it may be useful to insert a sketch of the legal rules and doctrines which govern the relation of partners.

Lord Justice Lindley, in his treatise on the Law of Partnership, and Sir George Jessel, the late Master of the Rolls, have both declined to give a definition of a partnership; we shall therefore not attempt to do so.

In Pooley v. Driver, 5 Ch. Div., the Master of the Rolls in his judgment, after referring at page 471 to the fifteen definitions of partnership by different learned lawyers, given in Lindley "On Partnership," "I think no two of them exactly agree, but there says: is considerable agreement amongst them, and I suppose any one reading the fifteen may get a general notion of what partnership means. Whatever may amount to a partnership is a subject which has been settled by decision according to English law, and the incidents of the partnership simply follow from the establishment

of the fact of partnership. The definition given in the Code of New York is, 'Partnership is the association of two or more persons for the purpose of carrying on business together and dividing the profits between them.' I say as a general rule that simple definition appears so far as it goes to be an accurate definition." Further on in the judgment he observes that the business referred to in the definition must be taken to be an honest calling. From the portion we have italicised it will be seen that, though there is great difficulty in framing a perfect definition of a partnership, there is no such difficulty in applying the principles of decided cases to determine whether, in any given set of circumstances, a partnership has or has not been created.

Whether an agreement amounts to a partnership or not depends on the real meaning of the parties to it, as expressed in the agreement itself. Where the parties have agreed to share profits and loss a partnership certainly is created. Where the agreement is to share profits, nothing being said about losses, the law is thus stated by the Master of the Rolls in the judgment above referred to: "I think it may be taken as established by the authorities that, in the absence of something in the contract to show a contrary intention, the right to share profits as profits constitutes according to English law a partnership."

Where there is an agreement to share the profits of a business a partnership may be created thereby, even though there be an express stipulation against community of loss.

A partnership is not the result of an agreement to

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share gross returns, nor of an agreement which is not concluded. As between themselves persons can only become partners by agreement, express or implied; but a person not really a partner may become liable as such to third persons, by holding himself out as a partner, that is, by representing or allowing himself to be represented as a partner, or acting in such a way as to lead others to believe he is a partner. If in this way he induces others to make contracts with or give credit to the firm, he will be responsible as if he were really a partner. But express notice that he has no interest in the firm will relieve him.

It was formerly held that if a person shared in the profits of a business, that fact would make him a partner for all purposes whatever. But the doctrine was modified by the case of Cox v. Hickman (8 House of Lords' cases), and was followed by the statute 28 & 29 Vict. c. lxxxvi., which enacts several limitations in the responsibility of parties deriving payments from partnership funds. Thus mere loans to a trader at a rate of interest varying with the profits, provided there be a signed contract in writing; or the remuneration of an agent or servant by a share in the profits; or the receipt by a widow or child of a deceased partner of an annuity out of the profits, shall not render them ipso facto responsible as partners.

The contract of partnership is commonly reduced into writing, but does not necessarily require any particular formality. It may even be constituted without any written agreement, unless it is to commence at some distant date more than a year from the time of the agreement.