POTTER VS. KERR. 277

in favor of a continuance of the injunction. A number ot' de-
positions, and written evidence, to be used at the hearing, had
been filed under an agreement; the effect of which, the Chan-
cellor said, was to show that "the complainant occupied a po-
sition in the business, with the knowledge and consent of both
parties, which made him, as to third persons, a partner in the
concern." And also that the concern was in very embarrassed
circumstances, if not actually insolvent. The question of part-
nership was minutely and elaborately considered by the Chan-
cellor, who decided that a partnership did exist as to third
persons, though not as between the parties themselves. The
case was again argued at the same term, on the appointment
of a receiver, and in his opinion, on that occasion, he entered
into a further consideration of the same question, deciding as
before, the main ground relied on, being the fact of the com-
plainant having been allowed for his services, a share of the
profits. By the order filed with this opinion, on the 1st of
February, 1847, George M. Gill, was appointed receiver, who
duly qualified as such. From this order, and from those grant-
ing and continuing the injunction, the defendant appealed. On
the 27th of April, 1847, the receiver having reported sales of the
property to a large amount, an order was passed directing him
to notify creditors of the firm to file their claims, and the case
was afterwards referred to the Auditor to make a statement of
the claims filed, several of which were judgments recovered
against E. M. Kerr, by citizens of the state of New York; and
an account. The Auditor in his report, filed 12th of October,
1847, stated that, with a few exceptions, all the claims filed,
appeared to have originated since the formation of the partner-
ship; that it would appear from these, that the defendant's
course was to deal in his own name, and that there was nothing
to show that any one of them was entitled to preference over
the rest. His account was stated accordingly, but was except-
ed to, and overruled, as to this mode of treating the claims,
by the Chancellor. The Court of Appeals, at June term, 1848,
reversed the orders appealed from, and remanded the cause to
this court, "for such further proceedings, as the nature of the
VOL. i—24