case jacob Jacobsen appellant Balthasar meno HENNEKENIUS and other respondent  that April Mews dig ten a agree to take his nephew h into partnership with he  and with his own hand make the follow entry in a new set of book videlicet  debtor to account of stock in trade for so much stock I put into the company  trade with my nephew h pound the name of h be for some time use as a partner  in all the transaction of the trade but no article be ever enter into between  his uncle and he nor be any part of the stock or profit receive by or make  good to he this be hold to be only a nominal partnership and h entitle to no  account order of the court of chancery reverse Theodore Jacobsen be a merchant  of considerable business in London and have a brother at hamburg who have four  child he be desirous of breed up Henry the old of those child as a merchant  with a intent that he may succeed he in his business brown for this purpose he  send for the young man to London and after some time agree to take he into  partnership accord on the that of march Theodore open a new set of book and  therein make a entry with his own hand in the follow word videlicet debtor to  account of stock in trade for so much stock I put into the company trade with  my nephew Henry Jacobsen commence from this day to which God grant his  blessing pound from this time the name of Henry be use as a partner in all the  transaction of the trade but no article be ever enter into between his uncle  and he nor be any part of the stock or profit receive by or make good to he in  the course of about two year Theodore find that his nephew Henry have not that  turn to business which be likely to prove advantageous to either of they and  therefore on the saint of December he take one Peter Selcken his bookkeeper  into partnership and agree to allow he one four of the profit from that time  in Henry return back to hamburg and soon afterward intermarry with the  respondent tetha catherinam but as this lady have no fortune Theodore decline  give Henry that fortune which he have often promise he namely rixdollar on  condition of his marry a woman of equal fortune so that nothing but Henry  patrimonial estate be settle upon his wife and the issue of the marriage on  the saint of January the partnership book be cast up and balance and one four  of the profit be answer to Selcken and the other three four to Theodore but no  part of the stock or profit be ever answer to Henry although he have then a  separate account in his uncle book to which it may have be apply if the  partnership between they have be consider as real but so far from it that on  this balance of the book the name of Henry be leave out and the name of the  appellant his brother insert in its room however though the appeal brown er p  lant be capable of and apply himself to business yet he have no part of the  stock or profit until Michaelmas when in consideration of his marriage to his  uncle like he be admit as a real partner and proper article be execute on that  occasion in Henry Jacobsen die intestate leave tetha catherinam his widow and  two child by her namely the respondent Theodore Balthasar and Anna eleanora  but Henry in his lifetime never demand any part of the stock or profit of his  uncle trade nor do his representative ever make any claim on that account  during his uncle lifetime by deed date the saint of January Theodore convey  the steelyard in London for the then residue of his term therein to the  appellant and his brother Theodore subject to the payment of several annuity  and particular pound per and apiece to the say two child of his decease nephew  Henry and by his will which he soon afterward execute he give one four part of  his brown estate to those two child and the residue to the appellant and make  he sole executor thereof on the that of July the testator die and about three  year afterward the respondent think proper to exhibit their bill in chancery  against the appellant for a account of the testator estate and to have a sum  of pound settle accord to what be allege to have be the testator agreement  upon Henry marriage also to have a moiety of the pound stock and of the profit  of the trade during the partnership between Henry and the testator and to have  the annuity of pound settle on the respondent Theodore Balthasar his sister  Anna eleanora be dead and the arrear thereof satisfy together with a four part  of the surplus of the testator estate on the d of may this cause be hear when  the bill be dismiss as to the demand of the pound but the court declare that  the testator and his nephew Henry ought to be look upon as partner and that  such partnership do not arise by contract but by the testator bounty and be a  partnership in moieties for the say pound and ought to be so carry on from  ladyday to January and therefore a account be decree to be take thereof accord  and that what shall appear to be the capital stock of the say partnership and  the produce thereof after a deduction of Selckens one four part of the profit  for the time he be to have the same in lieu of his salary shall be divide into  moieties one moiety whereof be to be pay to the respondent with interest from  the end of one year after the testator death out of his personal estate and a  account of such personal estate be direct and the surplus thereof be decree to  be divide accord to the testator will and the appellant be decree to account  for and pay the arrear and grow payment of the annuity of pound to the master  for the benefit of the respondent Theodore Balthasar who be then a infant some  time after pronounce this decree the appellant on search into some old trunk  and box which belong to the testator brother the father of his nephew Henry  and which upon his death have be send to the appellant from hamburg find two  letter one of which be write by the testator to his brother concern his son  Henry and the other be write by Henry himself to his father with a postscript  add thereto by the testator the first letter be date the that of march and  therein the testator after speak of the age education and weak constitution of  Henry express himself as follow it be not as yet advisable for marriage which  notwithstanding to please his humour you can keep his fancy up with I stand in  think to have his name use with I that if he life his name may be know and  succeed I to tell you for your comfort I set apart for he rixdollar whenever  he marry if I live and if I die before to inherit the same as a patrimony  which he be to expect from you renounce and brown acquit you what have be  stipulate and agree after his mother death so that his estate be not diminish  if a good match present of a woman with a equivalent portion of rixdollar it  may be propose that both their fortune may be settle on trustee for the  benefit of they and their child the testator then add that if Henry and his  wife will come over he will give they their diet and half commission to Henry  for ten year until his brother Jacob meaning the appellant shall be of age the  other letter be date the that of the brown er p same month and the testator  postscript thereto be in the follow word as to your son Henry I refer to what  I writ to you on the that instant pray let your think be employ thereon it be  upon those condition and design I intend to use his name with I but on the  contrary if he do not succeed in such a match then he be to expect no benefit  from the trade etcetera but what I intend shall leave he by will the decree  have be sign and enrol the appellant can not upon the discovery of these  letter rehear the cause and therefore in easter term he file a bill of review  assign several error in the body of the decree and insist on the new matter  contain in the letter and postscript as a evidence that the partnership  between the testator and Henry be mere nominal to this bill the respondent put  in a general demurrer and the same be argue on the that of June the court be  please to allow it and order the bill of review to stand dismiss with cost but  from this order and also from so much of the former decree as declare the  partnership to be real and direct a account to be take of the stock and profit  thereof the present appeal be bring and on behalf of the appellant it be say p  king n Lechmere to be extreme clear from the two letter abovementioned that  the testator before he insert the name of Henry in partnership declare that  the use his name be with no other intent or design than to maker he know in  the world and succeed he in his business explain it to be only a nominal  partnership by say that he will make he a real partner in commission and this  too under a condition which be never perform on the part of Henry videlicet  his marry a woman with a fortune of rixdollar that if by the expression in the  first letter of use Henry name with his own the testator have intend he to be  a real partner in the whole business he will not afterward in the same letter  and by way of reward to Henry to come from hamburg have make he a offer of a  partnership in commission only which be but a part of the business for a limit  time and subject to the above condition that when these two letter be consider  together it shall seem as if the testator think the patrimony settle on Henry  by his father brown sufficient for the intentional gift of rixdollar be on two  condition the one of marry a equal fortune the other of relinquish that  patrimony or in other word the testator bounty be mean to ease his brother of  the settlement and give his nephew a opportunity of succeed he in business  with a present reward of commission if the nephew will come over to he that in  the style of the suppose partnership the stock be declare to be bring in sole  by the testator and no gift or allotment be make of any part of it to the  nephew but if the testator have make he a real partner he must have carry one  half of the stock and profit till Selcken be take in to the account of Henry  who have a separate account in the testator book and in that case the testator  can not have give away to Selcken any part of Henry half of the stock or carry  the whole profit to his own account as he have do that it be express in proof  that the partnership be apprehend and take to be mere nominal that the  testator find Henry incapable of business and consequent unfit for his purpose  have take the appellant in his stead as a nominal partner also in the same  book and stock and the increase thereof that Henry name be then omit and no  credit give he for any part either of the stock or profit and that all this be  do without the intervention of Henry or any objection make to it on his behalf  that the testator personal estate will not answer a moiety of the stock of  pound with its profit and interest and therefore it be not to be conceive that  so exact a accountant as the testator be and who know what he be worth will  within a month of his death have give so many legacy by his will without leave  any thing wherewith to satisfy they that there be no proof tend to show that  Henry be a partner either real or nominal but the style of the book and the  use his name with the testator but this be not among merchant deem sufficient  of itself to constitute a real partnership much less when oppose by several  plain fact and circumstance explain it to be but nominal and therefore it  ought not to have be decree a real partnership or at least not till a issue at  law have be try and a verdict find in affirmance of it that if Henry shall be  esteem a real partner without article or any valuable brown er p consideration  the appellant for the same reason ought to be so likewise before his article  the title and interest of each subsist exact upon the same foundation  consequent the claim of each upon the testator estate be equal just and ought  to have be alike provide for by the decree before any distribution be order to  be make of the surplus that the decree be also erroneous in order this  appellant sole to pay the arrear and grow payment of the annuity of pound for  by the deed which grant that annuity it be to be pay joint by the appellant  and his brother Theodore to who the premise subject to it be convey last that  the bill of review ought not to have be dismiss brown or the demurrer thereto  allow on the contrary the respondent ought to have be compel to answer the new  matter contain in that bill so that the appellant may have have opportunity of  prove the same and have have his cause hear on the merit it be true indeed  that the two letter and postscript be in the appellant custody at the time of  make the decree but it be also true that he know nothing of they till after  the decree be sign and enrol and therefore their be in his custody without his  knowledge be the same as if they have not be in his custody at all as it can  not be presume that he will have wilful neglect to produce such very material  evidence beside if these letter shall through the appellant omission be  preclude from be read a three person who be no party to the decree will be  thereby prejudice for the appellant himself be no far concern in interest than  bare as it tend to increase or diminish his one four of the surplus of the  testator personal estate but his young brother Theodore will be the sufferer  to who the testator have by his will give upward of pound to be pay before any  division of the surplus on the other side it be contend S Cowper W Norris that  the book letter etcetera make no distinction in the partnership because both  the appellant and Selcken who bring he nothing be let into the partnership in  the same manner and in the same book that there be no proof in the cause by  which a mere nominaI partnership can be evidence for as to the testator take  in all the stock and profit to his own use and carry they to his own private  account without give Henry credit for any part thereof it be so far from be  true in fact that in every year the account of profit and loss be state in the  book of the partnership express how the money have be pay what the clear  profit amount to how the testator have from time to time endeavour to improve  the same and in what manner the aIteration of the partnership between himself  and his two nephew have be make to suppose therefore that the testator never  intend Henry shall have any payment in respect of the pound stock or the  produce of it be to suppose a matter direct contrary to what appear under the  testator own hand and in all his book and as Henry be doubtless subject to all  the partnership debt it can not be presume that he be not a real partner and  as to the appellant objection respect the payment of the annuity of pound he  be the only person against who this payment can be decree be the sole executor  of the testator will wherefore as the bill of review be in every part of it  frivolous vexatious and inconsistent with the rule and practice of a court of  equity it be with great propriety and justice dismiss but after hear counsel  on this appeal it be order and adjudge that the order of the court of chancery  of the that of June whereby the demurrer be allow and the bill of review order  to stand dismiss shall be reverse and brown it be further order that the court  of chancery shall proceed to rehear the cause when the same shall be ready for  rehearings on search the register office it appear lib a foe that in pursuance  of this order the cause be hear on the that of February when upon read the two  letter and the entry in the testator book the Lord chancellor declare the case  to be dubious and therefore order that the party shall proceed to a trial at  law in the court of king bench upon this issue videlicet whether the nephew  Henry be real or only nominal a partner with his uncle the testator and if  real a partner whether he be a partner for any and what part of the say stock  of pound or the profit thereof and from what time and after such trial either  party be to be at liberty to resort back to the court but the master be in the  mean time to take a account of the testator asset pursuant to the direction of  the former decree to the end that the four part of what shall appear to be the  residue of the testator personal estate may be set apart and preserve for the  infant benefit accord to the say former decree and the pound deposit with the  register on the bill of review be to be pay back to the then plaintiff Jacob  Jacobsen but the pound deposit by he with the register on the rehear pursuant  to the order of the house of lord be to remain with the register till after  the trial That a trial be accord have when a verdict be find that the  partnership be nominal only and not real That on the d of November the cause  be hear upon the equity reserve when his lordship order that as to any account  of the partnership the matter of the original bill shall stand dismiss and  that so much of the decree of the d of may as relate to that matter only shall  be vary but that the rest of the decree shall stand with this addition that  the say Jacob Jacobsen shall be examine upon interrogatory touch the account  thereby direct as the master shall appoint and that the master shall state any  matter special on the account by the former decree direct to be take as he  shall think fit and the counsel for the say Jacob Jacobsen allege that the  plaintiff in the original cause do by their bill demand the sum of pound as  the marriage portion of Henry promise he by the testator touch which demand  the bill be upon the first hear dismiss and that they have since fail in their  demand relative to the pretend partnership the say counsel therefore pray that  the say Jacob Jacobsen may have his cost to be pay by the other side his  lordship order that both side shall have their cost out of the testator estate  to be tax by the master the say testator have by a formal fiction in his book  of account occasion this expense but if the master can distinguish the cost  which relate to the demand of the pound portion from the other cost it be  order that as the plaintiff in the original cause be not to pay cost they be  not to have any cost in respect of that demand but they be to have their cost  in respect of the question relative to the nominal partnership and if since  the former decree the say Jacob Jacobsen have pay any sum or sum to the  defendant or any of they in consequence thereof such sum be to be allow he by  the master in the account still remain to be take pursuant to that decree and  he be also to be pay the pound deposit with the register on obtain the rehear  jour vol p brown er p