qualified and acting as such, and that he was at all times mentioned and described in the complaint, as such agent, in charge of said Klamath Indian agency and reservation; that said Klamath Indian reservation was at all times mentioned in the complaint, and now is, the Indian country; that, on the eighth day of April, 1881, W. S. Webb, Jr., the son of the plaintiff, did wrongfully, without any order from the war department of the United States, or any order of any officer duly authorized thereunto by the war department of the United States, introduce into and upon said Klamath Indian reservation, being then and there under the charge of this defendant, as aforesaid, spirituous liquors, to wit: ten gallons of whiskey; and that the team and horses described in the complaint were then and there in the possession of the said W. S. Webb, Jr., in and upon said Klamath Indian reservation, and were then and there actually used and being used by the said W. S. Webb, Jr., in carrying said spirituous liquors into and upon said Klamath Indian reservation, as aforesaid; that, on the said 8th day of April, 1881, this defendant being then and there the Indian agent of the United States, in charge of said Klamath Indian reservation, as aforesaid, had reason to suspect, and did suspect, and was informed, that the said W. S. Webb, Jr., had introduced said ten gallons of whiskey into said Indian reservation, as herein before stated, in violation of the statutes of the United States in such case made and provided, and so having to suspect, and being so informed, in pursuance of his duty as such Indian agent, did then and there, as he lawfully might, cause the wagon of the said W. S. Webb, Jr., then and there being drawn by the team described in the complaint, in and upon the Klamath Indian reservation aforesaid, to be searched; that, in and by reason of said search, the said ten gallons of whiskey were then and there found concealed in said wagon; that this defendant then and there, as Indian agent, as aforesaid, as he lawfully might, did seize the said whiskey and the said team, in order that he might deliver the same to the proper officer of the United States, to be disposed of as provided by the laws of the United States, and did then and there destroy said whiskey; that this defendant did, for the purpose aforesaid, retain the possession of the team and harness aforesaid, until the first day of May, 1881, at which time the plaintiff having duly demanded the possession of the said property, and having filed his affidavit in due form of law, to the effect that said horses and harness were the property of the plaintiff, and that he had no knowledge of the said wrongful acts of the said W. S. Webb, Jr., immediately delivered the said horses and harness into the possession of the plaintiff."

The respondent demurred to this matter of defense for the reason that it did not set forth facts sufficient to constitute a cause of defense, which demurrer the court below sustained, and that ruling is the only assignment of error to be considered in the case.

The respondent's counsel maintains that the demurrer was properly sustained, for the reason (1) that the matter plead as a defense

did not authorize the appellant to seize the team and property, under section 2,140 of the United States revised statutes, as it did not show that W. S. Webb, Jr., was either a white person or an Indian; (2) that it was not a sufficient justification for seizing the property of W. S. Webb, Sr., for the misconduct of W. S. Webb, Jr.; and (3) that appellant, by surrendering the property to the respondent, admitted that his seizure of it was illegal.

At common law, every plea must go to the whole cause of action, and be an entire answer thereto on the record. This was a fundamental principle, and it prevails under the code except that matter may be set up by way of answer which constitutes a partial defense; but in the latter case it must be pleaded as a partial defense, and not assume to answer the entire cause of action: Fitzsimmons v. Fire Ins. Co., 18 Wis. 246. The second and third reasons claimed by respondent's counsel for sustaining the demurrer here, are, in our opinion, entirely untenable. As an abstract proposition, the appellant would not be justified in seizing the property of S. W. Webb, Sr. for the misconduct of S. W. Webb, Jr., but when the latter is found in possession of the property of the former, and using it to introduce spirituous liquors upon an Indian reservation, of which the appellant is Indian agent, the appellant would not only have the right, but it would be his duty to seize it and deliver it over to the proper officer to be proceeded against for forfeiture. The appellant could not be expected to stop in such a case and inquire as to whether W. S. Webb, Jr. was the owner of the team he was using to haul the contraband article onto the reservation. Nor did the appellant admit the illegality of the seizure of the team by surrendering it in the manner set out in the separate defense. The section of the revised statutes referred to makes it his duty, when he has reason to suspect or is informed, that any white person or Indian is about to introduce or has introduced any spirituous liquors or wine into the Indian country, in violation of law, to cause the boats, stores, packages, wagons, sleds and places of deposit of such person, to be searched, and if any such liquor is found therein to seize it, and the boats, trains etc. used in conveying the same. It is true the law also requires him to deliver over the property seized to the proper officer, to be proceeded against by libel in the proper courts for forfeiture; but if he neglected his duty in that respect by delivering the team to the respondent upon his demand, and, after he had filed his affidavit referred to in the said defense, the latter cannot certainly take any advantage of it. The action was for a wrongful taking of the property, and the appellant had the right to plead that he had committed no wrong by showing a state of facts authorizing him to seize it.

The respondent's counsel contends that the state courts have no right to inquire into an alleged forfeiture in such cases. This is undoubtedly true, but they are not thereby precluded from inquiring into an alleged wrong charged against a party. A United States marshal could justify his arrest of a party in au action against him

therefor in a state court, although the state court had no jurisdiction of the offense upon which the arrest was made. The right to justify for an arrest or seizure in an action therefor, cannot possibly depend upon the question of the jurisdiction of the court in which the action is brought over the subject matter of the arrest or seizure. The counsel for the respondent relies upon Gelston et al v. Hoyt, 3 Wheat., 246, as establishing his third ground for sustaining the demurrer. We have examined that case with some care but have been unable to discover its applicability to the one at bar. The defense there could not be sustained as there had been an adjudication of acquittal, and no certificate of reasonable cause for the seizure had been given, and it was held that the action for the seizure could not be maintained during the pending of the proceeding for condemnation. In the case at bar there has been no adjudication upon the seizure. The proceeding was arrested as much by the act of the respondent as of the appellant, and he is as much affected by the result as the appellant is.

The other reason for sustaining the demurrer is purely technical. It is very apparent that W. S. Webb, Jr., is a white person. That fact was doubtless so well understood that appellant's attorney overlooked the necessity of alleging it in the separate answer. The facts which are therein alleged, and admitted by the demurrer to be true, show that the said W. S. Webb, Jr., was guilty of a grave offense, and if they had included the allegation referred to, that he was a white person, would have constituted a complete defense to the action. In viewing the affair from the record standpoint of the case, the court can arrive at no other conclusion than that the appellant has been unjustly dealt by, and it would gladly have laid hold of any point that would legally have authorized it to reverse the judgment against, but the said section of the United States revised statutes only authorizes in terms, a seizure in such cases as against a white person or an Indian; and as it is a penal statute the court does not feel warranted in extending it beyond the language employed. It is most extraordinary that congress intended to confine the right of seizure in such a case to the two classes of persons mentioned, yet it is difficult to understand why it used the words "white person or Indian" if it had intended to include other classes as well. At all events, the court does not consider that it is authorized to look beyond the language of the act to ascertain the intention of the body that framed and enacted it in a case of the seizure of a person's property for forfeiture.

The court regards these views as decisive of the question last considered, and as determining the case. The new matter was insufficient as a complete defense to the action, and while it might have been used as a partial defense or in mitigation of damages, yet it cannot be, as it professes, to answer the entire cause of action. It has been suggested by appellant's counsel that the demurrer should have pointed out this defect, but the court is of opinion that the practice which governs in that particular is

analogous to that which obtains in case of a demurrer to a complaint where it is claimed that it does not contain facts sufficient to constitute a cause of action.

The judgment of the circuit court is therefore affirmed.

COGSWELL V. WILSON.

Filed November 10, 1884.

PARTNERSHIP HOW CREATED ESSENTIAL ELEMENTS OF.-A partnership is a contract between two or more competent persons to place their money, effects, labor, and skill, or some or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions.

THE SAME AGREEMENT TO SHARE PROFITS AND LOSS.- To constitute a partnership inter se mere community of interest is not sufficient; there must be an agreement to share in the profits and loss. Such agreement must provide for an interest in the profits as profits, and not for a mere division of the gross earnings, and such profits must be shared as the result of the adventure or enterprise, and not simply as a measure of compensation.

THE SAME-BREACH OF PARTNERSHIP AGREEMENT-DISSOLUTION OF PARTNERSHIP.-The existence of a partnership does not depend upon the fact that each of the partners has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the partnership business commenced, the partnership continues until legally dissolved.

THE EVIDENCE REVIEWED, and held that a partnership existed between the defendant and the plaintiff's vendor.

APPEAL from a judgment of the circuit court for Lake county. The opinion states the facts.

John Kelsay and N. B. Knight, for the appellant.

Stratton & Fullerton, for the respondent.

LORD J. This is a suit for the dissolution of a copartnership alleged to exist between one D. R. Jones and the defendant, H. C. Wilson, for an accounting, and the appointment of a receiver. The plaintiff is a purchaser at an execution sale of all the right, title and interest of the said Jones in such alleged copartnership, and by reason thereof, alleges he is now the owner of all of such right, title and interest of the said Jones in the property of said copartnership, and not desirous himself of continuing such copartnership, he prays the appointment of a receiver and for an accounting, to the end that the liabilities of such copartnership may be paid and discharged and his rights and interests as such purchaser may be ascertained and determined. Upon issue being joined, the evidence in the case was taken and submitted, and the court below finding that no partnership existed between the parties as alleged, dismissed the bill for want of equity. From this decree the plaintiff appeals, and brings his suit to this court. The matter out of which the contention principally arises, is in reference to a certain contract made and executed between the said Jones and the defendant, Wilson, for the purpose of forming a copartnership in the business of sheep raising, the terms and conditions of which, the plaintiff claims, have been substantially performed and carried into effect, whereby the partnership in question was established. The contract was as follows:

"Articles of agreement are concluded, this nineteenth day of June, A. D. one thousand eight hundred and seventy-five, between H. C. Wilson, Tehama county, California, party of the first part, and D. R. Jones of Grant county, state of Oregon, party of the second part, witnesseth: That the said parties above named agree to and with each other, that they will enter into co-partnership at Warner lake, Grant county, Oregon, for the purpose of sheep raising, which occupation is to be our specialty; H. C. Wilson, of the first part, agrees to furnish two thousand head of sheep (or more as may be agreed upon), for the use of the co-partnership, at the rate of three dollars and fifty cents per head, and D. R. Jones of the second part, agrees that after fifteen hundred dollars is taken from the half value, that he is to give his note to H. C. Wilson, of the first part, for the remainder of the one-half of the sheep at the same valuation, said note to draw interest at the rate of one per cent. per month from the date until paid. That said H. C. Wilson, of the first part, agrees to make such payments on the lands that said copartnership may purchase from the state of Oregon, as university lands, or from the Oregon central military company (if such lands are purchased), which purchases may be at the discretion of both parties hereto; and the said H. C. Wilson agrees to make such payments on such lands as may be required for the year 1875, which will be the first payment, and the said D. R. Jones agrees to make the second payment, H. C. Wilson the third payment, and D. R. Jones the fourth payment. Each party hereto agreeing to pay onehalf of the purchase price and all the expenses that may be incurred in the purchase of any or all of said lands that may be purchased from said parties above named, and also each party agreeing to pay one-half of all expenses incurred in the purchase and care of said sheep.

"And it is further agreed by both parties hereto that said sheep and their increase is to be under the care and control of said H. C. Wilson, and that both of said parties are to put up such quantities of hay each season for said sheep as the said H. C. Wilson may think proper to be done, at the equal expense of both parties hereto. This agreement to go into effect as soon as M. Tipton relinquishes his right to the lands herein before mentioned.

'In witness whereof we have hereunto set our hands this nineteenth day of June, A. D. 1875.

"Done in the presence of KASPAR KUBLE."

H. C. WILSON.
D. R. JONES.

The defendant Wilson admits the execution of this contract, but denies that its terms or conditions have ever been performed, or that any co-partnership was ever formed or established in pursuance of its provisions; and claims that owing to the inability and failure of the said Jones to comply with his part of the agreement, it was mutually abrogated and abandoned by them; that another and different arrangement was made, and a contract entered into between