delivered the opinion of the court:
The doctrine in regard to granting new trials upon the ground of newly discovered testimony, is fully explained and established in the case of Robins vs. Fowler, heretofore decided at a previous term of this court. Indeed the authorities are so numerous and full upon the point, and the reasons and principles upon which they rest, are so obvious and conclusive, that it seems almost impossible, to overlook the essential requisites that the law requires to entitle a party to a new trial. Jle must have been guilty of no neglect or laches in preparing his case for trial. It must have been out of his power to procure the newly discovered evidence upon the former trial by due diligence and exertion to obtain it: and he must show to the court that the newly discovered evidence is material and important, by the affidavit of the witness, or by some other legal means; so that the court may judge of its materiality and sufficiency; and it must not be cumulative in its character and consequences. It is the duty of the parties to come prepared upon the principal points; and new trials would be endless, if every additional circumstance bearing upon the facts in litigation were a cause for new trial.
Cumulative evidence is such as tends to support the fact or issue which was before attempted to be proved upon the trial. The newly discovered evidence, in the present instance, does not possess a single requisite which would authorize its introduction; and even if admitted, it would notvary and alter the finding. The defendant below proposes to prove that it is within the knowledge of the witness that a large portion of the goods sold by him at the store of the plaintiff, were purchased in New-Orleans, and forwarded in the name of the defendant. This fact he swears to himself, but he has not substantiated it by the affidavit of the witness; nor has he shown that he used due diligence to procure the testimony on the former trial. If all these requisites were established, still the testimony would be inadmissible, for it is certainly cumulative evidence, because the issue was formed and tried in regard to the partnership of the parties. Again the evidence, if offered, is inadmissible on another ground, because it would not prove, or tend to prove the existence of a partnership. As the defendant relied upon the existence of a partnership in bar of the-plaintiff’s action, he was bound to prove it affirmatively, as he would any other given fact upon which he rested his defence. Chancellor Kent in the 3d vol. of his Commentaries, pages 23 and 24, has defined a “ partnership to be a contract of two or more persons to place their money, effects, labor or skill, or some or all of them in lawful commerce or business, and to divide the profit and •bear the loss in certain proportions.” The leading principles of such a contract are a common interest in the stock of the company, and a personal responsibilityin the partnership engagements.” If one person advances funds, and another puts against it his personal services or skill, for the purpose of carrying on trade, and they are to share the profits between them, this amounts to a partnership, provided he who has an interest in the profits, does not receive his share as a mere substitute for commissions; and is received in the company as a partner or merchant, and not as a factor or agent. To give a clerk or agent, a portion of the profits of sales, as a compensation for his labor, on the amount of goods sold, does not constitute the agent or clerk a partner in the business, if it appear that it was intended as a mode of payment adopted for the purpose of increasing diligence and securing exertions. Chase vs. Barrett, 4 Paige, 148; Hesketh vs. Blanchard, 4 East. 144; Wilkinson vs. Frazier, 4 Esp. 183. Upon the principles of commercial policy, an agreement may constitute a partnership as to third persons, when it creates no such relation between the parties themselves. This distinction runs through all the authorities upon the subject, and is based upon the soundest principles of commercial intercourse, and of public policy. A party who receives a share of the profits individually, shall by intendment of law be held liable for losses if any occur, for by taking a part of the profits he withdraws from the creditors a portion of that fund which is the proper security for the payment of these debts. Waugh vs. Carver, 2 H. B. 328; Ross vs. Drinker, 2 Hall, 415; Champion vs. Bostwick, 18 Wend. 176; Jordon vs Wilkins,3 Wash. C. C. R. 110. Consequently they who hold themselves out to the world as partners in business or trade, are to beso regarded quoad creditors and third persons; and the partnership may be established by any evidence showing that they so hold themselves out to the public, and were so regarded by the trading community. But between themselves, as before laid down, the rule is different; and the agreement or contract alone constitutes them partners, and whether it be by parol or in writing, or whether express or implied, is as capable of being proved as any other fact, and must be established by the same grade or species of evidence. The proof in the case now before us satisfactorily shows that Olmstead was not received by Hill as his partner or merchant, but merely as his agent and clerk, whose wages were to be paid out of the profits of the sales of the goods. There was no joint ownership of the funds, no agreement to participate and share the profits and losses of the business. The plaintiff below supplied the entire fund, and was alone responsible for the losses. The defendant merely acted as his agent or clerk. And this being the case,, he cannot in any possible point of view be considered as a partner in the business. The judgment of the Circuit Court must therefore be affirmed with costs.