We think his Honor was correct in holding that on the face of the contract a copartnership existed between the plaintiff and T. S. Berry, deceased. Tested by our old cases, it is very clear that the absence of anj'' personal liability^ on the part of Berry to the plaintiff for compensation for his services and the presence of a right to demand an account in order to ascertain his half of the profits (which half interest is directly conferred upon him by the contract) would constitute a copartnership. Cox v. Delano, 4 Dev. Eq., 89; Holt v. Kernodle, 1 Ired., 199. Whether there should be any modification of the rule as to making the sharing in the profits an absolute test of copartnership in all cases (see Fertilizer Co. v. Reams, 105 N. C., 288) is a question that does not arise on this appeal, as we have here not only a community in the profits but also a community in the capital. In this class of cases, says Mr. Bates, “the conclusion is irresistible that there is a communion of interests in the profits and not a portion of them as compensation, for each has as much right as the other, and hence that a partnership results.” Bates’ Law of Partnership, sections 81 and 82.
Apart from any holding out, we 'think .that under our decisions the creditors of the firm could have recovered of the plaintiff, and, if this be so, it- must follow’ that he is entitled to the assets as surviving partner.
We have examined the other exceptions, although they were not very strenuously pressed on the argument. They are without merit. Affirmed.