delivered the opinion of the Court. The defendant’s counsel, at the trial, objected to the competency of one of the plaintiff’s witnesses, but the objection, as we understand, is not relied on, and certainly cannot be sustained. The witness having released all his interest in this suit, if any he had, to the plaintiff, cannot profit by his recovery of judgment against the defendant. On the contrary, whatever interest he had, after giving the release, was in favor of the defendant.

The defendant’s counsel then moved for a new trial, because the verdict was against the weight of the evidence, and because the instructions to the jury were not correct as to the legal effect of the evidence.

As to all the important facts in the case, we are of opinion, that the evidence introduced by the plaintiff is very satisfactory, and if the witnesses are to be believed, conclusive. It was proved, that the property attached by the defendant as the property of Nathaniel Blanchard, was in fact purchased on the credit of the plaintiff, and was his property ; and that Nathaniel Blanchard acted as his agent; and was to receive one half of the profits for his services. There is no contradictory evidence as to these facts.

On these facts, however, (admitting them to be well proved,) the defendant’s counsel contend, that Nathaniel Blanchard is to be considered as a partner of the plaintiff, and that thus he had an attachable interest in the property in dispute. If this argument can be maintained, the instructions to the jury were incorrect, and the defendant is entitled to a new trial.

It is clear from the evidence, that the plaintiff and his father, Nathaniel Blanchard, were not partners inter se ; nor were they held out as such to those who dealt with them. The business was transacted in the name of the plaintiff, and the father acted as his agent. It is true that, by their agreement, the latter was to receive from the plaintiff one half of the profits as a compensation for his services ; and, generally, he who participates in the profits of a trade, is answerable to creditors dealing with him and others in such trade, although they may not be partners inter se; for by taking a part of the profits he diminishes *155the fund to which the creditors have a right to look for the security and satisfaction of their demands.

But there is a distinction between an agreement to share the profits of a trade indefinitely, as profits, and an agreement with an agent to allow him a certain share of the profits, as a compensation for his services. If he is allowed no more than a fair compensation, it is immaterial to the creditors, whether he is allowed wages or a share of the profits. Turner v. Bissell, 14 Pick. 194 ; Gow, 19 ; Dry v. Boswell, 1 Campb. 329.

But it is not necessary to decide, in the present case, whether Nathaniel Blanchard is liable as a partner or not. For, admitting that he is so liable, it does not follow that he has any interest in the stock, which was attachable by his separate creditors, for the security of debts contracted before his connexion with the plaintiff in business. They could only attach his share of the property which might remain to him after winding up the concern ; and it appears that he had no such share'. It was proved, that no profits had been earned, and consequently he had no right to any part of the stock. And this appears to us to be a conclusive objection to the defence.

But there is another objection to the defence, which is equally conclusive. By the agreement between the plaintiff and his father, the stock was to be the property of the plaintiff, and his father in no event was to have any title to it. He could claim only his share of the profits, and had no right to appropriate to his own use any part of the capital stock. This point was decided in the case of Smith v. Watson, 2 Barn. & Cressw. 401. In that case an agreement was proved between A and B, that the latter, being a broker, should purchase goods for the former, and, in lieu of brokerage, should receive for his trouble a certain portion of the profits, arising from the sale of the goods, and should bear a proportion of the loss. And it was held, that although B’s right to share in the profits rendered him liable to third persons as a partner, in respect to transactions arising out of the adventure, yet he had no interest in the property which was the subject of the adventure.

We can perceive no reason for doubting the correctness of this decision. To creditors who deal with partners, it is im*156material whether they own the stock jointly, or one owns the whole. In either case the stock is liable for the debts of the firm.

On either ground, therefore, it appears clear, that Nathaniel Blanchard had no attachable property in the goods taken by the defendant, that the taking was tortious, and consequently amounted to a conversion.

Judgment on the verdict.