5o8 HARVARD LAW REVIEW. juries to the court, he has waived his right to object to a physical examination on the ground of personal inviolability. Ilaynes v. Town of Trenton, 123 Mo. 326. Perhaps the most satisfactory rule would be to leave the entire question to the discretion of the court, which would order an examination when the ends of justice imperatively demanded it, and would refuse when it was evident that the purpose of the defendant was merely to harass and annoy the plaintiff. Belle of Nelson Distilling Co. v. Riggs, 45 S. W. Rep. (Ky.). Evidence — Presumptions. — On an issue as to the sanity of a testator, the court charged the jury that if the evidence was evenly balanced, they should consider the presumption of sanity as evidence, and find in favor of the will. Heid, no error. Appeal of Sturdevant, 42 Atl. Rep. 70 (Conn.). It seems impossible to support eitlier the reasoning or the conclusion of the court. While the court admit that the ultimate burden of establishing the sanity of the testator is on the person propounding the will, Cro-juninshield v. Crowninshield, 68 Mass. 524, yet the effect of the charge must be to direct a verdict in favor of the will if the evi- dence is evenly balanced, although it is evident that in such a case the verdict should be against the party having the burden of establishing sanity. Sutton v. Sadler, 3 C. B. N. s. 87. While it is often said that presumptions are evidence, this is incorrect and has led to much confusion. See Coffin v. U. S., 156 U. S. 432 ; Allen v. U. S., 164 U. S. 492 ; Agnew v. U. S., 165 U. S. 36. The legitimate effect of the presumption of sanity seems to be merely to make out 2i prima facie case, and to put the burden of coming forward with evidence on the other party. But when all the evidence is brought in, although the fact on which the presumption is based may be evidence, namely, the fact that most men are sane, yet the presumption itself is not evidence, being merely an infer- ence drawn from that fact. Thayer, Prel. Treat. Evid., 551-576. Gift of Non-negotiable Instruments. — A non-negotiable banker's receipt with a power of attorney indorsed was given by a father to his son, and later the son was ap- pointed his executor. At the father's death the son collected the deposit in his own right. Held, that the son may hold the deposit. Re Griffin, 79 L. T. Rep. 442. See Notes. Insurance — Forfeiture — Waiver. — An insurance policy provided that in case insurance in excess of a certain sum should be placed on the property insured, the policy should be void. Such an excess sum was placed. After loss, however, the in- surance company, although having notice of the breach of the condition, did not claim the forfeiture, but proceeded to determine the loss. In an action on the policy, held, that the company is liable. British-America Assurance Co. v. Bradford, 55 Pac. Rep. 335 (Kan., Sup. Ct). The court held the company liable on the ground that by its acts it had waived the right tQ claim a forfeiture. There was no consideration nor any acts on which to base an estoppel, and in Bigelow, Estoppel, 3d ed., 568, it is said that such a waiver is of no effect ; this view is supported by some early cases. Ripley v. JEtna Insurance Co., 30 N. Y. 136. The principal case, however, seems to be correct in holding that neither of these elements is necessary to make a waivfer binding. Titus v. Gletis Falls Insur- ance Co., 81 N. Y. 410. A surety may become liable by waiving a defence given him by the fact that his creditor has given time to the principal debtor. Hooper v. Pike, yz N. W. Rep. 829 (Minn.). An indorser of a bill of exchange may in the same way waive the laches of the holder in notifying him of dishonor. Allen v. Brown, 124 Mass. 77. Generally where one has a defence he may waive it, and the principal case is but an- other illustration of this rule. Partnership — Sharing Profits as Test. — One of the defendants advanced money to the other to be used in a business enterprise, and the latter agreed to return the principal with interest and one-third of the profits of the business. Held, that this made them partners as to third parties, although both defendants intended a loan merely, and not a partnership. Dilley v. Ahright, 48 S. W. Rep. 548 (Tex. Civ. App.). The decision follows Cothran v. Marmaduke, 60 Tex. 370, the force of which was somewhat weakened, however, by Buzard v. Bank, 67 Tex. 83. The doctrine adopted by the court, making a sharing in the profits, except as payment for services, conclusive evidence of partnership, once prevailed in both England and America. Grace v. Smith, 2 W. Bl. 998; Waugh v. Carver, 2 M. B. L. 235'; Haas v. Roat, 16 Hun, 526. It was overthrown in England by Cox v. Hickmatt, 8 H. L. Cas. 268, and cases following it, and has been almost universally abandoned in this country. Curry v. Fowler, 87 N. Y. 33 ; le Leore Castagnio, 5 Colo. 564. The true doctrine is that profit-sharing is only prima facie evidence of a partnership, and the real intention of the parties finally governs. I Bates, Partnership, §§ 1 5, 23, 47. It may be just that one who loans money for a share of profits should be postponed to other creditors, but the proper way to reach this re- sult is by statute, as is done in England by Bovill's Act.
