be liable for every debt necessarily incurred in furthering the joint interests of the partners. [CRESSWELL, J.-In the case of a partnership, the law gives to each authority to contract debts for the concern: but there is no such implied authority where there is no partnership.] The ordinary test of partnership is, the right to share in profit, and the liability to contribute to loss. In Pott v. Eyton, 3 C. B. 32, 39, Tindal, C. J., says: "Traders become partners between themselves by a mutual participation of profit and loss: but, as to third persons, they are partners if they share the profits of a concern; for, he who receives a share of the profits, receives a part of that fund upon which the creditors of the concern have a right to rely for payment, and is therefore to be made liable to losses, although he may have expressly stipulated for exemption from them." [CRESSWELL, J.-That has been said ever since the case of Waugh v. Carver, 2 H. Bla. 235: and some judges *363] have pronounced it to be a very bad *rule.(a)] The claim is in respect of a series of advances resulting in a partnership account. [COCKBURN, C. J.-Would there be a right of survivorship in this case ?] Yes; at law. [COCKBURN, C. J.-Would not the plaintiff have been entitled to call upon the defendant from week to week to pay his proportion of the expenses incurred in the keep, &c., of the horse?] It would only have been matter of account: it could not have been recovered at law. [COCKBURN, C. J.-Instead of contributing his share of the expenses of keeping and training the horse, the defendant gets the plaintiff to advance it for him. Was the advance made quâ partner or quâ creditor?] The advance clearly formed a partnership account, which can only be adjusted in a court of equity.

COCKBURN, C. J.-I am of opinion that this rule should be discharged. I think the fair result of the evidence is, that there was no partnership between the plaintiff and the defendant in the horse in question. They were owners in common, each being entitled to an undivided moiety,-part owners, but not partners in the ordinary sense of the term. I incline to agree with the defendant's counsel, that, though not partners in the horse, the plaintiff and defendant might be partners in the mode of working and managing it for their common benefit. They appear to have come to an agreement that the horse should be kept and trained by the plaintiff, and entered at races to run for the common benefit of the two, that a certain sum should be allowed weekly for the horse's keep, and that there should be an equal division of the profit and loss between them. That, I think, would constitute a partnership between them in the *management of the horse. *364] But then comes the question, whether the plaintiff may not, notwithstanding such partnership, recover from the defendant his proportion of the disbursements made by him in keeping, training, running,

(a) Probably alluding to a discussion in the Exchequer Chamber in Hickman v. Cox, which now (Michaelmas Term, 1857) stands for judgment.

and managing the horse. Now, it is incidental to every partnership that there shall be capital advanced by the partners for the purpose of carrying on the concern. It seems that the capital in this case consisted of the necessary disbursements for the horse's keep, and for working it for the common benefit. If the two had agreed that a certain sum should be contributed by them in equal moieties as the capital for the partnership, and the defendant had failed to advance his share, and the plaintiff had advanced it for him, there could be no doubt that the plaintiff would have been entitled to maintain an action for the capital so advanced. Now, it being agreed that each should contribute a moiety of the stipulated capital, it clearly can make no difference in principle whether such capital is all advanced at the outset or from time to time as the necessities of the concern require it. Here, instead of obtaining advances from time to time from the defendant, it seems the plaintiff paid his share of the expenses for him. No doubt, the moment money is paid in as capital, it becomes part of the partnership fund, resulting only in matter of account, and cannot be made the subject of an action at law. But that is clearly distinguishable from advances made by one partner, not to the concern, but to the other in respect of what he is to contribute to the joint capital; and there is no principle of law that I am aware of which prevents such advances from being recovered back: it is a matter altogether dehors the partnership. With-out, therefore, in the slightest degree intending to trench upon any of the fundamental principles of the law of partnership, it appears to me that we may give effect to what justice demands here, by holding that the *plaintiff is entitled to recover the debt claimed in his second

count.

[*365 CRESSWELL, J.-I am of the same opinion. Assuming that the agreement between these parties to keep, train, and run the horse in question constituted a partnership between them, I think the payments made by the plaintiff amounted to an advance by one partner of capital on behalf and at the request of the other, and may be recovered in an action at law. I do not feel at all pressed by the difficulty suggested. by Mr. Manisty, as to the complication of the account, where there are advances on behalf of each other in the case of a partnership consisting of several members. However complicated the account, the principle remains the same. This is the simple case of an advance of capital by one partner at the request of the other.

CROWDER, J.-I also think the plaintiff is entitled to recover in respect of the demand in the second count. It seems to me to be very doubtful whether there was any partnership at all between the plaintiff and the defendant. There clearly was no partnership in the horse: it was a mere case of joint ownership. But it is said the agreement that. the horse should be kept, trained, and run for stakes, and the winnings divided between the joint owners, constituted a partnership between N. S., VOL. II.—17

them. If so, what is the capital? The money required for keeping, training, and conveying the horse to the various races for which he might be entered,-in other words, the money expended in placing the horse in a condition to win the stakes. Suppose, instead of the agreement that the plaintiff should provide for those incidental expenses from time to time as they arose, it had been calculated that a sum of 1007. would be required for the purpose, of which each party was to *advance 507.,-could there be a doubt, that, if the plaintiff *366] advanced the 501. for the defendant, at his request, he could recover it back by an action? If so, it can make no difference, that, instead of being advanced in one sum at the commencement, the defendant's share of the capital was advanced by the plaintiff from time to time in such sums as the common purpose required.

WILLES, J.-I am entirely of the same opinion. The agreement here amounts to the sort of tenancy in common mentioned in the section of Littleton to which I referred in the course of the argument. The effect of the agreement seems to be this,-that the plaintiff should keep and train and have the exclusive management of the horse, entering it and conveying it to the different races, and doing everything necessary to put it in a condition to run, and, in the event of the horse winning, paying over to the defendant one-half of the amount of such winnings. It in truth amounts to no more than a contract between two tenants in common, whereby the one agrees, in consideration of certain things to be done by the other, to abstain from exercising his rights in respect of the chattel held by them in common. It is no more a partnership than if two tenants in common of a house agreed that one of them should have the general management, and provide funds for necessary repairs, so as to render the house fit for the habitation of a tenant, and that the net rent should be divided between them equally. Even if this were to be looked upon as a contract of partnership, the point at which the partnership would necessarily commence, is, that at which the horse is put upon the turf in a condition to run for stakes. The payments sought to be recovered here, are, payments made by the plaintiff in the nature of advances on behalf of the defendant anterior to the time at which any partnership could *commence. With*367] out expressing any decided opinion upon the first point, upon the second ground I concur with the rest of the court in thinking that the plaintiff is entitled to recover upon the second count as well as upon the first, and therefore that the rule to reduce the damages must be discharged. Rule discharged.

Where two or more purchase a tract of land together, under an agreement that it shall be re-sold and the profit divided (supposing that a technical part

nership exists between them, which is doubtful yet), as there is but one item to settle between them, assumpsit may be maintained against the party who

received the proceeds of the re-sale; and it is not necessary to resort to an action of account render: Brubacker v. Robinson, 3 Penna. Rep. 295.

An agreement between two to enter into a single transaction of buying for

the purpose of profit does not create such a partnership as confines the remedy of either, to obtain the fruits of their purchase, to the action of account render: Galbraith v. Moon, 2 Watts, 86. See Wood v. Merrou, 25 Vermont, 340.

LEIGH and Wife, Executor and Executrix of HENRY HOW, deceased, v. ANN BAKER, Executrix of WILLIAM BAKER, deceased. May 5.

A writ issued under the Bills of Exchange Act, 1855, 18 & 19 Vict. c. 67, in a case which is not within the act, the bill or note having become due and payable more than six months before, -may, by virtue of the 222d section of the Common Law Procedure Act, 1852, be amended, by turning it into a writ under the last-mentioned act.

The defendant was, in May, 1856, served with a writ of summons under the Bills of Exchange Act, 1855, for the recovery of principal and interest on a promissory note alleged to have been made by her testator in March, 1851, payable on demand. No appearance having been entered. judgment was signed, and execution issued. Nine months afterwards, the defendant moved to set aside the writ and subsequent proceedings, on the ground that they were coram non judice and void, and also suggesting that the testator's signature to the note was a forgery. The court refused to set aside the writ, but allowed it to be amended, upon terms, by making it a specially endorsed writ under the 25th section of the Common Law Procedure Act, 1852.

THIS was an action brought by the plaintiffs as executor and executrix of Henry How, deceased, to recover 1102. 178. for principal and interest on a promissory note in the following form:

1851. March 3d.

"We, Robert Norman, John Norman, yeomans, of Northmolton and Winsford, William Baker, cordwainer of Winsford, jointly and separately do hereby promise to pay, on demand, unto Henry How, sen., of East Anstey, in the county of Devon, on his order, the sum of one hundred pounds of lawful money of Great Britain, with interest at 5 per cent., for value received by me Robert Norman this third day of March, one thousand eight height hundred and fifty-one. Witness our hands,

"£100.

ELIZABETH HOW."

"ROBERT NORMAN. "JOHN NORMAN. "WILLIAM BAKER."

[*368

*In May, 1856, the defendant was duly served with a writ of summons endorsed pursuant to "The Summary Procedure on Bills of Exchange Act, 1855," 18 & 19 Vict. c. 67. On the 3d of June, judgment was signed in the form given in schedule B. to the act annexed; and a fi. fa. issued de bonis propriis of Ann Baker.

Field, on a former day in this term, obtained a rule calling upon the plaintiffs to show cause why the writ of summons and all subsequent proceedings had thereon should not be set aside, or why the judgment

signed in this cause and all proceedings had thereon should not be set aside, or why the said judgment and subsequent proceedings should not be set aside, and the defendant be at liberty to appear to the said writ of summons and to defend the action.(a)

*The act is limited to actions brought within six months after *369] the bill or note shall have become payable. *This note was made *370] in March, 1851, and was payable on demand; it was, therefore, due and payable immediately, and consequently the act does not apply to it, and the whole proceeding is a nullity. [CRESSWELL, J.-The action is the demand.] The statute of limitations would begin to run

(a) The affidavit upon which the rule was moved was made by the defendant, who was described as "widow of William Baker, deceased, late of Winsford," and George Baker, her son. The former deposed that she was served with the writ of summons in this action in May last; that, at that time, and up to the time when she first consulted her attorney in this case, on or about the 17th of March, 1857, as hereinafter mentioned, she was wholly ignorant of the law in such matters, and of all proceedings thereunder, and that she then and still lived at a distance of nearly twenty miles from any attorney, and that she then and still was very infirm, and for those reasons neglected to appear to the writ, or to take any steps in the matter; that she was some time afterwards informed that judgment had been signed in this action; that, about a month after she was served with the said writ, an officer of the sheriff of Somerset took possession of three leasehold dwelling-houses and premises left to her by the will of her late husband, and remained therein with her and her son (the other deponent) for upwards of a month, when the said dwelling-houses were sold to one William Quartly; that, shortly after she had heard that the said judgment had been so signed against her in this action, she went with her daughter Eliza Webber to the office of Messrs. Pearse & Crosse (the plaintiffs' attorneys), in Southmolton, and there saw the promissory note upon which this action was said to be founded, and which purported to be signed by her late husband, William Baker, and she and her said daughter perceived that the name of William Baker signed on the promissory note was not the handwriting of her late husband; that she verily believed the said signature "William Baker" was not the handwriting of her late husband the said William Baker; that she verily believed the said William Baker, her late husband, never was indebted to the said Henry How, the payee of the said note, and that he never became surety to him for any other person, and she believed, that, if he had been so indebted, or had so become surety, he would have informed her thereof; that the words "William Baker, cordwainer, of Winsford," appeared to have been interlined in the body of the said note, and that the said signature "William Baker" was written the last of the signatures at the foot of the said note; that she then and still believed that the said signature was a forgery; that, a few days after she and her said daughter had so inspected the said note, her son George Baker (the other deponent) told her he had been to the office of Messrs. Pearse & Crosse, the plaintiffs' attorneys, and had seen the said note, and found that the signature "William Baker" was not her said husband's signature, but that the said Mr. Crosse had told him, that, judgment having been signed in the action, it was too late to dispute the note; that she believed this statement of Messrs. Pearse & Crosse to be true, and, in consequence thereof, and of her ignorance of the law, she took no steps to obtain legal redress until she explained the facts to Mr. Waldron, attorney, of Wiviliscombe, as thereinafter mentioned; that, on or about the 17th of February last, she was served with a writ of ejectment brought by the said John Leigh against her and her said son, George Baker, and Isabella Gunter, to obtain possession of the above dwelling-houses; that she had been informed, and believed, that the said William Quartly did not complete the purchase of the dwelling-houses and premises from the sheriff, and that the same were in fact purchased from the sheriff by the said John Leigh, and that he was in consequence bringing the said ejectment; that, on being served with the said writ of ejectment, and understanding she should be turned out of the house, she went to consult the said Mr. Waldron thereon, and then explained to him the facts thereinbefore mentioned; and that the said Mr. Waldron had informed her that the proceedings in this action on the part of the plaintiffs had been wrong, and had advised her to apply to have them set aside. The other deponent, George Baker, also swore positively that the name "William Baker" at the foot of the promissory note in question was not in the handwriting of his late father, and that he never knew or heard, and did not believe, that his father was ever indebted to the said Henry How, or ever became surety to him for any other person.