in re Gibbins, Mont. & M'A. 415, S., by his marriage-settlement, covenanted with the petitioners, as trustees, to pay an annual sum of 801. for himself for life, then to his wife for life, and, after her death, to any issue of the marriage; and that his heirs, executors, or administrators, should, within twelve calendar months after his death, pay to the petitioners the sum of 4000l., on various trusts. S. became bankrupt and it was held that the petitioners were entitled to prove the value of the 4000l. as a contingent debt against his separate estate. So, in Willis, in re, 4 Exch. 530,† it was held, that, under the 6 G. 4, c. 16, s. 56, a claim on a guarantee for a sum certain, when due, is provable as a debt, and, before it is due, is provable as a debt due on a contingency. Where the contingency happens after the date of the fiat, but before the whole estate has been distributed, the amount is provable under the second branch of the clause, although its value could not be ascertained at the date of the fiat. In Ex parte Grundy, in re Russell, Mont. & M'A. 293, A., in February, 1772, covenanted by his marriage-settlement for the payment of 2000l., in case his intended wife, or any issue of the marriage, should survive him: in 1803, a commission of bankruptcy issued against A., under which he obtained his certificate in February, 1825, A. died, leaving issue of the marriage : in May, 1828, there *being funds remaining for distribution [*429 amongst the creditors of A., a renewed commission was issued, and a final dividend advertised: it was held, that the 6 G. 4, c. 16, s. 56, was retrospective in its operation, and that, although the event upon which the debt was contingent, had happened after the commis-sion issued, and before that statute came into operation, the sum of 20007. was a debt provable under the commission. In Ex parte Lewis, in re Charman, Mont. & M'A. 426, where A. advanced 2000l. to B., to be repaid on a day certain, and secured by the bond of C., conditioned. that, if B. made default in payment on the day named, C. should pay within one week: C. became bankrupt, and B. afterwards made default : and it was held that the debt was provable under the commission against C. So, in Ex parte Myers, in re Sudell, Mont. & Bligh, 229, a debt on a guarantee which did not become absolute before the bankruptcy, was held to be provable as a contingent debt. Here, as the events had continued, during the existence of which the annuity was to be payable, the contingency had happened as to each and every of the sums which became due since the bankruptcy; and the trustees are consequently entitled to prove against the separate estate of the bankrupt, for all the payments which had accrued since the 25th of March, 1843. Willes (with whom was Maxwell), contrà.-Foster's liability to pay the annuity in question does not constitute a debt provable within the 6 G. 4, c. 16, s. 56, by reason of the uncertainty of the amount to be paid in futuro, and the impracticability of calculating its value. In Thompson v. Thompson, 2 N. C. 168, 2 Scott, 266 (E. C. L. R. vol. VOL. IX.-19 30), it was distinctly held, that the instalments of an annuity for the payment of which a bankrupt is surety only, and which he cove*430] nants to pay in case of the default of the grantor, are not, where they become due after his bankruptcy, provable under a fiat against the surety. In Bennett v. Burton, 12 Ad., & E. 657 (E. C. L. R. vol. 40), 4 P. & D. 313, by deed of mortgage for a debt of 1000l., the mortgagor covenanted, as a further security, to insure his life for the mortgagee's benefit, deliver the policy to him, and keep the premiums paid till the debt was discharged; and that, if in the mean time the premiums should be in arrear, the mortgagor might pay them, and recover the amount from the mortgagee. The mortgagor afterwards took the benefit of the insolvent debtors' act, 7 G. 4, c. 57, and included the 1000l. debt in his schedule, stating also that the creditor held a policy of insurance on his life, with the joint security of A. B. for payment of the premiums. And it was held that the mortgagor was not protected, by his discharge and s. 51, from an action of covenant at the suit of the mortgagee, for premiums becoming due after such discharge, and paid by the mortgagee on the mortgagor's default. And in Toppin v. Field, 4 Q. B. 386, 3 G. & D. 340, the defendant, being indebted to the plaintiff, assigned to him a policy of assurance on the defendant's life, and covenanted to pay the annual premiums, and, if he did not, and the plaintiff paid them, to repay the plaintiff. The defendant afterwards became bankrupt, and obtained his certificate. A premium accruing due after the bankruptcy, and being unpaid by the defendant, and the plaintiff having paid it, and not been repaid,—it was held, that the defendant was not discharged from liability for these breaches of covenant, by ss. 56 and 121 of the 6 G. 4, c. 16. In the present case, the annuity not falling within any express provision of the *bankrupt act, the arrears accruing due since the fiat are not provable as an absolute debt. *431] Channell, Serjt., was heard in reply. The following certificate was afterwards sent to the Vice-Chancellor : "This case has been argued before us by counsel. We have considered it, and are of opinion that Rowland Evans, Thomas Foster, and Charles Crompton, are not entitled to prove against the separate estate for the instalments mentioned in this question. "W. H. MAULE. "T. N. TALFourd." HEYHOE v. BURGE. Feb. 14. One who stipulates for a share of the clear profits of a particular adventure, is, quoad third persons, a partner. A. and B., by a memorandum in writing, agreed, "for services performed," to allow C. a fourth share of the clear profits arising from a contract for the construction of a line of railway; and there was evidence to show that C. had acted upon the agreement (though not formally a party to it), and that he had to some extent interfered in the work:-Held, sufficient to show that C. was a partner in the transaction, quoad third persons. DEBT, for work and labour and materials, and for money found due upon an account stated. Plea, nunquam indebitatus. The cause was tried before POLLOCK, C. B., at the Norfolk spring assizes, 1847. The facts were as follows: The plaintiff was a mason and bricklayer at Swaffham, in the county of Norfolk. The defendant had formerly been a contractor for railways and other *public works, but, at the date of the transactions out of which this action arises, had retired from active business, and resided at Herne Bay, in the county of Kent. [*432 In the month of July, 1846, two persons, named William Fly and Daniel Frost, who had formerly been in the employ of the defendant, entered into a contract with the chairman of a company then called “The Lynn and Dereham Railway Company," but since amalgamated with other lines of railway, now known by the name of "The East Anglian Railway Company," to construct the portion of the railway between Narborough and Swaffham, for the sum of 41,0291.; and a short agreement between the parties was signed, as the foundation of a more formal contract. The directors requiring two sureties for the due performance of the contract, Fly and Frost applied to the defendant to become one of such sureties; to which he consented, and thereupon the following agreement was executed: "Memorandum of an agreement made this 5th day of August, 1846, between Messrs. Frost, Fly, and Matheson: the aforesaid Frost, Fly, and Matheson hereby agree, for services performed, to give unto Mr. George Burge, of Herne Bay, one-fourth part of the clear profits arising from a contract made with The Lynn and Dereham Railway Company, for five and a half miles of railroad between Narborough and Swaffham, and they further appoint him to be their arbitrator in any dispute that may arise between themselves. On the 8th of August, a second agreement was entered into by Fly and Frost, of which the following is a copy : * Memorandum, 8th August, 1846. We, the undersigned, hereby agree to pay Mr. George Burge, of Herne Bay, any [*433 moneys he may advance for us, and interest at the rate of 107. per cent. until repaid; and further, give an order jointly upon the Lynn and Dereham Railway Company to receive any moneys that may become due under the contract with them, for the performance of five and a half miles of railroad upon the Lynn and Dereham line, or any other moneys that may be due to us, the said William Fly, Daniel Frost, and Donald O. Matheson. (Signed) "WILLIAM FLY, "DANIEL FROST." Witness, "D. O. Matheson." In pursuance of the last-mentioned agreement, Fly and Frost signed an order, in favour of the defendant, upon the company, as follows:— "London, 8th August, 1846. "The Lynn and Dereham Railway Company "Gentlemen,-Have the goodness to pay unto Mr. George Burge, of Herne Bay, any amount due to us for work performed under our contract with you for the execution of a part of the railroad between Narborough and Swaffham; and his receipt will be our discharge for the same. "W. FLY. "D. FROST." (Signed) On the 15th of August, a contract under seal was entered into by Fly and Frost, as contractors, with the company, for the formation of the portion of the line above referred to: by this deed it was provided, amongst other things, that Fly and Frost should not make any subcontract without the leave of the directors, except as to labour,-and that only with the consent in writing *of the company's engineer. *434] Bonds for the due performance of the contract by Fly and Frost were at the same time executed by the contractors, and also by the defendant and Matheson respectively as their sureties. During the progress of the work, several letters were addressed by the defendant to Matheson. These letters showed that the defendant took considerable interest in the work. In one of them,-which bore date the 6th of December, 1846,-he says:-"I am glad you have got over your difficulties. If you had been a little positive with Mr. Hall (the company's engineer), I consider you could have got a certificate. Look out in time always. Write me to Bull and Mouth. Mr. Fisher has received the bill of particulars from Mr. Cox; and it is necessary, the first opportunity, that we see him together. If you have anything particular to come up for, besides this, you can meet me after Wednesday at Bull and Mouth: but leave as seldom as possible; you have all had running about enough." In another of these letters, the defendant desired Matheson "to keep down all expenses:" and, in another, he sends notice to a person named Reynolds, to detain all stone which had been ordered by Fly and Frost. And, in a letter addressed by him to Messrs. Hall & Co., the engineers, the defendant desires them not to let any materials leave the line. The plaintiff then put in the examination of the defendant under a fiat in bankruptcy, issued on the 10th of November, 1847, against Fly, Frost, and Matheson. The material parts of this examination were as follows:-"I know the bankrupts, Fly, Frost, and Matheson. Matheson is my brother-in-law. Frost has worked for me nearly twenty years, at different places; and Fly, also, I have employed from time to time to do work for me as a contractor. I have paid them as sub-contractors; and I have lent them money to carry on *contracts. They had [*435 good credit, and good character: but I should think not much capital. I knew of their tendering for a contract with the Lynn and Dereham Railway Company. I first heard of it after they had agreed for it,-about August, 1846. In the first instance, they tendered for the contract, and were not successful. But, the directors having for some reason refused to take the party they had previously agreed with, they applied again to Fly and Frost to take the contract; and they then applied to me for assistance. I believe this is the way they got the contract. They advised with me originally as to the quantities, and the prices to be charged for the work. I mean to state that I knew of their tendering for the contract originally. The original contract price was, I think, 45,000l., or thereabouts. I was proposed as, and am, one of the sureties. I agreed to advance money to carry on the work. No sum was named. The agreement under which the advances were to be made was in writing. I produce the agreement, dated the 5th of August, 1846. [The agreement was set out.] There was another agreement, of the 8th of August, 1846, which I also produce. [This agreement also was set out.] That is the agreement I acted upon." This examination was put in for the purpose of proving the agreement of the 5th of August, 1846,-as a statement, under the hand of the defendant, that there was such an agreement, and that he had acted under it, and therefore within the principle laid down in Slatterie v. Pooley, 6 M. & W. 664.† The lord chief baron, after consulting COLTMAN, J., refused to receive the examination as evidence of the agreement. The original was then called for, and produced, but was objected to on the part of the defendant, as being *unstamped, and also on the ground that the defendant was no party to it. [*436 To the first objection, it was answered that there was no evidence that the profits, a division of which the agreement stipulated for, amounted to 201., and therefore no stamp was requisite. And, in answer to the second objection, the plaintiff's counsel put in a further agreement, also dated the 5th of August, 1846, and purporting to be made between Fly, Frost, and Matheson (but executed by Fly and |