did not furnish evidence to go to the jury that he was cognizant of its be'ng carried on with a smaller amount of capital than was originally intended, and I can not say that they did not. As to the second ground, it is said that a m ning company which, as was decided in Dickinson v. Valpy, is not necessarily formed with the power to pledge the credit of individual members by the d.awing of bi ls, is also not formed with power to bind each other by dealing on credit; but these are two very different prop sitions. Whether the directors have such a power must depend on the general nature of the concern; it is a matter for the jury to decide upon unless the party gives evidence to show that their a thority was expressly limited, and if it had bee left to the jury in this case I think they would not have had much difficulty in saying that it is in the general nature of mining concerns to deal on credit for the purpose of carrying on their business. I think, therefore, the defendan: has not raised a sufficient foundation to support the second objection. Being a shareholder it was competent to him to have produced the deed of settlement whereby the members were mutually bound, f it were material to his defense. I should have left it to the jury to judge for themselves whether such companies do not ordinarily deal on credit; if they do the shareholders are liable, unless by some evidence the party shows that in the particular case he is not liable.

PARKE, B.--No doubt the plaintiff is bound to make out. his case; the only question is wether he has not here proved a prima facie case; if he has, the jury had a right to consider it, no answer being given on the part of the defendant. The sole question was whether there was evidence to go to the jury that the defendant gave authority to the directors to pledge his credit to the plaintiff. If the case had stood merely on the fact of his being a shareholder I should have thought it was not sufficient. But his letters, which were put in, showed, first, that he knew the directors were acting in the management of the partnership, and secondly, that he was taking a personal interest in the concern; and they were evidence for the jury that he authorized the directors to do what they did for his benefit. It is said that he was deceived as to the amount of capital; but whether he knew the amount actu

ally subscribed or not, there was proof that he authorized the directors to proceed in the management of the concern. Either he knew it, or, not knowing it, chose to authorize the directors to proceed. No point was made at the trial that this was su h a partnership as co ld not deal on credit; if it had, the plaintiff would probably have supplied evidence on that point, and a Cornish jury wou'd probably have s id it was the constant practice to purchase materials for mines on credit; at all events the objection was not taken. There was, therefore, a sufficient prima facie case for the jury. If the defendant had shown that by this particular contract the directors were only to deal with the actual fund put into their hands, and that they had no power to pledge the credit of the shareholders, that would have been a defense, because the plaintiff has not trusted to any representation of the defendant, or bargained personally with him. But the sole question being whether there was a prima facie case for the jury, I think the two letters of the defendant, and the fact of his being a shareholder, in the absence of proof of any limited agreement on his part, constituted such prima facie case, and therefore there ought to be a rule.

ALDERSON, B., concurred.

ROLFE, B.--I am of the same opinion. The goods supplied by the plaintiff were of daily use in the mine; they were habitually furnished, to the amount of £820; the accounts were regularly sent up to town and audited, and this was only the balance of the last invoice on the books. It is clear what was the usual mode of dealing here, and if it had been put to the jury, there can be no doubt what their finding would have been.

Rule refused.

i.

RALPH V. HARVEY. RICHARDS V. HARVEY.

(1 Q. B. 845. Queen's Bench, 1841.)

1Admissions in proof of partnership. When a defendant is charged in debt as a member of a mining company, but is not shown to have contracted such debt personally. nor to have represented himself to the plaintiff as a partner, the fact of his having been partner may nevertheless be shown by evidence, short of strict proof that he signed the deed of partnership or was legally interested in the mine. Admissions made by him before or after the debt was incurred may be evidence for this purpose.

Ralph v. Harvey was an action of debt for work and labor; plea, nunquam in lebitatus. The cause was tried April 13, 1841, at the Guildhall, Devonport, before the deputy sheriff to the sheriff of Devon. It appeared that the work had been performed at a mine held by a mining company; and the plaintiff's case was, that the defendant had become liable as a partner. The work was done in the first four months of 1840. It was not proved that the defendant had personally contracted with or employed the p'aintiff, or had led plaintiff to suppose him a partner in the mine; nor was evidence given of any instrument of partnership; but the plaintiff endeavored to show that defendant was in fact a partner, by admissions in conversation. The defendant was stated to have said after the work in question had been done, and the mine had stopped, that he held one hundred shares; that he would see the manager, and that arrangements would be made for payment. Vice v. Lady Anson, 7 B. & C. 409; S. C. at nisi prius Moo. & M. 96, was cited for the defendant, and Tredwen v. Bourne, 6 M. & W. 461, for the plaintiff. Some evidence was given for the defendant, to show that he had never actually become entitled to shares in the mine. The deputy sheriff told the jury that Vice v. Lady Anson was still law, and not overruled by Tredwen v. Bourne. That no deed of copartnership being proved by the plaintiff, there was no copartnership, and very meager evidence indeed, beyond admissions, of the defendant being a shareholder. Verdict for defendant.

1 Tredwen v. Bourne, 11 M. R. 268; Bord v. Merriell, 9 M. R. 664; Kay, 9 B. & C. 356.

Reynolds v.

VOL. XI-18

In Easter term last, a rule nisi was obtained for a new trial, on an affidavit by the attorney who had acted as the plaintiff's advocate, stating the above direction of the deputy sheriff. An affidavit was made in opposition to the rule, by the agent who had attended for the defendant, stating the direction to have been, that if defendant was a shareholder before or at the time when the work was done, he was liable, or if he had held himself out to the world as such; that the jury had to consider whether he was a shareholder or not; that the evidence to prove him a shareholder was extremely meager, and the deputy sheriff did not think the admissions they had heard, to the two or three persons who had been examined, were to be taken as evidence sufficient to prove defendant a shareholder; and that he considered the case of Vice v. Lady An son, still to be law. The deputy sheriff made no statement in his notes as to the terms of his summing up.

case.

Richards v. Harvey was an action of debt against the same defendant, for work and labor at the same time. Plea, nunquam indebitatus. The cause was tried before the same deputy sheriff, on February 4, 1841, and was in all material respects the same as Ralph v. Harvey. Admissions after the mine had stopped were proved to the same effect as in that No witness was called for the defendant. Verdict for defendant. A rule nisi was obtained for a new trial in last Easter term. An affidavit in support of the rule (sworn by the attorney who acted as the plaintiff's advocate) stated that the deputy sheriff summed up the case and directed the jury, upon the authority of Vice v. Lady Anson, that there was no evidence to show that the defendant was a shareholder; and he held that if the admissions had been made before the mine stopped, and at a time when it was working, the plaintiff could have recovered, bat, as they were made after the mine had stopped, they had no weight. The affidavit, in opposition to the rule (sworn by the agent who had attended for the defendant), stated that according to the deponent's belief the deputy sheriff had not said that there was no evidence of defendant being a shareholder, but had left it to the jury to decide whether or not he was a shareholder, or had held himself out to the world as such, saying that if he had done so while the mine was working he must be presumed to have had

sufficient interest to make him a partner; and that after reading the evidence, the deputy sheriff told the jury that, if the defendant had given any authority or direction, he should. have recommended them to find a verdict for the plaintiff, but as it was, he left it in their hands. The deputy sheriff, in his notes, made no statement as to his summing up.

SIR F. POLLOCK now showed cause against the two rules.Vice v. Lady Anson, if it is still to be considered law, establishes this, that in actions against persons charged as members of mining companies, for work done, etc., on the common account, if there be no personal contract shown between the plaintiff and defendant, it must be proved by strict evidence that the defendant was a partner and so liable; and mere loose admissions are not equivalent to such evidence. The declarations in these cases, at any rate, were capable of explanation and not conclusive. As to the alleged misdirection in Richards v. Harvey, the affidavits differ, and the case appears to have been left in the hands of the jury.

ERLE and BUTT, contra.- Tredwen v. Bourne shows that the proof of liability by admissions is not so strictly excluded as the defendant in this case would infer from the judgment in Vice v. Lady Anson. If that case decides that where the defendant has not personally contracted, or held himself out as a partner, nothing can make him liable but proof of a regular legal title, the opinions just now delivered (June 3, 1841) by the court of common pleas, in Steigenberger v. Carr, 3 Scott's New Rep. 466, contradict it. In Vice v. Lady Anson such a doctrine was not necessary to the decision, and was less strongly laid down in this court than at nisi prius. The words of the summing up in Ralph v. Harvey, that "No deed of copartnership being proved by the plaintiff there was no copartnership, and very meager evidence indeed, beyond admissions, of the defendant being a shareholder," must have led the jury to suppose that the admissions were to be left out of consideration; but they were evidence for the jury, as much as the letters in Tredwen v. Bourne. Nor was the direc tion accurate as to the evidence of copartnership. In Rich