case henry brown and other appellant richard Gibbins respondent saint February  Mews dig ten see Croxtons case de g and S a on behalf of himself and his  partner enter into contract with b for the purchase of a certain commodity but  the name of a only be make use of in the contract this contract not be perform  by a a action be bring and a verdict recover against he on a bill file by a  against his partner to contribute their share of the damage and cost hold that  they be liable so to do have pay a proportion of the deposit and be entitle to  a equal share of the profit if any have be make decree of the master of the  roll and Lord Macclesfield c affirm the respondent get his live in  exchangealley by sell lottery ticket and India bind become acquaint with the  appellant in the month of August who agree to become partner with he in the  purchase of fifteen share of Welsh copper and in pursuance of such agreement  the respondent on the brown that of that month buy of one miller a broker who  be agent for Francis sawle those fifteen share at pound per share amount to  pound and miller and the respondent be each to deposit pound apiece to secure  the performance of this contract and the share be to be transfer at the next  open of the book whereupon the appellant and the respondent joint advance  equal proportion of the pound be each a seven part thereof amount to pound S d  which be accord pay into the hand of messrs green and eades goldsmith as a  deposit to secure the performance of the agreement on the part of the  appellant and the respondent miller at the same time also deposit the like sum  of pound soon afterward a proclamation issue to prevent person make or accept  of any assignment or transfer of any stock of any company without legal  authority by act of parliament or charter to warrant such body corporate to  transfer share therein and a to know facias issue against the Welsh copper  company the respondent for fear of incur the penalty mention in the  proclamation if he accept the say stock at the open of the book do not accept  the same whereupon sawle commence his action in the court of king bench  against the respondent upon which he be arrest and hold to bail in pound and  keep in custody for want of bail three day and after he have put in bail he  acquaint brown and Clarkson two of the appellant with the same who agree that  the action shall be defend brown er p and go with the respondent to a attorney  for that purpose and the respondent several time give notice to the appellant  to meet together in order to agree about term of accommodation with sawle but  they never can be prevail upon by the respondent to meet so that he have it  not in his power to make any composition in case sawle will have accept any  the respondent have plead to the action exhibit his bill in the court of  chancery in Michaelmas term against the appellant and sawle and also against  miller the broker pray a stay of the proceed at law and that whatever damage  and expense the respondent shall be put to may be bear and pay by the  appellant as his partner and sharer in the contract in easter term the action  at law be try before the Lord chief justice Pratt the appellant have have  previous notice in write give they thereof upon which trial the respondent  make the best defence he can but the plaintiff prove the contract and the  register thereof and that he have more stock than be sell to the respondent in  the company book the jury bring in their verdict for pound and sawle threaten  to take the respondent in execution whereby he will have be utter ruin he be  force to pay down pound and give sawle security for the remainder on the that  of February the cause be hear before the master of the roll who decree it  shall be refer to a brown master to certify how much the respondent have pay  sawle and what security he have give he for the remainder and the respondent  and sawle be to make a affidavit what money have be pay sawle and what money  be agree to be pay on that security and the master be to tax sawle his cost  and upon the respondent pay what shall appear due to sawle for principal money  and cost he be to acknowledge satisfaction on the judgement obtain against the  respondent and deliver up the security and it be further order that the  appellant shall pay the respondent their respective proportion of the money  which the master shall certify have be pay by the respondent to sawle or that  the respondent be liable to pay he on the say security and also their  proportion of the cost of the suit which the respondent be to pay sawle and of  acknowledge satisfaction on the judgement from this decree the appellant  appeal to the Lord chancellor Macclesfield and the cause be reheard on the  that of may his lordship declare he see no cause to alter the decree and  therefore order the respondent to have the deposit the master make his report  on the that of November and thereby certify that by a agreement in write make  between the respondent and sawle date the d of may and a receipt under Sawles  own hand date the same day the respondent have pay sawle pound in part of  pound damage and pound cost at law and be to give sawle security for payment  of pound with interest in eighteen month which security be accord give by a  mortgage of the respondent house in Kentish town and that the respondent and  sawle have make such affidavit as the decree direct and the master further  certify that the respondent be liable to pay sawle interest for the say pound  from the that of may which he have compute at pound per cent to the that of  December then next and amount to pound S d and that he have tax Sawles cost at  pound S which add to the aforesaid sum of pound damage and pound cost at law  amount in the whole to pound S d which be the total sum the respondent be to  pay sawle and of which he have pay pound as aforesaid the master also certify  that he have consider of the appellant and the respondent proportion of the  say sum of pound S d and find each person proportion to be pound S d which by  the decree the appellant be direct to pay to the respondent and he appoint the  respondent to pay sawle pound S d be what remain unpay of the say sum of pound  S d upon the that of December then follow the appellant take a exception to  this report because the master have allow interest for the say pound and the  cause be hear upon this exception on the that of march before the lord  commissioner for the custody of the great seal the exception be overrule and  the report confirm brown from both these decree and the order overrule the  exception to the master report the present appeal be bring and on behalf of  the appellant it be insist p York W Hamilton that they be no party to the  contract brown er p between the respondent and miller as the agent of sawle  nor know any thing of it till afterward and even then be stranger both to the  respondent and sawle that the only agreement which the appellant enter into be  to advance their respective share of the deposit after the respondent have  make the agreement in his own name only and without take any notice of they  and they be to run no other risk in that agreement than the forfeiture of  their proportion of the deposit in case the stock shall not be worth  acceptance but be not to be oblige in all event to take the stock beside the  appellant have no receipt for the money which they advance nor any note or  agreement under the respondent hand to oblige he to give they their  proportionate share of the advantage of the bargain in case any shall arise  that the action between sawle and the respondent be apprehend to be collusive  in regard sawle offer to acquit the respondent from the contract for twenty  guinea but which he refuse to give sawle likewise offer to acquit the  respondent upon his allow he to take the deposit but which he also refuse and  never communicate either of these proposal to the appellant that the suit in  chancery as between the respondent and sawle be amicable the respondent have  neither reply to Sawles answer or move for a injunction or examine any witness  although by his bill he not only pray a injunction but also to have the  contract deliver up that there be no proof in the cause that the contract be  register in time or that sawle be possess of stock accord to the act of Geo I  for restore public credit neither be it in proof that sawle ever transfer or  tender the stock in question to the respondent but which ought to have be  prove to the satisfaction of the court that the appellant not be party to the  action at law and therefore not able to make a defence thereto ought at least  to have the benefit of a trial at law not on as to the validity of the  contract in the several respect aforesaid but also as to the point whether the  appellant forfeit their share of the deposit will not or do not avoid the  contract as between they and the respondent on the other side it be contend t  Lutwyche c Talbot that the contract for the purchase of the stock though make  in the respondent name only be so make on account of all the partner that the  appellant in pursuance thereof pay each their proportion with the respondent  of the deposit and will have be entitle to a equal share of all profit if any  can have be make thereon and therefore ought in equity and justice to bear  their proportion of all loss by the contract and not leave the same whole upon  the respondent who as to the share of the appellant therein act only as their  trustee that the appellant have suffer the respondent alone to be prosecute at  law upon this brown contract and have previous notice of the trial give to  each of they respective ought to have assist the respondent in make a defence  but as they neglect to do so they ought to be equal bind with he by the event  of the trial that sawle have upon the trial make all the proof require by law  and have thereupon recover a verdict for pound it be but just and reasonable  that the appellant shall pay their proportion thereof the respondent have do  all that lie in his power to prevent the same and especial as it be not in his  power to make any composition with sawle without the joint consent of all the  appellant who never can be prevail upon to meet together for that purpose it  be therefore hope that the say decree report and proceed will be affirm and  the appeal dismiss with exemplary cost accord after hear counsel on this  appeal it be order and adjudge that the same shall be dismiss and that the  decree affirmance and order therein complain of shall be affirm jour vol p  brown er p party