case smith against Huggins orlebar and other if several person act as partner  and contract debt and a action be bring against several person as those  compose the whole firm the court will not grant they a new trial on a  suggestion that all the concern be not name or that some be name who be not  concern SC stram upon a motion for a new trial it appear that this be a action  bring by the plaintiff for two thousand pound for oil sell and deliver by he  for the conic lamp upon the credit of the defendant as partner therein they  plead the general issue and now after a verdict for the plaintiff lee chief  justice report that the evidence to charge the defendant be that of one fox  who produce a paper account of oil sell between the year and and say that the  manner of deal be by give a note promise to pay for the oil deliver at the  lamp office which be in the first person and deliver by the officer and amount  to the value of two thousand three hundred modern and two pound eight shilling  and tenpence further evidence against the defendant Huggins be a letter of his  to Mr Rayner a attorney in the year which be to this effect sir Mr orlebar be  come to town upon Mr Parker suit desire to meet Mr smith at the lamp office to  consider how to proceed and I will endeavour to meet he there c and it  likewise appear that Huggins bad accept of a transfer in their stock the  evidence against the defendant orlebar be likewise that a share in the company  stock have be transfer to his father in the year that he be administrator to  his father and have receive dividend that he be repute to be a proprietor and  have be see at the office and the chief justice conclude that upon the whole  he can not certify that this be a verdict against evidence modern er p sir  Thomas Abney and Mr hollings move to set aside this verdict first in point of  evidence and second in point of law first Huggins and orlebar never concern  themselves in the direction or management of this affair as this action be  bring against the defendant in a corporate capacity it ought to have appear  that they act as partner and be the only partner though there be express  evidence of other partner second the patent which queen whether grant to the  proprietor of the conic lamp for fourteen year expire before the six year of r  e the first and if not yet it will have be repeal by the statute of Geo c  common call the bubble Act and the proprietor can now be more liable for the  bubble Act be a bar to the action either upon the statute patent or without  and if so the defendant in this case have as much right to resort to it as  they will in case of game usury c wherefore the verdict ought to be set aside  and a new trial grant Mr solicitor general for the plaintiff there be a  proviso in the bubble Act that it shall not extend to any thing c do before  the twentyfourth of June though the defendant be not in actual partnership yet  if they be repute partner it be no defence to say that they be not real so as  if a tradesman bring a action against a man for good sell to his repute wife  it be no defence to say that they be not real marry cohabitation be sufficient  so this be a lawful debt the defendant act together in this matter be  sufficient to charge they the oil be sell upon their credit if there be any  doubt in the court they will not grant a new trial in a hard action or against  the honesty of a cause smith v page salk a in the case of dear v duchess of  mazarine salk b a new trial be deny though the defendant prove coverture  because it will avoid the payment of a just debt the grant of new trial be  discretionary and not ex debt is owed the whole of the laws and they ought not  to set aside this verdict without show how the action ought to be bring as a  defendant shall not abate the plaintiff writ without give he a better modern  Mr Floyd for the plaintiff the question be whether this be such a verdict as a  honest jury may give for as to the weight of evidence on each side that must  be leave entire to they the plaintiff have sell and deliver his good and now  the question be whether he shall be pay for they it be say that this be not a  lawful partnership this be the first time that ever person try to bring  themselves within the Act of parliament the Geo c S make such undertake void  how only among themselves but not as to other so as to privilege they from pay  their debt for in sect there be a provision for creditor Selwin for the  plaintiff a general reputation of partnership be sufficient unless the  defendant make the contrary appear by refusal or disclaimer c in motion for  new trial the court often take the equity of the case into their consideration  in the year the plaintiff be pay off and the undertake carry on continual  since lee chief justice at the trial this Act of parliament be not consider  and it have a express proviso that it shall not extend to any undertake before  the year then it be to be consider whether this be a void undertake as to  creditor and I think the action maintainable upon the consideration if there  be sufficient evidence to charge the defendant as partner at the time of  deliver the good and I can call this a verdict contrary to evidence page  justice a new trial ought not to be grant probin justice the only question be  whether there be proper evidence that the defendant be not partner in this  undertake or that there be any other if there bad no doubt but my Lord will  have order the plaintiff to be nonsuit the evidence as to Mr orlebar the  administrator be certain doubtful but it do not appear be do any act to accept  of the share or the like he be see indeed at the office which be but weak  evidence but certain it be some evidence and so a matter proper to be leave to  the jury who be to judge of it and as they have we be preclude as to the  matter of law I do entire agree with my Lord chief justice and my brother for  if the partnership be not lawful yet as they act together they shall be liable  as partner to creditor modern er p chapel justice as this be a action upon a  contract to be sure all party to the contract ought to be join of which there  be some evidence though weak it must be leave to the jury so that the verdict  be support by some evidence and it be not to be take that there be other  partner at the time of the action bring as it do not appear that there be and  if there bad the defendant may have show it but the plaintiff can not and they  who be the visible apparent partner be the person to be charge modern and one  partner alone may be charge if he make the contract alone as a separate person  and in his own name lee chief justice the rule must be discharge