By the Court.

delivering the opinion.

A non-suit was awarded by the Court in this case on three grounds:

[1.] Because the facts proven constituted a partnership between the plaintiffs and defendant; and consequently, an action at Law did not lie. 2. That if they did not, the defendant would be considered, in Equity, as the security of the plaintiff; and therefore, if King had not proceeded to foreclose the mortgage when directed by Cooley, Cooley would have been released from the debt; and lastly, that in the absence of any evidence, showing at what time the plaintiffs were to pay for the stock, the legal presumption was that it *601was to be at the maturity of the note given by Cooley to King for the purchase' money of the property bought by Cooley of King and sold to the plaintiffs and that if the Goodsons failed to discharge the debt, and thus lost the benefit of their contract, it was their own fault, and they had no right to recover of the defendant. We think the first ground upon which the judgment of non-suit was put of more than doubtful propriety.

[2.] We are clear that the second, as to the relation of security existing between the parties, so as to affect King’s rights, without his being a party to the agreement, was wrong.

[8.] And equally well satisfied that the plaintiffs were not entitled to maintain this action against the defendant; knowing of the mortgage, the Goodsons stipulated to pay the debt. If they neglected or refused to do so, and the property has been sold under the foreclosure, whom have they to blame but themselves ?

It is-argued, and the suit for damages is brought upon this idea, that the plaintiffs have paid twelve hundred dollars of the defendant’s debt. True, but it was out of the profits of the property, after making a support for themselves in the meantime. Suppose the whole of the horses, or a large portion of them, had perished with distemper or by some other casualty ! It is in evidence that this property was the only means by which they could fulfil their undertaking ! Inevitable loss would have resulted to Cooley. As it was, it was becoming daily more valueless. The risks run by Cooley constituted a very sufficient consideration, in Equity as well as at Law’, for the agreement, on the Goodsons part, to settle King’s claim, as well as for the money actually paid by them out of his property.

It may have been morally wrong in Cooley to instigate King to cocree the collection of his debt; still, neither he nor King did any more than they ..had a right to do. The Goodsons ha 1 stipulated to pay the debt at maturity, and could not cor--plain at being compelled to do so. Cooley, looking to the *602•depreciation of the horses and carriages, might have been influenced by a laudable desire only to save himself.