Ever since tlie decision of I)k Guay, C. J., in 1775, in Grace v. Smith, 2 William Blackslone, 998, it lias been generall}" held that all persons who shared in the profits of a business incurred the liabilities of partners therein, although no partnership between themselves might have been contemplated. The decision was subsequently approved in the leading case of Waugh v. Carver, 2 H. Black, 235. This seems to have been the rule, without any qualification, until an exception was made in cases where the profits were looked to as a means only of ascertaining the compensation which, under the contract, was to be paid for the services of an employee. Thus the law of England stood for nearly a century, and these general principles are still regarded in North Carolina and most of the States as the “ordinary tests” of copartnership). Fertilizer Co. v. Reams, 105 N. C., 283. Applying those principles to the case before us, it seems clear that the plaintiffs have made out at, least a prima facie case of copartnership against the defendant Burgwyn. The fact that the said defendant indorsed the note and made advances to the firm, taking the bill of sale as security therefor, does not prevent his being liable as a copartner if the other elements of a copartnership exist. The note executed pursuant to the contract for $5,000 payable in monthly installments of $500, was not given for advances made or to be made, and could not have been enforced, as between the parties, except as against the profits of the business. Its payment, it seems, was contingent upon the estimated profits of $39,000 which the parties expected to make out of the Blaclmall contract. It is argued that this $5,000, although usurious, was simply in lieu of interest, and that under the modification of the law as laid down by the House of Lords in Cox v. Hickman and some of the modern American decisions, this would not constitute a copartnership.

*310 In the case of Fertilizer Co. v. Reams, supra, we referred to this departure from the ancient doctrine, but stated that it was unnecessary to decide whether it would be recognized in this State. Neither is it necessary to pass upon the question at this time, as the evidence does not disclose the existence of such an agreement as that assumed by counsel. On the contrary, it appears that the $5,000 was not a “ bonus,” and if not a bonus we cannot see how it can be regarded as a mere compensation in lieu of interest, etc. If, upon another trial, this testimony is explained and the agreement bo such as claimed by counsel, a new and interesting question will be presented to the Court; but in the absence of testimony to this effect we cannot but infer that it was the understanding that the defendant Burgwyn was to participate in the profits as such.

Neither is it shown, as contended, that the agreement was merely executory. It appears that money was advanced under the agreement, and the said defendant does not deny that the contract ever went into effect. He says the contract with Blackmail “ went to pieces,” but he does not state at what time. He simply says that not a dollar of profit was made out of it, as far as he knew. Under the evidence adduced by the plaintiffs it is incumbent on the defendant to establish such a defence, and this he has not attempted to do. We are, therefore, of the opinion that there was error in holding that there was no evidence tending; to fix upon the said defendant the liability of a partner. A¥c are also of the opinion that the testimony offered by the plaintiffs should have been admitted. New Trial.