—It was agreed by the counsel on the argument that, waiving all other questions made by the bill of excep*454tions, the judgment of the court below could not be sustained unless upon the ground that the plaintiff gave sufficient evidence to submit to the jury, to find that the defendants and Kimbrough & Smith became jointly interested as co-partners in the consignments of cotton contemplated to be made by the latter to the former as described in the letter of Kimbrough & Smith to the defendants, under date the 31st day of October, 1840, and the letter of the defendants to Kimbrough & Smith in answer, dated 3d November, 1840, and that the money for which the bill of exchange for $8000, dated 8th March, 1841, was given, was the plaintiff’s, and was applied to the advance on, or for the purchase of cotton so consigned by Kimbrough & Smith to the defendants, or to the repayment of such advance or purchase.

As regards the alleged partnership between the firm of the defendants and Kimbrough & Smith in respect to the purchase and consignment of the cotton, I am of the opinion that the evidence was sufficient to go to the jury to find that fact.

The only evidence given to show that the money for which the bill of exchange was drawn was the plaintiff’s, is the testimony of Isaac Prall, taken under a commission at the instance of the plaintiff. Prall was, at the time of the transaction, book-keeper of Davis & Plume, brokers in the city of Columbus, Georgia, the place of residence of Kimbrough & Smith. This testimony shows that the bill of exchange in question was actually drawn on the eighth day of March, 1841, at Columbus, by Smith, one of the firm of Kimbrough & Smith, and by him on that day delivered to Davis & Plume, from whom he then received the amount for which it was drawn, less thirty days’ interest at eight per cent., having previously on the fifth of that month been negotiated by Kimbrough & Smith to Davis & Plume. Whether the money which Kimbrough & Smith received of Davis & Plume was in fact the money of the plaintiff and advanced for the bill by them as his agents, is not affirmatively shown by the testimony of the witness. It is true, that in answer to the fifth direct interrogatory, the witness testified that said bill was negotiated to the plaintiff through Davis & Plume, who had his funds for that use, on the eighth day of March, 1841, for the amount expressed in said bill, adding one per cent, premium. But the witness in answer to the fourth cross-interrogatory says, “ the said bill was sold to, or contracted for to Messrs. Davis & Plume by G. W. Smith, for the amount expressed on the face, 'less thirty days’ interest off at 8 per cent, per annum. And again in his answer to the eighth cross-interrogatory, he testified that “ the said bill was first purchased from G. W. Smith with the money of Davis & Plume." *455He, however, adds that “ the plaintiff did have money in the hands of Davis & Plume, at the time of the negotiation to the amount of over seven thousand dollars, the money was placed in their hands prior to the drawing of said bill to be invested in northern exchange.”

In my opinion, the testimony of this witness does not amount to any evidence of the fact, incumbent upon the plaintiff to prove, that the money paid for the bill, by Davis & Plume, was the plaintiff’s; and on that ground the Superior Court erred in refusing to non-suit the plaintiff and in submitting to the jury to find that fact from the evidence so given. This conclusion makes it unnecessary to discuss the various other questions raised by a bill of exceptions. The judgments should be reversed and a venire de novo awarded by the Superior Court of the city of Hew York. Costs to abide the event.