The opinion of the court was delivered,

No point was presented to the learned judge below in regard to the form of action, nor indeed does it anywhere appear on the notes of evidence returned with the record, nor in the copy of the charge filed, that such an objection was made on the trial. The 1st assignment of error is therefore not sustained. The 2d error is not assigned according to our rules upon that subject, Rule VIII., 6 Harris 578, and is therefore to be held “ the same as none.”

The remaining errors assigned are to the charge of the court, *420and to the answers to the points of the defendant below. They may all be considered together. The plaintiff and defendant were drovers and had been partners in the purchase and sale of two lots of certain cattle and sheep. Sprecher paid for and took charge of the cattle, and Knox of the sheep. When after the stock was all sold they came togethef to make a settlement and division of the profits, the note of a man named Seldomridge, which Sprecher had taken for cattle sold, was left in his hands. It turned out that Seldomridge was either insolvent at the time or proved to be so subsequently. It is to recover from Knox contribution to this loss that Sprecher instituted this action of assumpsit. Both parties were examined as witnesses, and differed very materially in their account of the agreement and understanding between them about this note at the time of the settlement. Knox asserted that it was understood that the settlement was final and absolute, and that Sprecher took the note as so much eash. Sprecher denied this and insisted that when they settled they agreed that the money that was lost each was to lose one-half. This certainly presented a square issue of fact for the decision of the jury. When partners on a settlement make a division of assets consisting of choses in action as notes or other evidences of indebtedness belonging to the firm, unless it is otherwise expressly agreed, they remain liable respectively for whatever loss may subsequently appear from the insolvency of the debtors or other causes not attributed to negligence in either. The division primá, facie is for the convenience of collection, only throwing upon the partner who receives the assets the obligations of good faith and reasonable diligence. If Sprecher was to be believed, Knox recognised his continuing interest in the note after the settlement; for after he had procured the note to be discounted, he consulted Knox as to paying it. He testified: “ Then I said, Supposing I go and pay the note, and you and me will make it some other time. And he agreed to that. He thought it would be better, and I paid the note.” Knox, it is true, denied this statement, but after such evidence it can hardly be pretended that it was not a question for the jury whether Sprecher had acted fairly and with reasonable diligence.

The case of Kelly v. Kauffman, 6 Harris 351, was in all its circumstances, a case very much resembling this. The principles there enunciated sustain the instructions of the learned judge below on the principal matter of contention here. That was a partnership between cattle drovers who had made a settlement and division of assets including a note to the firm, which the maker afterwards failed to pay. It was endorsed in the name of the firm to one of the partners who procured it to be discounted by a bank, but on failure of the debtor had paid it himself to the bank. “ The contract of partnership,” said Lewis, J., “ is essen*421tially an agreement to participate in the profits and losses. A settlement of the accounts and division of the partnership assets, does not discharge the parties from their mutual obligations to contribute to losses, which may subsequently arise from circumstances not anticipated at the time of the settlement. Nothing short of an agreement mutually releasing each other from such liability will produce that effect.” The judgment in that case was reversed because it was thought that there was no evidence of such an agreement, which ought to have gone to the jury. It can surely make no difference that the note here was originally drawn in favor of the partner to whom it was handed over, or that he procured it to be discounted and subsequently renewed. There may have been circumstances bearing upon the principal questions of fact: Was the note accepted by Sprecher as so much cash ? and if not, did he act fairly and use reasonable diligence in pursuing the claim upon it ? — but these were questions rightly submitted to the jury, and we think with proper instructions upon the law.

Judgment affirmed.