The opinion of the court was delivered by Williams Ch. J. On examination of the case we are of the opinion that the question does not here arise, whether the written contract, bearing date March 28, 1840, made these defendants partners or not. Whether persons are partners únter se, may depend on their contract between themselves. ^Whether they are partners as to others is to be learned from /their conduct. In a suit in favor of a person who credits others as partners, it is rarely necessary to ^ive them notice to produce their articles of partnership; *but the proof is drawn from other sources.

It is, also, not material, except on a plea in abatement, whether others are partners or jointly concerned with the persons sued, j It was, therefore, of no consequence on the trial to inquire whether Eli Stearns was a partner with the defendants, or only an agent. The paper, executed on the 28th of March, may, or may not express their intentions, and if it does not, may embarrass them in controversies between themselves.

If they considered it as a contract of partnership, and so declared to the witnesses, and conducted as such, the present plaintiff might deal with them as partners, and his knowledge of the contract, or its terms, would not alter his rights nor vary their responsibility. The testimony, as detailed in the bill of exceptions, is very clear and decisive, that all the defendants avowed the intention of becoming partners, and after executing the writing declared that they had become partners.

However desirous, therefore, the defendants may have been to obtain the opinion of the court on the trial, as to the legal effect of that contract, and whether it did constitute a partnership, and to what extent, the plaintiff very prudently avoided placing his case on that ground alone. The charge of the court put the effect of the writing out of view, except as to its execution and left it to the jury to say whether the defendants had conducted and held themselves out as partners, and is wholly unexceptionable.

The verdict of the jury has settled the fact that they considered themselves and conducted and acted as such. No question was made either at the county court or here, but that the note was given for a consideration within the scope and design of the partnership, if any existed. The judgment of the county court is affirmed