
    John D. Terrill v. Adm’r of William Richards.
    
    ,A. and B. enter into a covenant, by which A. is to advance a certain sum of money to B., to be lai.d out by bim in the purchase of lands, which are to be equally divided, and all losses and gains to be equally shared by A. and B. Although A. and B. are copartners in the subject-matter (i. e. the land, when bought), yet, if A. fail to advance the money according to the contract, it is such a breach of an independent covenant as- will give B. the right to bring an action of covenant against A 
    
    This was an action of covenant, on the following agreement: “An article of agreement, made and entered into, and confirmed on the 13th day of August, 1806, between William Richards, of South Carolina, Pendleton District, of the one part, arid John D. Terrill, of Georgia, Franklin County of the other; witnessetk, that whereas there appears to be a prospect of obtaining some lands, by purchase, in the State of Georgia, the parties aforesaid make and ordain the following contract, that is to say: the said William Richards doth oblige himself to furnish and pay into the hands of the said John D. Terrill, the sum of four thousand dollars, from time to time, when called for by the said Johu D. Terrill, personally, or in writing; the whole sum to be paid to the said John D. Terrill, by or before the first day of March next, for the purpose of buying lands, as aforesaid. The agreement then states that the lands are to be equally divided, and also all loses and profits, between the parties; that Terrill is to be the sole judge of the prices to be given, and if any disagreement should arise, as to the division of the land, it should be determined in Georgia, and that this agreement should be carried into effect, in case of the death of either party, by the heirs, executors, &c., of the survivor.”
    The plea was non est factum, and issue thereon.
    The defendant’s counsel moved for a nonsuit, on the ground, that this was an agreement of copartnership, and that therefore the parties should have gone into a Court of Chancery; that it was, in part, executed, *and that if a recovery was had against the intestate, great injustice might be done, as there might exist good reasons for not completing the contract, which could, only be made to appear by bringing the plaintiff on oath.
    The presiding Judge granted a nonsuit, and the plaintiff now moved to set aside the nonsuit on the following and other grounds, which will not be noticed, as not being necessarily involved in the determination of the case :
    1. Because, whether the plaintiff and defendant’s intestate were or were not copartners, was a question of fact, and ought to have been left to the jury, the only proper judges of the facts.
    2. Because, admitting the copartnership, yet the firm was dissolved by the death of Richards.
    3. Because, admitting the copartnership, yet one copartner may sue another, if that other (as was the case here,) covenants to pay his copartner a sum of money, on a particular day.
    
      
       S. C. again, post. 343.
    
    
      
      
         Saville v. Robertson, et at. 4 T. R. 726. Gouihwaite v. Duckworth, 12 East, 426. Venning v. Decide, 13 East, 7. Watson on Partnership, 395. E.
      
        Jones v. Administratrix of McMichael, 11 Rich.
    
   The opinion of the Court was delivered by

Colcock, J.

The jury are undoubtedly the proper judges of facts, but it cannot be contended, that it is their exclusive privilege to determine on the existence, or non-existence of a copartnership, which does not depend on facts alone, but rather on the legal result of these facts. Here there was no dispute about the facts; they all appear on the agreement, and there can be no doubt that these parties were copartners, as to the subject-matter of purchase named in the agreement. Nor is it a ground on which one copartner can sue, that his copartner is dead, if the suit be brought for their copartnership transactions. But as there is a separate and independent covenant contained in this deed, whereby the intestate agreed to pay a particular sum of money, on or before a given I think the action may be maintained. 2 Dun. and East, p. 483 ; 1 Salk. 9 ; Gould’s Espinasse, 190. *Yet, there is little doubt in my mind, but this case will eventuate in a Court of Equity. The motion of the plaintiff is granted.

Yancey, for the motion. Bowie, contra.

Grimke, Nott, Cheyes, Gantt and Johnson, JJ., concurred.  