The opinion of the court was delivered by
Pierpoint, Ch. J.This case comes before this court upon exception to the decision of the county court, refusing a certificate that the cause of action arose from the wilful and malicious act or neglect of the defendant, &c., under §24 of ch. 121, of the Gen. Sts.
*616It is claimed by tbe defendant, that the determination of the court below is final on this question, and its decision cannot be revised on exceptions by this court.
When the facts in the case are of such a character as to bring the case within the provisions of said 24th section, it is made the duty of the court to grant the certificate ; the court has no discretion in the matter, the plaintiff is entitled to it as a legal right. When the facts are spread upon the record by the findings of the county court, or by the report of a referee, or an auditor as in this case, the question whether or not such facts bring the case within the statute, is a question of law, and the decision of the county court thereon, may be revised on exceptions by this court.
There is nothing in this case tending to show that the failure of the defendant to pay the money, was occasioned by accident, and without the fault of the defendant, so as to bring it within the exception in the statute ; and we cannot assume, therefore, that the county court, in .refusing the certificate, acted upon any such consideration.
The question then arises, do the facts found by the auditor, bring the case within the provision of the statute, so as to entitle the party, as a matter of law, to the certificate.
It appears from the report that the parties entered into an agreement that the plaintiff would procure and furnish to the defendant, certain articles of merchandize from time to time, and the defendant was to sell the same for cash or short credit, to persons of undoubted responsibility, and the parties were to share equally in profits on the sales, and as the goods were sold and money collected, it was to be paid in to the parties of whom the plaintiff purchased the goods. This we think constituted the'parties copartners, practically. The plaintiff furnishing the capital and the defendant performing the labor of the business, each having an interest in the money; the extent of that interest could only be determined on a final settlement of their affairs. Each was directly interested in the success of the business, one risking his property and the other his time. Why the business proved unsuccessful does not appear. It does appear that the defendant’s accounts were badly kept, and on the final adjustment the *617defendant was found to be indebted to the plaintiff. From wbat cause the deficiency arose, does not appear ; it may have been from bad debts, loss of property, depreciation in value, or any of the many causes that so often lead to like.results. It does not appear that the defendant received any money from the sale of the goods that he did not pay over as agreed, or that he wrongfully appropriated any of the property to his own use, or that he diverted or misappropriated it. We think that in the absence of any affirmative finding of the existence of any such facts, the county court was fully justified in deciding that the cause of action did not arise from the wrongful and malicious act or neglect of the defendant, and in refusing the certificate.
Judgment affirmed.