the land was used by the voter for the purpose of depasturing other people's cattle, and the lower part of the building was useful as affording shade and shelter to them. The building was worth about 5s. a year to the tenant. It was objected that the building was not a "building" within the meaning of the 27th section of the Reform Act. The Revising Barrister held that it was not a building within the meaning of the said section, and expunged the voter's name. BERRY, appellant, v. HARRIS, respondent.

The facts of this case were as follows: The voter occupied a piece of land, at the rent of more than 10l. per annum, with a building upon it. The building had three stone walls, and a roof, and was open in front; the land was used for grazing the voter's cattle, and the building was useful as affording shade and shelter to them. It was objected the building was not a "building" under the 27th section of the Reform Act. The Revising Barrister held it was not, and expunged the voter's name. In this case, the building was worth about 5s. a year to the tenant.

HODGES, appellant, v. HARRIS, respondent.

The facts of this case were as follows: The voter occupied a piece of land, with a building on it, at the rent of more than 107. per annum. The building had three stone walls and a roof, but was open in front; the land was used by the voter for the purpose of taking in other people's cattle to graze, and the building was useful as affording shade and shelter to them. The building was worth about 58. a year to the tenant. It was objected that the building was not a "building" within the meaning of the 27th section of the Reform Act. The Revising Barrister held that it was not a "building" within the meaning of the said section, and expunged the voter's name.

In each of these cases

Mellish (Kingdon with him) was for the appellant, and

W. H. Cook, for the respondent.

KEATING, J. now (Jan. 31) delivered the following judgment of the Court (5).—In the remaining registration cases from the borough of Totnes, we have had considerable

(5) Erle, C.J., Willes, J., Byles, J. and Keating, J.

difficulty in arriving at a satisfactory decision. The statute describing the qualifification for a vote for a borough, according to our construction, requires, amongst other things, that there should be a building having some permanence, some utility, and some real value; but does not define either the form or materials essential for permanence, or the kind of utility intended; nor does it specify the proportion which the value of the building should bear to the value of the land when the amount of 107. is made up partly by building and partly by land. Looking to the statements in the several cases, and the return of the Revising Barrister to the question put to him, it appears that the buildings in question are of a permanent nature; that they are useful for the occupation of the land on which they are placed, and bona fide add to its real annual value to let, though in a small degree. If under these circumstances we held they were insufficient, it seems to us that we should be defining what the legislature has left indefinite, and should be doing an act of legislation when the powers intrusted to us authorize interpretation only. We feel ourselves therefore constrained to hold that the qualification in each case was sufficient, and that consequently the decision of the Revising Barrister must be reversed. We think it right, however, to add, in justice to him, that the consideration of this question has caused much discussion amongst us, and that the opinion of more than one member of the Court has undergone a change upon the true construction of the statute. In pronouncing this decision we do not intend to interfere with the discretion of the Revising Barrister in deciding whether a building by means of which it is sought to qualify fulfils the requisites which we think the statute requires, namely, permanence, utility, and as contributing to the beneficial occupation of the land, and thereby increasing its real annual value to let; nor do we mean to lay down as a rule that all buildings of the present value as returned by the Revising Barrister necessarily give a qualification, unless that value be bona fide combined with permanence and utility, and thereby add to the real annual value of the whole.

Decisions reversed.

[IN THE EXCHEQUER CHAMBER.] (Appeal from the Court of Common Pleas.)

1865. Nov. 29.

}

BULLEN AND ANOTHER V.
*
SHARP.

Partnership, What constitutes-Annuity out of Profits- Underwriting Business.

The defendant's son having been elected a member at Lloyd's, on a representation made to the committee with the defendant's sanction, that the defendant would place 5,000l. at the disposal of F. (an underwriter), and would never let his son stand in want of further aid, if needed, the son entered into an arrangement with F, whereby the latter was to manage the underwriting business in his, the son's, name, and was to be paid a salary for doing so. The son, in consideration of the defendant so guaranteeing him to the extent of 5,000l., agreed to pay the defendant an annuity of 500l., which, on a given state of the profits, was to be increased to a yearly sum equal to one-fourth of the profits; but it was stipulated that the defendant should not be considered as a partner in the said business. The son afterwards married, and by the marriage settlement all the monies and profits of the business were assigned to the defendant and one D. upon certain trusts, the first being to pay the said annuity to the defendant. The son kept no banking account, but paid such cheques as F. gave him to the defendant's bankers, on whom he was allowed to draw, until the defendant put a stop to it :-Held, by the majority of the Court of Exchequer Chamber, reversing the judgment of the Court of Common Pleas, that, assuming the above arrangements to be real and not colourable, the defendant was not liable as a partner with his son in the underwriting business.

This was an appeal by the defendant from the decision of the Court of Common Pleas, giving judgment for the plaintiffs upon a special case stated for the opinion of that Court, and which is set out in the report below-34 Law J. Rep. (N.S.) C.P. 174 (1).

* Coram Pollock, C.B., Crompton, J., Bramwell, B., Channell, B., Blackburn, J., Pigott, B. and Shee, J.

(1) Also reported in 18 Com. B. Rep. N.S. 614. NEW SERIES, 35.-C.P.

The question raised was, whether the defendant was liable as a partner with his son on a marine policy of assurance effected by the plaintiffs, and which had been underwritten for 1007. in the name of the defendant's son by a Mr. Fenn, who managed the son's underwriting business and had the son's authority to subscribe policies in his name. The facts were shortly these:

In March, 1857, the defendant's son was elected a member at Lloyd's, on a representation made to the committee by Mr. Fenn, with the defendant's sanction, that the defendant would place 5,000l. at Fenn's disposal, and would never let his son stand in want of further aid, if needed. At the same time an agreement was entered into between Fenn and Sharp the younger, by which an underwriting account was to be carried on, in the name of Sharp the younger, under the management of Fenn, who was to receive for this a salary of 300l. a year, which was afterwards, by a fresh agreement in November, 1858, increased to 350l.

On the 1st of January, 1859, Sharp the younger wrote to his father, the defendant, a letter, by which, in consideration of the defendant guaranteeing him to the extent. of 5,000l., he agreed to pay to the defendant during their joint lives an annuity of 500l., to be increased at the end of the first three years to a yearly sum equal to one-fourth of the average profits, in case that amount of profits should, during those years, exceed 500l. The letter also contained a statement that the defendant was in no case to be considered as a partner with his son in the said business of an underwriter.

On the marriage of Sharp the younger, which took place in August, 1859, a deed of settlement was executed between him, his intended wife, the defendant and one Donnison. By this deed, after reciting the said agreement between Sharp the younger and Fenn for carrying on the underwriting business, and the said letter of the 1st of January, 1859, from Sharp the younger to the defendant, Sharp the younger assigned to the defendant and Donnison all monies, earnings and profits then in Fenn's hands, or which should thereafter come into his hands on account of the business, with a power

P

of attorney to sue for, receive and give discharges for the same, and with a direction to Fenn and other the agent for the time being in the business, to pay all the monies to the defendant and Donnison, upon trust, first, to pay the defendant his said annuity; next, to pay Sharp the younger an annuity of 5007., to be increased to 7507. if the accumulated profits at the end of two years should amount to 3,500l.; next, to accumulate the surplus profits until they should amount to 8,500l. and remain at that amount for two years; and then upon trust to re-assign the monies to Sharp the younger. The deed contained a power to the trustees, upon the request of Sharp the younger or his manager for the time being, to raise out of the assigned property monies required to meet emergencies in the underwriting business, and a covenant by Sharp the younger that he would, in the event of Fenn's death, appoint another competent person to act as manager of the business.

After the marriage Sharp the younger kept no banking account; but Fenn, who received and paid all monies, gave him cheques from time to time, which he paid into the defendant's banking account with Messrs. Hankey, on whom the defendant allowed his son to draw until November, 859, when the defendant put a stop to his doing so.

On the 22nd of December, 1859, the plaintiffs' policy was effected at Lloyd's in the usual way, and underwritten in the name of Sharp the younger. On the 19th of February, 1860, Sharp the younger stopped payment, and he was made bankrupt on the 29th of March following.

There being a total loss under the policy, the question was, whether the defendant was liable thereon as a partner with his son, and the case stated that the Court were to be at liberty to draw any reasonable inferences of fact.

The case on appeal was argued in Trinity Term last, by

Lush (Mellish and Sir G. Honyman with him), for the plaintiff in error (the defendant in the action), and by

J. Brown (Bovill with him), for the defendants in error (the plaintiffs in the action)

Cur, adv. vult.

There being a difference of opinion amongst the learned Judges, they now (Nov. 29) delivered their judgments seriatim as follows:

SHEE, J.-The question in this case is, whether, when the policy on which the action is brought was effected, the underwriting business carried on in the name of William Sharp the younger was, in fact, the business of the defendant, or of the defendant in partnership with William Sharp the younger; in other words, whether the policy underwritten by William Sharp the younger was underwritten by him, acting on behalf of the defendant and as his agent. The establishment of William Sharp the younger in his underwriting business at Lloyd's was permitted by the committee at Lloyd's, on an assurance given to them by Fenn, acting as agent for William Sharp the younger, but with the authority of the defendant, who had refused to give a formal guarantee, that the defendant would advance to William Sharp the younger a capital of 5,000l., and never let him stand in want of further aid, if needed.

The committee, after William Sharp the younger had on that assurance been admitted a member, inquired of Fenn, by their secretary's letter of the 20th of May, 1857, if the money had been advanced, and Fenn, in answer to that inquiry, by the use, in his letter of the 22nd of May, 1857, of language more studiously than scrupulously chosen, had led them to believe that the 5,000l. had, in fact, been advanced, and was in his hands. The defendant William Sharp the younger and Fenn seem to have considered that the assurance given to the committee at Lloyd's was, although the defendant had refused a guarantie, an engagement binding in honour upon him; and virtually, as between him and the committee, an undertaking, to the extent of 5,000l., for the underwriting losses of William Sharp the younger. Treating apparently this assurance of the defendant to the committee that he would advance 5,000l. as equivalent to, or good security for, the actual advance of it, William Sharp the younger had agreed to pay to the defendant, during their joint lives, 107. per cent. per annum upon that amount; and in lieu of it, after the expiration of three years,

one-fourth of the average profits realized by the business during those three years, should that fourth amount to more than 5001. Thus far we have the defendant establishing his son in a business to be carried on by his son or his son's agent, Fenn, for his son's benefit-the defendant guarding himself, should the business become unprosperous, against eventual loss, under his promise to advance 5,000l., by a stipulation that he should receive a fixed annuity of 500l., to commence immediately, and to be increased contingently to a fourth of the annual profits, should they average during the next three years more than that sum. There is nothing before us which points to any source other than the underwriting business, out of which this 500% annuity could flow; but it was to be payable half-yearly, and at the expiration of the first half-year after the date of the agreement to pay it, whether profits were made or not, in consideration of the defendant's promise to advance 5,000l., to be applied, should need be, to the discharge of debts which might be incurred in the underwriting business. Though, fixed therefore, apparently on an estimate of the probable amount of profits, and to increase with an increase of profits, it was not necessarily, or even probably, in the first instance, payable out of profits; and regard being had to the consideration for it, was not within, or was barely within, the mischief to prevent which the sharing of the profits of a business has been considered in many cases as cogent, though not conclusive, evidence of a partnership liability for its debts. Whether the 500l. annuity was in fact paid to the defendant out of the profits of the business, or not, he would not, rebus sic stantibus, have been liable for its debts. The definition of a partnership contractus consensualis de re vel operis communiandis lucri in commune faciendi causa”—L. 63 pr. ff. De Societate,' was not satisfied by the relation between him and his son. They did not intend to be partners, and the business was not carried on by the defendant, or by any person on his behalf, in partnership or not in partnership with him.

This state of things, however, was materially altered under the marriage settlement after the marriage of Sharp the younger.

Fenn, who, up to that time, had carried on the business as agent of Sharp the younger, accounting to him for its proceeds, at a salary payable by him, became, in my judgment, the agent to hold the proceeds of and the means of carrying on the underwriting business, and the agent to carry on the business for the defendant and John Donnison, to whom, besides other property of Sharp the younger, all monies belonging to him in the hands of Fenn, and all monies, earnings, profits and emoluments thereafter to come into Fenn's hands, on account or in respect of the underwriting business, including, as I read it, any claim Sharp the younger might have had on the 5,000l. advanced, were, with full power and authority to ask, demand, sue for, recover and receive, and give effectual receipts and discharges for the said monies, proceeds and premises, assigned in trust for Sharp the younger until his marriage; on trust after his marriage, primarily and solely, should the profits not exceed 500l., to pay that sum annually out of the proceeds of the underwriting business to the defendant; on further trust, but without prejudice to the defendant's annuity, to pay Sharp the younger an annuity of 500l., and after the continuance for two years of an accumulation of profits of the extent of 3,500l., an annuity of 750l., together with interest on the sum accumulated, and the proceeds and dividends of other the property assigned; on further trust, when the accumulation of profits should have arrived, and for two years continued, at 8,500l., to apply that accumulation to the emergencies of the underwriting business, and the repayment of the defendant of any monies he might have advanced under his guarantie of the 21st of May, 1857; on further trust for all the purposes of a family settlement, and to provide for the intended wife of Sharp the younger, and for his and her children. Previously to the date of the marriage, unless we assume, which there seems no ground for doing, the whole scheme to have been illusory and collusive from its inception, the defendant had no more to do with the carrying on, by himself or his agent, of the underwriting business than Cox or Wheatcroft, in the case of Cox v. Hickman (2), had in the carrying on of the

business of the new firm of "the Stanton Iron Company," for the benefit of the creditors of the old firm of Smith & Co. After the date of the marriage, the defendant had as much to do with the carrying on of the underwriting business as the trustees in Cox v. Hickman (2) had in carrying on, by any agents they might employ, the business of the Stanton Iron Company, for the benefit of the creditors of Smith & Co. The business of the Stanton Iron Company, in Cox v. Hickman (2), was the business of the trustees, carried on by them, for objects with which the parties dealing with them had no concern; the trustees were therefore held liable for its debts. In this case the underwriting business had become the business of the defendant and John Donnison, and they, as I think, had become liable for its debts, not because they shared the profits, which one of them did not share, but because it was their business, carried on for them with their funds by Fenn as their agent, in the name of William Sharp the younger, at a salary to be paid to Fenn by himself out of their capital which he held, or out of the profits which he made for them. That the business was carried on in the name of William Sharp the younger, and partly by him, and probably for his ultimate benefit, is, as respects the liability of the defendant, a circumstance wholly immaterial; the material and governing circumstance is, that the business, which before the marriage was carried on by Fenn as agent for William sharp the younger, he being the owner of all the monies, earnings, profits and emoluments derived from it, was after the marriage carried on by Fenn as agent for and on behalf of the defendant and John Donnison, to whom, by the marriage settlement, all the monies belonging to the business in Fenn's hands, and all the earnings, profits and emoluments of it thereafter to come into his hands, and all the benefit of antecedent arrangements between the defendant Fenn and William Sharp the younger were assigned. The mode of conducting the business and the relation between Fenn who, in fact, conducted it, and William Sharp the younger, were in other respects much changed after his marriage. Before (2) 8 H. L. Cas. 268; s. c. 30 Law J. Rep. (N.S.) C. P. 125.

his marriage William Sharp the younger had, or, if he had not (as to which some doubt may arise on the terms of the case), was entitled, under his agreement with Fenn of the 17th of March, 1857, to have an account with a banker, into which the premiums and other monies received by Fenn in respect of the underwriting business were to be paid, William Sharp the younger supplying Fenn with the necessary funds to make all payments and advances in respect thereof. After his marriage William Sharp the younger kept no banking account, Fenn giving him cheques from time to time for the sums which he was allowed to draw, i, e., which were drawn for his purposes out of the business, such cheques being paid by Sharp the younger into the defendant's banking account with Messrs. Hankey, on whom the defendant permitted William Sharp the younger to draw cheques until November, 1859, when the defendant put a stop to his son's drawing cheques. Before the marriage, under the agreement of the 17th of March, 1857, the salary of Fenn was to be paid by Sharp the younger, who alone, under that agreement, was liable to Fenn for it. After the marriage Fenn drew his salary out of the funds of the underwriting business with the sanction and authority of the defendant and Donnison, to whom those funds had been assigned, and to whom Fenn was accountable for them. Add these facts to the fact of the original restriction, which was never relaxed, upon Sharp the younger's taking any risk without the consent of Fenn, and to the fact that Fenn, who before the marriage settlement had held all the monies, earnings, profits and emoluments of the underwriting business which came to his hands as agent for Sharp the younger, held them after the marriage settlement for the trustees of it, and the absolute nullity of Sharp the younger as a principal, though held out as such in the carrying on of the business from the date of his marriage and at the date of the policy sued on will be manifest. His position as between him, the defendant and Fenn was little better than that of an under clerk whose part it was to pretend to be a principal at Lloyd's, and underwrite such policies as Fenn told him to underwrite. We must look at the sub