ADM.] GUARDHOUSE AND ANOTHER v. BLACKBURNE AND ANOTHER. COURT OF PROBATE. [PROB. Reported by GEORGE CALLAGHAN, Esq., Barrister-at-Law. Nov. 4 and Feb. 13. ANOTHER. Will-Codicil-Words inserted per incuriam-Inadmissibility of parol evidence to show mistakeInability of court to expunge. H. J. made a will, whereby she charged certain legacies Subto the amount of 13001. upon her real estate. sequently she desired to bequeath an additional legacy of 600l., and a codicil for the purpose was prepared by her attorney. The draft was carefully read over to her, and she approved it. A fair copy was then prepared for execution. It likewise was read over to her, but not with the same care, and she executed it without remark. The codicil contained a clause referring to the will; but while the draft charged the legacy alone upon the personal estate, the executed copy, by the addition of the words "therein and," charged the legacies in the will also upon the personal estate: Held, that parol evidence was inadmissible to show that the words had been inserted through inadvertence, and that it was not in the power of the court to expunge them. This was a suit for the revocation of the probate of the will and codicil of Hannah Jameson, late of Netherton, parish of Hayton, Cumberland, dated respectively the 30th May 1851 and the 13th April 1852; but the real question at issue was as to the power of the court to expunge from the codicil certain words which had been inserted per incuriam. and at what particular part of the river it was so dense as has been represented, is another and a very different question, upon which there is much contradictory evidence. Here is a vessel of 1300 tons lying in the river Mersey at anchor, and she is run into almost, if not quite, in a straight line, by a steamer whose custom and habit it was to cross the GUARDHOUSE AND ANOTHER v. BLACKBURNE AND river plying for passengers. Under these circumstances there is no doubt what is the law, viz., that the steamer must show that that collision was occasioned by inevitable accident, and circumstances she could not control, or that it was exclusively the fault of the North American, since it is manifest that a vessel lying at anchor is incapable of getting out of the way, or of adopting any measure which might prevent a collision, at least to some extent. In the course of the argument it was suggested, but not argued, that the fog might have been so dense that it would have been incumbent on the steamer not to have proceeded on her usual occupation because of the danger she might incur. Had the circumstances given in evidence produced such a case, the court would not, for a moment, have hesitated in saying that it would have been the duty of the court, upon these pleadings, to have taken cognisance of it, and to have considered the case upon the fact, proved or not proved. I wish to make a reference, as it is a matter of great importance, whether steamers are at liberty to follow their avocation in a thick fog, when following that avocation might produce damage to property, goods, or loss of life, to the case of the Giralamo, decided by Sir John Nicholl. In that case the vessel was going down the river Thames in tow of a steamer, and having a pilot on board. When she started there was no fog, but a fog came on, and the learned judge laid it down in very strong terms, that it would have been the duty of the master to have superseded the pilot, and to have caused the vessel The testatrix by her will, dated 30th May 1851, to come to anchor, rather than incur the risk of disposed of three different estates of which she collision with other vessels. I, perhaps, might not died possessed-Folds, Scales, and Stainton-all go quite the whole length that Sir J. Nicholl went situate in the county of Cumberland. The first she on that occasion, but the general principle I should devised in trust to her executors; the other two adopt, viz., that if there be an opportunity of stop-she charged with legacies to the amount respectively ping, attempting to follow a course which would of 500l. and 8001. On the 13th April 1852, she produce possible injury to life, and certainly to desired to add a codicil, and she was attended for property, it is the duty of those who have the conpurpose by Mr. William Carrick, her trol of steamers, notwithstanding the state of con- solicitor, to whom she gave instructions for the venience and urgency of passengers, to hold their same. These he reduced to writing in the following hand. Looking at the steamer's own description of the state of the morning, and the density of the fog almost immediately after she quitted Seacombe, it was a case in which the utmost vigilance was requisite and necessary, and she ought to have had the very best look-out; and not only so, but to have gone at that rate which would have enabled her, if taken by surprise, or coming in contact, or apparently in contact, with another vessel, to avoid collision. Taking into consideration the nature of the morning and the risk run, were all proper measures of precaution adopted on board the steamer, and, having regard to the size of the North American, was that ship descried by the steamer in due time, and whether or not, despite no bell having been rung on board the North American, might she not have been seen in time so as to avoid the collision? If so, the steamer is wholly to blame. If, on the other hand, the weather was so foggy that the North American ought to have rung a bell according to the statute, and did not, the North American would be in default. Upon the whole of the evidence the court was of the latter opinion, and must hold that the Wild Rose was not to blame made to my nephew Edward Blackburne, and in lieu thereof I give him 2007. I give and bequeath the sum of 6007. equally for the collision, and there must be a decree accord- unto, between, and amongst the therein named Samuel ingly. Jameson, &c. &c. I release and discharge my said estate from the payment of the legacies therein given to my executors, and I direct all the legacies therein and herein given (and not The Court was assisted by Capt. Redman and revoked), to be paid out of my personal estate. In all other Capt. Nesbitt, respects I ratify my said will that draft: This is a codicil to the will of Hannah Jameson, of Nether ton, widow, which will bears date the 30th day of May 1851. I revoke the bequest of 100l. to my nephew Edward Blackburne, and in lieu thereof I give him the legacy of 2001. I give unto, between, and amongst the therein named Samuel Jameson, John Jameson, Dorothy Smith, Margaret Armstrong, Jane Jameson, and Mary Ann Jameson (the said Jane Jameson and Mary Ann Jameson taking one equal share only of the whole), the sum of 6007., upon the same limitations in all respects as I have in my said will devised my estate of Folds in their favour. I release and discharge my said estate given in my said will to my said executors, and I charge all at Folds from payment of the two legacies of 191. 19s. each, the said legacies on my personal estate. Carrick carefully read the draft to her, and the tesHaving reduced her instructions to writing, Mr. tatrix approved of it. He then proceeded to make a fair copy for execution, but in doing so inserted by mistake the words below marked in italics. Having completed the copy, he read it over to the testatrix, executed it. The following was the codicil as so but not with the same care as the draft, and she executed: This is a codicil, &c. I revoke the bequest of 1007. therein PROB.] GUARDHOUSE AND ANOTHER v. BLACKBURNE AND ANOTHER. The effect of the words "therein and," so inserted by inadvertence, was to discharge the estate of Scales of the legacies to the amount of 5001., and the estate of Stainton of the legacies to the amount of 800%, charged upon them, and to reduce the residuary personal estate by those sums-in all 13001. The testatrix died on the 29th Aug. 1863, and probate of the will and codicil was granted to the executors, the defts., on the 13th Oct. 1863, out of the Carlisle District Registry. They proceeded to administer the estate in due course, and heard of no opposition to the codicil until fifteen months after the death of the testatrix, when they were cited by the plts., three of the residuary legatees, to bring in the probate. Having done so they propounded the will and codicil. The declaration alleged execution of both in the usual form. The plea, admitting execution, denied that the paper writing, bearing date 13th April 1852, was made by the testatrix as a codicil to her will, and that it expressed her wishes and intentions; and it then set out at length the circumstances under which it was prepared and executed, and the effect of the words inadvertently inserted. Demurrer to plea as bad in substance, and replication joining and taking issue. Joinder in demurrer. The cause now came on for hearing on the ques tion of law and fact. The following evidence was taken de bene esse :— Mr. William Carrick, solicitor, Brampton, in the county of Cumberland.-I am one of the attesting witnesses to the codicil. I received instructions for it from Mrs. Jameson. I received the instructions at her residence, and I proceeded afterwards to draw up a fair copy for execution. I took her instructions verbally, and from them drew out a draft, and from it made a copy for execution, varying it in a few words. I prepared them both in her presence; there was no one else in the room at the time. I read over the draft very carefully to her, and she expressed herself satisfied with it as it stood. She said at the end that it was as she wanted. I then proceeded to make this copy (the codicil). I believe I read it over to her. To my recollection nothing more was said, and she proceeded to execute it. She made no remark either of assent or dissent, but expressed herself ready to sign it I believe that, as I had her intention in the draft, I did not read it (the copy executed) with the same care; I read it, however, so that she could understand it. I then took possession of the codicil Cross-examined: [PROB. ever to dispose of the words specified. The meaning of the plea was this, that the court was to give effect to an unexecuted rather than to an executed instrument; and the way that was to be effected was by calling as a witness the gentleman by whom it was prepared. Upon principle such evidence, whether the verbal evidence of Mr. Carrick, or evidence from the instructions themselves, could not be received by the court. It was a question under the Statute of Wills, and the whole purport and scope of that statute was to do away with everything in the shape of evidence outside the four corners of the will: (1 Vict. c. 26, ss. 19 and 20.) The statute expressly provided that no alteration whatever was to be made after the will was executed, unless such alteration was in itself duly executed. If there were incuria, it was the incuria of the testatrix herself, and even she could not cure it unless by re-execution. The following cases were cited: Langston v. Langston, 2 Cl. & Fin. 194; In the Goods of Duane, 2 Sw. & Tr. 590; 7 L. T. Allen v. M Pherson (referred to). No case could be found in which a clause was struck out except on the ground of fraud. Besides, the testatrix might have changed her mind between the reading of the draft and the execution of the codicil. Dr. Spinks (Mounsey with him) for the plts. contra.-It was important to distinguish between the two questions-first, whether the court could receive evidence at all; and, secondly, whether, having received evidence, it was satisfied there had been an insertion by mistake or not. As to the first, it was clear that parol evidence was receivable to rectify mistake: Williams' Executors, 330; 5th edit.; He admitted that an omission could not be sup plied by evidence according to the practice of the This is the draft. (Put in.) It is the first writing that I Prerogative Court, but it was otherwise in the made of the intentions of the testatrix that day. She gave me no instructions as to the discharge of Scales and Stainton from the legacies of 13007. I cannot say whether I had the matter of expunging where the insertion was the result of fraud or mistake: In the Goods of Chapman, 1 Rob. 4. will before me at the time, but I think I had the draft with To hold otherwise would be to perpetrate a fraud, me. I did not draw the will; my partner did. I received no instructions from her respecting the estates of Scales and Stainton. I am almost sure that they were not preferred to at all. When I began to copy the draft, I intended to copy verbatim, but, as I went on, it occurred to me that other words would be better, and I made a few verbal alterations. After drew the draft and read it over to her, I proceeded to copy it, and had no further conversation with her until it was ended. I have no doubt I read the fair copy to her. I had no instructions to insert the words "therein and" in the concluding paragraph of the codicil; my instructions were as the draft stands. How is it that you inserted these words? I cannot account for it except as an inadvertence on my part; it was a mistake unquestionably. Her instructions were that I should charge the legacies in this codicil on her personal estate, and no further. My attention was not directed to the variance until after her death. Edward Dobson (called by the plts.).-I am a farmer residing at Netherton in Cumberland. I am the husband of one of the residuary legatees; she was the niece of the deceased. She (the testatrix) resided with us from Oct. 1847 to July 1851. She several times spoke to me about the will. She showed it to me, and I read it to her once or twice. She spoke to me about making alterations in it after she left our place. She told me that she meant to leave 6001. more amongst the Jameson family, and 100l. to Edward Blackburne, one of the executors. She said nothing more than that. I saw her on the 13th April 1852; she spoke to me about the codicil. Dr. Deane, Q. C. (with him Dr. Tristram) for the defts. in support of the codicil.-The first question was, whether the court could hear any evidence what not upon the living legatees, but upon the dead testator. If the court were satisfied that the words had been inserted by mistake, it was its duty to expunge them, and to give effect to the wishes of the testator. Mounsey followed, and cited Jarman on Wills, 341, ed. 1855; Dr. Deane in reply. Cur. adv. vult. Feb. 13.-Sir J. P. WILDE.-The plts. have cited the defts. to bring in the probate of the will and codicil of Mrs. Hannah Jameson that it may be cancelled. The defts. have propounded these papers for probate, and the plts. contend that the words "therein and ought to be expunged from the codicil before probate is granted thereof. The effect of these words, which undoubtedly appear in the codicil, and were there, it is admitted, when it was executed, is to discharge certain portions of the real estates from pecuniary legacies of considerable amount, with which they were charged by the will. The ground upon which the court is asked to expunge them is, that they were inserted Рвов.] [PROB. GUARDHOUSE AND ANOTHER v. BLACKBURNE AND ANOTHER. several grounds, and amongst others upon theground that parol evidence was inadmissible upon the question. Nothing is less satisfactory than a perusal of the cases decided in the Prerogative Court under this head. In some cases parol evidencewas excluded, and in some admitted, without any sufficient difference in principle to sustain the distinction. I venture to think that the Ecclesiastical Courts created a difficulty (perpetually recurring) for themselves, when they attempted to adapt the well-known rules as to parol evidence, and patent and latent ambiguities, existing in the courts of law and equity, to cases of probate, to which such rules were not properly applicable. For the question in such cases is not what intention ought to be assigned to the words of a given written paper, but to what extent does a given written paper express the testamentary intentions of the deceased; and the function of the court is not to construe a written paper, the validity of which is admitted, but to gather the necessary facts. and to pronounce on the validity of the paper. Although it be right to adhere to the writing, and exclude all parol testimony in the former case, it is clearly impossible to do so in the latter. Indeed, the Court of Probate, setting about to ascertain the will of the deceased, could not stir a step in the inquiry without some proof beyond the mere writing. In the attempt to escape these rules, while keeping up the semblance of adhering to them, Sir John Nicholl, in the case above quoted, speaks of "an ambiguity in the factum" of the instrument, and makes that the ground of admitting parol evidence. But what, it may be asked, are all controversies as to the instrument which should be pronounced to contain the testamentary intentions of the deceased, and to be his will, but cases in which some ambiguity exists as to the factum of such instrument as a complete will? The truth is, that the rules excluding parol evidence have no place in any inquiry in which the court has not got before it some ascertained paper beyond question binding and of full effect. Nor, indeed, are these rules pressed in the courts, either of law or equity, beyond this mark. For if the written document is alleged to have been signed under condition that it should not operate except in certain events, parol evidence has been admitted at law to prove such condition, and the by the attorney who drew the codicil, by mistake | has no such power. The argument was put on and without instructions. This is proved to be the fact (if the evidence is admissible and can be relied upon) by the oath of the attorney and by a paper which he owns to have been the rough draft of the codicil made by him in the presence of the testatrix, and from her verbal directions. It is not, however, denied that the codicil, as it stands, was read to the testatrix, and duly executed by her. Questions of vital importance to the integrity of the present testamentary system are here raised. It devolves on the court to endeavour to disentangle the line of demarcation between what the law allows, and what it refuses, to the natural desire of giving effect to what are supposed to be the testator's wishes, and to set clear the limits within which any script duly executed can be shorn of its full testamentary effect by reference to any other source of information. I must premise that the Wills Act has worked a great change in the old testamentary law as administered by the Ecclesiastical Courts on this head. Under that law a testamentary paper needed not to have been signed, provided it was in the testator's writing, and all papers of a testamentary purport, if in his writing, commanded the equal attention of the court, save so far as one from its date or form might manifestly be intended to supersede or revoke another, as a will superseding instructions, or a subsequent will revoking a former. Hence the class of cases in which those courts have gone furthest in violating the integrity of an executed paper. They will be found collected in the argument of Dr. Addams in the case of Fawcett v. Jones and others, 3 Phil. 450, a case remarkable for the evident hesitation and reluctance with which Sir John Nicholl accepted the full results of the principle involved in the previous decisions. His judicial foresight enabled him to turn aside from the brink to which these decisions were urging him, and he refused to pass over a line which, once passed, would have set all wills at the mercy of parol evidence, and "introduced," as he said, "a most alarming insecurity into the testamentary dispositions of all personal property." The most prominent of these cases was Blackwood v. Damer, reported in the notes, 3 Phil. 458. It was appealed to the delegates, who affirmed the decision of the court below, and permitted a will, which had been duly signed with full knowledge of its contents, and which contained no residuary clause, to be supple-breach of it (see Pym v. Campbell, 6 E. & B. 370); mented by instructions in the testator's own writing, giving the residue to his daughter, granting probate of the will, and that part of the instructions as together constituting the will, and this, on the ground of mistake, proved by the attorney and corroborated by the written paper of instructions. This case was much relied on in argument here; but the words of the Wills Act, no will shall be valid," unless executed in a certain manner, obviously exclude the probate of unexecuted instructions altogether, and have rendered it no longer possible to the Court of Probate to treat them as part of a will. It is conceded ground in the argument that this court cannot any longer admit to probate any paper, whatever its form, which is not executed according to the statute. This class of cases is, therefore, of no authority in reference to wills made since 1838, and, in deciding the present case, may be laid aside. But then comes the question, if the court cannot now, as it could before the statute, give effect to any provision omitted by mistake from the will-does it still retain the power to strike out any portion of the contents of a duly executed paper on the ground that, although such portion formed part of the paper when executed by the testator, it was inserted or retained by mistake or inadvertence? This is what is asked on the present occasion. Against this being done it was strongly argued that the court 66 or if (going further still) some plain and palpable error has crept into the written document, equity formerly, and the courts of common law now, sanction the admission of evidence to expose the error: (see the case of Wake v. Harrop, 6 H. & N., and the passage there cited from Story's Equity Jurisprudence, at p. 772). On this head, then, the court may safely adopt the language of Williams, J., in his work on Executors, vol. 1, p. 313: "In a court of construction, when the factum of the instrument has been previously established in the Court of Probate, the inquiry is almost closely restricted to the contents of the instrument itself, in order to ascertain the intentions of the testator. But in the Court of Probate the inquiry is not so limited; for there the intentions of the deceased as to what shall operate as and compose his will are to be collected from all the circumstances of the case taken together. They must, however, be circumstances existing at the time the will is made." I may quit this branch of the subject with the observation that the foregoing remarks have a wider application to wills made before the statute than since, for the statute has much narrowed the field of inquiry; the principle, however, is the same. It is hardly necessary to add that, where the Court of Probate has (as is often the case) to construe one admitted testamentary paper for the purpose of ascertaining. another, it acts as a court of construction, and is guided by the same rules. Supposing, then, parol evidence to be admissible in such a case as the present, the question recurs, to what extent is it still open to the court since the statute to act upon such evidence for the purpose of rejecting the whole, or expunging any portion, of the written testament to which the testator has duly affixed his name? A more important inquiry could hardly arise; for you may as effectually incline the balance by taking out of one scale as by adding to the other, and it is quite as easy to vary the effect of a will in any given direction by leaving words out as by putting them in. After much consideration the following propositions commend themselves to the court as rules which, since the statute, ought to govern its action in respect of a duly executed paper: First, that before a paper so executed is entitled to probate, the court must be satisfied that the testator knew and approved of the contents at the time he signed it. Secondly, that, except in certain cases where suspicion attaches to the document, the fact of the testator's execution is sufficient proof that he knew and approved the contents. Thirdly, that, although the testator knew and approved the contents, the paper may still be rejected on proof, establishing beyond all possibility of mistake, that he did not intend the paper to operate as a will. Fourthly, that, although the testator did know and approve the contents, the paper may be refused probate, if it be proved that any fraud has been purposely practised upon the testator in obtaining his execution thereof. Fifthly, that, subject to the last preceding proposition, the fact that the will has been duly read over to a capable testator on the occasion of its execution, or that its contents have been brought to his notice in any other way, should, when coupled with execution thereof, be held conclusive evidence that he approved as well as knew the contents thereof. Sixthly, that the above rules apply equally to a portion of the will as to the whole. The first and second of these propositions are amply established by the case of Barry v. Butlin, 2 Moo. P. C., and others of that class in the Privy Council. The third was also well-approved law in the Ecclesiastical Courts, for there must be an animus testandi to constitute a paper testamentary. The fourth requires no comment, and the last is justified by the case of Allen v. McPherson, 1 H. L. C. 233. It remains to say a few words on the fifth. It is here that the right to derogate from the force of an executed paper approaches and receives its limit. And it is obvious enough that, if the court should allow itself to pass beyond proof that the contents of any such paper were read or otherwise made known to the testator, and suffer an inquiry by the oath of the attorney or others as to what the testator really wished or intended, the authenticity of a will would no longer repose on the ceremony of execution exacted by the statute, but would be set at large in the wide field of parol conflict and confided to the mercies of memory. The security intended by the statute would thus perish at the hands of the court. I have thus endeavoured to place the use of parol evidence in these matters on its true ground. The general rule for excluding it in our courts is based upon the proposition that written testimony is of a higher grade, more certain, more reliable than parol, and that resort should be had to the highest evidence of which a subject is capable, to the exclusion of the inferior class. But it is one thing to admit evidence, and another to give effect to it. If a statute require that a thing should be in writing and signed in order to its validity, it precludes the court from giving effect to parol testimony of that which is required to be so written and signed. And if it be said, Why then admit parol evidence on the subject at [Ex. CH. all?" the answer is, that, if the scope of such evidence can be clearly known before it is heard, it should be excluded, but then only on the ground of immateriality, not because it is secondary. In actual practice a large number of cases are so presented that it is impracticable to reject evidence as immaterial before the details of it are known. Little need be said as to the operation of these principles upon the present case. The codicil was proved to have been read over to the testatrix before the execution thereof; she duly executed the same, and the Court conceives it to be beyond its functions or powers to substitute the oath of the attorney who prepared it, fortified by his notes of the testatrix's instructions, for the written provisions contained in a paper so executed. The probate will therefore be delivered out to the plt. in its present form. EXCHEQUER CHAMBER. Reported by W. MAYD, Esq., Barrister-at-Law. ERROR FROM THE COMMON PLEAS. June 19, 20, and Nov. 29. (Before POLLOCK, C. B., BRAMWELL, CHANNELL, and PIGOTT, BB., and BLACKBURN and SHEE, JJ.) BULLEN AND ANOTHER v. SHARP. Partnership. A. being desirous of commencing an underwriter's business, agreed with his father that, if he would find him 5000l., he would pay him an annuity of 500l. F. was to conduct the business of A., and have control over the funds. Subsequently this agreement was embodied in A.'s marriage-settlement with the additional clause that all the funds in the hands of F. before the marriage, and also those coming into his hands afterwards on account of the business, were to be paid over to the father and another, upon trust for the father, first to pay himself his annuity, and afterwards to pay his son an annuity; the resi due of the profits to be appropriated in the manner specified in the deed. The son having failed in the business, the father was sued on a policy effected by the son on the ground that he was a partner, which, however, was denied: Held (reversing the decision of the court below), that the marriage-settlement did not constitute a partnership with Sharp the younger. Shee, J. and Pigott, B. dissentientibus. Error from the C. P. on a special case fully reported 12 L. T. Rep. N. S. 310, C. P. Lush, Q. C. and Sir George Honyman for plts. in error. F. Brown, Q. C. and Trevillian contra. Nov. 29.-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 deft., or of the deft. 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 deft., 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 deft., who had refused to give a formal guarantee that the deft. would advance to William Sharp the younger a capital of 5000l., 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 May 1859, if the money had been advanced, and Fenn, in answer to that inquiry, by the use in his letter of the 22nd May 1859 of language more studiously than scrupulously chosen, had led them to believe that the 50007. had in fact been advanced, and was in his hands. The deft., William Sharp the younger, and Fenn, seem to have considered that the assurance given to the committee at Lloyd's was, although the deft. had refused a guarantee, an engagement binding in honour upon him and virtually, as between him and the committee, an undertaking to the extent of 5000l. for the underwriting losses of William Sharp the younger. Treating apparently this assurance of the deft. to the committee that he would advance 50007, as equivalent to or good security for the actual advance of it, William Sharp the younger had agreed to pay to the deft., during their joint lives, 10 per cent. per annum upon the amount, and in lieu of it, after the expiration of three years, one-fourth of the average profits realised by the business during those three years. Thus far we have the deft. 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 deft. guarding himself, should the business become unprosperous, against eventual loss, under his promise to advance 5000 by a stipulation that he should receive a fixed annuity of 500, 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 service other than the underwriting business out of which this 500l. 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 deft.'s promise to advance 5000l. 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 5007. annuity was in fact paid to the deft. out of the profit of the business, or not, he would not, rebus sie stantibus, have been liable for the debts. The definition of a partnership, "Contractus consensualis de re vel operis communicandis lucri in commune faciendi causâ," 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 deft., 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 of William Sharp the younger. Fenn, who up to that time had carried on the business as agent of William Sharp the younger, accounting to him for the 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 deft. and John Donnison, to whom, besides other property of William Sharp the younger, all moneys belonging to him in the hands of Fenn, and all moneys, earnings, profits, and emoluments thereafter to [Ex. CH. come into Fenn's hands on account or in respect of the underwriting business, including, as I read it, any claim William Sharp the younger might have had on the 5000l. advanced, were with full power and authority, to ask, demand, sue for, recover, and receive, and give effectual receipts and discharges for the said moneys, proceeds, and premises assigned in trust for William Sharp the younger until his marriage, in trust after his marriage, primarily and solely, should the profits not exceed 500.-to pay that sum annually out of the proceeds of the underwriting business to the deft.-in further trust, but without prejudice to the deft.'s annuity, to pay William Sharp the younger an annuity of 500%, and after the continuance for two years of an accumulation of profits of the extent of 3500l., an annuity of 750%, together with the interest on the sum accumulated, and the proceeds and dividends of other the profits assigned; in further trust, when the accumulation of profits should have arrived and for two years continued at 85007., to apply that accumulation to the emergencies of the underwriting business and the repayment to the deft. of any moneys he might have advanced under his guarantee of the 21st May 1857; on further trust for all the purposes of a family settlement, and to provide for the intended wife of William 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 deft. 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, 8 H. of L. Cas. 268, 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 and Co." After the date of the marriage the deft. had as much to do with the carrying on of the underwriting business as the trustees in Cox v. Hickman 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 and Co. The business of the Stanton Iron Company, in Cox v. Hickman, 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 deft. 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 deft., 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 moneys, earnings, profits, and emoluments derived from it, was after the marriage carried on by Fenn as agent for and on behalf of the deft. and John Donnison, to whom the marriage-settlement, all the moneys 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 deft. 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 |