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Mason, 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 101., on which there was a stone building, roofed. The building was a linhay, open to the field; there was a crib in it; one side of the linhay was prolonged, and formed the back of a large tank, which contained from 60 to 80 hogsheads of water. The roof of the tank was lower than that of the linhay; the water flowed from the roof of the linhay into the tank. There was an internal communication between the linhay and the tank; the water was used to water the cattle which fed upon the land, and was drawn from the tank by means of a ball. The linhay was worth to the tenant about 58. a year. The value of the tank was not proved before the Revising Barrister, but was worth something. It was objected that the building was not a "building within the meaning of the 27th section of the Reform Act (2 Will. 4. c. 45). The Revising Barrister held it was not a “building ” within the meaning of the said section, and expunged the voter's name.

ADAMS, appellant, v. Harris, respondent,

The facts of this case were as follows: The voter occupied a piece of land of the value of more than 101. per annum, with a stone building, roofed, upon it; the building had three walls, and was open in front; there was a loft over the building for the purpose of keeping hay; the land was used for depasturing the voter's own cattle, and the lower part of the building was useful as affording shade and shelter to the cattle. The building was worth to the tenant about 58. a year. It was objected that the building was not a “ building ” within the meaning of the 27th section of the Reform Act (2 Will. 4. c. 45). The Revising Barrister held that it was not a “ building” within the meaning of the said section, and expunged the voter's name.

Prout, appellant, v. HARRIS, respondent.

v The facts of this case were as follows: The voter occupied a piece of land with a stone building upon it, roofed, of the value of more than 101. per annum. The building had three walls and was open in front, with a loft over for the purpose of keeping hay; 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 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.

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 101. 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 101. 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

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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 (Erle, C.J., Willes, J., Byles, J., and Keating, J.).—In the remaining registration cases from the borough of Totnes, we have had considerable difficulty in arriving at a satisfactory decision. The statute describing the qualification 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 101. 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 and 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.)

Nov. 29, 1865.

BULLEN AND ANOTHER v. SHARP.*

35 L. J. C.P. 105; 1 H. & R. 117; L. R. 1 C.P. 86; 14 L. T. 72; 14 W. R. 338. Referred to, Easterbrook v. Barber, (1871] E. R. A.; 40 L. J. C.P. 17;

L. R. 6 C.P. 1; 23 L. T. 535; 19 W. R. 208 (C.P.). Applied, Holme v.

2

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

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Hammond, [1872] E. R. A.; 41 L. J. Ex. 157; L. R. 7 Ex. 218; 20 W. R. 747 (Ex.); Mollino v. Court of Wards, 1872, L. R. 4 P.C. 419; Noakes v. Barlow, 1872, 26 L. T. 136; 20 W. R. 388 (Ex. Ch.). See Ross v. Parkyns, (1875) E. R. A.; 44 L. J. Ch. 610; L. R. 20 Eq. 331; 24 W. R. 5 (M.R.); Ex parte Tennant, 1877, 6 Ch. D. 303; 37 L. T. 284; 25 W. R. 854 (C. A.). . Applied, Badeley v. Consolidated Bank, (1888) E. R. A.; 57 L. J. Ch. 468; 38 Ch. D. 238; 59 L. T. 419; 36 W. R. 745 (C. A.). Partnership, What constitutes --- Annuity out of Profits Underwriting

Business.

PARTNERSHIP.-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 5,0001. 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 5,0001., agreed to pay the defendant an annuity of 5001., 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 busines8. 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.

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 1001. 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 5,0001. 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 à salary of 3001. a year, which was afterwards, by a fresh agreement in November, 1858, increased to 3501.

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 5,0001., he agreed to pay to the defendant during their joint lives an annuity of 5001., 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 5001. The letter also

(1) Also reported in 18 Com. B. Rep. N.S. 614.

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 of attorney to sue for, receive and give discharges for the same, and with a direction to Fenn and the other 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 5001., to be increased to 7501. if the accumulated profits at the end of two years should amount to 3,5001. ; next, to accumulate the surplus profits until they should amount to 8,5001. 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, 1859, 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 5,0001., 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 5,0001. 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 5,0001., for the underwriting losses of William Sharp the younger. Treating apparently this assurance of the defendant to the committee that he would advance 5,0001. 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, 101. 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 benefitthe defendant guarding himself, should the business become unprosperous, against eventual loss, under his promise to advance 5,0001., by a stipulation that he should receive a fixed annuity of 5001., 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 5001. 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 5,0001., 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 considere in many cases cogent, though not conclusive, evidence of a partnership liability for its debts. Whether the 5001. 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 5,0001. 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 5001., to pay that

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