1865. BULLEN V. SHARP. only on all inferior tribunals, but even on that House itself when sitting judicially. (3.) Per Blackburn, J. and Channell, B.:-Inferior tribunals, though bound by a decision of the House of Lords and the ratio decidendi of the decision, are not bound by every reason given by the Lords in delivering their opinions. (4.) Quære, whether where facts are stated in a special case, with power reserved to the Court to draw any reasonable inferences of fact, the Court is not bound to assume the facts to have been really as stated, and cannot infer that what was done was done fraudulently or colorably. THIS HIS was a proceeding in error, brought upon a judgment of the Court of Common Pleas on a special case. The action was upon a policy of insurance at Lloyd's, in which the declaration alleged that the Defendant subscribed the policy for £100, and became an insurer thereon to the Plaintiff to that amount. In the Common Pleas judgment was given for the Plaintiff. The facts are fully stated in the report of the case in the Court below, 18 C. B., N. S. 614. The case was argued in this Court on the 19th and 20th of June, before Pollock, C.B., the late Mr. Justice Crompton, who died before judgment was delivered, Bramwell, B., Blackburn, J., Channell and Pigott, BB., and Shee, J. Lush, (Mellish and Sir George Honyman with him,) for the Defendant. The judgment of the Common Pleas was wrong. On the other side it will be contended that the effect of the agreement made in January, 1859, between the Defendant and his son, and the marriage settlement of the latter executed in August in the same year, was to constitute the Defendant a partner in the underwriting business carried on by the son, and thereby to make him liable. By the agreement, in consideration of the Defendant's guarantee to the extent of 5,0001. the son agreed to pay the Defendant an annuity of 5001. per annum; and if at the end of three years it should appear that one-fourth of the net average annual profits made by the son in the business amounted to more than 500, then that the annuity should be increased to a yearly sum equal to one-fourth of such net average profits. Now it is clear that by taking the annuity for the three years the Defendant would not become a partner; and the provision relating to the contingent increase of the annuity after that time cannot affect his liability, as, before the three years had elapsed, the son became bankrupt. But the effect of the marriage settlement will be relied on. That however carries the case no farther against the Defendant. After reciting, amongst other things, the agreement in 1857 between the Defendant's son and Fenn, by which the underwriting business was to be carried on under Fenn's management and superintendence, and that in contemplation of the marriage it had been agreed that the son should assign to the Defendant and Donnison all monies. then in the hands or thereafter to come into the hands of Fenn in respect of the said business on behalf or for the benefit of the son, the son assigned to the Defendant and Donnison all monies, earnings and profits which were 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 the same, in trust in the first place to pay the Defendant the annuity of 500l., and upon further trust, after payment of the last-mentioned and other monies, to accumulate the surplus until it should amount to 8,500, and remain of that amount for two years; and from and after the time when the accumulations should have reached that amount, and have so remained for two years, to reassign the said monies and profits to the Defendant's son absolutely. The deed therefore neither gives the Defendant power to interfere in the underwriting business, nor any interest in the increase of the profits of it. It is not open to the Plaintiff upon a special case, stated as this is, to say that the deed was colourable. Its object is bonâ fide to make a good business for the son, and, when that end has been attained, the business is to be his 1865. BULLEN v. SHARP. 1865. BULLEN V. SHARP. absolutely. The arrangement was a prudent and proper one, having regard to the nature of the business. [As to the course of business Beckwith v. Bullen (a), Sweeting v. Pearce (b), Xenos v. Wickham (c), were referred to.] The Plaintiffs are not entitled to succeed unless they make out either that the son carried on the business jointly with the Defendant, or that the relation between them was such that each was the agent of the other. But it is obvious. that the son may carry on the business as he pleases, and that the Defendant has no control in it. Possibly the 500l. annuity might absorb all the profits; but if so, that would not make the Defendant a partner; and, in case the profits should exceed the 500l., the Defendant would derive no advantage from the excess. The Defendant was merely a creditor of his son for an annuity of 5007. per annum, and this deed amounts to no more than an assignment to a creditor to enable him to pay his own debt. The reasons given by the learned Judges for their judgments below are not the same. Erle, C. J., says (d), that he does not rely so much upon the antecedent agreement as upon the deed; and, in remarking that the ground upon which the decision of the House of Lords in Cox v. Hickman (e) proceeded was sound, says, "It was admitted there that for debts contracted by the trustees they would be liable." The distinction between that case and the present is that there the trustees carried on the business, whereas in this case neither the Defendant nor his co-trustee has any power to interfere with it. Brown, (Trevelian with him,) for the Plaintiffs.-The Court is, no doubt, bound by the decision of the House of Lords in Cox v. Hickman (f); but not by the reasons (a) 8 E. & B. 683, 690. (b) 7 C. B., N. S. 449, 460. given by the individual Judges. There it was decided that the creditors who executed the deed did not become liable as partners for debts contracted by the trustees, and that the trustees did not carry on the Stanton Iron Company as their agents. But the authorities, from Waugh v. Carver (a) down to that case, show that a participation in profits under such circumstances as those here disclosed does constitute a partnership. Under the settlement all the monies, earnings and profits are assigned, eo nomine, to the Defendant and his co-trustee, and that which would otherwise go to pay creditors is swallowed up. In Cox v. Hickman (b) it was taken as admitted that the trustees were liable, though the creditors were not. Grace v. Smith (c) was an action brought against Smith alone as a secret partner with one Robinson, and it was held that money lent by a retiring partner at legal interest, with an additional annuity for a certain term, was not a continuance of the partnership; but in Bloxham and Pell, there cited at p. 999, where it appeared that an annuity was payable to a retiring partner in lieu of profits, Lord Mansfield held that the annuitant remained a secret partner, and observed, "this was a device to make more than legal interest of money, and if it was not a partnership it was a crime. And it shall not lie in the Defendant Pell's mouth to say, It is usury and not a partnership." So in Ex parte Wilson, In re Colbeck (d), an assignment by a retiring partner of all his share upon trust to pay him an annuity for his life, subject to an abatement or enlargement according to the fluctuation of the profits of the trade, was held not to determine the partnership, with reference to the creditors. At p. 52 of the report, Lord Eldon says, "He certainly must be taken to have retired. from the business reserving an interest in the profits of (a) 2 H. Bl. 235; 1 Sm. L. C. S18, 5th ed. 1865. BULLEN v. SHARP. (b) 8 H. L. C. 268. (c) 2 W. Blacks. 998. (d) Buck, B. C. 48. 1865. BULLEN v. SHARP. the trade, for the annuity he received was not merely an (a) 17 Ves. 403. (c) 3 M. & W. 357. (d) Sects. 66, 67, 68. (e) See 18 C. B., N. S. 648—9. (f) 8 H. L. C. 306. |