by Sharp jun. into the defendant's banking account with *Hankey & Co., on whom the defendant allowed him to draw checks [*631 until November, 1859, when the defendant put a stop to his son's drawing checks.

considered as money, and be subject to such and the same trusts, powers, provisoes, and declarations as the money laid out in the purchase thereof would have been subject to if the same had not been so invested and applied: Provided also, and it is hereby further agreed and declared, that it shall be lawful for the said trustee or trustees of these presents for the time being (but during the lives of the said W. Sharp the younger and M. L. P. Chamney, and the life of the survivor of them, with their, his, or her consent in writing) to demise or lease all or any part of the messuages, lands, or tenements which shall or may be purchased in virtue of the power lastly herein before contained, in the mean time and until the same shall be resold pursuant to the trust for that purpose also above expressed, to any person or persons for any term or number of years not exceeding twenty-one years in possession, and not by way of future interest, so that there be reserved in every such demise or lease the best or most improved yearly rent that can be reasonably obtained for the tenements to be thereby demised, and so that the lessee or lessees be not made dispunishable for waste by any words to be therein contained: And this indenture further witnesseth, that, in further pursuance of the said herein before-recited agreement, and for the considerations herein before expressed, the said W. Sharp the younger doth by these presents grant, bargain, sell, and assign unto the said W. Sharp the elder and John Donnison, their executors, administrators, and assigns, all that policy or instrument of assurance under the hands of two of the trustees of the London Life Association for Assurance on Lives, bearing date the 24th of June, 1859, and numbered 10617, second series, and also the principal sum of 3000l. thereby assured to be paid out of the funds of the said association unto the executors, administrators, or assigns of the said W. Sharp the younger within three calendar months after satisfactory proof shall have been made according to the rules and practice of the said association of the death of the said W. Sharp the younger, and all such other sums of money (if any) which by way of bonus or otherwise shall or may become payable or be recoverable under or by virtue of the said policy, and all the right, title, interest, property, benefit, claim, and demand whatsoever, both at law and in equity, of the said W. Sharp the younger into, upon, or out of the same policy, money, and premises, together with full power and authority to and for the said W. Sharp the elder and John Donnison, and the survivor of them, and the executors and administrators of such survivor, and their or his assigns, in the names and as the attorneys or attorney of the executors or administrators of the said W. Sharp the younger, or otherwise howsoever, to ask, demand, sue for, recover, receive, and take, and to give effectual receipts and discharges for, the said principal sum of 3000l., and other the moneys to become payable or recoverable by virtue of or under the said policy of assurance, or any of them, or any part or parts thereof, to have and to hold the said policy of assurance, moneys, and other the premises lastly herein before mentioned, and hereby granted and assigned, or expressed and intended so to be, unto the said W. Sharp the elder and John Donnison, their executors, administrators, and assigns, absolutely, nevertheless, in trust for the said W. Sharp the younger, his executors, administrators, and assigns, until the said intended marriage between him and the said M. L. P. Chamney shall be solemnized, and, from and after the solemnization thereof, upon the trusts and for the intents and purposes hereinafter expressed or referred to concerning the same (that is to say), in case the said M. L. P. Chamney should die in the lifetime of the said W. Sharp the younger, without leaving any child of the said intended marriage her surviving, and without having had any child who under the trusts hereinafter declared by way of reference shall have obtained or shall afterwards obtain a vested interest in the moneys to be recoverable under or by virtue of the said policy of assurance, in trust to assign or transfer the said policy, moneys, and premises unto the said W. Sharp the younger, his executors, administrators, and assigns, for his and their own absolute use and benefit; but, in case the said M. L. P. Chamney, or any child of the said intended marriage, should survive the said W. Sharp the younger, or if any such child should previously to the decease of the said W. Sharp the younger have obtained a vested interest in the moneys to become payable or recoverable under or by virtue of the policy of assurance, then and in any such case, upon trust when and so soon as the said principal sum of 3000l. assured by the said policy shall become payable, upon trust to apply for and obtain payment of the said 30007., and all other moneys (if any) which may be payable or be recoverable by virtue of or under the said policy; and, after deducting the expenses (if any) incurred in obtaining the payment thereof, in trust to lay out and invest the moneys so obtained and received (but, in the lifetime of the said M. L. P. Chamney, with her consent in writing) in or upon any of the stocks, funds, securities, or other

19. Fenn drew his salary out of the funds of the underwriting business.

*632]

*20. The first half-yearly payment of the annuity of 5007. a year secured to the defendant by the said marriage settlement

investments herein before mentioned; and it is hereby further agreed and declared that the said trustees or trustee of these presents for the time being shall stand possessed of and interested in all and singular the said trust moneys, stocks, funds, securities, and principal trust premises last mentioned, and of and in the interest, dividends, and annual proceeds thereof, upon and for such and the same trusts, and with, under, and subject to such and the same powers, provisoes, agreements, and declarations as are herein before declared, expressed, and contained of and concerning the principal trust moneys, stocks, funds, securities, railway shares, and premises first herein before mentioned and hereby settled, and the interest, dividends, and annual proceeds thereof, or such of the said trusts, powers, provisoes, agreements, and declarations as shall at the time of the decease of the said W. Sharp the younger be subsisting, undetermined, and capable of taking effect, and of being performed and exercised respectively: Provided also, and it is hereby further agreed and declared, that the receipt and receipts in writing of the trustees or trustee for the time being acting in the execution of the trusts or powers herein before contained, shall be good and sufficient as a discharge or discharges for all or any sum or sums of money payable or to be paid to them or him under or by virtue of these presents, or upon or for any of the trusts or purposes herein expressed, and that the person or persons to or for whom the same shall be given shall not be obliged to see to the application or be answerable for the misapplication of the moneys therein respectively expressed to be received, or any part thereof respectively: Provided also, and it is hereby further agreed and declared between and by the said parties to these presents, that, in case the said trustees herein before named, or any of them, or any future trustee or trustees to be appointed as hereinafter mentioned, should die or go to reside abroad, or be desirous of being discharged from, or refuse or become incapable to act in, the execution of the trusts and powers hereby created, before the said trusts and powers shall be fully executed and performed, then and so often as the same shall happen it shall be lawful for the said W. Sharp the younger and M. L. P. Chamney, or the survivor of them, during their, his, or her lives or life, and, after the decease of the survivor of them, for the surviving or continuing trustees or trustee for the time being, or the executors or administrators of the last surviving or of any deceased trustee, or for the retiring trustees if all the trustees for the time being retire together, or for the last acting trustee, on his retiring, by any deed or deeds, to be by them, him, or her respectively duly executed, to nominate, substitute, or appoint any other fit person or persons to be a trustee or trustees in the place or stead of the trustee or trustees so dying, or going or gone to reside abroad, or desiring to be discharged, or refusing or becoming incapable to act as aforesaid; and that, when and so often as any new trustee or trustees shall be appointed as above mentioned, all the said trust premises subject for the time being to the trusts hereby declared, shall be thereupon assigned or transferred and assured in such manner and so that the same may be legally and effectually vested in the continuing former trustees or trustee of these presents and such new trustee or trustees jointly, or, if there be no such continuing former trustee, then in such new trustees solely, upon and for the several trusts, intents, and purposes, and with and subject to the several powers, provisoes, agreements, and declarations hereinbefore declared or expressed and contained of or concerning the said trust premises, or such of them as shall be then subsisting or capable of taking effect or of being exercised; and that such new trustee or trustees as above mentioned either before or after any assignment or transfer of the said trust premises shall have, and may exercise and concur in exercising, all the same powers and authorities and as fully and effectually as if he or they had been originally appointed a trustee or trustees of these presents, in the room of the trustee or trustees in whose place he or they respectively shall or may be substituted: Provided also, and it is hereby further agreed and declared that the said trustees herein before named, and all future trustees to be appointed as aforesaid, their respective heirs, executors, and administrators, shall be chargeable only for such moneys as they shall respectively actually receive by virtue of the trusts hereby in them reposed, notwithstanding their joining in any receipt for the sake of conformity; and that each of them shall be answerable for his own acts and wilful defaults only, and in no case for involuntary losses, and in particular shall not be answerable or accountable for any moneys which in pursuance of or under the trusts, powers, or authorities herein before contained, shall or may be paid or advanced by the said trustees or trustee for the time being to the said W. Fenn, or other the agent, deputy, or attorney for the time being of the said W. Sharp the younger in his said business of underwriting, or to the said W. Sharp the younger himself, for the purposes of the said business, nor for the loss or avoidance

became due to the defendant on the 1st of January, 1860, and was paid to the defendant by Sharp jun. on the 7th of March, 1860, but has since been claimed by the assignees under the son's bankruptcy from the defendant, as an undue preference, and repaid by him.

[*633

21. Sharp the younger, between the date of the said settlement and his bankruptcy, drew various sums of money out of the underwriting business on account of the annuity of 5007. secured to him by the said settlement.

[*634

22. On the 22d of December, 1859, the plaintiffs effected a marine policy of assurance at Lloyd's in the usual way, for the sum of 27007. on the ship "Shepherdess," for twelve calendar months, [*635 in any trade, and from and to any port or ports, commencing sailing from Whampoa, at 8 guineas per cent. premium. This policy was subscribed by several underwriters for various sums, and, [*636 amongst others, by a clerk in the name of Sharp jun., before he stopped payment, for 1007. A loss afterwards occurred upon this policy to the plaintiffs by the perils insured against, to the amount of 100l. per cent.: and it was agreed that the *underwriters of the said policy are liable to the plaintiffs thereon to that amount.

[*637 23. The plaintiffs were wholly ignorant of the aforesaid arrangements and dealings between the defendant, his son, Fenn, and the committee of Lloyd's, and also of the said marriage settlement. *24. In the month of September, 1861, the plaintiffs proved [*638 their claim under the son's bankruptcy. At the time of such proof; neither of the plaintiffs was aware of the aforesaid arrangements and dealings.

[*640

25. The plaintiffs contended that the defendant, by *the effect of the instruments and facts above mentioned, became a part[*639 ner or a principal in the underwriting business carried on in his son's name as above mentioned, and, as such, a party to the said policy, and liable to pay to the plaintiffs the loss sustained on *the said policy in respect of the sum of 1007. underwritten in the son's name as aforesaid. The defendant contended the contrary. agreed that the Court should draw any reasonable inferences of fact. 26. The question for the opinion of the Court was, *whether the defendant was or was not liable on the said policy, as a partner with his said son.

It was

[*611

27. If the Court should be of opinion that the defendant was liable, then it was agreed that judgment should be entered for the plaintiff's for the sum of 1007. *If the Court should be of the contrary [*642 opinion, then it was agreed that the verdict and judgment should be entered for the defendant on the issues joined on the second and sixth pleas.

of the said policy of assurance hereinbefore assigned or expressed and intended so to be, or of the moneys thereby assured, by reason of the non-payment of any of the annual premiums to be paid for keeping the same on foot; and that the said present and future trustees, their respective heirs, executors, and administrators, shall and may, out of the moneys which shall come to their respective hands by virtue of these presents, retain to and reimburse themselves respectively all such reasonable costs and expenses as they shall or may respectively incur in or about the execution of the trusts hereby in them reposed. In witness," &c.

*643]

*644]

*J. Brown, Q. C. (with whom was Bovill, Q. C.), for the plaintiffs.(a)-The defendant, it is submitted, was a partner with his son. The effect of making the profits of the business the subject of the marriage-settlement, was, to make the trustee a partner, even if he were a bare trustee. The memorandum of the 1st of January, 1859, in itself would constitute a partnership: but, *when we come to the marriage settlement, the thing assumes

*645] a very definite shape; all the profits already accrued or there

after to accrue from the underwriting business were assigned to the defendant and Donnison as trustees. In Wightman v. Townroe, 1 M. & Selw. 412, where executors of a deceased partner continued his share of the partnership property in trade for the benefit of his infant daughter, it was held that they were liable upon a bill drawn for the accommodation of the partnership, and paid in discharge of a partnership debt, although their names were not added to the firm, but the trade was carried on by the other partners under the same *646] firm as before, and the executors, when they divided the profits

and loss of the trade, carried the same to the account of the infant, and took no part of the profits themselves. Le Blanc, J., says: "It seems to me that the executors, by embarking the property in trade in the first instance, contracted a responsibility in a Court of law, which their subsequent application of the profits to purposes not of personal benefit, cannot afterwards vary." A similar decision was come to in Ex parte Garland, 10 Ves. 110. It is a clear principle in the law of partnership, that one who contracts for a share of profits is liable to contribute to losses. The rule has been so laid down in a long series of cases. In Ex parte Wilson, In re Colbeck, Buck, B. C. 48, it was held, that, if a retiring partner assign all his share in the concern to two continuing partners, upon trust to pay him an annuity for his life, subject to an abatement or enlargement with the fluctuation of the profits of the trade, that will not with reference to creditors. determine the partnership. In Ex parte Hamper, 17 Ves. 403, 404, Lord Eldon says: "The cases have gone farther to this nicety, upon a distinction so thin that I cannot state it as established upon due consideration, that, if a trader agrees to pay another person for his labour in the concern a sum of money, even in proportion to the profits, equal to a certain share, that will not make him a partner; but, if he has a specific interest in the profits themselves, as profits, he is a partner." Again at p. 412, he further says: "It is clearly settled, though I regret it, that, if a man stipulates, that, as the reward of his labour, he shall have, not a specific interest in the business, but a given sum of money, even in proportion to a given quantum of the profits, that will not make him a partner; but, if he agrees for a part of the profits, as such, giving him a right to an *account, though having no property in the capital, he is as to third persons a partner; and

*647]

(a) The points marked for argument on the part of the plaintiffs were as follows:"1. That the facts show that the defendant was a partner as to third persons in the underwriting business carried on in his son's name:

"2. That the defendant was liable to the plaintiffs on the policy in question subscribed in the son's name, as a partner with him; and that the plaintiffs are entitled to recover the amount insured from the defendant."

in a question with third persons no stipulation can protect him from loss."

Lush, Q. C. (Mellish, Q. C., and Sir G. Honyman were with him), for the defendant.(a)-It is sought to fix the defendant as a partner in the business carried on by his son, by a reference to the agreement of the 1st of January, 1859, and the marriage settlement, taken together The agreement was, to pay the defendant 5007. a year for three years, in consideration of his guaranteeing in case of losses to the extent of 50007., and that, if at the end of the three years the business should be found to have produced a profit of more than 2000l. a year, the annuity was to be increased. That was not an agreement for a share of the profits of the business. [MONTAGUE SMITH, J.-It would have been much the same if the annuity had been measured by the amount of profits of another man's business.] Precisely so. Then, does the marriage settlement make the father a partner? It is said that not only does it make the father, but also the co-trustee, a partner. The business, however, is not transferred to them; but only the railway stock, moneys in hand, and all the moneys, earnings, profits, and emoluments which should thereafter come to the hands of Fenn *on [*648 account or in respect of the underwriting business. The trustees had no power to interfere with the business. [MONTAGUE SMITH, J.-Would not the father be entitled in equity to an account of the profits?] It is submitted not. By the agreement of the 17th of March, 1857, the business was to be entirely under the control and management of Fenn. If the agreement of the 1st of January, 1859, did not make the father a partner, the settlement clearly did not. There is nothing in any of the trusts to impose upon the trustees any such liability as is sought to be inferred from the deed. In Hickman v. Cox, 18 C. B. 617 (E. C. L. R. vol. 86), A. and B., who carried on the business of iron-masters in copartnership, by a deed purporting to be made between A. and B. of the first part, five persons named as trustees of the second part, and the several persons whose names were contained in a schedule as creditors for the sums therein mentioned, and who should execute the deed, of the third part,-reciting that the said A. and B. were indebted to the several persons parties thereto of the third part, and that they had agreed to assign all their estate and effects for the benefit of such creditors,―assigned the works and all their property and effects to trustees, upon trust, amongst other things, to carry on the business under the name of "The Stanton Iron Company, and out of the profits to pay interest on mortgages, &c., and to "pay and divide the net income of the business remaining after answering the purposes aforesaid, unto and among all and singular the creditors of A. and B., in rateable proportions according to the amount of their respective debts. And this Court held, that, under this deed, the creditors executing it became liable as partners for debts contracted by the trustees in carrying on the

(a) The points marked for argument on the part of the defendant were as follows:

"1. That, upon the facts and documents set out in the special case, the defendant is not liable as an underwriter on the policy:

"2. That the facts do not show that the defendant was a partner with his son in business, so as to make him liable for the loss:

"3. That it appears by the case that the plaintiffs were not aware of the acts alleged to constitute a partnership, and therefore are not entitled to rely on any ostensible partnership." C. B. N. S., VOL. XVIII.-25