belonged. Upon these facts two questions for consideration arise-first, whether he has suffered sufficient punishment, and it may be assumed, I think, that twenty years' exclusion is sufficient; and, secondly, whether he is now fit for readmission into the profession? Undoubtedly, the fact of his being disbarred raises a presumption against his fitness, and until there is evidence before us that his subsequent conduct has been such as to rebut the presumption, we cannot give effect to his application.

MELLOR, J., concurred.-Application refused.

COURT OF COMMON PLEAS.
EASTER TERM.

[Before ERLE, C. J., BYLES and SMITH, JJ.]
BULLEN and Another v. SHARP.-April 26.

Partnership-Guarantee-Advancement.

The defendant agreed to guarantee the sum of 5000l. to his son, to be employed in the business of an underwriter, upon the terms that the son should pay to the defendant an annuity of 500l., and that if at the end of three years one-fourth of the net profits of the business should amount to more than 5001, then and in such case the said annuity should be increased to a yearly sum equal to one-fourth of such net annual profits. The agreement expressly stated that the defendant was not to be considered a partner. On the marriage of the son, this agreement was made the subject of settlement, the defendant being a trustee, the first trust being to pay the defendant's annuity:-Held, that the defendant was a partner in the business.

This was an action to recover 1007. for a loss on a marine policy of insurance effected by the plaintiffs, and signed in the name of William Sharp the younger, a son of the defendant, with whom the defendant is contended to have been a partner, under the circumstances hereinafter mentioned.

The defendant, among other pleas, pleaded, secondly, that he did not subscribe the policy, or become insurer, as alleged; and, sixthly, that he never was indebted, as alleged."

The cause came on to be tried at the Sittings in London after Michaelmas Term, 1864, before the Lord Chief Justice of this court and a special jury, when a verdict was taken for the plaintiffs by consent on all the issues, subject to the opinion of the Court on the following case:

In the beginning of 1857 the defendant applied to Mr. Fenn, an underwriter at Lloyd's, with a view to his son becoming a member of that body. Mr. Fenn shortly afterwards told the defendant that he had been before the committee at Lloyd's, and that they had suggested that the defendant should give a guarantee for the liabilities to be incurred by his son. This the defendant objected to do, but stated that he might not be unwilling to give his guarantee for a limited amount.

Mr. Fenn thereupon sent the committee of Lloyd's the following letters:

“Gentlemen,—I have communicated with Mr. Sharp, sen., your requirements as to his son's admittance as a member of Lloyd's, and he tells me that he has such a strong repugnance against guarantees, that he is willing to place at my disposal 50007. (instead of 30007.); if this meets with your approval, I can further add, that he (Mr. Sharp) assures me that he would never let his son stand in want of further aid,

if needed.

* See preceding case.

"As this introduction is entirely Mr. Sharp, senior's own seeking, I feel less careful about it, and shall gladly fall in with the determination you come to in the matter, only expressing my regret that I shoul be the cause of giving you so much unnecessary trouble in this case; but had I known then what I see now, would have sought such guarantee before laying my application before you.

"Should this not meet with your full concurrence may I ask to have Mr. Sharp, junior's, name at one withdrawn. Again apologising for so much troubl to your committte,

"I am, Gentlemen, your most obediently, (Signed) "WILLIAM FENN, "37, Old Bond-street, March 17, 1857. "The Committee of Management of the Affair of Lloyd's."

On receipt of this letter the committee of Lloyd elected the defendant's son, Mr. Sharp, jun., a membe of Lloyd's. At the same time the defendant's sa son entered into an agreement with Mr. Fenn for hir to transact the son's underwriting business for a peri of three years, of which the following is a copy:

"Memorandum of agreement made and entered int the 17th March, 1857, between William Sharp, Esq. jun of Upper Clapton, in the county of Middlesex, of th London, underwriter, of the other part. Whereas one part, and William Fenn, of Lloyd's, in the city of has been agreed between the said parties, that an un derwriting account at Lloyd's Coffee-house, Lond shall be opened and carried on in the name of the sai William Sharp, under the management and superi tendence of the said William Fenn, for the time, an upon the terms and conditions hereinafter mentioned that is to say,

That, as far as practicable, all risks taken on ac count of the said William Sharp shall be identical wit those taken by the said William Fenn on his own a count, and that the exceptions, or single lines, shall taken, as far as practicable, alternately by the sa William Sharp and William Fenn, if the said Willi Sharp shall require it.

"That the underwriting account shall commen on the 18th March, 1857, and shall be carried on, the subscription made, in the name of the said Willi Sharp; but the policies, losses, and averages shall at may be adjusted by the said William Fenn on 1 account.

"That the said William Sharp shall apply so ma of his attention and time to the purposes of t said business as may be essential to him; and the s William Fenn shall apply such part of his time a attention to the business as may be required for c ducting the same, but he is not to be precluded fro carrying on business as an underwriter in his name, and on his own account.

"That the said underwriting business shall be ca ried on for the term of three years from the March, 1857, after which the said business may determined, either by the said William Sharp or liam Fenn, on giving three months' notice to the eth on leaving the said notice at his usual or then 3 known place of abode in England, upon the expi

tion of which notice the said business shall cease al determine, and the accounts thereof be settled a wound up.

"That proper books of account, and all securita letters, and documents relating to the said busias shall be kept by the said William Fenn at counting-house, and proper entries made therein all such insurance transactions and things as usually written and entered in books of acco kept by persons engaged in concerns of a similar a

Under the above agreement Fenn carried on the underwriting business for Sharp, jun., until the time of the making of the policy on which this action is brought.

In August, 1859, the defendant's son, William Sharp, jun., married, and on the occasion of his marriage a deed of settlement was made and executed by and between Sharp, jun., and his intended wife, the defendant, and John Donnison, of which a copy is hereto annexed, and which is to be taken as part of

the case :

"This deed recites the several agreements between Sharp, jun., and Fenn above set forth, and the defendant's letter to Fenn of May 21, 1857, and the letter of Sharp, jun., to the defendant, of January, 1859, promising the annuity above mentioned. It also recites the intended marriage, and that in contemplation thereof it had been agreed that Sharp the younger should assign to the said William Fenn the elder and John Donnison all moneys then in the hands, and thereafter to come into the hands, of the said William Fenn in respect of the aforesaid underwriting business, on behalf of, and for the benefit of, the said William Sharp the younger; and should also transfer to them stock, being of the nominal value of 10007., in the London and North-western Railway, and stock, being of the nominal value of 500l., in the London and South-western Railway; and should likewise assign to them the policy of insurance hereinafter mentioned on the life of the said William Sharp the younger, for the sum of 30007., to be held respectively by them upon the trusts and for the intents and purposes thereinafter expressed; and that in pursuance of the said agreement, the said William Sharp the younger did, previously to the execution of the said deed, transfer all the said railway stock into the name of the said William Sharp the elder and John Donnison, in the share register-book of the aforesaid railway companies respectively, to be held in trust for the said William Sharp the younger, until the solemnisation of the said intended marriage; and after the solemnisation thereof, upon the trust and for the intents and purposes thereinafter declared and expressed concerning the same. The deed then witnesses, that, for the considerations therein mentioned, Sharp, jun., assigned to the defendant and the said John Donnison all and singnlar the sums of mony, earnings, profits, and emoluments which were then in the hands of the said William Fenn, and all such as should come into the hands of the said William Fenn on account of, or in respect of, the underwriting business, and which, according to the terms of the said agreements of the 17th March, 1857, of the 1st November, 1858, and of the 2nd of the then present month of July respectively, or otherwise, were, or would or might become, payable to the said William Sharp the younger, together with full power and authority to and for the said William Sharp the elder and John Donnison, and the survivors of them, and the executors and administrators of such survivor, in the name or names, and, as the attorneys of the said William Sharp the younger, to ask, demand, sue for, recover, and

younger

receive and give effectual receipts and discharges for th said moneys, proceeds, and premiums expressed an intended to be thereby assigned, and every or any pa thereof; and the said William Sharp the thereby order and direct the said William Fenn, a other the agent, deputy, and attorney for the ti being of the said William Sharp the elder and Jo Donnison, their executors, administrators, and assig accordingly, to have and to hold the said moneys, prot and other the premises therein before mentioned. a thereby granted and assigned, or expressed and i tended so to be, unto the said William Sharp the d and John Donnison, their executors and administ tors and assigns, in trust nevertheless for the s William Sharp the younger until the said intend marriage between him and the said Maria Louisa P kins Crammey should be solemnised; and from a after the solemnisation thereof, upon the trust a for the intents and purposes thereinafter declared a expressed concerning the same (that is to say, up trust, with and out of the moneys and profits ats from the said underwriting business), in the first pa to pay unto the said William Sharp the elder by la yearly payments, on the 1st January and the 1st Ju in every year, and the first half-yearly payment to made on the 1st January next after the solemnisa of the said intended marriage, an annuity or ves sum agreed or undertaken to be paid by the said W liam Sharp the younger to the said William Sharp elder, by the said thereinbefore-recited memora or writing, under the hand of the said William Sh the younger, dated the 1st January, 1859; and sub and without prejudice to the payment of the afores annuity or yearly sum to the said William Sharp t elder, upon trust in the next place with and out of t said moneys, profits, and premiums, to pay the sa William Sharp the younger by equal half-yearly pa ments on the day above mentioned, and the first p ment thereof to be made on the 1st January next after the solemnisation of the said intended m riage, an annuity or yearly sum of 5001, free from ductions; and also upon trust to pay to him, when as same became due, the dividends, interest, and an proceeds of the same aforesaid. Railway shares : also the resulting income of the surplus moneys, I fits, and premiums to be accumulated and invested thereinafter directed; and upon further trust to cumulate and invest, in manner hereinafter expres the residue or surplus, after the payments aforesai the said moneys, profits, and premiums thereinbe assigned, until the same should amount to or be of value of 35007. sterling, and should remain of amount or value, without reduction on account losses, in the aforesaid underwriting business, and the full term of two years; and from and after time when the said accumulation amount to re for two years of the amount of 35001, without tion as aforesaid, then upon trust with and out of proceeds of the said underwriting business to payi the said William Sharp the younger, by such yearly payments as aforesaid, an annuity or sum of 750l., free from deduction, in addition income of the said accumulations, and of the divid and annual proceeds of the said railway shares to accumulate and invest in manner thereinste pressed the residue or surplus, after the pa thereinbefore mentioned, of the profits of the sa derwriting business, until the same should amou or be of the value of 85001, sterling, and shoul main of that amount or value without reductio account of losses as aforesaid for the full term of years; and from and after the time when the accumulation should amount to and remain for years of the amount or value of 85001, without

tion as aforesaid, then upon trust to resign the moneys and profits arising from the aforesaid underwriting business, unto the said William Sharp the younger, his executors, administrators, and assigns absolutely."

After the marriage the said deed of settlement was acted on by the defendant and Donnison, the rustees mentioned therein. Considerable losses were made in the underwriting business of Sharp, jun., after his marriage, on policies signed in his name by Ir. Fenn under the above agreements; and the deendant, being called upon by Fenn, under the deendant's letter of the 21st May, 1857, made advances f money to Fenn to a considerable amount to meet be losses so sustained. The underwriting business ras carried on by Fenn, as above mentioned, in the ame of Sharp, jun., until the 19th February, 1860, hen he was made a bankrupt.

Sharp, jun., did not keep any banking account. enn received and paid all moneys for him in respect f the underwriting business, and gave him cheques com time to time for such sums as Sharp, jun., drew at of the business. Those cheques were paid by harp, jun., into the defendant's banking account with lankey & Co., on whom the defendant allowed him > draw cheques until November, 1859, when the deendant put a stop to his son drawing cheques. Fenn raw his salary out of the funds of the underwriting usiness. The first half-yearly payment of the anmity of 5001. a year, secured to the defendant by the narriage settlement, became due to the defendant on be 1st January, 1860, and was paid to the defendant y Sharp, jun., on the 7th March, 1860, but has since been claimed by the assignees under the son's bankuptcy from the defendant as an undue preference, and repaid by him.

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 500l. secured to him by the said settlement.

On the 22nd December, 1859, the plaintiffs effected marine policy of insurance at Lloyd's, in the sual way, for the sum of 27001. on the ship Sheperdess for twelve calendar months, in any trade, nd from and to any port, commencing sailing from Whampoa, 81. 88. per cent. premium. This policy was 4 the form annexed to this case, and was subscribed ♬ several underwriters for various sums, as therein pears, and, amongst others, by a clerk in the name Sharp, jun., before he stopped payment, for 100%. loss afterwards occurred upon this policy to the aintiffs by the perils insured against to the amount 100% per cent., and it is agreed that the underiters of the said policy are liable to the plaintiffs ereon to that amount.

The plaintiffs are wholly ignorant of the aforead arrangements and dealings between the defendat, his son, Fenn, and the committee of Lloyd's, and so of the marriage settlement.

In the month of September, 1861, the plaintiffs oved their claims under the son's bankruptcy; Copy of the affidavit in support of the proof acmpanies, and is to be deemed to form part of, this se. At the time of such proof, neither of the aintiffs was aware of the aforesaid arrangements d dealings.

The plaintiffs contend that the defendant, by effect of the instruments and facts above menned, became a partner or a principal in the underiting business carried on in his son's name, as above entioned, and as such a party to the said policy in spect of the sum of 100%. underwritten in the son's me as aforesaid.

The defendant contends the contrary; it is agreed that the Court may draw any reasonable inferences of fact.

The question for the opinion of the Court is, whether the defendant is or is not liable on the said policy as a partner with his son.

If the Court shall be of opinion that the defendant is liable, then it is agreed that judgment shall be entered for the plaintiffs for the sum of 1001.

If the Court shall be of the contrary opinion, then it is agreed that the verdict and judgment shall be entered for the defendant on the issues joined on the second and sixth pleas.

Brown, Q. C., for the plaintiffs.-The defendant was in partnership with his son. There was a secret partnership, and he is therefore liable under this policy. The fact that the business was made the subject of a marriage settlement can make no difference. The trustee of the settlement might be a partner as regards third persons. The defendant was to pay himself the annuity agreed on, and if at a certain time the profits should exceed the sum named as the annuity, then the defendant was to receive a greater share of such profits. [He cited Ex parte Hampers (17 Ves. 403); Ex parte Garland (10 Ves. 110); Wightman v. Watson (1 M. & S. 412); and Re Colbeck (Buck's Bank. Cas. 48).] Lush, Q. C., and Sir G. Honyman, contra.-The defendant was not a partner. The annuity paid to the defendant was only the interest on his advance to his son. The provision that the annuity should be increased with the profits never took effect. The trustees of a marriage settlement could not be partners. The advance by them was only by way of mortgage. If a person advances money on the security of a business, he surely is not a partner. The fact of a person sharing in the profits is only evidence of a partnership, and is not conclusive evidence. [They cited Cox v. Hickman (8 H. L. C. 268); Kilshaw v. Jukes (32 L. J., Q. B., 217); and Labouchere v. Tupper (11 Moo. P. C. 198).]

ERLE, C. J.-I am of opinion that our judgment should be for the plaintiffs. The question turns on what is the effect of the deed of settlement of 1859, and I am of opinion that the provisions of that deed made the defendant liable as a partner in the business. Now we must see what interest the defendant had, and what was the nature of the business; there was no stock, only the agreement with Fenn, who was to carry on the business; and in fact if the business proved to be a losing concern, the defendant was more interested than any one. It has been said that it was merely an advance made by the defendant on the security of the business, but this is not so. The contract between the two Sharps shews what was the position of the defendant, and the nature of the business which afterwards became the subject of the marriage settlement, and by this marriage settlement the younger Sharp assigned to the defendant and to another person, as trustees, all the profits then or to come into the possession of Fenn; and the first trust being to pay the annuity to the defendant. Now, assuming that the business only realises 5007. per annum, then the defendant would have it, and the son would take nothing; and in a business of this kind it may well be, that the business is a good business to-day and worth nothing to-morrow. If by agreement the whole stock-in-trade was handed over to a person for a consideration, I should say that there was a partnership. By the terms of the agreement, the whole gross profits were to go to the defendant, who was to pay an annuity for himself of 5007. On the facts, it appears to me, that the defendant must be considered in law as a partner, and liable as such.

BYLES, J.-I am of the same opinion. It is clear from the deed that the defendant is in law a partner, and is liable as such. The deed provides, that the defendant shall receive a sum equal to one-fourth of the profits. The deed was drawn with the express intention of avoiding the defendant's liability as a partner. Then there was the stipulation, that if the profits exceed 5001, the amount of the annuity to be paid to the defendant, then the defendant is to have onefourth of such surplus profits. What is this but a sharing in the profits and loss of the concern?

SMITH, J.-I am of the same opinion. Applying the usual test to the question, whether there is partnership, I think the defendant was a partner, and is therefore liable.-Judgment for the plaintiffs.

COURT OF EXCHEQUER.
SITTINGS AFTER EASTER TERM.

[Coram POLLOCK, C. B., MARTIN, BRAMWELL, and CHANNELL, BB.]

SCOTT v. BERRY.-May 30.

ber, representing three-fourths in value of the credi tors of the said John Berry whose debts respectively amount to 107. and upwards, have, before or after the execution hereof by him in writing, assented to and approved, and do hereby assent to and approve, of this deed, which is made, and intended to be executed registered, and carried into effect, in pursuance of and in manner provided by, the Bankruptcy Act 1861: now this indenture witnesseth, that in pur suance of the said agreement, and for the considera tions herein mentioned, they, the said John Berry James Knowles, and Benjamin Berry, do hereby for themselves, their heirs, executors, and administrators and each of them for himself, his heirs, executors, and administrators, doth hereby covenant, promise, and agree with and to the said parties hereto of the thir part, and with and to each and every of them, the they, the said John Berry, James Knowles, and Ber jamin Berry, or one of them, shall and will well an truly pay the said several promissory notes as an when they shall respectively come due; and shall a will also make and deliver to all the other creditors o the said John Berry like joint and several promissor notes, payable at the several times, and in manne

Inequality-Plea good after verdict.

A plea of a deed of composition, whereby the insolvent and two sureties bound themselves to give, and pay at maturity, promissory notes to the amount of 38. in the pound to all his executing and non-executing creditors, which deed was assented to by the requisite number, &c. of creditors, and in which was contained a covenant by the parties of the third part, the subscribing creditors, that they would accept the notes by way of composition, and on payment of them would give a release; the plea alleging a tender to the plaintiff; the deed being executed by the insolvent and by the sureties, but not appearing to have been executed by any of the creditors:-Held, after verdict, that the plea was a good plea on equitable grounds.

Action on a bill of exchange.-Plea, on equitable grounds, that after the accruing of the plaintiff's claim, the defendant was indebted to the plaintiff and divers other persons; and thereupon, while he was so indebted, a deed was made in the following terms:This indenture, made the 28th June, 1864, between John Berry, of Gomersal, in the county of York, maltster, of the first part; James Knowles, of Gomersal aforesaid, merchant, and Benjamin Berry, of Leeds, in the county of York, draper, of the second part; and the several other persons whose names are hereunto subscribed, and seals affixed, of the third part. Whereas the said John Berry, being unable to pay his creditors the full amount of their debts, hath proposed to pay to the whole of his creditors a composition of 38. in the pound upon the several debts: and whereas the said parties hereto of the second and third parts, who are creditors of the said John Berry in the several sums of money set opposite their respective names hereunto subscribed, have agreed to accept the said composition, on having the same secured by the joint and several promissory notes of the said John Berry, and of the said James Knowles and Benjamin Berry as his sureties, bearing even date herewith, and payable by two equal instalments, on the 20th August next and the 20th September following, and by the grant and assignment hereinafter contained: and whereas the said John Berry and James Knowles and Benjamin Berry have accordingly made, and delivered to each of the said parties hereto of the third part, their joint and several promissory notes for payment of the said composition at the several times, and in manner aforesaid: and whereas a majority in num

upon their respective debts; or shall and will pe such composition to each of the last-mentioned cred tors, at the several times and in manner aforesaid and the said several parties hereto of the third par and the said James Knowles and Benjamin Berry ( far only as relates to their respective debts), for them selves severally and respectively, and for their severa and respective heirs, executors, and administrators, d and each of them doth, hereby covenant with the sai John Berry, his executors and administrators, tha they and each of them have accepted, and will accept the said promissory notes, by way of composition an payment of 38. in the pound upon the amount of the several and respective debts, in full discharge of th said John Berry, his executors and administrator and his and their estate and effects from the sam and that, upon payment of the said promissory note they and each and every of them will, at the cos and charges of the said John Berry, his executors administrators, execute and give to him or them general release and discharge from their said sever and respective debts. And this indenture further w nesseth, that in further pursuance of the said agre ment, and for the considerations herein mentione and also in consideration of 10s. to the said Jo Berry now paid by the said James Knowles and Be jamin Berry (the receipt whereof is hereby ackno ledged), all and every the real estate of the said Jo Berry, whatsoever and wheresoever, and of whatev tenure the same may be, together with all and s gular the privileges and appurtenances to the se belonging or appertaining; and all the estate and i terest, as well legal as equitable, of the said Jo Berry therein and thereto, to have and to hold t same real estate, with the appurtenances (subj nevertheless to such mortgages and other incu brances, if any, as the same is now subject to), and to the use of the said James Knowles and B jamin Berry, their heirs and assigns, upon trust th they, the said James Knowles and Benjamin Ber or the survivor of them, or his heirs, or their or assigns, do and shall, with all convenient speed. the said real estate and premises hereby conver either together or in parcels, and either by public a tion or private contract, with full power to buy in to rescind any contract for sale, and to resell, with being responsible for any loss which may be oc sioned thereby, and to do and execute all such ag ments, acts, deeds, and assurances for effectuating &