or lodged with the cashier for the time being of the company, and to be applied in taking up the drafts of Harris, and for the purposes of the business, in reimbursing Davis and the paying the 1007. a year to Harris; after payment of the advances by Davis, with interest as aforesaid, the profits of the business to be divided at the end of every year between the said partners in the proportions aforesaid; that Harris should not, either before the nomination by the said Davis, his executors or administrators, of a person or persons to be a partner or partners in the said business, or during the continuance of the said co-partnership, except with the permission in writing first obtained of the said R. F. Davis, his executors or administrators, or the said co-partner or copartners, carry on any business on his own account or any other business; that he should use his best endeavours to promote the success of "the co-partnership business thereby agreed to be established," and until such nomination as aforesaid, and after such nomination of the said co-partners, should every year during the continuance of the said co-partnership make out accounts, &c., of all monies received and paid by and on account of the said co-partnership, and of all gains or losses which should have accrued or been sustained in the said business, and of all debts, &c., and of all other the joint-stock or effects then belonging thereto, so that the precise state of the business might be clearly ascertained; the estimate to be signed or subscribed by each and every of the said partners. Previously to ascertaining the state and condition of the said joint trade in manner last mentioned, no division of the profits of the preceding year was to be made. Harris, until the nomination of such person or persons as aforesaid by the said Davis, his executors or administrators, and after such nomination the said partners, was and were to give to Davis, his executors or administrators, his promissory note, or their joint promissory note (as the case might be) payable on demand, for the amount of each and every draft so to be made by Harris, or by the said Harris for himself and partner or partners, or by his said partner or partners, on the said company; and also a like promissory note for every sum of money so to be advanced by the said

R. F. Davis as therein before mentioned. Harris, his executors or administrators, was to stand possessed of the term as a trustee for the purposes of the said co-partnership, and should not, without the consent in writing of the said Davis, his executors or administrators, or of the said partner or partners, give notice to the company to determine the lease, &c. If at any time during the said co-partnership, and after the determination thereof, any dispute should arise, &c., or of and concerning the true construction and meaning of these presents, it was to be referred to arbitration in manner therein mentioned. The person or persons to be nominated by the said Davis, his executors or administrators, as partner or partners in the said business might at any time thereafter sell and dispose of his or her share or shares in the said business, &c., to any person or persons, who should thereupon become a partner or partners with the said Harris in the said business. If Harris should die in the lifetime of his present wife, his share in the business was to devolve upon and be enjoyed by his then present wife for the benefit of either herself alone, or if she should have children, for the benefit of herself and children, but the management of the business was to be vested in such person or persons as the said partner or partners entitled to the largest share in the said business should direct. If the wife should die in Harris's lifetime (which happened), the share of Harris in the business was on his death to cease, and the partnership thereby covenanted to be entered into by Harris should so far as related to the said Harris, his executors or administrators, be at an end; but the executors or administrators of Harris should be entitled to be paid by the surviving or continuing partner or partners such a sum of money for his share, &c., as should be fixed by arbitration. Subject to the last proviso, Harris was to be at liberty to sell his share; provided that before such sale he should have given a notice in writing of his intention to each of the said partners, and in such notice should offer to sell his said share to the other or others of his said partners, at a specified price, &c. If Harris should die before the nomination of a person or persons to be a partner or partners in the said business, the interest of Harris, his executors or administrators, in the said

business, and the capital, stock-in-trade, &c. should cease. If Harris died in the lifetime of his wife, his one-third was to devolve on his then present wife, and Davis, his executors, or administrators, was to be at liberty to nominate a person or persons to carry on the business with the wife for her benefit as to one-third of the business, and for the benefit of such nominee or nominees as to the other two-thirds, subject as aforesaid. If the death of Harris previous to the nomination of a partner or partners, should happen after the death of his then present wife, then Davis, his executors or administrators were empowered to nominate a person or persons to carry on the business for the benefit of such nominee or nominees, but subject to the conditions and provisions thereinbefore contained.

The bankrupt, accordingly, commenced trading at Blaenavon and the other places, under the firm of John Harris & Co., and continued so to trade until his bankruptcy, which took place on the 12th of February 1863. Davis became surety for him to the Blaenavon Iron and Coal Company, as provided by the bond, and advanced large sums of money to him, considerably exceeding 1,2001. The bankrupt, from time to time, made payments on account and in part satisfaction of such advances, and accounts were from time to time agreed upon between them.

Davis died on the 24th of November 1861, without ever having exercised the right of nomination reserved to him by the terms of the bond, having by his will appointed his son, the appellant, his executor. The testator's estate was now being administered in Chancery, in a suit of Davis v. Davis, and the chief clerk of Vice Chancellor Wood, by his certificate, had found a debt of 670l. 78. 4d. to be due from the bankrupt to the estate of the testator, including interest up to the end of 1861, and by an account subsequently agreed on between the bankrupt and the executor, and made up to the 1st of January 1863, the bankrupt admitted himself to be then indebted to the testator's estate in 693l. 3s. 7d., for which amount the proof was tendered.

On the 4th of May 1863 the question of the alleged partnership was argued at length before the Commissioner; who came to the conclusion, upon the construction put by

him on the terms of the bond, that the testator became, upon the execution thereof, and continued up to the time of his death, a partner with the bankrupt, and that the bond was an attempt to secure the profits of the business without incurring any liability for its losses.

From this decision the executor appealed.

Mr. W. M. James and Mr. Bagshawe appeared for the appellant.

Mr. Lindley, for the respondents.

Cox v. Hickman, 8 H. L. Cas. 268, was cited.

The LORD CHANCELLOR (July 18).—This is an appeal from the decision of the learned Commissioner of the Bristol Court of Bankruptcy rejecting a proof tendered by the appellant, who is the executor of a gentleman named Richard Francis Davis. The ground on which the Commissioner rejected the proof is, that there was a partnership between Richard Francis Davis and the bankrupt John Harris. I agree with the learned Commissioner in this, that the question depends wholly upon the conclusion to be derived from a peculiar instrument, a bond dated the 7th of January 1856, and which is an ingenious piece of mechanism. It appears that Mr. Richard Francis Davis was the manager or managing director of an iron and coal company in Wales, called the Blaenavon Iron and Coal Company. It seems to have occurred to Mr. Davis that it would be a profitable speculation to establish general shops in three localities in Wales, for the purpose of supplying the goods that would be required by the miners and other persons employed by the company, and he accordingly made an arrangement with the bankrupt, John Harris, that John Harris should carry on that business. The terms of the arrangement are embodied in this bond. They were, that the Blaenavon Iron and Coal Company should lease three houses fit to be converted into shops, in three different localities, to the bankrupt Harris; that Harris should purchase the goods necessary for the business, and should pay for them by drafts upon the Blaenavon Company. Those drafts were to be honoured by the Blaenavon Company, upon the guarantee of Mr. Davis. Mr. Davis was to be the surety of Harris for the payment of those drafts to the Blaenavon Company,

after they were honoured by the Company. It was also arranged that Davis should advance to Harris sums of money to enable him to fit up the premises and shops, and to commence the business. It was then arranged that Harris should be the manager of the business for the term of eight years, and should receive, as remuneration for management, the annual sum of 100l. a year, and an allowance for the board and lodging of himself and his family. And it was then arranged that all the profits resulting from the business should be applied, in the first place in payment of Harris's salary, and then the expense of his maintenance, and then in payment of the monies advanced by Mr. Davis, together with interest at the rate of 5l. per cent. thereon; and, subject thereto, that the whole of the profits should be regarded as profits of a partnership, which Mr. Davis reserved to himself the power of creating, by nominating any person or persons whom he should think proper to select to become partners with Harris in the business. The result, therefore, of the arrangement was, that until the partnership should be created by Davis, there might be, if there were sufficient profits for the purpose, a sum of money, the division of which would be suspended until the formation of that partnership. The terms of the deed are very peculiar. The learned Commissioner appears to have considered that they amounted to a present partnership. I think in that he has mistaken the effect of the deed. No partnership can possibly arise until the person to become partner has been nominated by Davis; and I am by no means of opinion that there is any present contract of partnership between Harris and Davis. And the criterion that there is not, may be taken to be this, that supposing Harris to have become bankrupt before Davis had nominated a partner, then any money reserved as profits to be hereafter distributed between the partners when the partnership was formed, would, by the operation of that bankruptcy, be the property of Harris, the power of creating the partnership being put an end to by the event of such bankruptcy. I think, therefore, that all the provisions of the bond on which the learned Commissioner has relied as indicating the creation of a present partnership, ought to be construed, with reference to the general intent

of the bond, as provisions which shall become operative only subject to the condition and after the nomination of a partner by Davis, an event that never took place. The bankruptcy of Harris took place before there was any nomination of a partner, and in reality, therefore, there was no contract of partnership, for this plain reason, that there was no individual to answer the description and to fulfil the capacity of partner with Harris. It is impossible to hold that the power of nominating a partner given to an individual constitutes that individual himself a partner. It is true that the arrangements which are contained in the deed would probably absorb the whole of the profits before the possibility of any division between the co-partners. But then that is the result of the contract of the lien between Harris and Davis, which, I think, is well constituted by the bond, and is not at all affected by, or merged in, the power that Davis reserved to himself of hereafter creating, if he should think fit, a partnership between some nominee of his own and Harris.

I must therefore take the only subsisting contract between Harris and Davis, at the time of Harris's bankruptcy, to have been the contract of debtor and creditor, in respect of the advances made by Davis to Harris, and the payments made by Davis on account of Harris; and, consequently, I think the proof ought to have been admitted, supposing the figures to be correct, into which, of course, I do not enter. That the executor of Davis had a right in respect of his testator's advance to prove against the estate of Harris is, I think, clear. It has been faintly suggested that Harris was in reality only the agent of Davis. I do not think there is any foundation for that suggestion, or that that view of the case can be supported. Mr. Harris, no doubt, had a substantive and independent interest. In truth, Mr. Harris would he entitled to the whole of the profits after the payment of Mr. Davis, in the event of no partnership (which has been the fact) having ever been created by Davis nominating a person to become a partner. I must, therefore, reverse the order, and declare that the executor is entitled to prove in respect of the debt due from Harris to his testator at the time of the bankruptcy.

ACCOUNT-against a manager of a colonial estate.
See Administration of Estate, Bernard v. Davies.

See Chief Clerk's Certificate. Mortgage.
Partners. Trade Mark.

ACQUIESCENCE. See Ancient Lights. Baron and
Feme. Breach of Trust. Contributory. Mort-
gage.

ADMINISTRATION OF ESTATE-In an administra-
tion suit an inquiry as to wilful default will not
be directed upon a mere general allegation of
neglect. Some particular instance must be alleged
and proved, so as to raise at all events a case of
suspicion in the mind of the Court. Massey v.
Massey, 13

If an absolute owner in fee of a West India
estate appoints a manager, he is entitled to a lien
on the inheritance for what is due to him on ac-
count of his management, and the costs of the
cultivation. But if appointed by a tenant for life
he can acquire no lien on the inheritance for the
costs of such management and cultivation after
the death of the tenant for life, yet if the
emblements are growing on the estate at
the decease of the tenant for life, he will be en-
titled to a lien for sums expended in their produc-
tion, if the person in remainder is entitled to the
benefit thereof. If, upon notice, the manager
refuses to give up possession to the remainderman,
and claims a lien on the estate for monies ex-
pended during the life of the tenant for life, he
will be treated as a mortgagee in possession, and
on such principle accounts will be directed against
him. If a mortgagor (owner in fee) of a West
India estate appoints a manager and dies, the
costs of management and cultivation are not a lien
on the estate against the mortgagees, who have
NEW SERIES, 32.-INDEX, Chanc. and Bankr.

not acquiesced in the appointment. Bernard v.
Davies, 41

Testator directed payment of his debts, &c.,
and gave all the residue of his real and personal
estate to his wife and another person, appointing
them executrix and executor, upon trust to pay
the income to his wife for life, for her own use
and the bringing up and educating his children;
and after her decease he made certain specific
gifts, one being to his daughter Fanny Charlotte,
of his messuage and premises situate No. 4, Turn-
ham Green Terrace, held of the Prebend Manor.
And there was also a general residuary gift to
the wife. The wife borrowed 6007. in aid of the
personalty and residuary realty, and therewith
paid debts, and died. It was held, that in mar-
shalling the assets, the whole income received by
the wife during her life, as well as the corpus of
the first residuary gift to her, was liable for costs,
before resorting to the specific gifts. Also, that a
small piece of garden severed from the house No.
4 by a road, but held under the same manor and
usually occupied therewith, passed by the devise.
Hibon v. Hibon, 374

A creditor of a testator, although not either
plaintiff or defendant, may, after decree in an
administration suit, with a view to establish his
debt in equity against the testator's estate, obtain
an order that testator's executor may make an
affidavit stating the documents in his possession
relating to the claim of the creditor-so held, by
the Lords Justices, overruling a decision of one of
the Vice Chancellors. Re M Veagh and M'Veagh
v. Croall, 521

Where one of two partners has died, and after
his death the surviving partner has become bank-
rupt, and the joint creditors have received a divi-

A

dend under the bankruptcy out of the joint estate, but have not been paid in full, they will, in the administration in Chancery of the estate of the deceased partner, be entitled to come against so much only of his estate as may remain after payment of his separate creditors. Lodge v. Prichard, 775

Advances to wife. See Baron and Feme.

Separate use. See Power of Appointment.

See Debtor and Creditor. Investment. Lien. Trade Mark. Will.

AFFIDAVIT. See Chief Clerk's Certificate. Costs.

ALIENATION. See Baron and Feme.

AMBASSADOR. See Jurisdiction.

AMENDMENT-Where a substantial point is taken at the bar upon the evidence, but is not sufficiently raised upon the pleadings, the Court may either give leave to amend or dismiss the bill without prejudice; but the practice of allowing a cause to stand over for amendment should be very sparingly resorted to, and only upon special grounds. Gossip v. Wright, 648

ANCIENT LIGHTS-The plaintiff, the owner of a house with ancient lights, having rebuilt it with additional windows, receiving light and air from the defendant's premises, the defendant proposed to build so as to obstruct these new windows, and in so doing would necessarily also obstruct the ancient lights. It was held, on the authority of Renshaw v. Bean, that he had a right to do so, and an injunction was refused. But it was held, the plaintiff, upon his undertaking to close up the new windows, was entitled to an injunction on payment of costs. Weatherly v. Ross, 128

If an adjoining owner knowingly permits a messuage and premises to be rebuilt of an increased size and height, with the alteration of ancient lights, and the opening new lights upon an additional floor, he cannot object to them after they are complete, or assert a right to raise a party-wall, and build upon his own property so high as to render the new buildings less accessible to light and air than they were at the completion of the work. Cotching v. Basset, 286

ANNUITY-Testator gave leaseholds to trustees upon trust to receive the rents and profits and to pay the annual sum of 60l. to H. for life, and after the death of H. to raise by sale or mortgage the sum of 400l. for the children of H, and after the death of H. and the raising and payment of the 4007., to assign the said leaseholds, or such part thereof as should remain undisposed of, unto T. absolutely. The income proving insufficient to satisfy the annuity, it was held that it was chargeable upon the corpus. Phillips v. Gutteridge, 1

Testator directed his trustees to set apart out

of his personal estate 10,000l. consols and to pay the dividends thereof to his sister for life, and after her decease to retain so much of the 10,000l. as should be sufficient to realize the yearly income of 150l., and to pay the dividends of the trust fund so retained to his nephew until he should become bankrupt, or assign away or encumber his interest, in which cases the trust declared for the benefit of his nephew was to cease and determine, and the said sum of 10,000l. was to fall into testator's residuary estate. The nephew died without having become bankrupt, or encumbered his interest. It was held, the interest given to the nephew was not an absolute interest, but one only for his life. Banks v. Braithwaite,

198

Marriage will not determine an annuity given to a feme sole for life until she shall be bankrupt or insolvent, or shall assign or dispose of it, or do any act whereby the annuity, or any part thereof, shall be vested, or become liable to be vested, in any other person. Bonfield v. Hassell, 475

Testator leaving large property, real and personal, gave, by his will, elaborate directions as to realization, and gave to his executors and trustees 4007. a year each for five years after his decease, which he called "annuities or allowances, a sufficient sum to be set apart for that purpose. He then directed a general conversion of all his personalty not specifically given, and investment in Government funds or upon mortgage, to be divided into thirteen parts, which parts he gave to thirteen persons therein named for life, with remainder to their children. And testator gave power to his trustees to retain any part of his property in the same form as at his decease, and directed the income of the part retained to be applied in the same manner as the income of the proceeds of sale. It was held, the gifts to the executors were to be regarded as annuities payable out of income; also that the tenants for life were entitled to the actual income accruing due during the first year after testator's decease on property remaining unconverted. Scholefield v. Redfern, 627

Return of consideration stated in the deed. Edwards v. Williams, 763

See Legacy. Legacy Duty.

ANSWER-A bill being dismissed with costs, a new bill was filed, neither seeking discovery nor an answer; but a voluntary answer was put in, alleging that the new bill was the same in substance as the original bill, and as evidence thereof a print of such original bill was appended to the answer. On motion to take such answer off the file for irregularity, as being a schedule of documents within the terms of the Orders of March, 1860, it was held, the case was neither within the language nor the spirit of the Orders, and the motion was refused, with costs. Wright v. Wilkin, 227

APPORTIONMENT-Lady M, being entitled under