William Downe Gillon - Mr. Serjeant Spanki - Dr. Lushington v. Archibald Mackinlay and Others, for the Edinburgh and Leith Shipping Company - Mr. J. Campbel - Mr. Tinney [1831] UKHL 5_WS_468

UKHL
William Downe Gillon - Mr. Serjeant Spanki - Dr. Lushington v. Archibald Mackinlay and Others, for the Edinburgh and Leith Shipping Company - Mr. J. Campbel - Mr. Tinney
[1831] UKHL 5_WS_468
What facts and circumstances held (affirming judgment of the Court of Session) sufficient to establish that a party was a partner of a trading company.

Subject_ Process. —

Observations on the mode of pleading in the Scotch Courts.William Downe , proprietor of Downe's Wharf, was one of the original partners of the company of Downe, Bell, and Mitchell, wharfingers, London, in which he held a one third

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“By a separate unwritten but solemn agreement with the two sons-in-law and executor, I have obtained for you the choice of either continuing the partnership, or accepting, in lieu of one third of rent and one ninth of profits, the net sum of 500 l . per annum from 30th June last year.”
With reference to these arrangements, Colonel Gillon, of date the 13th of June, wrote Bell as follows:—a partner in the contract, by which I would be entitled to receive one third of the rent of 600 l . and one ninth of the profits of trade. In this situation of matters I have taken the liberty to request that you will have the goodness to give me your advice upon this subject:—1. Whether to remain as a partner; 2. Or to receive the 500 l . annually.”
“As a pledge has been given by all present for the new agreement then entered into, the covenants of which, I presume, you are made acquainted with, Mr. Forbes proposed for me, that, being at such a distance from London, I should be left at liberty to receive a regular payment annually of 500 l . in lieu of every thing, or continue

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Thereafter Colonel Gillon intimated that he would avail himself of the option allowed him by the subordinate verbal agreement entered into with Read and Atkins, and accept the annual payment of 500 l . These persons, however, refused to abide by this agreement, and after some correspondence an arrangement was effected. Another agreement was entered into (13th May 1813) by Colonel Gillon on the one part, and Read, Atkins, Bell, and Mitchell on the other, whereby it was “covenanted, stipulated, declared, and agreed, that neither the said Andrew Gillon, or his heirs, executors, administrators, and successors, shall be concerned in, or have any management or control of, the business carried on at Downe's Wharf under the firm above mentioned. 2. That during the period stipulated as the endurance of said partnership, either in virtue of a minute drawn up and signed at London in the month of June 1811, to which the said Andrew Gillon was (proposed to be) a party, or by any subsequent contract to be subscribed by the said Charles Read, George Atkins, William Bell, and Alexander Mitchell, as the sole partners now composing the firm of Downe, Bell, and Mitchell, they or their successors shall, in consideration of the sum of annuity after mentioned, be entitled to occupy and possess the wharf called Downe's Wharf, situate in East Smithfield aforesaid, and the buildings thereon, &c., and that without any let, stop, hinderance, or impediment from the said Andrew Gillon or his foresaids. 3. That the aforesaid Downe, Bell, and Mitchell, their executors, administrators, and successors, on the other hand, are and shall be bound and obliged, as they do hereby bind and oblige themselves and their aforesaids, to pay unto the said Andrew Gillon or his aforesaids the sum of 400 l . sterling per annum, during the space or period above referred to, in full of all that he or they can ask, claim, or demand as heritable proprietor or proprietors of the aforesaid wharf and buildings, or any parts thereof, as particularly described in the second clause of

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On this footing matters remained, without, however, any notification to the public; only it did not in fact appear whether the contract above quoted had been acted on, for although Colonel Gillon never in all obtained more than 406 l . from the company, he was in their books credited with one ninth of the profits.In 1814 the shipping company withdrew their vessels from the wharf. Downe, Bell, and Mitchell then owed them 843 l . 8 s . 3 d. In June thereafter the shipping company brought an action of count and reckoning against the London company and its individual partners, not including Colonel Gillon, and in this action they obtained decree for the above sum, with expenses; but on becoming acquainted with the above circumstances, they brought, in August 1822, a supplementary action for the amount against him as a partner. On his death this action was transferred against his son, William Downe Gillon, who, in defence, denied that either he or his father was ever a partner of Downe, Bell, and Mitchell. The facts or allegations in the case were fully detailed in revised and re-revised condescendences and answers.The Lord Ordinary (12th November 1829,) found “it proved that the defender's father, Lieutenant Colonel Andrew Gillon of Wallhouse, was a partner of the company of Downe, Bell, and Mitchell, wharfingers in London, and that the defender represents his father; and, before further procedure, appoints the cause to be enrolled.”

The Court, 30 Nov. 1830, adhered. *

William Downe Gillon appealed.Lord Chancellor .—My Lords, after fully attending to the facts of this case, as opened for the appellant, if I had felt that there was any

Footnote

* 9 Shaw and Dunlop, p. 90.

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Nevertheless, we are now to deal with the appeal; and the question is, whether, if they had sent the case to a jury, the jury, upon the facts before you, could have drawn any but one conclusion, namely, that there was a partnership? But I must say a word more on these pleadings, than which I cannot conceive any thing more vexatious, any thing that tends less to the elucidation of truth, or that tends more to involve the question at issue, and to prevent the parties from distinctly seeing what the question between them really is. You see the way a pleader proceeds in Scotland, when he draws a condescendence, is, first of all, to make averments of facts; but he does not confine himself to make the averment material to the question between the parties, but he instantly tacks to it a statement, by way of averment also, of all the details of the evidence which go to prove that fact which he has first averred. The pursuer here does not say, “I aver that Colonel Gillon was a partner, and I am ready to prove it. You may deny it if you please, and then we shall go to issue. I will establish it in evidence, and you may disprove it if you can.” But he says, “I will show that he wrote a letter on such a day, I will show that Forbes did so and so, and I will show that he gave authority to Forbes.” That is bad enough, for that is the evidence to prove the averment. But he does not confine himself to that, for he goes into minute particulars, stating how he shall show that Forbes is the agent, and how he is to prove that he did such and such things. Then, among the notable things averred here on the one hand and denied on the other, is, that three actions were tried in the Court of King's Bench, that there was an affidavit in support of the plea of abatement

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Footnote

* M'Donald v. Mackie and Co., ante, p. 465.

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The House of Lords ordered and adjudged, That the interlocutors be affirmed.Respondents' Authorities .—Livingston, 17th Jan. 1755 (Mor. 1455); 2 Bell's Com. 506; 1 Montague on Part. p. 4; Grace, 1755 (——); 2 Black. 998 (App. 39); De Grey, c. i.; Hoare v. Dawes , 1780; Dow, 371 (App. 65); Lord Mansfield; Lord Loughborough in Coope v. Eyre , 1 H. Black. 37, 1789 (App. 53); D. Argh.; Waugh, 1793 (——); 2 H. Black.; Bloxham, 7th March 1775; Mont. ii. p. 40, vol. i. pp. 4, 5, and 17.Solicitors: Spottiswoode and Robertson— Mundell,—Solicitors.