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The only question in this case seems to be this: Those which I have stated being the admitted principles of the Scotch law, is a sale by sample equivalent to a sale by bulk in market overt? Now, referring to the principles of the English law, I find that the landlord's right of hypothec in Scotland is to be compared to the right the owner has in England of recovering goods the property of which has been sought to be changed, but which cannot be changed by stealing those goods, but in which there is one exception exactly analogous to the exception to the landlord's right of hypothec in Scotland; namely, the goods being sold in market overt. Your Lordships will, I apprehend, require no argument to shew that the law, with respect to market overt in England, applies only to sale by bulk, and does not at all apply to sale by sample. Your Lordships are aware a case has been positively decided, that the whole sale must be completed in the market overt. There is a very celebrated case in Coke's Reports, entitled, "The Case of Market Overt;" in which it is held, that the goods must be sold in a shop accustomed to sell those goods, so that the possessor cannot change the property by selling silver-smiths' goods in a scrivener's shop, which was the question raised there; but the whole must be sold in the open market, not behind a screen or cupboard, but so that the passengers passing by could see it: they must be so sold that the transaction of the sale must be visible to passers by; that is the foundation of the principle. Your Lordships see, therefore, that the English law principle, with respect to sales in market overt, is precisely the Scotch law principle, applying in the one case to the new

1830.

DUNLOP

v. DALHOUSIE.

.1830.

DUNLOP

บ.

DALHOUSIE.

change of property feloniously stolen, and in the other case to the landlord's right of hypothec, which is peculiar to Scotland, and not unknown to this country. I have had a good deal of communication with very learned persons in Scotland as to the practice among tenants, flour factors, and merchants; and I find there was a great difference of opinion in the trade, as to the rights of the respective parties until this case of Lord Dalhousie. The largest corn factors in Scotland, whose transactions amount, probably, to as much as all the rest put together, say they never dreamed of such a risk being run; and that having transacted business to the amount of hundreds of thousands of pounds, they never yet thought of asking the question, whether the tenant was in arrear: but the decision in this case has created a great anxiety that the law should be settled one way or the other by your Lordships.

On the best consideration I have been able to give to this subject, on the ground on which the Scotch Judges put it, admitting there is no decided case, admitting that the other cases resorted to as authority for the decision do not bear them out; because in each of those cases there was a great doubt upon the fact whether the whole sale was in open market, and whether there was not collusion with the tenant on the principle of the law upon the application of the principle of market overt, which clearly is the doctrine to be applied in this case, when your Lordships find the landlord has, what he has not with us, the right of hypothec; it certainly appears to me, which I would state, however, with submission to your Lordships, that the grounds of judgment, though

at first they appeared to be incumbered with great
difficulty, from their being so irreconcileable to our
own decisions, are well founded. If the case had
been what we call doubtful, and it had been a
measuring cast between the two grounds of de-
cision, one
one should have leant very strongly
against a decision so greatly tending to fetter
commerce as putting aside an express sale by
sample; but, however inexpedient such a law may
be, and however much that inexpediency is to be
complained of by his Majesty's subjects in Scot-
land,-not only the dealers in corn, but all the con-
sumers of corn, however it
may call upon your
Lordships to apply, in your legislative capacity,
a remedy for this, yet in your judicial capacity you
have no course left but to affirm the almost unani-
mous decision of the Court below. All the Judges
were consulted; some of the ablest Scotch lawyers
have appended their names to this opinion, and
there is but one dissentient voice out of the whole.
It is not for Judges to decide, whether the law
shall be put in force or not; Judges have but to
administer the law; the Judges in Scotland have
administered the law as they find it; your Lord-
ships are now Judges by appeal on their judg-
ment, and in your judicial capacity, I humbly sub-
mit, your only course is to affirm that decision.
Under the circumstances of the case, my Lords, I
should not propose to your Lordships to give any

costs.

Interlocutors affirmed.

1830.

DUNLOP

2'. DALHOUSIE.

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Where there is no express contract between partners, it is not, according to the law of Scotland, a necessary presumption of law that the profits are to be divided in equal shares. But it is a question for a jury, upon evidence of all the circumstances (as goodwill, skill, capital, labour, &c.), what the proportion of interest in the loss and profit should be. As to English law, Quære.

10th Feb. LORD WYNFORD. It appears to me that the cases to which the learned Counsel have re

1831.

ferred are decisive of this case. The judgment
of the Court of King's Bench in the case of
Peacock v. Peacock does not appear to me to be
at all affected by the decision † of Lord Eldon in
the Court of Chancery, which has been referred
to. I have looked, also, at that which is an au-
thority, perhaps, higher than that even of the
noble Lord to whom I have alluded, in cases of
this sort; for though there can be no higher au-
thority in questions of English law, the opinion of
Scotch lawyers, upon questions of Scotch law, if
there is any distinction, ought to prevail over the
opinion of the highest legal authorities in this
country. It appears to me that the opinion of my
Lord Stair is decisive upon this subject, that the
* 2 Campb. 45.
† 16 Ves. 49.

Court of Session has taken a course which cannot be supported. The question in this case is, whether, when there is no agreement as to any specific share, the Court is bound upon a presumption of law to say that the profit and loss must be divided into equal shares. In the Court below, the Lord Ordinary had decided that it ought to be sent to a jury to consider, under all the circumstances of the case, what the proportion should be. The Court above, however, considered that decision of the Lord Ordinary incorrect, and so far reversed it that they took upon themselves to declare, and it is so stated in their judgment, that it must be taken as a clear principle of law that when there is no express contract varying the rights of the parties, the partnership property and the partnership profits must be equally divided.

I cannot help thinking that if that were the law it would be highly fit that it should be well understood, in order that the consequences might be guarded against; because the application of such a principle would undoubtedly prevent many partnerships which are beneficial to both parties, and especially to the party who takes the smaller share; because what person is there who is in the possession of an established business, in the possession of the goodwill of that business, that would take a clerk into partnership with him, if by the mere effect of taking him into partnership he was to confer upon him an equal share of all the profits? It would prevent young men from being advanced in life from the situation of clerks to the more respectable and more permanent situation of partners.

Whatever the convenience and inconvenience may be, if the law is so settled, your Lordships,

1831.

THOMPSON

v.

WILLIAMSON.

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