sition, but that this is not a case where the opinion of your Lordships goes to affirm the judgment; and your Lordships are aware that, where a contrary course is taken, it is generally deemed fit, for the satisfaction of the parties, and out of respect to the Court, (which I most unfeignedly entertain for the very learned persons who constitute the Court,) to assign reasons for the reversal; I shall, therefore, shortly follow my noble and learned friend in stating my view of the case. The point to which I wish to call the attention of the House is this: It is said that where parties are in partnership without agreement the presumption of the law is that there is to be an equal participation of the profits of the business. Now, for this, as a proposition of law, as has been correctly stated by my noble and learned friend, there is, I conceive, no ground. If it had been said that it was a presumption of fact, I could have better understood that than the statement that it is a presumption of law; for a presumption of fact may exist as a sort of ground on which a party proceeds, to be modified or affirmed by subsequent investigation of the fact, and, accordingly, I go further than my noble and learned friend. If I were trying at nisi prius the question what proportion the partners in a concern were severally entitled to,(that being the question of fact sent to an issue by Lord Eldon, in Peacock v. Peacock, and tried afterwards by Lord Ellenborough,)—I should be disposed to advise the jury, leaving the matter to them, that an equal division would be a convenient doctrine of fact, and form the ground for a convenient inference to be drawn in the absence of other evidence; but that would only be supposing that there was no other evidence in the 1831. THOMPSON บ. WIT LIAMSON. 1831. THOMPSON V'. WILLIAMSON. cause if there was any other evidence that could This is a proposition as to which I think the Court have been misled, in a case which does not appear to have been very explicitly stated, or to have occupied much of the attention of the Court: certainly it does not appear to have excited very great attention, for the Court appears to have fallen into this error, viz. to have laid down as an absolute presumption of law that which is only a presumption of fact. The doctrine goes this length, that whatever the circumstances might be, taking for instance the case of a banker's clerk who is taken into the house, which is put in one of the cases to which I will shortly advert, according to the decision of the Court, unless there be a special contract to exclude the legal presumption, the legal presumption shall give him an equal share of the profits, and shall exclude all evidence of the fact; excluding all consideration of the particular circumstances of the case. That is a doctrine which this interlocutor has embodied, and to that doctrine I cannot, any more than my noble friend, accede in point of law. My noble and learned friend, if he was sitting at nisi prius directing a jury, would, very probably, take that as the ground of his direction, as being the convenient division in the absence of other evidence to break in upon it. That is the line which I should adopt, considering it as a question of fact: and that is not peculiarly my view; for, in confirmation of the opinion of my noble and learned friend and myself, I would state to your Lordships that I have taken the opportunity which was afforded to me from one of the learned Chief Justices sitting in a chamber close by, as the argument proceeded, to communicate with him, and he informs me that he has no doubt upon this subject. When a case appears so clear which has been otherwise decided below, one doubts sometimes whether one is taking too confident a view of the case, and I wished to know whether the opinion and judgment of that learned Judge confirmed my own; and I have received an intimation that his clear opinion is precisely the same as that stated by my noble and learned friend, and to which I entirely accede, that where there is no evidence, (not shutting out evidence,) but where there is none, he should in all cases direct a jury to take into consideration the fairness of an equal division; but not discountenancing evidence, rather courting evidence, rather regretting that there was no evidence, and only having recourse to that presumption in the last resort for want of evidence. This is not the doctrine of the Court below, for they say we do not court evidence; we, on the contrary, shut it out; for we conceive we are bound to give effect to this as a legal presumption to overrule it. It is more satisfactory, in deciding on appeals from the Scotch Courts, where it can be done, to 1831. THOMPSON V. WILLIAMSON. 1831. THOMPSON 2'. WILLIAMSON. refer to cases in the Courts of Scotland, than in those of England. Nevertheless, the greatest deference is due to the authority of English Courts, whether of common law or of equity, in mercantile questions, because our law in that respect purports to proceed on the same principles as theirs; and I should with difficulty attempt to select any one chapter of the Scotch mercantile law which differs in its principles, or is intended to differ in its principles, though there is in some respects a difference in its details, from the law of England. Undoubtedly, if the cases in the Scotch Courts had been founded on different principles, and running in an opposite direction to ours, we should have been bound to prefer their authority to ours in such a case, but there appears to be no distinction. I will first say a word with respect to the authority of the civil law, for I see that it is adverted to in some of the text writers. I deny that the civil law is of any authority in the Scotch law any more than it is in the English common law. Much of weight is to be ascribed to the authority of the makers of, and the practisers under, that most venerable system of jurisprudence, highly recommended by its great antiquity, by the number of ages during which it existed, by the numberless millions of people whose various concerns it regulated during those ages, and above all, by its beautiful symmetry, by its unexampled precision and fulness, by the consistency in principle of all the arrangements of that code. Nevertheless, it has no direct weight as an authority in the courts either of Scotch or English law, whatever respect may belong to it as a monument of the wisdom of old times, and the ability of learned men. But if there is any one point on which the authority of the civil law shall not be taken to rule points in our day, it is in questions of mercantile jurisprudence, where the defective nature of ancient commercial dealings, and commercial institutions connected with them, and growing out of them, necessarily makes that code of infinitely less authority in mercantile than in other cases. I deny not that the rule laid down in this interlocutor was the rule of the civil law: it may be taken undeniably to have been so; and that in order to exclude the inequality of shares of profits, it was requisite that there should be an express, stipulation, in the absence of which an equal division was held to be the presumption; I may say the presumption of law, a presumption by jurists, not to the extent of excluding an express contract, but held to be a presumption of law, as stated in this interlocutor. But I deny the authority of that as a direct authority; I deny the weight of it in a question of mercantile law, in mercantile times, and in a mercantile country. The authorities of the English law are the other way; and as to questions of partnership, between partners, although one court has peculiarly the cognizance of these, namely the Court of Equity, inasmuch as in the courts of law they are considered as one and the same person, yet the question of the share in profits between partners comes with peculiar advantage under the cognizance of a learned judge like Lord Ellenborough, and a special jury of merchants in the city of London, who declare what is the result of the facts: no judge ever had greater experience in mercantile law, and no men are better able than those juries to decide by their good sense and mercantile 1831. THOMPSON V. WILLIAMSON. |