1831. THOMPSON v. WILLIAMSON. habits. It appears in the report of the case of Peacock v. Peacock, that Lord Ellenborough entertained no doubt whatever: he excluded at once the idea of equal division, and directed the jury to take all the circumstances into their account, who I have no doubt, from their experience in the city of London, in which they carried on business themselves, found one fourth on the grounds stated, and the facts proved to be the proper division. But it is not merely Lord Ellenborough's decision on which I proceed here, but Lord Eldon's, for he sent the question to a jury; and if he had held that there was in the absence of a written contract a presumption of law in favour of equality, it would have been fruitless to have done more than send to a jury the question- · Are A. and B. partners? which is the first branch of the issue; and then for the second- Is there any thing in their connection with each other to alter, by special contract, the presumption of law for want of an express agreement? Those would have been the questions Lord Eldon would have sent to the jury; and when it came back, instead of merely making an observation in disparagement of the verdict-for it went to no more he would at once have said they had determined a question, which he had not sent to them; but if he had done so, it would have been a disparagement of his own direction by the issue: for he directed them to inquire what was the share and amount, and all he appears to have said on the matter afterwards coming before him was, "I do not exactly see on what ground the jury came to that conclusion." If he had known as much as my noble and learned friend or as Lord Ellenborough knew from what had passed before him in Guildhall, he would not have expressed his surprise; for it is not uncommon that that should be the proportion in the case of father and son. There was no new trial directed by Lord Eldon. It is said that they had acquiesced in the verdict, and, therefore, he was satisfied; but it appears that it was only as to the question of fact-the exact proportion of one fourth that Lord Eldon felt a doubt, not seeing how that was established. It is a mere observation expressing a doubt as to the ground on which the jury came to that conclusion; but if he had not sent that to the jury as a question of fact, and they had so found, as it appears to me, Lord Eldon would have set that right, when it came on for further directions. Such being the only matter laid before us with respect to English law, how stands the Scotch law as it appears from cases or the authority of text writers? The valuable authority of Lord Stair has been alluded to by my noble and learned friend. Mr. Erskine's is nothing in derogation of that authority, when accurately viewed; Lord Bankton's is an express affirmance of that authority, and then your Lordships have a case which has been cited, to the accuracy of which I hear no objection urged. I mean the case of Russell v. Anderson. There you find that the learned judge is dealing with this very proposition. He does not accede to this proposition of law as a general one; for he considers it to apply only to the predicament where parties associate on equal terms, both in stock and labour. In point of law, the party founds his plea on the equal rights of partners from which he derives the consequence, that if there be not indisputable evi 1831. THOMPSON v. WILLIAMSON, 1931. THOMPSON v. WILLIAMSON. dence of a different arrangement, equal rights must be presumed. What is meant by equal rights strictly applies to the shares you have equal rights to: shares which may be equal, or unequal, according to the circumstances of the case. He deals with this as the proposition; he cites Lord Stair, and Lord Bankton; he then states that where there is room for doubt, it must be sent to the jury; he then cites Peacock v. Peacock, and he supposes the case of a clerk admitted as a partner into Sir William Forbes's banking house; adding, that it could not be supposed in such a case, though it is that for which the Respondent must contend, that he would be entitled to an equal share of the profits with the heads of that house. This is an authority precisely in point, and there is no authority on the other side. Upon these grounds-taking it simply as a question of Scotch law, deciding nothing further, as it is our rule, or ought to be our rule, in no case to go further than the simple question before us; and saying nothing at all about Peacock v. Peacock, except to explain the discrepancy which is supposed to have existed between the Court of Equity and the learned judge at nisi prius; saying nothing respecting the law, except as a question of Scotch law, established by the decision of a learned judge, established by text writers of the greatest eminence, and established by decisions of the Court itself;-upon these grounds I concur with my noble and learned friend in advising your lordships to reverse the decision, and remit the cause to the Court of Session, in order that they may send the question to the Jury Court as they were in the course of doing, but for the impediment thrown in their way, by laying down a wrong position. Interlocutor reversed, and cause remitted to the Court of Session, with a direction that the question of the amount of share be sent to the Jury Court for trial. The Lord Advocate made a short argument on the cross appeal. He contended that whatever the house might do in regard to the question of partnership, they ought still to decide that Mr. Campbell had waived all claims for further payment for his services as a clerk, when taken into partnership. The Lord Chancellor interrupted him, by asking if this also was not a matter of fact, proper to be submitted to a jury. The Lord Advocate admitted, that it was in some degree a question of fact. The Lord Chancellor intimated, that both questions should be disposed of in the same way by reversing the interlocutor, so far as appealed from in the original, and in the cross appeal; and remitting the cause to the Court of Session, with an instruction to them to direct an issue or issues to be tried by a jury, in regard to the whole matters which were in dispute between the parties. 1831. THOMPSON บ. WILLIAMSON. O. was appointed, with five other trustees, under a deed which provided that every act done under the trust should be with the concurrence of at least three of the trustees. Three of the trustees advanced part of the trust-fund to K., one of the parties interested, upon the security of an insurance upon his life, in which act O. refused to concur. Upon the death of K. the insurance office, before payment of the money, required a discharge from all the trustees, of whom only three remained alive, in which discharge O. having refused to conupon a suit in the Court of Session, it was decreed that he should execute the discharge, and concur in all lawful and necessary acts to give effect to the trust. cur, July 7. THE Lord Chancellor.-This is an appeal from the Court of Session in Scotland. The case arises out of a trust-deed and disposition executed in the year 1802. By that deed the trustees who are named in the instrument being five in number, and to whom Colonel Kinloch was afterwards added, are directed to lay out a sum of 12,000l. for certain purposes upon lands in Forfar. The trustees acting under that deed laid out a sum to the extent of 80007. and upwards, on lands within the description mentioned in the deed, and afterwards employed 2400/., not in the purchase of lands, but in a loan to Colonel Kinloch, who was the heir of |