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should be given, but this would be narrow ground on which to decide the case. My impression is, that the notice to treat relates to the time at which notice is given that the premises are to be taken compulsorily, which notice, whether given in the form of a notice to treat or a notice to quit, is equally binding. The notice of intention to take is not a notice that " we intend to take, if we should afterwards make up our minds to give a notice to treat, but not if we do not," but a notice that we have made up our minds to take, and we give you six months' notice thereof by which you are bound by reason of the Act of Parliament." And whether the notice to treat be given first, or the notice to give up possession, the giving of the first notice is the date to which all questions of compensation and jurisdiction are to be referred. It cannot be denied, if Morgan v. The Metropolitan Railway Co. (6) be good law, that on receiving the six months' notice to quit, the occupier is entitled to leave and take all the steps requisite for leaving and getting a new house, and as to such matters it cannot be denied that any compensation he may legally be entitled to, is to be referred to a period before the expiration of the six months' notice to quit, and if so, why is not this to be so for all purposes? In applying the Lands Clauses Consolidation Act after section 34 of the Local Act, we must take the estate of the tenant when notice was given. If we apply this rule without reference to the provision as to giving up possession, there is no doubt that on January 28, 1869, the plaintiff had more than a year's interest, and section 34, which is not specifically directed to tenancies from year to year, but applies to all persons, and was passed in order on the one hand to prevent persons being suddenly disturbed, on the other to allow the city authorities to get possession soon, relates to the possession, and therefore it leaves the question of compensation for the person's interest untouched, and deals only with the possession, no matter what may be the interest. The result, therefore, here is that the plaintiff had more than a year's interest, and is entitled to have compensation assessed by a jury.

KEATING, J.—I am of the same opinion. The time from which the plaintiff's interest is to be computed is the date of the notice. Here the notice embraces both a notice to treat and a notice of intention to take, but I agree irrespectively of this, and on the general question, that still the interest is to be determined by the date of the notice of intention to take, even if it does not involve a notice to treat, for Morgan v. The Metropolitan Railway Co. (6) decides that such a notice binds the defendant and compels him to go on and to take and compensate. The six months' notice relates only to the possession. It is said, that because such a notice is required, the period for determining the interest of the plaintiff is the end of the six months, but this is not so, for the notice of intention to take is binding. 34 merely relates to the possession, and contemplates that compensation will be assessed before the lapse of the six months, and if so, from what time is the interest of the plaintiff to be computed? Why, from the date of the notice of intention to take. The section means that the premises are not to be taken for six months, and in the meanwhile that the steps to assess compensation be taken.

Section

BRETT, J.-It is clear that section 34 only relates to the possession, and leaves the question as to purchase and compensation, as it would be under the Lands Clauses Consolidation Act.

COLLIER, J.-Under the Lands Clauses Consolidation Act, the interest of a tenant is to be computed from the time of notice. The same holds here; the only difference is, that the time for taking is extended from twenty-one days to six months, but this makes no difference in principle, and the interest is still to be ascertained by the time of the notice.

Judgment for the plaintiff.

Attorneys-W. Blewitt, for plaintiff; T. J. Nelson, for defendant.

Negligence-Broker-Liability for Want of Competent Skill—Arbitrator.

The defendant, a broker, was employed by the plaintiff to sell, and, as selling broker, sold for the plaintiff "to arrive certain goods on the terms that they were "fair average quality in opinion of selling broker." The buyers having on the arrival of such goods refused to take them, the defendant went and inspected them and gave his opinion that they were not of fair average quality according to the contract: -Held, that he gave such opinion as quasi arbitrator, and was therefore not liable to an action for any want of skill in forming it.

The defendant, who was a broker, was employed as such by the plaintiff to sell a quantity of Smyrna raisins for him, and the defendant accordingly sold them to Messrs. Hanson & Son, upon the terms of the following sold note:

'October 26, 1869. "Sold by order and for account of Mr. D. Pappa to my principals, Messrs. S. Hanson & Son, to arrive, 500 tons black Smyrna raisins, 1869 growth-fairaverage quality in opinion of selling broker. To be delivered here in London, at 22s. per cent. duty paid. Shipment November or December, 1869. If not delivered, buyer to be allowed 1s. per cent. in bags. Bags included in weight. Customary allowances. Discount 1 per cent. prompt two months from date of final landing.

"(Signed)

J. Rose."

When the raisins arrived Messrs. Hanson objected to take them. The defendant then went and inspected the goods but he declined to pass them, giving his opinion that the raisins were not of fair average quality, according to the contract. The plaintiff was, therefore, unable to make the buyers accept the raisins, and was obliged to resell the same at a loss. He then brought the present action, in which he sued the defendant for not using due care and skill in sampling and examining the raisins in order to form a correct opinion of the same.

At the trial, which took place before Bovill, C.J., at the London sittings after Hilary Term, 1871, a question arose as to the construction of the contract, whether it meant that the raisins were to be of the fair average quality of the growth of 1869, or whether, though they were to be of the growth of 1869, they were to be of the fair average quality of raisins generally. It was admitted on the part of the plaintiff that the raisins of 1869 were of inferior quality, as compared with those grown in other years, and that if the contract meant that the raisins were to be of fair average quality,

taking the average of previous years, the raisins in question did not fulfil the contract, but it was contended on the part of the plaintiff that that was not the meaning of the contract, but that the meaning was only that the raisins should be of the fair average quality of 1869, and evidence was given to shew that the raisins which the defendant had reported against, were of the fair average quality of raisins grown in that year, and that he had not exercised competent skill in examining them. The learned Judge was of opinion that the contract meant that the raisins should be of fair average quality generally, and that the quality was not limited to the average quality of 1869. He was also of opinion that the defendant had acted in the matter as an arbitrator, and was, therefore, not responsible for want of skill in determining the quality of the raisins, and he accordingly nonsuited the plaintiff on both these grounds.

A rule nisi to set aside the nonsuit, and for a new trial, was granted if the learned Judge was wrong on both the grounds on which he had directed a nonsuit.

[As the Court expressed no opinion on the first of these grounds, which involved the question as to the construction of the contract, but confined their judgment to the latter ground, the arguments as to the construction of the contract are omitted in this report.]

Giffard, Murphy and Horace Smith shewed cause.-The action does not lie; the defendant, though a broker, acted as an arbitrator, and cannot be sued unless there was mala fides, for which there is no pretence that any existed here. The

case of Jenkins v. Betham (1) turned on the fact of the persons not being arbitrators, but only valuers, who warranted competency. Here, however, even assuming incompetency, the defendant is not liable, because he is an arbitrator whose decision is to be final against both sides, and who is not merely to consider the interests of his employer.

Sir J. Karslake, Sir G. Honeyman and Watkin Williams, in support of the rule. -As to nonsuiting the plaintiff on the ground that the defendant was acting as an arbitrator, and therefore the action would not lie, the defendant cannot be considered to have been an arbitrator in the matter. He was employed by the plaintiff as a selling broker, and it was part of the contract that the selling broker should decide the quality of the raisins-by that contract he undertook to examine the raisins, and give his opinion as to their quality. He therefore undertook to exercise due and competent skill in the performance of his duty.

The principle was thus laid down by the Court in Harmer v. Cornelius (2), that "when a skilled labourer, artisan, or artist is employed, there is on his part an implied warranty that he is of skill reasonably competent to the task he undertakes." And in Chitty on Contracts, 9th ed. p. 515, it is also stated that "wherever there is a contract to perform any work or to transact any business, the law implies an engagement on the part of the person undertaking to do the work, that it shall be performed with due care, diligence, and skill, according to the orders given and assented to." Then, if the defendant was bound to exercise competent skill in the performance of the duty which he had contracted to perform, why is he not to be liable to this action? it being assumed for this purpose that, though he acted bona fide, he shewed a want of competent skill. In Jenkins v. Betham (1), there was an agreement between an in-coming incumbent and the executors of the late incumbent, that dilapidations should be valued as between them by valuers to be ap

(1) 15 Com. B. Rep. 168; s. c. 24 Law J. Rep. (N.S.) C.P. 91.

(2) 5 Com. B. Rep. N.S. 236; s. c. 28 Law J. Rep. (N.s) C.P. 85.

pointed on each side, and in case the valuers disagreed, by an umpire to be appointed by the valuers, and yet the defendant, who was appointed as one of such valuers, and so might be said to be a quasi arbitrator, was held liable for want of competency in the discharge of his duty as such valuer.

[BOVILL, C.J.-There the defendant was employed by one of the parties, and the complaint was that he did not use competent skill in what he had undertaken to do for such employer.]

So here it is submitted the defendant was employed as a broker to make a contract, and to give an opinion. It was part of his duty to his employer to give that opinion, and he was not an arbitrator between the parties any more than the defendant in Jenkins v. Betham (1). In Russell on Arbitrations, 4th ed. p. 38, it is said, "It is not in every case where two parties intend to be concluded by the decision of a third, that that third person is an arbitrator."

KEATING, J.-This was an action against the defendant, a broker, for unskilfully acting as selling broker for the plaintiff, by reason of which the plaintiff was da maged. In October, 1869, the contract in respect of which the action has been brought was entered into between the plaintiff and defendant, and it was in these terms. [The learned judge here read the contract.] At the trial, which took place before my Lord, the plaintiff gave evidence to shew that the defendant refused to pass the raisins as of the fair average quality of 1869, and also to shew that the defendant had not exercised any proper skill in examining the quality of the raisins. The plaintiff, moreover, called evidence to prove that the raisins were of the average quality of 1869 growth, and that they ought to have been passed by the defendant. On this state of things my Lord nonsuited the plaintiff, and he did so on two grounds. In the first place, he was of opinion that, looking at the contract, the term "fair average quality," which occurs therein, meant fair average quality generally, and not of the growth of 1869. Now, if that be the true construction of that part of the contract,

there is no doubt but that the plaintiff failed to give evidence in support of it, and that, therefore, the nonsuit was right. My Lord was further of opinion that the terms of the contract and the evidence placed the defendant in the position of an arbitrator, not that he was an arbitrator in the ordinary acceptation of that term, but that he was to decide such disputes as might arise between the parties as to the raisins being of the quality required by the terms of the contract. A rule nisi was granted to set aside the nonsuit, and the question is whether my Lord was right in directing a nonsuit to be entered on either of these two grounds to which I have referred. Now with respect to the first ground, I confess that I entertain very considerable doubt, and if it had been necessary to decide the same, I should have desired further time for consideration; but it appears to me that we are not called on to decide it because, in my opinion, the Chief Justice was right on the second ground, and that the defendant stood in the quasi position of an arbitrator.

The argument on the part of the plaintiff has been that the defendant contracted in the capacity of broker, and that he was bound to bring ordinary skill in doing what he had so undertaken to perform, and that if he did not possess such skill he was liable to an action. I think, howhver, that what the defendant did which is complained of, was not done by him in his ordinary capacity of a broker. It is true that he was a broker, and that he made this contract by which he was to be the person who was to decide between the parties as to the quality of the raisins delivered under such contract; but he was only to decide if any dispute should arise as to the quality. It was quite possible for the quality of the raisins which were delivered to have been such that the purchaser would have accepted them without dispute, and that the defendant would never have been required to act as arbitrator at all, but I think that from what occurred he was afterwards put in the quasi condition of an arbitrator, and that he is therefore not liable in this action.

The case of Jenkins v. Betham (1) appears to me to be quite distinguishable from the present. There the valuers of

two parties were appointed to value, and if they differed as to the valuation it was to be referred to an umpire, but they did not differ, and the matter never went to an umpire, so that it was the same as if there were no umpire at all. Williams, J., in the course of the argument of that case, points this out, saying, "the substance of the thing is that there is no submission until the matter goes to the umpire."

That was therefore the ordinary case of a person employing a valuer to value for him, and the person so employed not possessing competent skill for what he had undertaken to do, was held liable. I therefore think that the nonsuit was right, and that this rule should be discharged.

BRETT, J.-The plaintiff was nonsuited on two grounds, and it is agreed that the plaintiff was properly nonsuited if the Chief Justice was right on either of the two grounds, and that to upset the nonsuit it must be shewn that he was wrong on both of them. Now it is also admitted that if the construction which my Lord put on the words of this contract was the right one, the plaintiff was properly nonsuited. What is the true construction of the contract is, I think, very doubtful. My own impression is that there were not sufficient materials at the trial to enable anyone to say what was the true construction. I think that if there was an average quality of raisins known and recognised in the trade, the construction which my Lord put on the contract was the correct one, and that this contract would apply to such quality. But if there were no such known and recognised average quality, then that the raisins were to be of the average quality of 1869 growth. There seems to have been no evidence as to this at the trial one way or the other; but I think it unnecessary to determine the true construction of the contract, because I agree that my Lord was clearly right on the other ground on which the plaintiff was nonsuited. I think that the defendant, though not strictly an arbitrator, was in the position of one, so as to bring him within the exception of the law applicable to arbitrators, as to whom there is not any implied promise to bring any know

ledge or skill in the performance of their duty. It appears to me that everyone is in the condition of an arbitrator who has undertaken to give an opinion which is to determine the disputes of others when those persons have agreed to be bound by such opinion. Now here I think the parties had so agreed to be concluded by the opinion of the selling broker as to the quality of the raisins; but if there were no dispute as to the quality such opinion could not be called for. That agreement would make such broker, though not strictly an arbitrator, a quasi arbitrator, according to the definition given in Russell on Arbitrations, 4th edit., p. 38, where it is said, "the parties must manifestly intend to be concluded by the decision of the person called in, in order to clothe him with the authority of an arbitrator."

It is said on the part of the plaintiff that the defendant was not only to determine such dispute (if any) as to the quality of the raisins, but also to act as a broker to make the contract; but I cannot see how his freedom from liability as an arbitrator is taken away merely because he has also undertaken the other duty of broker. The case of Jenkins v. Betham (1) only shews that the present defendant would be liable for want of competent skill as a broker in making the contract, for the want of skill, for which the defendant in that case was held liable, was in respect of what he had done as a valuer before any submission to arbitration was made at all. A passage was cited by Sir Geo. Honyman, from Russell on Arbitrations, 4th ed. p. 38, to shew that the defendant, in the present case, did not occupy the position of an arbitrator. The passage may be correct in itself, but the cases there given by no means support it, and are, indeed, wholly inapplicable. For the reasons I have mentioned I think that the ruling of the Chief Justice on the second point was right, and therefore that this rule must be discharged.

BOVILL, C.J.-At the trial the case was treated by both sides as one depending upon the construction of the contract to be decided by the judge. I consulted my brother Willes at the time on both

the points on which I gave my decision and nonsuited the plaintiff. With regard to the first point, which raised the question as to the meaning of the contract, I retain the opinion I expressed at the trial, for it seems to me that "1869 growth" cannot be inserted after "fair average quality." On the other point as to the question whether any action can be maintained again st a broker who had acted bona fide for having given a wrong decision in a matter which was left for him to decide, I see no reason for differing from my learned brothers, or for altering the opinion I had formed at the trial. The parties had agreed in case of any dispute as to the quality of the raisins to leave the matter to the opinion of the selling broker, who was the defendant. It by no means follows that in such cases the parties agree to leave the decision to one who can bring the best skill to bear on the subject, but they are often content to take the opinion merely of an honest person, and to be bound by that. The defendant, in the present case, is said to have formed a wrong judgment as to the quality of the raisins, but if so, that was only from his not using proper skill. He was, however, I think, in the position of an arbitrator, whose decision it was intended by the parties should be final; and, therefore, there was no implied contract on his part, except that he would act honestly in deciding the matter. I think he so acted, and consequently he is not responsible in this action for not using due skill. Rule discharged.

Attorneys-Thomas & Hollams, for plaintiff; Stibbard & Beck, for defendant.