chants, Dundee, at the price of 3s. 3d. per gallon, being at the rate of 24. per gallon less than the lowest price at which the pursuers allowed him to sell. When informed of this bargain the pursuers objected to it, but Anderson agreed to forfeit his commission of 1d. per gallon and to pay the other 1d. per gallon himself in order that the bargain might be carried out, and to this the pursuers consented. The transaction was for cash on receipt of invoice, and was duly reported to the pursuers as such. The price of these 2000 gallons constitutes almost the whole of the sum now sued for.

The defender, when called upon after his son had gone off, to pay the amount for which he had become cautioner, refused to do so, on the ground that the pursuers had violated the express conditions of the letter of guarantee in so far as they had not insisted upon their agent making a monthly statement of his business transactions with them as stipulated, and also in as much as they had not informed him, as cautioner, of the transaction with Watson & Co. above mentioned, which he maintained was an irregularity within the meaning of the saving clause in the letter, as not being of the nature of commission agency, which alone was included in the guarantee. Moreover, the transaction being a cash one, and concluded in May 1868, the defender held the pursuers had been guilty of neglect in not insisting upon their agent remitting the price at the expiry of the usual time which they allowed to elapse in cash transactions, viz., thirty days, instead of allowing it to lie over till February 1869, when for the first time they pressed him to recover the amount due. The defender also asserted that he could have in great measure covered his loss had the pursuers informed him previous to their agent's absconding of the manner in which he was behaving.

The Lord Ordinary (GIFFORD) repelled the defences, found the defender liable under his letter of guarantee, and decerned against him accordingly. The defender reclaimed.

J. MILLAR, Q.C., and BURNET for the reclaimer and defender.

FRASER and LANCASTER for the respondents and pursuers.

At advising

LORD DEAS-I agree with the Lord Ordinary in his judgment and in the reasons which he assigns for it. It is quite plain that there is here no ground for the objection that the pursuers omitted to get monthly accounts from their agent. The pursuers required their agent to remit instantly whatever monies he collected, never knowingly allowing him to retain any monies, even so long as a month. When the agent reported to the pursuers that he had no money in his hands, or when he sent them a remittance bearing to be all that he had collected, that was accounting in the sense of the letter of guarantee. The defender complained that there was no regular series of monthly accounts. It is sufficient answer that there could be no account when there was nothing to account for. When the agent reported that he had collected nothing, it is plain that there could be no stated account. But the agent was pressed to collect and send in accounts, and this I think was quite enough. The expression in the letter of guarantee is that the agent shall be "required to account."

As regards the alleged irregularity in the trans

action with Watson & Co., what is it? The agent sold at a lower rate than he was allowed to; the pursuers refused to recognise the bargain; and the agent offers to pay the difference rather than break off the bargain. There is no irregularity here which required to be communicated to his cautioner-there is nothing which would excite the suspicion of the pursuers as to the honesty of their agent. I am of opinion that the Lord Ordinary's interlocutor should be adhered to.

LORD ARDMILLAN concurred.

LORD KINLOCH-I agree with your Lordships. Undoubtedly the conditions of a guarantee, under which a creditor comes upon a cautioner, must be strictly fulfilled. But there was no failure here. The first condition in this guarantee, viz., that there should be a monthly account of intromissions, clearly means that there should be a monthly settlement for recoveries. It does not mean in this case a monthly account of sales. The employers knew the terms of the transactions at the time that each took place, and so there was no necessity for a monthly statement of the business done. And there is no evidence of more than a month expiring while the agent, within the knowledge of the pursuers, had money of theirs in his hands. As to the transaction with Watson & Co., it is quite an ordinary occurrence. The agent in his zeal sells lower than he is allowed to do, and has to make up the difference. No suspicion of an agent's honesty is raised by such a transaction.

LORD PRESIDENT-I agree with your Lordships. We have here a very limited guarantee. There is only an undertaking that the agent shall account for all monies or bills which he receives on the pursuers' account. The conditions must be read with special reference to the subject of the guarantee. When intromissions are spoken of, it is only intromissions with money or bills that are meant, not with goods. With regard to any irregularity, it must be an irregularity in the matter guaranteed, i.e., money or bills, before it can be of any effect in freeing the cautioner. Now, is there any failure in connection with money or bills here? I confess I cannot find any evidence of that. If there had been an undertaking that there should be a written account monthly it would be a very different matter, but when the agent is only bound to forward money monthly-if he says he has none to forward, what is the principal to do? It is for this very purpose that the principal takes a guarantee, in order that he may be safe as regards the honesty of the agent.

The sale to Watson & Co. was not, I think, an irregularity in the sense of the letter of guarantee; it was only a sale which the agent made at too low a rate. There is no probability of its exciting any suspicion of his honesty.

I am of opinion that the case entirely falls upon a proper construction of the letter of guarantee. The Lord Ordinary's interlocutor was unanimously adhered to.

Agents for Pursuers-Murray, Beith, & Murray, W.S. Agents for Defender-J. & J. Milligan, W.S.

Tuesday, November 15.

SECOND DIVISION.

HAGART V. FYFE.

Title-Part and Pertinent-Forshore-Interdict. A lessee of a portion of shore ground of the River Clyde proceeded to enclose the ground for the purpose of storing floating timber, whereupon a feuar, whose feu did not extend down to the river, but was ex adverso of it, and who had been accustomed to use the shoreground for shooting and boating, pulled down the pallisades which had been erected. The granter of the lease was proprietor of lands, the conveyance to which contained no boundaries by the sea or seashore, but he offered to prove that de facto the lands were situated on the bank of the river, and bounded by it, and that the clause of parts and pertinents included the shore ex adverso. Held, in an action of interdict at the instance of the lessee, that he had not instructed a title which entitled him to prevail in a possessory question, without establishing his right by an action of declarator.

This was an application for interdict at the instance of the lessee of four acres or thereby of the shore of the Clyde, situated principally below highwater mark in the neighbourhood of Port-Glasgow. The lease was granted for the purpose of a timber pond being constructed upon the shore ground. The construction was commenced by driving posts into the shore, when they were cut down by Mr Robert Fyfe, a feuar in the close vicinity of the banks of the river Clyde (though not bounded by it), ex adverso to whose feu the pond was sought to be constructed. The present petition was at the instance of the lessee, and sought to restrain the respondent by interdict from cutting down or destroying the posts or paling of the pond, or interfering with its construction; and the question which the action raised was, whether the lessee's author possessed any title to grant the lease of the shore-ground between high and low-water mark in question.

Hagart's author, Mr Hair, was proprietor of the lands of Nether Auchinleck, with the parts, pendicles, and pertinents thereof, which are described as bounded, “with the low-water mark opposite to the said lands upon the north.”

The petitioner's author also acquired by purchase, by a separate title, the superiority of the said lands, and obtained a Prince's Charter of Adjudication in his favour, dated 1st February 1869. The petitioner alleged that his author Mr Hair had been in possession and occupancy of the shore-ground in question, for storing timber, without objection for at least seven years.

The respondent Mr Fyfe was proprietor of a small feu, between which feu and the river Clyde, there ran a strip of land which belonged to the petitioner under the lease. There was a clause in the feu-contract by which the petitioner's author was taken bound not to erect any house upon this strip of ground which would intercept the view of the feuar. He alleged that he had used the foreshore for shooting and boating, and that the proposed timber yard would prevent the exercise of these rights.

The petitioner pleaded—(1) “The title of the petitioner's author carries all right as far as low

VOL. VIII.

water mark, subject to any right competent to the Crown for public uses, and therefore he was entitled to grant the tack founded on-M Allister v. Campbell, 15 D. p. 490; Paterson v. Marquis of Ailsa, Bell's Decisions, vol. 8, pp. 752, 756-7-8-9, March 11, 1846; Lord Advocate v. M'Lean, Jurist, vol. 38, p. 584; Berry v. Holden, 10 Dec. 1840; and Hunter v. Lord Advocate, 23 June 1869. (2) The estate of Mr Hair, the petitioner's author, being notoriously bounded by the sea or river Clyde, and having by himself and his predecessors and their tenants been in the exclusive possession of the shore-ground in question, as forming part thereof, from time immemorial, and for forty years and upwards prior to 2d March 1849, the said Andrew Hair was legally entitled to grant the lease founded on.'

The Sheriff-Substitute (TENNENT) pronounced this interlocutor:-" Greenock, 25th Feb. 1870.-The Sheriff-Substitute having heard procurators on the closed record, finds that the pursuer and his authors have not produced or founded on any title to the sea-shore ground referred to in this action; therefore sustains the first plea in law for the respondent; dismisses the action: Finds expenses due to the respondent; allows an account to be given in; and remits the same, when lodged, to the auditor of Court to tax and report, and decerns."

It

He remarked in his note-"The description of the lands of Auchinleck does not contain any boundary by the sea or sea-shore, or any boundary that could be construed as giving a right to the shore-ground in question. But what the petitioner says is, that his lands of Nether Auchinleck are, in point of fact, bounded by the river Clyde; and he offers to prove (by parole) that these lands are situated upon the south bank of the river Clyde, and that de facto he possesses for his northern boundary the shores or waters of that river. He then refers to the cases of Lord Saltoun v. Park and Others (Nov. 24, 1857, 20 Sess. Cases, p. 89); and Hunter v. The Lord Advocate and Others (25th June 1869, Sess. Cases, 3d series, p. 899), and moro particularly to the opinion of Lord Kinloch in the latter case; and what he contends is to this effect, that a conveyance of lands, whether a barony or not, which, in point of fact, are bounded by the sea, conveys the shore as effectually as if the words 'bounded by the sea' were in the charter. may be enough in this Court and in this process to say, that as the pursuer's author has no boundary by the sea in his titles, that an attempt to show that he does possess the river Clyde as a boundary, if otherwise competent, would be a proceeding declaratory in its nature, which could only be carried through in the appropriate action in the Court of Session, and cannot be carried out in this Court. This is probably sufficient to dispose of the present application; but it may be said further, as has been observed above, that the pursuer's author has not produced or founded on any Crown grant either to lands or to the sea-shore. proposition in law, that the same results are to follow where the sea is de facto the boundary of the lands, as if the sea were contained in the title as a boundary, has only as yet been applied by the Court to a barony, and any expression of opinion by an individual Judge, to the effect that the proposition will apply to lands not a barony, so far from having been adopted by the Court, has been discountenanced by it. The doctrine appears to have been disapproved of on the high authority of Lord Campbell, in Officers of State v. Smith (6 Bell,

NO. VIII.

The

The

pp. 487, 498). I may venture to say, that whatever may be the effect of the grant of a barony described to be on the sea-shore, there is no foundation in law for the position that a simple grant of a piece of land will pass the sea-shore by which it happens to be bounded.' Even in the case of a Crown grant and a barony, and a boundary de facto by the sea, the Court have hesitated to hold that the property of the sea-shore was thereby conferred. In Lord Saltoun v. Park the Court refused to insert in their judgment a finding that the shore was the pursuer's property, while they affirmed his right to the wreck and ware. only other matter to advert to is an offer of proof made by the pursuer. He says that his authors have, from time immemorial, occupied and possessed the beach or shore down to low-water mark, ex adverso of the lands of Auchinleck, and that by all acts of proprietorship and possession of which the same were susceptible, and inter alia, by storing timber, gathering sea ware, taking gravel, and other acts of proprietorship. That, at least for the last seven years, the petitioner's authors had been in the possession and occupancy of the shore-ground in question without objection. Whatever value these allegations might be of, if established by proof, a proof of them is not competent, unless the party establishing them, and seeking the possessory judgment, be possessed of a title to the subject. Neither the petitioner nor his authors have produced such a title. Although the Sheriff-Substitute has noticed shortly the arguments on the merits that were pleaded to him, the grounds on which he has placed his decision are-That not having been able to show any title to the foreshores, the mode of obtaining one by proof that his lands are on the shores of the Clyde, and by inference from that fact that the foreshore must be included in his grant, is a proceeding so entirely of the nature of an action of declarator that it is quite incompetent in this process or Court; and that in so far as the allegations of possession are concerned, they cannot be proved, as no title is alleged."

The petitioner appealed to the Sheriff (FRASER), who dismissed the appeal, remarking in his note :"At the debate in this cause it was suggested that a declarator should be brought, so as to clear up the rights of parties, and the Sheriff understood that such an action would be brought. But as this has not been done, the Sheriff must now dispose of the case as one for a possessory judgment. Now, to obtain a possessory judgment it is necessary that the party applying for it shall have a title (Nelson v. Vallance, 10th Dec. 1828, 7 Shaw and Dun, 182). This is as necessary as in an action of declarator; and the question comes to be, whether or not the petitioner has such a title? His author got a conveyance to certain lands, which are de facto said to be bounded by the river Clyde. These lands are not erected into a barony -they are not described as bounded by the river -but it is said that for the prescriptive period the petitioner's author has occupied the fore-shore, and that in this he has got a title to the shore. The petitioner's right, founding upon that of his author, is not rested simply upon his title, but upon his title combined with possession. Such a right can only be established by a declarator. The Sheriff has no power to enquire into this matter. The right must be established by a declarator, if it exists; and in all probability the Court will order the Clyde Trustees and the Crown to be

called as parties to such an action. The case of Hunter v. Maule, 26th January 1827, 5 S. 238, is an authority to the effect that in order to obtain a possessory judgment there must be an ex facie title to the property claimed, and the Sheriff cannot find in the titles of the petitioner's author any right to the foreshore. Possession, no doubt, may give the petitioner that right, but that must be established in the proper action in the Supreme Court."

The petitioner appealed to the Court of Session.

TAYLOR INNES, for him, argued he had title to the foreshore as part and pertinent of his lands, so as to give a basis for a possessory judgment, Bell's Prin. 641; Fullerton, M. 12,524; Innes v. Downie, Hume 553, 1807; Campbell v. Brown, F.C., 18th Nov. 1813; Officers of State v. Smith, 8 D. 711; Hunter v. Lord Advocate, 7 Macph. 899. MACDONALD in answer.

At advising

LORD JUSTICE-CLERK-It is better that we should not say anything on the larger points. On the merits of the Sheriff's judgment I have no doubt. The party says he has the foreshore under his titles, or under his titles and possession. I do not think he has it under his titles alone. (1) As to possession, what is proposed to be done is to obstruct the public in the natural and primary use of the shore. How far a grant from the Crown would entitle a proprietor to do so is not hujus loci. But (2) looking to the respondent's peculiar interest in the matter, there is enough upon record to enable us to refuse the interdict.

LORD COWAN-There can be no doubt that the operations contemplated were works of such a kind as necessarily excluded all access to walkers and to the public generally. That being so, respondent brevi manu removed these palisades. Then this interdict is asked for the very purpose of making this erection.

Had there been a clear grant of shore to this party, this might have entitled him to an interdict against interruption; or had there been exclusive possession for more than seven years, the possessory argument might have been good.

LORD BENHOLME concurred, but doubted whether they should disturb the Sheriff's interlocutor. He thought there was no title to the sea-shore sufficient to exclude the public. A title to lands adjoining sea-shore had been never held to be a title to the dominium of the sea-shore.

LORD NEAVES concurred, but was not prepared to say that, even if there had been an express grant of sea-shore, the party, so long as it was a shore, could exclude the public.

Appeal dismissed.

Agent for Appellant-Thos. Landale, S.S.C. Agent for Respondent-Adam Shiel, S.S.C.

Tuesday, November 15.

WILLIAM WALLS & CO. v. ANDERSON AND CROMPTON.

Sale - Fungible-Specific Appropriation — Risk— Deposit-Mutuum-Damages. 750 gallons of oil having been sold by W. & Co. to A. & C. at so much per gallon, to be delivered when re

quired within six months, and having on the expiry of the six months been invoiced to A. & C., and the invoice intimated to them, with the words added, "In store to your order," and with a letter from W. & Co. to A. & C. containing the words, "We presume you intend the oil to lay beside us as before until you require it," and the price having thereafter been paid, and 37 gallons delivered, but no separation or appropriation to A. & C. of the rest of the oil having been made, and a fire having consumed the whole of W. & Co.'s stock.-Held (diss. Lord Justice-Clerk), that the risk of the undelivered oil had not passed to A. & C.

Prior to 1863 the appellants, Walls & Company, who are oil merchants in Glasgow, had transactions with the respondents, Anderson & Crompton, who are cotton-spinners at Ashton, near Preston, in the sale of oil to the latter. On 30th

July 1864 the appellants sold to the respondents 1260 gallons of sperm oil at 6s. 8d. per gallon, to be delivered when required before the end of March next, conform to sale note, which contained the following clause-"In the event of any fall in price, we agree to charge the oil at the current market rate at date of invoice." On 15th December 1864 a contract in similar terms was entered into between the parties for 500 gallons "at 68. per gallon, to be delivered when required within six months from this date." And on 14th June 1865 another contract in similar terms was entered into for 750 gallons "at 7s. 10d. per gallon, to be delivered when required within six months from this date." The two latter contracts contained a similar clause as to any fall in the market price. The 1000 gallons remaining undelivered under the first contract, were invoiced in the appellants' books to the respondents on 24th January 1865, as arranged between the parties, because an advance in the price of the oil was expected. The 500 gallons under the second contract were invoiced on 19th June 1865, and the 750 gallons under the third contract were invoiced on 18th December 1865. Invoices were in each case sent to the respondents, showing the amount due and the terms of payment, and bearing at the foot the words "In store to your order." The appellants wrote on 19th December 1865, with the third invoice, in the following terms-"The time having now expired for you taking delivery of the sperm oil as per contract of June last, we beg to enclose invoice of it, we presume you intend the oil to lay beside us as before until you require it."

Prior to 13th July 1866 the whole oil purchased had been paid for, and the whole oil contained in the first and second contracts, and 37 gallons of the third, had been delivered. On that day a fire took place, and consumed the whole sperm oil in the appellants' stores in Glasgow. The respondents demanded delivery of 713 gallons, the remaining portion of the last order. The appellants refused, but offered to deliver half the quantity. This offer was refused by the respondents (pursuers in the Sheriff-court), who raised an action against the appellants there, concluding (1) for delivery of 713 gallons; and (2) for payment of £300 as damages for delay in delivery; or otherwise, (3) failing delivery, for payment of £600 as damages for such failure.

From the evidence it appeared that the oil invoiced, but not delivered, was kept in three tanks on the appellants' premises, which also contained

undelivered oil of other customers, as well as some of the appellants' own oil, the latter taking care to have enough in these tanks to meet all the invoices. The respondents knew nothing about where the oil was kept further than that it was invoiced to their order. It also appeared that the substance of the oil was constantly changing, the oil drawn off to supply other customers, or for the appellants' own purposes, being afterwards replaced in the tanks. The object of having the oil stored in the appellants' tanks, after invoice, was to save leakage, as oil in the best casks and stores leaks at the rate of 2 per cent. per an.; and the appellants agreed to let it remain in store for the respondents till delivery was asked. No storage rent was paid. The appellants had no other sperm oil of the kind sold, in Glasgow or elsewhere, besides what was consumed by the fire. The appellants' stock-book (which was made up at 30th June in each year) showed for the year 1866 the total amount of the appellants' oil in stock at 40,501, under deduction of Invoiced, but not delivered, as under 7859," one item of the latter sum being "Anderson & Crompton, 713."

The pursuers (appellants) pleaded that under the contract they were entitled to delivery, and that the sums of damages alternately claimed were reasonable. The defenders (respondents) pleaded that the time for delivery being long past, and the defenders having been ready to deliver, the risk had past. That the pursuers having been in mora in not demanding delivery earlier, the defenders were not responsible for the loss. That after the date fixed for delivery the defenders held as the pursuers' depositories, and the oil having perished without fault, they were not liable.

The Sheriff-Substitute (GALBRAITH) inter alia "found that the oil not having been separated and set apart for the pursuers (respondents) in the defenders' (appellants') premises, the risk of the property did not at any time pass to the pursuers," and he sent the case to his roll for further procedure.

The Sheriff-Depute (GLASSFORD BELL) adhered, and dismissed the appeal.

The defenders appealed.

DEAN OF FACULTY (GORDON) and SCOTT, for them, maintained that the contract imported delivery within the six months, and consequently the respondents were in mora in not taking delivery by that time; and it afterwards remained in the appellants' premises not under the contract, but either on sufferance,-the risk having past to the respondents, or in virtue of a new arrangement, under which the appellants became the gratuitous depositories of the respondents, and not liable for accidental destruction. In support of the former alternative they quoted 1 Parsons on Contracts, 5th edition note (z), p. 532; and the American (Carolina) case of Wellard v. Perkins, 1 Busbee's Law Reports. The want of specific appropriation of the oil in the three tanks should not prevent the transfer of the risk. It was the same in principle as the alternative sale of one of two articles, where in the Roman law the destruction of both liberated the seller from his obligation to deliver, while the buyer remained bound for the price. D. lib. 18, tit. 1. 34, 26; Domat, 1, 2, 5, 12; 1 Bell's Com. (M'Laren's edition), 461, note.

SOLICITOR-GENERAL (CLARK) and BRAND, for respondents, in reply, maintained that the oil was stored in virtue of the contract, not by favour of the appellants,-that there was no mora in taking

delivery, that even though there were mora, mere delay could not change the risk where no specific oil was mentioned in the contract, and none had since been separated or appropriated to the respondents, which it was necessary should be done with the respondents' consent. The contract of deposit equally required the appropriation of the subject.

At advising

THE LORD JUSTICE-CLERK said-This is an action by the pursuers (respondents) to vindicate delivery of oil purchased by them from the defenders (appellants), and which the defenders bound themselves to retain till required by the pursuers, and there are conclusions for damages. The defence is that the oil has been consumed by fire, damnum fatale, and that the risk lay with the pursuers.

The contract under which this demand is made is stated in an invoice, dated 18th December 1865, to the effect that the respondents bought of the appellants," Terms, cash in a month less 2 0/0 discount. Contract for sperm oil, dated 17th June. In store to your order, 750 gallons, at 7s. 10d., £293, 15s. ;" and in the letter of 19th December 1865 from the appellants to the respondents, which accompanied the invoice, in these terms (quotes ut supra). The question relates to the liabilities of the two parties under the arrangement embraced in the invoice and letter.

It appears that the oil was purchased on 14th June 1865, and the sale-note bears (quotes ut supra); and then there is an undertaking by which the purchasers were to get the benefit of any fall in price during six months from that date, and the purchasers were bound to take delivery by that time. But when the six months had expired, and the purchasers had become bound to take delivery, an offer was made to them that the sellers would hold it on still in their store, and the purchasers preferred this course, and there is no doubt that it was done for the accommodation of the purchasers. The Solicitor-General suggested that the sellers had the benefit of the purchasers' stock lying in their stores, but I cannot see that, because they were bound to replace every gallon they took away, and to be ready to deliver the whole at any moment. The reason is explained in the evidence by Mr Bishop-"It was to be stored in tanks to save leakage. Even with careful watching, oil in the best casks and stores leaks 24 per cent per annum. It was entirely to oblige pursuers that I agreed to store the oil. It was an incon

venience to us to keep the oil for pursuers." And there is nothing in the other evidence against that, and therefore it was the arrangement of parties that the oil should be left in the store to save leakage. The sellers undertook to store it in their tanks. It is in vain, therefore, to say that it should have been stored as a separate corpus, the meaning of the arrangement being that it should be stored in the large tanks to prevent part being lost. The Solicitor-General asked if that engagement was fairly implemented, but that is, I think, not doubtful, for, apart from the fact that one tank was kept for purchasers' oil, the nature of the arrangement implied that oil of that kind was to be kept for the purchasers for delivery from time to time as required, and that was done. The sellers had it to the purchasers' order when they required it. But a fire took place in July 1866 and consumed all the oil of that kind which the sellers had in their stores in Glasgow or anywhere, and therefore if the

contract of storage was implemented, the oil which was stored perished. The consequences of this, the purchasers say, is that the sellers are bound to replace the oil. But I can find no such obligation in the contract. This case does not depend upon the general law of sale and purchase. The time for delivery had arrived, and the sellers might have put the oil into casks, and so made it specific, whereby the risk would pass to the purchasers. But they undertook to deliver to order, and it was a peculiarity of that undertaking that the oil should be mixed with other oil, but this was from the necessity of the case, and for the benefit of the purchasers. It was not the less, however, a delivery to order. I don't think it can be said with any justice that the sellers, while they passed from the power of specifying and setting apart the oil, and allowed the purchasers the gratuitous use of their stores, also kept up against themselves the liability for the loss of the purchasers' oil by a damnum fatale. By that occurrence the contract became imprestable. There was no obligation to buy other oil, and if the sellers stopped manufacturing, as they were entitled to do, they had none to supply. It is not a question as to alteration of the species. It makes no difficulty that the ipsum corpus was not the same when delivery was demanded as when it was put into the tank. We must take it substantially as delivery tendered and declined, and a new arrangement made for its remaining in the

store.

LORD COWAN-There is no dispute between the parties as regards the principles in the law of sale which have to be kept in view in the decision of this case. By the law of Scotland the property of moveables can only be transferred by delivery, or what is equivalent to it. But although not delivered, the risk of the goods bought, still remaining in the custody of the seller, is with the buyer, so that in the event of their being lost or destroyed without any fault on the part of the seller, the loss accrues to the buyer; he is bound to pay the price, unless already paid, on the one hand, while, on the other, the seller's obligation to make delivery can no longer be enforced. There can be no doubt of the application of these principles where the subject of the sale is specific, and no duty remains on the part of the seller to do all that may be necessary to prepare the goods for delivery, or to designate and set them apart as such. It is where the goods have not been so individualised and set apart as to mark them out to be the very things sold, but where they still remain, to some extent at least, mixed with the seller's own goods, that the difficulty arises with regard to the application of the principles now stated.

Supposing the oil which is here the subject of the contract had been set apart by the seller for the buyer, there could have been no doubt that the risk attached to the latter; but no such case here exists as matter of fact.

Again, supposing that the oil had been left in the hands of the seller, and, by arrangement with the buyer, kept in a tank along with other oil belonging to the seller-it might have been contended to be sufficient individualising of the article sold, to have, in the event of the whole being destroyed by fire through accident, the loss apportioned between the parties. It would not be so were only a portion of the oil thus kept in store destroyed; for the seller could not throw on the buyer