In England, if a horse is sold with a warranty of soundness and it turns out to be unsound, the purchaser cannot return the horse, unless there is a stipulation in the agreement that if the horse does not answer to the warranty the purchaser shall be at liberty to return it; but all that he can do is to offer to return the horse to the seller, and if the seller refuses to receive back the horse then the purchaser may sell the horse and recover the difference in price. In Scotland, as I understand the law of that country, there would be an absolute right to return the horse upon the discovery of its unsoundness, without any [255 stipulation to that effect in the agreement.

The appellants here state that the wine was not conformable to contract; and that they rejected the lots and "timeously" offered to return them. I was rather astonished to hear it stated at the bar, that upon these pleas in law it was incumbent upon the respondent to show that there had not been an offer to return the wines without delay; that is, that it was the incumbent duty of the respondent to prove that which it would have been almost impossible for him to prove in this case, namely, a negative; that there had not been an offer to return. We were also warned, that if we decided otherwise we should change the law of Scotland in this respect. I do not think that the law of Scotand is so unreasonable as to require a party to prove a negative by way of anticipation to an affirmative defence. The appellants assumed, and, as it appears to me, properly assumed, the lefence by their plea in law, and by the act of 6 Geo. 4, c. 120, their plea in law is to be held on the sole ground of their defence, and therefore I apprehend that the onus of proving that the goods had been returned, or that there had been an offer to return them, lay upon the appellants.

Now the questions which arose upon the pleas in law were these-First, did the wine correspond with the sample? Secondly, was there any improper delay in discovering the defective quality of the wines? and, thirdly, was there any improper delay in the offer to return them?

With regard to the wine not corresponding with the sample, there can be no doubt whatever that large quantities of the wine in both lots were utterly bad, and could in no way whatever be said to conform to the sample. And, therefore, upon the discovery of that fact, the appellants had a clear right, not. as appeared to be contended in the course of the argument, to retain the good wine and return the bad, but to rescind the contract for those lots altogether. The contracts being entire for each lot, the only way in which the appellants could discharge themselves from their obligation was by returning, or offering to return, the whole of the lots.

Now, was there delay in ascertaining the defective quality of the wine? It appears that at least the muddy unpleasant state of the wine might have been discovered in the course of a week, 256] perhaps, *at the most. And therefore, I think that the time which was taken by the appellants before they discovered these defects, amounted to an improper delay.

But with regard to the offer to return the lots, the case is so perfectly clear against the appellants that I should be content to rest my opinion entirely upon that point alone. Where a party desires to rescind a purchase upon the ground that the quality of the goods does not correspond with the sample, it is his duty to make a distinct offer to return, or in fact to return the goods by stating to the vendor that the goods are at his risk, that they no longer belong to the purchaser, that the purchaser rejects them, that he throws them back upon the vendor's hands, and that the contract is rescinded.

Now, was there any such offer made on the part of the appellants in this case? I am quite clear that there never has been, from first to last, any such distinct notice or offer to return the goods as was required to enable the purchaser to throw up the contract, and so to relieve himself from the liability of paying the price of these goods; and therefore I think, with my noble and learned friend, that the interlocutor ought to be affirmed. LORD COLONSAY:

The point we have now to determine is, whether the appel lants did in due time offer to return the goods- or rather reject the goods; because rejection implies all that was necessary upon their part, as purchasers of the goods, when they found that they did not accord with the samples. Now, it appears that neither was there a timeous notice of the goods being disconform to sample, nor was there throughout, until the 14th of June (and) I doubt if even then), an offer or a proposal to return them, or a doing of that which was necessary to their rejection.

It appears that very soon after the sale the appellants obtained samples, called in a skilled person to assist in examining them, and, being satisfied, they sent for and obtained the goods. A month elapsed before they did anything. It was not till the 6th of May that any positive objection was made to the particular lots. The matter went on in this way. Certain objections were taken; a correspondence ensued; but never at any stage-cer257] tainly not *until the 14th of June- does it appear that they rejected, in the proper and legal mode, those particular parcels. They did not state that they were at the risk of the seller; in short, they did not fulfil that which, for such a purpose, is incumbent upon a purchaser. They retained the goods and refused to pay the price for them.

Both parties were wrong in their views of the laws in the early part of these proceedings. It appears that the respondent was of opinion that all the purchases made at that sale were to be regarded as one transaction, and that it was not competent to the appellants to object to any particular lots of the purchase The appellants were under that impression too; but the judgment pronounced by the Lord Ordinary () was that each lot was to be dealt with as a separate purchase. The sending of the summons to the agent of the appellants, requesting him to accept the service for his clients, and his acceptance, is the strongest possible intimation that he no longer considered that they had then any right to rescind the contract.

The cases which have been referred to as impeaching the doctrine laid down by the Judges in this case are not at all in point, particularly the case of Jaffe v. Ritchie (2), which is wholly away from it. There the purchase was of flax yarn, and it turned out, when the bleacher came to examine the goods, that a large portion was not flax, but jute. It was held that the party was not bound to take jute instead of flax-a different article. I therefore my Lords, come to the same conclusion as that of my noble and learned friends.

LORD CAIRNS:

My Lords, I entirely agree with the judgment now proposed to be pronounced.

Interlocutors complained of affirmed, and appeal dismissed with costs. Agent for the Appellants: R. M. Gloag.

Agents for the Respondents: Simson & Wakeford.

(1) Lord Gifford.

In executory contracts of sale if the vendee accept goods thereunder and do not, after a reasonable time for inspec tion, offer to return them, or notify the vendor to take them back he cannot recover damages upon the theory that they were not of the quality or description called for by the contract. Reed v. Randall, 29 N. Y., 358; Youngs v. Kent, 2 Sweeney, 248; Weaver v. Wisner, 51 Barbour, 638; Leavenworth v. Parker, 52 Barb., 133; Woodruff v. Peterson, 52 Barb., 252; Delafield v. De Graw, 3 Keyes, 467, 471; 9 Bosw., 1.

So by acceptance the vendee waives a right to insist that the goods are short in weight. Fitch v.Carpenter, 43 Barb.,

(2) 28 Dunlop, 242.

the property. Leavenworth v. Parker, 52 Barb., 132.

But an acceptance of the goods does not waive a right of action for fraud practiced by the seller in packing the goods. Willard v. Merrett, 45 Barb., 295; Woodruff v. Peterson, 51 Barb., 252.

So a vendee may recover on an express warranty notwithstanding he receive and retains the property. Rust v. Eckler, 41 N. Y., 483; Gilson v. Bingham, 43 Vermont, 410; S C., 11 Am. Law Reg., N. S., 73; Wells v. Selwood, 61 Barb., 238.

Though the warranty be made on delivery of the goods, if the vendee has not paid for them. Vincent v. Leland, 100 Mass., 432; but see Roscorla v. Tho mas, 3 Queen's Bench, 234; 43 Eng. C.L., S. C., 1 N. Y. Leg. Obs., 220, as to the validity of a warranty after purchase. The latter case however, was consistent with a warranty after sale and delivery, so that it was without consideration.

1872

J.C.

Rainy v. Bravo.

J.C.* June 11, 1872.

WILLIAM RAINY, Appellant;

AND

ALEXANDER BRAVO, Respondent.

287] *ON APPEAL FROM THE SUPREME COURT OF THE SETTLEMENT

OF SIERRA LEONE.

[Law Reports, 4 Privy Council Cases, 287.]

Action for libel· - Letter containing libel destroyed by defendant — Secondary exi dence-Variance between defamatory words alleged in declaration and proof -Sierra Leone Ordinance, No. 4 of 1866 — Trial by Judge without jury — Amend ment of declaration, time to apply for-Discretion of Judge.

In an action of libel the defamatory words set out in the declaration must be proved as laid, and it is a fatal variance if the words as alleged are materially qualified by evidence of words not contained in the declaration, although such words as qualified are still libellous.

The defendant, after the publication of a libel and before the action was brought, destroyed the letter containing the libellous words:

Held, that, as the defamatory writing was not in existence, secondary evidence of the contents of the letter by witnesses who heard it read was admissible, but that the actual words used as laid in the declaration must be proved, and not the substance or impression the witnesses received of the words, as otherwise the witnesses, and not the Court or jury, would be made the judges of what was a libel.

THIS was an action of libel brought in the Supreme Court of Sierra Leone by the appellant, a barrister practising as an advo238] cate and attorney in the Courts in the colony, against the respondent, a police magistrate in that colony.

The first and second counts of the plaintiff's declaration set out the libel as follows: "Tell Gilpin" (meaning thereby that a certain person was to tell one Gilpin, who was a client of the plaintiff's)" that I have prohibited Mr. Rainy from practising in my Court" (meaning thereby that the defendant had prohibited the plaintiff from practising in his said profession in the police court of Freetown), " and there was no necessity for him (Gilpin) to employ a lawyer; but if he required a lawyer, to employ Mr. Walcott" (meaning another advocate and attorneyat-law of the said Supreme Court), "who was a clever lawyer, and, what is more, he is an honest man" (meaning thereby that the plaintiff was not a clever lawyer or an honest man): The plaintiff laid his damages at £3,000.

Before the plaintiff filed his declaration, he caused a notice of motion to be served on the defendant's attorney of his intention to apply to the Court for a rule calling upon the defendant to show cause why the plaintiff should not be at liberty to inspect and take a copy of the letter written by the defendant to the police clerk, and in which the libel complained of was set out.

*Present :— SIR JAMES WILLIAM COLVILLE, SIR MONTAGUE EDWARD SMITH, and SIR ROBERT PORRETT COLLIER.

J.C.

Rainy v. Bravo.

1872

In this affidavit the libel was set forth precisely as it was subsequently laid in the declaration. In reply to this affidavit, the defendant, by an affidavit made by himself, swore "that the letter referred to in the affidavit of the plaintiff, had been torn in pieces by the defendant, and the pieces thrown in the street." The defendant pleaded not guilty; and issue being taken thereon, the action came on for trial on the 29th of November, and the 1st and 2d of December, 1869, before His Honor, George French, the Chief Justice of the Supreme Court of Sierra Leone, without a jury, according to the provisions of the Sierra Leone Ordinance, No. 4 of 1866, seet. 11, which abolished trial by jury in civil actions.

At the trial the plaintiff conducted his case in person, when the following evidence, as appeared from the Chief Justice's notes relative to the libel, was given on the part of the plaintiff. Metzger, the police clerk, stated, "The substance of the part of the letter which I read out I recollect. It was to this effect: I was to tell Gilpin that his case was not a case for a lawyer, *and that he (the Major) was detained at Government [289 House, and could not come down that day. The letter said he had heard Gilpin had employed Mr. Rainy (the plaintiff), but Mr. Rainy was not allowed to practice in his Court until he had apologized for his conduct towards him (the defendant) whilst he was sitting on the bench at the Police Court some time before." In another part of his evidence the witness stated, “I read letter out because there was a direction in letter for me to tell Gilpin and the people that on account of Mr. Rainy's conduct towards magistrate (the defendant) he had prohibited him from practising in his Court until he had apologized for his conduct towards him." The witness further stated, in answer to a question of the Chief Justice: "there was a direction in the letter to tell Gilpin and people about plaintiff's conduct to defendant, and defendant having prohibited him practising in his Court until he had apologized for his conduct." Lake, another witness, stated, "The substance of the letter was as follows: The defendant wrote to Police Clerk, Metzger, to say he was at Government House, and would not be at Police Court before a certain time, which I don't now recollect; that Gilpin need not employ a lawyer; that it was not necessary. But at all events, if he did so, he was not to employ the plaintiff, in consequence of his conduct in his Court some days before, until he should have made ample apology; that he could employ Mr. Walcott, who was a clever lawyer, besides an honest man. There was a postscript to the letter to the effect, Read this letter publicly in Court." Jarrett, another witness, stated, "The substance of it was: Tell Gilpin I am going to Government House, and I will