JACKSON & Co. v PANTON & Co. Sale-Delivery-Judicial Authority.-A party haring pur chased grain, objected to take delivery on the ground that it was not conform to sample. By the rules of the Corn Exchange, of which the parties were members, it was provided that such an objection must be made the day following the sale, but in this case it was not made till eight or ten days thereafter.-IIcld, that the purchaser was barred from objecting, and that without judicial authority the seller was entitled to re-sell the grain, and recover the difference in price from the original purchaser. THIS was an action brought by the pursuers for payment of the difference of price and the expenses connected with the re-sale of 100 bags of wheat sold by them to the defenders, and of which the latter refused to take delivery. It appears from the rules of the Glasgow Corn Exchange that purchasers are only allowed till 12 o'clock of the following day to state objections to the quality of the grain on the ground of its being disconform to sample or otherwise, after which they are precluded from objecting. The wheat in question was sold to the defenders on the 13th September, and no objection was taken by the purchasers to its quality till eight or ten days thereafter, when the pursuers sent the delivery order for the grain, and by which time it is said there had been a fall in the grain market. The defenders then for the first time objected to the quality of the grain.

The defence to the action was that the pursuers had no right, without legal authority, to sell the grain in dispute, and that by their doing so they have cut themselves off from all claim against the defenders.

The Sheriff, after hearing parties, held, that independently of the rules of the Exchange, eight or ten days was too long to allow the defenders to object to the quality of the grain, and that by their delaying for that time, they were barred from objecting. In disposing of the defence, that the pursuers were not entitled to re-sell the grain without judicial authority, the Sheriff said, that had it still been open to the defenders to have objected to the quality of the grain, it might have been a serious objection. His lordship, however, repelled the defence. In giving judgment he said :

The chief objects in applying to the Court for authority to sell are:-First, to allow the party refusing to implement the bargain an opportunity of having the article examined by competent parties before the sale takes place; and, secondly, to obviate any objection that might afterwards be taken that the property had been disposed of under its true value at the re-sale. In this case the first objection has no weight, from the fact that by that time the purchasers were debarred from objecting; and no objection was taken on the second ground until after the

proof was concluded, and the case ripe for judgment; and I may add that, looking at the original price of the grain to the defenders, and the sum which it brought at a re-sale, it is obvious that there is no valid grounds for the objection. The proof led as to the custom of trade showed that the refusal to take delivery rarely, if ever, occurs among the members of the Corn Exchange. But the three witnesses for the pursuers, Mr Lamb, Mr Bald, and Mr Crawford, all swore that they would the pursuers have done. Of the two witnesses for the defenders, have considered themselves entitled to have acted precisely as one, Mr Johnston, was unable to say what course he would have taken, while the other, Mr Lowe, stated that he would have followed what is certainly an unexceptionable course-by applying to the Sheriff for warrant to sell. As the case is one of considerable difficulty and of importance, and as a precedent, I have availed myself of the opportunity to obtain the opinion of three of my brother Sheriff Substitutes, one of whom is of opinion with the defenders that the pursuers were not entitled to deal with the grain as their own, but ought to have sued the defenders for implement of the bargain, and for the price of the grain. While I hold in the greatest respect the legal knowledge of the Sheriff who entertains this opinion, I confess that I still retain the opinion I have held throughout, that, in the circumstances of this case, the pursuers were justified in selling, and that they are now entitled to come against the defenders for the difference. The practice is universally followed in the Stock Exchange and among the metal brokers, and it would be an unfortunate anomaly if, in an article of so fluctuating a character as corn, the same rule did not apply. I am confirmed by those of the two other Sheriffs whom I consulted, glad to say that I have had my judgment strengthened and and find that our view of the law has been adopted in a case decided in the Court of Session, of a somewhat similar nature. In Laing and Sons v. lain, 21st May, 1853, which related to in which the defenders refused to pay the price or take delivery, the sale of three horses by the pursuers to the defenders, and The Sheriff-Substitue of Perth, Mr Barclay, found for the deafter which the pursuers re-sold the horses without a warrant. fender, but the Sheriff Depute, Mr Crawford (now Lord Ard. millan) found "that the defender having purchased, and failed to pay for, the said horses, after reasonable delay, is liable to the pursuers in the difference between the prices he purchased at and the prices subsequently obtained, and for the keep of the horses during the interval between the sale and the re-sale, and the expense of the re-sale." And the Second Division of the Court unanimously affirmed this judginent. The agent for the defenders has handed me a note of two English cases, looked carefully into the reports of these cases; but so far as which he contends, support his clients' defence. I have I understand them, instead of supporting his argument, they are authorities the other way. In Hore v. Milner, Lord Kenyon held that the plaintiff, having resold the commodity, had by that act abandoned his right to insist on the defendant taking the goods. He had not considered them as the property of the defendant or the contract as completed, and, therefore, could only recover damages for the breach of the agreement, which seems very inuch in point, but in favour of the pursuers. Having resold the grain, they could not, of course, insist on the defender taking it; but according to that judgment, they are entitled to damages for breach of agreement, which is what they now sue for. The other English hemp, provided the purchaser took away the hemp within 14 case-Halidorn v. Laing-was a case of a qualified sale of days. The purchaser did apply to take it away immediately after the sale, but it was then in pawn, and could not be de livered. The seller alleged that, as the purchaser had 14 days to take delivery, the seller had the like time to give bound to deliver at any moment of the 14 days; and they delivery; but the Court held very properly that the seller was further held that the seller, by reselling, had rescinded the contract, as such resale was the strongest proof that he meant to desert his contract of general bargain and sale, if any such existed, and to resort to his special remedy given by the conMilner. For these reasons I decern in favour of the pursuers tract, which seems just a repetition of the decision in Hore v. for the sum sued for.

15TH DECEMBER, 1859. SHERIFF COURT, GLASGOW.

(MR SHERIFF BELL.)

DAVID M'CUBBIN (M'Law's Trustee) v. GEO. STUART & Co. Factor-Lien-Accounting-Bankruptcy.-Held, that com mission agents, or factors, to whom different parcels of goods had been consigned for sale, and on which they made advances, were not bound to account separately for the proceeds of each parcel, but had a lien over the proceeds of the whole goods, for any general balance which might arise on a final accounting.

COLIN S. M'LAWS, who carried on business as a tea and flour

merchant in Glasgow, made, between the months of July and November, 1857, a number of consignments to the defenders, who made advances thereon. The nature of the transactions will be best explained by a copy of the letters which usually passed between the parties at the time. The following

is one of these letters:

2. The letters of acknowledgment, granted by the bankrupt at the time, cannot be modified or cut down, except by the defenders' writ or oath.

3. The transactions in question, having been in the ordinary course of business, and not having been entered into with the view of giving the defenders a security for a prior debt, are not reducible either at common law or by statute. 4. No relevant grounds of action are stated.

5. Under the circumstances, and at squaring accounts with a bankrupt estate, the defenders are entitled to set their whole claims against the ostate, against the whole claims of the estate against them, and to rank for or pay the balance as the case may turn out.

After hearing parties, the Sheriff-Substitute pronounced the following Interlocutor:

sequestrated estate the pursuer is trustee, carried on business Finds that the bankrupt, Colin Sharp M'Laws, on whose previous to his sequestration, on the 26th November, 1857, as a tea and flour merchant: Finds that the defenders are, as designed in the summons, "brokers and commission merchants" in Glasgow: Finds that the said bankrupt was in the habit, for several years before his bankruptcy, of consigning goods to the defenders, on which they made advances, and in particular he consigned to them the various lots of goods speci fied in the summons and condescendence, and received the relative advances therein acknowledged: Finds that on making said consignments, letters and invoices were rendered by the bankrupt to the defenders, in the terms of the letters and invoices Nos. 6-24 to 6-34, inclusive, and of which No. 6-32, which is a specimen, mutatis mutandis, of all the rest, is as follows:-"412.-Glasgow, Aug. 10, 1857.-Messrs George Stuart & Co.-Gentlemen-You have this day advanced to me four hundred and twelve pounds sterling, and I have placed in your hands the following goods, which you will insure from fire risk, to the above amount, and sell at market rates at such times as you consider most suitable, and place the proceeds to

(Signed)

"C. S. M'LAWS."

These transactions extended over a series of months, and were brought to a close by the sequestration of M'Laws' estate on 26th November, 1857. It appears that the defenders were in the practice of selling the goods consigned to them by M'Laws, and applying the proceeds generally to his credit. In some instances the parcels of goods consigned did not realise the amount of the advance and expenses, but on an account current including the whole transactions, a balance appeared due by the defenders to M'Laws' estate of £233 18s 3d.

The present action concludes to have the defenders ordained to hold just count and reckoning with the pursuer as trustee on M'Laws estate, for the proceeds of the consignments made before sixty days of bankruptcy, and further, in the event of its being ascertained that the consignments made after that date were made in security or satisfaction of a prior debt due by M'Laws to the defenders, to have the invoices, accounts, letters, or other writings, whereby the said consignments were made, reduced, or rescinded, and the pursuer restored thereagainst.

The pursuer claimed a separate account of each transaction, and craved decree for the balances which might appear in his favour thereon.

The defenders admitted the transactions with M'Laws as explained in the letters produced, and maintained the follow. ing pleas in law

1. Both at common law, and by the usage of trade, as well as by express contract and agreement betwixt the defenders and the bankrupt, the defenders were, and are entitled to a lien over the goods consigned to them by the bankrupt, and to retain from the proceeds of the lots so consigned, the amount of their advances, store rent, and charges,

each, and 100 sacks do., balance of lot 5. The above by my acceptance to you at 3 mos. from this date.-Yours obediently, (signed) C. S. M'Laws." Finds it is instructed by these documents and by the other productions in process, including the voluminous excerpts from the defenders' books Nos. 17 to 22 inclusive, and by the parole proof that the defenders, in receiv ing and dealing with said consignments acted as brokers and sales effected by them, and accounting from time to time for factors for M'Laws, charging him the usual commission on the their intromissions: Finds that the five consignments specified in the second part of the summons in the second action, and on pages 10 and 11 thereof, were made within 60 days of M'Laws' bankruptcy, but the pursuer has failed to instruct that these consignments were made in security of prior advances, or with the view of giving the defenders a preference: Finds it on the contrary instructed that they were made in ordinary course of business, and that, as far as appears, they could not have been consigned in further security of prior advances, seeing that, at the commencement of the running of the 60 days, the balance was not against the bankrupt but in his favour, and, after deducting the advances made on said five last consignments, together with the charges thereon, from the prices received for the goods, an additional balance accrued, which the defenders have all along admitted they hold to the credit of the bankrupt estate: Finds that both at common law, and under the agreed on business relationship between M'Laws and the defenders, the latter, as factors or brokers for the former, had a general lien for any balance arising on their general account, the principle on which such lien is conceded being, that when a factor, in the course of receiving goods from his principal, to be sold for his behoof, engages his credit, or advances money on said goods, he must be understood to do so, not on the faith of any particular consignment, but on the faith of all the goods likely to come into his possession: Therefore finds, first, that the defenders are not bound to hold count and reckoning with the pursuer, on the footing of dealing with each consignment as a separate transaction, to be brought to a been made out by the pursuer in support of the conclusions for separate balance; and second, that no sufficient ground has reduction in the second summons, either under the Act 1696, cap. 5, or otherwise, and, to the above estcut, sustains the

the constitution and resting owing of the said sums, and of the said accounts, so far as consisting of proper professional charges, can only be proved by the defender's writ or oath, and allows the pursuer a proof so limited accordingly: Grauts diligence at his instance against witnesses and havers, and commission to any of the Depute Clerks of Court to take the depositions of havers, and to receive and certify exhibits to be reported forthwith; and in case the pursuer shall fail to prove scripto of the defender, appoints the case to be enrolled, that a diet of proof may be fixed for taking the defender's deposition.

NOTE. The defender pleads that the suins of cash sued for having been advanced in England, by one native of England to another, that the promissory notes being apparently granted in that part of the United Kingdom, and that more than six years having run from the dates when the notes fell due and right of action arose, that therefore the English Statute of Limitations applied, which excluded all title to recover. This plea seems unfounded. Justice Story thus states the law of the question which the defender has raised: "It is universally adınitted and established that the forms of remedies, and the modes of proceeding, and the execution of judgments, are to he regulated solely and exclusively by the laws of the place where the action is instituted; or, as the civilians uniformly express it, according to the ler fori."-Conflict of Laws, 5th ed. sec. 556. And again: "The forms of remedies, and the order of judicial proceedings, are to be according to the law of the place where the action is instituted, without any regard to the domicile of the parties, the origin of the right, or the country of the act."-J. C. 558. Mr Burge in his learned Commentaries on Colonial and Foreign Laws, vol. 3, p. 880, affirms the rule in similar terms, and the law of Scotland adopts it--Ersk. III. 7, 48. The very point raised in the present case was decided by Lord Brougham (Chancellor) in Dow v. Lippmann, 1837; 2 Shaw & M'Lean's Rep., H. L. 730. If the question had been raised whether the defender had remained in England until the statute of limitations, operative in that kingdom, had taken effect, it would have been impossible to disregard the plea, or refuse its effect. Mr Burge observes: "The foreign prescription is the rule in Scotland, in all cases where the debtor has remained long enough domiciled in the foreign country to bring it into operation, For the debt being once extinguished abroad cannot be revived merely by the debtor's passing into Scotland."--3 Burge, P. 882; see also Notes Ersk. III. 7, 48. But there are no averments to raise this plea, nor has the plea been stated.

The pursuer, assuming that the Scotch law of prescription applied, inaintained that the defender's letters in process elided its operation, but all the letters produced, except those of date 27th April, and 28th May, 1859, are within the years of prescription, and the two latest, which are beyond, do not refer to the promissory notes, nor do they acknowledge any debt at all. To have answered the pursuer's purpose, these latest letters ought to have referred to the notes and recognised the debt as subsisting, Bell's Principles, sec. 599; and no merc reference to a debt still unsettled will suffice. Blair v. Horn, 30th Nov., 1858, 31 Juris, p. 15; and Bank of Scotland v. Horn, 31 Jurist, p. 510. But if the pursuer is satisfied with his position he can renounce proof scripto, and suffer the case to take its final course.

On appeal the Sheriff adhered to the findings of the Sheriff Substitute, but on the motion of the defender he opened up the record, to the effect of allowing the defender to add an alle gation that he had reside in England for six years after the notes became due, and that they thereby fell within the Statute of Limitations. The following is his Interlocutor:

pre

Having heard parties' procurators under the defender's appeal upon the Interlocutor appealed against, closed record, and whole process: Finds, that the case, as the record at sent stands, has been rightly decided by the Sheriff-Substitute by the Interlocutor under review, seeing the want of any allegation on record as to the defender having resided in Eugland for six years after the promissory note libelled on fell due, does not let in the plea in law stated by the defender founded on the English Statute of Limitations, but in respect the defender states he is now prepared to supply that defect in the record, by averring that he resided in England for more than six years after the note fell due, and that the note thereby fell under the Statute of Limitations: Finds, that the record has not been properly made up, therefore recalls the Interlo.

cutor complained of, opens up the record, and allows the defender, on payment of one guinea of interim expenses to the pursuer within six days, and on the same being marked as paid on the Interlocutor sheets, to amend his defences to the effect above stated, and remits to the Sheriff-Substitute to adjust and close the record of new, and thereafter to do farther in the cause as to him shall seem just. Act. ROBERT CARSWELL. All. W. D. HALL.

20TH DECEMBER, 1859.

SHERIFF COURT, GLASGOW. (MR SHERIFF STRATHERN.)

CHARLES M'LAREN C. HENRY MCULLEY. Landlord and Tenant Damages-Liability for. Circum stances in which a tenant was held liable for damages, occasioned to the tenant of the flat below by the overflow of

wuler.

THE defender in this case is proprietor of a flat in Jamaica Street, (lasgow, which is let to a tenant, and the pursuer is tenant of the flat immediately below, which belongs to another landlord. In April and May, 1858, water escaped from the pipes and jawbox in the defender's flat, which were in an imperfect state of repair, and caine through the roof of the pursuer's warehouse, and damaged his goods. To recover that damage the pursuer raised this action.

The whole facts of the case as disclosed in the proof, are detailed in the Sheriff-Substitute's Interlocutor, which we subjoin:—

and whole cause, Finds, in point of fact, that on or about 3d Having heard parties' procurators on the concluded proof and 21st April and 6th and 8th May, 1858, water in considerable quantities was permitted to flow from a cut or hole in a water pipe imperfectly closed, and which pipe led from the cesspool situated under the jawbox in the kitchen of the house belonging to the defender, in the tenement No. 24 Jamaica Street, Glasgow; and the water fell on the floor, and descending through the ceiling of, and into the back warehouse in the occupation of, the pursuer, underneath the defender's said kitchen, and on each occasion damaged, by discolouration, zinc goods which were stored there, and caused considerable con fusion in the pursuer's business premises and labour in shifting and replacing the goods: Finds it proved that during the said occasions libelled the defender's said house was in the occupa tion of a tenant, and was not possessed by himself, but that the defective state of the said cesspool pipe was the cause of the overflow, and it has not been proved to have been caused by any fault of the tenant: Finds it proved that complaint was made to the defender immediately after the first overflow to have the pipes repaired; but, although he promised, he failed to do so, and a second, third, and fourth overflow happened, causing continuing damage to the pursuer's said goods, and exposing him to inconvenience and trouble; Finds, in point of law and in these circumstances, that the defender is liable in damages to the pursuer: Finds that the pursuer has failed to prove specific dainages or to supply detailed information of his loss, but the same has been vaguely stated at £4 and £5, and at "some pounds cach time: Finds that having regard to the description of goods injured (zinc rones), which were manufactured for, and meant to receive, water, and, therefore, not and to the indefinite nature of the proof of damage, that in the likely to be seriously injured by the overflows complained of, whole circumstances ten pounds is a reasonable sum in name of Therefore finds the defender liable in that sum; finds him also compensation for the injury to goods and inconvenience suffered: liable in expenses: Allows an account thereof to be lodged, and remits the same to the auditor to tax and report, and decerus.

NOTE. The Sheriff-Substitute has not taken into account the claim which the pursuer loosely sets up in his summons for damages alleged to have been sustained prior to 3d April, 1858, because, besides being inaccurately and too generally libelled, the proof does not support the claim; neither has effect been given to the injury alleged to have been sustained, through thẻ

flooding, to the house and property of the pursuer's porter, M'Lellan, because the pursuer is not in titulo to claim damages on that individual's behalf; nor has any consideration been given to the damage proved to have been done to the ceiling of the pursuer's warehouse, and to the paper on the walls, because these are not grounds of loss complained of in the summons. On the other hand, the Sheriff-Substitute thinks that the proof in defence, which would attribute inferentially the cause of the flow of water on the pursuer's warehouse to the tenant in the occupation of the house above the defender's, is unsatisfactory, and does not excuse the defender. It may be true that water descended on the defender's tenant from the tenant above, but it is very clearly established that on some of the occasions, when the overflow complained of happened, the witnesses saw, in the defender's house, the servant maid drying up the water on the floor, and no trace of water having come to that house from above could be traced. Then, it is established that when challenged, the defender admitted the fault to be his, and agreed to have it remedied. Besides, it is in evidence, as indicating conscious liabilty, that the defender had offered a sum in name of compensation to the defender. If the defender had repeated the offer in this action, and made consignation of the sum, it might have saved him from expenses, but that course was not taken, and a very unsatisfactory de fence stated, which leaves no alternative but to award expenses as a natural sequence to the finding of damages.

(1.) That the award founded on was not binding upon the defender, in respect the arbiter had disqualified himself from acting, by having had numerous meetings with the pursuer, without the presence of the defender, in reference to the subject matter of the reference; by having received payments from the pursuer in connection with said reference, without the knowledge of the defender; and by having become cautioner for the pursuer for payment of certain marble jambs, mentioned in the minute of agreement and sale, and forming one of the points of difference between the parties.

(2.) That the sum sued for was not due, in respect the pursuer had failed to give the defender possession at the

NOTE.-The defender here made out a very tolerable case of non-liability, founded upon some evidence which he adduced, tending to show that the water which injured the pursuer's premises came not from the flat above or the jawbox for which the defender was responsible, but from the flat above, which was in the possession of a tenant. But that case, which was founded entirely on an inspection and proof in June, 1858, and about a year after, is entirely destroyed by the report produced by Mr Sim as a haver, dated April, 1858, at the time when the flooding complained of was going on, which shows that, at that time at least, the jawbox was letting out to a great extent, and the damage was directly owing to that. If the defender had repeated his offer of £12, and consigned the money, he would have been entitled to expenses, instead of being found liable in them; but as he did not do that, nor found his defence upon any water having come in from the floor above, but contested his liability upon other grounds, which were either futile or have been disproved, the finding of expenses became unavoidable.

JAMES CONNELL v. WILLIAM WALLS.

Submission-Award - Reduction.--Held, that pleas arising out of alleged irregularities on the part of the arbiter, cannot competently be maintained in defence to an action founded on a formal written award.

By minute of agreement and sale, entered into between the pursuer and defender, they referred to the amicable decision and final sentence of George Bell, architect, Glasgow, all disputes and differences between them, in connection with the sale and finishing of a self-contained lodging and pertinents, forming No. 11 Hamilton Park Terrace, under a sale thereof by said minute by the pursuer to the defender, for the sum of £1250, and all claims of every kind, one against the other, arising out of or relative thereto.

On 24th August, 1858, the arbiter issued an order, finding that £1050 had already been paid, appointing the defender to make a further payment of £120 to balance of the price of the

possession on 25th May, 1858, and the pursuer was liable in a penalty of £20 for every month the defender was kept out of possession after that date; that the defender had been under the necessity of raising an action before the Court of Session to obtain possession, and that he did not succeed in obtaining it till 30th December, 1858, by which time £160 of penalties had been incurred. Further, the house was unfinished when the defender obtained possession, and he had expended a considerable sum in completing the stipulated work.

(3.) That the defender had not had an opportunity of seeing the alleged interim award, and in the meantime he pled that it was ultra vires of the arbiter, and otherwise defective in law.

The pursuer answered, that the defender was not entitled to state, by way of exception, such objections to the agreement or interim award, and that, assuming the defence to be true in point of fact, it could not be given effect to in this Court. The agreement and award were ex facie formal and regular, and reduction was the only form in which they could be set aside.

The Sheriff, after hearing parties, gave effect to this view, and repelled the defences. The following is his Interlocutor:

Having heard parties' procurators, and resumed consideration of the whole process: Finds, that it is not denied by the defender in his ininute of defence, that the submission under which the decree arbitral, founded on in the summons and produced, was pronounced, was regularly entered into, conform to minute of reference, No. 8/1: Finds, that where gence cannot be done thereon, the proper course seems to be, from any omission or oversight in the deed of reference, dilito institute an action before the Judge Ordinary or Court of Session, founding upon the award, and craving decree in terms thereof, and in such action the defender is not entitled to go into the merits of the submission or decree arbitral, they being as much entitled to protection without a clause of registration as with it, (see Parker on Arbitration, p. 191): Finds, that the only defences stated in the action are directed against the validity of the decree arbitral, and these cannot be entertained unless in a reduction: Finds that the Sheriff-Substitute offered to sist this process for a reasonable time, provided the defender stated that it was his intention to raise a reduction, but he declined to make such statement: Therefore repels the defences, and decerns in terms of the conclusions of the sunmons: Finds the defender also liable in expenses, allows an account thereof to be given in, and remits the same to the auditor to tax and report.

(To be continued.)