Dixon et al. v. Bovill [1856] UKHL 3_Macqueen_1

UKHL

Dixon et al. v. Bovill

[1856] UKHL 3_Macqueen_1 · 1849-09-04

REPORTS OF CASES ARGUED AND DETERMINED IN The House of Lords.

No. 1

Dixon et al. , Appellants v. Bovill, Respondent

1856 . May 30th , June 2nd , 3rd , July 29th .

Subject_ Iron Scrip Notes, Character of. —

An ironmaster gave to his vendee a note in these words:

“I will deliver 1,000 tons of iron when required, after 18th September next, to the party lodging this document with me.”

Held, by the Lord Chancellor, that this document was not a negotiable instrument of mercantile exchange.

Subject_ Jury Trial. —

Circumstances under which, the jury having been discharged, “in order that the parties might bring the case before the Court for judgment,” it was held that the judgment so pronounced, not having been pronounced by the Court below in the character of arbitrators, it was consequently subject to the reviewing jurisdiction of the House. Embarrassment occasioned by the practice of “not requiring the jury to find for the Plaintiff or the Defendant, or to find a special verdict upon which exception may be taken, if necessary, to the ruling of the Judge.

The summons was by Thomas Balls and Son, of London, iron merchants, against William Dixon, of Glasgow, ironmaster; and it stated that Balls and Son had in July 1849, purchased from Smith and Son, and paid 2,200 l . for a document granted by the Appellant Dixon, in the following terms:—“Glasgow, 10th

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The Appellant put in a defence, insisting that the order aforesaid could not be received as evidence of any undertaking on his part, because it was unstamped, and did not bear to be granted in favour of any person by name; that it was null under the Act of 1696, c. 25;—that supposing any right to have been constituted under it, such right was not legally transferable without a formal deed of assignment;— that in any view, Balls and Son were liable to all exceptions and defences competent to him (the Appellant) against Smith and Son, the parties who had

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The Appellant delivered 500 tons of the iron to Balls and Son, in terms of a special arrangement; and by a “Minute,” Balls and Son restricted the conclusions of the summons to a demand for delivery of 500 tons, and failing delivery, for payment of 2,000 l . sterling in respect of damages.

Balls and Son having become insolvent, the Respondent, George Hinton Bovill, was appointed to wind up their affairs under a composition contract, and thus became the Pursuer of the Action, and the Respondent to the present Appeal.

The proceedings commenced before the Sheriff of Lanarkshire, Sir Archibald Alison; who on the 10th of March 1852, (altering the Interlocutor of the Sheriff Substitute ,) sustained the defence of Dixon, and in doing so issued the following note:—

The grounds on which the Sheriff proceeds in pronouncing the above Interlocutor, are, first, that there is a distinction between the English and Scotch law, in regard to the transference of moveable subjects or jura incorporalia , the former holding the transfer completed by assignment alone; the latter, in addition, requiring delivery or intimation. 2ndly, That as the Defender's defence against payment is founded on his right of retention of a fund which has never passed out of his hands, the fact of intimation of the transfer of the scrip having been made to him, is no derogation to his fundamental and inherent right of retention , any more than a similar intimation to the keeper of a bonded cellar, whose goods, which had been transferred by indorsation of their bill of lading, could be excluded by that intimation from pleading his right of retention for warehouse rent, or other similar charges. 3rdly, That these principles have been applied by the Court in the case of Melrose, 7th March 1851; and subsequently, by Lord Dundrennan in the case of Dimmack, Thompson, and Firmstone; and that thus, on principle and authority, the defence founded on the right of retention should be sustained.

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The case was then carried by advocation to the Court of Session.

(a) found as follows:—

The Lord Ordinary finds that the document libelled, and which was granted in re mercatoria , is not struck at by the Statute, 1696, chap. 25, and that it does not require a stamped deed of assignation to transfer the right to the said document, to the effect of entitling the holder thereof to enforce implement of the same. Finds that the said document was intimated and transmitted to the Defender by the Pursuers, and acknowledged and acted on by the Defender, as giving the Pursuers right to delivery, before any right of retention had arisen in favour of the Defender as against Messrs. Smith and Son, the original holders. Finds that, in these circumstances, the Defender cannot now plead against the Pursuers any right of retention arising out of the subsequent bankruptcy of Messrs. Smith and Son; but is bound, under the document libelled, to deliver to the Pursuers the iron specified in the said document; and therefore, in the whole matter repels the defences, and decerns against the Defender, in terms of the first conclusion of the libel as restricted.

His Lordship added the following note in explanation of his decision. The question is deemed very important. We therefore give the Lord Ordinary's statement and reasoning at length:

to have been another transaction for 2,000 tons between the parties, of subsequent date, in which bills and iron scrip-notes were interchanged; but the details are of no importance, and it need not be further referred to. It will be remarked in passing, that the iron was deliverable during the currency of the bills , and also that the second parcel of iron was deliverable nearly three weeks before the bill for the first parcel became payable . Smith and Son became insolvent, and were unable to retire the bill for the first parcel of iron, which fell due on the — of September, and a commission of bankruptcy was soon afterwards issued. The Respondent is not very explicit in his statements about the date of this insolvency; but it was admitted by his counsel at the debate, and the Lord Ordinary took a note of the admission, that the insolvency was to be held as of the 28th of September, when the bill for the first parcel was dishonoured. and another for 200 tons, all of which I trust you will find correct.” person with whom he originally transacts, and without reference to any condition as to price, puts into circulation a note of delivery, binding himself absolutely and unconditionally, for so the note may be, and the Lord Ordinary rather thinks should be read; how can he be heard to plead against the holder of the document, who has it for value, that he has a right to retain, in respect of the price not being paid by the unknown original purchaser of the note, or in respect of subsequent and independent transactions between him and that party? where the ground of exception competent to the cedent did not exist, when the assignee's right was completed. In this case, certainly, it did not exist, for it arose only in consequence of the subsequent insolvency of Messrs. Smith and Son; and it is not and cannot be pretended that any objection could have been taken if the whole parcel had been required to be delivered.

The Defender, Mr. Dixon, through his agent, Mr. M'Culloch, appears to have sold to Messrs. Smith and Son of London a parcel of iron of 1,000 tons, at the price of 2,200 l ., for which they granted a bill, dated 26th June 1849, and payable September 28, 1849. The bill was received by Mr. Dixon, who in return, granted a delivery note, dated 29th June 1849, bearing that he would deliver to the holder of the document 1,000 tons No. 1 pig-iron, free on board at Glasgow, after the 25th of August next, upon the same being lodged with him. Another transaction took place in the course of July, by which Messrs. Smith and Son purchased another parcel of iron of the same description, and at the same price. They accepted a draft for it at 2,200 l ., at three months, which became payable on the 13th of October 1849. The accepted draft was handed over to Mr. Dixon, and Messrs. Smith and Son received a second iron scrip note, as it is termed, in these terms:—“Glasgow, 10th July 1849.—I will deliver 1,000 tons No. 1 pig-iron, free on board here when required, after the 10th day of September next, to the party lodging this document with me. (B.151.) (Signed) For William Dixon, John Campbell.” There appears

Footnote

( a ) Lord Rutherfurd.

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In the meantime, Messrs. Smith and Son had sold to the Complainers, Balls and Son, 1,000 tons of iron. Balls and Son granted Smith and Son their bills for the price, dated 14th July 1849, payable at four months, and these bills have been retired; so that, between Balls and Son and Smith and Son, the price has been paid. Upon granting the bills, Messrs. Balls and Son received from the Messrs. Smith and Son the delivery note, dated 10th July 1849. In the course of August and September 1849, a correspondence took place between Messrs. Balls and Son and Mr. Dixon, which is of great importance. Messrs. Balls and Son, with reference to the scrip which they held, proposed that Mr. Dixon should allow them to divide the parcel, so that they might sell it in portions. This, however, Mr. Dixon refused, by letter of the 29th of August. Messrs. Balls and Son, in a letter of the 30th of that month, say,—“We clearly understood the 1,000 tons was unfettered in any way, or we most assuredly should not have bought your order; for how is it possible for any merchant to take away, or you to deliver, 1,000 tons at once? Our idea was, that as we had only sold 500 tons, 300 and 200, for immediate shipment, it would be an accommodation to you in the result. However, it wants but a few days; if we send you the order for 1,000 tons, will you at once reply to our orders on you, that you will ship the 300 and 200 tons when required?” Mr. Dixon's answer was, of this date:—“Your favour of the 30th ult. was duly received, but owing to the absence of the writer, was not replied to at the time. Messrs. Smith and Son purchased the 1,000 tons pig-iron, as I understood, for their own use; and on the undertaking being lodged with me I will ship the iron as required, in the usual way.” On the 5th of September, Mr. Short, on the part of Messrs. Balls and Son, wrote:—“By desire of Messrs. Thomas Balls and Son, of London, I enclose your undertaking, dated the 10th July 1849, for 1,000 tons of No. 1 pig-iron. Against this deposit Messrs. Balls and Son have given an order on you for 300

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And with this letter the delivery note was transmitted to Mr. Dixon. It was received, therefore, and held by him subsequent to the time when , under the note of 10th July, he had engaged to make delivery , and before any plea of retention had opened, in consequence of the insolvency of Messrs. Smith and Son.

The rest of the correspondence during the month of September does not appear to be material. The Lord Ordinary, however, must observe, that on Mr. Dixon's part there was very great delay in his correspondence, and in accepting and complying with the various delivery notes made by Messrs. Balls and Son. At last, in consequence of the insolvency of Messrs. Smith and Son, Mr. Dixon refused delivery, and the Complainers intimated their claim for the iron and for damages. A great many points have been taken in defence. It was pleaded, and in reply, very anxiously, before the Lord Ordinary, that the scrip note was illegal, as not being stamped or probative, and was not transferable by mere delivery; but required a deed of assignation probative by the law of Scotland, and duly stamped.

The Lord Ordinary, though he thinks the present case may be decided on its specialties, cannot pass on to consider them without observing that he thinks the scrip note, as it has been called, which occurs here, is in some respects essentially different from the delivery-notes payable to a particular party or order, or to a particular party or bearer, which has been the tenor of most of those that have hitherto been the subject of judgment. The note in this case specifies no party; it contains a simple obligation to deliver, when required, to the party lodging the document , and it is not otherwise addressed. And it may be of importance to observe that Smith and Son had objected to the scrip note offered for the first parcel, on the ground that the iron was made deliverable to themselves. Assuming that such a note may be granted, and that it may pass from hand to hand, the first question is—what is the obligation undertaken by the grantor, and has the obligation which he has come under to deliver the iron any reference to an existing or possible claim of retention as against any third party, whether a purchaser or the original holder? It seems impossible to doubt that a party may undertake such an obligation. Would any legal difficulty attend the document in which the party bound himself to deliver a certain parcel of goods to the holder of the note, declaring expressly that he waived all claim of retention, or any other plea of personal exception that might be competent to him as against the first grantee in the note, named or not named? The Lord Ordinary sees no objection in law to such a document. If he is right in repelling the prejudicial defence, he thinks it would merit very grave consideration were it necessary to argue the point, whether such be not truly the legal import and character of the note issued in this case. When a party, without reference to the

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The Lord Ordinary doubts whether too much effect has not been given to the circumstance that the original purchaser may have been known to the complainers. Messrs. Balls and Son may have been aware that Messrs. Smith and Son were the first purchasers from Mr. Dixon That will not alter the character of the note, or the obligation undertaken by it, and will not bring the case within the principle which has been applied to an order of delivery prestable “to a party named or his order,” or “to a party named or bearer.” With reference, however, to the decisions upon notes of the last import, the Lord Ordinary cannot feel confident in the distinction to which he has now referred, though, in a case of different circumstances, he would have thought it worthy of grave consideration.

But even this does not appear necessary for the decision of the present case. In this instance the delivery note was presented to Mr. Dixon before any right of retention whatever had arisen in Mr. Dixon's favour as against Messrs. Smith and Son, or against any other party. The insolvency of Smith and Son did not happen for a fortnight afterwards. If Smith and Son had demanded delivery, Mr. Dixon could not have refused it when the scrip was presented. His obligation was prestable during the currency of the bills. The currency of the bills, therefore, formed no ground of exception. But the note was not merely intimated to Mr. Dixon; it was actually transmitted to and received by him; and he not only did not intimate to the Messrs. Balls and Son any possible claim of retention, for he had no actual claim, but he acknowledged distinctly his obligation to deliver to them in lump,—that is, the whole parcel. The only objection stated by him was, that he did not choose to split the order, as he called it, or make delivery in smaller parcels; and even that objection he waived, and engaged to deliver to the orders of Messrs. Balls and Son, whom he then plainly held to be the owners of the iron, certain parcels of considerable amount. Whether the parcels he thus undertook to deliver exhausted the 1000, is matter of little moment, for the undertaking is equally conclusive of the fact, that in respect of Messrs. Balls and Son's transmitting the note be held them to be the owners of the iron.

The Defender pleaded strongly on the maxim, Assignatus utitur jure auctoris . But the Lord Ordinary is not aware that the maxim can receive application in such circumstances as these

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The Lord Ordinary would only observe, in conclusion, that the present is not a question with creditors. It is not a question with the trustee on a sequestrated estate, who claims retention of goods sold, but found undelivered in the bankrupt's hands. Such a case stands upon quite different grounds, and would not be affected by the circumstance even of the price having been paid. Here it is a claim of retention pleaded by the seller, in respect of the price not being paid by the original vendee. The Lord Ordinary does not understand that the trust-deed makes any difference in the case, and does not observe that anything is founded upon this circumstance by the Respondent.

The Appellants submitted this decision to the review of the Second Division, and a variety of procedure having subsequently taken place (a) , the cause on the merits was finally considered by the Court below (21st February 1854), when the learned Judges of the Second Division pronounced judgment as follows:—

after the 10th September, and did wrongfully refuse to deliver the same to the original Pursuers lodging the document with him. Find that the said wrongful refusal is, in the whole circumstances of the case, to be taken as at 1st October 1849. Find that the said William Dixon, having so wrongfully failed to deliver, is, and the other reclaimer, William Johnston, his trust-disponee, is also bound, in terms of the libel as restricted, now to deliver 500 tons of pig-iron No. 1, free on board at Glasgow, to the present Pursuer, George Hinton Bovill, on demand, under said document, duly lodged in 1849 with the Defender, William Dixon. And find, ordain, and decern accordingly; and allow decree for delivery of the said 500 tons of pig-iron No. 1 to be extracted ad interim .

The Lords find that the document founded on, dated Glasgow, 10th July 1849, which was granted in re mercatoria , is not struck at by the Statute, 1696, cap. 25, and that it does not require a stamped deed of assignation to transfer the right to the said document, to the effect of entitling the holder thereof to enforce implement of the same. Find that the original pursuers, Balls and Son, became the onerous holders of the said document. Find that they intimated and lodged the said document with the Defender, William Dixon. Find that after 10th September 1849, they were entitled to demand delivery of 1,000 tons of pig-iron No. 1, free on board at Glasgow, in virtue of said document. Find that according to the sound construction and legal effect of said document, no right of retention remained in the Defender, William Dixon, against the holder of said document lodging the same with him, in respect of any claims he might have after the said 10th September against the party who originally entered into the contract of sale with him for the purchase of the said quantity of iron, and repel such plea of retention proponed against the holder of the said document. Find that the said William Dixon was absolutely bound to deliver the said iron in such quantities as might be arranged by the parties

Footnote

( a ) See infrà infrà , p. 20.

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Against this judgment the present Appeal was tendered.

Sir FitzRoy Kelly and Mr. Rolt for the Appellants. The question is whether upon a contract for the sale of iron the right of the vendee can be transferred, as attempted in this case, the price being unpaid . The document of 10th July 1849, purports to be a promissory note; not, however, for the payment of money, but for the delivery of a certain quantity of iron. We submit that the following reasons of appeal are unanswerable. First, we contend that the original vendor is not bound to deliver to the second vendee where the price has not been paid by the original vendee. Secondly, this document is not negotiable, nor can any right under it be transferred by mere delivery. Thirdly, we insist that the Appellant was entitled to retain the iron on the insolvency of the original vendee, although the bill which had been granted for the price was not then mature. And, fourthly, we contend, upon Scotch law, that this document, being blank in the name of the party to whom it was granted, is null and void under the Act of 1696, c. 25. There is upon this question no difference between the law of Scotland and the law of England. This document is not a bill of exchange, neither can it correctly be called a promissory note.

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Footnote

( a ) 3 & 4 Ann. c. 9. and 12 Geo. 3. c. 72.

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The cases and authorities cited by the Appellants were Leslie v. Robertson(a) , Douglas v. Erskine

(b) , Bruce v. Maxwell

(d) , England v. Bates

(e) , Townley v. Crump

(f) , Bloxam v. Sanders

(g) , Graves v. Key

(h) , Miles v. Gordon

(i) .

The Solicitor General (j) , Mr. Anderson , and Mr. Bovill for the Respondents. The engagement here is to deliver iron to the party producing the document, which is of a description not illegal or repugnant to general principle, but eminently calculated to promote convenience in commercial transactions. The nearest approximation to this document is that of a bill of lading.

But even if the decision of the Court below were erroneous or doubtful on the general question, the Appellants are bound by the correspondence. And such was the opinion of the Lord Ordinary .

The Respondents' Counsel cited Bell's Prin. (k) , Hay v. Brookes (l) , Shaw v. Fisher (m) , Wynne v. Price (n) , Young v.

(o) , Midland, Great Western

Footnote

( a ) Morr. 1397.

( b ) Morr. 1397.

( c ) Morr. 1397.

( d ) 6 Bell, App. Ca. 340.

( e ) 11 Ad. & El. 856.

( f ) 4 Ad. & El. 58.

( g ) 4 Barn. & C. 941.

( h ) 3 Barn. & Ad. 313.

( i ) 4 Tyr. 295.

( j ) Sir R. Bethell.

( k ) Sect. 8.

( l ) 10 Ad. & El. 309.

( m ) 2 De G. & Sm. 11.

( n ) 3 De G. & Sm. 310.

( o ) 4 Rail. Ca. 135.

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Sir FitzRoy Kelly replied .

Lord Chancellor's opinion .

The Lord Chancellor :

My Lords,

In this case the defence against the action rests upon two grounds: first, the invalidity of the document of 10th July 1849, and, secondly, that the holder can stand only in the place of Smith and Son.

The action was originally brought in the Sheriff's Court, and the Sheriff decided upon the latter ground (i) , namely, that Smith and Son not having paid for the iron, Balls and Son, the holders of the document, could not enforce the contract against Dixon—that Dixon, in truth, had what we should call a lien, or what they call in Scotland a right of retention, until the price was paid.

The Lord Ordinary , however, took a different view of the case, for by his Interlocutor he found that the “document libelled was intimated and transmitted to the Defender by the Pursuers, and acknowledged and acted on by the Defender as giving the Pursuers right to delivery, before any right of retention had arisen in favour of the Defender as against Smith and Son, the original holders.” And upon that ground he reversed the Interlocutor of the Sheriff and decerned in favour of the Pursuers.

If the question had turned exclusively upon the validity or invalidity of this document, I am bound to

Footnote

( a ) 5 Rail. Ca. 76.

( b ) 3 Barn. & C. 45.

( c ) 5 Mee. & Wel. 462.

( d ) 6 Mee. & Wel. 58.

( e ) Court of Session, 22d Dec. 1855.

( f ) 1 Smith's L. Ca. 431.

( g ) 1 Barn. & Ad. 712.

( h ) 14 Mee. & Wel. 794.

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Bills of lading, I may observe, afford no analogy whatever. A bill of lading is a mere symbol of property. No right of action passed by indorsement previously to the Act of last session (b) , which caused a right of action to pass as well as a right of property. No authority for such transferable right of action has been adduced in argument before your Lordships, and all principle is against its validity.

The rule preventing such actions is by no means one of a technical nature. It is a rule founded in extremely good sense. In England, a plaintiff suing

Footnote

( a ) As to the trial, see infrà infrà , p. 20; and see next case, Mackenzie v. Dunlop , infrà infrà , p. 22, and more especially the evidence of Mr. Connal, p. 38, showing that these iron scrip notes were of recent introduction, ill understood, and “not liked by English correspondents.”

( b ) 18 & 19 Vict. c. 111., enacting that active remedies shall pass with the property.

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The policy of such a rule may be illustrated by considering in the present case how the matter would have stood if there had been (which there is doubt there was not) illegal consideration between Dixon and Smith. Suppose, for instance, the consideration had been that Smith should aid Dixon in some way in committing a fraud upon the revenue laws; that would have afforded a good defence against Smith and against those who claimed by progress from him. The policy of the law requires that such defence should be pleadable. But these notes, if they are valid, would make such a defence impossible; for it is clear that if they have any effect they give a title independent of that of the original contractor.

If the convenience of those engaged in trade and commerce requires that scrip notes of this description should be made legal and valid, that must be effected, if at all, by the Legislature; and on any measure being introduced for such an object, it will be for your Lordships and the other House of Parliament to consider and weigh well the social benefits and evils likely to result from the sanctioning of the proposed change. It may be that the general adoption and use of these scrip notes would afford safe facilities to commercial enterprise. It may be, on the other hand, that such a practice would tend to produce and keep alive a restless spirit of inordinate speculation, and so be injurious to those engaged in wholesome commerce. But these are all questions for your Lordships in your legislative, not in your judicial, capacity. Looking

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My Lords,

I have thought it right to state this general principle, though I do not think it applicable to the present case. I think the conclusion at which the Court arrived in favour of the Respondents was correct; but I think so by reason of the special dealing which took place between Balls and Son and Dixon.

My Lords,

this appears in the correspondence. Balls and Son, it seems, sold a portion of the iron which they thought they were entitled to receive under this scrip note to different persons, some of whom were Messrs. Nash, Cole, and Elton, of Bristol. According to the terms of the note the iron was deliverable on the 18th of September, although it was not to be paid for till some time afterwards, in the month of October. Shortly before the time when the iron became deliverable, Balls and Son having thus sold, or agreed to sell, a portion of it to these gentlemen at Bristol, a correspondence takes place; and I cannot help suspecting, from the correspondence, that Dixon felt himself likely to be unable to execute the contract which he had entered into, or was supposed to have entered into by this note.

The correspondence, as far as I need advert to it, may be stated to have begun by a letter from Balls and

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On the next day, the 30th of August, Balls and Son write to Dixon, “We are favoured with your letter of the 29th. We clearly understood the 1,000 tons was unfettered in any way, or we most assuredly should not have bought your order; for how is it possible for any merchant to take away, or you to deliver 1,000 tons at once? Our idea was, that as we had only sold 500 tons, 300 and 200, for immediate shipment, it would be an accommodation to you in the result. However, it wants but a few days; if we send you the order for 1,000 tons, will you at once reply to our orders on you, that you will ship the 300 and 200 tons when required? Your reply will oblige,” &c.

A few days afterwards, namely, on the 4th of September, Dixon writes thus to Balls and Son, “Your favour of the 30th ultimo was duly received, but owing to the absence of the writer was not replied to at the time. Messrs Smith and Son purchased the 1,000 tons pig-iron, as I understood, for their own use; and on the undertaking being lodged with

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Then a little further correspondence takes place, which it is not necessary for me to go into,—an angry correspondence rather,—but the result was that Dixon did not deliver the iron.

Now, that being what passed between the parties, it appears to me that the Court was perfectly right in adopting the view which had evidently been the view, and as far as I can collect the only view, of Lord Rutherfurd , that there had been a clear adoption by Dixon of Balls and Son as the parties to whom he undertook to deliver the iron, and to whom he did deliver some; because, being informed as he was by the holders of this scrip note that they held it, which, though it did not in my view of the case give them a legal right, yet gave them a plausible right;—Dixon, if not liable to deliver to them, certainly was liable to deliver upon his original contract with Smith and Son, who were at that time solvent; and it being probably unimportant to him whether he delivered to one or the other, he enters into a distinct engagement (for so I cannot but consider it, looking to his letter of the 4th of September) that he will hold the iron disposable to the orders of Balls and Son. It appears to me that that is a very rational view of the case which was taken by Lord Rutherfurd ; and although not the ground upon which the majority of the Court decided, was the ground adverted to by Lord Wood as being in his view of the case a sufficient ground (a) .

Footnote

( a ) Lord Wood, at the close of his opinion, used these words:“The Pursuer having not merely intimated, but lodged the scrip note with the Defender, at which date no claim of retention had opened to the Defender, even as against Smith and Son, whose insolvency did not happen for a fortnight afterwards; and no objection to delivery having been made, or having been capable of being

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The Lords Spiritual and Temporal in Parliament assembled find, That by virtue of the correspondence which passed between Messrs. Balls and Son and the said Appellant William Dixon, and particularly by, virtue of the letter of the said Appellant William Dixon of the 4th of September 1849, he the said Appellant William Dixon became liable to deliver the 1,000 tons of iron to Messrs. Balls and Son, upon their lodging with him, the said Appellant William Dixon, the document of the 10th of July 1849, stated in the summons: And therefore it is Ordered and Adjudged , That the said interlocutors complained of in the said Appeal, so far as they advocate the cause, alter the Interlocutor of the Sheriff, and find that the Appellants are bound to deliver to the Respondent, in terms of the libel as restricted, 500 tons of pig iron No. 1., free on board, at Glasgow, and so far as they find the Respondent entitled to expenses to the extent of one hundred and sixty-four pounds eight shillings and one penny, and so far as they contain directions consequent on such findings, be and the same are hereby affirmed: And it is further Ordered and Adjudged , That the said Petition and Appeal be and the same is hereby dismissed this House: And it is further Ordered , That the Appellants do pay or cause to be paid to the said Respondent the costs incurred in respect of the said Appeal, the Amount thereof to be certified by the Clerk of the Parliaments.

The affirmance is confined to the specialty arising from the correspondence between Balls and Son and Dixon, as to which the Lord Chancellor (the only Law Peer present) concurred with the effect of the decree of the second division, as well as with the Interlocutor,

Footnote

made on that account, I have not heard anything stated to satisfy my mind that a claim of retention afterwards emerging as against Smith and Son, could be competently founded on as a reason for withholding delivery from the Pursuer.”

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Another point was argued at the bar of the House as to the competency or regularity of the Appeal. An issue had been directed. At the trial no parole evidence was offered; the proof was wholly documentary. The case was left to the Court for decision under a “note” or “minute,” in the following words:—

“In respect that the parties concur in holding that there is no question of fact on which the opinion of the jury could be taken, and that the case on the facts, as now proved, turns wholly on questions of law for the Court, the Lord Justice Clerk discharged the jury, in order that the parties may bring the whole case before the Court for judgment, each party being entitled to state any questions of law which the facts raise.”

The Lord Chancellor held that this “note” or “minute” did not create any embarrassment in the decision by the House of the real merits. The cases of Craig v. Duffus(a) and Dudgeon v. Thomson

(b) went on the principle that the Court below had really acted as arbitrators by agreement of the parties; and consequently that the decision was not subject to the review of the House. “Now the question,” the Lord Chancellor observed, “was, whether that principle is applicable to the present case. I think it is not; because, if it were, it would be carrying the doctrine of Craig v. Duffus and Dudgeon v. Thomson to an alarming extent. At the same time, I may observe, that I think it is of extreme importance for the learned Judges, in trying issues, to proceed strictly in accordance with the form pointed out by the Statute which establishes

Footnote

( a ) 6 Bell's App. Ca. 308.

( b ) suprà suprà , vol. i. p. 714.

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( See the next Case .)

Solicitors: Grahame, Weems, and Grahame — Fry.