1842. CALLANDAR v. the commodity. Such consent is tacitly manifested by acceptance, which assent materially differs from the delivery, as sufficiently appears from the rules on PrescripDITTRICH. tion, tit. 5. ss. 343. (a) and 344. (b); and therefore, where acceptance never took place, as in this case, there is no ground for contending that the period of limitation has begun to run." "Interpreter's Remarks. ["The narrative of the facts having thus been given (as usual in the Prussian judgments), and the quotations and opinions of both mandatories (called commissary of justice in Prussia, synonymous with, and joining the functions of, solicitor, attorney, lawyer, advocate, notary,) stated, the judges now, in their sentence, enter into a special inquiry on the nature of the agreement, merely to ascertain (as they say), where the tares were to be delivered, and when the same have become the property of the plaintiff. For this reason, they have referred to certain extracts of letters, (the dates of the letters follow); and as to the nature of the agreement, they consider this indifferent, both parties having agreed that it should stand as a contract of delivery. Now, as it would be useless to repeat and re-translate into English such extracts and arguments, which would tire and absent the English lawyer or judge, the interpreter leaves that, and now enters upon the real grounds whereby the judges justify their sentence or judgment."] "In the case now lying before us, the agreement (sense of contract) was clearly this, that the defendant had to deliver the commodity here in Konigs (a) Suprà, 77. 1842. berg into the vessel for account and risk of the plaintiff'; such follows, doubtless, from the correspondence between the parties as above referred to, by which the CALLANDAR contract was settled. "The defendant had engaged to deliver a cargo for the plaintiffs, free on board here, and the plaintiff in his letters, 31st January and 30th March, left to the defendant the choice of a vessel, thereby, indeed, recommended to him the earliest possible shipment, and dividing of the whole quantity and shipping it in small vessels, that the danger of heating be lessened; and further stated that English vessels should be preferred, without, however, restricting the arrangements to be made as to the shipment, to either of the courses intimated; therefore defendant was fully entitled to make out the invoice as he did, expressing that he had shipped the tares upon order, and for risk of the plaintiff; he left to the latter to procure the insurance, and with respect to the same, only observed that he might mind (consider of) the risk of craft for the cargo between here and Pillau, and the plaintiff, in consequence of such invoice, thought himself bound to pay the balance of the said invoice. "So, by the shipment of the tares on board the vessel, the delivery was effected, and the contract in casu performed on the part of the defendant. Had the vessel miscarried, and the cargo been lost, the loss of the tares would have touched the plaintiff or the underwriters. "After fulfilled delivery, the rules on the agreement of purchase (s. 987. I. 11., of the Prussian Code (a)), are the only ones that may be applied. Therefore the plaintiff was no longer at liberty to recede from the contract, as from the day of the completed delivery v. DITTRICH. 1842. . DITTRICH. of the tares into the vessel, the risk as well as the ownership thereof went over upon him; and if he thought CALLANDAR the tares defective on their arrival in London, he could then no more refuse the receipt of the same as from the delivery into the vessel. According to contract, the property had become transferred from defendant upon the plaintiff; as to the deficiencies in promise (complaints in respect of badness of quality), the plaintiff was now only allowed to refer to the title arising from s. 198. I. 11. and s. 319. seq. I. 5. (a), loco cit. The protest could be of no use to him, as he had become the owner of the commodity, from the moment of shipment on board the vessel here. "Therefore, it is also without effect or influence when the plaintiff maintains, that if it be impossible to a purchaser on delivery, to ascertain of the quality before the receipt of the commodity, as on the one hand he may have such goods as are to be delivered abroad inspected or examined previous to and on the shipment taking place, and may suffer the goods to be shipped only in case they be found conform to agreement; and, on the other hand, nobody is entitled to form any claim or right to himself, from the neglect of precautionary measures, under the pretext, that it has been impossible to him to express his mind upon the quality of the goods before the delivery of the same. The defects in the article which the plaintiff complains of as being contrary to the stipulated quality, he is bound to establish, within the limited periods appointed by sections 343. and 344. part I. tit. 5. of the Prussian Code, before a competent tribunal, to which the defendant is legally amenable. "Such prescription commenced, according to s. 343., (a) Which sections contain a variety of provisions relating to defects in articles which have formed the subject of contracts. from the day of receipt; and after s. 344., from that of perceiving the deficiency. 1842. V. DITTRICH. "Indeed, the first day is not to be considered identical CALLANDAR either with the day of delivery-if we reflect upon such, as per s. 128. I. 11., loco cit.—of that of transmissionin this case, representing the day of delivery (which has been set forth so striking by Bornemann in his observations or "Commentary on the Prussian Civil Law," par. 2. page 607. s. 99.): on the contrary, it may be assumed from the general principles upon prescription, as doubtless, that the limitation should commence only from that day when the examination through the entitled (by the person entitled to the goods) could possibly take place, and, of course, from that day when the object was really taken possession of by him (went into his custody); wherefore, in order to point this out in s. 343., there has intentionally not been fixed upon the day of delivery, but on the day of receipt of the object, as the commencing moment of prescription. "In consequence hereof, the prescription against the plaintiff in this cause first began from the arrival of the tares in London, when and where the same could be taken possession of by him, and he became enabled to inform himself of the alleged defect in quality. "But also from this term,-being the 5th of June 1837, until the day of commencing his action, on the 10th of June 1838, the limitations for denouncing the claims upon warranty, at the furthest six months, as prescribed by ss. 343. and 344. loco cit., had long ago elapsed. The plaintiff consequently has lost his right of claim (s. 345. loco cit.) "As to the 133 quarters which remained behind, the agreement of the parties, that the plaintiff renounces the receipt, and the defendant is consenting thereto, was to be and has been confirmed. "The decision upon the point of law-charges follows 1842. CALLANDAR v. DITTRICH. from s. 2. tit. 23. of the regulations upon law proceedings; which regulations are universally binding. "Issued under the seal entrusted to us, and the usual signature. "Konigsberg, on the 31st day of May, 1839. (L. S.) "Royal Prussian College of Commerce and Admiralty. "Stellter." (a) Signed, Objections were taken on the part of the plaintiff to this judgment, on the ground that no libel or other proceedings were shewn, and that no jurisdiction of the court was proved. All objections to the judgment were reserved by the Lord Chief Justice for the consideration of the court; and a verdict was found for the plaintiff on all the issues but the third, which applied to the second count. A rule nisi had been obtained by the defendant in last Michaelmas term, to enter a verdict for him on the fourth issue (3) (being the issue raised by replication to the fourth plea), and a cross rule was obtained by the plaintiff, to enter judgment non obstante veredicto, for him, in case the defendant's rule should be made absolute. Channell Serjt. and Byles, on the part of the plaintiff, now shewed cause against the former rule. The onus |