therefore, that in this case no further indulgence should be shewn in order to enable the appellant to establish his case by further evidence. The only result will be that his appeal must be dismissed. As he appears as a pauper, it cannot be dismissed with costs. Anderson.-Your Lordships will dispauper the appellant, because he has ample

means.

LORD CHANCELLOR.-It arose in this way-you had obtained an inhibition affecting his whole property. Therefore he had not the means of defence, and he said, if you choose to do that, I will appear as a pauper, and we must treat him as a pauper. Anderson. It would signify very little, because if this is a marriage, as your Lordships declare it is, he is liable for his wife's debts.

LORD CHANCELLOR.-He may be dispaupered. On the present occasion we have him here as a pauper. We must leave that for another application. I think that the order need not be drawn up immediately, so that you may have time to make any application that you may think fit.

LORD COLONSAY.-My Lords, I concur in the judgment that has been suggested by my noble and learned friend. The first point that was presented to us was, whether there ought not to be a further allowance of proof. It is said that the Court below improperly refused to allow further evidence. I see no ground at all for complaint on that subject. The record was made up in the usual manner, and the case went to proof. There was no hurry. There were two days of the examination of witnesses. The judge then took it into consideration from the 21st of November to the 5th of January, and then pronounced [73] his judgment. Neither at the time of leading the proof, nor at the conclusion, not in the interval between the conclusion of the proof and the pronouncing of the judgment, was any complaint made of surprise, or any application made to be allowed to produce further evidence.

Then the case was appealed to the Inner-House, and that must be done within a limited time after the judgment is pronounced-I think now it is limited to ten days; and it was not till the month of May following, when the cause was nearly at the top of the roll for hearing, that application was made to be allowed to produce further evidence. The Court was not moved by anything said then, and I have heard nothing to-day to lead me to think that any wrong was then done which your Lordships are called upon to correct.

Then we have to deal with the case upon the evidence before us. In my humble opinion that evidence is conclusive against the appellant. I think that the document which is produced here is sufficiently proved to be in the handwriting of the defender. There are several witnesses who know his handwriting, and have spoken to that effect. It is difficult for any one, comparing the document thus acknowledged with those proved writings of his which are produced, to have any doubt upon the subject, and, as far as the evidence of the experts may go (though I confess it is not a kind of evidence that I have any partiality for), it is at least confirmatory of the other evidence. The defender denies that it is his writing, but I think it is sufficiently established that it is. That is not a favourable aspect of the matter for him. He also denies that other part of the case, which I think also equally established, as to the connection between the parties after the date of the document.

66

Then, looking at the document itself, the great plea that is urged against it is that the pursuer has not proved her own signature. That is the main stay of the defence. Now, I think, under the circumstances in which this document is presented to us, that it is to be presumed to be her signature. In the first place, it is proved that the whole of this document, unless it be that name Jessie Grigor," is in the handwriting of the pursuer. I say the whole of it, for the doubt simply refers to her signature. Now, looking at the date, if you notice the position in which it is with reference to the signature of the defender, it is very clear that that date must have been affixed after the signature of Jessie Grigor was put upon this paper, and this goes to confirm her statement that she then and there adhibited her signature. I think also, looking at the two signatures, that they are not in the same handwriting. No one says that they are. The witnesses, most of them, excepted the signature "Jessie Grigor" from their opinion as to the document being in his handwriting. Now, looking to the pursuer's possession of the document, this book, which is a book that did confessedly belong to the appellant, which he is proved to have admitted to have given to her, and which she retained and used in the manner she did—I think we cannot avoid coming to the conclusion that this document is a declaration made

8.R.R. MACPHERSON-VOL. X.

3

by both parties, being a de præsenti declaration of their marriage. That being so, it might not be necessary to go further; but that view of the document is evidently to my mind strengthened by the other features of the case. One observation that was made by Sir Roundell Palmer was, that it did not appear that this declaration of marriage was followed up by intercourse afterwards, but that it was something that came in afterwards in the course of that intercourse, and was merely in the nature of a promise de futuro. But, as I read the evidence, it is not proved that anterior to the 2d of September there were any circumstances from which we can infer sexual intercourse. I see that the witness Atkinson states that it was a considerable time after the visit to Pluscarden Abbey that he first saw him going into her bedroom. She herself says that it was a day or two after the 2d of September that this intercourse took place. The frequent visits to the bedroom may have been between the 2d of September and the 8th of September, before Mrs. Forster returned, or even after she returned, and before the date of the dismissal, which did not take place till several days after her return. There is nothing, in short, to interfere with the statement of the pursuer, that the intercourse took place after the date of the instrument. I therefore think that the judgment of the Court below is right. [74] LORD CAIRNS.-My Lords, I agree that this appeal ought to be dismissed, with costs.

LORD CHANCELLOR.-The appeal will be dismissed with costs only on the appellant ceasing to be a pauper. The order now to be made will be-That the appeal be dismissed. It will be for the respondent to make a further application.

Appeal dismissed.

E. H. BARLEE, London-HOLMES, ANTON, GREIG, & WHITE, London.

No. 8.

X. MACPHERSON H.L. 74. 19 July 1872. House of Lords.Lord Chancellor (Hatherley); Lord Chelmsford; Lord Colonsay; Lord Cairns.

COUSTON, THOMSON, AND COMPANY (Defenders), Appellants.-Manisty, Q.C.

-J. C. Smith.

THOMAS CHAPMAN (Pursuer), Respondent.-Lord-Adv. Young-Sol.-Gen. Jessel. Sale-Auction. At a sale by auction the sale of each lot forms a separate transaction. Sale-Sample-Auction-Timeous Rejection.-Several lots of wine were purchased by sample at a public sale by auction on the 19th of March, and were delivered to the buyer by the 7th of April following. On the 6th of May the buyer, without specifically objecting to any particular lot, complained that some of the wine was unsound, and the exposer offered to take back the whole. This proposal was declined, and on the 31st of May the buyer specified three lots as disconform to sample, and claimed compensation, but did not make any offer to return the objec tionable lots until the 14th of June, after the seller had raised an action for the price. During all this time the wine had been in the custody of the purchaser, and several dozens had been opened and tested by him. Held (aff. judgment of the Court of Session) that the purchaser had not timeously intimated to the seller his rejection of the lots complained of, and was therefore barred from withholding the price thereof, although these lots were proved to be disconform to sample.

Sale-Delivery-Rejection.-Observations per Lord Chelmsford on the difference between the law of England and the law of Scotland as regards the right of a purchaser to return the subject sold on the ground of its being disconform to sample or warranty.

(In the Court of Session, March 10, 1871, ante, vol. ix. p. 675.)

On 19th March 1870 a quantity of wine belonging to Messrs. Aitken, Campbell, and Turnbull was exposed for sale by auction in the premises of Mr. Thomas Chapman, auctioneer, Edinburgh, and eleven lots were purchased, by sample, by Messrs. Couston,

Thomson, and Co., wine-merchants in Leith. The wine was delivered to Couston Thomson, and Co. on the 7th of April, when they wrote to Messrs. Aitken, Campbell, and Turnbull in these terms:-" Leith, April 7, 1870.-Dear Sirs,-For lot 19 you have sent us down wine differently sealed. One portion is sealed 1864, the other

has no year upon

it.

"The wines are quite different; so you must have made some mistake. You will have to get back the latter portion, and replace it with the wine sealed 1864 as per samples."

On receipt of this letter Mr. Turnbull went to Leith, where he saw Mr. Couston, and offered to take back lot 19, but Mr. Couston said that he would keep the wine, and try to sell it, and if he could not do so would return it.

On 6th May 1870 Mr. Couston called on Mr. Chapman, the auctioneer, and complained that the wine was unsound, but did not specifically object to any particular lot.

A correspondence followed between the parties. The following were the only letters of importance.

[75] On the 7th of May Mr. Chapman wrote to Messrs. Couston, Thomson, and Co. in these terms :-"Dear Sirs,-Referring to my conversation yesterday with your Mr. Couston, I have to say that I am sorry if any of the wine bought at Aitken, Campbell, and Turnbull's sale is faulty, and shall be quite willing to take back all your purchases at that sale. I can only do this, or receive payment of the purchasemoney as per account, and shall be glad to know your decision by Tuesday next."

On 26th May Mr. Chapman, in answer to a letter from Mr. T. M'Laren, S.S.C., agent for Couston, Thomson, and Co., wrote, saying,-"I told Mr. Couston that I did not know of what he complained, as he had never yet stated a complaint; and if he would say of what he complained I would show it to my employers. I have offered, and again offer, to take all Mr. Couston's purchases back if he is not satisfied; but till he does this, or pays for his purchases I decline to receive any communications through an agent."

Upon 31st May Mr. M'Laren wrote to Mr. Chapman the following letter:-"Messrs. Couston, Thomson, and Co. have now gone over the wines which they purchased from you at your sale on the 19th of March last, and they find the following is defective, or not according to sample from which they bought, viz. :-1. Lot 19-46 dozen out of 60 dozen; and 2, the whole of lots Nos. 24 and 51.

"They are agreeable to retain the rest of the goods purchased at the sale, and pay for them, and also to pay for the above lots, provided you supply them with the goods which they bought according to the sample and description. Failing your being able to do this, they think that they are entitled to the difference between the price at which they purchased them and the price at which they can be bought in the market, and which they estimate as follows, viz. :-" &c.

"P.S.-If you wish, Messrs. C., T., and Co. would prefer to return the whole of the fine clarets, as, looking to the condition of a portion of them, they would prefer not to offer them to their customers."

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To this letter Mr. Chapman replied:- Dear Sir-I am in receipt of your letter of yesterday's date, and beg to say that Messrs. Couston, Thomson, and Co.'s propositions cannot be entertained. I refer you to my former offers as to the mode of settlement."

Some further correspondence ensued, in the course of which a proposal on the part of Couston, Thomson, and Company to refer the matter to arbitration was declined by Mr. Chapman, who thereafter raised this action against them, concluding for payment of £699, 16s. 5d., with interest from the 14th of May, as the amount due for the whole of the wine which they had purchased, after deducting £622, 2s. 8d. due by him to the defenders on a separate account.

The summons was signeted on June 13, and on June 14 the defenders accepted service.

On 14th June, after receiving the signeted summons, the defenders' agent wrote to the pursuer's agent in these terms :-"I have now seen my clients, and, without prejudice to the questions between them and Mr. Chapman, I have to state that they are agreeable to pay for the whole of their purchases, with the exception of lots 24 and 51, which they are willing to return without any claim for deterioration on ralue.

This proposal was not entertained by the pursuer.

The defenders pleaded ;-(2) The said wines being of different kinds and qualities, and sold in different lots to all comers in the course of competition, the sale of each lot is a separate transaction, and the defenders were entitled to reject the lots not conform to contract, and retain the other lots. (4) The defenders having rejected the said lots 19, 24, and [76] 51, and timeously offered to return the same, are not liable for the price at which they were sold.

After a proof, the Lord Ordinary (Gifford) pronounced an interlocutor in favour of the pursuer.

On March 10, 1871, the First Division pronounced the following interlocutor :"Recall the interlocutor: Find that the defenders bought from the pursuer, at an auction sale in the pursuer's premises, on 19th March 1870, eleven lots of wines and liqueurs, conform to sample, at various prices: Find that the whole of the said lots were delivered to the defenders on or before the 7th of April 1870: Find that on the 6th of May 1870 the defenders objected that the wines so delivered were not conform to sample, and then intimated that they would not pay the price of the said wine, but did not state any objection to any particular lot or part of a lot: Find that no objection to any particular lot or part of a lot was stated till the 31st of May, when the defenders' agent stated in a letter certain objections to lots 19, 24, and 51 Find that neither on the 31st of May, nor on any previous occasion, did the defenders return, or offer or propose to return, either the whole wines bought on the 19th of March or the particular lots objected to: Find that no return or offer of return of the said wines, or any part of them, was made before the institution of the present action, and that the said wines have all along remained in the custody and under the control of the defenders, and that they have at various times and at their own hand, opened and used, for the purpose of trial and experiment, portions of the wines of which the defenders refuse to pay the price to the extent in all of four or five dozen bottles: Find in point of law that, in these circumstances, the defenders are now barred from withholding payment of the price, of lots 19, 24, and 51, on the ground that these lots were disconform to sample, or not conformable to the contract of sale: Therefore decern against the defenders in terms of the conclusions of the summons: Find the pursuer entitled to expenses up to the date of the interlocutor reclaimed against, to the extent of three fourth parts of the taxed amount thereof: Find the pursuer entitled to full expenses since the date of said interlocutor; allow accounts," &c.

The defenders appealed.

LORD CHANCELLOR.-My Lords, in this case it is much to be regretted that a dispute of this character, for an amount small compared to that at stake in many cases which are brought to your Lordships' House, should have gone through so long a course of litigation. However, the matter which comes before us to be determined is this, whether or not the interlocutors of the Court of Session, upon a summons which was brought on the part of the pursuer, the present respondent, against the defenders, the present appellants, are erroneous. The summons was in an action for recovering the price of certain wines sold by auction in Edinburgh. The wines were sold in lots, and with regard to three of the lots which were purchased by the defenders, the present appellants, questions arose. With regard to certain other lots of the same purchase, four or five in number, no question arose.

The first point for consideration which appears to have suggested itself in the course of the argument in the Court below was as to how far there was or was not a distinct contract with respect to each lot. Upon that there can be no doubt or dispute whatever, and it cannot be said now to be involved in the case brought before your Lordships' bar. There can be no question whatever that the purchase of each lot was a separate and distinct contract, and that it was perfectly competent to the defenders to object to the completion of the purchase with respect to the three lots they object to, if they had good grounds for so doing, irrespective wholly of the view which they might take of the other purchases which they made, and with which they

are content.

My Lords, one singular circumstance in the case (although it has no special weight upon the conclusion which ought properly to be come to) is this, that [77] the defenders, insisting, as they have a right, I think, to insist, that the contracts were several, nevertheless did not pay for the lots they had bought, and which were good,

nor does it appear from what is said by the learned Judges in the Court below that up to the time of the action (it is true they did so in the course of the action) they had paid for the lots to which they did not object. The reason may not be difficult to discover; but with regard to three of the lots, namely, Nos. 19, 24, and 51, an objection arose. No. 19 may be passed by, because that question is now disposed of, and no argument has arisen upon it, either in the Court below or in your Lordships' House. The question, therefore, is reduced to lots 24 and 51.

The contest raised by the defenders when pressed to pay for these lots was that the sale was a sale by sample, and that these lots were not in all their parts conformable to the sample. The sale of these wines took place on the 19th March, and the delivery was to have been immediate; but some little discussion and dispute arose about it, and by some arrangement (which it is unnecessary to enter into) between the parties, the lots were not delivered until early in April. When they were so delivered in April, the lots in question being lots that were sold as claret of fine quality and sufficiently high price, and being sold by sample, it occurred to these gentlemen, the appellants, that they might send some samples of the wine to England for sale, and they accordingly sent them to a Mr. Cooper of Reading, who, upon examining the sample sent him (which appears, as far as we can see, to have been one of the actual bottles purchased, and not a sample produced by being decanted or poured out from some other sample, but the actual thing itself), returned it, with the statement that the wine was wholly unfit to be offered to customers. This seems to have led to inquiry, and we may take it as an established point of time in the case that the 6th May is a time at which certainly the defenders were perfectly well informed that there was a serious variation in several parts of lots 24 and 51. In a portion of each of those lots there was a considerable difference between the wine which had been delivered to them in April and the wine of which a sample had been produced in order to lead to the sale.

Accordingly, this having been discovered on the 6th May, certain correspondence takes place, in which questions are raised about the wine not being conformable to the sample, and there is some discrepancy in the evidence as to whether or not the objections which were raised pointed distinctly to these two lots, or pointed in general terms to the clarets which had been purchased. I do not think that anything material will turn upon that point, and it is not necessary to notice it further, although it was dealt with at considerable length by the learned counsel in his argument. The learned counsel for the appellants, in their argument, stated that there was a distinct objection raised to these particular lots, and not a general objection. to the wine as being inferior to the sample. They say that they dispensed altogether with giving any proof of that, because, in one of the condescendences in the course of the proceedings, it is distinctly stated by the present pursuer in the action that the 19th of May was the time when the objections were made to lots 19, 24, and 51; and the condescendence goes on to state, that what was done by the appellants was simply to make an offer to retain that which was pursuant to sample, and to pay only for that, not paying for the part which was not conformable to sample.

But, as I have said, all this, I think, seems to come to nothing with reference to the course of proceedings between the parties, because the ultimate course of proceeding between the parties is perfectly clear. There was no offer whatever to return the lots at any period throughout the whole of this correspondence, which has been opened to your Lordships on the part of the defenders, before the 14th June, which was the day the matter was brought into litigation, the proceedings having commenced on the 13th. But the question does not rest here, upon whether or not there was that offer, because it seems to me beyond dispute, as far as any of the authorities which have been cited before us go; and the question has been very fully and ably discussed by the learned counsel, but that discussion has not thrown any new light upon that part of the case which was considered by the Court of Session in Scotland.

[78] There is no reason for questioning the law of Scotland at least to be this, that it is not competent to a person, on receiving articles which he has purchased, and which are not found to be conformable to the description or the sample which he received of them in the course of the sale, to retain the articles, and at the same time to raise any question about the payment of the money. According to the law of Scotland he appears to have only two courses open to him. The one is that of