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1841.

GORDON

v. GRAHAM,

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presided would be correct; but if otherwise, it would be exceptionable. It does not appear to me that the language of the letter is open to any ambiguity or doubt, but that it proceeds to express the only terms on which the agent of the Respondents required the sequestration to be withdrawn; there was no payment of rent as rent, but an offer to pay the whole money for which warrant to roup was taken, on the sequestration being assigned. Whether the word “withdraw" had a different meaning from the word “relieve,” is immaterial, with reference to the opinion delivered to the jury by the learned Judge; for the bill of exceptions must stand or fall by the legal effect of that which was laid down at the trial. It will not do to support the direction of the learned Judge on other grounds or other acts; for the learned Judge tells the jury that the effect of those two letters amounts in law to an obligation on the landlord to comply with this requirement of the letters.

But when the bill of exceptions came on for discussion in the Court of Session, that Court does not profess to support the law as propounded in the Lord President's opinion: the Judges do not say that it is right or that it is wrong, but they find in other parts of the case, and on a consideration of the whole of the merits, on which the jury have come to a decision, grounds for supporting the opinion so delivered by the learned Judge. Lord Mackenzie, followed by Lords Gillies and Fullerton, founded their opinions not on those two letters, which were the foundation of the Lord President's charge to the jury, but they begin with the letter of the 28th of August 1837, which the learned Judge who presided at the trial had not in the slightest degree adverted to. It is unnecessary, therefore, to look at that letter to see what it contained, or whether it

1841.

GORDON

V. GRADJAN

could amount to a contract to be carried into effect in 1838, with reference to the then state of the case. That letter does not appear to have been alluded to in the summing up of the learned Judge; and the question is, whether the law he lays down to the jury is correct,—not whether the conclusion might be ultimately the same or not,—but whether that which he lays down in stating the grounds of his opinion is correct in point of law. I do not find that the Judges express any opinion in favour of that which was laid down; which induces me to look further to see whether it can be so supported.

The matter of fact appears to have been withdrawn entirely from the consideration of the jury; they having been told by the learned Judge that in point of law, after receiving those two letters, the landlord was bound to withdraw the sequestration, or to relieve the tenants from the effect of it; and if that was correct, the jury had nothing to do but to assess the damages. They were told that these letters had raised that responsibility, when, in my opinion, there was nothing in these letters to raise that responsibility. There appears evidently to have been a mistake; the matter is not disposed of by the Court upon the grounds on which it is put by the learned Judge, that those two letters so promulgated to the jury amounted to an obligation, resting on those two letters alone, binding the landlord to withdraw the sequestration, or to relieve the tenants from the effect of it.

It appears to me that the interlocutors must be reversed, and the bill of exceptions allowed, in respect of this second exception; and the case sent back to the Court of Session to do what is just.

Ordered and declared accordingly.

John HUTCHINSON FERGUSSON - -
David Fyffe and Another - - - -

Appellant.
Respondents.

1840: May 7. 11.

1841 : May 4.

A Scotchman in Calcutta opened an account with a banking and
agency house there in 1786; and died in 1810, having been

Accounts by
Accoun

Bankers with insane from 1793. A partner in the house, being in Scotland

Customers. in 1812, enclosed, in a letter to the customer's relatives there, an Liabilità account current with him from 1787 to 1810, signed by the firm, of Individual bringing out annual balances in his favour, composed of annual Partners. accumulations of Indian interest, the last balance expressed “ to Interest, bear interest at 9 per cent. per annum.” In 1835, the customer's Indian; relatives obtained administration of his estate, and prosecuted

Compound. actions, which were before commenced in the Scotch Courts, on Foreign Law.

Statute of the account current, against another partner who joined the firm Limitatio in 1793, and continued a partner through several changes till 1820; and they claimed interest at 9 per cent. upon the last balance in

1810, and upon the annual accumulations thereof since. Held by the Lords, first (concurring with the Court below), that a

debt was sufficiently constituted against the firm by the account rendered by them, together with interest at 9 per cent. on the last balance in 1810, down to final decree ; and that one partner was bound by the account so rendered : secondly (differing from the Court below), that the debt did not carry compound interest from

1810. There cannot be a title to compound interest without a contract,

express or implied, or custom. By the law of England, a contract for compound interest is not valid,

except in mercantile accounts current for mutual transactions. The law of the country where a contract is made or is to be per

formed, furnishes the rules for expounding the nature and extent of its obligations. But the law of the country where it is sought to enforce performance of a contract, governs all questions as to

the remedy and mode of proceeding, including lapse of time. Where a creditor of a firm in India died there before his right of

action was barred by lapse of time, and his personal representative in Scotland brought an action there, against a partner of the firm, 23 years after the creditor's death :-Held that the English statute of limitation did not take effect, the action having been brought within six years after English probate or letters of administration were taken out to the deceased creditor.

THIS appeal arose out of actions raised in the Court of Session in Scotland, by the Respondents, as executors dative of the deceased Dr. Charles Fyffe, against

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the Appellant, for the purpose of recovering from him,
as partner of an Indian house of agency, intitled
Fairlie, Fergusson & Co.," a debt due by that house
to Dr. Fyffe, The Respondents' claim was constituted
by a docqueted account subscribed by Fairlie, Fergus-
son & Co., bringing down a balance of 17,346 sicca
rupees, as due by them on the 30th of April 1810:
and upon this balance, from that year, the Respond-
ents claimed interest at 9 per cent. The account was
made up from 1787 to 1810, with annual accumula-
tions of interest. The Appellant's defence embraced
various objections: among others, his residence out of
Scotland ; a denial of the sufficiency of the evidence
of the debt against the firm of which he had been a
partner; a plea of the English statute of limitations;
and, at all events, a resistance of the claim of Indian
interest. The Lord Ordinary, by an interlocutor of
the 10th of July 1834, repelled the preliminary
defences; and on the 26th of November 1835, after
the record was closed, pronounced this interlocutor:-
“ The Lord Ordinary having heard parties' procura-
tors, and considered the closed record, repels the
defences : finds that the pursuers (Respondents) are
entitled to the sum of 17,346. 5. sicca rupees, contained
in the docqueted account of the 1st of May 1810,
converted at the present rate of exchange into ster-
ling money, with interest at the rate of 9 per cent.
on said sum, as so converted, from the 30th of April
1810 till decree, and decerns for the same accord-
ingly, with the legal interest on the sum so decerned
for, until payment; and ordains the pursuers, within
14 days, to give in a state of their claim, made up in
terms of this interlocutor.”

The Respondents accordingly lodged a state of debt, in which they calculated the rupee at the rate

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of 2s. sterling, and accumulated principal and in-
terest in the manner of compound interest, and thus P
brought out the amount, at 26th November 1835,
of 15,7321. 6s. 6 d.: and the Lord Ordinary, after
hearing counsel in regard to the amount so claimed,
pronounced, on the 15th of December 1835, this inter-
locutor :-“ The Lord Ordinary having heard parties'
procurators on the state' now given in, and on the
claim therein made for annual accumulations of the
interest at 9 per cent. since the date of the docqueted
account of the 30th of April 1810 : in respect that
the interlocutor of the 26th of November last decerns
for the interest only, without accumulations, and that
it is incompetent for the Lord Ordinary to alter that
interlocutor, refuses the claim so made, and appoints
the state to be rectified accordingly.”

The Appellant presented a reclaiming note to the First Division of the Court, against the interlocutor of the 26th of November; and the Respondents presented reclaiming notes to the same Division, against both the interlocutors, in so far as they refused the annual accumulations of interest : they at the same time, in order to remove the difficulty in point of form which occurred to the Lord Ordinary, raised a supplementary action calculated expressly to embrace these accumulations. A record having been afterwards made up in this action and the defences to it, the Lord Ordinary appointed the parties to give in mutual minutes on the questions of the accumulations, in order that the same might be reported to the First Division of the Court, before which the previous process was depending.

In the meantime, when the reclaiming notes came to be advised in the Inner House, questions as to the applicability of English law having been raised, the

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