held that indemnity to the pursuer is the measure of damage in which the defender is liable; and the question is, is this the proper view of the respective rights and obligations of the parties? I think it is. It has now been ascertained that Dickson was to blame in not delivering the scrip which the pursuer sold for him on 4th March 1845. He refused delivery because he believed that some had been sold at 25s., whereas his was sold at 20s. In this he was mistaken. It was ascertained that this was the highest price got at the time, and it is now held that it has been sold according to his instructions. As he refused to deliver the scrip, Brown, the broker of the purchaser, thinking probably that this would produce a settlement, intimated to the pursuer, on 10th March, that, "if not delivered to-morrow, I will be under the necessity of buying them in against you." This note the pursuer incloses to the defender next day. He acknowledges receipt of it that day, but on other matters, taking no notice of this inclosure. On the 14th March the pursuer writes the defender that he is warned that the stock is to be bought in against him at to-day's market price. Now, it does not appear that the defender took any notice of these communications. He obviously chose to consider that he was right in the discussion with the pursuer-that he had no interest as to the proposed buying in-and had no occasion to trouble his head about it. The pursuer, who was directly liable to the purchaser, although he is entitled to say he believed that, ultimately, he would most probably be successful against the defender, having received no communication as to Dickson's wishes from him, felt himself at liberty to act according to what appeared best for his own interest. Accordingly he took two steps-he pressed the defender, in his letter of the 14th, immediately to go on with the reference, as had been proposed by himself, and agreed to by the pursuer, so early as 7th March, and again pressed on the 11th. The reference might have been disposed of in a single day, and no doubt was expected to be so. And farther, in the meantime, he requested of Mr. Brown not to proceed with buying in immediately. The price had risen considerably, and if, in a day or so, the reference had found the defender in the wrong, the pursuer must have thought it hard that he should be called on to pay the difference out of his own pocket, instead of the defender. Besides, the price might fall as rapidly as it had risen, and the defender would then have benefited by the delay. Although it be a rule of the Glasgow Stock Exchange that, upon giving a certain notice, there may be a buying in, in the case of an unfulfilled bargain, I do not know that the party who wilfully refuses to implement, and who takes no step on a notice to this effect, nor calls upon the party to buy in, offering to pay the difference, is entitled to insist that, if no buying in has taken place, the damage against him shall be estimated as if this had been done. It is a privilege for the party whose bargain has not been implemented; but I do not understand that it supersedes the rules of our common law against a wrongdoer. It is not so alleged, nor has it been so pleaded. It is quite clear that Brown, a stockbroker on the Exchange, did not so understand it. He no doubt says that he delayed buying in "at the request of the pursuer;" but he also adds this material observation-" That the deponent does not know what he would have done in regard to the purchase of the said stock, in terms of his letter of intimation, irrespective of the request of the pursuer"-that is to say, that he might have delayed doing so without any such requestwhich implies that he did not hold himself cut out of his claim for the selling price afterwards, as it cannot be supposed he would do anything, or omit anything, so as to injure his right to delivery of the scrip, or its value. I don't say that equity might not interpose so as not to allow a very long and unreasonable delay, and with a continually rising market, even where the other party declined to make any communication, or give any instructions on the subject; and the more so if delivery of the article sold was impossible, having been previously sold bona fide under the erroneous belief that he was not bound by the disputed sale, so that he would be obliged to supply himself by a fresh purchase in the market. Equity probably would come in here. But I think the case is very different when implement was all along in the power of the party in fault, by delivery of the commodity sold. Dickson had the scrip on the 4th March. He does not venture to say, that in the bona fide belief that they had been sold at 20s., when 258. had been got in the forenoon market, he had, during the discussion between the parties, disposed of it. It is quite clear that if this had been the case, this would have appeared in the cor

respondence. It would have been given in answer to the pursuer's note of 2d July, and the further letter of the 4th. It would have been the ready answer to the proposal there made by the pursuer. On the 9th the buying in took place, and I assume that at that moment the defender still had his scrip in his pocket; he does not venture to say on the record that he had not; and we have found that he was under an obligation to deliver at that day, as on every previous day, and had no good defence against doing so. Now, we see further by the proof that in the following month of August the stock rose to £34, so that on each share he may have made more than £20 beyond the sum at which the shares were bought in, and now claimed from him. Now, under these circumstances, I cannot shut my eyes to the relative position of the parties. If there be no absolute rule that the purchaser was bound to buy in at the end of the fourteen days, 80 that the party who is to blame in withholding delivery, even when within his power, can be liable only for the price at that time, I see the pursuer, who has not been to blame here, is only seeking to be kept indemnis, and is certans de damno vitando; while the other party is certans de lucro captando, by wrongfully declining to fulfil the bargain made according to his instructions, and with the view of pocketing a large sum in consequence of the rise of the market. Out of this price he can afford to indemnify the agent who acted for him, still leaving a large surplus of profit, which he could not have got if he had honourably fulfilled the contract duly entered into for him. Nay, even although he had not this means of paying himself, I cannot think that the pursuer, who has been found to have acted correctly in this matter, is not entitled to relief from his employer, if we are right on the other branch of the case.

Lord Moncreiff.-I am not insensible to the circumstance of there being some difficulty in this part of the case, arising chiefly from the loose nature of the correspondence, the want of precision in the proceedings and notices of Mr. Henderson, the respondent, and the careful abstinence of Mr. Dickson to make any written answers to the repeated letters of Mr. Henderson subsequent to the 11th March. This, and some other considerations in the circumstances of the case, have made me hesitate in my opinion. But though I am not surprised that there should be doubts entertained, I am now, on the whole, satisfied that the interlocutor of the Lord Ordinary is right in this point also.

We have decided in substance, according to the Lord Ordinary's interlocutor, that the sale of the shares in question, which was made by the respondent to Mr. Brown, at the premium of 20s., on the 4th of March, was within his powers as mandatory for the advocator, and that the advocator was bound to have immediately enabled the respondent to give implement of that sale by delivering the scrip to him. He failed, or refused to do so, and, in consequence, the respondent was under the necessity of paying a large sum to Brown on account of other shares bought in by him.

The respondent was merely the agent or broker acting by the mandate of the advocator; and in that character he was under no obligation, in any circumstances, to make any advance of money on account of the advocator. The obligation which he had come under to Brown was to deliver the scrip for the shares at the price agreed on. And by the rules of the Exchange, in the event of his failing to deliver the scrip for the shares, Brown was entitled, after ten days, and on four days' notice, to buy in other shares in his discretion, and the respondent became personally liable to him for the difference of price which he might be obliged to pay. In this way the respondent, as a mandatory making the transaction, became in fact cautioner for his principal that the scrip should be delivered, and without benefit of discussion. But, as between the respondent and the advocator, there certainly was no obligation undertaken by the respondent to advance any money in satisfaction of the loss to be occasioned solely by the advocator's breach of contract, and his refusal to give implement of the engagement undertaken for him that the scrip should be delivered.

It is an undoubted rule of our law, that a mandatory thus placed in the position of a cautioner is entitled to be relieved even before he is put in actual distress. Thus Mr. Erskine (Ersk. 3. 3. 65.) says expressly-"The Roman law most equitably allowed action for relief to the cautioner against the debtor, where the debtor shifted the payment of his debt from day to day for a considerable time together, especially if the cautioner's circumstances at the sametime disabled him to make payment of the debt himself, by which he might be entitled to a proper relief." In such a case as the present, the mandatory was en

titled to instant relief by implement of his engagement for his principal, or at least, that implement should be given within the ten days fixed by the rules of the association, so as to prevent the necessity of the purchaser buying in other shares in place of those sold to him; and it is obvious that from the nature of the trade, and of the relation between the employer and the broker, the broker was not called upon to have money to advance, when the breach of engagement by his principal should compel him to satisfy the purchaser for any new purchase to be made at an advanced rate of the market. To hold that he was so bound, whatever might be the principal's reason for refusing implement, would entirely alter and destroy the known trade of a sharebroker. Mr. Dickson's obligation was simply to deliver the scrip. When he refused to do so, the whole risk of the consequences lay with himself. And that it did so lie in the first instance, I take to be very clear.

The ten days were to expire on the 14th March. On the 10th, Brown, the purchaser, gave notice that, unless the scrip should be immediately delivered, he would be under the necessity of buying in against Henderson, the broker. Henderson, on the 11th, sent Brown's notice to the advocator. I do not go back into the previous correspondence, except only to take notice that the parties being in a dispute or difference on the question whether Dickson was bound by the sale or not, Dickson had, on the 5th March, expressly proposed a reference to one or two brokers; and on the 7th the respondent had agreed to that proposal, requesting" that no time may be lost." When, therefore, the respondent sent Brown's notice to the advocator, he said"I hope you will either at once see the propriety of sending me the scrip for delivery, or of agreeing to a reference as you proposed, and as I agreed to;" and on the same day, 11th March, the advocator answered-"I at once agree to a reference," &c., denying that the sale had been according to his instructions.

It is very evident that the reference to which the respondent had agreed was intended by both parties to prevent the necessity of Brown buying in, or of the respondent settling with him in consequence of his notice. And the evidence of Mr. Baird shows that the parties had applied to him to get the matter adjusted by reference; and he depones, "That in consequence of the defender's call upon deponent, a negotiation was opened with a view to the adjustment of the matters in dispute by way of reference," the respondent's object being to obtain delivery of the scrip. Unfortunately, Mr. Baird's recollection is very indistinct as to dates; but he says, "that these negotiations and communings were continued for a considerable time. Interrogated, Whether these communings continued up till, or nearly till, the 9th of July? Depones, That having kept no note in his books of the communings, he cannot speak as to the precise dates. Interrogated, Whether the communings continued for two or three months? Depones, That really they were of such an incidental character, that he cannot say, but certainly the matter lay over for a considerable time." Mr. Baird adds, "That during the said negotiations there was no agreement or understanding among the parties that the broker should delay buying in," &c. There seems to be some mistake in this, if it refers to Henderson. Perhaps it may mean Brown. But it is not the broker who makes the sale that is to buy in in any case; and I apprehend that it would be very doubtful, in such a question as the present, whether, if the broker were to buy in at his own hand, his relief would be clear against his principal.

But the material thing is, that there was a negotiation for a reference, as first proposed by the advocator, which went on for a considerable time. It has been said by the advocator that that negotiation came to an end on the 14th March. I think it very clear that we cannot hold the fact so to stand. It cannot 80 stand on Mr. Baird's evidence. But it appears that the adVocator himself made out a paper which bears date the 15th of March, with the view of its being laid before the proposed referee; and I further think it clear, on the later correspondence, that the advocator was unable to say that the negotiation for reference was not still in dependence even so late as the 2d and 4th of July. To this I shall advert.

But it is thus clear, that if Brown had bought in on the 14th March, the advocator must have been answerable for the difference between the price on that day and the 20s. of the sale. I understand this to be assumed, or not disputed. And then the question is reduced to this narrow point, whether, supposing that Brown delayed purchasing other stock, at the desire of the respondent, and that the advocator's consent to this was not expressly asked or given, the advocator is thereby relieved from

the loss arising from the subsequent buying in at a much higher rate than that of the market on the 14th March.

It is here undoubtedly that the ground of hesitation arises. But I apprehend that the real state of the case should be attended to before we throw that loss on the respondent. The advocator was the wrongdoer, and he committed the wrong for the purpose of obtaining advantage to himself in the rising of the value of the shares. He still held those shares unsold when the respondent wrote to him on the 11th March, and subsequently on the 14th, intimating that the shares were to be bought in against the broker at that day's market price, and added, "so that the sooner the reference is entered into the better for all parties interested." His obligation was to deliver the scrip. This he had refused. But he had agreed to the reference, and the negotiation for reference was going on.

The advocator made no answer to that letter of the 14th March, and he left the respondent to infer that he was determined not to deliver the scrip, at least till the reference should take effect by a judgment against him. But he delayed both things from day to day. He never said, "The reference is at an end," or, "I will not enter into a reference." The respondent had then no alternative but either at his own risk to let Brown buy in, with a certainty of considerable loss, or to ask him to delay doing so. But the respondent was under no obligation to pay money to Brown, except on the footing that Dickson refused to deliver the scrip. It did not at all lie with Henderson to buy in; and, in that respect, the case is materially different from such a case between buyer and seller directly, as the Lord Ordinary has observed. But the advocator having peremptorily refused to deliver the scrip, except subject to reference, the respondent could only do what he could to delay the buying in, till either the scrip should be delivered, or the reference should be disposed of.

But now see what followed. A great deal is made of this delay having been without the consent of Dickson. But I apprehend, that when he got the respondent's letter of the 14th of March, he was bound to make a direct answer, and either to come to close quarters about the reference, or to say that he declined it, and was determined to stand on the refusal to deliver the scrip at all hazards. He knew perfectly well that Brown was the purchaser. But he made no communication either to him or to the respondent, except to the latter, with relation to the reference; and he never interposed to require that, if Brown was to buy in, he must do it immediately. It may be that he could not well do that while he repudiated the sale. But that repudiation was the wrong done; and he is not now entitled to found on it against the respondent. The matter standing over, the respondent wrote to him on the 2d July, making a proposal that he himself should forfeit 5s. on the share, on the supposition of the scrip being delivered; and getting no answer to this, he wrote again on the 4th July-"Will you be kind enough as to say whether you accept my offer to sacrifice 5s. per share, or reject, as Mr. Brown is clamorous for delivery of the scrip, he being himself pressed by another party; or, if you prefer it, we will wait on Foulds, and let him judge whether I acted honourably and honestly in the matter," &c. When the advocator got these letters, he must have seen-1. That Brown had not yet bought in; and, 2. That the respondent at least understood that the proposal of reference was still in dependence. Was he not bound to answer these letters? He did not answer. He did not intimate that the proposal of reference was at an end; and he made no answer to the offer of a sacrifice by Henderson. But, observe, that on the 2d July the premium on the shares was only £9, and on the 4th it seems not to have exceeded £10. This may give rise to a separate consideration, whether, supposing the advocator not to be liable for the difference between the 14th March and the 2d July, he did not evidently render himself liable for the difference between the 4th July, if not the 2d, and the 11th July, on which day the premium was £11: 10s., at which the shares were bought in. Whatever plea he may take from the circumstance of the respondent having consented to the delay from the 14th March, I apprehend that he can have no defence upon such a plea against the claim for delivery of the scrip on the 2d July, after he was apprised, if he could have been in any doubt before, that Brown had not bought in, and while he still held his own shares unsold.

But, apart from this, I cannot see how it can be doubted that, when he made no answer to these two letters, it must be inferred that he knew all the time that Brown had not bought in, and also knew, on the other hand, that Henderson relied on the

scrip being delivered, or that otherwise the reference should be concluded. And, if so, can the advocator be in good faith to maintain, that he is liberated from responsibility from the time when Brown might, according to the regulations, have bought in against the respondent, or that the respondent is to be deprived of his relief because he did not insist on Brown buying in with a certain loss to him, the respondent himself, of £30 or £40? In the interval, the advocator had refused to say anything. Why did he make no requisition? Just because he was obstinate in his determination not to deliver the scrip, and strongly conscious that no referee would decide in his favour. He might take this course of holding off, and taking the chances of delay. But I apprehend that, when he did take it, it ought to be held to be at his own risk, in case he should be found to be in the wrong.

And what is the reality of the case, once it is determined that he was in the wrong, and that he was bound to deliver the scrip at first? It is just this, that, having effectually authorized the broker or his mandatory to sell the shares at 20s. premium, but finding that the market had taken a start after Henderson had made the sale at that rate, he laid hold of various circumstances as a ground for refusing to deliver the scrip, and held it till the end for his own benefit, thereby obtaining for himself an extravagant advantage, to which he had no right; and he now desires to throw the loss of his own breach of contract upon the respondent, who was merely his hand in the transaction, acting to the best of his judgment for his interest. This seems to me to be the state of the case; in which it would require a very clear justification of the advocator's conduct to warrant the result maintained by him. But he has no justification. He committed the wrong by breaking faith on a contract fairly concluded; and he persisted in it, long after he knew all which he can now say he knows, and he did so for the unwarrantable purpose of making great gain to himself. It is a rule of law, that nemo debet locupletari alieno dumno; and this is a consideration which has entered into all the cases of such breaches of contract even directly between buyer and seller. But here it is most palpable, that, while the Court has found the wrong to be done, the advocator, in doing it, was evidently in lucro captando, catching at gain which he probably has obtained, but to which he had no right, at least till he fully indemnified the respondent.

And, on the whole, I cannot but feel, that if we were to throw this loss upon the respondent, we should do injustice, and give great encouragement to similar devices. No doubt the respondent has not managed very wisely in the embarrassment into which he was brought. But the substance of the case remains; and I cannot conscientiously say that, to any extent, the burden of this loss should lie upon him.

I have looked into the cases which have been referred to, and I think that there is great instruction to be derived on the subject from the learned and skilful opinion of Lord Medwyn in the case of Watt, and also from the advising of the case of Howie v. Anderson, 14th Jan. 1848. But these, and some other cases mentioned, relate more properly to the rule for estimating the loss between vendor and purchaser, in which the purchaser, in asking damages for a breach of contract, is only entitled to fair indemnity, according to the circumstances of the case, and the means which he had of relieving himself. I regard the present case as materially different. The respondent is asking nothing more than indemnity. But the plea in defence supposes that he was bound to do something to his own immediate loss, contrary to the nature of his trade or profession, and his only contract with the advocator, in order to protect the advocator against what was nothing but the natural consequence of his own breach of contract, and his persistence in it, with the unfair object of undue gain to himself. On the best attention I can give to the arguments employed, I am of opinion that he ought not to succeed in his design, and that the interlocutor of the Lord Ordinary is right. But even if I were wrong in this, I do not see how he should escape from liability after the notices given to him on the 2d and 4th of July.

Lord Cockburn.—I say nothing as to the authorities or general principles that have been appealed to on either side, because they seem to me to be totally inapplicable to the case before us, which, I think, is solved by the single fact of the respondent's personal interference in preventing Brown from buying so soon as he otherwise would.

Brown intimated on the 10th of March, by letter, that he meant to buy in against the respondent. If he had then done so, there would only have been a loss of about £30. And why did he not? Why did he wait till July, when the loss by the

rise of the stock had amounted to £125? Because, as Brown swears, the respondent requested him not to do it. And this delay lasted till the 9th of July, at the request of the pursuer (respondent). The respondent had probably good reasons for this request-such as an expectation that the shares would fall. But still, had it not been for his interference, all the loss that occurred after the 10th of March would have been avoided.

It has been said that the parties were on terms for a reference. So they were. But it is expressly sworn, by the witness Robert Baird, that, during the said 'negotiations, there was no agreement or understanding among the parties that the broker should delay buying in.'

Now, it has been decided that the advocator was wrong in not delivering the scrip; and without nicely examining the principles by which the amount of the reparation due by him might depend, they can certainly never be carried farther than this, viz. that he must make up for all the damage consequent on his improper act. The respondent can surely in no view demand more than complete protection against all the consequences of this act. And he would have obtained this if he had allowed Brown to buy in on the 10th March. But having prevented Brown, what he is now claiming is, protection, not as against the misconduct of the advocator, but against the consequences of his own interference. I cannot understand how loss arising from a delay produced by the respondent can be laid on the advocator, because he (the advocator) happened to be originally wrong.

I therefore think that the loss for which the advocator is liable cannot be made to exceed £30.

The Court pronounced the following interlocutor:"6th February 1849.-The Lords having advised the reclaim. ing note, and heard counsel thereon, recal the interlocutor of the Lord Ordinary, and of new find it admitted by the defender that on the 3d day of March 1845 he generally authorized the pursuer to sell the railway shares in dispute next day, at or about the highest market price that could then be obtained, with this explanation, that the said authority was accompanied by the qualification, if the market was languid, and not likely to go farther up;' find that the defender did, accordingly, on the following day, sell said shares at a premium of 20s. per share, and that this sale was effected between the hours of two and three P. M., at which time, as appears from the proof, no sale at a higher rate had been effected by any one, and only one sale even at the same rate: Therefore, on the whole, as there is no imputation against the pursuer's good faith, and keeping in view the discretion necessarily implied in the somewhat vague terms of his employment as admitted, find that the said sale was sufficiently covered by the mandate or authority under which he acted: Find that there is nothing in the circumstances connected with the previous conditional sale proposed to have been gone into, at a premium of only 17s. 6d. per share, to vitiate or render invalid the said subsequent sale at a premium of 20s., or to withdraw or cancel the authority under which the pursuer made the same : Find, accordingly, that the defender was bound to have at once enabled the pursuer to implement the sale so made, by transmitting the scrip when demanded, and that, having refused to do so, he is liable for all the legitimate consequences of the breach of contract entered into in his behalf; and, in regard to the measure of damages, order parties to give in minutes of debate."

The advocator stated for the first time, in his minute of debate, that he had sold, on 20th March 1845, the fifteen shares for which he held scrip.

The Court being equally divided on this question, the case was sent to all the judges.

The following opinions were returned :—

Lord Justice-General, concurred in by Lords Jeffrey, Murray, and Robertson:

"It being determined, by the judgment of the Second Division, that the conclusion of the pursuer John Henderson's action against the defender James Dickson, for implement of the sale of his Barrhead railway shares, under his authority, to Mr. Brown, was well founded, the only question now open relates to the amount of damage sustained by the pursuer. I am of opinion, in reference to that question, that he is entitled to the full sum of £125:12:6, at which the shares were purchased in on the 9th July 1845, with interest, together with 7s. 6d. of

brokerage due thereon. I deem it quite sufficient to state, as the foundation of my opinion, that, in maintaining his defence to the action, the defender Dickson led the pursuer to rely on his readiness to abide by the decision of a referee-that he was, in fact, the first party that proposed a reference—that he continued for a length of time to lead the pursuer to believe that such a mode of settlement would be adhered to-and that, down to the 4th July, no hint was even given that the shares had been disposed of at all, and far less that this had taken place so early as the 20th of March. It is impossible, therefore, to pay any regard to the statement brought forth in his late minute; and as the defender so conducted himself as to entitle the pursuer to rely on the question between him and the defender being determined under a reference, the completion of which was kept so long abortively in dependence, the pursuer is justly entitled to be relieved of the cost ultimately required to buy in the shares for Mr. Brown, the purchaser. There is no doubt that these shares could have been bought on much more favourable terms at an earlier period; but as the loss from delay was owing only to the conduct of the defender, he must, consequently, be answerable for it.

Lord Mackenzie, concurred in by Lords Fullerton, Cuninghame, and Wood:

"This case may be viewed in two lights-(1.) As a contract of sale between Brown, as buyer, and Dickson, as seller, made for Dickson by Henderson, as agent for Dickson, and binding Dickson for implement to Brown, though Henderson was also liable to see the bargain fulfilled by Dickson, and entitled to relief by Dickson from that obligation. (2.) As a contract of sale between Brown, as buyer, and Henderson the broker, as seller, in which Henderson, as seller, was bound to Brown, as buyer, and Dickson bound to Henderson, to relieve him, as having undertaken the bargain himself, but for Dickson's accommodation, and by his desire.

"(1.) In the first view, the facts seem to be, that Dickson, having sold the scrip at a certain price, deliverable immediately, did, in violation of his contract, refuse to deliver it, on which Brown, as authorized by the practice of the Glasgow Stock Exchange, after waiting ten days, intimated his intention to buy in scrip to the amount, and might probably have done so immediately, but was, without instructions to that effect, requested by Henderson to delay doing so; and did accordingly delay for a considerable time, when he did buy in; and, in the meanwhile, the price of scrip rose, so that the amount was bought in at the advanced price. It is assumed that the buyer, Brown, was entitled to repayment of the difference between this advanced price and the contract price; and the question is, whether this loss must fall on Dickson for his breach of contract, or on Henderson for his request of delay. Now, in this view, it appears to me that Brown, when the breach of contract took place, had right to buy in, after waiting ten days, on giving three days' notice; but that he was not bound to do so; that, on the contrary, he was at liberty to wait at his free pleasure, without any wrong, as long as he did wait before bringing action for the scrip, or buying in. As the seller did nothing, but merely withhold implement, I see no reason to doubt that. If that be true, then, how can Henderson, the broker, be found to have committed a wrong, and be subjected for the difference of price, merely because he requested Brown to use his own right in a way he was, without any request, freely entitled to do? Anybody was free to make such a request to Brown. It might have been done by any other broker, or citizen of Glasgow, without responsibility of any kind; and why not by Hender son? He surely owed nothing to Dickson, who had wronged him, as well as Brown. Without any equitable interest as against Dickson, Henderson was as free, without responsibility, to ask Brown to delay buying in, as Brown was to delay. But further, Henderson had an equitable interest, as against Dickson. That was to avoid an advance, or the risk of an advance, of his own money to Brown for the price of the scrip bought in, to which he, Henderson, was exposed by the wrong of Dickson in violating his contract. I therefore think that, in this view, there was no liability whatever incurred for any loss by Henderson on account of his request to Brown; and that the difference on the price of the scrip must fall on Dickson himself, who became liable to pay it, or relieve Henderson from it by repaying it to him.

(2.) In the second view, I think that Henderson having been induced to bind himself to deliver the scrip to Brown by DickSCOTTISH JURIST.

son's desire, and obligation to furnish it to him for the purpose, and Dickson having violated that contract, by refusing to deliver it, and doing nothing else in the matter-I say I think, in such circumstances, that Henderson being so injuriously left in the lurch, was fully entitled to ask delay from the buyer to save himself from the hardship of an immediate advance of his own money to Brown, on Brown immediately buying in the scrip; and that he never could, by doing so, forfeit his right of relief against Dickson. There is no evidence that Henderson had money wherewithal to pay Brown immediately. He might have been sent to jail, if he had not obtained delay; and if he had the money, he had nowise undertaken to advance it at all; and still less on such bad security as that of Dickson, who had already wronged him by violation of his obligation. If Dickson disliked the chance of the scrip rising in price, it was his business to deliver it, or to impress money into Henderson's hands, to pay Brown, on his buying it in. But he did neither.

"In both the above views, I have spoken as if Dickson never had the scrip, or had parted with it to somebody else. But of that there is no evidence. He certainly had it, and, for anything that appears, kept it himself; and had it when Brown bought in; and may have sold it after at the advanced price. In that case, or in case he kept it till there was any advance of price, the effect of a decision of this case in his favour must be to cause him to gain by his breach of contract; and that, in fact, by pocketing the money of the unfortunate broker that he wronged-an injustice that would, I think, be intolerable. But it is enough to say that, in any view, I think the difference in the prices of the scrip must fall on Dickson, not on Henderson." Lord Ivory adhered to the opinion expressed in the note to his judgment.

In respect of these opinions,

The Court adhered.

Lord Ordinary, Ivory.-Act. Robertson; James Burness, S.S.C. Agent.-Alt. Logan; Andrew Dun, W.S. Agent.-T. Clerk.— [F.H.]

6th December 1849. FIRST DIVISION.

No. 36.-JAMES DUNBAR, Pursuer, v. THE REV. WILLIAM ROBERTSON and others, Defenders. Summons-Relevancy - Church-Reparation - DamagesStatute 43 Geo. III. c. 54-A schoolmaster, against whom a sentence of deposition had been pronounced by the presbytery, reduced the same on informality, and he thereafter brought an action of damages against the individual members of the presbytery, but without libelling malice-Held that the action was irrelevant. See ante, vol. xxi. p. 171.

Action of damages at the instance of James Dunbar, schoolmaster of the parish of Madderty, against the individual members of the presbytery of Auchterarder. The summons set forth

"That on the 9th day of October 1844 the pursuer was served with a libel at the instance of the now deceased Reverend Peter Brydie, minister of the parish of Fossoway, calling himself moderator of the presbytery of Auchterarder; the Reverend William Robertson, minister of the parishes of Monzievaird and Strowan, calling himself clerk to said presbytery; the Reverend Thomas Young," and others, "all calling themselves members of the said presbytery:"

That this libel proceeded on the statute 43 Geo. III. c. 54, and charged the pursuer with the crime of adultery with the person therein named

"That no grounds whatever existed for the charge contained in the said libel; and the said charge ought not to have been made the subject of libel, nor ought the said libel to have been received or proceeded with: That, notwithstanding, the pursuer was cited under said libel to appear before the presbytery of Auchterarder; and the pursuer accordingly appeared before the said presbytery, when he not only denied the charge contained in the foresaid libel, but objected to the libel itself as being imVOL. XXII.-No. V.

properly and irrelevantly laid: That, nevertheless, the said individuals before named, prosecutors of the said libel, insisted in the same before the said presbytery, who entertained the libel, and sustained its relevancies; and various diets of presbytery were held from time to time thereafter, at which certain procedure took place as if under said libel: That the proceedings of the said prosecutors and presbytery were from the beginning, and all throughout, irregular, illegal, incompetent, and ultra vires: That no legal evidence whatever was adduced in support of the said libel; at all events, no evidence whatever was legally recorded and authenticated, as was absolutely required by law, in order to entitle the prosecutors and presbytery to proceed under such a libel to a judgment thereon: That the pursuer, on various occasions, protested against the proceedings of the said prosecutors and the said presbytery as being utterly illegal, irregular, incompetent, and ultra vires; which protests were wholly disregarded: That, in these circumstances, and having no proof legally recorded and authenticated, or, in other words, having no proof at all before them, the prosecutors were not entitled to ask, or the presbytery to pronounce, judgment on the said libel; but, notwithstanding, the said presbytery, at the instance of the prosecutors of the said libel, and in face of the denial, objections and protests, by the pursuer, on the 10th day of June 1845, pronounced sentence of deposition against the pursuer in the following terms."-The finding and sentence of the presbytery was then quoted, which concluded as follows:-"The said James Dunbar being then called in, the above sentence was intimated to him; and the presbytery did farther ordain the Rev. William Stoddart, minister of the parish of Madderty, to make intimation of said sentence on Sabbath next in the parish kirk, immediately after divine service:" "That intimation of said pretended deposition was accordingly made in the parish church of Madderty: That the whole of the foresaid proceedings, and particularly the pronouncing the foresaid sentence of deposition, was irregular, incompetent, illegal, and ultra vires of the said presbytery, more especially as the said presbytery had no right to pronounce such sentence without evidence duly taken, recorded, and authenticated; and to pronounce such sentence without such evidence was clearly and manifestly ultra vires: That, accordingly, the pursuer, on the day of August 1845, instituted an action

of reduction of the said proceedings and sentence before our Lords of Council and Session; which action came to depend before Lord Ivory as Ordinary: That, in said action of reduction, after a great deal of procedure, the following interlocutor was pronounced by Lord Ivory on the 30th day of June 1847:-The Lord Ordinary having considered the cases for the parties, and whole process, repels the defence of res judicata; and in respect of what was decided both in this Court and in the House of Lords in the case of Kilberry, and that the evidence in the present case has not been duly authenticated in terms of law, reduces, decerns and declares, in terms of the libel: Finds the pursuer entitled to expenses; appoints an account thereof to be given in, which, when lodged, remits to the auditor to tax and report; and decerns.' (Signed) J. IVORY.' That this interlocutor has been acquiesced in by the defenders, and it is now final: That, by said judgment, the whole proceedings of the said presbytery under the said libel have been reduced and set aside, and found to have been from the beginning, and in all time coming, void and null; and the pursuer has been restored and reponed against the same in integrum : That during the dependence of said proceedings before the presbytery, the pursuer was subjected to great loss and expense; and the said proceedings, and more especially the sentence of deposition above quoted, pronounced against the pursuer, have created great injury to the pursuer's character, credit and reputation, have deeply wounded his feelings, and occasioned great loss and damage to him: That the defenders before and after named, as prosecutors of said libel, and at whose instance the said irregular and illegal sentence of deposition was pronounced, and who also, as members of presbytery and judges, joined in entertaining and carrying on the proceedings to the conclusion foresaid, are liable to the pursuer for the loss and damage sustained by him, and in solatium for the injury received by him on account of the said illegal proceedings."

The summons concluded for £1000 in name of damages. When service of the libel was ordered by the presbytery, the pursuer suspended, on the ground

that the libel was incompetent under the statute, and that the presbytery had no jurisdiction to entertain the same. The Lord Ordinary on the Bills (Robertson) refused the note

"in respect there is no valid objection to the competency or regularity of the libel, or to any part of the statutory proceedings before the presbytery, in so far as the same have hitherto gone."

On sentence of deposition being pronounced, the pursuer presented a second note of suspension and interdict, which was also refused by the Lord Ordinary on the Bills (Fullerton), with the following note:

"To take the case out of the positive prohibitory enactment of the 21st section of the statute, it was indispensable that the complainer should state definite and specific objections to the regularity of such parts of the procedure as he averred to be in violation of the forms, either express or implied, in the act. Had he done so, the Lord Ordinary must have ordered production of the proceedings, in order to see how far these objections were well founded. But no such order is here necessary. The objection to the libel has been finally disposed of by the refusal of the former note of suspension; and the other objections consist of nothing but vague and general statements of irregularity, which, in a case of this kind, cannot be received to the effect of letting in a mode of review, which it was the manifest object of the legislature to exclude."

Both these judgments were allowed to become final. In his condescendence, the pursuer made the following statements in addition to those contained in the summons:-2. The pursuer was wholly innocent of the crime laid to his charge in the said libel; and there were no grounds whatever for raising the said libel, or making the accusation therein contained. 4. The libel was, in point of fact, laid improperly and irrelevantly; more especially in so far as, whilst bearing to be a libel at the instance of the presbytery of Auchterarder, it did not run in the names of the whole members of the presbytery, none of the lay elders of the presbytery being mentioned therein; and it did not run in name of the presbytery in their corporate capacity, but only of the individual members before mentioned. 7. The said sentence was wrongfully and illegally pronounced, not only inasmuch as there were no grounds for any charge against the pursuer, but inasmuch as the whole proceedings taken upon the said libel, and followed, or pretended to be followed, between the date of raising the libel and the date of pronouncing judgment thereon, were irregular and incompetent, and such as no judgment could legally or competently follow upon them. None of the due forms of law were observed throughout. 8. More particularly, the said judgment was pronounced without any proof; at least without any proof being taken down and authenticated in terms of law.

The defenders, in their answers, stated-That the pursuer was proceeded against in consequence of a complaint laid before them at the instance of the minister and two elders of the parish of Madderty, charging the pursuer with the crime of adultery. That the necessary proof was taken in presence of the pursuer, to whom every facility was afforded to enable him to establish his defence. The proof was taken down at full length in a small minute-book, and afterwards written out in a more formal book, which is kept by the clerk of the presbytery; but it was held by Lord Ivory, in the action of reduction, not to have been sufficiently authenticated, in so far as, although every deposition was signed by the moderator, this was in some instances