Goods were seized before delivery, and redeemed by paying triple excise. The purchaser found entitled to damages to the extent only of what he had actually paid, not for any profit he might have made.
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The case of Spence and Watson contra Robert Ormiston, was reported by Kemnay.—Ormiston had sold Spence a teirce of brandy, and was to deliver it to to him in his shop at Edinburgh; but the waiters seized on it, and it was confiscated, being stolen in at the port without paying the town's dues; and he being forced to redeem it by paying the triple excise, pursued the seller for refunding his damage, which he restricts to what he actually gave.—Alleged, After tradition the peril is the buyer's.—Answered, You sold it prout optimum maximum, free of all incumbrances; unless you offer to prove, that the buyer took it with the hazard; and the seizure arose from a deed of your's, in not paying the custom. The question was, On whose peril the brandy was confiscated?—The Lords found it was the seller's, he being obliged to deliver it in the buyer's shop in Edinburgh; but restricted it to the true damage sustained by him, and not to what he might have made by retailing it. This was reclaimed against by a bill.
Fol. Dic. v. 1. p. 208. Fountainhall, v. 1. p. 442.
