Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN GILMOUR OF CRAIGMILLER.

Andrew Spruel
v.
William Brown and Robert Blaw

1663. June.

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By a charter party, at Stockholm, betwixt Andrew Brown and James Brown in Culross, the said James grants the receipt of certain commodities belonging to Andrew, which James is obliged to transport to Scotland for Andrew's use. These goods being alleged to be in the possession of William Brown, brother to the said James, and Robert Blaw in Culross, and to be intromitted with and disponed upon by them; they are convened by the said Andrew Spruel for the prices. It was alleged for the defenders, That they had right to the goods from James Brown, for an onerous cause; in so far as the defender did employ and intrust the said James with a considerable stock for Stockholm, to bring home with the return thereof such commodities as he could best bargain for. He accordingly did bring home the goods libelled, and delivered them to the defenders as the return of their stock; neither did they know, or were obliged to know, any bargain betwixt the said James and the pursuer. It was answered, That the pursuer had rei vindicationem against any who meddled with his goods, the goods libelled being properly his own; and he was in the same condition as if the defenders had bought the goods in a market a non Domino; and the said James not being owner, but trusted by the pursuer, the defenders should seek their warrandice of James. It was replied, That James being employed ut supra, and having returned and delivered the said goods in lieu of their stock, they might lawfully and effectually intromit therewith as their own: and were not in the case of persons buying in markets in Scotland, who are obliged to take caution for their warrandice, otherwise they buy upon their own peril; but they are in the condition of persons who buy from a merchant's servant or factor, who, coming out of foreign countries, sells commodities to merchants at home, who are not obliged to examine whether the goods be the seller's or not, they buying and receiving them bona fide: nor is any man, buying goods out of a shop, obliged to inquire whether the shopkeepers have good right to them or not; but if any pretended right to the goods sold, he ought to pursue the seller, and not the receiver. The Lords, before answer, ordained the defenders to condescend and prove what goods they sent over seas with the said James, and upon what terms; but they inclined to judge, that, if it were proven that they sent them away with commodities for a return to be brought home, and that, accordingly, the goods libelled were returned and delivered,—they would assoilyie the defenders.

No. 82, Page 63.