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A person having granted a commission in writ to the supercargo of a ship and loading, to export some goods belonging to the granter of the commission, and to sell them in Holland, and with the prices to buy some other species of goods for his behoof, which being accordingly done, and the commissioned goods returned, the trustee acquainted his constituent by a letter, that they were put in a cellar for his behoof. Thereafter a creditor of the trustee's poinded these goods as belonging to his debtor; whereupon he to whom the letter was written raised a process of spuilzie upon this ground, that the goods poinded belonged to the pursuer.
Alleged for the defender: That possession presumes property in moveables, and the pursuer had no bill of loading of the goods poinded, as belonging to him, nor was he bound to have owned them to be his had they been cast away; so that till delivery, they were to be reputed the supercargo's goods.
The Lords found the property of the goods belonged to the pursuer, and decerned the defender to make restitution, but assoilzied him a spolio.
Fol. Dic. v. 2. p. 413. Harcarse, No. 864. p. 245.
