Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

William Souper, Merchant in Aberdeen,
v.
George Piper and James Miln of Balwyllo

Date: 2 July 1708

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In a competition betwixt William Souper and James Miln, about the right of some merchant goods belonging to William Pennie, their common debtor, consigned in the hands of George Piper by way of commission, in order to be sold at Coningsberg, and the product to be returned in other goods from thence. William Souper claimed to be preferred upon this ground, that the principal commission accepted by Mr. Piper was indorsed and delivered up to him, and ought to prefer him to any separate right made of the goods therein contained, though first intimated; because, his right needed not to be intimated, more than the indorsation of a bill of exchange; and, in transactions among merchants, no assignation to an accepted commission or bill, without delivery of the principal commission or bill, is valid, or can warrand the acceptor to pay.

answered for Balwyllo,—He is clearly preferable, by having both intimated an assignation to the goods, and arrested them in Piper's hands, before intimation of Souper's right. For where was it ever heard that privileges allowed by law to bills of exchange, are communicable to other merchant-conveyances ? and to say that an assignation to merchant goods could be completed without a formal intimation, or that such an assignation could not be made without delivering up the principal commission, is sine lege loqui.

The Lords preferred James Miln of Balwyllo.

Page 258.