Thomas Main Merchant in Linlithgow v. James Maxwell Merchant in Glasgow, and Partners
Date: 27 July 1710 Case No. No 18.
A declarator of a Weigh-house clerk, bearing that one had weighed over to another's wife, a parcel of tobacco, weighing so much, and marked with the initials of the husband's name, found to transmit the property to him.
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Thomas Main creditor to Robert Simpson merchant in Stirling, having arrested in the hands of Robert Falconer clerk to the Weigh-house of Glasgow, and in the hands of the tacksmen thereof, ten hogsheads of tobacco lying in the said Weigh-house, as belonging to Robert Simpson, to whose wife it was sold and weighed over by James Maxwell and partners in her sight, and pursued a furthcoming.
Alleged for James Maxwell, The parcel of tobacco could not be made furthcoming to the pursuer; because the property thereot as never transferred to Robert Simpson; the sale being incomplete till the be paid, or fides habita de pretio, either expressly, or tacitly by acty of the goods. Replied for the pursuer, The property of the tobacco as fully transmitted to Robert Simpson, by the seller's weighing over to his wife in the public Weigh-house; especially considering, the were marked with R. S. the initial letters of Robert Simpson's name. For a contract of sale is perfected solo consensu; and our law allows no hypothec to the seller, for the price of the goods sold.
The Lords found, that a declaration of the Weigh-house clerk of Glasgow, bearing that James Maxwell had weighed over to Robert Simpson's wife ten hogsheads of tobacco, weighing 4500 pounds weight, marked R. S., did transmit the property to Simpson; and that therefore it ought to be made furthcoming to Thomas Main his creditor arrester.
