Scottish Court of Session Decisions

Subject_1 FRAUD.

Christie and Company
v.
Fairholms, &c

1748, Dec. 7, 21.
Case No. No. 20.

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One Anderson in 1746 bought from Christie and Company in Glasgow 30 hogsheads of tobacco, for which he was to grant a bill with Drysdale his father-in-law, and which tobacco he was to export from Elphinston. He sent a bill bearing to be accepted by him and Drysdale, and thereupon they sent the tobacco, which was shipped, but immediately arrested by Fairholms and others, creditors of Anderson, which produced an agreement. Anderson gave up the skipper's bill of lading in his own name, and a new bill was taken in Fairholms name and the tobacco consigned to Dunlop in Holland to be sold for the creditors account. Anderson went along, and the tobacco was sold, and the account of sales sent Fairholms, with a letter from Anderson to Fairholms to divide the net-proceeds, L.285, among the creditors, in May 1747, Thereafter Christie charged Drysdale on the bill, who suspended on this reason, that the bill was not signed by him but by a boy, who adhibited his subscription, and this question lies at an act for proof. Christie, doubtful of his success, sues Fairholms for the price of the tobacco, because of Anderson's fraud, and that the bill not being signed by Drysdale in terms of the bargain of sale, the property of the tobacco never was transferred. Most of the Lords thought the property not tranferred, and that the fraud was a vitium reale. The President thought there was a difference betwixt arresters and purchaser in the way of commerce, that the arresters are liable to the same objections with their debtors, and the changing the bills of lading did not transfer the property, and it carried to prefer Christie and Company. It was so expressed, because Fairholms had raised a multiplepoinding. Renit. Kilkerran et me, who agreed that it was a fraud in Anderson, but that the property was transferred by sale and delivery, and though that sale might be reduced against Anderson and even against the arrestment while that was all the right that was in them, yet they having acquired the property by the new bill of lading and sold it again, so that nobody knows now who has the property, or if the tobacco is not consumed, that Anderson's fraud could not affect them who were not partakers of it; and Kilkerran observed, that their right by having the tobacco transferred to them by the new bill of lading could not be the worse for their having had an anterior arestment. 17th December, Refused a bill without answers and adhered.