Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 SALE.
Subject_3 Interest of consignee in goods shipped to him from abroad, and of which the bill of lading has been transmitted to him.

Robert Arthur
v.
Messrs Hastie and Jamieson

Date: 1 December 1768

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[Faculty Collection, IV. p. 165; Dict. 14,209.]

Monboddo. I doubt as to the principle of the interlocutor and its consequences. The goods were put into the hands of the shipmaster, in order to be delivered to the Glasgow merchants; still, however, on the risk of the Virginia merchant: but the rule, res perit suo domino, admits of various exceptions. Supposing no transfer of the property, the consequences drawn in the interlocutor will not hold. If I have a personal right to a subject, and no more, still this will be a burden on the subject after arrestment.

President. No arrestment can carry the property of another man.

Gardenston. If remittances of goods by foreign merchants were liable to arrestments, the consequences would be dangerous. I wish for an inquiry into the practice of other nations, especially England. I hold that a consignation of goods for payment is, in reality, an assignation. If there had been a formal conveyance and assignation, there would have been no question; though, in strictness of speech, the property was not thereby transferred. I do not see the difference between that case and the present.

President. That hypothesis is not consistent with the tenor of the contract between the parties.

Gardenston. I do not go upon that contract, but upon the bills of loading and the letters.

Barjarg. This private contract cannot have effect against the diligence of third parties. There was no antecedent obligation on the Virginia merchant.

President. It would be dangerous to alter this interlocutor: it would be opening too wide a door for frauds and undue preferences.

Kennet. The tobaccos were not the property of the Glasgow merchants, and would not have been their property, even if they had been delivered. The case of M'Farlane was different from this; for there he had previously wrote home to a trustee that he was to send the goods for payment of his creditors.

On the 29th November 1768, The Lords found that there was no sufficient evidence that Archibald Dunlop was divested of the ship and cargo, in favour of Hastie and Jamieson, and, consequently, that the same was liable to be affected by the diligence of his creditors; and, therefore, preferred Robert Arthur upon his arrestment, “adhering to Lord Pitfour's interlocutor.”

Act. R. Cullen. Alt. A. Lockhart.

Non liquet, Monboddo.

Vide infra, 1st March 1770.