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 Property of goods on ship-board transferred on sale by indorsation of the bills of loading.

Robert Bogle
v.
Robert Dunmore and Company

Date: 2 February 1787

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[Fac. Coll. IX. 470; Dict. 14,216.]

Hailes. It should seem that Dunmore and Company mean to introduce a new hypothec into the law of Scotland under the name of retention.

Monboddo. I am clear for Bogle. The first question is, Whether there was a sale to him, and whether he pursues as purchaser? Ex facie there was a sale; and it is of no great moment how the price was to be applied. But, although there had been no sale, the question is as to possession. Monteith, the proprietor and seller, was in possession from the time of shipping, and after the goods were landed: possession is not only facti but animi. A decision, quoted from Lord Kaimes, expressly says so, on the principles of the Roman law. Dunmore says, that he was in possession, and therefore, that he may retain for every debt: he was no more in possession than the letter of lodgings is as to the invecta and illata beyond the hypothec for rent.

Justice-Clerk. This is a very important question. I should be sorry to see the law of Scotland such as it is represented to be by Mr Dunmore. A bill of loading, signed by the shipmaster, obliges himself and his owners to deliver the goods to the proprietor. On a ship's arrival, the owners might dismiss the shipmaster; but could the owners detain the goods for former debts? This would put an end to commerce; for then no man could know on what footing he stood: the same principle has been adopted both by Lord Hardwick and Lord Mansfield.

Braxfield. Possession may be continued animo, but it cannot be so acquired. If a bill of loading vest possession, how can there be retention? The corporal possession is in the owner of the ship, whether he acts by himself or by his servants. The owner or shipmaster becomes bound to deliver goods. Here there can be no compensation: but retention stands on a different footing than compensation. Compensation must be on liquid grounds, but retention is competent for security of the obligations under which the holder has come for the bankrupt. Sale is a consensual contract, not completed without delivery. Objection is good against the purchaser as well as against the seller: in the noted case of Hewit, the House of Lords gave judgment on my principles.

Monboddo. A sale may be completed symbolically. By the law of England there is such a thing as retention, else there would have been no room for the decisions pronounced by Lord Hardwick and Lord Mansfield.

Rockville. If bills of loading, by being conveyed, do not convey property, there is an end of commerce.

On the 2d February 1787, “The Lords repelled the defences.”

Act. A. Wight. Alt. ———. Reporter, Henderland.

Diss. Alva, Braxfield.

Non liquet, Henderland, Dunsinnan.