United Kingdom House of Lords Decisions

The very able argument of Mr Moncrieff really proceeded upon the doctrine or upon the thesis that in order to make goods in the hands of the custodier liable to arrestment it is necessary that there should be some contract by the custodier to hold for the debtor. I have not heard any authority quoted in support of the proposition, and I think the authorities which have been referred to, and if I might say so the reason of the thing also, shows that it is not necessary to establish an express contract of that kind. Therefore I think the appeal ought to be dismissed.

I do not know what your Lordships are disposed to say in regard to the question of costs which was raised by Mr Moncrieff as an ancillary question. The inclination of my own mind is not to disturb the order of the Court of Session in regard to costs, but your Lordships will express, no doubt, your opinion upon that subject.

Lord Atkinson—I concur, and shortly on these grounds. In my view the letter of the 30th September 1913 was an intimation by Messrs Moore & Weinberg that the warehousemen were to hold these goods for the defenders, and the letter of 30th September from the manager of the Warehouse Company was an express consent to hold them for that person, and contained a promise, which unfortunately was not fulfilled, that their goods clerk would send formal advice that that had been done. Now the letter of the 19th September was a document of title; it informed the defenders that the contents of these two bales lay at this warehouse for them, and in my opinion, fortified with that document of title, they could have come to the warehousemen and immediately demanded that those goods should be handed over to them. I think, on the authorities that have been cited, that obligation to deliver on demand is exactly that of possession and accountability within the authorities. I concur with what my noble and learned friend on the Woolsack has said. I think that these things were arrestable for that reason, and therefore the appeal fails.

Lord Shaw—The two important dates in this case are the date of the award, the 18th of September 1913, and the following day. By the award the arbiter found that Messrs Ernsthausen were due to pay the value of the five returned bales at a certain figure that he named. Holding that award, Messrs Moore & Weinberg did what in my opinion they were bound legally and as honest business men to do—they took immediate steps to have that property the value of which was to be paid to them transferred to the persons who were to make that payment. Accordingly upon the 19th of September we find that they had carried out that duty, and instead of Moore & Weinberg remaining in the wharfinger's books any longer as the owners of that property the sacks were on the 19th of September transferred to Ernsthausen, Limited, London.

Certain correspondence took place, with regard to which I will only say that I entirely agree with my noble and learned friend opposite. It appears to me to be out of the question to contend upon the correspondence as a whole that there was any failure to make all the intimation requisite by law even for the transfer of the property.

But even although the property had not been transferred, as in my humble opinion it was by those completed documents, it appears to me that the objection to jurisdiction would in this case fail. I put it thus—That there was no intention, and there never has been the carrying out of any intention, on the part of Messrs Moore & Weinberg to claim the property back. On the other hand, there would have been a clear right on the correspondence for Messrs Ernsthausen to make demands upon the wharfinger, and to bring him to account in respect of these sacks held in his custody.

What is the law of Scotland upon that point? The decisions were to some extent reviewed in the case of Napier, Shanks, & Bell v. Halversen, reported in 19 Rettie at p. 412, 29 S.L.R. 343, to which I called attention in the course of the discussion. I beg the House to permit me to read these sentences from Lord Kinnear's opinion—“I think any difficulty in the matter arises from a misapprehension of what was decided in the cases of Douglas and Bains. There is no doubt that if there are primary grounds for holding that the arrestee has funds in his hands belonging to the debtor there may be a perfectly good arrestment jurisdictionis Fundandæ causa, even although it is possible that if a proof were taken the balance might be found to be against the arrestee.” I think that on the settled cases that is the present state of the law of Scotland, and upon a topic so peculiar to the Scotch system it is very undesirable for this House to introduce either change or amplifications.

The present is a fortiori a case of liability to account, with a prima facie ground for holding that something on the account would be due. Here there is no question of any complicated arrangement. The question simply is one of handing over the corpus of certain goods which are held by wharfingers, there being beyond any shadow of doubt on the correspondence an obligation to hand them over to Messrs Ernsthausen.

In those circumstances, under the old law of Scotland subsisting to this day, jurisdiction has in my view been well founded. On the point of costs, to which the noble and learned Earl on the Woolsack alluded, I concur in not desiring to disturb the order of the Court below.

Lord Sumner—I concur. I think it quite clear that two at least of these bales of gunny bags were before the 19th September 1913 once more the property of Messrs Ernsthausen as upon a re-purchase by them, and

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