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Scottish Court of Session Decisions >>
Gilbert Montier v James Macjarrow. [1706] 4 Brn 648 (21 June 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Brn040648-0142.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Gilbert Montier v. James Macjarrow
Date: 21 June 1706
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Gilbert Montier, factor at Rotterdam, gave in a petition, representing, That, on a commission from James Macjarrow, merchant in Air, he had sent him a parcel of indigo and other goods to the value of 187 guilders, in George Walker, skipper in Borrowstonness, his ship; but, before arriving of the ship, the said Macjarrow having broke and absconded, neither himself, nor any from him were to receive the goods, and pay the custom and other dues; wherefore, the collectors and surveyors there put them in cellars, and detain them till payment. Of which the said Gilbert being informed, he now craves the Lords' warrant to intromit with the goods, on his paying the customs due to the public; and he is willing to find caution for their value to be made forthcoming to Macjarrow, or his creditors, if they shall afterwards lay claim thereto.
The Lords ordained the bill to be intimated, that any concerned might compear to answer the same. But none appearing, the Lords thought the desire reasonable for the preservation of the goods; especially seeing factors abroad cannot know the condition of their employers, who may alter and fail in the interval of a few posts, betwixt the commissioning the goods and the receiving of them. And though we have not that hypothec introduced by the Roman law, whereby the ware and goods stood affected and impignorated for the price, (June 14, 1676, Cushnie against Christie;) yet here there was no reason to let the goods perish; and therefore allowed him to intromit, on his finding caution to make them forthcoming, and paying the freight, the customs, cellar-maills, and other dues; and gave him letters to charge the collectors to deliver them up to him on these terms. Which, though not consonant to the strict principles of law, by which the dominion of the goods was Macjarrow's, to whom they were consigned, and whose faith Montier followed in sending them; yet, in this circumstantiate case, his desire seemed to be founded on justice and equity.
