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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Archibald Hamilton v John Wood, &c. [1787] Hailes 1039 (12 December 1787) URL: http://www.bailii.org/scot/cases/ScotCS/1787/Hailes021039-0705.html Cite as: [1787] Hailes 1039 |
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[1787] Hailes 1039
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 HYPOTHEC
Subject_3 Does not take place on Ships for repairs, made in home ports.
Date: Archibald Hamilton
v.
John Wood, &c
12 December 1787 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, X. 65; Dictionary, 6269.]
Braxfield. My judgment went upon the supposition, that in practice there was such a bottomry right; but, on principle, I think that there ought to be no such lien, as tending to cramp trade.
Eskgrove. The practice of the Court of Admiralty has gone otherwise: this was founded partly on the civil law, and partly on a mistake as to the sense of Lord Stair.
Hailes. The sense of Lord Stair was plainly misunderstood, and so has been the sense of Mr Erskine: both of them speak of foreign contractions. I do not value the opinion of Scottish merchants in general, or of the practice of the merchants on the Clyde in particular; what I look to is the judgment of the courts of the greatest commercial nation that ever existed, proceeding on general principles and practice.
Justice-Clerk. We have now clear evidence of the practice in England; and we ought not to adopt and sanctify any hypothesis contrary to that practice.
On the 12th December 1787, the Lords, “after having heard the opinion of Dr Winne, found that the furnishers in this case had no preference;” altering the interlocutor of Lord Braxfield.
Act. Mat. Ross. Alt. Ed. M'Cormick.
The electronic version of the text was provided by the Scottish Council of Law Reporting
