Scottish Court of Session Decisions

Subject_1 PART I.

MOVEABLES.

Henderson
v.
Gibson

Date: 17 June 1806
Case No. No. 1.

Rei vindicatio lies for recovery of stolen goods from purchaser at a public market.

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James Gibson of Ingliston, bought four bullocks in the public market in Edinburgh. A short time afterwards, he observed an advertisement in the newspapers, giving notice, that four bullocks of a similar description, had been stolen from Malcolm Henderson at Bonhard. He immediately informed that gentleman of the circumstance, who, upon inspecting the cattle, declared they were the bullocks which had been stolen, and required them to be immediately given up. This being refused, an action was raised before the Sheriff of Edinburgh, at the instance of Henderson against Gibson, to have the cattle delivered, or to find him liable for their value. The Sheriff found, that the pursuer was entitled to recover the cattle, upon proving his property, and that they had been stolen; and allowed a proof. Upon advising the proof, he ordained the defender to deliver up the bullocks, on payment of grass mail, for the time they were maintained by him. It having been thought expedient to sell the cattle, the Sheriff ordered the pursuer to condescend on their value, and found the defender liable for the amount.

The cause having been removed by advocation to the Court of Session, the Lord Ordinary, upon hearing parties, repelled the reasons of advocation, and remitted the case simpliciter to the Sheriff. Against this interlocutor, Gibson presented a petition to the Court; and

Pleaded: It is essential to the interests of commerce, that a bonâ fide purchaser at a public market should be secure. Accordingly, by the law of England, it is held that all sales at public markets are good, not only to the parties but to all having any right or property in the subject; Blackstone, vol. 2. p. 449. By the ancient law of Scotland, indeed, the contrary doctrine prevailed; but it was at the same time enacted, that purchasers of cattle at public market should demand a borgh of haimbald, or security to warrant the possession to the purchaser, who was liable in heavy penalties, if the subject should be afterwards evicted as having been stolen; Reg. Majes. B. 1. Cap. 18; Ferguson against Forrest, 19th March 1639, No. 3. p. 9112. As this custom has now gone into disuse, the purchaser at a market has no means of security; and it is highly expedient that the old law, adapted to this state of matters, should be modified to the existing circumstances of the country, in the same manner as has been done in other cases, when the ancient law was deemed incompatible with the present state of commercial transactions.

But the petition was refused with answers. It was observed, that though a landlord's hypothec was not good in a competition with a purchaser at a public market; it was very different with regard to a vitium reale in the subject.

Lord Ordinary, Glenlee. For Petitioner, W. Clerk. Agent, David Christie. Clerk, Scott. Fac. Coll. No. 253. p. 567.