been a violation not only of the common law, but of the expressed provision of the statute. Therefore this arrestment is, in my opinion, altogether out of place. It might have been that there was no sale by Davis & Company. In that case the arrestment or poinding would have been as good by Ainslie & Company in their own hands as by any creditor of Davis & Company. But being sold by Davis & Company, as clearly and distinctly shown by the document of title, the goods are not arrestable by any creditor of Davis & Company, and would not pass to any trustee of Davis & Company in bankruptcy. I think it is only carrying out the views and intentions of the parties, and the legal effect of what they did, to hold that these goods are the property of Browne & Company, and that they, and they alone, are the creditors for delivery, and that they as creditors only can attach these goods. If being creditors, any creditors of theirs might have attached the goods. But then we have infelicity of expression here. "Arrestment must be before a sub-sale shall be intimated." Of course arrestment after a sub-sale has been intimated would be bad according to my view, because my view goes further. It is utterly bad after a subsale has taken place for the right of a buyer in a sub-sale to be affected by any debt of the seller to him, or of any creditor of the seller to him. It would be ridiculous to read the statute strictly and literally to mean that if the seller has got intimation of a sale by the buyer, he should not be in the same position as a third party to arrest or poind in his own hand-if he had not got intimation, he should; but if he had, other parties who were creditors of Davis & Company might arrest in their hands, and the original sellers could not. If there should be any arrestment after a sub-sale to the detriment of the sub-seller, that would be to operate to the prejudice of the purchaser by the diligence of the creditor of the seller. On these grounds, which are really independent of every question except the validity of the arrestment by Ainslie or any other creditor of Ainslie to disappoint the right of a creditor of Davis & Company, I am of opinion that the judg ment of the Lord Ordinary is right. But I agree with your Lordship that not only was it Ainslie's intention that Davis & Company should be in a position to sell to third parties, to give them a document of title, and to give them control of the goods without being exposed to any risk of their attachment by a third party, but I think he certainly knew of the sale to Thomas. In law I agree that he was informed of the seller, and that was sufficient intimation of the sub-sale. I do not, however, care to put my judgment upon that; I rather prefer to put it upon the invalidity of any arrestment of a debt of Davis & Company by a creditor of Davis & Company to the disappointment of a bona fide purchaser for value from Davis & Company.

LORD RUTHErfurd Clark-This action is directed against Ainslie & Company and

John Anderson. But as Anderson is the servant of Ainslie & Company, I shall call Ainslie & Company the defenders.

The whisky to which it relates was sold by the defenders to Davis, Strange, & Barker. It was duly paid for. In February 1891 it was sold by Davis, Strange, & Barker to W. F. Thomas. In December of the same year Thomas sold eight casks to the pursuers, who now demand delivery of six. They have already obtained delivery of two.

The defenders were creditors of Davis, Strange, & Barker on another account. On 9th March 1892 they arrested the whisky in security of the debt due to them, as being "in their own hands or possession," in virtue of the power given to that effect in the Mercantile Law Amendment Act. The question is, whether this arrestment is effectual against the pursuers?

I am of opinion that the whisky remained in the possession of the defenders. It was in their own private store, of which John Anderson is the storekeeper. Anderson is the servant of the defenders, and is paid by a weekly wage. It is true that a deliveryorder was issued by the defenders against Anderson in favour of Davis, Strange, & Barker, who on 13th April 1891 forwarded it to Anderson. But as the store belonged to the defenders, and as Anderson was their servant, such an order was not equivalent to delivery. The goods still remained in the possession of the sellers. It is not even said that any transfer was made in the books of the store. In point of fact there was no transfer-book. Anderson merely kept a small memorandum - book for his own guidance. He says "I never effect any transfers of stock in my book; anything of that kind is always done in the office"-that is to say, in the office of the defenders. It follows, I think, that the arrestment cannot be objected to on the ground that the goods were not in the hands or possession of the seller.

But no arrestment is legal unless it be used prior to the date "when the sale of such goods to a subsequent purchaser shall have been intimated to such seller.' It is maintained by the pursuers that the sale to Thomas and to themselves was intimated to the defenders before the arrestment was used. An important question was raised on the meaning of the statute, and I think it right to determine it before I examine the facts on which the intimation is said to depend.

By the common law no one can arrest goods in his own hands. His only remedy is by retention. The Mercantile Law Amendment Act took from the seller the right to retain undelivered goods except for the price, but it gave him a right to arrest them. In other words, it permitted him to attach them for any debt due to him by the purchaser. The right to arrest necessarily presupposes that the purchaser has right to the goods. Otherwise the arrestment would be ineffectual. But the purchaser is not the owner, inasmuch as there has been no delivery. The right which sustains the arrestment must con

sist in his title to obtain delivery, or, in other words, he must at the time when it is used be creditor in the contract of sale.

Accordingly, the statute provides that the arrestment must be used prior to the intimation of a sub-sale-that is to say, before a sub-purchaser is made the creditor for delivery. This is effected by intimation, for by the 2nd section it is provided that the seller on intimation of the sub-sale shall be bound to deliver to the sub-purchaser. So long as the original purchaser is creditor for delivery there seems to be no reason why the seller should not have the power to arrest. He is entitled to arrest in respect of the existence of that right, and in the absence of any declaration or indication to the contrary, I think that the right to arrest must remain so long as the right on which it is founded continues to exist.

Accordingly, I read the words "intimated" and "intimation" as they occur in the statute in their ordinary legal sense as applied to moveable rights. Intimation is the process by which the right of the cedent is completed in the person of the assignee. A sub-vendee is the assignee of the original purchaser, and his right is completed by intimation to the seller. Until that be done, there is no contract relation between him and the seller, and the latter is under no obligation to deliver to him. Indeed, if he did, he would be acting in breach of his contract with the original purchaser. hold therefore that the arrestment was effectual unless it be shown that before it was used there had been such intimation of the sub-sale as to constitute the pursuers creditors for the delivery of the goods.

I

The question, then, comes to be, whether the sub-sale was so intimated as to make the sub-purchaser the creditor under the contract of sale, or, in other words, so as to complete the assignation of that contract to the sub-purchaser. I feel some difficulty in answering it, from the great imperfection of the pursuers' record. They do not state the time or manner of intimation. They say nothing more than that "intimation of the said sale was duly made to the custodiers of the whisky, who thereafter held for the before-mentioned pursuers. This averment refers to the sale to the pursuers by Thomas. There is no averment that the sale to Thomas was intimated to the defenders unless it be meant that there is an implied intimation of that sale by the intimation of the sale by Thomas to the pursuers,

On turning to the evidence, I do not find that the pursuers rely on any written intimation of a definite date other than the letter of 1st April 1892, which was subsequent to the arrestment. They attempt to prove that the defenders were cognisant of the sale to Thomas and of the sale by Thomas to them. I do not doubt that the defenders knew that Davis, Strange, & Barker had sold the whisky. Mr Ainslie admits it, and I think it probable that they came to know that Thomas was the buyer. It is not said that anything was done by Thomas or by the pursuers to intimate the sub-sales. In

deed, it was only on the pursuers' demand to clear the first two hogsheads in January 1892 that they came to know that Davis, Strange, & Barker had anything to do with the whisky. "We did not then know"so says Mr Towell "that Ainslie & Company had possession of the whisky. I had never heard of Ainslie up to that time." The pursuers were referred to Davis, Strange, & Barker by Thomas. They applied to that firm, who directed the defenders to invoice and send the two casks to them. This was done, and the casks were delivered to the pursuers by Davis, Strange, & Barker.

In all this I can see nothing which amounts to intimation of the sub-sales. The evidence of the pursuers comes to no more than that the defenders knew that there had been a sub-sale. Knowledge is not the word of the statute, and I think it clear that the knowledge of the seller is not equivalent to intimation. The reason is, that as intimation is the act by which the sub-purchaser becomes the creditor of the original seller, the intimation must be his act. It denotes his acceptance of a position which is not created by the sub-purchase, that he accepts the benefits as well as the liabilities of the original contract of sale. I do not mean to say that it must be in writing or be done by himself individually. But it must be done by himself or with his authority. Nothing less will signify that he has made a contract with the original seller. It is said that there could be no liability because the whisky was paid for. I do not think that this statement would be relevant even if it were true. But it is not true. For the creditors under the original contract were necessarily liable for the warehouse rents.

As I read the evidence, neither Thomas nor the pursuers ever made any intimation to the defenders, either directly or indirectly. They never attempted to establish, and never did establish, any contract relation between themselves and the defenders. They simply did nothing. They were contented to remain creditors under the contract which they themselves had made.

I hold therefore that the arrestment of the defenders is good and effectual.

If I am right in the opinion I have expressed, the defence is good in law, and must be sustained unless the defenders are barred from pleading it. The Lord Ordinary has not decided whether the arrestment was effectual or not. But assuming it to be effectual, he is of opinion that the defenders cannot found on it. His view is that the defenders, at the desire of Davis, Strange, & Barker, so acted as to enable them to show a clear title to the whisky as owners, and that customers by reason of their conduct were entitled to believe that Davis, Strange, & Barker had in truth such a title.

The pursuers state no such case, and I do not think that I can refuse to sustain a legal defence in respect of an equity which is not stated on record. They allege no misconduct on the part of the defenders, nor any conspiracy or concert between

& Co. v. Ainslie

28,

them and Davis, Strange, & Barker. They ask judgment in respect of their own legal rights. They do not say that the defenders have been deprived of theirs. As the pleadings stand, I cannot affirm the judgment of the Lord Ordinary.

But if we are to consider a plea of this kind, in support of which no facts have been stated on record, I think that nothing has been proved by which the defenders are barred from founding on their legal rights. There is a great conflict of evidence, and it is not easy to decide where the truth lies. Mr Davis swears that he was never told that Anderson was the mere servant of the defenders. Mr Ainslie's evidence is to the contrary. But after all I see nothing more than that. Mr Davis told Mr Ainslie that his firm was desirous of "posing as Leith merchants," and states that at his request the defenders gave facilities to this end by agreeing that their name should not appear in the transactions with the customers of Davis, Strange, & Barker. If Mr Davis thought that Anderson was a public bonded warehouseman, I cannot see what pertinence these statements have. They are more important when we see from the evidence of Mr Ainslie, that in the knowledge that Anderson was the servant of the defenders, Davis asked that deliveryorders should be issued in favour of his firm against Anderson, on whom Davis, Strange, & Barker might issue their own delivery-orders. But even in that case I can see no unfair dealing on the part of the defenders. They might have acted as they did on their own motive without sacrificing any of their legal rights. They were entitled to issue a delivery-order against the keeper of their own store. If they acted within their own powers, it seems to be immaterial that they followed a particular course at the request of Davis, Strange, & Barker.

But the matters with which I have been dealing are necessarily unimportant unless the pursuers were deceived. Mr Towell is the only witness who can speak to this fact. He does not say that the pursuers were deceived. He says no more than that they did not know that the defenders had possession of the whisky. The pursuers bought from Thomas in December 1891, and paid at the time. They did not even know of Davis, Strange, & Barker until they desired to clear two hogsheads in January 1892. Consequently they completed their purchase without the knowledge of what had been done by the defenders and Davis, Strange, & Barker. In these circumstances I cannot see how the pursuers were misled or deceived, and if they were not there is no foundation for the plea that the defenders are barred from founding on their legal rights.

The pursuers also founded on the 9th and 10th sections of the Factors Act of 1889. Here, again, their record is very imperfect. There is no attempt to explain the grounds on which they appeal to the Act. But it is obvious that they can take no benefit from it unless they show that it deprived the defenders of their right to arrest.

The ninth section deals with a person who has bought goods, and who has obtained with consent of the seller possession of the goods or documents of title, and it declares that the transference by such person of the goods or documents of title shall have the same effect as if the person making the delivery or transfer were a mercantile agent in possession of the goods or documents of title with the consent of the owner. We have to consider how that section can affect the defenders.

The goods here spoken of are the goods of the seller, and if the Act affects the defenders they must be taken to be the sellers. The enactment is that the buyer who has obtained possession of the goods shall be entitled to transfer them to the same effect as if he had been a mercantile agent in possession of the goods. The possession of the documents of title gives the same powers and rights as the possession of the goods, or, in other words, the possession of the documents of title is equivalent to the possession of the goods. this is only possible if the documents of title are the documents under which the seller held the goods. For no transfer order granted by the seller can of itself divest him of the possession. The pursuers have no such documents of title, and the defenders remain in possession of the goods.

But

Again, the tenth section provides that when a document of title has been transferred to a buyer of the goods contained in the document of title, the transfer shall defeat the vendor's lien or right of stoppage in transitu in the same way as the transfer of a bill of lading defeats the stoppage in transitu. But we are not concerned with any such rights. The defenders are not claiming any lien, nor are they asserting any right to stop in transitu. They are claiming the benefit of an arrestment which they have a statutory right to use so long as the goods are in their own pos

session.

The Act in the ninth section deals merely with the right to transfer, and in the tenth with vendor's lien and stoppage in transitu. It does not alter the law relating to delivery. It leaves to the former law to determine whether the goods remain in the hands of the seller, or whether there has been a change of possession, and in my opinion it leaves unrepealed the statute which enables a seller to arrest the goods so long as they are in his possession.

LORD TRAYNER-The facts of this case have been so fully stated in the opinion of the Lord Ordinary as to render any recapitulation of them unnecessary. The question of law to be determined is, whether the pursuers are entitled to delivery of the six hogsheads of whisky in question, or whether the defenders are entitled to retain them in respect of the arrestment they have used in their own hands.

The Lord Ordinary has held that the defenders in the circumstances he narrates are barred from pleading their arrestment in answer to the pursuer's demand. I offer

The

no opinion upon this ground of judgment, as I am disposed to decide this case on a consideration of the effect of the 3rd section of the Mercantile Law Amendment Act 1856. That section provides-"Any seller of goods may attach the same while in his own hands or possession, by arrestment or poinding, at any time prior to the date when the sale of such goods to a subsequent purchaser shall have been intimated to such seller, and such arrestment or poinding shall have the same operation and effect in a competition or otherwise as an arrestment or poinding by a third party." There are here three conditions which must be fulfilled in order to make the arrestment effectual, viz.-(1) The arrestment must be used by the original seller of the goods; (2) the goods must be in his hands or possession; and (3) the arrestment must be prior in date to an intimation made to the seller of the sale of the goods to a subsequent purchaser. first of these conditions is admittedly fulfilled; the defenders were the original sellers of the goods in question. The second condition is, in my opinion, also fulfilled. There may be room in this case for a question whether the goods sold by the defenders were or were not delivered to their buyers Davis, Strange, & Barker, so as to pass the property in the goods to them. But such a question does not need to be determined. For the section of the statute does not limit the arrestment by the seller to goods in his "possession," which might be read as meaning in his possession as undivested proprietor, but, on the contrary, by express words provides that arrestment may be used of goods "in his own hands," which I read as meaning goods in the custody or keeping of the seller, no matter what the title may be to which the custody may be attributed, provided of course it be a lawful title. The words "in hands" and "possession are in my opinion used in contrast, and not as synonymous. Now here, whether the goods were or were not delivered in the technical sense to the original buyer, they were at the date of the arrestment in the store or warehouse of the defenders and under their control. In a word, they were in the custody-"in the hands" of the seller. The only question then remaining is, whether the defenders used the arrestment upon which they found at a date prior to intimation of a subsequent sale. This is a question of fact, but before considering the fact or the proof offered in support of it, it is necessary to see what are the essentials of the intimation which, if made, excludes the seller's right to arrest; what must be the form and character of the intimation, and by whom must it be made. On this subject I observe that the statute does not prescribe any form of intimation-it does not provide that it shall be in writing-there is no solemnity prescribed with regard to its form, contents, or mode of delivery. It provides merely that an intimation shall be given to the seller which conveys to him the knowledge that a sub-sale has taken place. Any intimation therefore, verbal or

written, which possesses the seller with the knowledge of the fact of the subsequent sale appears to me to fulfil the requirement of the statute. It does not appear to me to be essential that the seller shall be informed who is the buyer under the subsequent sale. In that he has no interest. If the conditions of the original contract of sale have been fulfilled, it is of no concern to him to whom the goods are ultimately delivered, whether he be the first or the sixth subvendee, provided only that the person ultimately claiming the goods can show such a title to them as warrants the original seller in giving delivery. If the conditions of the original contract have not been fulfilled, the original seller can hold the goods against the world until such fulfilment is made. As the subsequent sale (if there is one) does not affect the rights of the original seller, it is of no importance to him to know the name of the person to whom that subsequent sale has been made. Does it make any difference whether the intimation is made by the buyer under the original sale, and seller under the subsequent contract, or the sub-vendee? I think not; either may make it. If there is any difference I should prefer to hold that the intimation should be made by the original buyer and sub-vendor rather than the subvendee. The original seller knows nothing, or may know nothing, of the sub-vendee, with whom he stands in no contract relation, and he might very well answer any intimation from the sub-vendee by saying, I will take no notice of your intimation or any claim under it until you produce your delivery-order or other notice from the man who bought from me, and to whom I am bound by contract to deliver the goods. But a notice from the original purchaser to the effect that he had sold the goods to another is a different matter, and a notice to which the original seller (saving his rights under the original contract) would be bound to give effect, and would be safe in giving effect.

Now, then, how stand the facts as regards intimation of a sub-sale. The original sale of 20 hogsheads of whisky (of which the six now in question form a part) was made early in January 1891. On the 21st of that month Davis, Strange, & Barker wrote to the defenders that they had that day opened an account with one of the richest publicans in London, and added-"We have sold him this lot of whisky," and it is plain (I do not think it is disputed) that this letter refers to the 20 hogsheads bought from the defenders. Their reply, on the following day, clearly shows that the defenders so understood it. This intimation did not name the purchaser, but that, as I have said, was not, in my opinion, at all neces sary. But the name of the purchaser was very soon supplied, for a delivery-order for a hogshead of this particular lot of whisky (identified by marks and numbers), dated 5th February 1891, in favour of Mr Freeman Thomas, was forwarded to the defenders by Davis, Strange, & Barker. I think it does not appear on the proof on what date precisely this delivery-order reached the

& Co. v. Ainslie &

28,

defenders, but there is no proof and no suggestion that it was not sent to and received by the defenders on or about its own date. The documentary evidence therefore comes to this, that written intimation was given to the defenders by their buyers of a subsale of the 20 hogsheads to one purchaser in January 1891, and that in the following month a delivery-order was presented for part of the whisky, which disclosed the purchaser to be a Mr Thomas. The parole evidence is to the same effect. Mr Davis and Mr Barker both depone to having informed Mr Ainslie, the defender, at an interview in London on 18th February 1891, that they had sold the 20 hogsheads to Mr Thomas, and "that the delivery-orders had been handed" to him. No doubt Mr Ainslie denies this. He does not deny knowledge of a sub-sale, but he says that at the interview with Davis and Barker he neither asked nor was told the name of the purchaser. But I prefer to believe that Mr Ainslie has forgotten what took place at that interview, rather than to believe that Davis and Barker are swearing to statements which (if not true) they must have invented and known to be false. I think therefore the evidence in the case shows that prior to 18th February the defenders had written intimation of the sub-sale to Mr Thomas, and that on 18th February the intimation was verbally repeated. The arrestment founded on by the defenders was used by them on 9th March 1892, a date somewhat carelessly omitted from the defenders' record, but which I find from the execution of arrestment produced. It follows that the defenders' arrestment is ineffectual in competition with the pursuers (who stand in the place and use the rights of Mr Thomas), not having been used prior to the date when the sale of the goods in question to a subsequent purchaser had been duly intimated. I am therefore of opinion that the result reached by the Lord Ordinary is right, and ought to be affirmed.

The Court affirmed the Lord Ordinary's interlocutor.

Counsel for the Reclaimers-W. Campbell-Aitken. Agents-Beveridge, Sutherland, & Smith, S.S.C.

Counsel for the Respondents - W. C. Smith Burnet M'Watt. Agents Gordon, Petrie, & Shand, S.S.C.

-

£553, 6s. 8d., and bound himself, and his heirs, executors, and successors, to repay "to the present minister and kirksession of the said parish, or their successors in office, in name and for the use and behoof of the poor of said parish." The heirs of A B having in 1886 paid the sums contained in these bonds, and a question having arisen between the kirk-session and the parochial board of the parish as to whether the right to administer this fund was now vested in the parochial board for behoof of the legal poor, or in the kirk-session for behoof of a wider class of poorheld (following the cases of Kinglassie, June 14, 1867, 5 R. 869, and Aberdour, November 24, 1869, 8 R. 176) that the history of the fund must be considered in order to explain the terms of the deeds, and that the history of the fund showed that it had been possessed by the heritors and kirk-session jointly for behoof of the legal poor, and that it had therefore passed to the parochial board under section 52 of the Poor Law Act of 1845.

By section 52 of the Poor Law Amendment Act 1845 (8 and 9 Vict. cap. 83) it is enacted-"That where any property whatsoever, whether heritable or moveable, or any revenues, shall at the time of the passing of this Act belong to or be vested in the heritors and kirk-session of any parish, or the magistrates, or magistrates and town council, of any burgh, or commissioners, trustees, or other persons on behalf of the said heritors and kirk-session, or magistrates, or magistrates and town council, under any Act of Parliament, or under any law or usage, or in virtue of gift, grant, bequest, or otherwise, for the use or benefit of the poor of such parish or burgh, it shall, from and after a time to be fixed by the Board of Supervision, be lawful for the parochial board of each such parish, or of the combination in which such parish or burgh may be respectively, to receive and administer such property and revenues, and the right thereto shall be vested in such parochial board; and the said heritors and kirk-session, magistrates, town council, commissioners, trustees, or other persons are hereby authorised and required either to continue to hold all such property and revenues for the behoof of such parochial board, or to make, grant, subscribe, and deliver such dispositions, assignations, and conveyances of all such property and revenues as may be necessary to enable such parochial board to administer the same for the behoof of the poor of such parish or combination."

During last century, at various dates between 1729 and 1752, Alexander Hamilton of Pencaitland granted six personal bonds in favour of the minister and kirk-session of the parish of Pencaitland for sums borrowed by him from the then kirk treasurer of the poor's money of the parish, amounting in all to £553, 6s. 8d. These bonds all remained in force until 1886, when the sums therein, principal and interest, were paid by the heirs of Alexander