II. RULE THAT POSSESSION PRESUMES PROPERTY-continued.

(11) Seller (retenta possessione) or his Creditors preferred, notwithstanding Mercantile Law Amendment Act 1856.

Wyper v. Harveys, etc. (1861), 23 D. 606 (whisky in seller's bonded warehouse-sub-sale not duly intimated-doubtful interpretation of Act). See ante, p. 92, note.

Sim v. Grant (1862), 24 D. 1033 (seller of horse retaining possession and use, with power to sell).

M'Meekin v. Ross (1876), 4 Ret. 154 (sale of scrap-iron lying in yard of shipbuilder or to be produced within a specified period -buyer no jus ad rem specificam).

Stewart v. Fraser and Co., etc. (1878), Shf. Ct., Glasgow, Guth. Sel. Ca. 2nd ser. 512 (wheat, part of larger quantity in store— delivery order countermanded by sellers before indorsee of buyers presented it to storekeeper).

(12) Effect denied to Pledge or Security without Possession.

Tod and Son v. Merchant Banking Co. of London, Ltd. (1883), 10 Ret. 1009 (bank holding bills of lading in security, and having control of goods, allowed part to be delivered under temporary arrangement). But see III. (1) and III. (2).

III. EXCEPTIONS TO RULE THAT POSSESSION OF MOVEABLES PRESUMES PROPERTY.

(1) Presumption from Possession set aside by Contrary Proof.

Hog v. Hamilton (1679), Mor. 9119 (moveables possessed by widow-claimed by nearest of kin).

Abercromby v. Story (1687), Mor. 11618 (moveables possessed by widow-claimed by children of first husband).

Warrender v. Alexander (1715), Mor. 10609 (goods for export -temporary custody).

Mackenzie v. Newall (1824), 3 Sh. 206 (accidental possession will not found claim of retention in security).

Y

III. EXCEPTIONS TO PRESUMPTION OF PROPERTY-continued. Louson v. Craik (1842), 4 D. 1452 (accidental possession will not found claim of retention in security).

North-Western Bank, Ltd. v. Poynter, Son, and Macdonalds (1894), 21 Ret. 513, Rev. H.L. 32 S.L.R. 245 (bills of lading held by bank in security, but handed back to pledgors as agents for the sale of the goods on behalf of pledgees-held that pledgees' possession had not been lost).

(2) Effect denied to Plea of Reputed Ownership arising from
Possession.

i. As against Creditors.

[NOTE.-See also cases under III. (4).]

Eadie v. Young (1815), Hume 705 (horses and carts sold and afterwards leased by buyer to seller-buyer preferred to seller's creditors.) See also III. (4).

Gray and Co. v. Farquhar (1823), 2 Sh. 160 (N.E. 146) (former owner of ship in possession as manager-conditional obligation by new owner to re-convey-claim of creditor of former owner repelled).

M'Millan v. Price (1837), 15 Sh. 916 (household furniture not subject to diligence of creditors of liferenter).

Macdougall v. Whitelaw (1840), 2 D. 500 (household furniture of sister in house occupied by herself and her brother-reputed ownership of brother refused effect).

Fyfe v. Woodman (1841), 4 D. 255 (claim of daughters to household furniture sustained against reputed ownership of father).

Smith v. Flowerdew (1842), 5 D. 335 (claim of daughter to household furniture sustained against reputed ownership of mother).

Young v. Loudoun (1855), 17 D. 998 (furniture belonging to wife exclusive of jus mariti-reputed ownership of husband excluded).

Scott v. Scott's Trustee (1889), 16 Ret. 504 (furniture bought from trustee for creditors, insolvent retaining possession-buyer

III. EXCEPTIONS TO PRESUMPTION OF PROPERTY—continued. preferred to trustee in subsequent sequestration). See also III. (8).

Mitchell's Trustees v. Gladstone (1894), 21 Ret. 586 (furniture belonging to marriage-contract trustees and jointly possessed by spouses-trustees preferred to husband's assignee).

Adam v. Adam's Trustee (1894), 21 Ret. 676 (wife's furniture in joint possession of spouses-wife preferred to husband's creditors).

ii. As against Landlord's Hypothec.

Cowan v. Perry (1804), Bell's Com. ii. 30, note (furniture held by tenant on deposit or loan without hire-owner preferred to tenant's landlord).

Jaffray v. Carrick (1836), 15 Sh. 43 (tenant tortiously withholding furniture from true owner-owner preferred to tenant's landlord.

Adam v. Sutherland (1863), 2 Macp. 6 (furniture sold under crown diligence-allowed by buyer to remain in house-buyer preferred to landlord of former owner).

Milne v. Singer Manufacturing Co. (1881), Shf. Ct., Perth, 25 Jour. of Juris. 499 (sewing-machine on hire-purchase-owner preferred to hire-purchaser's landlord).

Singer Manufacturing Co. v. Docherty (1882), Shf. Ct., Hamilton, 26 Jour. of Juris. 445 (sewing-machine on hire-purchase-owner preferred to hire-purchaser's landlord).

Stevenson v. Donaldson (1884), Shf. Ct., Glasgow, 28 Jour. of Juris. 277 (pianoforte hired-owner preferred to hirer's landlord). Wheeler and Wilson Co. v. M'Ritchie (1884), Shf. Ct., Dundee, 28 Jour. of Juris. 498 (sewing-machine on hire-purchase-owner preferred to hire-purchaser's landlord).

Watson v. Singer Manufacturing Co. (1884), Shf. Ct., Glasgow, 28 Jour. of Juris 658 (sewing-machine hired-owner preferred to hirer's landlord).

Bell v. Andrews (1885), 12 Ret. 961 (pianoforte belonging to tenant's daughter [a minor residing with her father]-daughter preferred to landlord).

Gracie v. Pulsometer Engineering Co. Ltd. (1887), 24 S.L.R. 239

III. EXCEPTIONS TO PRESUMPTION OF PROPERTY-continued.

(engineering samples in agent's office-owner preferred to agent's landlord).

(3) True Owner preferred to bonâ-fide Possessor under Title

a non domino.

Beveridge v. Indwellers in Cupar (1583), Mor. 9111 (poinded cattle sold by public roup-decree reduced-purchasers obliged to restore. But see Bell's Com. i. 299, note).

Caithness (Bishop of) v. Fleshers in Edinburgh (1629), Mor. 9112 (stolen horse bought in public market).

Ferguson v. Forrest (1639), Mor. 9112 (stolen horse bought in public market).

Wright v. Butchart (1662), Mor. 9112 (fraudulent sale of furniture by lessee-buyer in constructive possession).

Ramsay v. Wilson (1666), Mor. 9113 (jewels pledged by custodier).

Semple v. Givan (1672), Mor. 9117 (heirship-moveables pledged by widow-claimed by heir).

Hay v. Leonard (1677), Mor. 10286 (spuilzie or robbery is vitium inhærens as well as theft).

Forsyth v. Kilpatrick (1680), Mor. 9120 (horse hired and fraudulently sold).

Campbell v. Christie (1682), Mor. 10608 (stolen cattle).

Pringles v. Gribton (1710), Mor. 9123 (jewels pledged by custodier).

Lesly v. Hunter (1752), Mor. 2660 (cloth in hands of bleacher who claimed to retain for general balance due by apparent owner).

Henderson v. Gibson (1806), Mor. Moveables, App. 1 (stolen cattle bought in public market).

Hart and Gemmell v. Panton and Co. (1861), Sh. Ct., Glasgow, Guthrie's Sel. Cases, 1st ser. 439 (watches fraudulently obtained and pledged-held theft, and true owner preferred).

Muir, Wood, and Co. v. Moore and Kidd (1876), Sh. Ct., Glasgow, Guthrie's Sel. Cases, 1st ser. 444 (piano lent on hire and pledged for advance-held theft, and owner entitled to vindicate possession).

III. EXCEPTIONS TO PRESUMPTION OF PROPERTY-continued. Martinez y Gomez v. Allison (1890), 17 Ret. 332 (goods pledged by forwarding agent for his own antecedent debt).

Mitchell v. Heys and Sons (1894), 21 Ret. 600 (copper rollers obtained on loan and handed to bleacher who claimed to retain for his bleaching account-true owner preferred).

See also

Alexander v. Black (17th January 1816), F.C. (cattle, in custody for grazing, fraudulently sold in public market-opinion, but not decided that true owner could recover).

And see contra

Gordon v. Menzies (1687), Mor. 9122 (conditional effect given to sale of stolen article in public market).

Todd v. Armour (1882), 9 Ret. 901 (stolen horse-effect given to sale in market-overt in Ireland). See Coм. ante, p. 113.

(4) Effect given to Symbolical or Constructive Delivery without change in Possession.

[NOTE. See also cases under III. (2) i.]

Gray v. Cowie (1684), Mor. 9121 (symbolical possession preferred to actual possession under posterior disposition).

Grant v. Smith (1758), Mor. 9561 (growing corn). But see Sheriff Guthrie's note to Bell's Prin., Sect. 1303, 9th ed. p. 808.

Simpson v. Duncanson's Creditors (1786), Mor. 14204 (ship on stocks). See Coм. ante, pp. 96, 277.

Broughton v. Aitchisons (15th November 1809), F.C. (98 bolls wheat in seller's granaries, part of larger mass unseparated-8 bolls delivered-delivery order granted for remainder—buyer preferred to seller's creditors). Case doubted-see ante, p. 79,

note.

Eadie v. Young (1815), Hume 705 (symbolical delivery of horses, etc.). See also III. (2).

Maxwell and Co. v. Stevenson and Co. (1830), 8 Sh. 618, Rev. H.L. (1831), 5 W. & S. 269 (delivery by key of warehouse).

Lang v. Bruce (1832), 10 Sh. 777 (cattle in seller's parks).