III. EXCEPTIONS TO PRESUMPTION OF PROPERTY-continued. creditors and removed to public warehouse-sale annulled on ground of fraud). See also IV. (4).

Stein v. Hutchison (16th November 1810), F.C. (insolvent purchaser refused to accept delivery, but took goods into his warehouse custodia causa).

Gowans v. Phin (1813), Bell's Com. i. 244 (clerk of insolvent purchaser refused to accept delivery and stored goods in warehouse of third party).

Carnegie and Co. v. Hutchison (1815), Hume 704 (puncheon of rum delivered a few days before buyer's sequestration and bill for price not accepted). See Sale of Goods Act, Sect. 19 (3), COм. ante, p. 102.

Brown v. Watson (1816), Hume 709 (cattle and sheep bought by insolvent farmer and delivered in his absence-upon his return he re-delivered them to seller-seller preferred to buyer's creditors).

Schuurmans and Sons v. Goldie (1828), 6 Sh. 1110 (cargo of cheese-buyer's insolvency announced, but concealed from sellers). See Coм. ante, p. 215. .

Inglis v. Port Eglinton Spinning Co. (1842), 4 D. 478 (goods refused by insolvent buyer and sent to neutral custody, but afterwards received by buyer, held not delivered).

Watt v. Findlay and Hendrie (1846), 8 D. 529 (whisky sold and delivered-buyer concealed from seller that he was taking steps for sequestration). See COM. ante, p. 132.

Stoppel and Co. v. Stoddart (1850), 13 D. 61 (bill of lading indorsed by buyer to prior creditor, and indorsation reduced under bankruptcy Acts-goods effectually stopped in transitu). See also IV. (3).

Jowitt v. Stead (1860), 22 D. 1400 (wool refused as not according to sample, but received by buyer custodia causa).

Booker and Co. v. Milne (1870), 9 Macp. 314 (cargo landed from ship on to quay by buyer's servant, and small portion removed to buyer's warehouse-buyer then intimated rejection on ground of insolvency-whole held to be effectually rejected).

Birrell's Trustee v. Clark and Rowe (1874), Sh. Ct., Glasgow, Guthrie's Sel. Ca. i. 86 (coffees delivered after buyer had resolved to apply for sequestration).

III. EXCEPTIONS TO PRESUMPTION OF PROPERTY-continued. Platnauer Bros. v. Tosh (1892), 8 Sh. Ct. Rep. 110 (watches, etc., delivered after buyers had resolved to stop payment).

(8) Effect given to Mercantile Law Amendment Act 1856.

M'Bain v. Wallace and Co. (1881), 8 Ret. 360; Affd. 8 Ret. H.L. 106 (ship on the stocks-paid by instalments). See COM. ante, p. 276.

Allan and Co.'s Trustee v. Gunn and Co. (1883), 10 Ret. 997 (nets allowed by buyer to remain with seller for ten monthsdelivery only taken after seller's sequestration). See also II. (8) and III (4), and COM., Sect. 61 ante, p. 278.

Scott v. Scott's Trustee (1889), 16 Ret. 504 (furniture bought from trustee for creditors, insolvent retaining possession-buyer preferred to trustee in subsequent sequestration). See also III. (2).

IV. CIVIL POSSESSION THROUGH THIRD PARTIES.

(1) Effect given to Document of Title or to Constructive Delivery. Main v. Maxwell (1710), Mor. 9124 (10 hhds. tobacco weighed over by seller to buyer's wife in public warehouse).

Buchanan and Cochran v. Swan (1764), Mor. 14208 (38 hhds. tobacco-assignment on back of "bill of loading").

Hastie and Jamieson v. Arthur (1770) H.L., 2 Pat. App. 251; Mor. 14209 (288 hhds. tobacco-"bill of loading" transmitted to buyers).

Bogle v. Dunmore and Co. (1787), Mor. 14216 (sugars—bill of lading transferred by indorsation).

Tod and Co. v. Rattray (1st February 1809), F.C. (spirits in bonded warehouse-delivery order addressed to revenue officer and intimated to him).

Spence v. Auchie, Ure, and Co. (1804), Mor. 14226; Revd. H.L. (1810), 5 Pat. App. 291 (spirits in bonded warehouse of third party -delivery order intimated to keeper of warehouse and entered in his books).

Laurie v. Black (1831), 10.Sh. 1 (grain in public store on which

IV. POSSESSION THROUGH THIRD PARTIES-continued.

storekeeper had made advances to owner- -sale by intimated delivery order-buyer preferred to storekeeper).

M'Eachern v. Ewing and Co. (1824), 2 Sh. 724 (N.E. 603) (rum in bond-intimated delivery order).

Hastie and Co. v. Warden and Son's Trustee (1848), 11 D. 240; Affd. H.L. (1849), 21 Sc. Jur. 548 (delivery order for sugars indorsed by buyer to third party in security of advance-indorsee preferred to sellers).

Balfour v. Laing (1852), 24 Sc. Jur. 290; 1 Stuart 542 (cargo of flax-price paid by buyer on faith of arrival-foreign seller indorsed bill of lading in security of advance-indorsee preferred).

Hamilton v. Western Bank (1856), 19 D. 152 (brandy in bond -delivery order). See COM. ante, p. 276.

Morton and Co. v. Abercromby (1858), 20 D. 362 (bill of lading in buyer's name indorsed by buyer to third party). See also II. (10) and IV. (4).

Black v. Incorporation of Bakers (1867), 6 Macp. 136 (milling products vested by delivery order as produced). See also III. (4) and COм. ante, p. 91.

Vickers v. Hertz (1871), 9 Macp. H.L. 65 (iron warrant obtained by fraud and pledged-warrant held to be a document of title under Factors Act-pledgee entitled to retain for advance). See also II. (9).

Fleming v. Smith and Co. (1881), 8 Ret. 548 (sugars sold on credit-sub-sale by buyer on credit, and delivery order entered in original seller's stock-book-subsequent bankruptcy of first buyer-second buyer preferred to original seller). See COM. ante, p. 194.

Young v. Aktiebolaget Ofverums Bruk (1890), 18. Ret. 163 (iron shipped from Sweden for English buyer landed by mistake at Bo'ness and stored by buyer's agent-held not subject to diligence. of seller's creditors). See also I.

West Lothian Oil Co. Ltd. v. Mair (1892), 20 Ret. 64 (empty barrels sold by company to director and separately enclosed in a locked fence in company's yard, the key of which was handed to buyer-held effectually delivered to him-question of sale or security). See also I. and Coм. ante, p. 279.

IV. POSSESSION THROUGH THIRD PARTIES-continued.

See also

Adamson, Howie, and Co. v. Guild (1868), 6 Macp. 347 (sugars —bill of lading—alleged stoppage in transitu-form of issues). Connal and Co. v. Loder (1868), 6 Macp. 1095 (intimated transfer of iron warrant).

(2) Effect denied to Document of Title or to Constructive Delivery.

Young v. Stein's Creditors (1789), Mor. 14218 (spirits shipped but driven back to port by contrary winds-bill of lading indorsed and transmitted to buyer-seller preferred to buyer's creditors).

Campbell, Ruthven, and Co. v. Brown (1803), Bell's Com. i. 209 (rum in bond-delivery orders-sellers preferred).

Robertson, Harvey, and Co. v. Adam's Creditors (1803), Bell's Com. i. 210 (rum in bond-intimated delivery order-sellers preferred).

Arnots v. Boyter (24th November 1803), F.C., Mor. 14204 (bill of lading sent by seller to his own agent and delivery refused till price secured-seller preferred). See COM. ante, p. 102.

Auld v. Hall and Co. (12th June 1811), F.C. (wine in bondunintimated delivery orders-sellers preferred).

Eadie v. Mackinlay (7th February 1815), F.C. (raw hides in tanyard-sale insufficiently intimated-creditor of seller preferred).

Taylor v. Jack (1821), 1 Sh. 133 (N.E. 139) (taking hold of horse's ears not constructive delivery). See also II. (4).

Levitt v. Cleasby (1823), 2 Sh. 184 (N.E. 163) (oils in hands of third party unintimated authority to obtain possession not equal to possession).

M'Ewen and Co. v. Smiths (1847), 9 D. 434; Affd. H.L. (1849), 6 Bell's App. 340 (sugars in bond-unintimated delivery order). See COм. ante, p. 206.

Melrose and Co. v. Hastie and Co. (1850), 12 D. 665; (1851), 13 D. 880 and 14 D. 268; (1854), H.L. 1 Macp. 698 (sugars in bond-unintimated delivery order. House of Lords decided on technical specialty).

IV. POSSESSION THROUGH THIRD PARTIES-continued.

Smith v. Allan and Poynter (1859), 22 D. 208 (spirits in bond -purchaser's name on casks).

Mackinnon v. Max Nansen and Co. (1868), 6 Macp. 974 (copper rollers in hands of third party, who acknowledged that he held for buyer, but under certain conditions in favour of seller-held no transfer of property).

Hamilton v. Dixon (1873), 1 Ret. 72 (obligation signed by clerk of ironmasters to deliver iron generically described, held not binding on ironmasters in a question with bond-fide indorsee).

Seath and Co. v. Moore (1884), 12 Ret. 260; Affd. (1886), 13 Ret. H.L. 57 (ship-machinery in builder's yard). See also II. (4) and Coм. ante, p. 90.

Distillers' Co. Ltd. v. Russell's Trustee (1889), 16 Ret. 479 (whisky in seller's bonded warehouse-series of delivery orders by sub-purchasers intimated to sellers and acknowledged by them -five years afterwards claim of sub-purchasers for delivery resisted by sellers although price paid, on ground that never delivered and liable for general balance due by original purchaser). See NOTE (e), Sect. 18 ante, p. 88.

(3) Effect given to Stoppage in transitu.

[NOTE. In stoppage in transitu the civil possession (through the carrier) is not that of the seller but of the buyer. The goods are delivered, otherwise the seller's remedy would be retention, not stoppage. A misapprehension on this point led to many cases between 1790 and 1849 being decided by the Court of Session as cases of stoppage in transitu, which were really cases of retention. This was corrected by the House of Lords in M'Ewen v. Smiths, IV. (2) ante. The error is referred to by Lord Justice-Clerk Inglis in Black v. Incorporation of Bakers (1867), 6 Macp. 136 at p. 140. See Coм. ante, p. 206.

Allan, Steuart, and Co. v. Stein's Creditors (1788), Mor. 4949; Revd. H.L. (1790), sub nom. Jaffrey, etc. v. Allan, Stewart, and Co., 3 Pat. App. 191 (cargo of grain-bill of lading indorsed to buyer, but goods alleged to have been stopped in transitu. House of Lords allowed proof on this point). See also II. (10) and COм. ante, pp. 204, 214.