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Scottish Court of Session Decisions >>
John Lesly of Lumquhat v William Hunter, Bleacher at Leven. [1752] Mor 2660 (30 July 1752)
URL: http://www.bailii.org/scot/cases/ScotCS/1752/Mor0702660-129.html Cite as:
[1752] Mor 2660
Subject_1 COMPENSATION - RETENTION. Subject_2 SECT. XV.
Concursus Debiti et Crediti.
John Lesly of Lumquhat v. William Hunter, Bleacher at Leven
Date: 30 July 1752 Case No. No 129.
A piece of cloth sent by a weaver to a bleachfield with his name and mark, upon it, being the property of a third party, found retainable only for the price of bleaching that piece, and not for the whole cloth sent by the weaver, the proprietor proving that the cloth belonged to him and not to the weaver.
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George and Archibald Arnots, weavers, in spring 1749, sent a parcel of cloth to William Hunter to be whitened; and, when this parcel was whitened, they brought a second parcel of cloth to be whitened also, marked with their names and usual marks; and they promised to pay the prices for whitening both parcels when they got away the second. Upon the faith of this, William Hunter delivered to them the first parcel. Soon after this the Arnots failed in their circumstances, and left the country. John Lesly of Lumquhat claimed two pieces of the second parcel of cloth; and as Hunter refused to deliver them unless he received payment for bleaching both parcels, Mr Lesly brought a process against him before the Justices of Peace for delivery; and, having proved the property of the said two pieces, the Justices ‘decerned the defender to deliver to the pursuer the two pieces of cloth, on payment of the price of bleaching the same.’
William Hunter suspended, and insisted, That, as the said two pieces were delivered to him as the property of the Arnots, and marked with their name, and usual marks, he was entitled to retain the same till he was paid the account for bleaching of both parcels of cloth; for it was on account of the second parcel's being impignorated for the price of bleaching both that he delivered up the first parcel; and as possession of moveables presumes property, he was bound to inquire no further, but might reasonably rely on the security of the second parcel; and there was here no furtum, or vitium reale, in virtue of which Mr Lesly could pretend to seize the cloth from one who held it for so onerous a cause.
Answered for Mr Lesly, That the presumption of the cloth's belonging to the Arnots must yield to the truth, Mr Lesly having proved it to be his property; and it was not in the power of the Arnots to take the property of his cloth from him, or lay a burden thereon Without his consent. The Arnots put their names in his cloth without, his knowledge; and if they have thereby deceived the suspender, and induced him to give up the first parcel, each piece of which he might have retained till payment of the bleaching thereof, he has himself to blame for trusting them, but that cannot prejudge a third party.
The Lords found the letters orderly proceeded.
Act. Dav. Græme.Alt. Ja. Erskine.Clerk, Murray.
Fol. Dic. v. 3. p. 150. Fac. Col. No 33. p. 53.
