Robert Arthur, Merchant in Irvine v. Messrs Hastie & Jamieson, Merchants in Glasgow — Petition, 21 Dec 1770

Untitled Dec. 21. 1770. Unto the Right Honourable the Lords of Council and Session T H E P E T I T I O N O F ROBERT ARTHUR Merchant in 1 7 0.T H E and ALEXANDER SPEIRS Merchant in P I O N F R B E his Asig n e d, Humbly shew eth HAT, in the competition between the petitioner, Robert Ar­ thur arrester of the ship Be they and her cargo, and Mess. Ha- stie and Jamieson merchants in Glasgow, to whom the said ship and cargo were consigned by Archibald Dunlop mer­ chant in Virginia, there occurred lately two questions of considerable importance; the one respecting the freight, How far it fell under the petitioner’s arrestment; and the other respecting the cargo received by the consignees, How far they were intitled to apply it in payment of sums for which, at the time of the arrestment, they stood bound on account of Dunlop, but which did not become due till after they had received other cargoes from Dunlop, consigned for the payment thereof. The petitioner, at first, claimed not only the freight and remain­ der of the ship’s provisions, but likewise the lumber or staves, not adverting that these last were specially consigned by the bill of load­ ing. When however your Lordship's came to advise the cause, upon the report of the Lord Pitfour Ordinary, the petitioner correct­ ed his mistake and departed from his claim to the staves: Where­ upon you were pleased to pronounce the following interlocutor: On report of Lord Pitfour, and having advised the mutual m e- morials for the parties, with the additional memorial for Robert Arthur, and what is above represented. find, that the arrestment in Conkie the shipmaster’s hands is effectual in so far as respects the the execrescence of the ship's provisions; and prefer Robert Arthur thereon: But in so far as respects the freight of the cargo,find that the said arrestment was inept, and that Robert Arthur could’ draw nothing virtue thereof: Find, that Mess. Hastie and Jamieson, in virtue of their right of special property, are intitled to be preferred upon the cargo of the ship Betsey, in so far as it was the property of Archibald Dunlop, no, only for payment of the sums they had advanced, but also for relief o f the engagements they had come under for Archibald Dunlop, before the due of the arrestment in Conkie's hands: But before answer to the question, how far they were obl iged to impute the subsequent consignment in extinction of said claims, remit to the Lord Ordinary to ordain them to give in a state of the accompt betwixt them and Archibald Dunlop at the date of the arrestment in Conkie's hands, and of their after transactions with archibald Dunlop, and do therein as he shall see cause. This interlocutor, in so far as respects the freight, and the que- stion concerning the cargo, the petitioner must beg leave to sub- mit to your Lordsh ips review. The special property established to the consignees, i s new and singular right, adverse to the princi- ples of our law with regard to the transference of property, arid has till now been unknown in this country. As it is created solely for the utility of commerce so the determining its nature and extent merits to be considered with the greatest deliberation; and as the growing commerce of this country must necessarily produce frequent questions of this kind, the principles with regard to them ought to be esta- blished upon the most solid grounds. For all these reasons the peti- tioner humbly hopes he will be pardoned for bringing this question again under the consideration of the Court. In a cause which has been so repeatedly before your Lordships it would be improper to trouble you with resuming minutely the facts which gave rise to the competition: The petitioner shall therefore confine himself, to bringing to your recollection such of these facts as it may be more especially necessary to have in view, in consider- ing the particulars at present in controversy. In general, it is to be observed, that the petitioner stands in the right of James Dunl0p late merchant in Glasgow, who became redi- tor to Archibald Dunlop, by having lent out to him very large quantities of goods in 1761 and 1 762, in payment of which remit­ tances have never yet been made. On the other hand, the right of M ess. Hastie and Jam ieson is founded upon a private contract, entered into between them and Archibald Archibald Dunlop in August 1764, by which they were estab lished the factors and correspondents of each other in Virginia and Scot­ land; Hastie and Jamieson becoming bound, upon, the one hand, to send him out such goods as he should think fit for his market; and Dunlop, on the other, becoming bound to make remittances to them, so as they may be enabled to pay the value of the s aid goods to the sellers or furnishers thereof, and that from time to time as the s ame shall become due; anti farther, to allow a certain commission upon the sale of each hogshead of tobacco which he should consign to them. From the terms of this contract, together with the whole strain of the letters in process from Dunlop to Hastie and Jamieson, it very clearly appears, that they were not mere creditors, receiving consign- ments in payment of debt; but were factors, receiving from him- from time to time, large and valuable cargoes, much exceeding in extent any debts due to them, and managing these consignments for the profit and advantage of their constituent. Archibald Dunlop, eager to advance his fortune, and anxious to a- void, or at least to delay, payment of the debts which he had con- tracted long before his connection with Mess. Hastie and Jamieson, has endeavoured, by consigning his cargoes to these last-mentioned gentlemen, to screen them from the legal execution of his former creditors. From all his letters, his desire to elude the diligence of his creditors upon the old concern, and to secure his effects to his new concern, appears in the strongest light. After receiving intelli- gence of the petitioner’s arrestment, he wrote to Mess. Hastie and Jamieson, that it made him quite uneasy to think of his ship being attached. “ It is not possible,” says he, “ to write you the uneasi- ness I am in at present, in regard to our old concern, for fear they should proceed in the way they intend; as I expect they will, if they can.” In another part of the same letter he writes, “ At same time, you may depend upon my putting it out of their pow er with regard to the new ship.” And with regard to this new ship, he afterwards adds, “ If you think proper, for the better security of my new ship and cargo, in case of their deputing the right I make here to you, you better send out some writing f or me to sign, in fa­ vour of you and Hastie, to come home in the ship.” If these ships and cargoes had been consigned to Hastie and Jamie­ son merely in payment of debt, Dunlop would not have discovered so much solicitude to sesure to them his effects: But the fact was, that he knew his consignments were far beyond any sums he owed them; and they were not disposing of them as creditors, for their own behoof; but truly as factors, for his profit and advantage; and hence hence his extraordinary anxiety to preserve them from the attach-m e n t s o f h i s o l d c o n c e r n. T h e p etitioner, d iscovering the designs of Archibald Dunlop did arrest the vessel and cargo now in dispute, upon the 26th August 1765, in the hands of David Conkie the master, immediately upon theiravlnboufP-Gsgw,dy been reported in the customhouse. This arrestment was afterwards loosed, upon caution found by Mess. Hastie and Jamieson And thereafter arrestments being used in their hands by the petitioner and other creditors of Archibald Dunlop, a multiple-poinding was brought, and the present competition ensued between the petitioner and other creditors of ARchibald Dunlop, a multiple poinding was brought, and the present competition ensued between the petitioner the first arrester, and Hastie and Jamieson, who claimed a prefer-e n c e i n v i r t u e o f t h e i r c o n s i g n m e n t. It is unnecessary to mention the steps of procedure in this compe- I n 1 7 6 7 t h e p e t i t i o n e r m a d e o u t, f r o m t h e a c c o m p t c u r r e n t exhibited by Hastie and Jamieson, as betwixt them and Dunlop, a state of the diferent particulars which e claimed, being an abstract of the value and neat proceds of the ship Betsey and her cargo. In this freight was specialy mentioned as one of the articles claimed; and al the judgments afterwards pronounced by the Lord Ordinary and your Lordships, preferring the petitioner upon his ar- restment proceeded upon this abstract, so that when the judgment this Court became final, your decreet gave to the petitioner un­ questionable right to all the particulars which he had claimed, and, among others, to the freight of the whole cargo. The House of Lords, upon the appeal brought by Mess Hastie and Jamieson, ordered and adjudged, that the in terlocutors of your Lordships, so far as relate to the cargo, be reversed; and declared, "that the appellants have a special property therein preferable to the respondents arrestments; and farther ordered and adjudged, that the said interlocutors, so far tas they relate to the ship, and all the other interlocutors complained of, be affirmed." In applying tins judgment of the House of Lords, the points now in dispute have occurred; and the particulars now to be brought un- der your Lordships consid eration, are those above mentioned, respect- ing the freight and the cargo. From the various consignments which Hastie and Jamieson have received from Dunlop, the petitioner hasgod rent blive, hatupon fircmt adrekonig, thy in place of being creditors to Dunlop, would appear before con- siderably his debtors: But at the same time, having already in the course of a litigation of more then four years, experienced he dispo- sition of his competitors, to throw every obstacle in the wav, in or- der der to retard the final issue of the cause; and at the same time ap­ prehending, with the greatest deference, that his claims are well founded, he humbly presumes to bring questions which are so new, and of such general importance, again under the consideration of the Court. The petitioner shall endeavour to confine his argument within as narrow bounds as possible; and he shall, 1mo, Consid er the nature and foundation of the special property of the consignees; 2do, The claim to the freight; and, 3t io, The extent of the right of the consign- nees to the cargo. With respect to the first, The consignees have endeavoured to re- present their right of s pecial property as estab lished by the consign- ment itself, whether ascertained by the bill of loading or by any o- ther means. The petitioner does, on the other hand, humbly appre­ hend, that the preferable right of the consignees is constituted by the bill of loading alone, It is a frequent practice for a merchant abroad, consigning cargoes to his correspondent at home, to transmit him the bill of loading, and at the same time to draw upon him for any sums he wants. The merchant at home, holding the bill of loading, readily advan­ ces the sums drawn for, because he considers the possession of the bill of loading as a symbolical delivery of the cargo itself. It is all the possession that can be delivered till the goods themselves come home; it transfers from the consigner to the consigner the right of claiming actual delivery of the cargo, and gives him to the extent of his debt, a lien upon these goods, preferable to the other creditors of the con­ signer. The bill of loading in the possession of the consignee, is con- sidered as representing the cargo itself, and may be indorsed like a bill of exchange, so as to make an effectual transfer of the property to the purchaser. No merchant thinks himself secure, or will advance money upon the faith or a consignment, till he has the bill of loading in his possession. If letters, or any other writing, except the bill of load­ ing, could transfer the special property to the consignee, it would be attended with very hurtful consequences. If the merchant abroad, after consigning to one correspondent by bill of loading, should af­ terwards have it in his power by letters to alter the consignment, the merchant at home could put no faith in the bill of loading, could not indorse it away, and would advance no money upon so precarious a security. Besides all this, as it is the bill of loading which gives the consignee the light of demanding delivery of the cargo, so it is extremely natural that it should be the instrument which can alone constitute the right of special property. That That the bill of loading is the foundation of this right, is farther confirmed from the argument maintained by Mess. Hattie and Ja- mieson in the House of Lords, and from the judgment of that most Honourable House itself. In their case there, Mess. Hattie and Jamieson maintained, That the bill of hading being made to them or their assigns, they could instantly have indorsed or asigned the s ame, which would have been good against he respondet. The bill of loading, say they a- gain, specifies the goods to be shipped on account and risk of Ar­ chibald Dunlop, to be delivered unto Mess. Hattie and Jamieson mer­ chants in Glasgow, or their asign s, he or they paying freight, &c. Thus, lay they again, the appellants had the legal possession by re- ceipt of the bill of loading: And they set forth, “ That when a merchant in America consigns goods to his correspondent in Britain, it is usual immediately to draw bills on the consignee for the value of the goods, which the correspondent at home accepts upon the faith of the consignment and bill of loading in his favour- that consignment and bills of loading are universally considered to be such absolute assignments of the cargo, that, before the goods come to hand, they are frequently disposed of, and the bill of loading indorsed, which, in the practice of merchants, is con- sidered as an effectual transfer of the property to the purchase r." The judgment of the House of Lords, affirming your Lordship’s in­ terlocutors, in so far as relates to the ship, and reversing them only in so fa r as relates to the cargo, seems, in the humble apprehension of the petitioner, to demonstrate the right of the consignees to be founded upon the bill of loading. Conkie the master has deponed and Mess. Hastie and Jamieson themselves have set forth, that both ship and cargo were consigned to them. It cannot therefore be the cons ignment which constitutes the right of special properly, for if that was the case, they would have right to the ship equally with he cargo. It has been in vain attempted to place the dist in ction with regard to the ship upon a different footing. It is said to have been, becaus e Mess Hastie and J amies on, by their contract with Dunlop had in view remittances o f goods and merchandize, the produce ofVir- ginia. But besi des that remittances may be made in various ways and in various kinds of goods, Mess. Hattie and Jamieson by their contract, do not see in to have had in view any particular species of goods, but merely stipulate that Dunlop shall remit to them the value of whatever goods shall be shipped by them on his account, so as they may be enabled to pay the value of the said goods to the sellers or furnishers thereof from time to time, as the same shall become due; and and they do not pretend to specify in what that value to be remitted to them shall consist. Neither will it avail the consignees to say, that before the House of Lords little or no attention was given to the ship, as being in point of value so much inferior to the cargo: For both parties applied their argument equally to ship and cargo; and it is hardly decent to alledge, that that most Honourable House, when they so carefully distinguished between the cargo and ship, did so from inattention or from erroneous principles. I t seems plain therefore, from the nature of the thing; from the argu­ ment maintained by the consignees in the House of Lords; and from the judgment of that Honourable House, that it is the bill of loading alone which constitutes the right of special property, and that this right therefore can never extend farther than to the subjects then conveyed. And to show your Lordships, that it is underwood to be the law of commercial nations, that the person to whom the goods are consigned by the bill of loading is the person who has the proper­ ty in them, and the only one who is intitled to bring the action a- gainst the master for delivery, the petitioner shall conclude this branch of his argument with quoting one authority, the weight of which, as it was quoted by themselves in a former period of the cause, Mess. Hastie and Jamieson will not surely now pretend to call in que- stion. “ Evans versus Martlet. If goods by bills of loading are consigncd to A, A is the owner, and must bring the action against the master of the ship, if they are lost. But if they be special to be delivered to A, to the use of B, B ought to bring the action. But if the bill be general to A, and the invoice shows that they are upon the account of B, A ought always to bring the action; f or the property is in him, and B has only a trust per totam curiam And per Holt, Chief Ju stice, the assignee of a bill of loading has such a property that he may assign it over. And Shower said, it had been judged so in the Exchequer. Lord R aym, 27 1. ” Your Lordships therefore must, it is humbly apprehended confine this right of special properly to the subjects specially consigned by the bill of loading, and must lay altogether out of your view and consi- deration the design and intentions of Dunlop, as appearing from the oath of the shipmaster, or his own letters and other writings. If the right of the consignees was to be ascertained by any other evidence except the bill of loading, the intention of the consigner might be proved by his own oath as well as by his writings, a nd there would be no end of these investigations: And indeed, it intention was to re­ gulate the matter, the petitioner much fears he would not in this case soon recover payment of his debt. If If the petitioner is well founded in the argument which he has now endeavoured to maintain it remains to examine, in the second place, Whether the freight o f this cargo be conveyed to Mess. Ha- stie, and Jamieson by their bill of loading? The bill of loadin gis in the following terms: "Shipped by the grace of GOD, in good order an dwell conditioned, by Mr Archi- bald Dunlop, in and upon the good ship called the Betsey; whereof is master under God for this present voyage, David Conkie, and now riding at anchor in ‘James's river and by G od's grace bound for Port-Glasgow: To say 288 hogsheads tobacco, 7960 barrel-staves on account and risk of Archibald Dunlop, being marked and number- ed as in the margin, and are to be delivered in the like god order and wel-conditioned at the aforesaid port of Port-Glasgow, (the danger of the seas only excepted) unto Mes. Robert Hastie and James Jamieson merchants in Glasgow, or to their asignes, he or they paying freight for the said goods L. 6, 8 s. Sterling per ton; and impost, payable one half on delivery, and th eother half in six months, with primage and average accustomed. In witness," &c. Thus this bill of loadin gin place of makin ghte freight a part of the consignment, does expressly exclude it, and burdens the right of the consi g nees with the condition of paying i t. The consignees indeed have been pleased to say, That the bill of loading is the act and deed of the shipmaster, and not of the original pro- prietor of the goods; and that these words, "he or they paying freight for "the said goods," making part of what is printed in these bills of loading, adapted to w hat is commonly the case are m ere words of form, with- out any meaning. It is indeed the most essential part, the obligation upon the shipmaster to deliever the cargo in the like good order and well-condi- tioned at the destined port, is printed; but at the same time, it would be strange if this should annul or invalidate the obligation. All writings, in daily use and reduced to a certain established form, are for the sakeof conveniency, printed, leaving only blanks to fill up, the names of the parties contractors, the sums, and other particulars, which must be diferent in every ded. In England, bonds are printed: in this country frequently bonds and many sumonses are printed: The executions of them are printed: All customhouse and Excise certificates are printed: And yet in all these and many others which mightbe mntioned, the printing th essential part of the obligation has ne- ver been understood to alter or deprive it of force or efficacy. Besides all this, your Lordships will obser ve fro m th is b ill o f load ing, that there are various parts of it not printed, but inserted in writing, as it appears appears by Archibald Dunlop’s own hand. These are distinguished above by Italics; and in particular, after the printed words, “ he or they paying freight for the find goods," are inserted the following in writing: “ L. 6, 8s.Sterling per ton, and impost, payable, one half on delivery, the other half in six months.’’ Further, the bill of loading is subscribed by David Conkie, by which he plainly sub- jected himself to all the obligations therein contained: And in par­ ticular, to that of delivering the cargo to Hastie and Jamieson, or to their assigns, he or they paying freight for the same. Dunlop’s so particularly specifying the freight, and the term of the payment thereof, sufficiently shows how much he understood it to be distinct from the cargo, and a necessary deduction even from his own goods. In the next place, There is in process a paper signed by Dunlop himself, intitled, “ A list of freight on board the Betsey, David Con- “ kie matter, for Glasgow,” most minutely mentioning every quan­ tity of tobacco aboard the vessel, both that his own property and that the property of others, by whom shipped; to whom con- signed; the number of hogsheads; the price; and lastly, the freight due upon each separate parcel: The whole of this last amounting to L. 741, 18 s. Sterling; all which does farther clearly show Dunlop’s idea of the ship and cargo being distinct, and of the freight being a certain and necessary deduction from the last. In the third place, your Lordships will observe, That in their ac- compt current with Dunlop which is in process, Mess. Hastie and Jamieson have given him credit, 1 mo, For the neat proceeds of the to­ bacco, deducting the freight; and, 2 do, For the freight of the whole cargo, being precisely L 741, 18 s. as altogether distinct, and a de­ duction from the cargo consigned to them which clearly shows, that they considered themselves as debtors to Dunlop for the freight, besides the proceeds of the cargo. In the fourth place it is to be observed, that in the practice of merchants, freight is always held a necessary concomitant of the ship, and a certain burden upon the cargo. It is not due to the owner of the cargo, but by him to the owner of the ship. It is the hire of the vessel, without which the cargo could not be transported. it is with propriety usually styled, the mother of the sailor’s wages; it pays f or the tear and wear of the ship, and diminishes its first cost; it pays the outfits, the charges at the loading and discharging ports, and all other expences attending the vessel; and is in short the source from which the profits of failing any vessel must necessarily, and can only arise. Unless therefore freight was considered as a necessary burden upon the cargo transported, navigation could not be con­ duced with any facility; and it is for this reason that the maritime laws laws of all commercial nations have universally given a right of hypothec to the master of the vessel upon the cargo for the freight. Freight is therefore not an accessory of the cargo, as has been most erroneously alledged, but clearly a burden upon the cargo, and a concomitant of the ship itself, due to the owner there- of. This being the case, the petitioner does humbly appre­ hend, that by the judgments of this Court, affirmed by the decree of the H o su e o f L o rd s he has already a right to the sh ip, a n d all its concomitants, under which must be included the freight, which it has been shown is so clearly annexed to the ship as a hypothec, and which is always understood to be a certain bur­ den upon, and necessary deduction from the cargo. All this is confirmed from its being not only not included, but even expressly excluded from the consignment in the bill of loading, from its extent being so specially set forth by Dunlop in his list of freight, and from Hastie and Jamieson in their accompt, making it a separate debt due by them to Dunlop, altogether distinct from the proceeds of the car­ go consigned.- In the fifth place, The petitioner must, with great submission, contend, that his arrestment of the ship, and his arrestment in the hands of Conkie the master, were not inept, but did properly and legally affect the freight, by attaching the whole goods on board the vessel not consigned by the bills of loading. It has been mentioned, that the owner of the vessel, or the master in his place, has a hypothec upon the cargo, for payment of the freight, out of which again are to be paid the wages of the master and sailors, and the other necessary charges of the ship. By the mari- time law, it is universally estab lished, that the master of the ship can upon no account be compelled to deliver the cargo till he shall have received either payment of the freight or sufficient security for it. “ Quod magister navis non potest compelii ad consi g nationem mercium, quousque naulum sibi non solvitur; immo, quod an- tequam exonerentur merces, naulum est solvendum is the uni­ form language of all the writers upon mercantile law. If the person named in the bill of loading refuses to receive the goods, or refuses to pay the freight, the master is intitled to sell them in order to pay it. Thus the master must have in his hands either the cargo which he can sell for the freight, or the money due for the freight which he receives from the person to whom he delivers the good. When therefore the master is a person different from the owner of the ves- sel, he is responsible to his condiment for the freight; because he is bound by his obligation in the bill or loading; to recover the freight and cannot be answerable for delivering the cargo till he shall have received payment thereof. H e is truly debtor to the owner in the freight, freight, because he cannot part with the cargo till he has substituted in its place the freight itself. Till the freight is paid, the cargo, to the extent thereof, must: be held the property of the owner, and as such subject to attachment by the legal execution of his creditors. It is impossible to arrest the freight in the hands of those to whom the cargo is to be delivered, because there is no debt existing due by them to the owner of the vessel till they have actually received the goods into their possession; and it cannot be arrested after delivery of the goods, because freight is usually paid either before or at the delivery. Thus, unless freight may be arrested in the hands of the master before delivery of the cargo, where the master is different from the owner, it will very seldom be possible for the creditors of the latter to attach it. If the goods are lost by ship- wreck, or taken by pirates or by the enemy, or lost by any other ac­ cident in the course of the voyage, or even in the port of delivery, it is established that no freight can be claimed; for it is only by the delivery that the debt can possibly come to exist. And your Lordships will attend to the inconveniences which must arise from not sustaining ar- r estments of goods in the hands of the master, so as thereby to attach the freight chargeable upon them. Many ships arrive in the different ports of this kingdom, full of a variety of goods consigned to a multitude of different persons, but for all and each of which freight is due to the owner of the vessel. It must be altogether impossible for the cre­ ditors of the owner to discover these different consignees, so as to ar- rest in their hands before losing the seasonable opportunity of doing diligence. In these cases legal execution must proceed in the most summary and expeditious manner, velo levato, as it is termed in the maritime courts. The master therefore is the proper person in whose hands arrestment should be used; as he holds the goods, has the right of exacting the freight, and when distinct from the owner, cannot, confidently with his obligation, yield possession of the cargo, without receiving payment of the freight. And here the inconsi stency of the argument of Mess. Hastie and Jam ieson may ju stly be remarked. They have paid the wages of the master and labors, and some other charges attending the ship, and have not pretended that their special property is preferable to those burdens. But the right of the master and sailors, &c. is founded upon the hypothec for the freight, out of which they' re paid: And i f they admit that hypothec to exclude their special property as to part, it must equally exclude them to the whole of its extent. The hypothec of the manners for their wages, is a part of the hypothec for the freight: And the special property of the consignees must ex­ clude both or neither. It has been argued, That this arrestment was inept, because it is said the matter was not then debtor in the freight. This, however with with great submission, is apprehended to be altogether erroneous. The master, by his obligation in the bill of loading, was not only responsible, but indeed debtor to the owner for the freight. He had, according to the bill of loading, which, it has been shown, is alone to be considered in this question, the right of exacting the freight, and could not quit hold of the cargo without receiving it. The petitioner, when he arrested in Conkie's hands, not only ar- rested the vessel, with all its concomitants, but farther, by a separate act, on which an execution is produced, “ Fenced and arrested in his hands the sum of L 5000 Sterling, as addebted rest- ing and owing by him to Dunlop and Ralston, or either of them, together with all and sundry goods, gear, debts, sums of money,, or other eff ects whatsoever in his hands, custody, or keeping, or on board said ship, pertaining 01 belonging to them, all to remain under sure fence and arrestment, until caution found, &c. Thus it is apprehended, that the petitioner arrested not only the ship consigned to Hastie and Jamieson, and the provisions aboard of it, but farther, the whole cargo to the extent of the freight, which the master had a right of exacting, and for which he was responsible to the owner. The master was here truly debtor for the freight, and held it. or its equivalent, for the owner; but even supposing him a trustee, yet your Lordships, in cases of a similar nature, have sustained such an arrestment. Thus a bill being indorsed in trust for the behoof of the common debtor, an arrestment laid in the hands of the trustee was found effectual to carry the sum in the bill; and therefore was preferred to a second arrestment laid in the trustee’s hands, after he got payment of the bill, and thereby became debtor in a liquid sum; 13th February 1740, Sir Marry Innes contra the Creditors of Ludo- vick Gordon, In that case it was strongly argued, that the indorsee was no other than a trustee or agent for the common debtor. That the accepter of the bill continued debtor until the money was paid; that therefore the arrestment ought to have been used in his hands: That the obligation to pay the debt was the only subject of dili­ gence: That the obligation of the trust-indorsee was merely ad fac- tum prestandum which could not be the proper subject of an arrest- ment; and that therefore the arrestment in his hands was utterly fruitless and inept, But, on the other hand, it was contended, that the moment the indorsee was possessed of the bill payable to his order, he became debtor therein to the common debtor; and thereupon the' Lord Ordinary, and afterwards the whole Lords, upon advising informations, sustained the arrestment. Nothing, it is humbly apprehended, can be more applicable to the present argument than the case now mentioned. The obligation of the indorsee in that case was only implied from the nature of the trust: In the present case, it is apparent from the express obligation signed signed by the matter. Indeed, the present case is infinitely more fa­ vourable. In the case quoted, there was an actual existing debtor, in whose hands arrestment might have been most competently used: In the present, there was no existing debtor, except the matter. In the case of Sir Harry Innes, if the accepter of the bill had before pay­ ment become insolvent, there was nothing remaining in the hands of the arrestee but a piece of paper, of no value or significancy: In the present case, there was in the hands of the arrestee, not only the jus exigendi, and the debt thereby due to the owner; but farther, the cargo itself, equivalent to the freight for which it was hypothecated, and which the matter was intitled to sell in order to recover it. Another case, very applicable to this argument, is that of John Neilson and others, the Creditors of Robertsons, contra Robert Rae and others, decided 19th November 1742. In that case, certain creditors of a partner of a company-concern arretted in the hands of the Com­ pany. Other creditors afterwards confirmed their interest in the Com­ pany. In a competition between them it was maintained by the latter, That the arrestments were inept, bccause, when they were u- sed, the whole stock belonging to the Company was either in the hands of their supercargoes at sea, or of their factors abroad; and therefore that there was nothing in the Company’s hands which could be the subject of arrestment. But, upon the other hand, it being argued, That the Company had the right of recovering these subjects from their factors and supercargoes who were accountable to them; and that if the arrestment should not be s ustained, there was no other possible method of affecting such subjects by the law of Scotland; First, The Lord Ordinary, and afterwards the whole Lords, upon a solemn hearing in presence, sustained the arrestments, and preferred the arresters to the other creditors who had confirmed, af­ ter the Company’s subjects had come into the hands of the arrestees. in the case now quoted, the arrestees were debtors in no liquid sum, had barely a jus exignd of the Company’s subjects, and had not in their possession any value equivalent thereto: But in the present case, the arrestee was not only debtor to the common debtor, in so far as he was responsible for the freight, but had an equivalent in his pos- session upon which he had a hypothec, and which he was intitled to sell, in order to obtain the freight. Mess. Hastie and Jamieson have farther argued, That this arrest­ ment must be inept, because Conkie the master did deliver possession. of the goods to them, without actually receiving the freight. But, with submisio n, it is apprehended, that it can be of no consequence in this question what happened after the date of the arrestment. I t is is a received rule, that in arrestments, matters must be considered cx- actly as they stood at the date of the arrestment. At that period, Conkie had the right of recovering the freight, and was as much debtor to the owner of the vessel, as, in the cases above mentioned, the trust-indorsee was debtor to the creditor in the bill, or the Company was to the copartner for whose debt the arrestments were used. If Archibald Dunlop had indorsed in trust to his shipmaster Conkie, bills accepted by different merchants in this country, the petitioner’s arrestment would have been clearly good as to these, upon the very principles of the decision in the case of Sir Harry Innes. And the petitioner cannot help considering the arrestment of the freight in the hands of the master, as much stronger than that of a bill in the hands of the trust-indorsee. Besides, your Lordships will observe, that Mess. Hastie and Jamieson, in becoming cautioners in the loosing the arrestment, did place themselves in the room of Conkie at that time, and must now be considered as liable in all the obligations to which he was then subjected. And as it has been shown, that the obligations of the master as well as the right of the consignees must be limited by the bill of loading alone exclusive of all other circum- stan ces; so the right of the consignees at present must be determin­ ed by the nature of the light of Conkie, at the date of the arrestment in his hands. A letter from Dunlop has been quoted by the consignees, in which he writes, “ You will have this ship and cargo (all but 140 hogs- heads) home, without my drawing on you for one farthing. You will also have one half of the lumber, which will be 8o0o staves, with the staves and the freight of the 140 hogsheads. I am in hopes it will put you in cash to discharge all the charges that may concern the ship, and a great deal more and as in this Dunlop mentions the freight only of the tobacco, not his own pro­ perty, s o they would argue, that he did not mean to claim any freight for that part of the cargo which was his own property. E- ven if this inference was ju st, it would be a plain admission, that the petitioner’s claim for the freight of the cargo not Dunlop’s own property, was well founded. But farther, the argument is altogether erroneous; for besides its being contradicted by the terms of the bill of loading, by the list of freight, and by the accompt-current betwixt the consignees and Dunlop, all above mentioned, it is to be observed, that, as it appears Dunlop understood the freight of these J40 hogsheads to be sufficient for the charges on the ship, and a great deal more, so there was no occasion for his mentioning the freight of his own tobacco, though, from the circumstances already mentioned, mentioned, it is sufficiently clear, that both he and the consignees understood it to be altogether independent of the cargo consigned by the bill of loading. The consignees have endeavoured to make a dist in ction between the freight of the cargo Dunlop’s own property, and the freight of that which was the property of other persons, whereas the pe­ titioner apprehends his light to both to be well founded. With respect to the first, it has been faid, That Dunlop being both owner of the vessel, and proprietor of the cargo, it would be ab- surd to suppose him both debtor and creditor to himself, and that therefore he could not posib ly claim freight for the carriage of his own goods. That however he did not only expect but claim or reserve to himself his right to freight upon this account, is not only evident from the bill of loading, but also from the list of freight, and the other particulars above mentioned. Besides; in mercantile practice, it is the usual custom tor merchants, although both proprietors of the vessel and the cargo, to keep their accompts of each quite distinct and separate. In order to determine their profit and loss upon the ship, they keep a separate accompt tor that article, charging on the one hand the sailors wages, the charges of outfits and repairs, and other burdens; and on the other, the freight arisin g from the employment of their vessel, as paying these different burdens and diminishing the original cost. Whether the ship and cargo be the property of one or of different persons, the freight is considered in the same light, as the fund from which the master is to be enabled at the port of delivery to repair and fit out the vessel for the after-voyage; which is altogether inconsistent with the idea of its being a part of the consignment; The hypothecation of the cargo, in so far as to pay the mariners wages and certain other charges, the consignees have not disputed. And the petitioner ap­ prehend, that this last mentioned hypothec expended equally over the whole cargo, over that which was, as well as that which wa s not the property of Dunlop. Dunlop’s property must have borne its propor­ tion; and therefore it seems clear, that the right of hypothec for the freight must have excluded the consignees, both as to the one and the other, from which it must inevitably follow, that the freight was al­ together unconnected with, and distinct from the consignment. In short, freight is upon all occasions a certain burden upon the cargo; and whether the owner of the vessel be the same with, or dif- ferent from the proprietor of the goods, it is always held to be sepa­ rate from the consignment. Besides; even according to the argu­ ment of Mess. Hastie and Jamieson, it is erroneous to say that Dun­ lop mlop here was both debtor and creditor to himself; for, on the contra- ry, the fact is, that they had the special property in the consignment, burdened however with the necessary condition of paying freight to the master. As to the freight of the 140 hogsheads of tobacco, not the proper- ty of Dunlop the right of the petitioner is apprehended to be equal- ly clear. If the petitioner's arrestments in the hands of Conkie, which were sustained by your Lordships, had been afterwards su- stained by the decree of the House of Lords, it cannot be denied that he would thereby have had right to the fre ight o f these 140 hogsheads. This however must have proceeded upon the supposition that the freight was properly attached in the hands of the master who had the right of exacting it before he delivered the goods and whoasrepniblft.Hmcud-vgyD the freight due for them. And if your Lordships then found the arrestment in the hands of the matter effectual to carry the freight, as well as the cargo, the petitioner cannot, with submision discover why it should be considered now in a different light. Neither c an Mess. Hastie and Jamiesons coming afterwards to recover that freight make any alteration in the case; for, as has been already said mat- ters must be considered as they stood at the date of the arrest ment and at the loosing thereof, on their finding caution. Thus far the petitioner has endeavoured to maintain his claim to the freight, chiefly upon the footing of his having arrested in the hands of the master the right of exacting the freight from the consignees; or the debt due by him to the new owner. He humbly apprehends however, that he can carry his argument much farther and main tain it upon other grounds, if possible, still stronger. It has been already fully shown that there is a hypothec upon the cargo for the freight; that the master cannot be compelled to deliver the cargo till he receives the freight; and that if the consignee shall refuse to receive the goods, or to pay the freight, the master and consequently the owner, is intitled to sell them, in order to ob- tain payment thereof. It has further been shewn that in this question matters must be confidered as at the date of the arrestment and that the petitioner must be intitled to every right which the owner had at that time These things being considered, it is apprehended that to the ex- tent of the freight, the cargo must be held to have been the property of the owner of the ship, and subject to the execution of his credi- tors. The shipmaster was custodier of the goods, as the property of the owner. The arrester came in place of the owner. He arrested all all goods, gear, and effects pertaining or belonging to the owner, in the hands of the master, the custodier. It was not a mere jus exigendi, or a debt due to the owner, which was the subject of the arrestment. It was the effects themselves, the property of the owner, which was attached in the possession of the custodier. These, as any other moveables of his debtor, and the debtor’s pro­ perty to the extent of the freight, the petitioner did actually attach; and therefore he must contend, that he has legally arretted in the hands of the custodier a moveable subject, the property of his debt­ or, in which the consignees had no special property, and which was therefore open to legal execution. Upon the whole, therefore, the petitioner humbly hopes he has fully shown, that he legally and properly arrested the freight of the whole cargo, and that he must be preferred to it in the same manner as to the ship. I f the petitioner is intitled to the freight, he appre­ hends the interest due upon it must follow of course. By the arrest- ment he comes in the place of Dunlop himself, can claim every thing which he could have demanded, and consequently the interest due upon the freight. With respect to the third and only remaining particular, the ex­ tent of the right of the consignees in the cons ignment itself, the peti­ tioner shall trouble your Lordships with only a very few words. It is altogether incontestible, that the special property of the con- signees can extend no further than they are creditors of the consign- er; and the only question at present is, How far they are intitled to c laim a special property, not only for the debts actually due to them by the consigner, but further, for relief of the engagements in which they stand bound upon his account. Your Lordships, by your interlocutor have found, That Mess. Hastie and Jamieson, in virtue of their right of s pecial property, are intitled to be preferred upon the cargo of the ship Betsey; in so far as it was the property of Archibald Dunlop, not only for payment of the sums they had advanced, butalsofreih engagements they had come under for Archibald Dunlop beore the date of the arrestment in Conkie's hands." T he petitioner will admit, That if Dunlop was insolvent, or in du- bious circumstances, the consignees might perhaps have a right to re­ tain the consignment, as a security for the sums in which they were bound on h is account. If however, on the other hand, he was in good circumstances, the petitioner must, with great deference, sub- mit, if they had any good title to keep possession of his goods. It is apprehended, that, supposin g Dunlop in good circumstances the light of the consignees must depend upon the terms of their private; •private agreement with him, upon the faith of which, they furnished goods, and contracted debts for him. By that contract however, he only became bound to remit to them the value of the goods they s ent out, so as to enable them to pay the prices to the furnishers, from time to time, as the same s hall become due. In mercantile practice, the import of such a contract is extremely well understood. When a factor at home sends out goods to a merchant abroad, he purchases them at a great many months credit, so as, against the time of their beco­ ming due, value may be remitted in order to discharge them. If a— gainst that time such remittances are made, it is all the factor can demand, and all the merchant abroad is bound to doA Till the merchant abroad shall have failed in making these remittances, the factor has no right to with-hold the effects of his constituent, or to apply them in any other manner than he shall be directed by him. If, in place of months, we should suppose that the factor fur- nishes goods, and becomes engaged for the price payable at the di­ stance of years, would it be competent for him, in any intermediate period before the term of payment, to retain his constituents effects in security of debts, which, according to the very term s of their contract would not become due by the consign er for months or years thereafter. It is, with submission, apprehended, he would not; and therefore in determining this point in the present case, the question must be, Was Archibald Dunlop, according to his contract with them, debtor to Hastie and Jamieson at the date of this arrest ment? or, Was he in such dubious circumstances as to intitle them to retain his effects for relief of their engagements on his account? Upon these grounds, the petitioner humbly presumes to bring the above-recited part of your Lordships interlocutor under review; and he humbly submits, if it would not be proper at least to delay determining a point of such general importance, till the production of the accompts ordered to be exhibited, that an accurate state of facts may be laid before the Court, and the matter then maturely consi- dered, especially as it is posib le that some constru ction might be hereafter attempted to be put upon this part of the interlocutor by Hastie and Jamieson, tending to embarrass the discussion of the only other point yet reserved, for future consideration. Your Lordships have left the question, How far the consignees are obliged to impute the subsequent consignments in extinction of their claims, open to discussion before the Lord Ordinary, after the ac- compts shall be exhibited. The petitioner therefore shall not trouble your Lordships with saying any thing upon that subject. He ex- pects it will then appear, that Mess. Hastie and Jamieson received, after after the date of this arrestment, large consignments from Dunlop, much more than sufficient to pay every shilling in which they were engaged upon his account; and that therefore, they have been carrying on this tedious and obstinate litigation, while not creditors in a single shilling, but adding as the factors and confidents of Dun­ lop, aiding and assisting him in disappointing or retarding the pay­ ment of his old creditors. If in the event this shall appear to be the fact, it will altogether supersede the necessity of determining the other point above mentioned, which, it is humbly apprehended, af­ fords an additional reason for delaying the establishing a principle of such importance. May it therefore please your lordships to alter your above-recited interlocutor insofar s now complained of;1mt that the petionr, by his arres ments of the sip,andn the hands of Conkie the master did legally and habilely affect the freight of the w hole cargo on board the ship Betsy, and therefore to prefer him to it accordingly, together with the interest due thereupon and, 2do, To f ind that Mess. Hastie and Jamieson, in virtue of their right of special property, are not to be preferred upon the cargo, for relief of the engagements they had come under for Dunlop before the date of the arrestment in Conkie' s hands, unles s insofar as the debts in which they were engaged were then due; or at leas t to supers ede determining this gene­ ral point till the accompts ordered to be exhibited shall be pro­ duced, and an accurate state of the facts be laid before the court. According to ju stice. &c. D A V. R A E.