Clay — Petition, 7 Jul 1770

Untitled July 7. 1770. Unto the Right Honourable, the Lords of Council and Session, T H E P E T I T I O N c / y S 1 /- s S /., * f * s, ', l *£ < y / OF Mess C lay and M idgley merchants in Liverpool, and George Brown merchant in Glasgow, their attorney, Humbly shew eth, THAT, in the question between the petitioners and James Coulter merchant in Glasgow and others, with respect to the effect of a consignment of a cargo of tobacco, made by M‘Kittrick and Company, merchants in Vir- ginia, to the petition's, in payment of a debt long due, your Lord- ships, by two consecutive interlocutors, 29th November 1768. and 2d March 1770, preferred the said James Coulter and others upon their arrestments of the subject in controversy. As according to the usual forms of Court the petitioners are thus precluded from reclaiming, it may at first appear extraordinary, that they should trouble your Lordships with the present application. But the circumstances of their case are extremely peculiar, and they flatter themselves, favourable; and they therefore have humbly presumed to bring it again under your Lordships view, with the greatest deference, praying a most equitable though unusual exertion of the powers of this supreme Court.. And, in the first place, It will be necessary to state the fact s which gave rise to this dispute, before proceeding to suggest those conside- rations which, they humbly hope, will obtain an alteration of the in­ terlocutors unfavourable t o t h e i r c l a i m. In In September 1760, the petitioners, in consequence of orders from Mess. M'Kittrick and Company merchants in Virginia, purchased for them a parcel of goods of the manufacture of Great Britain, amount­ ing in value to the sum of L. 348:1Sterling, and shipped them on board a vessel bound from Liverpool to Virginia. Some time after, in return for this, the petitioners received a con- signment of tobacco, to the value of L. 85: 7: 9 Sterling; and there- after another consignment, to the value of L. 41: 9: 10 Sterling; both in part-payment of the aforesaid L. 384: 1 1: 8. The petitioners placed in their books these consignments to the credit of M'Kittrick and Company; who, on the other hand, in their books, placed a cargo received from Liverpool to the credit of the petitioners, and debited them with the two consignments of to­ bacco. In order to pay the balance due to the petitioners, Mess. MKittrick and Company, in November 1761, made another consignment of to­ bacco to them; and by a letter, dated in Virginia 8th September that year, advised the petitioners of this consignment. Besides this consignment from M'Kittrick and Company, the petitioners had on board the same vessel several other consignments of tobacco; upon all which they resolved to make insurance: And as at that time insurance could be got at an easier rate at Glasgow than at Liver­ pool, they wrote to Buchanan and Simplon, their correspondents at G lasgow, desiring insurance to be made upon the different parcels of tobacco on board that vessel. In compliance with these orders, Mess. Buchanan and Simpson got insurance made upon all these tobaccoes, in one policy, in favours o f themselves or whosoever it concerns, as i n t e r e s t m a y a p p e a r, fo r t h e s u ndry acompts,hinitial marks s ubjoined; and which was under­ wrote by James Coulter and others, merchants in Glasgow. Mess. M'Kittrick and Company, in pursuance of their intention, notified, as above mentioned, to the petitioners, did, on the 24th No­ vember 1761, put on board the vessel, the Two Sisters, Captain Pol­ lard master, 20 hogsheads of tobacco; and by the bill of loading the shipmaster became bound to deliver that cargo to the petitioners or their assigns at the post of Liverpool. The ship sailed from Virginia for Liverpool; but, on the 8th Fe­ bruary 1762, was taken by a French privateer, and carried into St Maloes. As As soon as the petitioners received intelligence of the capture and condemnation of this ship and cargo, they made a demand upon the insurers for the sums underwrote, and transmitted to G lasgow cer­ tificates of the condemnation, with such other papers as were necessa- ry to instruct their claim. Some of the underwriters, pretending to be creditors of M‘Kittrick and Company, insi sted upon retaining the sums they had underwrote, in payment of the debt due to them; and farther, arrested the sums in the hands of the other underwriters, as debtors to MKittrick and Company. Thereupon, the petitioners brought an action in this Court against the underwriters, for payment of the several sums under­ wrote: On the other hand, the underwriters raised a process of multiple­ poinding; which being remitted to the other process depending be­ fore Lord Hailes, his Lordship, upon the 26th February 1768, pro­ nounced the following interlocutor: “ Decerns conform to the Con- clusion of the libel at the instance of Mess. Clay and Midgley, and their factor; and prefers them in the multiple-poinding primo loco, for ought yet seen; and decerns in the preference, and for pay- ment accordingly.” To this judgment the Lord Ordinary adhered, by interlocutors, of date, 9th and 26th July, and 9th August, 1768. Against these interlocutors of the Lord Ordinary, the insurers pre- sented a reclaiming petition; upon advising which, with answers, your Lordships, 29th November 1768, pronounced the following in­ terlocutor: “ The Lords having heard this petition, with the answers thereto, they prefer the petitioners, and remit to the Lord Ordina- ry to proceed in the cause accordingly.” Against this interlocutor the petitioners, in their turn, reclaimed; but, on advising the petition with answers, and an additional petition with answers, your Lord- ships, 2d March 1770, adhered. It is apprehended to be unnecessary to trouble your Lordships with resuming at any length the arguments by which either party endea­ voured to support their claim. In general: The insurers contended, That the cargo remained the property of M' Kittrick and Company, and consequently attachable by their creditors, till actually delivered into the possession of the consignees; and that as when the cargo was lost the insurance came in place of it, the sums insured must be equally liable to such attachment. On the other hand, the petitioners maintained, 1mo, That accord­ ing to the estab lished law of merchants, by a bill of loading bearing a consignment of goods, the factor acquired such an exclusive inter- est est therein, that till he should be paid of every shilling advanced, for the merchants abroad, the consignment could neither be recalled, nor the cargo attached, by the creditors of the consigner. And how­ ever this general point might be determined, they maintained, in the s econd place, That there was a great difference between the goods the property of the debtor being actually attached, and that of sums underwrote in a policy of insurance, procured by the special order of the consignee, who alone has right to insi st in an action upon the policy, and who, according to the law and practice of merchants, would be preferred in such action to the consigner himself. While this competition was depending, there was another very si- milar question under your consideration, between Robert Arthur merchant in Irvine, and Mess. Hastie and Jamieson merchants in Glasgow; the particulars of which, as they have been repeatedly and very lately stated to the Court, need not here be resumed. The petitioners apprehend, That even if the general point with regard to the effect of a consignment should be decided against them, yet the special and particular circumstances of their case intitled them to a preference. But your Lordships considered the two cases as precise- ly sim ila r; and you decided in both at the same time, and in the same manner against the consignees. From these interlocutors of your Lordships, Mess. Hastie and Ja ­ mieson appealed to the House of Lords; and that Honourable House reversed your interlocutors, and declared, that the consignees had a special property in the cargo consigned, preferable to the arrestments of Robert Arthur. It is true, the petitioners have not entered any appeal against the interlocutors of your Lordships, preferring the insurers their compe­ titors; but at the same time, as it is acknowledged that this case de­ pends upon the very same principle with the case of Mr Arthur, they hope they may be allowed to say, that, upon an appeal, they would obtain from the House of Lords a judgment in their favour. The subject in controversy is extremely small, hardly exceeding L. 160 Sterling; and which ever party shall prevail in having it ad­ judged to them, will receive it very considerably diminished, by the expence already incurred by this litigation. If therefore they should be now put to the additional expence of an appeal, there would hard­ ly remain any thing to the party who should finally prevail. These being the peculiar circumstances of this case, the petitioners pre­ sume, with great submission, to lay it again before the Court. From the interlocutors in the cause above recited, your Lordships will observe, that the Lord Ordinary not only found the petitioners preferable preferable in virtue of their consignment, but decerned in the pre­ ference, and for payment accordingly. Your Lordships afterwards altered the interlocutors of the Lord Ordinary, and preferred the in- surers, and remitted to his Lordship to proceed accordingly; but there has been no further procedure in the cause, and no decreet is yet pronounced in terms of the remit. The final determination o f the House of Lords in the case of Robert Arthur, with regard to the effect of a consignment such as the present, was the object of great attention to all the merchants in this kingdom; and that point being now fixed in the manner already explained, is probably the reason why the insurers, in the present case, have not applied to the Lord Ordinary to decern in the preference, to which your Lord- ships interlocutors found them intitled. Even against consecutive interlocutors, and after the usual time of reclaiming has elapsed, your Lordships are in use to receive petitions, providing the party praying such review has facts to offer recently come to his knowledge. The petitioners do not pretend to be precisely in this situation but they hope they may be allowed to say, that since the interlocutors of your Lordships in this cause, a particular has oc­ curred, they mean, the judgment of the House of Lords, in the case of Arthur, ascertaining a great principle of mercantile law, which, if it had been known before pronouncing these interlocutors, would have obtained a judgment preferring the petitioners. It is a great branch of the equitable powers lodged with, your Lordships as a Su- preme Court, to dispense with the common forms of procedure, in or to answer the great ends of material ju stice. These particular regulations respecting the number of reclaiming petitions, or reclaiming days, are nor more sacred than many others which have the like sanction of your Lordships acts of sederunt, wisely calculated for the furtherance of ju stice, and yet innumerable instances have occurred where these have been dispensed with in particular cases. To mention examples of this would be superflu- ous; and the petitioners humbly submit to your Lordships, whe­ ther any case can occur where this indulgence is more equitable. This cause and that of Arthur’s were so precisely similar, that they were heard and judged at one and the same time. The object in both was to ascertain that great principle of mercantile law, respecting the effect of foreign consignments; the same judgment was given in both. The sum in dispute in Arthur's case was of so great value, and the point itself of such general importance, as to be deemed wor­ thy of being carried to the last refort. By the judgment in that ap­ peal, the law has been declared to be the reverse of what it was for­ merly merly supposed. The like judgment must have been given in the present case, had the subject in dispute been of such value as to defray the expences of an appeal; and therefore it cannot admit of a doubt, that, was the question still open according to the usual forms, for your Lordships review, you would now pronounce the same judgment in this case that the House of Lords have pronoun- ced in the case of Arthur. The cause is still open, as no decerniture has been given, or de­ creet extracted. Nothing stands in the way of this but. the rules of Court, regulating the common forms of procedure. That a reduction of these interlocutors would be competent, your petitioners cannot doubt. Even this is but a piece of mere form. It is a great branch of the equitable powers lodged with your Lordships, in the review that is competent of your own decreets, to dispense with your own re- gulations, in order to answer the great ends of material ju stice. So that without further argument, the petitioners humbly submit whether sufficient cause does not occur in this particular case, to weigh with your Lordships to receive this reclaiming petition, and upon the merits of the question, to repeat the same judgment that was given hy the House of Lords in the case of Arthur. May it therefore please your Lordships, to review and alter your interlocutors, of the 29th Novembr 1768 and 2d March 1770; and to adhere to the interlocutors of the Lord Ordinary, o f the 26th Februay, 9th and 26th July, and 9th August 17 68, preferring the petitioners. According to ju stice, ROB. C U L L EN. A L E X. L O C K H A R T. Edinburgh, July 10. 1 770. Betwixt the hours of nine and twelve before noon, I William Wilson apprentice to William Wilson wri­ ter to the signet, agent for the petitioners, intimated to John Gray writer to the signet, agent for the above-designed James Coulter and others, That copies of this petition were to be given into the Lords boxes this day, in order to its being moved in Court to-morrow. And I delivered to the said John Gray a copy o f the said petition, with a note subjoined, expressing the time it is expected to be mo­ ved in Court. This I did, in presence of John Lawrie and Thomas Ross, both clerks to the said William Wilson., P E E P T I, PEONMe