BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Mary Wright v The Earl of Mar, and Robert Allan and Ferguson. [1700] 4 Brn 493 (11 July 1700)
URL: http://www.bailii.org/scot/cases/ScotCS/1700/Brn040493-0942.html Cite as:
[1700] 4 Brn 493
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
Mary Wright v. The Earl of Mar, and Robert Allan and Ferguson
Date: 11 July 1700
Click here to view a pdf copy of this documet : PDF Copy
Mary Wright, relict of James Bruce, merchant in Alloway, pursues the Earl of Mar, Robert Allan, and Ferguson, his coal-grieves, on this ground, That her husband, (to whom she is executor confirmed,) lent, to the deceased John Keiry of Gogar, £3000; and he, as standing infeft in the Lordship of Mar, and manager of the coal, did allocate and sell to him 1000 cbalders of coals, for his payment, and did ware and employ the £3000 on the refection and maintenance of the coal-works and new sinks; and that the Earl and his factors had intromitted with these coals, and uplifted their price, and so ought to be liable.
Alleged, Absolvitor,—Because they no way represent the deceased John Keiry by any passive title; and he had no other right to the coals but only for behoof of the creditors of Mar; and there was no hypothecation, nor nexus realis on the coals, so as to hinder them from selling and disposing on them. If is true, if a corpus or quantitas had been assigned, or so many chalders presently lying on the coal-hill, or some other place, impignorated, there might have been something pled; but here it is only 1000 chalders of coals indefinitely and in general, without any special designation; which can give no hypothecation, seeing our law has not adopted that tacit hypothec, owned by the Roman lawyers, of the ware for the price, or houses and salt works for the expenses of reparation, unless in bottomry upon ships. And its being in rem versum gives no real right, no more than, if he had bought lands, or a parcel of wines or other goods, with the borrowed money, could he have pled an interest in the lands or goods bought with his money;—14th June 1676, Cushney against Christie.
The Lords found the pursuer had only action against John Keiry's representatives; and that neither the hypothecation, or in rem versum, affected the coals in this case; and therefore assoilyied the defenders.
