FIRST SCHEDULE-PART I.

[The forms in this Part of the Schedule are subject to alteration from time to time by the Commissioners of Customs, with the consent of the Board of Trade.]

FORM A-BILL OF SALE.

(Particulars as to Name of Ship, Official Number, Port of Registry, Length, Breadth, Depth, Displacement, Engines (if any), Tonnage, etc., are to be here inserted.)1

ship above particularly described, and in her boats, guns, ammunition, small arms, and appurtenances, to the said

+ "Me" or

"

us.

+ "I" or

that ¶ have power to transfer in manner aforesaid the premises herein before expressed to be transferred, and that the

same are free from incumbrances **

|| "His,' "her," or "their." ¶ "I" or "we"

** If there be any subsisting Mortgage or outstanding Certificate of Mortgage, add 66 save as appears by the Registry of the said Ship."

1 In Form A space is left for these particulars in detail.

2 Form A has a marginal note as follows: "NOTE.-A Purchaser of a Registered British Vessel does not obtain a complete title until the Bill of Sale has been recorded at the Port of Registry of the Ship; and neglect of this precaution may entail serious consequences."

II.

POSSESSION OF MOVEABLES.

SCOTTISH CASES ILLUSTRATIVE OF POSSESSION OF MOVEABLES AND ITS LEGAL EFFECTS.

[NOTE. Cases of doubtful interpretation, or involving more than one point of law, are included under separate headings, with cross references. Questions of trade lien arising from usage are in general excluded. See on this subject More's Lectures, vol. i. p. 402 et seq.]

I. NATURE AND REQUISITES OF POSSESSION.

[NOTE. The distinction between natural and civil possession is illustrated by many cases throughout the various headings. Cases of civil possession by means of a middleman, such as a warehouseman or carrier, will be found under IV. post.]

Taylor v. Ranken (1675), Mor. 9118 (possession by key of chest).

Lees v. Dinwiddy (1707), Mor. 2546 (creditor in accidental possession at death of debtor allowed to retain for debt).

Glendinning's Creditors v. Montgomery (1745), Mor. 2573 (creditor in possession through informal poinding allowed to retain for debt).1

Burns v. Bruce and Baxter (1799), Hume 29 (horses in stable hired by clerk of company held to be in possession of company).

1 This case is "undoubtedly erroneous, because to justify retention in any case, the possession must have been originally lawful." More's Lectures, ii. 403. See Louson v. Craik (1842), 4 D. 1452, per Lord Jus.-Clk. Hope at p. 1458.

I. NATURE AND REQUISITES-continued.

More v. Dudgeon and Brodie (1801), Bell's Com. i. 186 and i. 193 (grain in seller's store-key with buyer's servant for sifting or airing-no possession by buyer). See also III. (4).

Paul v. Cuthbertson (1840), 2 D. 1286 (growing wood-symbolical delivery ineffectual).

Kerr v. Dundee Gas Co. (1861), 23 D. 343 (unfinished buildingcontract-materials on ground at contractor's bankruptcy held possessed by owner of premises).

Moore v. Gledden (1869), 7 Macp. 1016 (railway contractplant on ground of railway company at date of contractor's bankruptcy held possessed by company in terms of contract).

Barr and Shearer v. Cooper (1873), 11 Macp. 651, Revd. (1875), 2 Ret. H.L. 14 (ship under repair-shipbuilder's possession not lost by removal of vessel from private slip to public wetdock).

Hogg v. Armstrong and Mowat (1874), Shf. Ct. Glasgow, Guth. Sel. Ca., 1st ser. 438 (finder of £5 note in premises of shopkeeper entitled to retain against shopkeeper who was not true owner).

Miller v. Hutchison and Dixon (1881), 8 Ret. 489 (circumstances of possession of horses by auctioneers held sufficient for claim of retention for general balance).

Ross and Duncan v. Baxter and Co. (1885), 13 Ret. 185 (engines being fitted to ship in public harbour-no possession of ship by engineers).

Henckell du Buisson and Co. v. Swan and Co. (1889), 17 Ret. 252 (ship built for delivery at Santa Lucia lost on voyagecircumstances in which held that buyers had not taken possession (as alleged) before commencement of voyage).

Young v. Aktiebolaget Ofverums Bruk (1890), 18 Ret. 163 (iron stored by a ship's broker in shed of Harbour Commissioners, who had custody of key but did not keep any record of storages, held to be in possession of Commissioners). See also IV.

(1).

West Lothian Oil Co. Ltd. v. Mair (1892), 20 Ret. 64 (empty barrels possessed by buyer by being placed in locked fence in seller's yard of which buyer received the key). See also IV. (1), and Coм. ante, p. 279.

Brewer and Co. v. Duncan and Co. (1892), 20 Ret. 230 (ship being built last instalment paid and builder's certificate granted

I. NATURE AND REQUISITES-continued.

-vessel not removed but under control of buyer-held "handed over" in terms of contract).

Pattison's Trustee v. Liston (1893), 20 Ret. 806 (household furniture-alleged possession by means of key of house-plea negatived). See also II. (4), and Coм. ante, p. 280.

II. RULE THAT POSSESSION OF MOVEABLES PRESUMES
PROPERTY.

(But see now Sale of Goods Act, Sect. 17 ante, p. 80.)

(1) Possession sustained as against alleged Ownership insufficiently proved.

Home v. Atchison (1679), Mor. 9120 (necklace possessed eleven years).

Russel v. Campbell (1699), Fountainhall, ii. 75 (mere proof of former ownership of horse not sufficient).

Fergusson v. Officers of State (1749), Mor. 11618 (cattle in possession of person deceased).

Sharpe v. Smyth (1832), 11 Sh. 38 (thrashing-mill held bond fide for five years on imperfect title-possessor preferred to creditors of former owner).

Fife's Trustees (Earl of) v. Snare (1849), 11 D. 1119 (mere allegation that picture stolen forty years previous will not warrant application for its judicial custody).

See also as to proof required

Scot v. Fletcher (1665), Mor. 11616 (atlas alleged to have been lent, but claimed in property).

(2) Creditors of Reputed Owner in Possession preferred. [NOTE.-Many cases of imperfect transfer involve the doctrine of reputed ownership. See especially under II. (4) infra.]

Turnbull v. Ker (1624), Mor. 11615 (cattle possessed for years under special condition as to grazing).

Breichan v. Muirhead (1810), Hume 215 (tavern effects claimed by wife and daughter of tavern-keeper in possession).

II.-RULE THAT POSSESSION PRESUMES PROPERTY-continued. Cargill v. Somerville (1820), Hume 223 (goods in retail shop claimed by wife of possessor).

Anderson v. Buchanan (1848), 11 D. 270 (furniture sold without change in possession).

Brown v. Fleming (1850), 13 D. 373 (furniture claimed by wife under ante-nuptial contract).

Edmond v. Mowat (1868), 7 Macp. 59 (bathing machines sold without change in possession).

M'Caul's Trustees v. Thomson (1883), 10 Ret. 1064 (household furniture purchased from trustee for creditors, but allowed to remain in insolvent's possession-trustee in subsequent sequestration preferred). See also II. (5).

M'Gavin v. Sturrock's Trustee (1891), 18 Ret. 576 (farm lease creating security over moveables in favour of landlord-tenant's creditors preferred).

Hewat's Trustee v. Smith (1892), 19 Ret. 403 (pictures conveyed by husband in marriage-contract, retenta possessione-subsequent delivery in security preferred).

Anderson v. Anderson's Trustee (1892), 19 Ret. 684 (furniture sold by husband to wife held "inmixed" with his estate.

(3) Landlord of Reputed Owner in Possession preferred in virtue of Hypothec.

Kinneil v. Menzies (1790), Mor. 4973 (articles of furniture sold bona fide but allowed to remain with seller).

Wauchope v. Gall and Ross (1805), Hume 227 (furniture hired, but returned to owner before sequestration for rent).

Wilson v. Spankie (17th December 1813), F.C. (furniture of sequestrated bankrupt allowed by creditors to remain in bankrupt's house beyond current year-landlord preferred).

Stewart v. Bell (31st May 1814), F.C. (furniture hired-true owner, as assignee of landlord, preferred to tenant's cautioner for rent).

Penson and Robertson, Petitioners (6th June 1820), F.C. (musical instrument hired by tenant-plea that hypothec does not affect single or special articles repelled).