Scottish Court of Session Decisions

Subject_1 FRAUD.

Christie and Company
v.
Fairholms and Company

Date: 21 December 1748
Case No. No. 20.

Vitium reale.

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Christie and Company sold 30 hogsheads of tobacco to Anderson, for which he was to give a bill by himself and one Drysdale. He sent the bill, but Drysdale's name was counterfeited, being added by a boy his son, and the tobaccos were sent from Glasgow to Elphinstone, and loaded on board for exportation, and arrested on ship-board by Anderson's creditors; and afterwards by agreement the arrestments were passed from, and new bills of lading taken in the creditors' names, the tobacco exported to Holland and sold, and account of sales sent, and the proceeds remitted to be divided amongst the creditors. Christie pursued reduction of the sale and payment of the net proceeds, and Fairholms and Company, the creditors to whom the price was remitted raised multiplepoinding. The Lords preferred Christie and Company to the price. They thought Anderson's fraud a vitium reale, and that the property was not transferred; and the President distinguished betwixt the case of arresters and purchasers in way of commerce. (See Dict. No. 24. p. 4896.)