International Banking Corp v Ferguson Shaw

Lord Low .—It is not disputed that the oil to which this action relates, so long as it existed in forma specifica , remained the property of the pursuers, and that if they had found it in the possession of the defenders they could have demanded restitution. On the other hand, it is conceded that if the defenders had, in good faith, sold the oil, the pursuers could not have claimed from them the value thereof, but only the profit which they made by the sale.

What actually occurred was that the defenders by mixing the oil with some other substance or substances produced an article known as “lard compound,” which they sold. In so doing, it is admitted that the defenders acted in good faith and in ignorance of any defect in their title to the oil. The Sheriff-substitute has held that the pursuers are entitled to the profit which the defenders made upon the sale of the lard compound, but to nothing more, while the Sheriff has found that the pursuers are entitled to the value of the oil.

For these reasons I am of opinion that the interlocutor of the Sheriff should be affirmed.

I further wish to say that I do not consider that the English decisions which have been referred to by the Sheriffs and by counsel for the parties can be relied on as safe guides in a case which must be decided according to Scots law. These decisions all proceeded upon the doctrine, or perhaps I should rather say the form of action, formerly known as “trover,” and now as “conversion,” a doctrine and process peculiar to the law of England, and which, so far as I understand it, is in some applications of it at variance with the principles of Scots law.

Subject to these remarks, I am of opinion that the interlocutor of the Sheriff ought to be adhered to.