

Links: Home \| swarblaw - law discussions		swarb.co.uk - law index These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases. Â
		Scotland - From: 1200 To: 1799 This page lists 995 cases, and was prepared on 20 May 2019. Â Nicol Forman of Hutton v George Ker of Samuelston [1469] 1 Brn 112 31 May 1469 SCS Scotland SCLR In those days all actions of spoliation, intrusion, and others of that nature, were precognosced by an inquest of twelve men, best knowing the land, whose declaration being presented to the judges thereafter, they used to determine, as they did in the action betwixt Nicol Forman of Hutton against George Ker of Samuelston, anent the occupation of certain lands which the said Nicol alleged to belong to him in property. The parties, of their own consent, named twelve gentlemen there present, to inform and give counsel to the Lords in the said matter; who being sworn, &c. and removed, returning, gave their deliverance this way:- "We decree and deliver, after our knowledge and understanding, that in no time bygone we heard ever that the Laird of Samuelston had possession of the said lands into mannor, pasture, &c. or possessed before the last year; and that Nicol and his predecessors have ever been in peaceable possession of these lands while the last year," &c. After which deliverance the Lords decerned Samuelston to desist therefrom in time coming. [ Bailii ] Â A v B [1470] Mor 5408 17 Oct 1470 SCS Scotland A relict bruiking land per tacitam relocationem, and another husband marrying her after his decease, the master will get ane herezeld, because all labourers (husbands) are obliged therein to their master. [ Bailii ] Â John Logie v Anna Howison [1470] Mor 5407 17 Oct 1470 SCS Scotland Herezeld may not be demanded until the ish of the tack. [ Bailii ] Â John Johnston v Gawin Johnston [1480] Mor 5401 27 Jun 1480 SCS Scotland [ Bailii ] Â The King v James -, of Durham [1481] 1 Brn 113 2 Feb 1481 SCS Scotland The Lords found that the horse whereupon umquhile Thomas Bullock, servitor to James ----, of Durham, ran in the water of Aven and was drowned, was not escheat to our sovereign lord; because, by an inquest taken before the sheriff of Linlithgow, by command of the Lords of Council, it was found that the said Thomas forced the horse with spurs to take the water, and through his own folly and rashness was drowned; and not the horse's fault. And therefore decerned the horse to the said James ----; of Durham. [ Bailii ] Â Thomas Sempill v F Fordel [1487] Mor 5203 19 Jan 1487 SCS Scotland He that is auchtand, or has paid in name and behalf of ony uther that is deceist, ony debt, or sowmis of money, and is desirous to have his relief thairof, aucht and sould first call and persew befoir the spiritual Judge his executouris, to frie and relieve him of the said sowme or debt, at the handis of the creditouris, gif the principal debtour that is deceist had movabill gudis the time of his deceis: Bot gif thair was not sufficient movabill gudis, the air of the principal debtour deceist may be callit and persewit befoir the temporal Judge, for the effect foirsaid; because in all sic caisis the movabill gudis intromettit with be the executouris aucht and sould be first discust, befoir ony gudis, geir, or landis pertening to the air. [ Bailii ] Â The King v William Cairns, Nephew and Heir To Umquhile John Cairns [1488] Mor 8517 7 Mar 1488 SCS Scotland The heir having married while his predecessor was on death-bed, this was considered to be a fraudulent attempt to disappoint the superior, and the avail was found due. [ Bailii ] Â Knolls v Halkerston [1489] Mor 5385 27 Feb 1489 SCS Scotland What Moveables are Heirship. [ Bailii ] Â Multiple Cases With Citation: [1491] Mor 7853 [1491] Mor 7853 10 Feb 1491 SCS Scotland The King v The Town of Elgin. [1491] Mor 7853 (10 February 1491) The King v The Burgh of Aberdeen. [1491] Mor 7853 (28 February 1491) [ Bailii ] Â The King v The Town of Elgin [1491] Mor 7853 10 Feb 1491 SCS Scotland Grants from the Crown. - Annexed Property. - Power of granting Jurisdictions. - Power of Revocation. [ Bailii ] Â Patrick Home of Fastcastle v Peronell Libberton [1491] Mor 3707 22 Feb 1491 SCS Scotland Where Parties must be Cited, and Execution done. - A vagabond may be summoned at the market cross of the head burgh of any shire, where he most commonly haunted, before the execution of the summons. [ Bailii ] Â The King v The Burgh of Aberdeen [1491] Mor 7853 28 Feb 1491 SCS Scotland Grants from the Crown. - Annexed Property. - Power of granting Jurisdictions. - Power of Revocation. [ Bailii ] Â Alexander White v Giles Fenton [1491] Mor 5385 20 Mar 1491 SCS Scotland What Moveables are Heirship. [ Bailii ] Â Â Marion Cuninghame v Robert Drummound; SCS 17-May-1491 - [1491] Mor 635 Â The King v The Lord of St John [1492] Mor 4657 1 Feb 1492 SCS Scotland What carried by Forfeiture. - Gif ony free tenant haldand landis of ony superiour under the King, ather spiritual or temporal, commit ony crime of tressoun, and is foirfaultit thairfoir, the King, because he cannot hald landis of ony man, sould present ane tenent to the said immediat overlord spiritual or temporal, of all and hail the landis, quhilkis sumtime pertenit to him that is foirfaltit, and require the said overlord to give infeftment heritabillie of the samin landis to him quha is presentit; for, in sic caisis, powar and richt of presentatioun is understuid to pertene to his Grace as escheat; except the said overlord be specially infeft with fie and foirfalture of his awin tenents; and the tenent quha is presentit may obtene a charge be deliverance of the Lordis of Counsal, under the testimonial of the Greit Seill conform to his presentatioun, and thairwith charge the said overlord to ressave him as immediat tenent to him in the saidis landis, and infeft him and his airis, be chartour and sasine thairintill, to be haldin of the said overlord als frelie as the said persoun that is foirfaltit held the samin of him befoir; the quhilk gif the said overlord refusis to do, the said tenent may raise the remanent preceptis of our Soverane Lord's Chancellarie to charge the said overlord to ressave him in tenent in manner foresaid. [ Bailii ] Â Â Malcolm Drummond v Margaret Muschet; SCS 22-Jun-1492 - [1492] Mor 843 Â Patrick Cockburn v Alexander Ramsay [1497] Mor 7317 10 Nov 1497 SCS Scotland All clamis, controversies, and questiounis concerning purpresture, aucht and sould be decydit and determinat be deliverance of ane inquest, takin be command of our soverane Lord's letteris, befoir the Justice-general, or his de putis: And gif ony sic action be intentit befoir the Lordis of Counsal, thay aucht and sould remit the samin to the said Justice; because the samin pertenis to him allanerlie. [ Bailii ] Â Patrick Cockburn v Alexander Ramsay [1497] Mor 13157 14 Nov 1497 SCS Scotland Gif ony persoun biggis ony housis or tenementis upon the commoun streit, within ony of the King's burghis, the samin aucht and sould pertene to the King's Hienes, as eschete throw purpresture, and may be gevin and disponit be him to ony persoun as he pleisis. [ Bailii ] Â Johne Fentoune v William Simpsone [1499] Mor 10597 2 May 1499 SCS Scotland [ Bailii ] Â William Douglas v Robert Boyd and Johne Kernis, His Tutor [1500] Mor 16215 4 Dec 1500 SCS Scotland, Children Gif ony actioun or cause be intentit aganis ane pupill and his tutor, and befoir the intenting thairof, or thairefter, the tutor be commandit to ward be the Kingis grace, the actioun and cause aucht and sould be continewit and delayit aganis the said minor, untill his tutor, quha sould have defendit him, be fred and relevitfra his captivitie and ward; and in the mean time of the continuatioun and endurance in ward of the tutor, all lauchfull defences and exceptiounis ar reservit to baith the parties, and all prescriptiounis aucht and sould sleip and ceis, quhilkis utherwayis micht have run and had course in the said matter. [ Bailii ] Â The King v The Bailies of Haddington [1500] Mor 7318 5 Dec 1500 SCS Scotland, Jurisdiction Ony persoun beand accusit criminallie befoir the judge criminal, the saidis Lordis (of Session) are judgeis competent to cognosce and tak inquisitioun, quhidder the samin judge hes procedit ordourlie or not, in sic thingis as concernis thair office in leiding and deducing of the proces: And gif he be fund culpabill, or convict to have unordourlie or unjustly procedit, thay may de decern him to be punist thairfoir, and als reduce the proces led, done, and pronuncit be him. And gif the Judge, in ony actioun of blude, as is persewit of foirthocht felone committit, takis inquisition, or makis accusatioun, of troublance, and makis the persounis committaris of the said blude quyte of the troublance, intending thairby, in defraud of justice, to mak thame quyte of the blude, and foirthocht felonie, in sa far as he may, the saidis Lordis may likewayis cognosce thairupon. [ Bailii ] Â Multiple Cases With Citation: [1500] Mor 7318 [1500] Mor 7318 5 Dec 1500 SCS Scotland The King v The Bailies of Haddington. [1500] Mor 7318 (5 December 1500) The King v The Sheriff of Fife. [1500] Mor 7318 (7 December 1500) [ Bailii ] Â The King v The Sheriff of Fife [1500] Mor 7318 7 Dec 1500 SCS Scotland, Criminal Practice The Lordis of Sessioun are on na wayis Judges competent to cognosce in ony actioun, or caus concerning crimes, sic as hurting, mutilatioun, or slauchter of men: And farder, gif ony persoun be accusit criminallie befoir the Justice, or his deputis, or ony uther Judge within this realme havand criminal jurisdictioun, and be put to the knawledge of ane assise thairanent, gif he be ather fylit or quytit, quhidder the samin deliverance of the assise be wrangouslie or richteouslie done, the saidis Lordis hes na powar to cognosce thairupon, bot aucht and sould remit the samin to the Justice, and his deputis, to be decidit befoir thame be ain greit assise, conform to the lawis of this realme. [ Bailii ] Â N v Johne Creichtoune [1501] Mor 16215 30 Mar 1501 SCS Scotland Ane minor beand in ward in the Kingis or uther superiouris hands, na actioun or clam tuiching his ward-landis may be intentit or proponit aganis him, except the King, or his uther superiour, be warnit to compeir for his defence; because the minor sould be defendit in all sic actiounis be him in quhais handis and powar he is, be ressoun of ward. [ Bailii ] Â Earl of Cassillis v Knockdoloan [1501] Mor 8027 24 Jul 1501 SCS Scotland In an action betwixt the Earl of Cassillis and the Laird of Knockdoloan, an horning for not finding of lawburrows was found null, because the raiser of the charge had not made faith before the charge was given. [ Bailii ] Â Bischop of Aberdeen v Johne Forbes [1501] Mor 7933 14 Dec 1501 SCS Scotland Kirk Patrimony - Nature of this species of Property - A tack by an ecclesiastic for the life of the lessee is null, if not confirmed. [ Bailii ] Â Â Murray v King's Advocate; SCS 18-Feb-1502 - [1502] Mor 1346 Â The King v George Lord Seatoun [1502] Mor 6407 4 Mar 1502 SCS Scotland IMPLIED DISCHARGE and RENUNCIATION. - Whether acting as Superior, by receiving Casualties, implies a Discharge of any Claim to the Property. [ Bailii ] Â Â Robert Francis N v Earl of Montgomerie; SCS 9-Mar-1502 - [1502] Mor 695 Â The King v Henrie Scrogeith [1502] Mor 9287 13 Mar 1502 SCS Scotland Non-Entry - Non-entry duties how ascertained. - In what holdings does Non-entry take place. Takes place until actual infeftment. But not if the superior be in mora. [ Bailii ] Â The Provinciall of The Slackfrieris v William Bervick [1503] Mor 10597 18 Nov 1503 SCS Scotland No man should be pue out of his possession but by order of law. - Ane man beand be the space of ten zeiris, or ane langer time, in use and possessioun of ony annuelrent or dewtie to be upliftit out of ony landis or tenementis, or ony uther thing, he aucht and sould bruik and joise the samin, and be mantenit in his possessioun foirsaid, ay and quhill he be lauchfullie callit, and ordourlie put thairfra be the law. [ Bailii ] Â The Abbot of Crosraguell v John Hamilton [1504] Mor 7933 12 Mar 1504 SCS Scotland, Land Found that religious houses could not be let in tack or feued. [ Bailii ] Â The King v John Telfer [1505] Mor 3440 15 Jan 1505 SCS Scotland Granting of double rights punished with confiscation of moveables. [ Bailii ] Â The King v Schir Johne Hay [1505] Mor 16558 6 Feb 1505 SCS Scotland, Land All landis halding of the King, utherwayis nor in fre burgage, ar haldin in blanche ferm, or in few ferm, or be service of ward and relief, or in name of pure and fre almonis. De quatuor mod. ten. ter. de Rege. Item, Landis haldin be ony man, of ony superior or over-lord, reddendo servitia debita et consueta, the samin is understuid to be halden be service of ward and relief, except in his infeftment relation be maid ad formam et tenorem antiquae cartae; for in this cais the manner of halding of the saidis landis sould be reulit and understuid, conform to the halding contenit in the auld chartour, gif ony be [ Bailii ] Â Â Johne Bonar of Rossie v David Balfour of Carristoun; SCS 7-Mar-1505 - [1505] Mor 635 Â Abbot of Dunfermline v Forrester [1506] Mor 4716; [1506] Mor 4716 17 Feb 1506 SCS Scotland Gif ony man, haldand landis of the kirk, or ony uther of the King's lieges, as superiouris, beis convict and foirfaltit for ony crime of lese-majestie committit aganis the King; the preffitis, maillis, and dewties of the saidis landis pertenis to the said immediat superiour, fra the time of his foirfalture, ay and quhill the King present to the over-lord ane tenent in his place. [ Bailii ] Â Margaret Symson v James Scot [1507] Mor 3851 27 Jan 1507 SCS Scotland [ Bailii ] Â A v B [1510] Mor 5388 21 Feb 1510 SCS Scotland Ony man deceissand quha hes had twa wives, or ma, with bairnis and successioun with thame, the first wife's eldest sone sall have his haill airschip of all movabill gudis quhilk pertenit to his father, and was in his possessioun the time of his deceis. [ Bailii ] Â The King v The Laird of Grantullie [1511] Mor 9332 11 Dec 1511 SCS Scotland Conjunct fee excludes non-entry. - Non-entry excluded where the lands have been full thirty six-years. Gif ony over-lord call and persew his tenent to heir and se his landis pertening to him decernit to have bene in non-entres be the space of divers and sindrie zeiris, viz. be the space of fiftie or sixtie zeiris, or fra thyne furth, and the partie defendar produce ony saisine or saisines, beirand him and his predecessouris, or himself allanerlie, to have bene lauchfullie saisit in the saidis landis be the space of fiftie zeiris immediatlie preceding the day and dait of the sum moundis intentit againis him, he aucht and sould be simpliciter assoilzeit fra the clame and petitioun proponit and persewit againis him tuiching the non-entres of the saidis landis, not onlie of the said space of fiftie zeiris, during the quhilk thay wer full, bot also of all uther zeiris and termis precedand the samin. [ Bailii ] Â Gavin Dumber v Arch-Deane of Sanctandrois, and Alexander Cuik [1514] Mor 9287 14 Dec 1514 SCS Scotland Non-entry duties how ascertained. - In what holdings does Non-entry take place. Takes place until actual infeftment. But not if the superior be in mora. Tenementis lyand within burgh, haldin of ony superiour spiritual or temporal, or in the superiouris handis be reasoun of non-entres, be deceis of the last laushful possessour thairof, unto the entre of the lauchful air thairto. [ Bailii ] Â The King v Gavin Postulat of Aberbrothick [1515] Mor 7318 9 Jul 1515 SCS Scotland Gif ony persoun, spiritual or temporal, within this realme, accusis ony for breking of the actis of Parliament, the King, and the Lordis of Counsal, and nane utheris, ar Jugels competent thairintill. [ Bailii ] Â The King v Crichton [1517] Mor 8023 2 Apr 1517 SCS Scotland Gif ony man brekis the lawborrowis of peace fund be him to ony of the King's lieges, the King, nor nane of his lieges, may call or persew him for the samin, or to content and pay the pane thairof, untill he be first accusit and convict thairof criminallie befoir the Justice or his deputis; because the civil cause aucht and sould be respeitit and delayit untill the criminal be first decidit. [ Bailii ] Â The King and His Comptroller v L Tullibarden [1517] Mor 7179 5 Sep 1517 SCS Scotland Feus of the Crown may be reduced, for non-payment of the feuduty. [ Bailii ] Â Â Abbot of Paislay v Adam Wallace; SCS 6-Jul-1518 - [1518] Mor 784 Â Town of Edinburgh v Leith [1518] Mor 1902 16 Nov 1518 SCS Scotland The Town of Edinburgh obtained decreet against the inhabitants of Leith, decerning them to desist from all buying of wool, hides, skin, cloth, and all merchandise, in the country from unfreemen, and that all such merchandise be brought to Edinburgh, and their cost from the burgesses; and in like manner to desist from all packing and peeling, within Leith, but within Edinburgh, and to pay their customers in Edinburgh for the same; and also decerning the hail inhabitants from buying wine, coals, victual, timber, pitch, tar, lint, and other goods, coming to Leith by strangers, until first they make entry in the town's books and shall be controlled there, and other officers be satisfied for the King's use; and also decerning the said inhabitants from all buying, killing of herrings, selches, and other fishes coming within Leith, and peeling and salting of the same, and sending the same into England or other foreign parts. [ Bailii ] Â Kincaid v Sanderson [1520] Mor 6021 26 Jul 1520 SCS Scotland A husband found not obliged to pay even for small necessaries to his family, where, he instructed his giving to his wife a sufficient competency for defraying such charges, and that she was also inhibited before the furnishing. [ Bailii ] Â Town of Edinburgh v Leith [1522] Mor 1903 24 Jan 1522 SCS Scotland [ Bailii ] Â M Johne Boswell v James Logane [1522] Mor 16215 1 Dec 1522 SCS Scotland All tutoris, als weill testamentaris as utheris, and all curatouris, aucht and sould at the end and ische of thair office and administratioun, give and mak befoir ane Judge ordinar, just reckoning, compleit satisfactioun and payment to him to quhome thay war tutoris or curatoris, and to sum of his speciall freindis, of all and sindrie gudis, geir, maillis, grassummis, annuelrentis, bandis, sowmis of money, insight gudis, bairnis part of geir, and airschip guidis, with all and sindrie commoditeis and proffeitis thairof, and utheris pertening to him, and intromettit with, tane up and ressavit be thame, as tutoris or curatoris, of all zeiris and termis, dayis and times of thair administratioun and office; and to that effect the time that thay ar constitute tutoris or curatoris, thay aucht and sould find caution for just administration, induring the time of thair office, and for just count and reckoning in manner foirsaid. [ Bailii ] Â Elizabeth Fenton v The Heritrix of Dirleton [1523] Mor 5357 26 Feb 1523 SCS Scotland if any fre tenant or vassal haldand landis of diverse and sindrie sisteris, or utherwayis airis-female, as thair superiouris, he aucht and sould be enterit thairto be the eldest air-female allenarlie, and the releif quhilk he payis the time of his entrie sould be equallie dividit amang all and haill the superiouris, and on na wayis sould pertene to the eldest aire alane [ Bailii ] Â Â The King v William Dingwall; SCS 22-Feb-1524 - [1524] Mor 785 Â Abbot of Cambuskenneth v David Ramsay [1525] Mor 7179 8 Mar 1525 SCS Scotland Legal Irritancy ob non solutum canonem. A feu was reduced for non-payment of the feuduty, altho' no such provision was made in the charter. [ Bailii ] Â Brown v Brown [1527] Mor 5386 27 Mar 1527 SCS Scotland Na schip or boit pertening to ony man the time of his deceis, may be askit or cravit be his air as airschip, be ressoun the samin on na wayis pertenis to him in respect of airschip. [ Bailii ] Â Curl v Watson [1527] Mor 4825 27 Mar 1527 SCS Scotland Ane stranger being persewit within this realme befoir ony Judge, for ony civil cause or actioun, as for debt, aucht and sould find cautioun de judicio sisti et judicatum solvi. [ Bailii ] Â Jonet Foreman, Relict of Umquhile Alexander Oliphamt of Kellie v Johne Oliphant of Kellie, Knight [1527] Mor 16216 22 May 1527 SCS Scotland The cure and keiping of ane air, beand minor, and of all uther minoris, pertenis to the mother efter the deceis of thair father, quhill thair age of sevin zeiris compleit; and the mother in this cais aucht and sould be preferrit to the said minor's guidschir, and to all the rest of his freindis and kinnismen. [ Bailii ] Â The Burgh of Hadingtoun v Johne Carnbee [1527] Mor 9287 10 Dec 1527 SCS Scotland Aikeris, or ony uther burrow-field land, lyand within the fredom of ony burgh within this realme, as ane part thairof in comountie, on na wayis may fall or cum in non-entries: And gif the non-entries thairof be disponit to ony uther burgh or persoun, the samin is of nane avail, and may be reducit. [ Bailii ] Â Thomas Scot v Thomas Balfour of Burlie [1528] Mor 14758 20 Feb 1528 SCS Scotland SCS Gif ony man be persewit for spuilzie or ejection, he aucht and sould be assoilziet thairfra, gif he did nathing thairintill bot be virtue of our soverane Lord's letteris. [ Bailii ] Â The King v Walter Oliphant and Others [1528] Mor 16216 17 Oct 1528 SCS Scotland SCS Gif the father lauchfullie maryis his sone, and puttis him in the fie of his landis, and thairefter the sone deceisses, leivand behind him ane air, gottin of his bodie, of les age, and within tutorie; be the law and consuetude of this realme, the said pupill was, the time of his fatheris deceis, in his fatheris powar allanerlie, and be ressoun of his deceis made fre of all fatherlie powar, and on na wayis in the powar of his gudschir, grandschir, or ony utheris his predecessouris zit on life: And thairfoir, gif ony of thame makis and constitutes in thair testament or latter will, ony tutor testamentar to the said air, beand zit pupill, the samin constitutioun, with all that followis thairupon, is of nane avail, force, nor effect, and may be reducit as maid in fraud and prejudice of the tutor of law, and failzeing him of the richt grantit to our Soverane Lord be ressoun of his Crown, in making and geving tutoris dative to pupillis not lauchfullie providit of uther tutoris. [ Bailii ] Â Alexander Forestare of Costorphine, v William Forestare His Tutor [1528] Mor 16217 6 Dec 1528 SCS Scotland SCS Gif ony tutor deburse and pay of his awin proper gudis, induring the time of his tutorie, to the utilitie and proffeit of his pupill, or to the confirmatioun or reparatioun of his housis, or heritage, as in redeming of wodset landis pertening to the pupill; the pupill being furth of tutorie, or within the age of tutorie, and under ane uther tutor, aucht and sould restore and deliver the samin to his tutor. [ Bailii ] Â The King v John Grahame [1528] Mor 7865 16 Dec 1528 SCS Scotland SCS Gif ony actioun be intentit at the King's instance, the defendar aucht not to obtene ony protestatioun aganis him, albeit he persewit not in time, nor maid na instance; because na protestatioun sould be admittit in the King's actiounis. [ Bailii ] Â The King v Alexander Forestar, Provest of Corstorphin [1529] Mor 16217 12 Mar 1529 SCS Scotland The narrest agnat and cousing of the fatheris side aucht and sould be lauchfull tutor to the pupill, gif he be of lauchfull age, and immediat to succeid to the pupill, gif it happin him to deceis without airis of his bodie, quhidder the said agnat be ane Abbot or uther ecclesiasticall persoun; the quhilk, be the law and consuetude of this realme, are not secludit fra successioun, and swa consequentlie aucht to be admittit to the office and charge of tutorie; quia ubi est spes et commodum successionis, ibi et onus tutelae esse debet. [ Bailii ] Â Multiple Cases With Citation: [1529] Mor 16217 [1529] Mor 16217 12 Mar 1529 SCS Scotland [ Bailii ] Â James Sandilandis of Calder, v Edmund Sinclair [1529] Mor 16217 28 Jul 1529 SCS Scotland Gif ony man maryis ane heretrix of landis, haldin be service of ward and releif and thairefter scho deceis, leivand behind hir bairnis gottin betwix thame, male or female, the keiping of the saidis bairnis, beand minoris, and within perfeit age, pertenis to the superiour of the saidis landis; for he aucht and sould have thame deliverit to him, and have thame in his keiping, that he may dispone upon thair mariage; and in this cais he sould be preferrit to thair father, and uther kinnismen or freindis quhatsumever. [ Bailii ] Â Mr Archibald Moncrieff v Lady Balnagown and M'Intosh [1529] Mor 7871 9 Dec 1529 SCS Scotland Found, that a comprising for the King's blench duty ought to be preferred to all infeftments anterior, by dispositions or comprisings. [ Bailii ] Â Lord Yester v Mr George Hay [1530] Mor 16457 23 Mar 1530 SCS Scotland Gif ony persoun be convict of ony ejectioun, or spuilzie, he aucht and sould not onlie restoir the saidis gudis and geir, or the avail thairof, bot alswa sould content and pay to the persewar the proffitis quhilk he micht have had, and quhilk he wantis throw the spuilzieing thairof, and that fra the day of the spoliatioun to the day of the raising of the summoundis, and not to the day of the geving of the decrete. [ Bailii ] Â David Vallange v William Scot [1531] Mor 10597 6 Oct 1531 SCS Scotland Gif ony person persew ane uther for gudis, geir, or ony uther thing quhilk was sumtime in his possessioun, and quhilk he hes fraudfullie absentit and put away, he may be callit and persewit like as gif the samin were presentlie in his possessioun; quia qui dolo desiit possidere, pro possessore habetur. [ Bailii ] Â Master of Glencairn v Prior of St Andrews [1532] Mor 3417 15 Feb 1532 SCS Scotland Gif ony Lord of Sessioun, or uther Judge within this realme, say to ony partie, or his procuratour, that he micht have better libellit or zit answerit better to the libel intentit aganis him nor he did, he, as suspect and partial in the cause, may be removit at the desire of the partie. [ Bailii ] Â Elizabeth Creichton v William Hamilton [1532] Mor 15835 21 Feb 1532 SCS Scotland Gif ony woman raise an breif to be servit to ony ressonable tierce of her husband's lands, scho ought and should be kennit and servit to ane tierce of all and haill thay landis in the quhilk her husband deceasit last vest and seasit, and of none utheris, albeit the samen pertaines to her husband, and were disponit be him to ony person in his life-time. And scho being servit to the said tierce, the mailis, profits, and duties of all yieris and terms preceeding her services, sen the deceis of her husband, als weil as after the samen service, enduring her life-time, aucht and should pertain to her, notwithstanding that scho be servit thairto lang after his deceis, because, in this case, tempus deservitionis retrotrahitur ad tempus mortis mariti. [ Bailii ] Â Gilbert Inglis v Mr Alane Inglis [1532] Mor 16647 20 Jun 1532 SCS Scotland Witnesses beand ressavit and examinat for probatioun of ony summoundis or alledgeance, gif the partie, at quhais instance thay were producit, and thay thairefter alledge, that thay wer not examinat be the Judge upon the punctis of the summoundis or alledgeance; or that the clerk, writer of their depositiouns, writ thame not as thay deponit, thay aucht and sould be summoundit, to be of new examinat, and depone and declare the veritie in the matter. [ Bailii ] Â Multiple Cases With Citation: [1532] Mor 7319 [1532] Mor 7319 9 Jul 1532 SCS Scotland [ Bailii ] Â A v B [1532] Mor 7319 9 Jul 1532 SCS Scotland The Lordis of Sessioun alanerlie, and na utheris, ar Jugeis competent to the reductioune of ninetene zeir takkis, and sicklike upon all contraversies, debaitis or reclamatiounis interponit fra ony decreit arbitral, registrat in the buikis of Counsall, like as they, and nane utheris, gevis and grantis letteris to compell parties to fulfill decreitis arbitral, everie ane according to thair awin partis [ Bailii ] Â The Lords v Andrew Murray, Messenger [1532] Mor 7319 15 Jul 1532 SCS Scotland The Lords of Counsall hes powar to accuse and convict ane messenger or officiar of armis, anent the wrangous executioun of his office, and tak his armis and office fra him, and mak publicatioun thairof, be thair letteris direct furth throw the realme thairupon. [ Bailii ] Â Humphry Rollock v John Striviling of Keir [1532] Mor 14740 16 Jul 1532 SCS Scotland If any man be pursued for spoliation and away-taking of any goods and gear, he ought and should be assoilzied therefrom, if he or any in his name, restored really, and with effect, after the committing of the spuilzie, and before the intending of the summons, the same goods and gear to the owner thereof, or to his wife and servants, as good as they were the time they were taken away. [ Bailii ] Â The Laird of Waughton v Friar James Paterson [1532] Mor 7319 18 Jul 1532 SCS Scotland Gif the King grantis or directis ony letteris under his signet and subscriptioun, charging ony of his liegis to do ony deid, under the pane of rebellioun, and putting of him to the horne, and he againis quhom they ar direct not beand callit to heir the samin gevin, the Lordis, at the instance of the said partie, meanand him to thaim thairanent, may suspend simpliciter the saidis letteris, as evil gevin, without ony cognitioun tane in the cause, and decern thame to desist in time coming. [ Bailii ] Â The Bischop of Murray v Lord Drummond [1532] Mor 16217 21 Oct 1532 SCS Scotland Gif ony persoun has just richt and titill to the mariage of ony air, beand of les age, albeit he have na richt to his ward, he aucht and sould be preferrit to the said minor's tutor anent the keiping of his persoun, bot sould on na wayis be preferrit thairintill to the superiour or wardatar. [ Bailii ] Â John Seytoun v Thomas Ballingall [1532] Mor 8023 2 Dec 1532 SCS Scotland Pure men, sick as taskeris, hyndis, or cottaris, beand chargit to find lawborrowis to ony man, ilk ane of thame may be ressavit to be lawborrowis for utheris. Item, Na pupil nor persoun beand within the age of xij zeiris, may be compellit to find lawborrowis. [ Bailii ] Â Â Robert Cairnis v Robert Leyis; SCS 3-Jul-1533 - [1533] Mor 827 Â Â A v B; SCS 4-Jul-1533 - [1533] Mor 787 Â Â The King v Robert Lumisden of Mather; SCS 28-Nov-1533 - [1533] Mor 685 Â Â The Abbot of Kilwinning v Andro Auchinleck; SCS 29-Nov-1533 - [1533] Mor 827 Â Tenants of Strathurd v Ninian Seytoun [1534] Mor 14758 4 Feb 1534 SCS Scotland Gif ony man, beand persewit for spuilzie of ony gudis and geir, alledgis that he lauchfullie poindit the saidis gudis, and thairfoir did na wrang nor spuilzie, the samin sould be admittit to his probation. [ Bailii ] Â James Kennedy of Blairquhan v Thomas M'Lellan of Gilston [1534] Mor 7320 4 Mar 1534 SCS Scotland Gif ony actioun or cause intentit or persewit befoir the Lordis of Sessioun, of swa greit difficultie that thay may not decide nor declare the samin, thay squid refer it to be decidit be the estatis in Parliament. [ Bailii ] Â Multiple Cases With Citation: [1534] Mor 7320 [1534] Mor 7320 4 Mar 1534 SCS Scotland [ Bailii ] Â Alexander Innes of That Ilk v M Alexander Dumbar, Dean of Murray [1534] Mor 7320 6 Mar 1534 SCS Scotland Enumeration of various kinds of actions to which the Court of Session are competent. [ Bailii ] Â A v B [1534] Mor 16219 8 Jul 1534 SCS Scotland Ane tutor beand negligent in his office of tutorie in sic thing is as concernis the pupillis weill; or zit gif he be unhabill in the administratioun of his office, the pupill may desire befoir ane Judge ane curatour, tam ad lites, quam ad negotia, to fee adjoinit to his tutor for his help and supplie [ Bailii ] Â Multiple Cases With Citation: [1534] Mor 16219 [1534] Mor 16219 8 Jul 1534 SCS Scotland [ Bailii ] Â A v B [1534] Mor 16219 10 Jul 1534 SCS Scotland, Wills and Probate, Family Ane bastard deceissand, and leivand behind him bairnis Iauchfullie gottin of his bodie, beand of les age and pupillis, without ony tutor testamentar, left be thair father to thame, in his testament or latter will, the King may give to thame ane tutor, because thay cannot have ony agnat or kinnisman of the fatheris side. [ Bailii ] Â A v B [1534] Mor 7321 16 Jul 1534 SCS Scotland Jurisdiction of the Court of Session. [ Bailii ] Â Â Janet Logan v Elizabeth Campbell and William Wallace; SCS 21-Jul-1534 - [1534] Mor 386 Â A v B [1534] Mor 12297 5 Dec 1534 SCS Scotland What Proof relevant to take away Writ. [ Bailii ] Â The King v Laird of Calderwood [1537] Mor 11685 4 Feb 1537 SCS Scotland Landis pertening to the Prince of Scotland, and beand annext to the principalitie, may not be set in feuferme, nor annalzeit, without consent of the Prince. And gif the King dispones the samen landis, makand na mention in his disposition that he disponit them as Prince, the infeftment, alienation, or disposition, is of nane avail and may be reducit. [ Bailii ] Â A v B [1538] Mor 16219 27 Jun 1538 SCS Scotland Gif ony persoun be bund and oblist as sovertie for ony tutor, for faithfull administratioun in his office, and for compt and rekning, to be gevin be him of his intromissoun; the pupill, at his perfyte age, hes gude title and actioun to persew the sovertie for recoverie and redress of all sic thingis, in the quhilk he hes bene damnifyit be his tutor during his tutorie. [ Bailii ] Â John Melvill of Carnebie, v Agnes Strang [1539] Mor 623 12 Mar 1539 SCS Scotland There is ane difference betwix the decrete of arbiteris and the sentence or dome of a judge; for ane ordinar judge may put his decrete to executioun, and punish the partie disobedient thairto; but ane arbiter may not punish the partie that is contumax and disobedient to his deliverance, but gif he have special power gevin to him be the parties thairanent; in the compromit. And, therefore, ane sentence and decrete-arbitral beand gevin aganis ony partie, he aucht and sould fulfill and obey the samin, and has na place to persew for reduction thairof, gif he, beand of perfeit age, was sworn, and oblist in the compromit to stand at the decrete-arbitral to be gevin betwix him and his partie, be the arbiteris chosin betwix thame: And sicklike the parties are oblist to obey the decrete, and not reclame thairfra, gif in the compromit it was expresslie contenit, that quhat decrete sould be gevin betwix him and his partie, thay renunce all manner of appellatioun or reclamatioun thairfra, etiamsi sequatur laesio enormis, vel in maxima quantitate. Because the effect of arbitrie is, that the sentence thairof sall stand, and be obeyit, quhidder the samin is justlie gevin or not, swa that it be not gevin expresslie aganis the law, or be fraud or deceipt done and committit be ony of the arbiteris; for ilk arbiter sould be void of all fraud and guyle. [ Bailii ] Â Â A v B; SCS 25-Jan-1540 - [1540] Mor 843 Â Â Hamilton v Hamilton; SCS 11-Feb-1540 - [1540] Mor 662 Â Â Janet Auchinlech v James Stewart; SCS 18-Dec-1540 - [1540] Mor 339 Â Â Janet Blak v Andro Hamiltoun; SCS 1541 - [1541] Mor 662 Â Somerville v Hamilton [1541] Mor 8905 23 Jan 1541 SCS Scotland [ Bailii ] Â Somerville v Hamilton [1541] Mor 8905 23 Jan 1541 SCS Scotland [ Bailii ] Â Laird of Craigie v Hepburn [1541] Mor 6046 23 Jan 1541 SCS Scotland [ Bailii ] Â John Finlason v Ker [1541] Mor 7321 25 Jan 1541 SCS Scotland [ Bailii ] Â Rutherford v Earl of Bothwell [1541] Mor 12120 9 Feb 1541 SCS Scotland [ Bailii ] Â Tenants of N v Magistrates of Selkirk [1541] Mor 12121 11 Feb 1541 SCS Scotland [ Bailii ] Â Somerville v Hamilton [1541] Mor 14737 11 Feb 1541 SCS Scotland [ Bailii ] Â The Men of Selkirk v The Tenants of Kelso [1541] Mor 14738 13 Feb 1541 SCS Scotland [ Bailii ] Â Town of Selkirk v Tenants of Kelso [1541] Mor 16647 13 Feb 1541 SCS Scotland [ Bailii ] Â The Vicar of Kinghorn v The Laird of Seafield [1541] Mor 14022 13 Feb 1541 SCS Scotland [ Bailii ] Â Dickson v Veitch [1541] Mor 15783 16 Feb 1541 SCS Scotland [ Bailii ] Â P Gibsone v S Thomas Wauch [1541] Mor 16648 16 Feb 1541 SCS Scotland [ Bailii ] Â Earl of Bothwell v Bethune [1541] Mor 12122 17 Feb 1541 SCS Scotland [ Bailii ] Â The King and Sir William Heriot v The Sheriff of Fife [1541] Mor 7895 25 Feb 1541 SCS Scotland [ Bailii ] Â Laird Glenbervie v Laird Luss [1541] Mor 15835 1 Mar 1541 SCS Scotland [ Bailii ] Â Gourley v Spence [1541] Mor 16557 2 Mar 1541 SCS Scotland [ Bailii ] Â Â Gourlay v Spence; SCS 2-Mar-1541 - [1541] Mor 23 Â Â Earl of Errol v N; SCS 3-Mar-1541 - [1541] Mor 1347 Â The Lady Fascastell v The L of Blanerne [1541] Mor 10598 7 Mar 1541 SCS Scotland [ Bailii ] Â William Reid v The Inhabitants of The Sheriffdom of Ayr [1541] Mor 8023 7 Mar 1541 SCS Scotland [ Bailii ] Â Haliburton v Rutherford -2 [1541] Mor 14739 9 Mar 1541 SCS Scotland Spoliatus ante omnia Restituendus. [ Bailii ] Â Haliburton v Rutherford [1541] Mor 14723 9 Mar 1541 SCS Scotland What understood to be a Spuilzie. - What Damages allowed. [ Bailii ] Â Multiple Cases With Citation: [1541] Mor 14723 [1541] Mor 14723 9 Mar 1541 SCS Scotland [ Bailii ] Â Sir John Greenwalls v James Lawson [1541] Mor 14759 13 Mar 1541 SCS Scotland [ Bailii ] Â Janet Scot v Robert Blair [1541] Mor 12649 14 Mar 1541 SCS Scotland [ Bailii ] Â Mr Alexander Ogilvie v Tenants of N [1541] Mor 10849 14 Mar 1541 SCS Scotland [ Bailii ] Â Helen Douglas v The King's Advocate [1541] Mor 4683 15 Mar 1541 SCS Scotland [ Bailii ] Â Lindsay v Cheynes [1541] Mor 9055 22 Mar 1541 SCS Scotland [ Bailii ] Â John Millar v The Laird of Killarnie and Others [1541] Mor 14723 24 Mar 1541 SCS Scotland [ Bailii ] Â Millar v Lord Killairnie [1541] Mor 14741 24 Mar 1541 SCS Scotland [ Bailii ] Â Miller v The Laird of Cullernie [1541] Mor 12498 24 Mar 1541 SCS Scotland [ Bailii ] Â Hope-Pringle v Ker [1541] Mor 4658 20 Jun 1541 SCS Scotland What carried by Forfeiture. [ Bailii ] Â Johne Griersoun of Lag v Lord Zester [1541] Mor 14021 13 Jul 1541 SCS Scotland A judicial declaration, though extracted from the books of adjournal, found no sufficient probation, before a civil judge ad civilem effectum, if the party had protested; otherwise if he had not protested. [ Bailii ] Â Lord Borthwick v - [1541] Mor 3407 16 Jul 1541 SCS Scotland Gift of Non-entry. - Gift of Ward. [ Bailii ] Â Hoppringle v Ker [1541] 1 Brn 113 20 Jul 1541 SCS Scotland If the king dispone, in his minority, any of the lands annexed to the crown, and, after, revoke the same in Parliament, the same alienation is null of itself, and needeth no declarator; but, if lands come in his hands by forfeiture, recognition, or other casualty, and be disponed by him in his minority, the same alienation, being revoked in Parliament lawfully, ought and should have a special declarator of a judge conform thereto; without which, he to whom it was disponed cannot be put from his possession. [ Bailii ] Â A v B [1541] Mor 7544 24 Jul 1541 SCS Scotland Jurisdiction of Proprietors who are not the King's Vassals. - Jurisdiction of those who are infeft cum curiis. [ Bailii ] Â Edward Stewart v The Laird of Luss [1541] Mor 5114 28 Jul 1541 SCS Scotland The first donatar of ward, non-entry, &c. having executed a summons against a second donatar, was preferred to him, altho' the second had obtained first possession. [ Bailii ] Â Ogilvie v Restalrig [1541] Mor 14730 18 Nov 1541 SCS Scotland [ Bailii ] Â Alexander Leslie v M Johne Leslie [1541] Mor 16219 13 Dec 1541 SCS Scotland [ Bailii ] Â Bishop of Aberdeen v The Executors of The Late Bishop [1541] Mor 7934 18 Dec 1541 SCS Scotland [ Bailii ] Â A v B [1541] Mor 3425 19 Dec 1541 SCS Scotland [ Bailii ] Â Livingston v Wood [1542] Mor 13492 1542 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1542] Mor 13492 1542 SCS Scotland [ Bailii ] Â Dickson v Veitch [1542] Mor 16648 16 Feb 1542 SCS Scotland [ Bailii ] Â Douglas v Boig [1542] Mor 14725 2 Mar 1542 SCS Scotland [ Bailii ] Â Johne Haliburtoun v Helene Rutherfurd [1542] Mor 13490 9 Mar 1542 SCS Scotland [ Bailii ] Â Laird of Pitblado v M Johne Spens [1542] Mor 16649 15 Mar 1542 SCS Scotland [ Bailii ] Â Blackstock v Wilson [1542] Mor 12263 26 Mar 1542 SCS Scotland [ Bailii ] Â The Lord Yester v The Lord Arrane [1542] Mor 10598 6 May 1542 SCS Scotland [ Bailii ] Â Dobie v Glenbervie [1542] Mor 16648 16 May 1542 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1542] Mor 16648 16 May 1542 SCS Scotland [ Bailii ] Â Commendator of The Priory of St Andrews v Tenants [1542] Mor 12122 17 May 1542 SCS Scotland [ Bailii ] Â Kirkaldy v Pitcairn [1542] Mor 9367 19 May 1542 SCS Scotland [ Bailii ] Â Kincraigs v Ayton [1542] Mor 5388 23 May 1542 SCS Scotland [ Bailii ] Â Ramsay v Damperston [1542] Mor 2202 23 May 1542 SCS Scotland [ Bailii ] Â Ormston v Provost and Community of Edinburgh [1542] Mor 2265 25 May 1542 SCS Scotland [ Bailii ] Â The Provost of Queen'S College v The Laird of Buccleugh [1542] Mor 7934 25 May 1542 SCS Scotland [ Bailii ] Â Ormiston, The King'S Donatar, v The Burgh of Edinburgh [1542] Mor 3632 28 May 1542 SCS Scotland [ Bailii ] Â Laird of Lundie v Lord Innermeith [1542] Mor 16220 4 Jun 1542 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1542] Mor 16220 4 Jun 1542 SCS Scotland [ Bailii ] Â Lord Ogilvie v John Campbell [1542] Mor 13492 20 Jun 1542 SCS Scotland [ Bailii ] Â Margaret Jardane v Lord Somerville [1542] Mor 4684 22 Jun 1542 SCS Scotland [ Bailii ] Â Children of Forrest v LClerkington [1542] Mor 13903 24 Jun 1542 SCS Scotland [ Bailii ] Â Chirnside v Earl of Home [1542] Mor 12629 28 Jun 1542 SCS Scotland [ Bailii ] Â Fenton and Douglas v Johnston [1542] Mor 7321 28 Jun 1542 SCS Scotland [ Bailii ] Â Achans v Livingston [1542] Mor 16220 28 Jun 1542 SCS Scotland [ Bailii ] Â Innes v Stewart [1542] Mor 3081 1 Jul 1542 SCS Scotland [ Bailii ] Â Finlason v The Laird of Keir [1542] Mor 12418 9 Jul 1542 SCS Scotland [ Bailii ] Â Laird of Innes v Laird of Calder [1542] Mor 7175 13 Jul 1542 SCS Scotland [ Bailii ] Â Vicar of Kinghorn v Laird of Seafield [1542] Mor 14022 13 Jul 1542 SCS Scotland [ Bailii ] Â Cunningham v Cunningham [1542] Mor 14987 1 Dec 1542 SCS Scotland [ Bailii ] Â The Poor Wife of Broughton v M'Call [1542] Mor 12264 9 Dec 1542 SCS Scotland [ Bailii ] Â A v B [1542] Mor 4717 19 Dec 1542 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1543] 1 Brn 114 1543 SCS Scotland [ Bailii ] Â The Laird of Fyvie v The Laird of Pitsligo [1543] 1 Brn 114 1543 SCS Scotland [ Bailii ] Â The Earl of Morton v The Queen and Her Tutor [1543] 1 Brn 114 1543 SCS Scotland [ Bailii ] Â Bastard'S Executors v Douglas [1543] Mor 14747 12 Feb 1543 SCS Scotland [ Bailii ] Â Executors of A Bastard v Douglas [1543] Mor 14744 21 Feb 1543 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1543] Mor 14745 23 Feb 1543 SCS Scotland [ Bailii ] Â Rhind v May [1543] Mor 14745 23 Feb 1543 SCS Scotland [ Bailii ] Â Wauchope v Borthwick [1543] Mor 14745 26 Feb 1543 SCS Scotland [ Bailii ] Â Glentoris v Kirkpatrick [1543] Mor 8978 4 Mar 1543 SCS Scotland [ Bailii ] Â Dundas v Hog [1543] Mor 14731 6 Mar 1543 SCS Scotland [ Bailii ] Â Lord Bothwell v Flemings [1543] Mor 7322 9 Mar 1543 SCS Scotland [ Bailii ] Â Campbell v Laird of Grange [1543] Mor 14048 20 Mar 1543 SCS Scotland [ Bailii ] Â Campbell v Grange [1543] Mor 4717 20 Mar 1543 SCS Scotland [ Bailii ] Â Earl of Morton v Lochleven [1543] Mor 16479 12 Apr 1543 SCS Scotland [ Bailii ] Â The Queen v The Bishop of Aberdeen [1543] Mor 2545 5 May 1543 SCS Scotland [ Bailii ] Â King'S Advocate v Ld of Houston [1543] Mor 12674 16 Jun 1543 SCS Scotland [ Bailii ] Â Lundie v Tenant [1543] Mor 4796 23 Jun 1543 SCS Scotland [ Bailii ] Â Crichton v Tenant [1543] Mor 14759 25 Jun 1543 SCS Scotland [ Bailii ] Â Crawford and Semple v Crawford [1543] Mor 5389 2 Jul 1543 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1543] Mor 7013 11 Jul 1543 SCS Scotland [ Bailii ] Â John Maxwell v Laird of Teeling [1543] Mor 7013 11 Jul 1543 SCS Scotland [ Bailii ] Â The Queen'S Advocate v The Earl of Crawford [1543] Mor 7013 12 Jul 1543 SCS Scotland [ Bailii ] Â Wedderburn v Hay [1543] Mor 10503 23 Jul 1543 SCS Scotland [ Bailii ] Â Sinclair v Convent of Holyroodhouse [1543] Mor 13993 27 Jul 1543 SCS Scotland [ Bailii ] Â The Queen and Edward Stewart v George Colquhoun [1543] Mor 5113 31 Jul 1543 SCS Scotland [ Bailii ] Â Stewart v Laird of Luss [1543] Mor 13251 31 Jul 1543 SCS Scotland [ Bailii ] Â Tenants of Cockburnspath v Lord Home [1543] Mor 2724 7 Dec 1543 SCS Scotland [ Bailii ] Â Alexander Adamsoun v John Johnstoun [1544] Mor 16649 20 Mar 1544 SCS Scotland [ Bailii ] Â John Weir v John Bannantyne of Corhouse [1545] Mor 3417 1545 SCS Scotland [ Bailii ] Â Johne Flemynge v John Dicksone [1545] Mor 16221 9 Feb 1545 SCS Scotland [ Bailii ] Â Lord Methven v Lord Gray [1545] Mor 3417 4 Mar 1545 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1545] Mor 3417 4 Mar 1545 SCS Scotland [ Bailii ] Â Â George Earl of Huntly, Supplicant; SCS 13-Mar-1545 - [1545] Mor 454 Â A v B [1545] Mor 16221 22 Mar 1545 SCS Scotland [ Bailii ] Â Provost of Queen'S College v Buccleugh [1545] Mor 8021 25 May 1545 SCS Scotland [ Bailii ] Â Marion Touris v The Laird of Wemyss [1545] Mor 7414 13 Jun 1545 SCS Scotland [ Bailii ] Â The King v David Balfour [1545] Mor 8024 9 Jul 1545 SCS Scotland [ Bailii ] Â The Tenants of Colberspeth v Lord Home, and Co [1546] 1 Brn 115 1546 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1546] 1 Brn 115 1546 SCS Scotland [ Bailii ] Â A v B [1546] Mor 3828 1546 SCS Scotland [ Bailii ] Â Hamilton v The Laird of Gaston [1546] Mor 9055 1546 SCS Scotland [ Bailii ] Â The Queen'S Advocate v David Weems [1546] 1 Brn 115 1546 SCS Scotland [ Bailii ] Â The Laird of Halton v Andrew Murray [1546] 1 Brn 115 1546 SCS Scotland [ Bailii ] Â The Queen'S Advocate v Wemyss [1546] Mor 9089 1 Mar 1546 SCS Scotland [ Bailii ] Â Â Duncan Dundas, Donatour, v James Moffet; SCS 24-Mar-1546 - [1546] Mor 1343 Â A v B [1546] Mor 10598 24 Mar 1546 SCS Scotland [ Bailii ] Â The Bishop of Murray v The Provost of St Andrews [1546] Mor 9104 13 May 1546 SCS Scotland [ Bailii ] Â John Home of Blackader v Ninian Chernside [1546] Mor 2023 31 Jul 1546 SCS Scotland [ Bailii ] Â Keir v Marjoribanks [1546] Mor 5036 31 Jul 1546 SCS Scotland [ Bailii ] Â The Queen v Minister of Scotlandwell [1546] Mor 12122 11 Dec 1546 SCS Scotland [ Bailii ] Â Patrick Hepburne v Elizabeth Ker [1547] Mor 16221 28 Jan 1547 SCS Scotland Ane minor havand blanche landis, and also havand ward landis, fallin in the superiour's handis be ressoun of ward, his tutor of the blanche landis aucht on na wayis be ressoun of tutorie to have the keiping of the minor's persoun, because the samin pertenis to the superiour, his donatar or assignay; and the superiour, or ony cled with his richt, is preferrit in this cais to the tutor, albeit he be not narrest to succeid to the pupill. [ Bailii ] Â Multiple Cases With Citation: [1547] Mor 16221 [1547] Mor 16221 28 Jan 1547 SCS Scotland Patrick Hepburne v Elizabeth Ker. [1547] Mor 16221 (28 January 1547) and Alexander Sinclair v Jonet Gordoun. [1547] Mor 16221 (10 Feb 1547) [ Bailii ] Â Alexander Sinclair v Jonet Gordoun [1547] Mor 16221 10 Feb 1547 SCS Scotland The tutor testamentar, beand man or woman, sould be preferrit to the tutor of law; and thairfoir, gif thair be ane tutor testamentar, the tutor of law has na place; and siclike, the lauchfull tutor, or tutor of law, sould be preferrit to the tutor dative; that gif thair be ony tutor of law lauchfullie, servit and admittit, the tutor dative sould na wayis be admittit. [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND [1547] 1 Brn 115 10 Mar 1547 SCS Scotland N. sought to be served heir to his father in certain lands; and the inquest served him negatively; because he neither produced his father's charter nor sasine. This service was craved by him to be reduced, because he produced before the Lords a decreet of theirs; whereby they had decerned the superior of the same lands to infeft the pursuer's grandsire in them, to be holden blench. Item, Another decreet wherein the same superior did judicially confess that he had infeft the pursuer's father in the same lands, conform to the tenor of the first decreet, with a precept of sasine of the said superior's for giving of sasine to the pursuer's father. More, a decreet of transumpt of a prothecal before the commissary of Dunkeld, wherein was contained a sasine given by virtue of the former precept of the superior's. Ex his judiciis licet nullum instrumentum publicum extaret. The Lords reduced the service and retour. [ Bailii ] Â Ogilvie v - [1547] Mor 13441 15 May 1547 SCS Scotland In causa redemptionis certarum terrarum, mota per---Ogilvie contra---, Domini decreverunt, terras non esse legitime redemptas, ex eo quod reversio continebat pecunias dandas debere esse, boni auri et argenti, et instrumentum consignationis et numerationis continebat bonam partem summae in reversione contentam fuissie, in lie placks Scots, quae non sunt de bono auro nec argento, et reversiones sunt juris stricti, et in specie impleri, et sic si continueret erversio, summam, pecnuiae in obulis, non liceret in quacunque alia pecunia auri vel argenti solutionem facere. [ Bailii ] Â John Cultar v John Logan [1547] Mor 12045 6 Jun 1547 SCS Scotland In actiounis of spuilzie or ejectioun, gif the defendar use and propone ane peremptour exceptioun that he intromettit with the landis, gudis and geir alledgit spuilzeit be him, be ane just richt and titill, and it happin the samin exceptioun to be repellit be the Judge, the avail and quantitie of the spuilzie may be referrit to the persewar's aith; because the defendar, be proponing of that exceptioun, gratitit the committing of the spuilzie and ejectioun. [ Bailii ] Â Cutler or Sinclair v Wauchope [1547] Mor 5407 16 Jun 1547 SCS Scotland In ane action of spuilzie movit be John Cutler in ---, against Isobella Wauchope, relict quondam Jacobi Logan in --, the Lords decernit, that the said John Cutler aught na herezeld to her, because his father that died had but four acres or thereby of land of the said Isobel, lying beside ---, and dwelt thereupon, and was not husband; and the laws of this realm require ad hoc quod aliquis solvat herezeldam, quod sit husbandus sedens et moriens super terram alicujus liberi hominis, et quod ad minus tenuerit de eo octavam partem unius davatae terrae, (four pleuchs of land;) et in casu nostro dicti Joannis pater mortuus, nec sedebat tempore sui decessus super dictam terram, nec tantam tenebat terram; et sic domini decreverunt herezeldam non solvendam, et ideo condemnarunt in spolio dicto, equi ut herezeldae capti, ipsam Isabellam captricem ejusdem. [ Bailii ] Â The Laird of Merchiston v The Goodman of Wrights-Houses [1548] Mor 15625 21 Jan 1548 SCS Scotland In an action of spuilzie of teinds between the Laird of Merchiston and the Goodman of Wrights-houses, it was alleged, That the pursuer could not pursue for the whole teinds, because his libel bore, that he was only in possesion of a part of them. The Lords found, quod possessio partis rei inducat possessionem totius, ut de spolio totius possit agi; nam quemadmodum per apprehensionem unius partis fundi, apprehendi censetur totum; so, by apprehending of possession of a part of these teinds, the pursuer censebatur fuisse in possessione totarum decimarum. [ Bailii ] Â Lady Seton v Cockburn [1548] Mor 9089 12 Feb 1548 SCS Scotland No privilege where the process is founded upon the predecessor's deed. - Nor where action was commenced against the defunct. - Nor where the Minor is the first provoker. [ Bailii ] Â Fleming v Ker [1548] Mor 13493 17 Feb 1548 SCS Scotland A gift of non-entry was made, and thereafter an heir was seryed and retoured. The service and retout being reduced, the gift revived. [ Bailii ] Â Abbot of Paisley v Crichton [1548] Mor 7322 1 Mar 1548 SCS Scotland The Lords, by interlocutor, decerned them competent judges to proceed against Mr William Crichton, priest of St Giles's kirk, accused before them for baratry; because, as was alleged, he impetrate the Bailie of Dunkeld in Rome without license of the Queen or Governor, contrary to the act of Parliament; notwithstanding he alleged he ought not to answer before them, by reason that he was clerk, and a kirkman, and the Lords were but temporal judges. The Abbot of Paisley was his contrary party, and the Queen's Advocate, and others, dissented to the interlocutor. [ Bailii ] Â Sir Stephen Culross v John Balvaird [1548] Mor 3877 14 Mar 1548 SCS Scotland If there be a Co-executor. - If the Executor die before obtaining Sentence. - Every creditor may take decree, and the defence of exhaustion will be reserved contra executionem. [ Bailii ] Â Queen's Advocate v - [1548] Mor 14421 16 Mar 1548 SCS Scotland Tenor of the Brieve. - Form of proceeding. - Reduction of Service. - Can a Service be stopped by an offer to prove a nearer Heir? [ Bailii ] Â S William Hamiltoun, The Quenis Grace's Donatour, v - [1548] Mor 8518 16 Mar 1548 SCS Scotland The simple avail may not be demanded from the heir, until he be entered, if he be minor, because he may decease before the wish of the ward. [ Bailii ] Â Janet Montgomery v John Hamilton [1548] Mor 14731 22 Mar 1548 SCS Scotland In actions of spuilzie and ejection, the pursuer ought and should libel possession, and violent ejection, and prove them both sufficiently; and it is not requisite that he libel any title: But if he libels a title with his possession, it is not necessary to prove the same, but ought and should show the same, quia tenetur ostendere, sed non probare. [ Bailii ] Â Mr John Henryson v James Henryson of Fordel (No 1) [1548] Mor 8913 9 Jun 1548 SCS Scotland Minor's privileges. - Oath. - Process at a minor's instance to sell land for payment of his debt. - Privilegiatus contra privilegiatum. - How far liable for goods and money furnished to him. - And for money borrowed by his tutor. - May chuse the place of his residence. - Entitled to examine the state of his affairs. - Can a minor pupil contract marriage? - Can a minor be a tutor? - An arbiter? - or a Commissioner of Supply? [ Bailii ] Â Mr John Henryson of v James Henryson of Fordel (No 2) [1548] Mor 8913 9 Jun 1548 SCS Scotland Minor's privileges. - Oath. - Process at a minor's instance to sell land for payment of his debt. - Privilegiatus contra privilegiatum. - How far liable for goods and money furnished to him. - And for money borrowed by his tutor. - May chuse the place of his residence. - Entitled to examine the state of his affairs. - Can a minor pupil contract marriage? - Can a minor be a tutor? - An arbiter? - or a Commissioner of Supply? [ Bailii ] Â A v B [1548] Mor 16222 19 Dec 1548 SCS Scotland Ane woman may be gevin and constitute be the King tutrix dative, speciallie the mother to the dochter or sone. [ Bailii ] Â Abbot of Holyroodhouse v The Laird of Inverleith [1549] Mor 10142 20 Jan 1549 SCS Scotland Gif the landis wer lyand waist be the deceis of his tenentis labouraris thair-of, quha wes ather slane be the enemie, or deceist be the pestilence; or gif ony multitude or armie, not beand enemeis bot confederatis of this realme, or of our Soverane Lady is awin liegis, eates, be oppin force and violence, cornis, or destroyis, reivis and takis away the samin cornis. [ Bailii ] Â L of Merchiston v Napier of Wrightshouses [1549] Mor 14731 21 Jan 1549 SCS Scotland One being in possession of any part of teinds, by virtue of any right or title which he has to the whole, may call and pursue for spuilzie of the whole; because possession of one part in this case induces possession of the whole. [ Bailii ] Â A v B [1549] Mor 7323 1 Feb 1549 SCS Scotland The Lordis of Sessioun alanerlie ar jugeis competent to all actiounis and pleyis betwix ony privie persounis concerning the Kingis privileges; richt, or giftis. [ Bailii ] Â Â Decree Arbitral; SCS 12-Feb-1549 - [1549] Mor 643 Â Laird of Durie v Stephen Duddingston [1549] Mor 14735 19 Feb 1549 SCS Scotland If a tenant or possessor of any room set to him with steelbow goods being ejected or spuilzied of his possession or goods, the action of spuilzie concerning the possession and restitution thereof pertains to the said tenant's master, but the action of spuilzie concerning the steelbow goods pertains to the said tenant allenarly, because the same is his own by nature of the contract of steelbow, and was in his possession, and not in his master's. [ Bailii ] Â Home v Hepburn [1549] Mor 10033 22 Mar 1549 SCS Scotland In causa Georgius Home de Broxmouth contra Jacobum Hepburn de Kirklandhill, Dominum de Waddel et alios duos penes 4 lib. monetae Scotiae sibi promiss. per illos pro portionibus, viribusque, casu quo, infra certum tempus non deliberaverunt dicto Georgio quendam Anglum ad personam ipsius Georgii, in qua re ipsi defecerunt et exceperunt, quod dicta summa apposita erat nomine paenae adjecta, et quod de practica Scotiae paenae non prestantur nisi quatenus interest, et ipsi offerebant interesse actoris in hoc casu, et ejus liquidationem petierunt ab eo ipso; quia hoc casu paenam simpliciter petebat. Interlocuti sunt domini in re presenti, penes deliberationem angli promissam sub paena, hanc paenam praecise peti posse in odium anglorum, in favorem republicae, nec actorem cogendum accipere interesse, cumque in hoc casu difficillima foret probatio ipsi actori. Et ita definitive condemnarunt reos in dicta paena, licet regulariter, extra hunc casum, de practica regni, paenae conventionales non possunt exigi, nisi quatenus interest actores, quia sapiunt quendam usuram et inhonestum questum, quod de jure canonico vide in cap. "Suam," exa. de paenis, et in cap. "Abbas," exa. de iis quae vis metusve causa gesta sunt. [ Bailii ] Â L Drummound v Robert Steuart [1549] Mor 16565 28 Mar 1549 SCS Scotland Gif ony man sellis or annalzies landis heritablie, or settis the samin in tak and assedatioun to ane uther, titulo oneroso, or with general clause of warrandice alanerlie, he may not be compellit to warrand the samin fra ward, releif or non-entres; because na persoun may be callit and convenit for warrandice of ony landis annalzeit and disponit be him, fra ward, releif or non-entres, except he be speciallie and expreslie bund and oblist thairto; because ward, releif, and non-entres pertenis to the superiour be the commoun law of this realme, fra the quhilk na man is exemit, and sould be knawin to all our soverane Lordis lieges; and thairfoir the uther sould impute it to himself, gif he, not makand special provisioun heiranent, incurris ony skaith throw his awin negligence and inexcusabill ignorance. [ Bailii ] Â Ramsay of Denoon v Stewart [1549] Mor 13815 28 May 1549 SCS Scotland Though a tacksman cannot maintain his possession against the superior during the ward, yet he cannot be summarily removed, but must be warned in common form. [ Bailii ] Â Laird of Dunnoone v Robert Stewart [1549] Mor 3407 28 May 1549 SCS Scotland Superior of ward lands may remove tenants without declarator, but not in case of nonentry. [ Bailii ] Â Auld Town of Aberdeen v New Town [1549] Mor 8026 1 Jun 1549 SCS Scotland The Auld Town of Aberdeen got charges against the Provost, Bailies, Council, merchants and craftsmen of the New Town of Aberdeen, for finding of lawburrows to them under several pains respectively: And in like manner the Laird of Ferne got charges against the Provost, Bailies, and Council of Rutherglen, for finding lawburrows to them, in June 1595, and the year preceding, one Crichton against Sanquhar. [ Bailii ] Â Laird of Blairquhan v Duncan Crawfurd [1549] Mor 6419 3 Jun 1549 SCS Scotland Gif ony man makis warning to ane uther, to flit and remove fra ony landis or possessioun, and, efter the making of the samin, takis and ressavis fra him ony maillis of the samin landis, of ony termis then bypast, and exoneris and dischargis him thairof, he may not persew him to remove fra the saidis landis be resoun of the foirsaid warning: And gif he quha is warnit removis not, the maker of the warning may not call nor persew him for violent occupatioun; because, be ressaving of the maillis foirsaid, he ratyfyit and approvit him tenent, and tacite past fra the said warning [ Bailii ] Â Abbot of Holyroodhouse v Mr John Monypenny [1549] Mor 10143 19 Dec 1549 SCS Scotland Teind where the Stock is destroyed. - Multure where the Ground is destroyed. [ Bailii ] Â A v B [1550] Mor 16649 5 Feb 1550 SCS Scotland In an action for delivering of an obligation, for proving thereof was an instrument produced; to the which were only three women witnesses, which was thought insufficient, because there was no man inserted therein [ Bailii ] Â Agnes Johnstoun v James Johnstoun Hir Sone [1550] Mor 16222 1 Apr 1550 SCS Scotland The mother may be chosin and electit to be curatrix to hir awin bairn, quhidder scho wes chosin tutrix testamentar or not. [ Bailii ] Â Uuphame Balfour and Her Dochteris [1550] Mor 16222 2 Apr 1550 SCS Scotland Curatouris beand lauchfullie chosin be ony minor, sould give thair aith befoir a Judge, the time of thair electioun, of leill and trew administratioun in thair office: and forder, thay sould find cantioun for the samin effect, gif the minor be furth of the realme. Ane woman may be gevin be a Judge, curatrix to hir awin bairn, speciallie ad negotia, and not ad lites, scho find and cautioun for compt and rekning, and makand faith for leill and trew administratioun in hir office. [ Bailii ] Â Multiple Cases With Citation: [1550] Mor 16222 [1550] Mor 16222 2 Apr 1550 SCS Scotland [ Bailii ] Â John Wallace v Sibilla Cathcart [1550] Mor 6420 20 Jun 1550 SCS Scotland Service or good deed received from the husband, annuls a warning previously given to him; and his wife after his death cannot be removed upon that warning. [ Bailii ] Â A v B [1550] Mor 10598 24 Jul 1550 SCS Scotland Possessio precaria gevin be tolerance, may be revokit, stoppit, or interruptit be him that gave or grantit the samin, quhen and in quhat leasum maner he pleasis. [ Bailii ] Â Multiple Cases With Citation:[1550] Mor 10598 [1550] Mor 10598 24 Jul 1550 SCS Scotland [ Bailii ] Â A v B [1550] Mor 7323 31 Jul 1550 SCS Scotland The saidis Lordis of Counsal are only jugeis competent to the reductioun of all actiounis of takkis and assedatiouns set for liferent, and sufferis na uther jugeis within this realme to procede thairupon, albeit the samin be of teindis or uther dewtie pertening to the kirk. [ Bailii ] Â Multiple Cases With Citation: [1550] Mor 7323 [1550] Mor 7323 31 Jul 1550 SCS Scotland [ Bailii ] Â The Tutor of Pitcur v Lord Gray [1550] 1 Brn 116 16 Dec 1550 SCS Scotland In an action, pursued by the Tutor of Pitcur against the Lord Gray, for burning of Dundee, it was observed, that, in praediis urbanis, three quarters being bounded in the libel, it was sufficient, though the fourth quarter was not bounded nor expressed [ Bailii ] Â A Frenchman v An Englishman [1550] Mor 7323 17 Dec 1550 SCS Scotland The Lordis of Counsal ar jugeis competent betwixt stranger and stranger, in all civil actiounis, etiamsi agatur de rebus extra regnum per eos emptis vel conductis, and sould decern and judge thairanent conform to the commoun law, and not efter the municipal law of this realme. [ Bailii ] Â A v B (No 1) [1550] Mor 10598 17 Dec 1550 SCS Scotland In all summoundis of spulzie of ony gudis and geir, possessioun beand libellit be vertue of ane titill, the titill aucht to be producit. [ Bailii ] Â A v B (No 2) [1550] Mor 10599 17 Dec 1550 SCS Scotland All summoundis of teindis, possession being libellit as ane part of the patrimonie of the benefice, it is sufficient to produce inhibitioun for verifying of the titill. [ Bailii ] Â Tutor of Congilton v The Lady [1550] Mor 16222 18 Dec 1550 SCS Scotland In an action pursued by the tutor of Congilton against the Lady, excepted by her, no process at the tutor's instance, because he had not found caution; which exception was sustained. [ Bailii ] Â John Adamson v John Henrisone [1551] Mor 13442 20 Jan 1551 SCS Scotland [ Bailii ] Â Drummond v Bisset [1551] Mor 12381 15 Feb 1551 SCS Scotland [ Bailii ] Â The Laird of Weymis v James Clepan [1551] Mor 16223 18 Feb 1551 SCS Scotland [ Bailii ] Â A v B [1551] Mor 9288 12 Mar 1551 SCS Scotland [ Bailii ] Â A Spaniard v Tenant, and Co [1551] Mor 14725 27 Mar 1551 SCS Scotland [ Bailii ] Â Lady Angus v Ker [1551] Mor 9056 28 Jun 1551 SCS Scotland [ Bailii ] Â Laird of Cowdenknows v Tenant of Didiston [1551] Mor 16457 23 Jul 1551 SCS Scotland [ Bailii ] Â Ld Calder v Sheriff of Nairn [1552] Mor 7295 24 Feb 1552 SCS Scotland [ Bailii ] Â Hatton v Murray [1552] Mor 4658 25 May 1552 SCS Scotland [ Bailii ] Â Ld Kinfawns v Ld Craigie [1552] Mor 10337 1 Jul 1552 SCS Scotland [ Bailii ] Â Tutor of Pitcur v Lord Gray [1552] Mor 2244 20 Jul 1552 SCS Scotland [ Bailii ] Â George Gibson v Thomas Ker [1552] Mor 4145 16 Nov 1552 SCS Scotland [ Bailii ] Â Home v Scot [1552] Mor 14023 16 Nov 1552 SCS Scotland [ Bailii ] Â Â A v B; SCS 24-Nov-1552 - [1552] Mor 785 Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND [1552] 1 Brn 116 6 Dec 1552 SCS Scotland It is enough to prove one heir to his father, &c. by production of a decreet given either with him or against him as heir to his father, &c. though there be neither retour nor sasine shown. [ Bailii ] Â Laird of Rankellor v Lord Lindsay [1552] Mor 16457 13 Dec 1552 SCS Scotland [ Bailii ] Â James Davidsone v Alexander Studeman [1553] Mor 16223 1 Feb 1553 SCS Scotland [ Bailii ] Â Gorthie v Lord Methven [1553] Mor 16224 13 Feb 1553 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1553] Mor 16224 13 Feb 1553 SCS Scotland [ Bailii ] Â George Gorthib v Lord Methven [1553] Mor 16557 28 Feb 1553 SCS Scotland [ Bailii ] Â Earl of Morton v Lady Morton [1553] Mor 8239 20 Apr 1553 SCS Scotland [ Bailii ] Â Bishop of Dunblane v - [1553] Mor 7180 27 Apr 1553 SCS Scotland [ Bailii ] Â Cuningham v Sempill [1553] Mor 3091 6 May 1553 SCS Scotland [ Bailii ] Â Cunningham v Lady Semple [1553] Mor 12650 6 May 1553 SCS Scotland [ Bailii ] Â A v B [1553] Mor 16224 10 Jun 1553 SCS Scotland [ Bailii ] Â A v B [1553] Mor 16224 5 Jul 1553 SCS Scotland [ Bailii ] Â - v Ld Gladstanes' Brother [1553] Mor 10504 6 Jul 1553 SCS Scotland No creditor may poind a tenant for the landlord's debt, so long as the landlord has moveable gear proper of his own, or lands to apprise; as was practised in the action betwixt the L. of M. and the L. of G. in a matter of double poinding. [ Bailii ] Â Andrew Law v Alexander Law [1553] Mor 2365 13 Jul 1553 SCS Scotland [ Bailii ] Â Laird of B v A Poor Boy [1553] Mor 15209 13 Jul 1553 SCS Scotland [ Bailii ] Â A v B [1553] Mor 8410 13 Jul 1553 SCS Scotland [ Bailii ] Â The Bishop of Dumblane v Janet Chisholme [1553] Mor 6407 28 Jul 1553 SCS Scotland [ Bailii ] Â Â Tenants of Dennie v Lords Fleming and Sanctjohn; SCS 5-Dec-1553 - [1553] Mor 623 Â The Laird of Cragyhall v - [1555] 1 Brn 116 28 Jan 1555 SCS Scotland [ Bailii ] Â Prior of St Andrew'S v Kinnier [1555] Mor 16225 1 Feb 1555 SCS Scotland [ Bailii ] Â Â Comptroller v Lord Semple; SCS 15-Feb-1555 - [1555] Mor 212 Â Murray v Merschall [1555] Mor 16226 11 Mar 1555 SCS Scotland [ Bailii ] Â Lethenton v Laird of Kirkstorphon [1555] Mor 3418 17 Mar 1555 SCS Scotland [ Bailii ] Â Lord Lethington v Lord Corstorphin [1555] Mor 16650 17 Mar 1555 SCS Scotland [ Bailii ] Â Â The Lady Fleming v Lord Fleming; SCS 5-Apr-1555 - [1555] Mor 624 Â Abbot of Balmerinoch v Grange-Durham [1555] Mor 1777 14 May 1555 SCS Scotland [ Bailii ] Â Marion Craig v James Mowat [1555] Mor 16480 4 Jul 1555 SCS Scotland [ Bailii ] Â David Sibbald v Lord Sinclair [1555] Mor 10504 12 Jul 1555 SCS Scotland [ Bailii ] Â A v B [1556] Mor 10504 14 Jan 1556 SCS Scotland [ Bailii ] Â Bishop of Murray v Laird of Kinfauns [1556] Mor 7291 14 May 1556 SCS Scotland [ Bailii ] Â The Tutor of Congilton v The Lady Congilton [1556] Mor 16226 16 Dec 1556 SCS Scotland [ Bailii ] Â Ld of Colston v Hope Pringle [1557] Mor 6539 15 Feb 1557 SCS Scotland [ Bailii ] Â Collington v Johnston [1557] Mor 5201 1 Mar 1557 SCS Scotland [ Bailii ] Â Bogle v Stewart [1557] Mor 3829 7 Mar 1557 SCS Scotland [ Bailii ] Â Sir John Mason v Janet Mason [1557] Mor 7180 5 Apr 1557 SCS Scotland [ Bailii ] Â Earl of Morton v The Duke [1557] Mor 14685 11 Apr 1557 SCS Scotland [ Bailii ] Â The Queen and Her Comptroller v Hamilton [1557] Mor 7855 28 May 1557 SCS Scotland [ Bailii ] Â Andro Wod of Largo v Elizabeth Monypenie [1557] Mor 16226 14 Jul 1557 SCS Scotland [ Bailii ] Â John Turner v Hector Blackader [1558] Mor 10505 24 Jan 1558 SCS Scotland [ Bailii ] Â Laird of Drumquhassil v Laird of Glenhegies [1558] Mor 9374 4 Feb 1558 SCS Scotland [ Bailii ] Â Laird of Drumquhassil v Laird of Glenhegies [1558] Mor 9375 28 Feb 1558 SCS Scotland [ Bailii ] Â Mathou Lillie v N Forret [1558] Mor 16226 28 Feb 1558 SCS Scotland [ Bailii ] Â Â David Thomsonr v William Chirnside; SCS 1-Mar-1558 - [1558] Mor 827 Â Parson of Muckarsie v Abercromby [1558] Mor 7935 26 Mar 1558 SCS Scotland [ Bailii ] Â The King v John Lindsay of Covington [1558] Mor 10149 1 Apr 1558 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1558] Mor 16227 9 May 1558 SCS Scotland [ Bailii ] Â Thomas Dischington v Mathou Hamiltoun [1558] Mor 16227 9 May 1558 SCS Scotland [ Bailii ] Â Dishington v Hamilton [1558] Mor 8913 9 May 1558 SCS Scotland [ Bailii ] Â Dishington v Hamilton [1558] Mor 8913 9 May 1558 SCS Scotland [ Bailii ] Â Dishington v M Hamilton [1558] Mor 16227 12 May 1558 SCS Scotland [ Bailii ] Â David M'Gill v Johne Laurestoun [1558] Mor 843 4 Jul 1558 SCS Scotland, Contract Gif ony man be maid assignay to ony actioun, assedatioun, or reversioun, and he agains quhome the samin is maid, befoir ony intimatioun thairof lauchfullie maid unto him, compone, transact, or agrie with the maker thairof, touching the contentis of the samin, and obtene his discharge, richt, or titil thairanent, he may not be callit or perseuit be the said assignay, be vertue of his assignation; but jure praeventionis is stoppit and secludit thairfra. [ Bailii ] Â A Dutchman v Lindsay [1558] Mor 11857 6 Jul 1558 SCS Scotland [ Bailii ] Â Lady Coluthie v Carnegie [1558] Mor 16650 6 Jul 1558 SCS Scotland [ Bailii ] Â Robert Henrison v James Fiddes [1558] Mor 14718 10 Jul 1558 SCS Scotland [ Bailii ] Â Â The Queen and The Abbot of Coupar, Donatour v The Laird of Duffus; SCS 31-Jul-1558 - [1558] Mor 846 Â James Stewart v The Queen and Her Comptroller [1559] Mor 4659 15 Feb 1559 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1559] Mor 4659 15 Feb 1559 SCS Scotland [ Bailii ] Â John Stewart v The Queen, and Her Comptroller [1559] Mor 4659 16 Feb 1559 SCS Scotland [ Bailii ] Â Stewart v Moubray [1559] Mor 13299 10 Apr 1559 SCS Scotland [ Bailii ] Â Elizabeth Hamilton v Marion Hamilton [1559] Mor 7323 15 Apr 1559 SCS Scotland [ Bailii ] Â Andro Rutherfurd v James Dempstar [1559] Mor 12629 7 Jun 1559 SCS Scotland [ Bailii ] Â Alexander Forbes of Pitsligo v Alexander Leslie of Wardis [1559] Mor 10599 27 Jun 1559 SCS Scotland [ Bailii ] Â John Crichton of Strathurd v N [1560] Mor 10505 12 Feb 1560 SCS Scotland [ Bailii ] Â Creichtoun v Creichtoun [1560] Mor 16228 22 Mar 1560 SCS Scotland [ Bailii ] Â The Laird of Ruthven v The Laird of Banff [1560] Mor 5619 31 Jul 1560 SCS Scotland [ Bailii ] Â John Chalmer v Agnes Lumsdew [1560] Mor 7324 19 Dec 1560 SCS Scotland [ Bailii ] Â Laird of Blair v Andrew Hamilton [1561] Mor 15836 11 Jan 1561 SCS Scotland Gif ony man bindis and obliges himself, in an contract betwix his son and ony woman, to put his son in fee of his landis, and the samen not being done be him, in his default, it happens the son to deceis, the marriage beand completit, his wife aucht and sould, be ressoun of the said contract and obligation, bruik and joise ane tierce of the saidis landis, like as scho may do, gif her husband had deceist last vest and seasit in fee thairof. [ Bailii ] Â Johne Scheill v Johne Gudelad [1561] Mor 3418 6 Feb 1561 SCS Scotland An inferior judge's decree being reduced on the head of iniquity, the party, at whose instance the reduction was obtained, was found thence-forth exempted from the jurisdiction of that judge, in all other causes. [ Bailii ] Â The Laird of Elphingstoun v The Lord Glamis [1561] Mor 5204 21 Mar 1561 SCS Scotland Gif the air of ony persoun that is deceist be callit for the deidis debtis auchtand be him the time of his deceis, he hes just actioun and titill to call the executouris that intromettit with the movabill gudis, to warrand and relieve him thairanent, in sa far as thay ar responsal de bonis defuncti. And thairfoir, gif the air be persewit for the saidis debtis, he sould have ane day assignit to him to call the executouris for his relief. [ Bailii ] Â Â Andrew Wardlaw v The Laird of Torrey's Heirs; SCS 21-Mar-1561 - [1561] Mor 1702 Â Â Barbara Logan v Roger Wod; SCS 26-Mar-1561 - [1561] Mor 339 Â Â Alexander Paterson v David Chieslaw; SCS 29-Mar-1561 - [1561] Mor 654 Â James Kincaid v Johne Johnstone of Cotefield, Tutor To James Kincaid of Brochtoun [1561] Mor 16228 2 Dec 1561 SCS Scotland The time of tutorie being endit and expyrit, the pupill, male or female, is at his awin fre will and libertie to passe quhair he pleisis; and gif the tutor thairefter haldis and detenis him, his narrest kinnismen hes just richt and title to cause him be put to libertie. [ Bailii ] Â Â Elizabeth Maxwell v John Walkinschaw; SCS 19-Dec-1561 - [1561] Mor 643 Â Lord Seyton v Earl of Monteith [1562] Mor 3722 27 Jan 1562 SCS Scotland A comprising was found null, because the lands lying within a regality, the denunciation was made, not at the head burgh thereof, but at the head burgh of the shire. [ Bailii ] Â The Laird of Traquair v Patrick Home [1562] Mor 5389 12 Mar 1562 SCS Scotland An heiress having no children, conveyed, by testament, her property away from her nearest of kin. They notwithstanding claimed heirship, and were found entitled to it. [ Bailii ] Â Â James Wilkie v Margaret Maver; SCS 4-May-1562 - [1562] Mor 654 Â Reidheuch v Reidheuch [1562] Mor 8999 14 May 1562 SCS Scotland Gif ony tutor raisis brevis, and causis the pupill be servit as air to his predecessour, or persewis in judgment ony actioun in the pupillis name, as air, nevertheless the pupill thairefter may refuse and renounce to be air. [ Bailii ] Â Lord Drummond v Wishart [1562] Mor 14081 17 Jul 1562 SCS Scotland In the summons of error pursued at the Queen's instance, and my Lord Drummond for his interest, against certain persons of inquest, and George Wishart of that Ilk, for his interest, it was alleged for the part of the Queen's Grace, and the said Lord Drummond, That the said inquest had manifestly and wilfully erred for the causes underwritten, eo quia vigore ejusdem retornaverunt et deliberaverunt quod dictus quondam Jacobus Wishart, pater praefati Georgii Wishart obiit ultimo vestitus et sasitus ut de feodo ad fidem et pacem nostram de totis et integris terris de Tor cum pertinen. cum molendino ejusdem cum suis pertinen.; nec non de totis et integris terris de N. et A. cum pertinen. jacen. in baronia de Kincardine, infra vicecomitatum nostram de Perth; et quod dict. Georgius est legitimus et propinquior haeres ejusdem quondam Jacobi Wishart patris sui de praefatis terris et quod dictae terrae de Tor cum molendino ejusdem nunc valent per annum 24 lib. 6 sol. et 8 d.; sed in rei veritate praefat terrae de Tor cum molendino ejusdem nunc valent per annum sicut tempore praefat. deservitionis nec non et continue ultra per spatium ultra quod memoria hominum non existit immediate dict, deservitionem preceden. per eosd. valuerunt et solverunt prout de presenti solvit annuatim 5 caldras farinae avenatiae, unam caldram hordei, 5 duodenas caponum, unum pinguem suem, et 20 solidas monetae; nec non et quolibet termino summa decem librarum nomine grassum veluti per eosd. durante tempore dicto per colonos, habitatores, et occupatores ejusmodi terrarum et molendini de Tor cum pertinen. solvebatur et solvitur, et sic computando solum modo pecunia caldrae farinae avenatiae ad decern et caldrae hordei ad decernduodecem capones ad duodecim solidos et pretium suis ad decern solidos prout mos est retornationis in similibus annis retroactis praefatae terrae, et molendinum valuerunt summa et solverunt quinquaginta lib. aut circiter et sic longe ultra praefatam summam 24 lib. 6 sol. et 8 d. in dicto retornato content. prout dictis personis plane constabat, quare retornantes ut supra, voluntarie et manifeste errarunt. Secundo, Retornaverunt et deliberaverunt, quod praefatae terrae de N. et A. tempore pacis valuerunt 5 lib. 13 sol. et 4 d., cum in rei vevitate dictae terrae tempore pacis valuerunt 9 lib. prout omnibus annis retroactis ultra quod memoria hominum habebatur et reputabatur prout ad huc habetur et reputatur fore et esse dicti valoris 9 librarum terrarum antiqui extentus et ad tot. lib. se extenderat et ita cammuniter durante praefato tempore, retornatus et taxat. in singulis retulis praefati vicecomitatus de Perth, prout notorie constabat praefatis personis inquisitionis; quapropter retornantes dictas terras tantum valuisse 5 lib. 13 sol. 4 den. tempore pacis manifeste et voluntarie errarunt. Tertio, Praefatae personae retornaverunt et deliberaverunt quod praefataeterae de N. et A. cum pertinen. valent nunc per annum, et annuatim valuerunt ultra quod memoria hominum non existit, valuerunt 9 caldras 13 bollas farinae avenatiae duas caldras et ceto bollas hordei et quinque duodenas caponum et quolibet termino 9 lib. nomine grassum praeter alia servitia veluti per singulis eisdem annis retroactis tam ante praefata deservitione quam post durante prefato tempore ultra memoria hominum per colonos et inhabitatores tamarri solvebatur et solvitur, ut notorie dictis personis inquisitionis constabat prefato tempore deservitionis, et sic quod dictaeterrae annuatim durante praefato tempore valuerunt et valent summam centurn librarum aut circiter et sic longe ultra prefatam summam 40 lib. prout praefatis personis tempore deservitionis constabat notorie, quapropter retornantes ut supra manifeste et notorie errarunt; et praeterea dictas personas et earum quaslibet per earum manifesto et voluntario errore praedicto paenas temere jurant, super assisa incurrisse et ob id in earum corporibus et bonis per jura er regni nostri consuetudine puniri debere. It was alleged for the part of the said inquest, and the said George for his interest, answering to the foresaid third reason, That the said inquest did no wrong in retouring of the said land, as it is contained in the same, because it has never been in use to have been in a retour, victual, poultry and grassums, nor other duties, nor yet reduce the same into a sum of silver; because the prices of victual have been seen different sometimes, sicklike victual as is alleged has been at 5s. the boll over head, some 6s., some 7s. and the price over head of the poultry, at 4d., and may, by chance, come to the same price again; and therefore, it were a dangerous matter to make a certain price for victual and poultry, since it is so uncertain by alteration of time; and also howbeit, sometimes envious persons will take land over their neighbours' heads, and will give more for it than it is worth, and at last leave the same for poverty; and also howbeit Lords' lands, or sicklike that over meikle are given to the world, will raise the mail, that the old tenants were wont to pay, and rack them to pay more for the land than they may, having a life to themselves, or that the lands are worth, or else will remove them therefrom; and howbeit they that have been in old possession, before they be removed, would bide and give more than they will win upon the said lands, and at the last leave the same for poverty, this is no cause why lands should be retoured to that avail; and also it were a great inconvenient and prejudicial practick, if every inquest should take inquisition of every man's rental, and what every man's land may give, before they form a brief, and made retour upon the same, which manner of retour has never yet been seen in this realm. And answered to the second reason, There is no relevant cause libelled, that the said inquest did any wrong in retouring the old extent, at said is, because there was no retour shown to them, nor other authentic or sufficicient evident, wherever the said lands were retoured, higher or of greater avail, neither of old extent nor of new, in any time bygone. Which allegeance, made for the part of the inquest, and the said George for his interest, was found relevant by the Lords; in respect of which, the said Lords repelled all the said reasons made for the part of the Queen's Grace, and the said Lord Drummond for his interest, and absolved the said inquest from all manner of wilful error and ignorance and decerned them and the said George quit from the petition of the said summons in all time coming, for the causes foresaid. [ Bailii ] Â James Rig v Tenants of N [1562] Mor 4197 30 Jul 1562 SCS Scotland A tack being let to a husband and wife, and longest liver of them two, their heirs or assignees, the Lords found, that the wife, after the husband's decease, could not assign it, except for her own lifetime. [ Bailii ] Â Wood v Cramond [1562] Mor 12650 18 Dec 1562 SCS Scotland Gif all the witnessis contenit in ane instrument be deceist, except ane, quha, with the Notar, alledgis the samin to be trew, the said instrument sould on na wayis be decernit to be false and feinzeit. [ Bailii ] Â Alexander Boyd v Robert Boyd [1563] Mor 6420 8 Jan 1563 SCS Scotland Warning beand made to ony tenent or occupiar of lands, quha of befoir was in possessioun of the saidis landis, and in use of payment, and doing of certane dewties and service thairfoir, efter the tenour of his tak and assedatioun; gif the maker of the warning, efter the making thairof, acceptis fra the tenent ony part of the said service, ariage, cariage, or uther dew service, the doing and acceptatioun thairof makis the tenent unremovabill for that zeir: Bot gif the tenent bruik and joise the saidis landis be virtue of ony tak or assedatioun, and he do his master ony service or dewtie quhilk is not contenit in the said tak and assedatioun, the doing and acceptatioun thairof is not helpful to the tenent, nor hurtful to the master; because the tenent was not oblist to do the samin. [ Bailii ] Â Johnston v Laird of Johnston [1563] Mor 10149 11 Feb 1563 SCS Scotland Gif ony persoun havand ane lauchful wife be callit and persewit in ony actioun or cause, as for reductioun of his infeftmentis, he hes na persoun to defend or stand in judgment be himself, or his procuratouris, gif he be denuncit our soverane Lordis rebel, and put to his horne, and not relaxit thairfra; and mairover his wife, albeit scho have special interes in the cause, as gif scho be conjunct fear of the saidis laudis, nather be hirself, nor be hir procuratour, sould be admittit to defend in the mater; because scho havand ane husband, zit naturallie livand, may not stand in judgment, except scho be authorizit be him, quhilk he cannot do be ressoun of the said horning. [ Bailii ] Â Laurence Simpson v Johne Zoung [1563] Mor 16565 14 Mar 1563 SCS Scotland Gif infeftment, alienatioun, or disposition be made with particular clausis of warrandice, fra wardis, releifis, and non-entres, and fra sic uther special caissis that may follow, togidder with ane general clause of warrandice, fra all uther thingis that may stop or mak impediment to him, to quhom the said infeftment is maid, to bruik peciablie the saidis landis at his pleasour; gif thair be ony sic thing as takkis or liferentis not contenit expresslie amang the saidis specialities of warrandice, na actioun of warrandice thairanent sould be gevin, notwithstanding the general clause foirsaid. [ Bailii ] Â The Laird of Drumlanark v Laird Cockpuile [1563] Mor 13579 23 Mar 1563 SCS Scotland That quhilk ane air aucht and sould give to his superiour the time that he enteris to his landis, is allanerlie the retourit maillis of the saidis landis; and as concerning the remanent maillis and profeitis of the saidis landis, by and attour the retourit maill thairof, the samin auch and sould pertene to the air; or gif thair be many heretrices female, the samine sould be equallie dividit amangis thame [ Bailii ] Â Robert Grahame v The Laird of Drylaw [1563] Mor 16228 2 Apr 1563 SCS Scotland Ane minor persewand ony action, not havand curatouris, may desire in judgment, and at the Bar, curatouris to be gevin to him ad lites, and thair namis to be insert with him for thair interes in the summoundis, and proces, albeit the samin summoundis be not intentit in thair namis for thair interes. [ Bailii ] Â John Macanqual v Geo Boswell [1563] Mor 636 14 May 1563 SCS Scotland [ Bailii ] Â The Bishop of Aberdeen v John Ogilvie [1563] Mor 7324 3 Jul 1563 SCS Scotland, Jurisdiction The Lordis of Sessioun allanerlie, and na uther judge, ar jugeis competent to actiounis of reductioun of infeftmentis, evidentis, or sasines, and of all actiounis of heritage betwix all the liegis of this realme, spiritual or temporal, and to all obligatiounis and contractis followand as accessory thairupon; except special provisioun be maid in the infeftment, that in cais of contraventioun of ony heid or clause contenit thairintil, the maker thairof, and his successouris, sall be jugeis competent, and tak cognitioun thairanent. [ Bailii ] Â The Master of Errol v N Keith [1563] Mor 5114 9 Jul 1563 SCS Scotland, Land Gif ony man obtenis ane gift of non-entres, and be vertue thairof raisis summoundis aganis the heritabill possessouris of the samin landis, and thairefter, pendente lite, deceissis, his air is preferrit to all uther persounis obtenand ane uther gift of non-entres of the samin landis, after the dait of the gift foirsaid. [ Bailii ] Â The Chapter of Glasgow v The Laird of Cessford [1563] Mor 10143 29 Jul 1563 SCS Scotland Weir standard betwixt this realme and Ingland, and the cornis of the bordouris beand schorne and stoukit, and the awneris thairof dar not leid nor put the samin in the barn zaird, for fear of burning thairof by the enemeis, gif the samin perish and rot for the maist part upon the fieldis, the tenentis awneris sould not be compellit to pay teind for the samin. [ Bailii ] Â The Thesaurare v Johne Kyle [1563] Mor 785 15 Nov 1563 SCS Scotland [ Bailii ] Â The Laird of Innerquharity v Ogiivie [1563] Mor 10429 7 Dec 1563 SCS Scotland A party who had deponed in a Court, that he had a tack in certain terms, and possessed in consequence; was not, in a subsequent removing, permitted to defend himself by a plea founded on terms of the task, contradictory to his oath. [ Bailii ] Â Â James Creychtoun v Martine Creychtoun; SCS 9-Nov-1565 - [1565] Mor 1702 Â Bryson v Somervill [1565] Mor 1703 17 Nov 1565 SCS Scotland, Crime, Family Anent the action pursued by Janet Bryson against Janet Somervill, and William Sharer, her son, for a spulzie committed by umquhil David Sharer, her husband, and herself, and their son being in company with them; it was alleged for the said William, That in time of the said spulzie committed by his father and mother, he was within the age of twelve years, and but alleged to be in company with his said father; and so not being doli capax, et in patria potestate, non potuit contrahere obligationem.-It was alleged by the said pursuer, that the said William was past ten years, and therefore might be called for the said spulzie, because he was doli capax, quia in proxima erat pubertati et malitia potuit supplere aetatem; neither the woman nor he could be excused, by the man being father to the boy, and husband, quia omnes in pari delicto parem paenam sustineant, et cum hisce actio ex maleficio orietur, omnes tenebat.-It was alleged by the said William, because the said pursuer alleged him to be of ten years and not fourteen, therefore he should be assoilzied: Whilk allegeance of the said pursuer was repelled; and the allegeance of the said defender admitted; and the said defender assoilzied frae the spulzie, for the causes foresaid.-It was alleged by the said Janet Somervill, That she should be assoilzied frae the said spulzie, because it was alleged in the pursuer's libel, that umquhil David Sharer her husband, and she in company with him, committed the said spulzie; so on noways should she be called after his decease, she neither being called after as heir, or executrix to him, but allenarly upon her own deed, done in company with her own husband in his time, he being her principal head: Which allegeance of the said Janet, defender, was admitted, and she affoilzied frae the said spulzie. The like was practiced before, in my Lady Crawfurd's case, who being pursued for the spulzie of, was absolved, because her husband was there; and my Lady Ratie, pursued by ane Bruce, was absolved for the samen reason. See Husband and Wife. [ Bailii ] Â Â William Seytoun v William Forbes; SCS 9-Jan-1566 - [1566] Mor 685 Â Â George Weir v The L of Lie; SCS 14-Jul-1566 - [1566] Mor 605 Â Laird of Cultmalindie v Lord Oliphant [1567] Mor 14726 5 Feb 1567 SCS Scotland [ Bailii ] Â Laird of Barnbugil v Hamilton [1567] Mor 8915 12 Feb 1567 SCS Scotland [ Bailii ] Â Laird of Barnbugil v Hamilton [1567] Mor 8915 12 Feb 1567 SCS Scotland [ Bailii ] Â Cuninghame v Drumquhassie [1567] Mor 7409 18 Feb 1567 SCS Scotland [ Bailii ] Â Cranston v Brown [1567] Mor 3172 20 Feb 1567 SCS Scotland [ Bailii ] Â Dalrymple v Kennedy [1567] Mor 16517 25 Feb 1567 SCS Scotland [ Bailii ] Â Lovat v Fraser [1567] Mor 3878 26 Feb 1567 SCS Scotland [ Bailii ] Â Lady Lovat v Frasers [1567] Mor 2189 26 Feb 1567 SCS Scotland [ Bailii ] Â Archibald Douglas, Parson of Douglas, v The Tenants Thereof [1567] Mor 7963 19 Mar 1567 SCS Scotland [ Bailii ] Â Haliburton v L Halton [1567] Mor 12747 7 Apr 1567 SCS Scotland [ Bailii ] Â Prior of Pluscardin v The Sheriff of Murray [1567] Mor 5204 5 Jun 1567 SCS Scotland [ Bailii ] Â Thomas Paterson v Andrew Urquhart [1567] Mor 8024 10 Aug 1567 SCS Scotland [ Bailii ] Â Charters v M'Duff [1567] Mor 8397 10 Nov 1567 SCS Scotland [ Bailii ] Â Anderson v Anderson [1568] Mor 3208 26 Mar 1568 SCS Scotland [ Bailii ] Â Archibald Lockhart v Ja Lockhart [1568] Mor 5115 2 Apr 1568 SCS Scotland [ Bailii ] Â Slewman v Town of Edinburgh [1568] Mor 7936 11 Jun 1568 SCS Scotland [ Bailii ] Â - v Crichton [1568] Mor 8518 1 Jul 1568 SCS Scotland [ Bailii ] Â Â The Countess of Argyle v Tenants of Dollar, and The Earl of Argyle; SCS 19-Dec-1573 - [1573] Mor 327 Â Glenebervie v Udney [1575] Mor 12123 20 Jan 1575 SCS Scotland [ Bailii ] Â Â Laird of Corstophine v The Laird of Lethingtoun; SCS 21-Jan-1575 - [1575] Mor 788 Â Thomas Huntar v Duncan Huntar [1575] Mor 16233 4 Feb 1575 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1575] Mor 16233 4 Feb 1575 SCS Scotland [ Bailii ] Â Laird of Bargeny v - [1575] Mor 12124 15 Feb 1575 SCS Scotland [ Bailii ] Â Dunbar v Crawfurd [1575] Mor 14741 21 Apr 1575 SCS Scotland [ Bailii ] Â Laird, of Collision v The Earl of Errol [1575] Mor 3605 3 Jun 1575 SCS Scotland [ Bailii ] Â Grange Durham v His Brother'S Reliot [1575] Mor 15165 7 Jun 1575 SCS Scotland [ Bailii ] Â Murray v Livingston [1575] Mor 6144 16 Jun 1575 SCS Scotland [ Bailii ] Â Â Murray and Tenants v Livingston; SCS 16-Jun-1575 - [1575] Mor 328 Â Lord Drummond v The Lady [1575] Mor 5386 10 Nov 1575 SCS Scotland [ Bailii ] Â Muirhead v Lawson [1575] Mor 14745 30 Nov 1575 SCS Scotland [ Bailii ] Â N Kilgour In Kirkaldie v N [1575] Mor 16233 2 Dec 1575 SCS Scotland [ Bailii ] Â Marjoribanks v Balfour [1575] Mor 14686 9 Dec 1575 SCS Scotland [ Bailii ] Â Hospital of Leith v Town of Kinghorn [1576] Mor 16651 11 Jan 1576 SCS Scotland [ Bailii ] Â Town of Leith v Town of Kinghorn [1576] Mor 16652 11 Jan 1576 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1576] Mor 16651 [1576] Mor 16651 3 Mar 1576 SCS Scotland [ Bailii ] Â King's Advocate v Prioress of Cauldstrem [1576] Mor 16651 3 Mar 1576 SCS Scotland [ Bailii ] Â M'William v Shaw [1576] Mor 9022 26 Jun 1576 SCS Scotland [ Bailii ] Â Â Livingston v Murray, The Same Parties; SCS 9-Jul-1576 - [1576] Mor 328 Â Kelwood v Earl of Cassillis [1576] Mor 14746 4 Dec 1576 SCS Scotland [ Bailii ] Â Turnbull v Hepburn [1577] Mor 9473 1577 SCS Scotland [ Bailii ] Â Bruce v - [1577] Mor 8979 24 Jan 1577 SCS Scotland [ Bailii ] Â Â Bruce v Smith; SCS 24-Jan-1577 - [1577] Mor 845 Â A v B [1577] Mor 16233 5 Feb 1577 SCS Scotland [ Bailii ] Â Lady Lovat v Lord Lovat [1577] Mor 9374 5 Apr 1577 SCS Scotland [ Bailii ] Â Forrester v Jardene [1577] Mor 5191 10 Dec 1577 SCS Scotland [ Bailii ] Â Johnston v - (3) [1577] Mor 8905 16 Dec 1577 SCS Scotland Whether liable to Penalties. - Whether liable to be imprisoned for Debt. - Whether capable of being a Messenger. - Whether he may be convened as a haver of Writs. - Whether Decree may pass against him. - Whether bound to depone on the verity of his Debt. - Power of the Court to prevent undue influence in chusing Curators. [ Bailii ] Â Borthwick v Archbishop of St Andrews [1578] Mor 10363 3 Dec 1578 SCS Scotland [ Bailii ] Â Cullernie v Laird of St Monance [1578] Mor 2963 12 Dec 1578 SCS Scotland [ Bailii ] Â Lady Giffane v L Caldwallis [1579] Mor 1813 21 Jan 1579 SCS Scotland [ Bailii ] Â Lindsay v Tenants [1579] Mor 6420 21 Jan 1579 SCS Scotland [ Bailii ] Â Lady Restalrig v The Laird of Restalrig [1579] Mor 3414 6 Feb 1579 SCS Scotland Divorce. - Failzie. - Redemption. - Extinction by Intromission. - Gift of Forfeiture. [ Bailii ] Â Cuningham v Ld Kerse [1579] Mor 12023 6 Feb 1579 SCS Scotland [ Bailii ] Â Cunningham v The Laird of Kerse [1579] Mor 9375 6 Feb 1579 SCS Scotland [ Bailii ] Â Johnston v Johnston [1579] Mor 4788 7 Mar 1579 SCS Scotland [ Bailii ] Â Nairn v Sutor [1579] Mor 12270 14 Mar 1579 SCS Scotland [ Bailii ] Â Tullibardine v Drummond [1579] Mor 8519 14 Mar 1579 SCS Scotland [ Bailii ] Â Forbes v Her Last Husband's Creditors [1579] Mor 5763 14 Mar 1579 SCS Scotland [ Bailii ] Â Lady Lenox v Lord Lovat [1579] Mor 5877 23 Mar 1579 SCS Scotland [ Bailii ] Â Gordon v - [1579] Mor 9369 10 May 1579 SCS Scotland [ Bailii ] Â Â Lady Baquhanan v The Laird; SCS 16-May-1579 - [1579] Mor 329 Â Little v Lintoun [1579] Mor 10319 23 Jun 1579 SCS Scotland [ Bailii ] Â A v B [1579] Mor 7938 17 Nov 1579 SCS Scotland [ Bailii ] Â Laird of Touch v Laird of Strathurd [1579] Mor 7542 16 Dec 1579 SCS Scotland [ Bailii ] Â Primrose v Lady Rossyth [1579] Mor 5980 20 Dec 1579 SCS Scotland [ Bailii ] Â - v Lord Ross [1580] Mor 7325 1 Mar 1580 SCS Scotland [ Bailii ] Â Abbot of Newbottle v Tenants [1580] Mor 9104 1 Mar 1580 SCS Scotland [ Bailii ] Â Lord Boyd v Abbot of Kilwinning [1580] Mor 13994 22 Apr 1580 SCS Scotland [ Bailii ] Â Earl of Morton v Scot [1580] Mor 15314 1 Jun 1580 SCS Scotland [ Bailii ] Â Bishop of Murray v The Laird of Wester Wemyss [1580] Mor 12097 1 Jun 1580 SCS Scotland [ Bailii ] Â Clark v Sinclair [1580] Mor 16458 1 Jul 1580 SCS Scotland [ Bailii ] Â Lady Polmaise v Tenants [1580] Mor 3026 13 Jul 1580 SCS Scotland [ Bailii ] Â - v Lord Sinclair [1580] Mor 14726 22 Jul 1580 SCS Scotland [ Bailii ] Â Dean of Murray v Coxton [1580] Mor 9360 24 Jul 1580 SCS Scotland [ Bailii ] Â Auchinleck v Gordon [1580] Mor 12382 26 Nov 1580 SCS Scotland [ Bailii ] Â Earl of Eglinton v Laird of Caldwall [1581] Mor 15026 1581 SCS Scotland [ Bailii ] Â Tweedie v Bell [1581] Mor 16079 12 Jan 1581 SCS Scotland [ Bailii ] Â Thomas Dickson v John C - [1581] Mor 3205 16 Jan 1581 SCS Scotland [ Bailii ] Â His Majesty'S Advocate v Esselmont [1581] Mor 7895 19 Jan 1581 SCS Scotland [ Bailii ] Â Stewart v Commendator of Paisley [1581] Mor 4045 1 Feb 1581 SCS Scotland [ Bailii ] Â Balfour v Commendator of Cambuskenneth [1581] Mor 9369 1 Feb 1581 SCS Scotland [ Bailii ] Â King's Advocate and Lady Kilsyth v Laird of Wedderburn [1581] Mor 2720 1 Feb 1581 SCS Scotland [ Bailii ] Â Lawson v The Magistrates of Edinburgh [1581] Mor 4811 28 Feb 1581 SCS Scotland [ Bailii ] Â The Lord Gray v His Tenents [1581] Mor 6421 1 Mar 1581 SCS Scotland [ Bailii ] Â Tutor of Cassillis v Lochinvar [1581] Mor 15183 1 Mar 1581 SCS Scotland [ Bailii ] Â Glencairn v Porterfield [1581] Mor 16080 1 Mar 1581 SCS Scotland [ Bailii ] Â Drummond v Forrest [1581] Mor 14727 1 Apr 1581 SCS Scotland [ Bailii ] Â Anderson v Kinneir [1581] Mor 3607 1 May 1581 SCS Scotland [ Bailii ] Â Treasurer of Edinburgh v The Comptroller [1581] Mor 6885 1 May 1581 SCS Scotland [ Bailii ] Â Lady Colluthie v Maxwell [1581] Mor 6036 1 May 1581 SCS Scotland [ Bailii ] Â Orme v Orme [1581] Mor 6897 1 May 1581 SCS Scotland [ Bailii ] Â Ramsay v Executors of Lady Cull [1581] Mor 3165 6 May 1581 SCS Scotland [ Bailii ] Â Arnot v Tenants [1581] Mor 7755 1 Jun 1581 SCS Scotland [ Bailii ] Â Glenham v Dunlop [1581] Mor 10633 1 Jun 1581 SCS Scotland [ Bailii ] Â Ld of Strathurd v Steven [1581] Mor 10364 1 Jun 1581 SCS Scotland [ Bailii ] Â Wallace v - [1581] Mor 16652 1 Jun 1581 SCS Scotland [ Bailii ] Â Scott v Kincaid [1581] Mor 9091 1 Jul 1581 SCS Scotland [ Bailii ] Â A v B [1581] Mor 6775 1 Dec 1581 SCS Scotland [ Bailii ] Â Menzies v - [1581] Mor 6854 1 Dec 1581 SCS Scotland [ Bailii ] Â Lady Athole v Commendator of Cupar [1581] Mor 10469 4 Dec 1581 SCS Scotland [ Bailii ] Â Fraser v Leslie [1581] Mor 12405 12 Dec 1581 SCS Scotland [ Bailii ] Â Monro v Wishart [1582] Mor 10337 1582 SCS Scotland [ Bailii ] Â A v B [1582] Mor 11608 1582 SCS Scotland [ Bailii ] Â Home v Laird of Bass [1582] Mor 9361 1582 SCS Scotland [ Bailii ] Â Ker v Ker [1582] Mor 9375 1582 SCS Scotland [ Bailii ] Â Laird of Wedderburn v Laird of Blackadder [1582] Mor 13781 1582 SCS Scotland [ Bailii ] Â Stranger Flemings v Burgesses of Edinburgh [1582] Mor 16652 1582 SCS Scotland [ Bailii ] Â Lady Essilmont v Her Tenants [1582] Mor 13783 1 Feb 1582 SCS Scotland [ Bailii ] Â Patrick M v Henry M [1582] Mor 3555 1 Feb 1582 SCS Scotland [ Bailii ] Â - v Dunbar [1582] Mor 13819 1 Feb 1582 SCS Scotland [ Bailii ] Â Laing v Scrymgeour [1582] Mor 15026 1 Mar 1582 SCS Scotland [ Bailii ] Â Vanse v Auchtertuile [1582] Mor 13494 1 Mar 1582 SCS Scotland [ Bailii ] Â Lord Monteith v Tenants [1582] Mor 8397 1 May 1582 SCS Scotland [ Bailii ] Â A v B [1582] Mor 12086 1 May 1582 SCS Scotland [ Bailii ] Â Douglas v Menzies [1582] Mor 2697 1 May 1582 SCS Scotland [ Bailii ] Â Laird of Gadzeard v Sheriff of Ayr [1582] Mor 9376 1 May 1582 SCS Scotland [ Bailii ] Â Laird of Ormiston v Laird of Calder [1582] Mor 9092 1 May 1582 SCS Scotland [ Bailii ] Â Stirling v White and Drummond [1582] Mor 7127 1 Jun 1582 SCS Scotland [ Bailii ] Â Pennycook v Cockburn [1582] Mor 5792 1 Jun 1582 SCS Scotland [ Bailii ] Â Pennycook v Cockburn [1582] Mor 5764 1 Jun 1582 SCS Scotland [ Bailii ] Â The Mistress of Gray v The Master [1582] Mor 5802 1 Jun 1582 SCS Scotland [ Bailii ] Â Lady Boyd v Ld Airth, and Co [1582] Mor 6013 1 Jun 1582 SCS Scotland [ Bailii ] Â His Majesty'S Advocate v Ferguson [1582] Mor 7895 1 Jun 1582 SCS Scotland [ Bailii ] Â Gordon v Earl of Errol [1582] Mor 8915 1 Jun 1582 SCS Scotland [ Bailii ] Â Dunbar v Enterkin [1582] Mor 11610 1 Jun 1582 SCS Scotland [ Bailii ] Â Stirling v White and Drummond [1582] Mor 1689 1 Jun 1582 SCS Scotland [ Bailii ] Â Gordon v Earl of Errol [1582] Mor 8915 1 Jun 1582 SCS Scotland [ Bailii ] Â King'S Advocate v Burnet [1582] Mor 3748 1 Jul 1582 SCS Scotland [ Bailii ] Â Fleming v Lord Fleming [1582] Mor 9105 1 Jul 1582 SCS Scotland [ Bailii ] Â Fleming v Lord Fleming [1582] Mor 9082 1 Jul 1582 SCS Scotland [ Bailii ] Â Damitston v Magistrates of Linlithgow [1582] Mor 16459 1 Jul 1582 SCS Scotland [ Bailii ] Â Semple v Noble [1582] Mor 7145 1 Jul 1582 SCS Scotland [ Bailii ] Â Lockhart v Lady Polmaise [1582] Mor 6833 1 Nov 1582 SCS Scotland [ Bailii ] Â Home v Home [1582] Mor 8905 1 Nov 1582 SCS Scotland [ Bailii ] Â Home v Home [1582] Mor 8905 1 Nov 1582 SCS Scotland [ Bailii ] Â Home v Homes [1582] Mor 10150 1 Nov 1582 SCS Scotland [ Bailii ] Â Laird of Dundas v Elphinston [1582] Mor 11075 1 Nov 1582 SCS Scotland [ Bailii ] Â Countess of Errol v Tenants [1582] Mor 7797 1 Dec 1582 SCS Scotland [ Bailii ] Â Earl of Bothwell v Maitland [1582] Mor 2399 1 Dec 1582 SCS Scotland [ Bailii ] Â Allardice v Erskine and Ramsay [1583] Mor 11646 1583 SCS Scotland [ Bailii ] Â The Laird of Craig v Ogilvie of Pourie [1583] 1 Brn 119 1583 SCS Scotland [ Bailii ] Â Laird of Bishopton v - [1583] Mor 5731 1583 SCS Scotland [ Bailii ] Â The Heritrix of Murray v The Tutor of Sanquhar [1583] 1 Brn 120 1583 SCS Scotland [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND (No 2) [1583] 1 Brn 118 1583 SCS Scotland [ Bailii ] Â Heiress and Representatives of Earl of Murray v Tutors of Sanquhar [1583] Mor 2266 1583 SCS Scotland [ Bailii ] Â George Knolls v Richard Irving [1583] 1 Brn 120 1583 SCS Scotland [ Bailii ] Â Craig v John Cockburn [1583] Mor 8980 1583 SCS Scotland [ Bailii ] Â Bothwel v The Bishop of Orkney [1583] 1 Brn 120 1583 SCS Scotland [ Bailii ] Â #Name [1583] 1 Brn 120 1583 SCS Scotland [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND (No 1) [1583] 1 Brn 119 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] 1 Brn 119 1583 SCS Scotland [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND (No 3) [1583] 1 Brn 118 1583 SCS Scotland [ Bailii ] Â #Name [1583] 1 Brn 119 1583 SCS Scotland [ Bailii ] Â Laird of Lochinvar v The Earl of Cassillis [1583] Mor 624 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] 1 Brn 120 1583 SCS Scotland [ Bailii ] Â Graham v Annandale [1583] Mor 15836 1583 SCS Scotland [ Bailii ] Â Graham v Annandale [1583] Mor 16081 1583 SCS Scotland [ Bailii ] Â Lady Essilmonth v Earl of Errol [1583] Mor 12046 1583 SCS Scotland [ Bailii ] Â Â Wallace v Scot; SCS 1583 - [1583] Mor 807 Â Maxwell v - [1583] 1 Brn 119 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] Mor 624 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] 1 Brn 118 1583 SCS Scotland [ Bailii ] Â A v B [1583] Mor 13263 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] 1 Brn 121 1 Feb 1583 SCS Scotland [ Bailii ] Â Roberton v Dundas [1583] Mor 7304 1 Feb 1583 SCS Scotland [ Bailii ] Â Ker v Ker [1583] Mor 14987 1 Feb 1583 SCS Scotland [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND. [1583] 1 Brn 121 1 Feb 1583 SCS Scotland [ Bailii ] Â Earl of Arran v Crawford [1583] Mor 14023 1 Feb 1583 SCS Scotland [ Bailii ] Â Earl of Crawford v Ogilvie [1583] Mor 2708 1 Feb 1583 SCS Scotland [ Bailii ] Â Gordon v Glenkindie [1583] Mor 5165 1 Feb 1583 SCS Scotland [ Bailii ] Â Hamilton v Crawford [1583] Mor 13784 1 Feb 1583 SCS Scotland [ Bailii ] Â Ker of Mersington v Ker of Shaw [1583] 1 Brn 121 1 Feb 1583 SCS Scotland [ Bailii ] Â Lundie v Gray [1583] Mor 12124 1 Feb 1583 SCS Scotland [ Bailii ] Â Laird of Craig v Laird of Powrie, Ogilvie [1583] Mor 5401 1 Feb 1583 SCS Scotland [ Bailii ] Â Laird of Knockdolian v Tenants of Parthick [1583] Mor 14540 1 Feb 1583 SCS Scotland [ Bailii ] Â Parishioners of Cumnock v Laird of Caprington [1583] Mor 7938 1 Mar 1583 SCS Scotland [ Bailii ] Â Hall v Peebles [1583] Mor 6539 1 Mar 1583 SCS Scotland [ Bailii ] Â Lord Sanquhar v Crichton [1583] Mor 16233 1 Mar 1583 SCS Scotland [ Bailii ] Â Knows v Irvine [1583] Mor 12125 1 Mar 1583 SCS Scotland [ Bailii ] Â Stewart v Stewart [1583] Mor 12098 1 Mar 1583 SCS Scotland [ Bailii ] Â - v Master of Gray [1583] Mor 9376 1 Apr 1583 SCS Scotland [ Bailii ] Â Sharp, Supplicant [1583] Mor 16234 1 Apr 1583 SCS Scotland [ Bailii ] Â Gadzearth v Sheriff of Ayr [1583] Mor 14422 1 Apr 1583 SCS Scotland [ Bailii ] Â Laird Gormock v The Lady [1583] Mor 16874 1 Apr 1583 SCS Scotland [ Bailii ] Â Ld Kenfauns v Ld Craigie [1583] Mor 16565 1 May 1583 SCS Scotland [ Bailii ] Â Ker v Ker [1583] Mor 12509 1 May 1583 SCS Scotland [ Bailii ] Â Fraser v - [1583] Mor 3607 1 May 1583 SCS Scotland [ Bailii ] Â Countess of Argyle v Sheriff of Murray [1583] Mor 12300 1 May 1583 SCS Scotland [ Bailii ] Â Beveridge v Inhabitants of Cupar [1583] Mor 9111 1 May 1583 SCS Scotland [ Bailii ] Â Broomfield v Hately [1583] Mor 15135 1 Jun 1583 SCS Scotland [ Bailii ] Â Crawford v - [1583] Mor 6275 1 Jun 1583 SCS Scotland [ Bailii ] Â Earl of Angus v The Donatar of His Escheat [1583] Mor 3722 1 Jun 1583 SCS Scotland [ Bailii ] Â Euphame Mackalzean and Patrick Moscropt v William Napier of Wrights-Houses [1583] 1 Brn 121 1 Jun 1583 SCS Scotland [ Bailii ] Â His Majesty'S Advocate v Chapman [1583] Mor 7896 1 Jun 1583 SCS Scotland [ Bailii ] Â Thaine v Cant [1583] Mor 8405 1 Jun 1583 SCS Scotland [ Bailii ] Â Laird of Gairne v Laird of Guthrie [1583] Mor 3545 1 Jun 1583 SCS Scotland [ Bailii ] Â Cuming v Ruthvens [1583] Mor 3147 1 Jul 1583 SCS Scotland [ Bailii ] Â Gib v Hamilton [1583] Mor 16080 1 Jul 1583 SCS Scotland [ Bailii ] Â Hamilton v Cambuskeith [1583] Mor 9094 1 Jul 1583 SCS Scotland [ Bailii ] Â Home v Home [1583] Mor 15249 1 Jul 1583 SCS Scotland [ Bailii ] Â Logan v Carlile [1583] Mor 2712 1 Jul 1583 SCS Scotland [ Bailii ] Â Balmains v Balvaird [1583] Mor 14746 1 Jul 1583 SCS Scotland [ Bailii ] Â Anderson v - [1583] Mor 10082 1 Jul 1583 SCS Scotland [ Bailii ] Â A v B [1583] Mor 11965 1 Nov 1583 SCS Scotland [ Bailii ] Â Swan v Rankin [1583] Mor 13495 1 Nov 1583 SCS Scotland [ Bailii ] Â Scott of Spencerfeild v The Laird of Barn-Bougall [1583] 1 Brn 122 1 Nov 1583 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1583] 1 Brn 122 1 Nov 1583 SCS Scotland [ Bailii ] Â Â Wood v Scott; SCS 1-Nov-1583 - [1583] Mor 624 Â Cunningham v Cook [1583] Mor 6424 1 Nov 1583 SCS Scotland [ Bailii ] Â #Name [1583] 1 Brn 123 1 Nov 1583 SCS Scotland [ Bailii ] Â DECISIONS of the LORDS OF COUNCIL AND SESSION reported by SIR ROBERT SPOTISWOODE OF PENTLAND. [1583] 1 Brn 122 1 Nov 1583 SCS Scotland [ Bailii ] Â Cunningham v Cook [1583] Mor 9217 1 Nov 1583 SCS Scotland [ Bailii ] Â Chalmers v Granston [1584] Mor 13819 1584 SCS Scotland [ Bailii ] Â A v B [1584] Mor 12448 1584 SCS Scotland [ Bailii ] Â Robertson v Oswald [1584] Mor 8980 1584 SCS Scotland [ Bailii ] Â Hamilton v Lady Ernock [1584] Mor 16234 1584 SCS Scotland [ Bailii ] Â Lord Gray v The Constable of Dundee [1584] Mor 12126 1584 SCS Scotland [ Bailii ] Â Lady Ross v Tenants [1584] Mor 13263 1 Feb 1584 SCS Scotland [ Bailii ] Â Vicar of Gaston v Valentine [1584] Mor 7939 1 Feb 1584 SCS Scotland [ Bailii ] Â Innes v Hay, Clerk Register, and The King's Advocate [1584] Mor 1344 1 Mar 1584 SCS Scotland Lands being disponed to a man in liferent, and his bastard in fee, and failing of heirs-male of the bastard, to a third party; the Lords reduced a gift of bastardy made by the King to another; and found that the law, Quod bastardus nota potest habere haeredem, nisi de corpore suo legittime procreatum, is to be understood only of the legal heir, not of heirs of provision. [ Bailii ] Â Bishopton v - [1584] Mor 12264 1 Mar 1584 SCS Scotland [ Bailii ] Â Crichtoune v Ruthven [1584] Mor 15625 1 Mar 1584 SCS Scotland [ Bailii ] Â His Majesty'S Advocate v Forrest [1584] Mor 7896 1 Mar 1584 SCS Scotland [ Bailii ] Â K Advocate v M'Culloch [1584] Mor 2212 1 Mar 1584 SCS Scotland [ Bailii ] Â - v The Tutor of Cassils [1584] 1 Brn 123 3 Mar 1584 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1585] 1 Brn 123 1585 SCS Scotland [ Bailii ] Â #Name [1585] 1 Brn 123 1585 SCS Scotland [ Bailii ] Â #Name [1585] 1 Brn 123 1585 SCS Scotland [ Bailii ] Â Laird of Dundas and His Son, v Elphingston and His Tutor [1585] Mor 2255 1 Feb 1585 SCS Scotland [ Bailii ] Â Lord Cathcart v Ld of Gadzat [1585] Mor 10716 1 Feb 1585 SCS Scotland [ Bailii ] Â Wardlaw v Otterburn [1585] Mor 15227 1 Feb 1585 SCS Scotland [ Bailii ] Â Â Mackalzean v Mackalzean; SCS 1-Jun-1586 - [1586] Mor 854 Â Â Dishington v L Lochnoris; SCS 1-Feb-1587 - [1587] Mor 840 Â Several decisions [1588] 1 Brn 124 1588 SCS Scotland Defences in a summons of violent profits, 1588. 1mo. Accepted the summons for one of the defenders who was charged as heir to his father; at least lawfully charged to enter heir; at least who had behaved himself as heir by intromission with his goods and gear; at the least was universal successor to him titulo lucrativo, &c. and offered to renounce. 2do. Where he is called universal successor, the pursuer should declare wherein. Replied, He shall prove this last in termino probatorio. Ordained to condescend, in special, wherein the defender was universal successor, and ordained Sharp to bring a special procuratory from the defender to renounce in termino probatorio, which should be taken to prove him universal successor. After other frivolous exceptions against the libel, &c. the summons were admitted to probation; with reservation of the modification of the violent profits to the Lords themselves. [ Bailii ] Â Lord Forbes v E of Huntly [1588] Mor 2065 1588 SCS Scotland Cautio juratoria was accepted from a person of quality, being joined with infeftment of lands, although these lands were already much burdened. [ Bailii ] Â Moncur v Campbell [1588] Mor 3608 1588 SCS Scotland Entry in vacuam possessionem without violence does not infer ejection. [ Bailii ] Â Muir v Muir [1588] Mor 6887 1588 SCS Scotland In double resignations the first was preferred, though sasine was first taken upon the other. [ Bailii ] Â Heirs of Henry Pitcairn v Dame Euphiam Murray, Lady Rosyth, Relict of The Abbot of Dumfermline, and Patrick Invergony, Her Spouse and John Pitcairn [1588] Mor 13442 3 Jan 1588 SCS Scotland Redemption [ Bailii ] Â Hay v - [1588] Mor 14865 1 Feb 1588 SCS Scotland Succession in Heritage ab intestato. [ Bailii ] Â Stuart v Douglas [1588] Mor 10057 1 Feb 1588 SCS Scotland A gift of pension out of a benefice found valid, though it did not take effect by possession during the life of the donor. [ Bailii ] Â Richardson v Feuers of Musselburgh [1588] Mor 15960 1 Mar 1588 SCS Scotland A Baron being infeft sum astrictis multuris totius baroniae,the thirle was so far understood to comprehend invecta et illata, that use and custom was admitted to probation. [ Bailii ] Â Falcon v Tours [1588] Mor 15785 1 Jun 1588 SCS Scotland The Lords refused to admit the tenor of an evident to be proved by witnesses, unless the casus amissonis were clearly proved. [ Bailii ] Â Lady Polton v - [1588] Mor 6786 1 Jun 1588 SCS Scotland After succumbing in the direct manner of improbation, whether the indirect be competent. [ Bailii ] Â Graham v Graham [1588] Mor 5096 1 Dec 1588 SCS Scotland The first gift with the first intented action was preferred to the second gift, though clothed with possession. [ Bailii ] Â Pitcairn v Murray [1588] Mor 3981 1 Dec 1588 SCS Scotland An heir apparent of conquest may pursue exhibition ad deliberandum. [ Bailii ] Â - v Wood [1589] Mor 8519 1589 SCS Scotland [ Bailii ] Â Karkettle v Dickson [1589] Mor 12070 1589 SCS Scotland [ Bailii ] Â Â L Innerwick v The Lady; SCS 1-Mar-1589 - [1589] Mor 329 Â Dick v Nearest Agnates [1589] Mor 16235 1 Mar 1589 SCS Scotland [ Bailii ] Â Kennedy v - [1589] Mor 16235 1 Mar 1589 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1589] Mor 16235 1 Mar 1589 SCS Scotland [ Bailii ] Â Achisone v Sinclair [1589] Mor 16653 1 May 1589 SCS Scotland [ Bailii ] Â Seaton of Pittedie v James Kinghorn and The Laird of St Monans [1589] Mor 8233 1 Jun 1589 SCS Scotland [ Bailii ] Â Â Dishington v Porteous; SCS 1-Dec-1589 - [1589] Mor 840 Â David Balfour v The Commendator of Cambuskenneth [1590] 1 Brn 125 1590 SCS Scotland [ Bailii ] Â Wedderburn v - [1590] Mor 10151 1590 SCS Scotland [ Bailii ] Â The Duke of Lennox v The Laird of Balfour [1590] Mor 11147 1590 SCS Scotland [ Bailii ] Â Elphinston v Balfour [1590] 1 Brn 125 1590 SCS Scotland [ Bailii ] Â Hugh Sommervil v Dickson [1590] 1 Brn 125 1590 SCS Scotland [ Bailii ] Â John and Magnus Arthur v Geddies and Wallets [1590] 1 Brn 124 1590 SCS Scotland [ Bailii ] Â Laird of Wedderburn [1590] Mor 5731 1590 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1590] 1 Brn 124 1590 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: 1590 SCS Scotland [ Bailii ] - [ ] Â Newton v The Tutor of Langton [1590] 1 Brn 126 1590 SCS Scotland [ Bailii ] Â William Home v The Laird of Mellerstanes [1590] 1 Brn 124 1590 SCS Scotland [ Bailii ] Â Lord Lindsay v Hamilton [1590] Mor 13377 1 Feb 1590 SCS Scotland [ Bailii ] Â Commendator of Kilwinning v Laird of Blair [1590] Mor 2712 1 Mar 1590 SCS Scotland [ Bailii ] Â Home v Cairncross [1590] Mor 2915 1 Jun 1590 SCS Scotland [ Bailii ] Â Laird of St Monance v Tenants [1590] Mor 10163 1 Aug 1590 SCS Scotland [ Bailii ] Â Laird of Ludquairn v Earl Marischal [1590] Mor 13982 1 Nov 1590 SCS Scotland [ Bailii ] Â Â MS Is Not Found; SCS 2-Jan-1592 - [1592] Mor 341 Â Â L Sillartownhill v Prior of Blantyre; SCS 1-Mar-1593 - [1593] Mor 635 Â Â Minister of North Berwick v Home; 1600 - [1600] Mor 560 Â Buchanan v Campbell [1601] Mor 1353 1 Jun 1601 SCS Scotland, Wills and Probate Lands or goods of a bastard, or person deceasing without heirs, pertain not to the Lord of Regality, unless specially expressed in his infeftment Mr Johne Dalzell, and Susanna Buchanan his spous, havand be gift of our Soverane Lord, the escheit of all guddis and dettis, whilk pertenit to umquhile----Campbell, dochter to the said Susanna and umquhile Colene Campbell, bastard son to Archibald Erle of Argyll, procreat betwixt the said Susanna and the said Colene, as ultimas haeres to the said dochter deceiss, and without ony lawful airs, pursuit the Laird of Caddell, as aire be provision to the said umquhile Colene, for the soume of ane thousand punds, whilk the said Colene, be contract, had obligit him, his heirs and successors in his lands, to pay to the air's femell to be gottin betwixt him and the said Susanna, the soume of ane thousand pundis.-It wes alledgit, That his donatour could have no action upone his Majestie's gift, becaus the lands to the whilk Caddell succeidit, lay in the Regaltie of Argyll, and the persons dwelt thairin; and sua the gift appertenit to the Erle of Argyll be verteu of his regalitie.-It wes ansrit, That the gift of thingis falland be deceis of personis havand na lawful aires of thair awn blude as ultimus haeres, could not pertene to the Lord of Regalitie be the general privilege of regalitie, unles he wer infeft in that privilege per expressum, the sam being sua great ane richt, and sua deulie belanging to the King's crowne, that it could not be comprehendit under ane general disposition of regalitie.--Which reply the Lords sand relevant, and in respect thairof, repellit the exception.--Next it it wes exceptit, That this soume could not pertene to the donatour, becaus nather the King nor his donatour could be in ane better cais, as ultimus haeres, nor the defunct; and the defunct could never have had richt to the soume controverted, unles sche had been aire to hir father, becaus it wes providit to the aires-femell, and sche not being aire femell, had na richt; and consequentlie the King, as ultimus haeres, could have na richt.-It wes ansrit, That the provision wes consavit in favour of the bairns femell; and albeit sche wes not servit aire, yet the successour to the lands wes ordanit, be contract, to pay that soume for her provision, and the King had succeidit in her richt.--The Lords repellit the alledgeance, and sand that the donatour had richt. [ Bailii ] Â Â Douglas v Douglas; SCS 19-Jun-1605 - [1605] Mor 1288 Â Â Lord Balmerino v Forrester; SCS 21-Jun-1605 - [1605] Mor 341 Â Â Lathoker v Lord Oliphant; SCS 24-Feb-1607 - [1607] Mor 365 Â Â Hamilton v Hay; SCS 30-Jan-1608 - [1608] Mor 643 Â Â Commissaries of Edinburgh v Russell; SCS 28-Nov-1609 - [1609] Mor 341 Â Â Cowgrane; SCS 2-Dec-1609 - [1609] Mor 379 Â Â Lord Salton v Laird of Cluny; SCS 1610 - [1610] Mor 64 Â Multiple Cases With Citation: [1610] Mor 2400 1610 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1610] Mor 2206 1610 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1610] Mor 1786 1610 SCS Scotland [ Bailii ] Â Â Earl of Linlithgow v John Hamilton of Grange; SCS 12-Jan-1610 - [1610] Mor 636 Â Â Dempster v Dingwell; SCS 8-Mar-1610 - [1610] Mor 778 Â Â Herrles v Aslowen; SCS 1-Jun-1610 - [1610] Mor 257 Â Â John Johnston v William Napier; SCS 6-Jul-1610 - [1610] Mor 637 Â Multiple Cases With Citation: [1611] Mor 2207 [1611] Mor 2207 1611 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1611] Mor 10365 22 Jan 1611 SCS Scotland [ Bailii ] Â Â Clark v Erle of Perth; SCS 26-Feb-1611 - [1611] Mor 778 Â Â Thomas Wardlaw v Robert Gray; SCS 11-Jul-1611 - [1611] Mor 786 Â Â Lord Sanquhar v Chrichton of Ryhill; SCS 19-Nov-1611 - [1611] Mor 365 Â Â Laird of Pharnehest v John Moscropt; SCS 12-Dec-1611 - [1611] Mor 624 Â Â Speir v Mure and Mureson; SCS 18-Dec-1611 - [1611] Mor 808 Â Â Campbell v Calder; SCS 28-Jan-1612 - [1612] Mor 655 Â Â Campbell v Calder; SCS 31-Jan-1612 - [1612] Mor 637 Â Â Sibbald v Greig; SCS 18-Feb-1612 - [1612] Mor 1354 Â Â Gavin Home's Heirs v The Laird of Blacader; SCS 10-Jun-1612 - [1612] Mor 671 Â Multiple Cases With Citation: [1622] Mor 2179 1622 SCS Scotland [ Bailii ] Â Sherriff Forrest v Francis Stewart [1622] Mor 858 30 Nov 1622 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1627] Mor 2227 [1627] Mor 2227 1627 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1627] Mor 2219 1627 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1627] Mor 2194 1627 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1628] Mor 1780 [1628] Mor 1780 1628 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1630] Mor 2066 [1630] Mor 2066 1630 SCS Scotland [ Bailii ] Â Crighton v Lord Air 1631 Mor 11182 1631 Scotland, Landlord and Tenant The grant of a lease was to the tenant and his heirs and successors for five years and after that a further five years and then five years for ever. The argument that the lease was a nullity because it did not say when it was to come to an end was repelled. It was noted that the grantor might have objected on this ground in question with a singular successor of the grantee. But it was held that he could not do so in a question with the grantee's heirs, as he had bound himself by the words of the grant never to remove the grantee's heirs. 1 Citers Â Multiple Cases With Citation: [1664] Mor 2230 [1664] Mor 2230 1664 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1667] Mor 2171 [1667] Mor 2171 1667 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1667] Mor 10436 20 Feb 1667 SCS Scotland [ Bailii ] Â Multiple Cases With Citation: [1671] Mor 1907 [1671] Mor 1907 1671 SCS Scotland [ Bailii ] Â Creditors of Wamphray v Lady Wamphray (1675) Mor 347 1675 Scotland, Legal Professions An advocate was not bound to disclose "any private advice or secret of his calling or employment" 1 Citers Â Earl of Northesk v Cheyn (1680) Mor 353 1680 Scotland, Legal Professions Legal professional privilege. Â Seton (1683) M 2566 1683 Scotland The defender was a widow, charged on a bond granted by her husband. She said that the pursuer had owed her husband freight under a charterparty. The pursuer argued that the debt was not liquid, because the defender would need to prove that her husband had made the voyages. At first instance, the court upheld that objection. The defender offered to remit the matter to the pursuer's oath. The court then allowed the matter to be proved prout de jure (by any means permitted by law) – referring again to the quod mox liquidari brocard. The court decerned for the sum in the bond, but superseded extract for three or four months, so "that if the debt be liquidate betwixt and that time, then the compensation was to be received." The court granted decree for the debt in the bond, but directed that it was not to be enforceable for three or four months, to give the defender time to establish the claim for freight, which could then be set off against the debt under the bond. The reporter thought that this went too far "and though it be materially just, yet it is a great relaxation of our ancient form." 1 Citers Â Â Grahame v Marquis of Montrose and James Fenton; SCS 1-Mar-1685 - [1685] Mor 16887 Â Muir and Milliken v Kennedy (1697) M 2567 1697 Scotland, Children A minor was sued as heir to his father, for a sum in a bond of caution granted by his father. The court allowed the defender time to show that the debt had already been paid. He then craved compensation for a sum allegedly owed to the estate on the ground that one of the pursuers had stayed for several years in his father's house. The pursuers objected that this claim was not liquid. Held. The Lords, "considering the favour of this case, being a minor and the heir of a cautioner", and given that the pursuers' claim was being delayed in any event to allow the defender to try to prove that the debt had been paid, "gave him a term to prove his compensations, seeing quod statim potest liquidari habetur pro jam liquido." 1 Citers Â Leith v Garden (1703) Mor 865 1703 Contract, Scotland Notice of assignment of contract - bad faith. 1 Citers Â Sir James Gray, Baronet v James Duke of Hamilton, Charles Earl of Selkirk, and Captain Alexander Gavin [1709] UKHL Robertson - 1; (1709) Robertson 1 10 Mar 1709 HL Scotland, Contract An assignment of a bond, (both being executed in England and in the English form) intimated by letter only, is preferable to a posterior arrestment. The judgment, finding that the law of Scotland should regulate this case, is reversed. The Court having refused to allow holograph letters to be equivalent to an intimation - judgment also reversed. [ Bailii ] Â Rose Muirhead, The Widow of James Muirhead The Younger, of Bradisholm, Deceased v James Muirhead of Bradisholm [1709] UKHL Robertson - 4; (1709) Robertson 4 14 Mar 1709 HL Scotland, Land Donatio non presumitur. A disposition by a father to his son, (followed by a sasine, which was not registered) made to preserve the estate from penalties of a test act, might be warrantably cancelled. Qualified oath. - An oath received, though objected to as containing qualities. [ Bailii ] Â Patrick Lord Kinnaird, and Lady Elizabeth His Wife v John Riddoch The Trustee of Catharine Lyon, and The Said Catharine Lyon [1711] UKHL Robertson - 11; (1711) Robertson 11 24 Jan 1711 HL Scotland, Landlord and Tenant An appeal dismissed and costs awarded, and directions given to levy the same against Appellants who had entered into no recognizance. [ Bailii ] Â James Greenshields, Clerk v The Lord Provost and Magistrates of The City of Edinburgh [1711] UKHL Robertson - 12; (1711) Robertson 12 1 Mar 1711 HL Scotland, Ecclesiastical An appeal competent, though objection made that it implicated the sentence of a presbytery. Proceedings against an episcopal minister, before the Toleration Act, 10 Ann. c. 7. who had been imprisoned for exercising his function, reversed on appeal. [ Bailii ] Â James Durham of Largo v Robert Lundine, Watson, Lundine and Lundine [1711] UKHL Robertson - 16; (1711) Robertson 16 20 Mar 1711 HL Scotland An appeal competent, from a decreet in 1698, and interlocutor in 1708, though objection made that a decreet in 1707, confirming that in 1698, was not appealed from. Prorogations of tacks of teinds, where an augmentation of stipend was small, reduced from fix 19 years to one 19 years. [ Bailii ] Â Katherine Moniepenny, Widow v John Brown, and Isabel His Wife [1711] UKHL Robertson - 26; (1711) Robertson 26 15 Apr 1711 HL Scotland, Wills and Probate A testament executed in extremis reduced, where the testator's hand was supported and assisted in writing the latter part of his name. [ Bailii ] Â Sir Andrew Kennedy, Baronet v Sir Alexander Cuming, Baronet [1711] UKHL Robertson - 19; (1711) Robertson 19 19 Apr 1711 HL Scotland The office of conservator, held by a grant under the great seal to a father and his son jointly, being upon complaint of the father's malversations granted to a third person, without previous sentence; this new grant was void. Certain malversations alleged against the conservator not relevant to infer deprivation. The malversations of a conservator being found proved per singulares testes, the judgment is reversed. [ Bailii ] Â Adam Cockburn of Ormiston, One of The Senators of The Court of Justice, and Dame Ann His Wife v John Hamilton of Bangour, A Minor, By His Curators [1712] UKHL Robertson - 32; (1712) Robertson 32 28 Mar 1712 HL Scotland, Wills and Probate Lis finita - After extracting a decreet, with a reservation therein of several point, the objection of Lis finita and that these points were not contained in the original summons, is sustained by the Court, but reversed upon appeal. Funeral expences. - In a question between the heir and the assignee of the executrix of a Lord Justice Clerk, 250 l., being modified, as sufficient for funeral expences, the judgment is reversed. Prescription. - Furnishing to the funeral did not form such a continuation of accounts as to bar the triennial prescription of accounts incurred before the death of the deceased. Subject Confirmation. - The Court having refused to allow to the assignee of an executrix in a question with an heir served cum beneficio, the expences of an action before them relative to the right of confirmation between the executrix and the father of the heir served cum beneficio, the judgment is reversed. [ Bailii ] Â John Crawfurd, An Infant, By Jane His Mother and Guardian v Archibald Crawfurd Esq [1712] UKHL Robertson - 28; (1712) Robertson 28 5 Apr 1712 HL Scotland, Trusts, Torts - Other Minor non tenetur placitare - The maxim does not take place in a reduction upon the head of dole, or fraud in the minor's father. Proof. - A deed found proved to be fraudulently altered upon ocular inspection of the different pieces, and a letter from one of the perpetrators of the fraud. [ Bailii ] Â John Hamilton, of Pumpherston, Esq v Katherine Lady Cardross [1712] UKHL Robertson - 37; (1712) Robertson 37 8 Apr 1712 HL Scotland, Children A tack sustained, which, in the recital, bore to be granted by a Minor with consent of his Curators, but was signed by the landlord only. Homologation. - In a reduction of a Tack on the ground of nullity, it being found that the receipt of the rent by the Grantor's heir for more than 30 years, imported no homologation, the Judgment is reversed. [ Bailii ] Â William Forbes of Tolquhon v Alexander Forbes of Ballogie [1712] UKHL Robertson - 41; (1712) Robertson 41 10 Apr 1712 HL Scotland, Torts - Other Fraud and Circumvention. - In a reduction of sundry deeds upon this ground, various circumstances found irrelevant or not proved. [ Bailii ] Â Alexander Robertson Esq of Strowan v Margaret Robertson, His Sister [1712] UKHL Robertson - 55; (1712) Robertson 55 4 Jun 1712 HL Scotland, Trusts, Children A mother being put in possession of part of her eldest Son's forfeited estate for aliment to younger children, in a question with the Son after the estate restored, it is found that her intromissions, above the current interest of their portions, went in discharge of former interest due thereon and of current interest, but not in payment of principal, or of interest after the intromissions ceased. Circumstances inferring this crime: though decree taken in the civil action, recourse might also be had to the penal: the pains of battery not remitted by an act of general indemnity. [ Bailii ] Â William Dunbar, Second Son of Sir William Dunbar of Durn v Colonel John Erskine [1712] UKHL Robertson - 43; (1712) Robertson 43 16 Jun 1712 HL Scotland, Armed Forces The accounts of a magazine keeper, taken and verified in terms of this act, need not be verified anew before the Court of Session. [ Bailii ] Â Sir Patrick Home, Baronet v Sir Robert Home, Baronet Et E Contra [1712] UKHL Robertson - 47; (1712) Robertson 47 27 Jun 1712 HL Scotland, Trusts Circumstances sufficient to reduce deeds upon this ground. Being so reduced they stand as a security only or the onerous causes thereof. By marriage contract the husband is bound to resign the estate to himself, and the heirs male of the marriage, and inhibition being used thereon he was disabled to dispose of that estate gratuitously, in prejudice of the heir male of the marriage. This heir male being served Haeres masculus et provisionis to his father is found liable by the Court to warrant his father's deeds, but the judgment is reversed. A second Son having accepted from his Father a tack of the estate for payment of debts and having afterwards taken a disposition of that estate from his elder brother, the trustee is obliged to count and clear the onerous cause of this disposition, at the suit of the son of the said elder brother, (whom the Court had found to be beir-male.) [ Bailii ] Â Sir James Sinclair of Dunbeath, Bart v John Sinclair of Ulbster, Esq [1713] UKHL Robertson - 59; (1713) Robertson 59 2 Jun 1713 HL Scotland, Trusts Provisions to Children. - A portion being left to a daughter; with a proviso, that she should not dispose of or incumber the same, or interest thereof, till the times of payment should be elapsed; the might, nevertheless, make an alignment thereof, in trust for herself, to have an action carried on to recover the interest. Appeal brought for delay. - In this case the respondent found entitled to such interest, as he might have entitled himself to by registering the horning, had he not been restrained by the appeal. [ Bailii ] Â Hugh Wallace of Ingliston v Sir Alexander Hope of Kerse, Bart [1713] UKHL Robertson - 91; (1713) Robertson 91 3 Jun 1713 HL Scotland, Land Jus Exigendi. - A Lady's jointure being secured on certain heritable debts but no infeftment taken, the husband's estate is forfeited during the Usurpation, but being afterwards restored to his heir, reserving the claims of the widow and others, and ordering those to refund, who had received grants out of the estate; the assignee of the widow's executrix had no jus exigendi of the sums received by these grants. Subject Forfeiture under Cromwell's Usurpution.- The Earl of Forth, and Bramford being forfeited, and his estate seized, a bona fide creditor of the then government, is paid his debt by a grant out of the Earl's estate: on the restoration, the Court of Session found that the heir of such creditor was obliged to refund, but their judgment was reversed in the parliament of Scotland. This last head is only mentioned incidentally but not decided in this case. [ Bailii ] Â Adam Cockburn of Ormiston, One of The Senators of The College of Justice, and Dame Ann His Wife v John Hamilton of Bangour, A Minor, By His Guardian [1713] UKHL Robertson - 61; (1713) Robertson 61 12 Jun 1713 HL Scotland Construction. - Forbes, 4 & 23 July, 1712. In a question with regard to funeral expences, and expences of confirmation, the House of Peers haring reversed a judgment of lis finita and found that the assignee of an executrix might insist for these claims, it was still competent to plead prescription thereto. Subject - Funeral Charges. Prescription. - The accounts paid by the said assignee, without the 3 years were prescribed where she herself was not contractor, but where she was contractor did not prescribe. Subject - Confirmation. - The Expences of confirmation though not especially conveyed to the said assignee, but paid by her, are found to exhaust the executry. Subject - Debitor non praesumitur donare. - By marriage contract a wife is provided to the houshold furniture, the husband afterwards grants her a bond and the liferent of a house is settled upon her, these may fulfill as separate and distinct rights. [ Bailii ] Â James Don Esq; v Sir Alexander Don of Newton [1713] UKHL Robertson - 76; (1713) Robertson 76 14 Jul 1713 HL Land, Trusts, Scotland An estate is entailed by a person to himself in liferent and to his eldest son and the heirs male of his body whom failing to the entailer himself, whom failing to his second and third sons, and the heirs male of their bodies &c. whom all failing to the father's nearest heirs and assignees: another estate is entailed to the second son of the former entailer and the heirs male and female of his body, whom failing to the said former entailer and his heirs male of tailzie and provision in the former entail; after failure of the institute in the second entail and the heirs male and female of his body, the heir male of the first entailer succeeds to the estate contained in the second entail. Tailzie An heir of entail prohibited from alienating gratuitously, where the prohibitory, irritant, and resolutive clauses, were referred to as contained in another entail. At making an entail the institute reconveys to his father an estate formerly settled upon him, and he and his wife discharge an obligation upon the father by their contract of marriage; the institute, nevertheless, cannot gratuitously alter. [ Bailii ] Â George Lockhart Esq; v John Chiefly of Kersewell, Writer In Edinburgh, Margaret Pow, William Montgomery, Walter Chiefly, and William Bertram [1714] UKHL Robertson - 80; (1714) Robertson 80 7 Jun 1714 HL Scotland, Insolvency Non-entry - A Superior having obtained a general declaratory of non-entry, his agent in a subsequent ranking restricts the superior's interest so as to be ranked posterior to annual renters. On a reduction by the superior on the head of lesion and as being absens reipublicae causa, the ranking is sustained. Ranking and Sale - It is not relevant to reduce a decreet of ranking, that posterior to the date of the decreet the interests of certain creditors were produced, and ranked, and yet no new decreet put up in the minute-book. [ Bailii ] Â Michael Russell of London, Merchant v John Cochran of Waterside Esq [1714] UKHL Robertson - 84; (1714) Robertson 84 12 Jun 1714 HL Company, Insolvency, Scotland Presumption. - A bond is granted for a partnership debt to an individual creditor by one partner; the same partner afterwards executes an assignment of the partnership funds to the creditors in general, bearing to be in full payment and satisfaction of the partnership debts; this was recited in a power of attorney granted by the creditors; though the assignment was not executed by the other partner, it extinguished the bond to the individual creditor. [ Bailii ] Â Sir Robert Home, Bart v Sir Patrick Home, Bart [1714] UKHL Robertson - 105; (1714) Robertson 105 1 Jul 1714 HL Insolvency, Scotland Sequestration. - A sequestration, granted of an estate, where a person was in possession by virtue of a tack from his father for payment of debts, adjudications in his person with expired legals, and a disposition from an elder brother, which, though reduced for fraud and circumvention, was still to stand as a security for the onerous cause thereof. Presumption. - From circumstances of presumption a person is made to count and reckon for property, which with his content had formerly been conveyed by a weak elder brother to another person. [ Bailii ] Â The Gubernators of Heriot's Hospital, and James Young Their Treasurer v Robert Hepburn of Bearford [1715] UKHL Robertson - 118; (1715) Robertson 118 2 Jun 1715 HL Scotland, Land Kirk Patrimory - The superiority of certain church lands, which were purchased from the crown for an onerous consideration, and which were specially excepted in the act 1633, c. 13. "anent regalities of erection," part of the general re-annexing acts, found to be in such purchasers, where the vassal had taken charters and infeftments from the subject superior for near 100 years. [ Bailii ] Â The Corporation of Butchers in Edinburgh v The Magistrates of Edinburgh, and Corporation of Candle-Makers There [1715] UKHL Robertson - 124; (1715) Robertson 124 29 Jun 1715 HL Scotland, Commercial Burgh Royal - The Court of Session having found that the butchers of Edinburgh should be restrained from rinding tallow for sale, and that the magistrates could oblige them to sell their tallow at a certain price to the candle makers, which was in terms of a bye-law of the magistrates, ratified by a private act of parliament the judgment is reversed. This act was not sufficient to restrain the butchers from melting or rinding their tallow. [ Bailii ] Â William Collier, Captain of His Majesty's Ship The Mermaid v Robert Stewart, Provost of Aberdeen, and Company, Owners and Freighters, and Alexander Inglis, Master of The Ship Joanna of Aberdeen [1715] UKHL Robertson - 130; (1715) Robertson 130 8 Jul 1715 HL Scotland, Transport Prize - A French privateer having captured a Scots ship, took a quantity of goods out of her, and some money from the ship-master, and upon payment of a ransom agreed upon, allowed the ship to depart with a ransom brief; the privateer having continued upon the coast, and being there captured by a British ship of war the money and goods taken by force, as well as the ransom, were to be restored by the captors. [ Bailii ] Â William Habkin, Belt-Maker In Edinburgh v Roger Hog, Merchant In Edinburgh [1715] UKHL Robertson - 147; (1715) Robertson 147 19 Aug 1715 HL Scotland, Contract Annual Rent, Costs and Expences - two tradesmen having contracted to clothe a regiment, and to divide equally under a Denalty the sums to be received by virtue of an assignment of off-reckonings delivered to each of them : one of them afterwards receives a new assignment of off-reckonings, and a sum of money from the Treasury, and refusing to pay a balance due to the other, the Court ordained the person receiving the money, which, they found, fell under the first assignment, and their mutual contrail, to pay the balance due to the other, which however was restricted to a smaller sum than was claimed : but the Court having refused him damage and interest; upon appeal the judgment is reversed, and the respondent is ordered to pay to the appellant the principal sum found due to him, with the interest thereof, from the time the respondent received the remainder of the money; and the Court is ordered to cause the costs and expences of the appellant in the action to be taxed and ascertained and forthwith paid to him by the respondent. No Specific sum being here awarded, proceedings afterwards upon the complaint of the appellant, relative to the taxing of his expences by the Court of Session, and resolutions and orders of committees and of the House there on a sum allowed to the complainant for his subsequent expences, in taxing costs. [ Bailii ] Â John Goddard, Gentleman v Sir John Swinton, Baronet [1715] UKHL Robertson - 162; (1715) Robertson 162 30 Aug 1715 HL Scotland, Litigation Practice Foreign Decree - The effect of a judgment of the Court of King's Bench, when founded upon by a pursuer against a defender in the Court of Session. Homologation - The defender had in England been surrendered by his bail, who were discharged ; and the defender executed an instrument, importing that the judgment should not be released by such discharge; this instrument found not to homologate the judgment. [ Bailii ] Â Robert Middleton, Rector of St Mary's In Colchester v Lieutenant-Colonel John Balfour [1715] UKHL Robertson - 167; (1715) Robertson 167 2 Sep 1715 HL Scotland, Trusts Heritable and Moveable - A father in 1641, upon his eldest son's marriage, settled an estate upon him and the heirs thereof, reserving a power to burden: the son was infeft, and half the marriage portion paid to the father; but the wife dying without issue, within year and day, the father granted a bond to the son to employ same for his benefit, or to restrict his power of burdening pro tanto; the eldest son also dying, the father settled the estate upon the second son who, after the father's death, granted heritable securities with infeftment to creditors thereon in 1666, upon which apprisings were led in 1670. His son having taken up the succession as heir to his uncle, instead of his father (the second son); at the instance of creditors, the contract of marriage and infeftment were reduced by the Court of Session, but with a clause, that the half of the marriage-portion which has been paid should be a real burden upon the estate: this half was afterwards confirmed by the executor and adjudication taken in 1680. In a competition between the person having right to the heritable bonds and infeftments in 1666, with apprisings thereon in 1670, and the person having right to the half of the marriage-portion, the Court having preferred the latter, the judgment is reversed. [ Bailii ] Â James Hamilton of Dalziel Esq v The Principal, Masters, and Professors of The University of Glasgow [1716] UKHL Robertson - 172; (1716) Robertson 172 9 Jun 1716 HL Scotland, Education, Landlord and Tenant Superior and Vassal - An university having acquired righ to an adjudication of lands, held in ward, for a debt due to them, the Court found that the superior must enter the university, or pay the debt to the extent of the value of the lands: but upon appeal the judgment is reversed; and it is ordered, that the superior should admit such proper person for vassal as the university should nominate. Bona fide Possession - The superior, notwithstanding the reversal, is obliged to account for the rents since the charter was offered to him by the university, he having deduction of his casualties as if the old vassal then entered. [ Bailii ] Â David Gregory of Kinnairdy v James Anderson Grazier In Aberdeen [1716] UKHL Robertson - 178; (1716) Robertson 178 24 Jun 1716 HL Family, Wills and Probate, Scotland Donatio inter virumet Uxorem - During the subsistence of a marriage a wife and her sister, who have an equal right to a bond, convey the same to the husband. He afterwards makes his will, appointing his wife executrix and universal legatee, for behoof of the grandchildren. After the death of the husband, the grant formerly made by her to him was not revocable as a donatio inter virum et uxorem. Prescription - The prescription of 40 years not to be counted, from the date of an assignment of a bond, but from the time of receiving the money thereon. Onerous cause - An assignment of a bond, bearing to be for onerous cause, from the circumstances of parties as executrix and trustee, found not to prove the onerous cause of the assignment in a question near 50 years from the date thereof. Trust - A discharge granted by an executrix to a manager for her under a will, who had a salary, or all his receipts and intromissions, in general terms, was not sufficient to discharge him from the intromission with a bond, which the deceased disponed to the widow, his executrix, for the good of his grand-children. [ Bailii ] Â Carruthers v Irvine 1717 Mor 15195 1717 Scotland, Landlord and Tenant A lease was granted expressed to be "perpetually and continually as long as the grass groweth up and the water runneth down". The grantor died and his heir sought to remove the tenant on the ground that the lease did not say when it was to come to an end. Held: His claim failed because the court found that "by the meaning of [the] parties the contract was intended to be a perpetual right to the tenant and his successors". This did not meet the requirements of the 1449 Act, and it was admitted that the tenant would not have been able to enjoy that right in a question with a singular successor of the grantor . . But the personal right against the heir under the contract was not affected. 1 Citers Â John Cuninghame of Enterkine v The Hon Katherine Hamilton, Relict of Wm Cuninghame of Enterkine, The 'S Mother [1717] UKHL Robertson - 187; (1717) Robertson 187 8 Jun 1717 HL Scotland Tenor - The tenor of a lost deed of remuneration to a wife over certain lands, for part of her jointure secured upon other lands renounced by her, found to be proved by an instrument of sasine; a deed in which the remuneratory deed was recited, and a slender proof by witnesses: It was not necessary to prove the casus amissionis in this case: The defender having claimed a proof that his mother, the pursuer, in his minority, had intromission with all his father's deeds and writings, the same is refused. [ Bailii ] Â Sir John Schaw, of Greenock, Bart v Dame Margaret Schaw, Alias Houston, and Sir John Houston, Bart Her Husband (1718) Robertson 203; [1718] UKHL Robertson - 203 10 Mar 1718 HL Scotland, Land Tailzie - A father infeft in an estate in life-rent, and a son infeft in fee, jointly entail the estate in the son's contract of marriage, with prohibitory, irritant, and resolutive clauses, and with a proviso, that the father and son should jointly have power to alter; this entail was insert in the register of tailzies upon the joint supplication of the father and son, but no resignation was made nor infeftment taken thereon: the irritancies and clauses not to alter were binding upon the son (after the father's death) even supposing the substitution were gratuitous. [ Bailii ] Â Sir Peter Fraser of Doors v Isabel Sandilands, Widow of William Black Esq [1719] UKHL Robertson - 209; (1719) Robertson 209 12 Jan 1719 HL Scotland, Contract Presumption - A person being sued in 1718 by the widow of one to whom, in 1697, he had granted a bond of pension for the consideration of managing the grantor's law affairs; though never demanded by the grantee during his life, the bond is supported and the money decerned for. Holograph - Whether holograph or not being referred to the oath of the grantor of a bond, the term is circumduced against him for not deponing. [ Bailii ] Â James Blackwood, of London, Merchant v John Hamilton of Grange [1719] UKHL Robertson - 211; (1719) Robertson 211 26 Jan 1719 HL Scotland, Contract Tenor - The Court of Session having reduced a decree of proving the tenor of a bond, and an adjudication and decree of mails and duties following thereupon, for the reason that it was not proved who were the writer and witnesses: the judgment is, from the circumstances of the case, reversed, the reasons of reduction repelled, and the adjudication sustained. Damage and Interest - The Court, in an interlocutor prior to those appealed from, having sustained the adjudication for the principal sum and interest, without all accumulation, penalties, and expences whatsoever, this latter part of their judgment is reversed. [ Bailii ] Â Katherine Stevenson, and Mr James Gillon, Advocate, Her Husband v Gilbert, Mary, and Eupham Fife, Children of Gilbert Fife Deceased, Late One of The Baillies of Edinburgh [1719] UKHL Robertson - 216; (1719) Robertson 216 20 Feb 1719 HL Scotland, Contract Heritable and moveable - A bond taken to a man and his wife in life-rent, and to their daughter in fee, and failing her by decease to the husband, his heirs, executors, or assignees; found to be moveable, that being but one substitution. Tutor and Pupil - A tutor having taken a heritable bond, in corroboration of a personal one payable to the pupil and her issue, whom failing to three aunts, her nearest in kin nominatim; it is found that he acted warrantably. Succession - The three aunts having neither confirmed nor served themselves heirs, but one or them, who survived, being according to the tenor of the said heritable bond entitled thereto, assigned the same; in a question between the assignees and the heir, who was then also nearest in kin or the deceased pupil, the assignation is supported. [ Bailii ] Â Simon Lord Lovat v Kenneth Mackenzie, Factor and Assignee of The Creditors of Alexander Mackenzie Late of Fraserdale [1719] UKHL Robertson - 241; (1719) Robertson 241 4 Apr 1719 HL Scotland, criminal Sentencing Liferent Escheat - An act of parliament, at the time of the rebellion 1715, having ordained persons summoned by the crown to appear before the Court of Justiciary, and find caution for their good behaviour under the pain of life-rent escheat, &c.; and the life-rent escheat of a person neglecting to appear, being adjudged and granted to a donatory; though there was no previous declarator, the rents are ordered to be paid to the donatory; but the creditor who were real at the time of the falling of the escheat are ordered to be charged on the estate in due course of law. Construction of the acts of parliament 1 G. 1. c. 20. and 50. and 4 G. 1. c. 8. The act 1 G. l. c. 50. having enacted that all persons who should be attainted of high treason, before the 24th of June 1718, should forfeit all estates which they were in possession of on the 24th of June 1715, or afterwards, to his majesty; and declared that every grant of such estate, or any part thereof made by his majesty, should be void: Under the prior act 1 G. 1. c. 20. a person's life-rent escheat being adjudged on the 13th of October 1715, is gifted away by the crown; he was afterwards attainted of high treason before the 24th of June 1718; but the gift of escheat is found to subsist, notwithstanding the provisos of the last mentioned act. The vesting act 4 G. 1. c. 8. having declared the judgments of any court, relative to any claim out of a forfeited estate made since 24th June 1715, to be void; but containing a proviso in favour of the gift of escheat before-mentioned, the judgment given in this case was not voided by said act. [ Bailii ] Â Sir Robert Gordon, of Gordonstoun, Bart v James Brodie of Brodie, Esq; [1720] UKHL Robertson - 259; (1720) Robertson 259 8 Feb 1720 HL Scotland, Litigation Practice Process - Incident Diligence - In mutual actions relative to the property of a common, several witnesses on both sides, are examined upon an act and commission; and upon a second diligence others, who had not before appeared, are also examined: one of the parties gives in a new list of witnesses, praying a new act and commission, and to have some witnesses re-examined on commission who had already deponed before the Court; but his petition is refused. [ Bailii ] Â The Commissioners and Trustees of The Forfeited States v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator [1720] UKHL Robertson - 263; (1720) Robertson 263 10 Feb 1720 HL Scotland, Trusts Papist attainted of Treason - The Act 5 Geo. 1 c. 22. having limited a certain time for preferring exception, against a forfeiture, a person who presented his exceptions as protestant heir of a trustee could not, after expiration of the time limited reply as protestant heir of those for whom the trust was created. Trust Estate held for a Papist - An estate held in trust for the Earl of Seaforth, a papist, was forfeited to the public by his attainder, and could not be cases up, by the protestant heir. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Alexander Gordon of Auchintoule [1720] UKHL Robertson - 278; (1720) Robertson 278 25 Feb 1720 HL Scotland Falsa demonstratio. - Misnomer. - Forfeiture under I Geo. I. c. 42 - Major General Thomas Gordon is attainted by act of parliament; and the commissioners seize the estate of Alexander Gordon, whose description agreed with the attainted person's in every thing but the christian name: but upon exceptions taken the seizure is annulled. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v James Duke of Hamilton and Brandon, A Minor, By His Curators and Commissioners [1720] UKHL Robertson - 274; (1720) Robertson 274 26 Feb 1720 HL Scotland, Land Thirlage - An act of parliament gives to subject superiors the forfeited estates of their vassals: the Earl of Linlithgow being attained, forfeited to the Duke of Hamilton a mill held of his Grace as superior; but the earl having thirled part of his estate, held of the Crown, to this mill, this thirlage was not forfeited to the Duke of Hamilton. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Kenneth Mackenzie of Assint, A Minor, By Colonel Alexander Mackenzie, His Curator [1720] UKHL Robertson - 280; (1720) Robertson 280 1 Mar 1720 HL Scotland, Crime Estates forfeited by vassals were acquired by the trustees for a Papist superior, but were forfeited again by the Papist's treason. [ Bailii ] Â Grizel Lady Sempill, Widow of Colonel Richard Cuninghame Deceased v Alexander Murray of Broughton, Esq; Et e Contra [1720] UKHL Robertson - 282; (1720) Robertson 282 4 Mar 1720 HL Scotland, Contract Presumption - In 1691, a Colonel gives his Lieutenant Colonel a draft on his agent for 250 l. and also pays him 50 l. in cash, for which a receipt is granted: in a statement of all the officers' accounts in 1692, the Lieut. Col. takes no notice of the transaction in 1691, but mentions that he had received 75 l. 112 s. 8 d. on account of his pay, without stating from whom: in an action, after the death of the parties, in 1719, it is held that the draft for 250 l. was not presumed to have been paid by the drawee, unless it was otherwise instructed; but that the 50 l paid by the Colonel was not included in the 75 l. 12 s. 8 d. acknowledged to have been received by the Lieut. Col. Writ - An objection made to a receipt between officers, that it was void, being neither holograph, nor having the solemnities required by the acts of parliament relative to the testing of writings, is not sustained. Was a deed written and executed at Dublin valid, which bore to be "written by Edward Dudgeon, Gentleman?" see note at the end of this case. [ Bailii ] Â John Robertson of Goodlyburn v George Earl of Kinnoul [1720] UKHL Robertson - 287; (1720) Robertson 287 16 Mar 1720 HL Scotland, Litigation Practice Trust - Oath of Party - A person who had conveyed his feu to his superior's son, having contended that the conveyance was deposited with a trustee, till certain conditions were fulfilled: after obtaining the oath of the superior, is also allowed the oath of the son, the disponee. Peer - A matter referred to a peer's oath. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v James Drummond, Son of James Late Lord Drummond, and His Trustees [1720] UKHL Robertson - 290; (1720) Robertson 290 22 Mar 1720 HL Scotland Forfeiture - Fiar or Life-renter - A disposition is made by a father, in 1713, to a son, then a few months old, of his estate, reserving power to fell or in-cumber part for debts already contracted, &c. with concurrence of trustees; and reserving the grantor's life rent: in 1714 the father renounced this life-rent. By his attainder fur treason the estate was not forfeited, being rested in the son. Papist - A child, a few months old, though born of Popish parents, might take an estate by disposition from his father. Husband and Wife - A life-rent or jointure granted to a wife by her son, could not be restricted by a missive letter executed by her without her husband's consent, on which a decree of declarator in absence had been taken. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Sir Robert Grierson, of Lagg, Bart [1720] UKHL Robertson - 298; (1720) Robertson 298 30 Mar 1720 HL Scotland, Crime Forfeiture - Tailzie - A father executes an entail in favour of his son; the son incurs an irritancy, but before declarator is attainted of treason: the Court of Session found that the estate returned to the father, though there was no declarator of the irritancy, and that the irritancy was not purgeable:- upon appeal, the judgment was found null, the Court not having jurisdiction. The estate being held by the son upon a base infeftment from the father, the procurators of resignation in the hands of the Crown not having been executed, and an act of parliament having declared, that the estates of vassals attainted were to go to superiors continuing loyal; the Court upon this act adjudged the estate to the father; but their judgment was reversed upon appeal. [ Bailii ] Â James Farquhar of Gilmillscroft v The Right Hon Hugh Earl of Loudoun [1720] UKHL Robertson - 303; (1720) Robertson 303 5 Jun 1720 HL Scotland, Land Kirk Patrimony - In 1631, certain vassals in church lands advanced money to the Crown, to assist in redeeming a wadset granted to the Earl of Loudoun, the lord of erection, upon condition that they should hold of the Crown as superior, and have certain other privileges: in 1633, the superiorities of all church lands were gratuitously annexed to the Crown; and about same time vassals who should advance money for redeeming their feu duties were allowed by his majesty to treat with the treasury for that purpose, and to retain their feu duties in proportion to the sums advanced. In a question between the wadsetter and the vassals, who advanced money in 1631, it is found that they were not allowed to retain their feu duties, though they had paid money for privileges, the greatest part of which had been granted to other vassals gratuitously. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Sir James Macdonald of Slate, Bart [1720] UKHL Robertson - 307; (1720) Robertson 307 11 Jun 1720 HL Scotland, Crime Forfeiture for Treason - An act of parliament, passed on the 7th of May 1716, enacts that the persons therein mentioned, should, under tain of attainder, surrender themselves to a justice of the peace by a day certain. A person, who had surrendered by letter to the commander in chief, before the passing of the act, and was directed to proceed to a place appointed, but who, it was alleged, was prevented by indisposition; and who never surrendered to a justice in terms of the act, was nevertheless attainted of creation. Proof - The Court having allowed a party to repeat a proof led in the same matter at issue, but in a cause at the instance of another party, in which his present opponents " did compear," the judgment is reversed. [ Bailii ] Â Alexander Lord Saltoun v William Fraser Esq; His Brother, Guardian and Trustee for Alexander Fraser [1720] UKHL Robertson - 312; (1720) Robertson 312 16 Jun 1720 HL Scotland, Trusts Parent and Child - Tutor and Pupil - Lord Saltoun having left 4000 l. payable at the first term after his decease, to the eldest son of the master of Saltoun, and failing him to the grantor's heirs of entail; and having appointed an uncle of the pupil to be his tutor and curator with a salary during nonage with power to uplift the principal and interest, to employ the money in the purchase of lands, &c.: the pupil's father, the heir and executor of the grantor of the provision, was not obliged to pay over the money to the uncle without security, but to pay it to the Court of Session, who were ordered to by it out in the manner directed by the grant. [ Bailii ] Â Ex Parte The Commssioners and Trustees of The Forfeited Estates v George Ogilvie of Lunan, and Mr John Ogilvie of Balbegno, Advocate [1720] UKHL Robertson - 331; (1720) Robertson 331 14 Dec 1720 HL Scotland, Crime Forfeiture for Treason. - Kirk Patrimony - This act for the encouragement of vassals continuing loyal, gave them a right to hold their lands. &c. of the Crown, in the same manner as they were held by the superior forfeited for treason: but vassals in church-lands, who had not claimed the benefit of the acts 1633 and 1661, annexing the superiorities of church-lands to the Crown, and had paid their feuduties to a subject superior, without receiving any new investiture from him, were not on his attainder entitled to the benefit of the said act, 1 G. 1. c. 20., but found to have right to hold of the Crown on payment of the same feuduties, &c. as paid to the forfeiting person. [ Bailii ] Â Ex Parte The Commissoners and Trustees of The Forfeited Estates v Sir James Mackenzie of Royston, One of The Senators of The College of Justice [1720] UKHL Robertson - 335; (1720) Robertson 335 19 Dec 1720 HL Scotland, Crime Forfeiture for Treason. - Recognition to a loyal Superior - An act of parliament having enacted, that the lands of those guilty of high treason, held of subject superiors, should recognosce and return into the hands of the subject superior who continued loyal; John Grant, an attainted person, held his lands of Alexander Mackenzie as his immediate superior: this Alexander was also attainted, and he held of Lord Roystoun as his superior, Lord Roystoun holding of the Crown: by the attainder of Grant, Lord Roystoun was not entitled to the property of Grant's estate, but the same was forfeited to the Crown. [ Bailii ] Â The Commissioners and Trustees for The Forfeited Estates v Sir George Stewart of Balcasky Bart Heir of John Stewart Esq; of Grantully, Deceased [1720] UKHL Robertson - 337; (1720) Robertson 337 21 Dec 1720 HL Scotland Forfeiture for Treason. - Recognition to a loyal Superior - An act of parliament gave to superiors, continuing dutiful and loyal, the estates of attainted vassals: to a separate claiming the estate of his vassal, it is objected, on the 12th of September 1719, that he had not continued dutiful and loyal, but had corresponded with the Pretender, entertained him at his house, and given him a present of plate; the Court of Session, on the 29th of October, two days before their powers expired, granted the objectors a proof; and no proof being adduced on the 31st, circumduced the term against them; and decerned in favour of the claimant: the judgment is reverted. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Patrick Farquharson Late of Inveray, Esq; [1721] UKHL Robertson - 340 9 Jan 1721 HL Scotland Falsa Demonstratio. - Misnomer. - The attainder and forfeiture of Alexander Farquharson, did not affect a person of the same surname and description, but bearing the Christian name of Patrick. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v John Hog, Merchant In Edinburgh [1721] UKHL Robertson - 341 18 Jan 1721 HL Scotland Trust. - Forfeiture for Treason. - A disposition held ineffectual to convey an estate, which was executed by a trustee, and not consented to by the truster. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Sir George Stewart of Balcasky, Bart [1721] UKHL Robertson - 342 20 Jan 1721 HL Scotland Fiar - Forfeiture for Treason. - A crown vassal in 1707 sells and dispones his estate to an onerous purchaser, with procuratory of resignation, and other usual clauses, and the price is paid: the crown vassal in 1715 is attainted for treason, and the purchaser, who had not completed his title by infeftment, makes resignation, and takes sasine on a charter from the crown: The estate was not forfeited by the attainder of the seller. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Sir George Stewart of Balcasky, Bart [1721] UKHL Robertson - 345 23 Jan 1721 HL Scotland, Crime Forfeiture for Treason. Another question of the same nature as in the last appeal, arose between the same parties, in regard to the lands of Waterstown. The titles of the respondent to these lands stood in the same situation, as his titles to the lands of Gaskinhall. No cases have been found on the present appeal. That the questions were the same in this and the last appeal, appears from the report of the English Judges on the point of jurisdiction in the Court of Session, (Journal, 11 March 1719-20,) which they left undecided. [ Bailii ] Â William Hamilton, of Grange, Esq v George Boswell Esq [1721] UKHL Robertson - 346 3 Feb 1721 HL Scotland [ Bailii ] Â Sir Alexander Cuming, of Culter, Bart v The Moderator and Presbytery of Aberdeen, and Mr Wm Abercromby [1721] UKHL Robertson - 364 18 Apr 1721 HL Scotland Writ. - A deletion, and a marginal note signed by the grantor of a deed, neither of which were noticed in the testing clause, being held to be null, the judgment is reversed. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Mr David Erskine of Dunn, One of The Senators of The College of Justice [1721] UKHL Robertson - 368 19 Apr 1721 HL Scotland [ Bailii ] Â William Duff of Dipple Esq; v George Gordon of Glastirum Esq; Et E Contra [1721] UKHL Robertson - 372 21 Apr 1721 HL Scotland Real and Personal. - A disposition is granted by a father to his son of the paternal estate, burdened with all debts contracted or to be contracted by the father; in a question between an onerous purchaser of the said estate, and an assignee of two personal bonds granted by the said disponer, the Court found that the debts were a real burden upon the subject disponed; but their judgment is reversed. [ Bailii ] Â Dr George Middleton v Mr George Chalmers, Principal, and The Rest of The Masters and Regents of King's College, Aberdeen [1721] UKHL Robertson - 391 9 Jun 1721 HL Scotland [ Bailii ] Â Alexander Munro The Younger of Auchinbowie v Grizel Bruce of Riddoch [1721] UKHL Robertson - 387 17 Jun 1721 HL Scotland HL Vis et metus. - A disposition is granted by a woman to her heir at law, reserving her own life-rent, and the courtesy of a future husband, and declaring that it should not affect the heirs of her own body, and is followed by a more formal disposition a few days afterwards, on which infeftment followed: the brings an action for reduction on the ground, that being under arrest at London at the suit of a creditor, her heir had refused to bail her, unless she executed the deed first mentioned, and the bailiff threatening to carry her to Newgate, she gave her consent, and executed the deed as soon as bail was granted, and before the left the spunging-house: The Court reduces the deed and all that followed thereon; but the judgment is reversed. [ Bailii ] Â John Robertson of Goodlyburn, A Pauper v George Earl of Kinnoul [1721] UKHL Robertson - 394; (1721) Robertson 394 5 Jul 1721 HL Scotland, Trusts Process. - Act and Commission - A pursuer opposes the granting an act and commission for examining the defender, a peer in London, in a matter referred to his oath, on the ground that he being old and poor, could not follow the examination: but the commission is granted notwithstanding. Trust - A person executes an absolute surrender of his feu, in favour of his superior's son, but alleging qualifications of trust in a separate verbal agreement, the superior swears that he remembered no term of depositation, and the son, the grantee, swears, that he personally gave no consideration for the deed, and that it was not delivered to him, but that every thing was transacted by his father; and he never heard of any conditions or trust: it is found that the depositions did not support the allegations of trust. [ Bailii ] Â David Falconer, of Newtown, Esq v The Principal and Masters of King's College, and The Provost, Baillies and Council of Aberdeen Ex Parte [1722] UKHL Robertson - 397; (1722) Robertson 397 31 Jan 1722 HL Scotland Presumption - Two deeds of mortification in favour of the same persons, but of different dates, and for different sums, found in the grantors repositories, did not both subsist. A proof of his intention allowed by the instrumentary witnesses. [ Bailii ] Â John Allardice, Merchant In Campvere v Jane Smart, Widow and Executrix of The 'S Father, for Herself and Her Children [1722] UKHL Robertson - 399; (1722) Robertson 399 12 Feb 1722 HL Scotland, Family Provisions to Heirs and Children - A special provision, in a marriage contract, of sums of money to be laid out on land or other good security, and also of conquest in lands, heritages, fishings, sums of money and others, to the heirs of the marriage, went to all the children, and not to the eldest son only. A discharge of provisions granted by two children to their father, in consideration of a certain sum of money, paid to them, operated in his favour with regard to the remainder of their provisions, and not in favour of another child, who did not discharge. Fiar - A house, part of the conquest of a first marriage, is disponed to a person and his wife in conjunct fee and life-rent, and to the bairns of the marriage in fee, whom sailing, to the heirs of the husband: the husband being fiar might settle the life-rent thereof on a second wife. [ Bailii ] Â John Walker of Edinburgh, Merchant v Robert Forrester of Edinburgh, Merchant, and William Macpherson of Edinburgh, Writer [1722] UKHL Robertson - 405; (1722) Robertson 405 16 Feb 1722 HL Scotland Bona fide consumption - An adjudication obtained in 1678, being found extinguished by receipts of the rents: in a subsequent action of count and reckoning, the Court having found the defence of bona fides sufficient to liberate till the date of the interlocutor, finding the adjudication compensed, and that the defenders were not put in mala fide by the citations and arrestments, the judgment is reversed, and they are ordered to account from the date of the arrestments used at commencement of the former action. Costs and Expences - In an action relative to the commencement of mala fides the Court having found that the same did not commence from the date of citation and arrestment, but from the date of the decree, and refused the pursuer his expences; on a reversal of the judgment, it is ordered that the Court tax, and ascertain the expences in that action, and that the same be then paid to the appellant. [ Bailii ] Â John Arratt, Esq v John Wilson of Baikie [1722] UKHL Robertson - 409; (1722) Robertson 409 21 Feb 1722 HL Scotland, Trusts Appeal - In an action of declarator of trust an interlocutor is pronounced, holding a defender as confessed upon an account of charge and discharge, given in by the pursuer, and he is ordered to denude. Afterwards upon the defender's application, the Court allowed him ten days longer to give in his accounts, but before the expiration of these ten days, he brings his appeal against certain interlocutors, and amongst others, against the interlocutors holding him as confest; all which are specially affirmed by the House of Peers. After the determination of the first appeal, the defender applied to the Court to have liberty to give in his accounts in ten days, as allowed by the interlocutor before the appeal: but it was found that his right was extinguished, and that he must denude in terms of the decree affirmed by the House of Lords. [ Bailii ] Â Charlotte Marchioness Dowager of Annandale v James Marquis of Annandale [1722] UKHL Robertson - 411; (1722) Robertson 411 15 Dec 1722 HL Scotland, Family Provisions to heirs and children - Husband and wife - In a contract of marriage with a first wife, a person obliges himself to settle his estate on the heirs of the marriage; by a procuratory of resignation, executed in same terms, he reserved power to grant provisions to a second wife and younger children, on which infeftment followed; and by another deed he afterwards restricted his right of granting provisions to second wife, and children, to the extent of 100,000 l. Scots; After a second marriage, he grants a bond to a second wife for an annuity or jointure of 1000 l. sterling: but made no provisions for children of the second marriage. This second wife in a question with the heir of the first marriage, is declared to have the right to her jointure, till she drew thereout the sum of 100,000 l. Scots. Registration - A deed restricting an unlimited power of granting provisions to a second wife and younger children, which unlimited power was contained in infeftments upon record, is found valid, though not registered, in a question between the heir and a second wife. [ Bailii ] Â Elizabeth Duchess Dowager of Hamilton and Brandon v James Duke of Hamilton and Brandon, and Alexander Gillies [1723] UKHL Robertson - 443; (1723) Robertson 443 21 Jan 1723 HL Scotland, Land Fiar and Life-renter - The Court of Session having found, that a fiar had the right to cut and sell woods growing on part of an estate, that was life-rented, the judgment is reversed. [ Bailii ] Â Simon Lord Lovat v Hugh, The Son of Alexander Mackenzie of Fraserdale, Stiling Himself Hugh Master of Lovat [1723] UKHL Robertson - 449; (1723) Robertson 449 22 Jan 1723 HL Scotland, Land Life-rent Escheat - Aliment of the Fiar - An estate being settled by entail, upon a person in life-rent, and a certain series of heirs in fee, with the burden of an aliment to the first substitute: the life-renter forfeits his life-rent escheat for treason; and the Court of Session having, in a competition with the donator, granted an aliment to the fiar, their judgment is reversed. [ Bailii ] Â Alexander Mill of Hatton, William Ross, and David Butter, Baillies of The Town of Montrose, for Themselves and Other Magistrates of The Said Town v Colonel Robert Reid and Others, Members of The Town Council of The Said Burgh [1723] UKHL Robertson - 452; (1723) Robertson 452 23 Jan 1723 HL Scotland, Elections, Constitutional, Magistrates Member of parliament - In an action to reduce the election of certain magistrates of a royal burgh, on account of the imprisonment of certain of the electors by the provost, who was a member of parliament: the provost's privilege of parliament could not be pleaded to stop the declarator against the other defenders, as not elected by a sufficient quorum: And the provost's privilege of parliament could not stop the pursuers from insisting upon the reason of reduction, that some of the electors were unwarrantably imprisoned by the provost. Burgh Royal -It was relevant to annul the election of magistrates, that the provost had unwarrantably imprisoned some of the electors, during the time of the election, with an intention to prevent their giving their votes at that election. [ Bailii ] Â Mr Patrick Haldane, Advocate, On His Own Behalf, and Robert Dundas, Esq; His Majesty'S Advocate for Scotland, On Behalf of The Crown v The Dean and Faculty of Advocates, and The Principal Clerks of Session [1723] UKHL Robertson - 422; (1723) Robertson 422 4 Feb 1723 HL Scotland, Legal Professions Appeal - The Court of Session having refused to put Mr. Haldane, (who had obtained the king's letter of appointment, as an Ordinary Lord of Session,) upon trial for what the Court deemed want of due service, as an advocate, an appeal lay from the determination of the Court. College of Justice - Mr. Haldane, who had been a member of the faculty of advocates for seven years, but who by being a member of parliament, and a commissioner for the forfeited estates, during great part of that time, did not then attend in the College of Justice, was nevertheless qualified to be a Lord of Session. [ Bailii ] Â Kenneth Mackenzie, Brother of George Mackenzie of Balmuckie, Roderick Mackenzie Younger of Reidcastle, Lewis Mackenzie His Brother, Donald Mackenzie of Kilcowie, John Chisholm of Knockfin, and Archibald Chisholm His Brother v Mr Daniel Mackilligin [1723] UKHL Robertson - 431; (1723) Robertson 431 6 Feb 1723 HL Scotland, Torts - Other Spuilzie - Art and Part - Certain persons who were present with the rebels, (under the command of Lord Seaforth,) when a spuilzie was committed, are found liable in damages, conjunctly and severally, for the damages committed by the said party. The amount of the damages ascertained by the oaths of the pursuers. Interest allowed from the day, after the party of rebels had left the premises spuilzie Costs and Expences - The appellants having failed to appear, on the day appointed for hearing, the respondents' are heard, and the judgment affirmed with 100 l. costs. [ Bailii ] Â James Macpherson, of Killyhuntly v John Macpherson, of Dalrady [1723] UKHL Robertson - 435; (1723) Robertson 435 11 Feb 1723 HL Scotland, Trusts Trust - Qualifications of trust found to be irrelevant. [ Bailii ] Â Alexander Murray, of Broughton, Esq; v George Bullerwell, Gentleman [1723] UKHL Robertson - 436; (1723) Robertson 436 12 Feb 1723 HL Scotland, Wills and Probate Process - In a competition between two persons, claiming to be heirs to an estate, the inquest refused to retour either of them. One of the parties in an action of reduction and declarator, calls the other as a defender; a third claimant now craves to be admitted, as a defender in this action, stating himself to be in the same degree of propinquity with the other defender, which the pursuer acknowledged. The Court having refused to admit this third party as a defender in that action, the judgment is reversed, ex parte. [ Bailii ] Â Alexander Abercromby, Esq; of Glasshaugh, for Himself and The Other Creditors of Alexander Wilson of Littlefield, Deceased v John Innes of Knockorth, and Lewis Donaldson, Writer In Edinburgh, Son, Heir, and Executor of John Donaldson, Deceased [1724] UKHL Robertson - 457; (1724) Robertson 457 31 Jan 1724 HL Scotland, Trusts Trust - Trustees chosen by creditors, who had a salary for their trouble, having thrown the debtor into prison on a caption, but afterwards liberated him without applying to the creditors for their consent; the debt being afterwards lost, it was relevant to make the trustees liable for the debt that they consented to the debtor's liberation. [ Bailii ] Â John Earl of Breadalbane, Sir James Sinclair of Dunbeath, and John Sinclair of Ulbster, Esq; v Alexander Earl of Caithness [1724] UKHL Robertson - 459; (1724) Robertson 459 20 Mar 1724 HL Scotland Reduction Improbation - In an action, where various objections were made to the pursuer's title, the Court having ordered production to be made, and afterwards granted certification; the judgment is reversed, and it is ordered that the defenders be not obliged to take a term for production, until the pursuer make out his title, upon which he founds his suit. [ Bailii ] Â Alexander Murray, of Broughton, Esq; Ex Parte v Captain James Butler, Nephew and Heir of Sir George Maxwell of Orchardton, and The Creditors of The Said Sir George [1724] UKHL Robertson - 465; (1724) Robertson 465 21 Mar 1724 HL Scotland Solidum et pro rata - A debtor grants bond with a cautioner, and afterwards a bond of corroboration with a different cautioner; the money is paid by the cautioner in the corroboration; but he had only relief against the cautioner in the original bond for one half of the sum paid. [ Bailii ] Â Charlotta, Marchioness Dowager of Annandale v James, Marquis of Annandale, John Baillie, Francis Holliday; and Many Others, Claiming To Be Creditors of William, Late Marquis of Annandale, Deceased [1724] UKHL Robertson - 467; (1724) Robertson 467 21 Mar 1724 HL Scotland, Jurisdiction Forum competens - Jurisdiction - The Marchioness of Annandale, residing in England, being appointed executrix for behoof of her children, proves the late Marquis's will in England; various personal creditors of the late Marquis, arrest in the tenants' hands, a jointure payable to the executrix out of the Scots estates: the Court of Session having ordered her to purge the arrestments, before she drew her jointure: the judgment is reversed, and it is ordered that the arrestments be loosed without caution or consignation. [ Bailii ] Â George Munro, of Culcairn, and Captain Donald Macneil v Kenneth Mackenzie, of Auchtiedonald, and Others [1724] UKHL Robertson - 477; (1724) Robertson 477 31 Mar 1724 HL Scotland Costs and Expences - One of the defenders in a spuilzie, who was an officer in the king's service during the rebellion, being assoilzied, petitions for his expences, which are refused by the Court, but the judgment is reversed upon appeal, and the Court is ordered to tax and ascertain his costs. Witness - In a spuilzie brought against the leader of a party, on the king's side during the rebellion, persons belonging to that party were valid witnesses for the defender. Spuilxie - The Court having found the leader of said party liable in damages, without hearing him upon the relevancy; their judgment is reversed, and they are ordered to hear the defender on the relevancy. [ Bailii ] Â Dame Either Gray, Widow and Executrix of Sir James Gray, Bart Her Late Husband, Deceased v Edward Callander, Writer In Edinburgh [1724] UKHL Robertson - 483; (1724) Robertson 483 1 Apr 1724 HL Scotland, Constitutional Assignation General - An assignation to a creditor of as much of the first and readiest of the rents of his lands that should happen to be due to him at the time of his decease, as would satisfy and pay a certain sum, gave no preference in a competition of creditors after the debtor's death. Creditors of a defunct - Act of Sederunt, 1662 - After expiration of six month from the debtor's death, one creditor cites the executor in an action of constitution on the 18th of June, and same day the executor cites that creditor, and the general assignee above-mentioned, in a multiple poinding: the latter afterwards, on the 27th of June, cited the executor in an action of constitution; the creditor, giving the first citation, also got the first decree of constitution, and is by the Court preferred to the other; but the judgment is reversed, and both are preferred pari passu. [ Bailii ] Â Margaret, Agnes, Mary, Marion, and Janet Kennedies, Heirs Portioners of The Deceased Alexander Kennedy, of Glenour, Their Brother, and Their Respective Husbands for Their Interests v Alexander Macdowall, of Garthland [1724] UKHL Robertson - 488; (1724) Robertson 488 13 Apr 1724 HL Scotland, Contract Writ - A bond reduced as vitiated, where after the sum the word "Pounds" was written upon an erazure, and the penalty was in merks, effeiring to a fifth part of the principal if it had been merks, but not if pounds, as it stood on the bond as claimed on. This bond had been allowed, as it then stood, for a compensation in an action, between the father of the persons founding on it, and a third party, upwards of thirty years before, but was not then produced. [ Bailii ] Â James Hamilton of Dalzell, Esq; Ex Parte v James Hamilton Brother To William Hamilton, of Orbiestoun, Deceased, and The Creditors of The Said William Hamilton, and James His Son [1724] UKHL Robertson - 493; (1724) Robertson 493 18 Apr 1724 HL Scotland, Trusts Service of heirs - An estate being disponed to a father and sailing him to his eldest son, and the heirs male of his body, with other subsitutions; and the eldest son having survived the father was infeft thereon, and died afterwards without serving heir to him: the Court found the right to the estate not fully vested in the son without a service, but the judgment is reversed upon appeal. Death-bed - The Court having found that death-bed could be pleaded by an heir cut off by two prior deeds, and by creditors, the judgment is reversed. Did, contracting the sickness at the time of executing the deed, constitute death-beds? Fiar absolute limited - A father grants an absolute dispsition to his son, which is not completed by infeftment or by making up schedules in term, thereof the son afterwards joins with the father in making two new settlements of the estate, and the father who still continued in possession grants and position to a third party, after the son's death; the Court having found these posterior dispositions were not of prejudice to the son's creditors, the judgment is reversed. [ Bailii ] Â Alexander Bayne, Advocate v The Commissioners and Trustees for The Forfeited Estates [1725] UKHL Robertson - 507; (1725) Robertson 507 13 Jan 1725 HL Scotland Temporary Jurisdiction in the Commissioners for the Forfeited Estates - By several acts of Parliament, the claims relative to forfeited estates, were to be entered before the commissioners by a day certain: in certain cases application was to be made to the Court of Session. A person mistaking his remedy, applied to the Court of Session, and obtained a judgment in his favour; but that was afterwards (among many others) annulled by the House of Lords, for want of jurisdiction; he then entered a claim before the trustees, which they refused to consider as not being entered within the time limited: and an appeal to the Court of Delegates was also refused, "leaving the petitioner in his circumstantiate case, to make application for redress to the proper powers." The judgment of the Court of Delegates is affirmed. [ Bailii ] Â The Commissioners and Trustees for The Forfeited Estates, On Three Appeals v George Lockhart of Carnwath, Esq; [1725] UKHL Robertson - 514; (1725) Robertson 514 6 Feb 1725 HL Scotland, Legal Professions Presumption-Bond - Bonds of pension granted to an advocate, afterwards President of the Session, during his continuance to be an advocate, are sued on, after his death by his son, as wholly remaining due, after the lapse of a good many years from their dates; and are sustained till the date of the grantee's becoming President of the Session, his son giving his oath of credulity as to any payments made on the debts acclaimed. [ Bailii ] Â The Commissioners and Trustees of The Forfeited Estates v Elizabeth Stevenson, Widow of Archibald Pitcairn of That Ilk, Doctor of Medicine [1725] UKHL Robertson - 518; (1725) Robertson 518 13 Feb 1725 HL Scotland, Crime Treason - Obligations granted in Prison before Trial - The Earl of Winton, while in prison previous to his trial and attainder for high treason, granted receipts bearing to be for money advanced to him, but these are not allowed in whole. It is found, however, that he was entitled to be alimented out of his estate at that period, and to apply money to the expences of his trial, and for his maintenance in prison for three months 5 and for such expences a sum of money (2972 l. 3 s.) is modified. [ Bailii ] Â William Duff of Braco, Mr Leslie of Melrose, and Others v The Right Honourable David Earl of Buchan [1725] UKHL Robertson - 525; (1725) Robertson 525 15 Apr 1725 HL Scotland Reduction Improbation - Union - The defenders in a reduction improbation having objected to the pursuer's infeftment. which was taken at the Castle of Banff, by dispensation in a charter of 1625, that by a posterior charter that cattle was disjoined from the barony; the Court found that objection not relevant to hinder the taking of terms for production, reserving this matter after production: but their judgment is reversed. The defenders made another objection, that the pursuer claimed under a charter to heirs male, whereas a subsequent charter, as they offered to prove, had been granted to heirs general. The Court gave the same judgment on this objection as on the former, but their judgment is also reversed: And it is ordered, that in the further progress of the cause the Court do not oblige the appellants to take a term for production until the pursuer make out his title upon which he founds his suit Sasine - The Court having repelled an objection made to a sasine written tookways, that the witnesses had only signed the last page; the judgment is reversed. [ Bailii ] Â Volrath Tham, Merchant In Gottenburgh v Charles Sheriff, and Richard Sheriff [1725] UKHL Robertson - 534; (1725) Robertson 534 23 Apr 1725 HL Scotland, Contract Factor - A foreign factor advises his correspondents, that he has disposed of a cargo, and shipped returns for it, on both which he charges commission; he afterwards brings an action against the correspondents, alleging that he had lent his own goods, and had not received proceeds for theirs; but he is not allowed to prove facts contrary to his correspondence. The knowledge of the ship-master, though Supercargo, and part owner, not relevant against the correspondence. Proof - The factor having refused to allow a proof of the ship-master's knowledge by his own oath, a proof by witnesses is refused him. [ Bailii ] Â John Neilson, of Chappell, Esq; v John Murray, of Conheath, Esq; [1726] UKHL Robertson - 547; (1726) Robertson 547 16 Feb 1726 HL Scotland Papist - Jus tertii - An estate descends to two heirs portioners; the eldest a Papist, by her first marriage, has a son, a Protestant; in a contract on her second marriage she covenants to settle the estate on her husband and the heirs male of that marriage. After her second husband's death, the eldest son of that marriage, a Papist, grants a disposition of the estate to a third party: no titles had been hitherto made up by this son of the second marriage, nor by his mother; but the disponee now gave them a charge to enter heirs, and thereupon got adjudication. It was not jus tertii to the Protestant heir of the first marriage to object against this disposition. Papists on whom the succession to heritable subjects devolved before the act 1700, were nevertheless precluded from serving heirs after that act passed without taking the formula. An onerous purchaser from a Papist could not be in a better situation than the Papist himself. A person popishly educated, who never took the formula, held to be a Papist. An objection that a question was not moved of the disponee's Popery, and that he never was required to take the formula during his life, is repelled. The act of parliament 3 G. 1. c. 18. did not extend co Papists in Scotland. [ Bailii ] Â Sir John Schaw, of Greenock, Bart v Dame Margaret, The Widow of Sir John Houston, Bart Sister of The [1726] UKHL Robertson - 552; (1726) Robertson 552 2 Apr 1726 HL Scotland Presumption. - Intromission with the Settlements of a Person deceased. - Proof - In a reduction of a mother's settlements brought by her son and heir, against a sister, who was benefited by them, on the ground that the sister bad access to the repositories of the deceased, and took what she chose, and might have destroyed the rest; the sister stated in defence that the deeds had been given to her by her mother: it was necessary for the pursuer to prove that the defender's intromission was unwarrantable. The deeds produced were presumed to contain the last will of the deceased. A circumstantial proof, brought by the pursuer, that the deceased had declared that she had made other settlements, and of embezzlement on the part of the defender, found insufficient. [ Bailii ] Â Sir Alexander Cuming of Culter, Baronet, Eldest Son, Executor, and Assignee of Sir Alexander Cuming, Deceased v James Ferguson Esq, of Pitfour [1726] UKHL Robertson - 577; (1726) Robertson 577 23 Apr 1726 HL Scotland South Sea Company. - Act 7 Geo. 1. St. 2. - An heritable bond is granted in consideration of transferring a sum of South Sea stock, at the then next opening of the books; by a separate obligation the grantee was entitled to transfer, at said opening or any time thereafter, on three days advertisement; by an act of parliament all contracts for the sale of stock not performed by a certain day were to be registered, or otherwise void; The stock was not transferred at the opening; the bond was registered in due time, but not the separate obligation. In a reduction it is found relevant to reduce the bond, that the transfer was not made at the opening as specified in the bond, &c. and the defence on the separate agreement is repelled, it not being registered in terms of the act of parliament. But at the bar the parties made an agreement that the bond should be good for part of the sum, and on their agreements the interlocutors are reversed, and the bond ordered to be effectual for that [ Bailii ] Â Sir Alexander Cuming, Baronet, Eldest Son and Executor of Sir Alexander Cuming, Baronet, Deceased v Robert Pantoun, Late of Rotterdam, But Now of London, Merchant [1726] UKHL Robertson - 582; (1726) Robertson 582 28 Apr 1726 HL Scotland Lis Alibi pendens - A defence of lis alibi pendens is repelled, where the pursuer produced an order of the Court of Chancery, dismissing a suit which he had instituted upon same grounds with his action in the Court of Session, and a declaration under his hand disclaiming all further proceedings in that suit. Usury - In a loan of money to be repaid by drawing and re-drawing on a foreign merchant, the borrower agreed to pay the exchange and re-exchange: though this by the course of exchange amounted to more than legal interest, it was not usury. Annual-rent - A loan agreed to be repaid by a certain day, bore interest after that day, though no interest was stipulated for: exchange and re-exchange, which the borrower agreed to pay, also bore interest from the day of payment: in a decree for payment of a certain sum, part of this is distinguished as principal bearing interest, and part as interest only. Deposuum - The depositary of a South Sea subscription, was warranted in paying money, and accepting stock, as the principal must have done in terms of an act of parliament. [ Bailii ] Â Mr Walter Stirling Writer In Edinburgh v William Gray, of Invereighty Ex Parte (A) [1727] UKHL Robertson - 590; (1727) Robertson 590 13 Feb 1727 HL Scotland Penal Irritancy - Homologation A collector of taxes, during Cromwell's usurpation enters into an agreement with a person who had a commission to sue, compound, transact, and agree on the part of the Crown: to this commissioner the collector granted bonds for certain sums, and the commissioner obliged himself to deliver to the collector, by a day certain, a release from the Crown, otherwise the parties to remain as they were before the bonds were granted: it is found that this no penal irritancy, and not to be purged after elapsing of that day. A payment by the collector, after the elapsing of that day, was no homologation, or passing from the resolutive clause. [ Bailii ] Â Patrick Haldane, Esq; v Sir Alexander Anstruther, Bart Robert Lumsden of Innergellie, and Isabel Lady Dowager of Innergellie, His Mother, Mr Walter Wilson, and Sir John Anstruther, Bart [1727] UKHL Robertson - 601; (1727) Robertson 601 20 Mar 1727 HL Scotland Sale - By articles of agreement for the sale of an estate, the disposition was to be delivered by a day certain, and the price to be paid ten days afterwards; but the seller was not obliged to deliver the disposition till heritable security was granted for the price. The estate being much incumbered, the creditors are preferred to the price upon assigning their debts with absolute warrandice. [ Bailii ] Â Elizabeth Duchess of Hamilton v James Duke of Hamilton [1727] UKHL Robertson - 604; (1727) Robertson 604 29 Mar 1727 HL Scotland HL Process - A widow brings an action against her son, as his fathers heir, to make good a jointure, which she alleged was deficient the son contends that the pursuer had not implemented her part of the marriage-articles, and calls upon her to produce per duplicate of them; stating that the other duplicate was produced by him in a suit between the parties in Chancery in England: she declining to do this, is ordered before answer to produce her part of the marriage-articles. [ Bailii ] Â Appendix for Robertson [1727] UKHL Robertson - App - 617 17 Apr 1727 HL Scotland Twenty-five cases of appeal, at the instance of the Commissioners and Trustees for the forfeited Estates, noticed briefly at the end of the appeal brought by these Commissioners and Trustees v. James Drummond, in which the judgments of the Court of Session were found to be null and void for want of jurisdiction [ Bailii ] Â Multiple Cases With Citation: [1729] Mor 2435 [1729] Mor 2435 1729 SCS Scotland [ Bailii ] Â William Earl of Aberdeen v William Earl of March; Alison Callender, Widow; James Halyburton, and Andrew Dunnet [1730] UKHL 1 - Paton - 44; (1730) 1 Paton 44 9 Apr 1730 HL Scotland Assignation - What sufficient intimation [ Bailii ] Â James Gordon of Craigland v Patrick Crauford, The Father, and Patrick Crauford, The Son [1730] UKHL 1 - Paton - 47; (1730) 1 Paton 47 28 Apr 1730 HL Scotland Fraud and circumvention inferred from the distressed state of the granter of a disposition, the deceitful terms of the writings, and the great inequality of the bargain. [ Bailii ] Â John Carre of Cavers, Esq v John Haldane of Lanark, Esq [1731] UKHL 1 - Paton - 51; (1731) 1 Paton 51 15 Mar 1731 HL Scotland Writ - What an insufficient designation of a witness to a bond. [ Bailii ] Â Sir William Gordon, Bart v Ludovick Gordon, Merchant In Elgin [1731] UKHL 1 - Paton - 60; (1731) 1 Paton 60 5 Apr 1731 HL Scotland Process - res judicata - A party having been prosecuted before the Court of Justiciary, on a criminal charge, concluding likewise for damages and expenses, and acquitted,-found to be still subject to a civil action. Oath of party- Found to be discretionary with the Court whether or not to grant commission for taking the oath of a party who was out of Scotland at the time. [ Bailii ] Â John Neilson of Chappel, and James Lanrick of Ladylands v John Murray, Et Alii [1732] UKHL 1 - Paton - 65 14 Mar 1732 HL Scotland [ Bailii ] Â Captain Alexander Hamilton v The Lords Directors of The Dutch East India Company, and William Drummond, Their Factor [1732] UKHL 1 - Paton - 69 4 Apr 1732 HL Scotland [ Bailii ] Â William Fergusson, Esq of Auchinblane v Mr William Maitland, Minister, James Rob, Merchant In Edinburgh, and Isabel, His Wife [1732] UKHL 1 - Paton - 73 5 Apr 1732 HL Scotland [ Bailii ] Â David, Viscount of Stormont v John Henderson, Et Alii, Kindly Tenants or Lochmaben [1732] UKHL 1 - Paton - 77 20 Apr 1732 HL Scotland [ Bailii ] Â John Duke of Argyle and Greenwich v John Earl of Breadalbane, John Campbell, Younger of Kintraes, Et Alii, Creditors or Archibald Campbell of Barbreck [1732] UKHL 1 - Paton - 84 6 Jun 1732 HL Scotland [ Bailii ] Â Stirling v Earl of Lauderdale (1733) Mor 2930 1733 Scotland, Equity The maxim ignorantia juris non excusat did not apply only to the law of delict. 1 Citers Â Robert Easton, Et Alii, Feuars of Denny, In Name and Behalf of Their Tenants v William Stirling of Herbertshire Esq [1733] UKHL 1 - Paton - 90 27 Feb 1733 HL Scotland [ Bailii ] Â Patrick Heron of Heron, Esq v Charles, Duke of Queensberry and Dover [1733] UKHL 1 - Paton - 98 27 Apr 1733 HL Scotland [ Bailii ] Â Alexander Irvine of Crimond, Esq and Irvine of Artamford v Sir Alexander Cumming, Ogilvie, Gordon, and Others, The Trustees for The Creditors of Alexander Irvine [1733] UKHL 1 - Paton - 103 4 Jun 1733 HL Scotland [ Bailii ] Â Archibald Denham of Westshield, Esq Advocate v Mr James Baillie, W S [1733] UKHL 1 - Paton - 113 5 Jun 1733 HL Scotland [ Bailii ] Â George, Marquis of Annandale v John, Lord Hope [1733] UKHL 1 - Paton - 108 28 Jun 1733 HL Scotland [ Bailii ] Â Thomas Lutwidge, Merchant In Whitehaven; and Peter How, Merchant, His Assignee v Archibald Gray, John Buchannan, and John King, Merchants In Glasgow [1734] UKHL 1 - Paton - 119 23 Feb 1734 HL Scotland [ Bailii ] Â John, Duke of Roxburgh v James Don, Alias Wauchope, of Edmonstone, Esq [1734] UKHL 1 - Paton - 126 5 Mar 1734 HL Scotland [ Bailii ] Â Anderson, An Idiot, By Chatto and Anderson, etc Paupers v Anderson and Bull, etc [1734] UKHL 1 - Paton - 136 13 Mar 1734 HL Scotland [ Bailii ] Â David Brown, Moderator of The Synod of Aberdeen, and Others v Mr George Chalmers, Principal of The Old College of Old Aberdeen, and Others [1734] UKHL 6 - Paton - 663 14 Mar 1734 HL Scotland [ Bailii ] Â Mr Archibald Murray, Et Al, Trustees for The Creditors of John Lowis of Merchistoun v The Honourable Francis Charteris and His Guardians [1734] UKHL 6 - Paton - 667 3 Apr 1734 HL Scotland [ Bailii ] Â James Hepburn Richart of Keith v Charles, Earl of Hopetoun [1734] UKHL 1 - Paton - 143 5 Apr 1734 HL Scotland [ Bailii ] Â Hoggan, Provost of The Burgh of Kinghorn, Et Alii v William Wardlaw, Colonel James St Clair, Et Alii [1735] UKHL 1 - Paton - 148; (1735) 1 Paton 148 10 Mar 1735 HL Scotland, Elections Pactum illicitum - Member Of Parliament - A bond entered into by a portion of a body of electors, binding themselves to vote according to the opinion of the majority of their number, found to be contra bonos mores and illegal. The election following thereon annulled. Borough Royal - The sett recorded in the books of the Convention of Royal Burghs must be adhered to, notwithstanding that previous contrary practice be alleged, [ Bailii ] Â John, Duke of Roxburgh v Christian Kerr of Chatto, and Charles Kerr, Esq Her Husband, and Captain William Elliot of Wells [1735] UKHL 1 - Paton - 156; (1735) 1 Paton 156 18 Mar 1735 HL Scotland, Land Tailzie - An estate was held under a strict entail against contracting debt, or doing any deed whereby it might be evicted, but with power to the heirs to burden it with the entailer's debts. In security of some of these debts, proper wadsets were granted over a part of it, and the heir afterwards executed a bond of eik in favour of the creditor upon his becoming bound to relieve him of certain other of the debts. It was found that the bond was not ultra vires of the heir, and that a decree of apprising proceeding upon it, by which the lands had been carried off, was not struck at by the entail. [ Bailii ] Â Sir Thomas Moncrieff, Bart v Thomas Moncrieff, Esq [1735] UKHL 1 - Paton - 162; (1735) 1 Paton 162 21 Mar 1735 HL Scotland Aliment - The Court of Session having modified aliment to a son, the same was restricted to the allowance which had originally been voluntarily given by the father. Judgment for the appellant ex parte. [ Bailii ] Â George Heriot, Et Alii, Styling Themselves Magistrates and Members of The Town Council of Haddington v William Ray, Et Alii, Likewise Styling Themselves Magistrates and Members of The Town Council of Haddington [1735] UKHL 1 - Paton - 171; (1735) 1 Paton 171 30 Apr 1735 HL Scotland, Elections Burgh royal - Prescription - Act 7. Geo. II. c. 16. An action being brought for setting aside the election of Magistrates on the ground of irregularities in the previous election of deacons of trades,it was found that the limitation of eight weeks imposed by the statute, was to be reckoned from the date of the election of Magistrates, and not from that of the deacons. It was found that, in the event of an equality at the election of a deacon of the trade, the old deacon had a casting vote. It being argued that a person was disqualified for voting at the election of a deacon, because he was bellman of the borough - the objection was repelled. [ Bailii ] Â John, Earl of Breadalbane v William Innes, George, Lord Reay, Et Alii [1736] UKHL 1 - Paton - 181; (1736) 1 Paton 181 11 Feb 1736 HL Scotland, Wills and Probate Foreign - A Scotchman dying in England, where his will was duly proved by the executor therein nominated, it was found that an executor-creditor could not recover in Scotland a debt due upon a bond to the deceased. Oath of Party - Privilege- A claim of debt against a Peer being referred to his oath, the Court of Session found that he was not entitled to have his examination taken upon honour. This point was not expressly decided in the House of Lords. [ Bailii ] Â John Nairn of Greenyards, Esq v Margaret, Lady Dowager Nairn Et Alii, Her Creditors and Heirs of Entail The Lord Advocate, On Behalf of His Majesty [1736] UKHL 1 - Paton - 192; (1736) 1 Paton 192 14 Jun 1736 HL Scotland, Trusts Tailzie - Clause - In an entail in favour of a daughter, nominatim, a clause "prohibiting the heirs female of the said Margaret, her body, or any other of the heirs male and of tailzie above written, (except the heirs male of the said Margaret's body,) to sell, &c." found to debar the daughter from selling. [ Bailii ] Â Bell v Gartshore 2 Ross's LC 410; (1737) M 2848; 1737 IHCS Scotland, Land The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights. 1 Citers Â Redpath v White 1737 Mor 15196 1737 Scotland, Landlord and Tenant The court considered the status of a lease of indefinte term. 1 Citers Â Bell of Blackwoodhouse v Gartshore 1737 M 2848; 5 Br Suppl 198; 2 Ross's LC 410 1737 Scotland, Land Alexander Oliphant bought a tenement in Kelso which was being sold by the adjudging creditors of William Chatto. Without becoming infeft, in 1730 Oliphant disponed the decree of sale to Chatto's son, who also was not infeft. Two years later Chatto junior granted a heritable bond to Bell of Blackethouse who had paid two bills of exchange for him and was entitled to relief. Bell entered into possession but was not infeft. In 1734 John Gartshore, another creditor of Chatto junior, adjudged the decree of sale of the tenement from him and obtained a charter of resignation from the superior, the Duke of Roxburgh, on which he was infeft. A question arose as to the respective entitlements of Chatto junior's two creditors, Bell and Gartshore. Held: No conveyance of a personal right to lands can so divest the disponer as to prevent him from granting a posterior deed that may, by prior sasine, be made the preferable. 1 Citers Â Alexander Denham, Esq v Archibald Stewart, Esq (Alias Denham,) [1737] UKHL 1 - Paton - 233; (1737) 1 Paton 233 17 Feb 1737 HL Scotland Tailzie - The conditions and irritant clauses not being inserted in a general retour, found not to infer an irritancy. [ Bailii ] Â John Walkinshaw v His Majesty's Advocate, Et Alii [1737] UKHL 1 - Paton - 197; (1737) 1 Paton 197 9 Jun 1737 HL Scotland Falsa Demonstratio - Found that an attainder was not vitiated, although in the act the person was described by the name of Wakinshaw, instead of Walkinshaw, and as being "of Scotstoun," (the estate of his father,) although, at the time, he was not infeft in any lands [ Bailii ] Â The Magistrates of Montrose v David Erskine of Dun, Esq One of The Senators of The College of Justice [1738] UKHL 1 - Paton - 222; (1738) 1 Paton 222 12 Feb 1738 HL Scotland, Litigation Practice Process - Appeal - It being objected that the Lord Advocate, who had an interest in the cause, and who had been a party in the Court of Session, was not made a party to the appeal; and that the cause had not been finally determined in the Court of Session; - the appeal was dismissed. [ Bailii ] Â Marquis of Lothian, Et Alii v Haswell, Et Alii [1738] UKHL 1 - Paton - 207; (1738) 1 Paton 207 14 Apr 1738 HL Scotland, Magistrates Burgh Royal - The meeting for election of magistrates of a burgh being held previous to the usual day, and without due notice, the election was reduced. [ Bailii ] Â Multiple Cases With Citation: [1739] Mor 2469 [1739] Mor 2469 1739 SCS Scotland [ Bailii ] Â Sir William Billers, Et Alii v The Duke of Norfolk, Et Alii [1739] UKHL 1 - Paton - 255; (1739) 1 Paton 255 1 Feb 1739 HL Scotland Infeftment - General Burden - Fraud - Litigious - A disposition to a creditor, and infeftment thereon, set aside, having been granted during the currency of a term, which the debtors had taken to produce a progress in an action of adjudication which had been raised against them at the instance of another creditor. [ Bailii ] Â George, Marquis of Annandale v The Earl and Countess of Hopetoun, Et E; Contra [1739] UKHL 1 - Paton - 225; (1739) 1 Paton 225 15 Feb 1739 HL Scotland Mutual Contract. - Passive Title- Act 1695, c. 24.- Circumstances of an obligation incurred by an apparent heir, under which the next heir, passing him by, and serving to a remoter ancestor, was found liable, without relief against the executry, or other separate estate of the apparent heir. [ Bailii ] Â Sir John Home of Renton v Sir John Home of Manderston [1739] UKHL 1 - Paton - 260; (1739) 1 Paton 260 23 Feb 1739 HL Scotland Wadset. - Right in security.- Circumstances in which the right of reversion in a security of the nature of a wadset was found not to have expired by the mere lapse of time, although it had been declared in the agreement that the right of reversion "should cease on the running thereof." [ Bailii ] Â Mary Buchan v Sir Hew Dalrymple and Sir Alexander Hope [1739] UKHL 1 - Paton - 237; (1739) 1 Paton 237 27 Mar 1739 HL Scotland Tailzie - Under a substitution "to the heir female of the body" of the entailer - Found that the daughter of the entailer's eldest son is entitled to succeed in preference to the daughter of the entailer, and to the daughter of a second son who died last seized in the estate. [ Bailii ] Â Hugh Murray, Kinnynmound, Trustee of The Late Sir James Rochead; and James Dalrymple, and David Kinloch v Sir Francis Kinloch; Sir James Dalrymple, Et Alii [1739] UKHL 1 - Paton - 245; (1739) 1 Paton 245 29 Mar 1739 HL Scotland Death-bed. - Mutual contract.- Whether a renunciation by an apparent heir of his right to challenge ex capite lecti, granted to the ancestor while he was in liege poustie, be binding? Whether such a renunciation granted by two of four apparent heirs be binding on them, the other two not having acceded to the obligation, and the party obtaining it being thus prevented from fulfilling his part of the conditions of the contract? [ Bailii ] Â William Fullerton, Et Alii v David Kinloch [1740] UKHL 1 - Paton - 265; (1740) 1 Paton 265 13 Feb 1740 HL Contract, Scotland A simple contract debt incurred in England, though in that country not affecting the heir of the debtor, may be the ground of affecting his landed estate in Scotland. [ Bailii ] Â Sir James Cunningham, of Milnecraig v Captain John Chalmer of Gadgirth, and The Earls of Loudon, and Stair, and Colonel Dalrymple [1740] UKHL 1 - Paton - 267; (1740) 1 Paton 267 24 Mar 1740 HL Litigation Practice, Scotland A proof taken in virtue of a diligence from the Court of Session, in the course of a submission, which came to an end without any decreet-arbitral being pronounced, admitted in the particular circumstances of the case, in a subsequent litigation between the same parties, the power of re-examining the witnesses being reserved. The Court of Session having (by an interlocutor not appealed from) refused to make certain persons parties to a depending action,-it was found to be incompetent to call them as parties in the House of Lords, in an appeal from the final judgment in the action. [ Bailii ] Â John, Earl of Selkirk v James, Duke of Hamilton and Brando [1740] UKHL 1 - Paton - 271; (1740) 1 Paton 271 3 Apr 1740 HL Scotland What held to fall under conquest. [ Bailii ] Â Antonius, Second Son of The Said Count Leslie v The Said James Leslie, Et Alii [1742] UKHL 1 - Paton - 324 29 Apr 1742 HL Scotland Tailzie. - Clause.- Found that a clause providing "that in case any heir of entail should succeed to a certain other estate, he and the heirs male of his body so succeeding, should be obliged to denude in favour of the next heir;" and that the estate in that event should be redeemable "from the said heirs male who shall succeed to both the said estates, and his heir male foresaid,"-has not the effect of excluding all the heirs male of the body of the person so succeeding (so as to make room for the next branch,) but only his eldest son, or heir apparent; and the succession opens to the second son. [ Bailii ] Â George Ainslie v Arbuthnot and Co [1743] UKHL 1 - Paton - 340; (1743) 1 Paton 340 7 Feb 1743 HL Scotland, Agency A factor taking bills in his own name, from his constituent's debtor, without giving notice thereof to his constituent, found liable for the loss arising from the bankruptcy of the debtor. [ Bailii ] Â William Campbell v Margaret Campbell and Husband [1743] UKHL 1 - Paton - 343; (1743) 1 Paton 343 17 Feb 1743 HL Scotland A destination of personal property to A; and in case of his decease to B, found to be a proper substitution, which subsisted although the institute survived the testator. Found that this substitution, although alterable by the institute, was not affected by a previous general disposition of all that might belong to him at his death. [ Bailii ] Â McLeod v McLeod (1744) Mor 16754 1744 Scotland, Legal Professions 1 Citers Â Patrick Calder of Redford, and William Anderson, Surgeon v Mary Provan [1744] UKHL 1 - Paton - 359 12 Jan 1744 HL Scotland [ Bailii ] Â Captain John Stewart, Alias Colterane v William Graham, Trustee for Agnes Stewart, Et Alii [1744] UKHL 1 - Paton - 364 10 Feb 1744 HL Scotland [ Bailii ] Â Colonel Stratton v The Magistrates of Montrose [1744] UKHL 1 - Paton - 367 19 Mar 1744 HL Scotland [ Bailii ] Â The Right Honourable Earl of Moray v Charles Ross of Balnagowan, Esq, and Others [1744] UKHL 6 - Paton - 801 6 Apr 1744 HL Scotland [ Bailii ] Â Thomas Watson, Trustee for The Heir of Hamilton of Redhouse and Creditors v Thomas Glass, Et Alii [1744] UKHL 1 - Paton - 372 5 Dec 1744 HL Scotland [ Bailii ] Â David Cooper of Newgrange v Alexander Hunter of Balskelly, Et Alii [1744] UKHL 1 - Paton - 376 11 Dec 1744 HL Scotland [ Bailii ] Â James Catanach, Et Alii C H Gordon, and R Paterson, Vice-Chancellor of The University of Aberdeen [1745] UKHL 1 - Paton - 401 11 Apr 1745 HL Scotland, Legal Professions Professor of law.- It being required by the foundation of a college, that the professors of law should be doctors of laws, or at least licentiates, cum rigore examinations, an objection that the college could no longer confer that degree legally, was not sustained against one who pretended to be so qualified. [ Bailii ] Â The Lord Advocate v Alexander, Lord Forbes of Pitsligo [1751] UKHL 1 - Paton - 482 1 Feb 1751 HL Scotland Falsa Demonstratio. - Forfeiture.- Alexander, Lord Forbes of Pitsligo, found by the Court of Session to be not attainted by the attainder of "Alexander, Lord Pitsligo." Judgment Reversed. [ Bailii ] Â Daniel Midwinter, Et Alii Book Sellers In London v Alex Kincaid, Et Alii Booksellers In Edinburgh and Glasgow [1751] UKHL 1 - Paton - 488 11 Feb 1751 HL Lord Elchies Scotland, Intellectual Property Process. - Literary Property. - Act 8 Anne c. 19.- Found in the House of Lords, that an action on the statute was improperly and inconsistently brought, by demanding at the same time damages for books surreptitiously sold, and also the penalties of the act; and likewise, by joining in the same summons several pursuers claiming distinct and independent rights in different books. [ Bailii ] Â William Sutherland, of Little Torbol, Esq v Alexander Gordon of Ardoch, Esq Et Alii [1751] UKHL 1 - Paton - 493 7 Mar 1751 HL Scotland, Trusts Provision to Heirs and Children. - Fiar absolute and limited.- A disposition in a marriage contract to the heir of the marriage in fee, with an obligation to infeft, and absolute warrandice, imports only a right of succession, and not a jus crediti, in a question with onerous creditors. Inhibition.- A right of succession under a marriage contract cannot by inhibition be made effectual against onerous creditors of the father. [ Bailii ] Â Countess of Strathmore v George Forbes, Sometime Factor and Steward To The Said Countess, and Susan-Janet-Emilia Forbes, An Infant, Lawful Daughter of The Said George Forbes, By The Said Countess, His Wife [1751] UKHL 6 - Paton - 684 20 Mar 1751 HL Scotland, Family Marriage - Cohabitation - Proof. - A declarator of marriage and legitimation was brought by the respondent, Forbes, founding upon marriage celebrated and performed in Scotland, by some clergyman unknown; and founding, also, on cohabitation in Scotland, and also cohabitation as man and wife in Holland. Held him entitled to a proof of the marriage, and also of the cohabitation as man and wife in Scotland, but not of the cohabitation in Holland. On advocation of this judgment of the Commissaries, the Court remitted to them to allow a proof of the marriage in Scotland, and of the cohabitation in Holland, as an incident of that marriage. On appeal to the House of Lords, appeal withdrawn, of consent, and interlocutors affirmed. [ Bailii ] Â The Lord Advocate v John Gordon, Esq Et E Contra [1751] UKHL 1 - Paton - 508 21 Mar 1751 HL Scotland Tailzie. - Forfeiture. - Act 7 Annae, c. 21.- An entail prohibiting, under strict irritant and resolutive clauses, "any deed civil or criminal, or even treasonable, whereby the estate may be in any way evicted, forfeited," &c.; and it being declared that any such deed "should only irritate the right of the committer thereof, but should in no ways affect the right of the next heir, albeit descending of the contravener's body,-Found, that by the attainder of the heir in possession, the estate was forfeited to the crown, not only during his own life, but so long as there should survive any issue of his body who would have been entitled to succeed under the entail, had there been no attainder; and further, that whatever interest might eventually arise to the attainted person under the substitution to "the heirs and assignees" of the entailer, was also forfeited to the crown. The heir possessing under an entail being attainted,-it was [ Bailii ] Â The Lord Advocate v Lord Boyd, Et Alii [1751] UKHL 1 - Paton - 498 28 Mar 1751 HL Scotland Forfeiture. - Act 1, Geo. I. c. 20.- A conveyance by a father to his son after the date specified in the act, sustained-the debts charged on the estate, and for which the son became personally liable, being nearly equal to the value of the lands. [ Bailii ] Â George Montgomery-Moir, Esq of Leckie v Anne, His Wife, and Others [1751] UKHL 6 - Paton - 687 24 Apr 1751 HL Scotland, Family Separation and Aliment - Cruelty. - The respondent raised an action of separation and aliment against her husband, the appellant, on the ground of cruelty and a calumny published by him against her honour and reputation. It was objected, that there was no relevant statement to support the action. The Commissaries allowed a proof of the libel. On advocation the Court refused the bill, but remitted, with instructions to the Commissaries, to allow a proof only of such facts as appeared material, and of the publication alleged. Proof of the calumnies on the part of the husband was allowed. The Commissaries found facts and circumstances proved relevant to infer separation. On bill of advocation the Court refused the bill, and remitted to the Commissaries. In the House of Lords reversed, and held the evidence not sufficient to support the conclusions for separation and aliment. [ Bailii ] Â Thomas Drummond of Logie Almond v The Lord Advocate [1751] UKHL 1 - Paton - 503 30 Apr 1751 HL Scotland A person being attainted by virtue of the act, which declared that if he did not surrender himself before the 12 July following, he should stand attainted of treason from the 18 April preceding;-it was found that the forfeiture did not operate retro to the effect of incapacitating him to succeed to property in the interval. [ Bailii ] Â Walter Grosset, Esq, Inspector-General of His Majesty's Customs At The Port of Leith v Thomas Ogilvy of Dundee, In The County of Forfar, Merchant [1753] UKHL 2 - Paton - 1 16 Feb 1753 HL Scotland, Customs and Excise Customs - Act 3 Anne, c. 13, and 9 Geo. II.-Indemnity Act, 18 Geo. II.-Tobacco was imported from the Plantations abroad, by merchants in Leith, upon which the usual duties were paid. Afterwards it was exported, and, in terms of the act in such cases, a drawback of the whole duty was obtained, and the goods exported under a certificate that they were for foreign export. After the ship proceeded to sea the tobacco was clandestinely relanded: Held that the Indemnity Act; 18 Geo. II., did not apply to such a case, and that the tobacco was forfeited, and the penalties attached. [ Bailii ] Â His Majesty's Advocate v Mary Drummond, Only Daughter of The Marriage Between James, Lord Drummond and Lady Jane Gordon [1753] UKHL 6 - Paton - 692; (1753) 6 Paton 692 3 Apr 1753 HL Scotland, Family Provision to Heirs and Children - Ante-Nuptial Contract - Implied Condition. - By an ante-nuptial contract, provision was made for daughters, if one, of 40,000 merks, if two, 50,000 &c., payable at their respective ages of eighteen, or on marriage, providing that these should be in full of all they could claim as natural portion, or bairns' part of gear, which they, or either of them, as heir, or heirs of line, or at law, might claim. The respondent was the only daughter, and she claimed the 40,000 merks when eighteen years of age; but it was objected that this clause supposed that the daughters were only to be paid the provision upon failure of issue male of the marriage, and, therefore, that it was conditional. Held her entitled to her provision. Reversed in the House of Lords. [ Bailii ] Â Charles Mercer, Second Son of Sir Lawrence Mercer v His Majesty's Advocate [1753] UKHL 1 - Paton - 538; (1753) 1 Paton 538 14 Dec 1753 HL Scotland HL Entail. - Forfeiture.- Held that the appellant was not entitled to claim his brother's forfeited estate, he not being an heir-substitute, but an heir-male, of the marriage under the investitures. And that the deed he founded on not containing prohibitory, irritant, and resolutive clauses, nor recorded, could not support his claim. [ Bailii ] Â Grizel Craik, Daughter of Adam Craik, and Grand-Daughter of William Craik v Jean Craik, Daughter of William Craik [1753] UKHL 1 - Paton - 542 21 Dec 1753 HL Scotland, Trusts Marriage Contract- Powers of Father- Fiar- Res Judicata.- Held where a father had bound himself by the marriage contract to convey his estate to the heirs male of the marriage, this did not prevent him from making an entail in favour of the heir male and series of substitutes. Circumstances in which points raised were res judicata. [ Bailii ] Â William Douglas, Esq and Thomas Belches, His Trustee v Mrs Isabel Douglas [1754] UKHL 1 - Paton - 553; [1754] UKHL 1 - Paton - 578 25 Jan 1754 HL Scotland [ Bailii ] - [ Bailii ] Â John Gordon, Esq, Second Son of Sir James Gordon of Park; v His Majesty's Advocate [1754] UKHL 1 - Paton - 558 4 Feb 1754 HL Scotland [ Bailii ] Â Mrs Katherine Maitland v Major Forbes, (Et E Contra,) [1754] UKHL 1 - Paton - 570 12 Feb 1754 HL Scotland [ Bailii ] Â Ireland v Neilson (1755) 5 Br Supp 828 1755 Scotland, Insolvency A debtor had acquired the land by fraud. Held: the adjudgers were affected by the debtor's fraud, even if a purchaser would not have been. 1 Citers Â His Majesty's Advocate v William Urquhart of Meldrum, Esq [1755] UKHL 1 - Paton - 586 6 Feb 1755 HL Scotland [ Bailii ] Â Marchioness-Dowager of Annandale, Only Child and Surviving Trustee and Executrix of John Vanden Bempde, Esq, Deceased v Marquis of Annandale; and Ronald Crawford, Clerk To The Signet [1755] UKHL 6 - Paton - 697 18 Feb 1755 HL Scotland [ Bailii ] Â Hill and Cartwright, Burroughs and ohers v Sir Archibald Grant [1755] UKHL 1 - Paton - 597 18 Mar 1755 HL Scotland [ Bailii ] Â Sir James Cockburn of Langton v Sir James Cockburn of That Ilk [1755] UKHL 1 - Paton - 603 21 Mar 1755 HL Scotland [ Bailii ] Â The Duke of Douglas v John Lockhart of Lee, and James Somervel of Corehouse Et E Contra [1755] UKHL 6 - Paton - 706 27 Mar 1755 HL Scotland [ Bailii ] Â Mrs Isabella Grant, Relict of James Sutherland v David Sutherland, Heir-Apparent of James Sutherland of Pronsie [1755] UKHL 1 - Paton - 605 15 Apr 1755 HL Scotland [ Bailii ] Â Mrs Jean Forbes, Wife of Captain Dundas, and Elizabeth Forbes, Wife of Dr John Gregory, and Both Daughters of The Late Lord Forbes v James, Lord Forbes [1756] UKHL 2 - Paton - 8 29 Jan 1756 HL Scotland [ Bailii ] Â Sir Alexander Ross, Formerly Gilmour, Bart v Colonel James Lockhart, Assuming The Surname of Ross [1756] UKHL 1 - Paton - 610 12 Feb 1756 HL Scotland [ Bailii ] Â His Majesty's Advocate v Sir Lewis Mackenzie [1756] UKHL 6 - Paton - 709 25 Mar 1756 HL Scotland Obligation - Debt - Interest. - A claim of debt was made on the forfeited estate of Cromarty, on an obligation dated in 1705, upon which adjudication against the estate had followed in 1722, for the accumulated sum in the adjudication, and interest. Held the claimant entitled to the accumulated sum, and the annual rents due thereon, from the date of the adjudication. Reversed in the House of Lords. [ Bailii ] Â James Cattanach Et Alii v Gorden (Appendix) [1757] UKHL 2 - Paton - 1 1757 HL Scotland Appendix [ Bailii ] Â Major Forbes of Pitrichie, Esq v Andrew Skene of Dyce, and Others [1757] UKHL 1 - Paton - 628 25 Jan 1757 HL Scotland Entail. - Heir Female. - Passive Representation.- 1. An entail conceived to heirs male, whom failing, to the entailer's daughters by name, and the heirs male of their body. Held that a son of one of these daughters was not an heir female, but an heir male in virtue of the destination. 2. There being no annulling clause in the entail, held that the debts contracted by a previous heir affected the succeeding heir under the passive titles. [ Bailii ] Â Alexander, Earl of Caithness v Margaret, Countess of Caithness [1757] UKHL 1 - Paton - 654 18 Mar 1757 HL Scotland Aliment. - A wife agreed to accept of a separate aliment from her husband. Held on her insisting that the sum was inadequate, that she was not barred by the agreement from insisting and claiming more; and L.200 per annum, and the interest of her own proper free funds allowed, although this was above the sum provided to her by her ante-nuptial contract of marriage. [ Bailii ] Â Duke of Roxburgh v Jeffray and Others [1757] UKHL 2 - Paton - 4 18 Mar 1757 HL Scotland No attempt by appellant to prevent the respondents from exercising their trades. [ Bailii ] Â Duke of Roxburgh v Jeffrey and Others, (Kelso Case) [1757] UKHL 1 - Paton - 632 18 Mar 1757 HL Scotland Burgh. - Dues and Customs- Servitude- Prescription.- 1st, Held though the merchants of Kelso could produce no charter or seal of cause, yet that they were a burgh of barony by the charter in favour of the Earl of Roxburgh erecting his lands and the town into a barony. But, 2 d, That their right of entering burgesses, &c., was subject to his regulation and control. 3 d, That they were not entitled to uplift the dues and customs, and their claim to have the past dues and customs applied to the common good of the burgh was prescribed. 4 th, That though they had immemorial possession of a right of bleaching skins, and drying and washing linen on the island of Ana, yet they had not acquired any servitude over it. [ Bailii ] Â Robert Blackwood of Petrevie v Henry Allan and Others [1757] UKHL 1 - Paton - 640 23 Mar 1757 HL Scotland Inhibition.- An inhibition sustained which was objected to as setting forth two separate debts by bond, in the narrative of the letters, while the will only referred to a bond without distinguishing which, the omission of the letter S in the word "bond" being a clerical error. [ Bailii ] Â Jean Craik and John Stewart Her Husband v Grizel Craik, Only Surviving Daughter of Adam Craik [1757] UKHL 1 - Paton - 643 25 Mar 1757 HL Scotland, Equity Entail - Provision - Equity. - An entail empowered the next heir to grant provisions to his younger children; but he conceiving that the entail so executed was in fraud of his father's marriage-contract, which provided the fee of the estate to the heir of the marriage, disponed the estate in fee to his own daughter, and did not exercise the powers conferred of granting provisions. Held, on reduction of the son's settlement, as in fraud of the entail, that when she was deprived of the benefit of her father's settlement, equity will support that deed to the extent of a reasonable provision, although the powers of the entail in this respect had not been exercised. [ Bailii ] Â The Right Honourable Lord Gray and Lady Gray v Magistrates and Town Council of Perth [1757] UKHL 1 - Paton - 645 30 Mar 1757 HL Scotland, Land Salmon - Fishing - Grant - Drawing Nets On Bank. - A prior grant to a party of the salmon-fishing in and round an island on a river, without any limitation as to drawing the nets, does not prevent the Crown from making a posterior grant to another party whose lands are opposite to the island; and where the channel is so narrow as not to permit both [ Bailii ] Â John Stewart, Esq v Sir Kenneth Mackenzie, Bart [1757] UKHL 6 - Paton - 711 20 Dec 1757 HL Scotland Entail - Debts - Provisions. - (1) An entailed estate having been sold under an Act of Parliament, and this Act having been obtained by the fraudulent allegation of debt, which did not exist, the sale was set aside, and the entail held to be still a binding and subsisting entail, though the maker and the institute had concurred to put an end to it, before the Act had been obtained. (2) Held that two of the debts founded on were not true debts; but that Lady Anne's bond of provision was a true debt, yet that no interest was chargeable against the estate on it, during Lord Royston's possession, as during that possession he was bound to keep down the interest of the debt on the estate. [ Bailii ] Â Colonel James Ross of Balnagowan v Alexander Ross of Pitcalny, and Others [1758] UKHL 6 - Paton - 715 19 Jan 1758 HL Scotland [ Bailii ] Â His Majesty's Advocate, In Behalf of The Principal and Professor of The College of Glasgow v His Grace The Duke of Montrose, and Others [1758] UKHL 2 - Paton - 15 15 Mar 1758 HL Scotland Teinds - Old Valuations Unratified.- The Tithes of a parish were valued, but the decret of valuation was lost, and the only evidence was an old book, containing the valuation of the Subcommissioner of Teinds not ratified by the Chief Commissioners. Held it competent for the Teind Court, at the distance of 100 years, to ratify the report of the old valuation of the Subcommissioners. [ Bailii ] Â John Miller of Greenock, Tobacconist v Wm Alexander, Merchant, Edinburgh, Agent for The Farmers' General In France [1758] UKHL 6 - Paton - 718 19 Apr 1758 HL Scotland Circumstances in which the respondent was held liable to damages for abstraction of tobacco. [ Bailii ] Â His Majesty's Advocate v Jean Hay, Widow of John Cuthbert [1758] UKHL 2 - Paton - 272 26 Apr 1758 HL Scotland Adjudication and Infeftment - Prescription - Interruption.- A bond was granted by a party to his creditor, upon which adjudication, charter, and infeftment followed, this adjudication comprising several other separate debts; the bond debt lay over for 66 years, when the present claim was made, and the negative prescription pleaded against the adjudication: Held that a claim made before the Government Commissioners of Enquiry on forfeited estates and registration thereof, together with a submission, followed by decree-arbitral, entered into by the debtor with one of the creditors in the separate debts comprised in this adjudication, and assignation of that debt by him to the debtor within the 40 years, were sufficient to interrupt the negative prescription in regard to the debt, it being one of those comprised in the adjudication thus acknowledged by the debtor. [ Bailii ] Â John, James, George, and Anne Hepburn, and Their Tutor Ad Litem v Charles Congalton, and Others [1758] UKHL 2 - Paton - 17 6 Dec 1758 HL Scotland Entail - Resolutive Clause - Imperfect resolutive clause appearing in an entail: Held, the entail not good against debts contracted in contravention of the prohibitions. But that the next heir-substitute succeeding to the contravener had good action against him and his representatives to purge the estate of such debts. [ Bailii ] Â Angus Macalister v Janb Dun [1759] UKHL 2 - Paton - 29 2 Jan 1759 HL Scotland Marriage - Constitution of Marriage.- Circumstances in which marriage held to be constituted by cohabitation and acknowledgment. [ Bailii ] Â Edward Maccullock v Janet Maccullock [1759] UKHL 2 - Paton - 33 16 Jan 1759 HL Scotland Marriage.- Constitution.- Cohabitation in Foreign Parts.- Held, where marriage was sought to be established by cohabitation, and habit and repute, that proof of cohabitation in the Isle of Man, where a different law prevails, did not constitute marriage in Scotland. [ Bailii ] Â Alexander Littlejohn of Woodstone v Arthur Straton [1759] UKHL 2 - Paton - 19 1 Feb 1759 HL Scotland Salmon Fishing - Right.- A party's grant of fishing was described as bounded along the shore between certain points therein described; held that this does not exclude another, whose right is prior, though general in its terms, from acquiring possession of part of the fishings within the points so marked out and described. [ Bailii ] Â Mrs Mearns and Mrs Grant (Both Farquharsons, and Their Husbands) v James Farquharson, Esq, and Others, Trustees of James Farquharson of Inverey, Deceased, for Behoof of Alexander Farquharson [1759] UKHL 6 - Paton - 724 20 Feb 1759 HL Scotland Destination - General Clause - Settlement. - A party executed a general conveyance of all lands and heritages that should happen to belong to him at his death. The estate of Auchlossen belonged to him at the time he executed this settlement. He afterwards succeeded to the estates of Inverey and Tulloch, which had belonged to his brother, and the question was, Whether the heirs whatsoever under the above settlement, had a right to the Inverey and Tulloch estates. Held that they had not. Affirmed. [ Bailii ] Â Francis Sinclair, Esq, Brother of The Right Hon Alexander, Earl of Caithness, and His Majesty'S Advocate for Scotland v Earl of Breadalbane, Sir Wm Dunbar, Sir Wm Sinclair, and George Sin Clair of Ulbster, Esq [1759] UKHL 6 - Paton - 728 22 Feb 1759 HL Scotland Prescription - Negative and Positive. - A conveyance by the Earl of Caithness, of his estates, reserving to himself power to redeem within six years, and to the heir male of his body at any time, to be irredeemable after that period;-Held that the long prescriptive possession, for more than forty years after the expiry of the six years, and failure of issue male, was a sufficient title to exclude. [ Bailii ] Â His Majesty's Advocate v Earl of Home [1759] UKHL 2 - Paton - 25 7 Mar 1759 HL Scotland Patronage - Prescription - Possession - Competition of Right to Present.- Held the right of patronage reverted back to the Crown by 40 years' possession of the right of presenting, although an ancient right existed in a subject on which no possession had followed. [ Bailii ] Â Duke of Gordon v John Gordon [1759] UKHL 2 - Paton - 26 21 Mar 1759 HL Scotland Proof - Fraud - Relevancy.- General allegations of fraud are not relevant to go to proof. [ Bailii ] Â Alexander Govan or Givan v Agnes Simpson or Govan [1759] UKHL 2 - Paton - 27 26 Mar 1759 HL Scotland Possession on Ajudication - Redemption - Heritable Creditor - Assignation.- Held that though possession had followed on an adjudication, the legal of which was expired, but no infeftment had followed, that the right was still redeemable, and that when such preferable heritable creditor gets possession of the estate, over which his own and other securities extend, a second creditor, who offers payment of the preferable debt so secured, is entitled to come in his place, and demand an assignation to his debt: also held, that this doctrine applied to a widow who had her liferent jointure secured over the estate, and that she was in the eye of law a creditor, entitled to such an assignation on offering payment. [ Bailii ] Â John Grant The Elder, and John Grant The Younger v Thomas Forbes [1759] UKHL 6 - Paton - 731 29 Mar 1759 HL Scotland Cautioner - Damages for Oppressive and Illegal Execution of Diligence. - An action of damages was raised by the respondent for oppressive and illegal execution of a caption against him for debt, brought against the cautioner of the messenger and another, who was accessory to these proceedings. Held the appellants liable in Â£100 damages. Affirmed on appeal. [ Bailii ] Â William Earl of Ruglen and March v Sir Thomas Kennedy (Claiming The Title and Dignity of Earl of Cassils) [1760] UKHL 2 - Paton - 49 19 Jan 1760 HL Scotland Entail.- When an estate entailed is possessed by the last substitute, it becomes in him a fee-simple estate; when failing him, it devolves upon heirs whatsoever. [ Bailii ] Â Right Honourable Lady Dowager Forbes v Right Honourable James Lord Forbes [1760] UKHL 2 - Paton - 36 18 Feb 1760 HL Scotland Heir and Liferenter - Liferenter's Right to Enter Vassals - Agreement - Interest - Aliment.- The liferentrix of an estate having, in the erroneous belief that certain bonds of provision, executed by her deceased husband on deathbed, in virtue of powers reserved by him in his antenuptial contract of marriage, were reducible on the head of deathbed, entered into agreements restricting her own liferent provisions: 1. Held, in an action of reduction to set aside these deeds of restriction, that the deeds did not prevent her from claiming her just rights: And, 2. That as liferentrix of both the lands of the lordship of Forbes, as well as of the superiorities thereof, and the patronages thereto belonging, she was entitled to enter vassals; reversing the judgment of the Court of Session: 3. Also that, as liferentrix, she had no claim against her daughters for alimenting them until their provisions fell due; the being alimented aliunde; and that she was not liable to make good a sum to Lord Forbes, to whom she had assigned such claim: 4. Interlocutor quoad ultra reversed, without prejudice to the question concerning the interest of the heritable debts, and cases remitted to discuss reasons of reduction otherwise. [ Bailii ] Â Major Arthur Forbes, Now Taking The Name of Maitland v William Gordon, Trustee of Katherine and Ann Maitland [1760] UKHL 2 - Paton - 43 24 Mar 1760 HL Scotland Delivery of Deed - Prescription - Confusio - Bona Fide Consumption - Interest of Debt.- Circumstances in which held, 1 st That debts acquired by a husband affecting his wife's estate, do not prescribe during marriage; and that prescription does not run against these bonds during the minority of the person for whose behoof they were purchased. 2 nd, That a bond of provision granted by a brother to two sisters, in addition to their family provisions, was to be presumed in law delivered of its date, unless the contrary be proved, although it had not been delivered to them, and there was no clause dispensing with delivery. 3 d, That this bond of provision was onerous to the full extent. 4 th That the sums in said bonds were not deminished by the sisters having been alimented by their mother, while in family with her. 5 th, That the rents of the estate during Katherine's possession were bona fide percepti et consumpti by her, and she not accountable therefor; But, 6 th, That she was not liable for behaviour as heir, but that the appellant was liable for principal and interest of the sister's bonds, under the deduction of two-thirds of the annual rents, from their mother's death to their brother's death, in consideration of the aliment and necessaries furnished them by their brother. [ Bailii ] Â Gibb v Livingston (1763) 4 Br Supp 897 1763 Scotland, Land 1 Citers Â The Earl of Abercorn v Andrew Wallace of Woolmet, Esq, Ws [1764] UKHL 6 - Paton - 757; (1764) 6 Paton 757 25 Jan 1764 HL Scotland, Landlord and Tenant Lease of Coal - Clause as to Level. - Held, that a clause in a lease of coal, by which it was agreed that either party was to have the power of communicating the level of the said coal to any neighbouring coal works, did not cease or determine with the lease, but continued so long as the lessee continued to possess a right and interest in the neighbouring coal-work. [ Bailii ] Â Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts (1765) 3 Ross's LC 169; M 15616 1765 Scotland, Land In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was recorded in the register of tailzies, but no infeftment followed upon it. He died in 1733 and, eventually, in 1751 his son, Sir John Douglas, succeeded in having the entail reduced on the ground that Sir William had had no power to entail the estate of Kelhead since it had been provided to the heirs of the marriage. Sir John was then infeft in fee simple in the estate and proceeded to borrow large sums. In due course, during Sir John's lifetime, a process of ranking and sale of the estate was brought at the instance of his creditors, some being heritable creditors infeft and others being personal creditors who had adjudged and one of whom was infeft. Sir John's eldest son, Captain Douglas, objected to the sale on the ground that, by serving heir to Sir William, his father had barred himself from reducing the entail. The creditors argued that, even supposing that the reduction of the entail could be taken out of the way, this could not affect their debts since the feudal right of the estate was vested in Sir John as a fee-simple without any fetters or limitations whatever and so it was liable for the payment of all his personal debts. Held: the entail would never be more than a personal right which would not affect the creditors, since it had not been feudalised by infeftment and recording in the register of sasines. The principle in Bell -v- Gartshore applied even in cases where the creditors had not relied on the register when contracting with the debtor. 1 Cites 1 Citers Â William Dallas v James Dallas [1765] UKHL 2 - Paton - 91; (1765) 2 Paton 91 4 Feb 1765 HL Scotland, Family Ratification - Reduction - Facility - Marriage Contract - Father's Powers - Provisions to Children - Second Marriage.- A father, in his son's contract of marriage, conveyed his estate to his son and his intended wife in liferent, and the heir male of that marriage in fee. The son thereafter executed an entail of the estate to George, his eldest son, and heir male of the marriage, and a series of other heirs substitutes, reserving power to burden and alter. After his wife's death, he married a second time, and provided in the marriage settlement for the issue of the second marriage out of separate estate. He thereafter executed additional provisions in favour of the children of the second marriage, and burdened also the estate conveyed to the heir male of the first marriage, as well as granted a lease of the same for 40 years. The heir male of the first marriage was facile, and had been prevailed on to ratify the entail, and these subsequent deeds of provision. Held, that his son was not barred by his father's deeds of ratification from challenging the entail and provisions charged on the estate in favour of the second marriage; these ratifications having been obtained from a weak and facile person. [ Bailii ] Â John M'Lean of Lochbuy v Mary M'Lean and Husband [1765] UKHL 2 - Paton - 95; (1765) 2 Paton 95 8 Feb 1765 HL Scotland Conditional Bond - Apparent Heir- A bond was granted by a grandfather to his granddaughter, under the condition that it was not to be alterable, except in the event of her marrying without his consent, or the consent of parties named. She married, after her grandfather's death, without the requisite consent. Held the bond still good, and binding on the heir taking his estate, though the grandfather only possessed on apparency. [ Bailii ] Â His Majesty's Advocate v Archibald Douglas of Douglas [1765] UKHL 2 - Paton - 104; (1765) 2 Paton 104 4 Mar 1765 HL Scotland Patronage - Right of Presentation.- Circumstances in which held that the Crown was divested of the right of patronage, although in the orginal titles in favour of the party the words of the grant were general and not special, and although the exercise or possession of the right was not always enjoyed by him, but sometimes by the Crown, as coming in place of the Bishop. [ Bailii ] Â The Right Honourable Francis Lord Napier v William Livingstone, Esq [1765] UKHL 2 - Paton - 108; (1765) 2 Paton 108 11 Mar 1765 HL Scotland Service - Entail - Sasine - Bona Fide Possession.- An heir of entail made up titles, disregarding the entail, and sold the estate, under the supposition that by the destination he was fiar. Held, (1 st), That he was substitute heir of entail, and as sales were prohibited, he was not entitled to sell the estate, and sale reduced. (2 d), Also held that a party who is not infeft in an estate, may make a valid entail though not infeft; but that the heir substituted, in completing his title under the entail, must expede a general service, so as to carry right to the tailzie. (3 d), Also, that as the purchaser could not plead ignorance of the records, where the entail was recorded, he could not plead bona fides, or the positive prescription. (4 th), Also, that an error in the designation of the writer of the entail, appearing in the sasine as recorded, though correct in the entail itself; and the name of the procurator to whom the symbols of infeftment were delivered, being different from the name of the procurator named in the other parts of the sasine, did not annul the sasine. (5 th), That the entail might be recorded after the death of the entailer, at suit of a remote substitute heir of entail. (6 th), That the sasine taken by the party succeeding to the entailer uninfeft, may validly contain the prohibitions, and irritant and resolutive clauses, although the anterior precept under which infeftment was taken did not contain these. [ Bailii ] Â Thomas, Lord Erskine of Alva, and John Erskine of Balgownie v The Magistrates and Town-Council of Stirling; Michael Potter of Easter Livylands and Robert Galloway of Burrowmeadow [1765] UKHL 6 - Paton - 774; (1765) 6 Paton 774 20 Mar 1765 HL Scotland, Agriculture Salmon Fishing in the Forth - Act 1698. - Held that the appellants were prohibited by the above Act from using a stoupnet, which was a species of pock-net, in their fishing salmon in the river or Firth of Forth, and that they were not entitled to use either pock-net or herrywater net, in said fishing, contrary to the said Act. [ Bailii ] Â Alexander Cunningham, Ws v Thomas Kinnear, Insurance Broker In Edinburgh, Alexander Brown and Son, Merchants, and William Hume, Merchant Upholsterer In Edinburgh [1765] UKHL 2 - Paton - 114; (1765) 2 Paton 114 27 Mar 1765 HL Scotland, Contract Partnership - Joint Adventure - Praepositus Negotiis.- Where goods were purchased on individual account; and thereafter an interest purchased therein by another, as part of a cargo shipped for foreign trade; where also there was no contract, and no previous reputed partnership, anterior to the purchase of the goods shipped: Circumstances in which held, there was an existing copartnery, and that the deceased partner, in purchasing the goods, in ordering the insurances, and in receiving the returns, acted as pr positus negotiis of the company, and bound the other partners. [ Bailii ] Â Blair and Others v Sir William Moncrieff, Bart [1766] UKHL 2 - Paton - 126; (1766) 2 Paton 126 5 Jan 1766 HL Family, Scotland Contravention of Marriage Contract - Service - Minority - Passive Title - Ratification.- 1. Held that the heir of the marriage is entitled to reduce a deed executed in fraud of the marriage contract, without expeding a general service; 2. Held such heir is entitled to set aside a general service expede in his name in minority, to his hurt and prejudice, in so far as it made him universally liable for his father's debts; 3. Also held, that as his ancestor died in apparency in regard to Moncrieff estate, he was entitled to pass him over and serve heir to his grandfather, without being liable for the debts; and as to the other provision, or estate of Â£5555. 11s. 1d., and 100,000 merks, he was not liable passive, he not having taken benefit from that estate, and that a sum of Â£2500 received to ratify these did not make him liable passive. [ Bailii ] Â George Wishart, Dd, and All The Other Ministers of The Gospel In Edinburgh v The Magistrates of Edinburgh [1766] UKHL 2 - Paton - 118; (1766) 2 Paton 118 17 Feb 1766 HL Scotland, Ecclesiastical Jurisdiction of Court of Teinds - Stipend.- Held the Court of Teinds has no jurisdiction to augment the stipend of ministers out of any other funds than the tithes of the parish, where the minister serves the cure, and, therefore, that they had no jurisdiction to augment the stipends of the ministers within the city of Edinburgh, [ Bailii ] Â Alexander Burnet, Charge Des Affaires At The Court of Berlin v Sir Thomas Burnet, Bart [1766] UKHL 2 - Paton - 122; (1766) 2 Paton 122 30 Apr 1766 HL Scotland, Wills and Probate Succession - Adjudications - Destination - Heirs Whatsoever - Confusio.- Adjudications were purchased up by the heir succeeding to an estate specially destined to " heirs male." He took the conveyances of these adjudications to himself and his "heirs whatsoever." Held, that when the estate descended to an heir male, different from the heir of line, or heir whatsoever, that the heirs of line were not entitled to succeed as such, to the adjudications; and that these, as collateral and accessory rights, had accrued to the family estate, and were not now a separated estate, but extinguished confusione in the person of the heir male. [ Bailii ] Â The Earl of Roseberry v The Creditors of Hugh Lord Viscount Primrose, Deceased [1767] UKHL 3 - Paton - 651; (1767) 3 Paton 651 3 Apr 1767 HL Scotland, Land Entail - Registration - Act 1685 - Passive Representation. - (1.) An entail Mas made, and charter and infeftment passed thereon some years before the Act 1685, regarding the recording of entails, Held, that in order to protect against creditors, such an entail must be recorded. (2.) An heir succeeding, not by an universal title, but as heir under a particular destination, and not haeres alioquin successurus, found only liable to the extent of the value to which he succeeded. [ Bailii ] Â Mrs Eupham Hamilton, Widow of Charles Hamilton, Esq, and Bethia and Charlotte Hamilton, Their Daughters v Archibald Hamilton, Esq of Rosehall [1767] UKHL 2 - Paton - 137; (1767) 2 Paton 137 5 Apr 1767 HL Scotland, Wills and Probate Heir and Executor - Apparency - Rents.- Held, reversing the judgment of the Court of Session, that the executors, and not the heir of a party who died in possession of an estate on apparency, was entitled to the arrears of rents unuplifted at her death. [ Bailii ] Â John Campbell of Ottar v Alexander Campbell, and William Wilson [1770] UKHL 2 - Paton - 193; (1770) 2 Paton 193 10 Feb 1770 HL Scotland Positive Prescription - Interruption of Do.- Citation in summons of exhibition ad deliberandum, does it interrupt? Disability by forfeiture is no non valentia agere. In counting deduction [ Bailii ] Â Robert Waddell, Esq, Conjunct Principal Clerk of The Bills v Charles Inglis, Deputy Clerk of The Bills [1770] UKHL 2 - Paton - 205 14 Feb 1770 HL Scotland Two Conjunct Principal Clerks of the Bills appointed a Deputy to discharge the Duties of the Office- Held, on the deaths of both the Principal Clerks who appointed him, that the office of the Deputy did not thereby cease and determine, so as to entitle the new Principal Clerks to appoint other Deputies, or to enter into and perform the office of Deputy by one of their number, and to uplift the fees belonging to the office. [ Bailii ] Â William Milne, Architect In Edinburgh, and Alexander Brown, Merchant In Edinburgh, and Robert Milne, Architect In London, His Cautioners v The Magistrates and Town Council of Edinburgh [1770] UKHL 2 - Paton - 209 15 Feb 1770 HL Scotland, Construction, Arbitration Arbitration Clause - Contract.- A contract in regard to the execution of the works in building a bridge, contained a clause, referring all differences and disputes to two neutral men of skill, as arbiters to be chosen, and in case of them differing, with power to them to choose an oversman, whose determination was to be final. Held, on a preliminary defence being stated, to a summons raised for failure to implement the contract, founded on this clause, that an agreement to refer all disputes to arbiters, did not bar the present action in this court, and that the plea in this case, was irrelevant and inadmissible. [ Bailii ] Â Henry Wedderburn, Esq, Second Son of Charles Wedderburn of Gosford v Sir Peter Halket of Pitfirran, Bart, Alexander Hart, His Curator Ad Litem, and John Wedderburn of Gosford, Repondents [1770] UKHL 2 - Paton - 231; (1770) 2 Paton 231 19 Mar 1770 HL Scotland, Trusts Entail - Power to Alter Order of Succession.- Entail taken to the makers and longest liver in liferent, and to their eldest son in fee, whom failing his second son, &c., with a prohibition against altering the order of succession; but no restraint against selling or charging the estate with debt. The eldest son, who succeeded after the maker, finding his own eldest son an idiot, altered the order of succession, and gave the estate to his second son, and the heirs precisely marked out by the original entail. Held, that as he was fiar of the estate, he could exercise this power, more especially seeing that the deed so executed had not in view fraudulently to alter the order of succession, but merely to provide for a contingency that had not been contemplated by the maker. [ Bailii ] Â Earl of Lauderdale v George Mackay of Skibo [1770] UKHL 2 - Paton - 234 21 Mar 1770 HL Scotland Casus Amissionis - Extract.- Where a bond was challenged as false and forged, and on production being called for in the improbation, and an extract produced to satisfy production: On its being urged that the original bond ought to be produced, it was stated that it was lost in the hands of the Keeper of the Records; a proving of the tenor being made necessary: Held, that a special casus amissionis was unnecessary where, in these circumstances, the proof that the original existed was established-both by the extract, and by the decreets in other processes, and where the Keeper of the Record deponed that such bonds had gone amissing in the Register Office on former occasions. [ Bailii ] Â Gardiner v Agnew 1771 M 3385 1771 Scotland, Contract Two co-obligants in a bond and who who had paid the debt sought damages against the creditor who had refused an assignation. They alleged a breach of a duty grant the assignation sought. Held: the court found for the creditor. The majority thought the demand for an assignation "rested only upon equitable considerations". The minority thought a creditor was obliged to grant an assignation de jure. Â William Hutchison, Late Merchant In Leith v The Representatives of James Young and Dr Robert Mackinlay [1771] UKHL 6 - Paton - 783; (1771) 6 Paton 783 15 Feb 1771 HL Scotland Adjudication - Decree of Expiry of the Legal - Pluris Petitio. - Held it incompetent to reduce a decree of expiry of the legal of an adjudication to which the objection of pluris petitio was stated, to the effect of redeeming the lands from a purchaser, but that it was competent to open up the same to the effect of making the adjudger and seller of the lands account for the price received. [ Bailii ] Â Mrs Margaret Houston Stewart Nicolson v Houston Stewart Nicolson, Esq [1771] UKHL 3 - Paton - 655 18 Feb 1771 HL Scotland Divorce - Proof - Admissibility of Particeps Criminis - Also of a Slave. - In the course of a proof, in an action of divorce against the wife, the party with whom she had adultery was adduced as a witness against her: Held him admissible as a witness. This judgment affirmed in the House of Lords. It was also objected to a slave, that he was incapable of bearing testimony, he not being a Christian, or able to take the usual oath. The Court of Session ordered him to be examined as to his belief or creed. This affirmed on appeal. [ Bailii ] Â Charles M'Kinnon, Esq and His Guardians v Sir Alexander Macdonald, Bart, John Mackenzie, His Trustee, and Lieutenant John Mackinnon [1771] UKHL 2 - Paton - 252; (1771) 2 Paton 252 25 Feb 1771 HL Scotland Succession - Substitute - Rights of Do.- A Sale by an heir-substitute coming into possession as nearest heir at the time of the succession opening, cannot be set aside by a nearer heir born sometime afterwards, of a second marriage. [ Bailii ] Â Hugh Ross, Esq and Wife v David Ross, Esq [1771] UKHL 2 - Paton - 254; (1771) 2 Paton 254 10 Apr 1771 HL Scotland Clause- Whether a certain clause in a deed carried heritable debts. [ Bailii ] Â Robert Willock of Cornhill, London, Bookseller and Patrick and John Straton of Montrose, Merchants v John Ouchterlony of Montrose, Esq Et E Contra [1772] UKHL 3 - Paton - 659; (1772) 3 Paton 659 30 Mar 1772 HL Scotland Arrears of Interest - Adjudications - Heritable Bond - Heritable or Moveable. - (1.) An heritable bond was granted for a large amount, after which decree of adjudication was obtained thereon, for principal and arrears of interest. Part (5500 pounds) of the principal sum contained in the heritable bond; was conveyed, without any mention of the adjudication, to Alexander Ouchterlony, and by him to his brother George in liferent, and to his nephew John in fee. The latter's heir, on the death, first of Alexander and then of George, claimed not only the fee of andpound;5500, but also the arrears of interest due thereon, amounting to andpound;4296. Held that the arrears were heritable, and went to the heir and not to the executors of the will of George: Reversed on appeal, and the executors by the will entitled to the arrears. (2d.) The other part of the heritable debt (4517l, 15s.), and certain annuity bonds, were conveyed by George to his trustees by a trust deed, reserving power to alter; and a will made in virtue of this reserved power, Held that these were sufficiently conveyed so as to go to his executors, and beyond the claim of his heir at law. [ Bailii ] Â James Bruce of Carstairs v Miss Anna Bruce [1772] UKHL 2 - Paton - 258; (1772) 2 Paton 258 7 Apr 1772 HL Scotland, Contract Positive Prescription.- Title of possession. - Objections to testing of deed. - Circumstances which elided such objection. [ Bailii ] Â Patrick Campbell of Knapp, and Others, Burgesses and Inhabitants of The Burgh of Campbelton v John Hastie, Rector or Head-Master of The Grammar School of Campbelton [1772] UKHL 2 - Paton - 277; (1772) 2 Paton 277 14 Apr 1772 HL Scotland, Employment Public Office - Schoolmaster in Burgh - Appointment.- A schoolmaster, appointed by the Magistrates and Town Council of Campbelton, without any mention being made as to whether his office was for life or at pleasure: Held that it was a public office, and that he was liable to be dismissed for a just and reasonable cause, and that acts of cruel chastisement of the boys were a justifiable cause for his dismissal; reversing the judgment of the Court of Session [ Bailii ] Â The Hon John Douglass, An Infant, By His Guardians v The Earl of Morton [1773] UKHL 3 - Paton - 671; (1773) 3 Paton 671 20 Jan 1773 HL Scotland Deed Informal - Execution by Notaries - Prior Obligation - Death-Bed. - By an antenuptial contract of marriage, the father became bound to provide his son John with a provision of Â£14000. In implement of this obligation, he had resolved to convey an heritable bond he held over an estate for Â£9000 pro tanto of this provision. The deed was all prepared and ready for execution, when he suddenly took ill of a disorder which deprived him of writing. He, however, resolved to have it executed by notaries, but only one could be got in London. Held, in a reduction to set aside this deed, as in prejudice of the heir at law, that the deed was ineffectual, as wanting the usual solemnities to convey heritage in Scotland. [ Bailii ] Â Andrew Wauchope, Esq v Sir Archibald Hope, Capt John M'Dowall, and John Wauchope, Esq of Edmonstone [1773] UKHL 2 - Paton - 286 28 Jan 1773 HL Scotland, Landlord and Tenant Lease.- Terms of lease of coal, under which held that the tenant had right to communicate the level in the coal grounds to other adjacent colleries also let to him; but reversed in the House of Lords, and held, that by the lease the tenant had no right to do so without the consent of the landlord or proprietor. [ Bailii ] Â Margaret and Elizabeth Duncan v Francis Fowke [1773] UKHL 2 - Paton - 290 5 Feb 1773 HL Scotland, Wills and Probate Vesting of Legacies.- Circumstances in which legacies held to vest. [ Bailii ] Â Captain David Parkhill of Craiglockhart, Eldest Son and Heir of John Parkhill of Craiglockhart v Robert Chalmers of Lambert, for Himself, and As Representing The Deceased Alexander Chalmers, Sometime Accomptant of Excise [1773] UKHL 2 - Paton - 291; (1773) 2 Paton 291 12 Feb 1773 HL Scotland Tutory - Inventory - Discharge.- 1. Held, in consequence of a tutor neglecting to give up in his inventory, a lease of dues current at the deceased's death, that he was liable in payment of interest of these, from the dates at which they were respectively paid, and this, notwithstanding a discharge being granted for Â£889, as the sum effeiring to the minor's interest therein, in full satisfaction of all claims on that account, the minor having been kept ignorant of the claim and the state of the account. 2. Held, for the same reasons, that the curator was not entitled to charge any commission for his trouble. 3. Held that the curator, who had himself been a partner along with the deceased in the said lease current at the death, was not bound, on expiry of the same, to take a renewal also in the pupil's name; but entitled to procure that renewal in his own individual name-the pupil having then attained full age, and the curatory expired. [ Bailii ] Â Robert M'Nair, Merchant In Glasgow v James Coulter and Others, Merchants In Glasgow, Insurers of The Ship Jean and Her Cargo [1773] UKHL 2 - Paton - 297 15 Feb 1773 HL Scotland, Insurance Valued or Open Policy - Proof - Bill of Lading - Interest.- Insurance for Â£1000, on ship and cargo, lost on her voyage from Virginia to Barbadoes. The son of the insured was master. The policy proceeded on false information of the value sent by the son to the insured, but without the latters knowledge. The Court of Session held, that the bill of lading was not good evidence of the value and quantities of goods. The question was, Whether he was entitled to recover the sum named in the policy, or the real value of the ship and cargo only. Held, reversing the judgment of the Court of Session, that be was entitled to recover the sum of Â£1000 named in the policy; also to recover interest thereon. [ Bailii ] Â Robert Alexander, Esq v James Montgomery and Co [1773] UKHL 2 - Paton - 300; (1773) 2 Paton 300 19 Feb 1773 HL Scotland, Contract Sale - Locus Penitentiae.- Circumstances in which written correspondence, in regard to a sale of coal, was not held to amount to a final and conclusive agreement, the parties having stipulated that their agreement was to be a written agreement, and, until this was executed, either might resile; affirming the judgment of the Court of Session. [ Bailii ] Â Lieut Andrew Lawrie v Captain John Macghie, and Anne His Wife, Formerly Anne Lawrie, and Others [1773] UKHL 2 - Paton - 309 17 Mar 1773 HL Scotland Devolution Clause.- Held, where a party takes an entailed estate, on condition of devolving one he already possesses, on the next heir of entail, that he is bound to do so to the heir pointed out by the entail, although the party who succeeds to both may have younger sons nearer the line of succession, whose possesion would carry out the intention of the maker, of having the two estates separately and distinctly possessed. [ Bailii ] Â Robert Hay, Esq Second Son of Alexander Hay of Drummelzier, Esq v George Marquis of Tweeddale [1773] UKHL 2 - Paton - 322 6 Apr 1773 HL Scotland Clause of Devolution in a Deed of Entail. [ Bailii ] Â Alexander Livingston, Esq v James Warrock [1773] UKHL 6 - Paton - 790; (1773) 6 Paton 790 29 Apr 1773 HL Scotland, Trusts Entail - Jus Tertii. - In the entail of the estate of Westquarter, the question was, Whether James Livingston could sell the estate, under the following destination of the entail, "to and in favour of the said Countess, and James, Earl of Findlater, her husband, and longest liver of them two, for the Earl, his liferent use allenarly, and to James Livingston and the heirs male of his body, whom failing, to his heirs male whatsoever?" James Livingston was, by express clause, prohibited from selling; and in a former appeal it was found he could not sell ( vide ante vol. II., p. 108.) This was a part of the estate which, from the state of the title, it was thought he could sell; and it having been sold, the next heir after his death brought a reduction. Held, that where the title of two parties is derived from one author, neither party can object to the right of the common author. [ Bailii ] Â John Hepburn of Edinburgh, Surgeon, and William Cheap v George Aikman of Glasgow, Merchant [1773] UKHL 2 - Paton - 326 30 Apr 1773 HL Scotland, Land Sale - Exceptionable Title.- Circumstances in which held, that a purchaser, according to the terms of the sale, was bound to take the title as it stood, or give up the bargain. [ Bailii ] Â Hinton v Donaldson Unreported, July 1773 1 Jul 1773 SCS Intellectual Property, Scotland The House held that copyright did not exist in the law of Scotland except as provided for by the statute of 8 Anne. Statute of Anne 1710 1 Citers Â John Gillon v Catherine Muiruead and Husband [1776] UKHL 3 - Paton - 681; (1776) 3 Paton 681 9 Mar 1775 HL Scotland [ Bailii ] Â John Boyd v James Steel [1775] UKHL 2 - Paton - 368; (1775) 2 Paton 368 10 Mar 1775 HL Scotland Absolute Disposition - Back Bond - Redemption - Irritancy. An absolute disposition was granted to lands bearing to be sold for a fair and adequate price then advanced, with a back bond of same date, allowing redemption of the lands within five years of the date thereof. This period expired without repayment. Held, in the Court of Session, that after expiry of the term, though no declarator of irritancy had followed, the lands were to be held irredeemable for the price then paid-that price being a fair value at the time [ Bailii ] Â Robert Greig, Robert Marshall, James Belfrage, Michael Henderson, and Others v James Bruce Carstairs of Kinross [1775] UKHL 3 - Paton - 675 24 Nov 1775 HL Scotland Charter - Clause as to Public Burdens. - Charters granted by a superior contained clauses exempting the feuar from all public burdens imposed, or to be imposed. Held, that this did not exempt from the expense of repairing or building churches or manses. [ Bailii ] Â Hope v Tweedie (1776) Mor 9522 1776 Contract, Scotland The court refused to find an enforceable contract where from the circumstances it was found that the parties cannot have intended that the transactions should have any legal consequences. 1 Citers Â Munro Ross of Pitcalny, Esq v Captain John Lockhart Ross [1776] UKHL 2 - Paton - 393 9 Nov 1776 HL Scotland Deeds Challenged - Fraud and Incapacity - Prescription.- Four several deeds were executed at intervals, conveying an estate to different parties, other than the heirs of investiture, and challenged on the head of incapacity, fraud, and circumvention.-Held the deeds irreducible, as there was no conclusive proof of incapacity, fraud, or circumvention. Held also prescription not to apply, so as to exclude the action. [ Bailii ] Â Â Tyrie v Fletcher; 1777 - (1777) 2 Coup. 666 Â Robert Myrton Cunyngham and Francis Cunyngham, Second and Third Sons of Sir Wm Augustus Cunyngham, Bart and Their Guardians v David Cunyngham, Esq Eldest Son of The Said Sir William [1777] UKHL 2 - Paton - 434 5 Mar 1777 HL Scotland Postnuptial Contract - Reserved Faculty.- Shortly after his marriage, a party executed a postnuptial contract, settling his estate on the heirs male of the marriage, whom failing, on the heirs female of that marriage, reserving power, in case of there being no heirs male, "and two, three, or more daughters," to settle the estate on either of the daughters. He had no sons, but there were three daughters of the marriage, the two eldest of whom predeceased their father. He afterwards executed a new deed, settling the estate on the second and third sons of the youngest daughter. Held, in the Court of Session, that this deed did not fall within the special powers reserved, and was reducible, as the father's faculty and powers were at an end. This judgment was affirmed by Lord Mansfield in the House of Lords. [ Bailii ] Â Capt John Lockhart Ross of Balnagowan v Munro Ross of Pitcalny, and Miss J Ross [1777] UKHL 2 - Paton - 430; (1777) 2 Paton 430 5 Mar 1777 HL Scotland FeuDuty - Superior and Vassal.- A charter bound the vassal to deliver thirty bolls of corn yearly, or, in his option, 6s. 8d Scots for each boll, as conversion money. The subsequent investitures omitted the option of the conversion money. Held the superior not entitled to claim the ipsa corpora of the victual, but the conversion money only. [ Bailii ] Â Alexander Speirs, Andrew Blackburn, and Andrew Syme, James Dunlop'S Trustees v Thomas and Wm Dunlop and Co, Trustees for The Creditors of John Carlyle and Co [1777] UKHL 2 - Paton - 437; (1777) 2 Paton 437 9 Mar 1777 HL Scotland Ranking - Society - Company and Individual Estate - Principles of Ranking.- (1) Held that a company are entitled to rank on an individual partner's separate estate, pari passu with the creditors of that separate estate, for the whole amount of debts owing by the company after deducting any dividends that may have been paid to the company creditors. But, (2) Held in the House of Lords, that where, after a dividend on an estate was declared, and most of the creditors paid, a new claim was lodged for the first time on the estate, that such claim will not be allowed to disturb or affect the dividend paid before any notice was received of such claim. [ Bailii ] Â John Livingstone Mitchell, Esq of Parkhall v The Governor and Company of Undertakers for Raising Thames Water In York Buildings, &C [1777] UKHL 6 - Paton - 795 21 Mar 1777 HL Scotland Charter - Superior and Vassal - Right to Coal. - The appellant laid claim to the coal of his lands of Madiston, although in granting the feu the superior had reserved the coal. Held that neither by the clan Act, nor the charter from the Crown, subsequent to the date of the superior's attainder, was the coal granted to the appellant's ancestors, but that the right to the same was vested in the respondents, as disponees of the Crown. [ Bailii ] Â Lieut Andrew Sutherland v Elizabeth Countess of Sutherland, and Her Guardians, for Herself, and On Behalf of The Other Creditors of Skelbo [1777] UKHL 2 - Paton - 415 26 Mar 1777 HL Scotland Positive Prescription - Absolute or Redeemable Right - Testing Clause.- A conveyance by charter was made of certain parts of an estate ex facie absolute, and bearing to be for a price then paid. Eight days before its date, a wadset had been granted of the same lands, in favour of the same party, which obliged the party to grant a letter of reversion. No letter of reversion was adduced, and no appearance of it on the records. The positive prescription and possession followed. Held, in the Court of Session, that the wadset right and charter qualified each other, and were to be read as one deed, and that the right was redeemable. Reversed in the House of Lords, and held that prescriptive possession on the absolute right, fortified the appellant's title; and that the right was irredeemable. The contract of wadset having been executed by the aid of notaries; Held, that as one notary and two witnesses alone signed it, the wadset was bad. [ Bailii ] Â Archibald Douglas, Esq In 1St and 2D Appeals v Earl of Selkirk In Second Appeal [1777] UKHL 2 - Paton - 449; (1777) 2 Paton 449 27 Mar 1777 HL Scotland HL Entail - Clause of Return - Prohibitory Clause - Fiar - Negative and Positive Prescription - Sasine - Revocation - Conveyance - "Heirs whatsoever" - Competency of Parole to Explain this Clause - Heir Entitled to Challenge on Deathred [ Bailii ] Â Alexander Irvine of Drum v George, Earl of Aberdeen, Mrs Margaret Duff or Culter, and Others [1777] UKHL 2 - Paton - 419; (1777) 2 Paton 419 16 Apr 1777 HL Scotland Decree of Sale - Entail - General and Special Charge.- Entail executed in shape of a procuratory of resignation, upon which charter was obtained, and this charter, but not the procuratory, produced judicially before the Court, and recorded in the Register of Tailzies. Held, that this was not perfect registration of the entail, and that the charter was not the original entail, but the procuratory. Held, circumstances not sufficient to set aside a decree of sale impugned on fraud. Held that a general and special charge, as the warrants of an adjudication cannot be called on after 20 years. [ Bailii ] Â Lady Cranstoun and Michael Lade, Esq v George Lewis Scott and Others [1777] UKHL 2 - Paton - 425; (1777) 2 Paton 425 21 Apr 1777 HL Scotland Renunciation - Donation inter virum et uxorem - Revocation.- A husband procured a renunciation from his wife of her provision secured preferably over his estates, in order to allow these to be sold, and price paid to his creditors. Held, the wife not bound by the renunciation, although third parties were interested, and had agreed to abate claims on her granting it. [ Bailii ] Â David Blair, Esq of Dunskey v Messrs Douglas, Heron, and Co [1777] UKHL 6 - Paton - 796; (1777) 6 Paton 796 30 Apr 1777 HL Scotland Partnership - Articles. - In the articles of copartnery of the Douglas, Heron, and Co.'s Banking Company, it was provided that the heirs and executors of a deceasing partner should be obliged to receive and draw his share in the stock and profits thereof, as the same should be ascertained by the last balance struck immediately preceding his death. The last balance was struck in November 1771. The appellant's brother died in October 1772; but in June 1772, the Company had become insolvent. In an action raised by the appellant, held that the clause of the contract could not apply to the circumstances of this case, in respect the Company had become bankrupt several months before Mr Blair's death. [ Bailii ] Â Lord Falconer of Halkerton v David Lawson [1778] UKHL 2 - Paton - 442 23 Feb 1778 HL Landlord and Tenant, Scotland In the present case, the lease to the respondent bore to be for 57 years, " in the option of the said David Lawson, and upon the provisions and conditions after mentioned." The conditions aftermentioned were, that he should "renounce at Lammas, before expiring of the first nineteen years of this present tack, or prorogue the same for three years, in the option of the said Lord Halkerton and the said David Lawson." The land-lord gave notice of warning on expiry of the first 19 years, but to this the tenant did not consent, refused to remove, and contended that the option referred to in the lease was one which he alone fell to exercise, or in which his consent was necessary. In this case the Court, of this date, "assoilzied the defender (the respondent), and decerned [ Bailii ] Â George Haldane, Esq of Gleneagles v George Late Earl Marischall [1778] UKHL 2 - Paton - 443 26 Mar 1778 HL Scotland [ Bailii ] Â Rev Mr Thomas Tait v Mr George Skene Keith, Minister, and Others [1778] UKHL 2 - Paton - 447 30 Mar 1778 HL Scotland, Ecclesiastical Patron - Competing Presentations - Mandant's Powers - Implied Recal.- Where a patron, residing in a foreign country, had appointed commissioners, with powers to present to vacant churches, the latter presented a party a day before the patron himself presented another party: Held, the presentation by the commissioners, in virtue of the powers delegated to them, was good, and to be preferred to the patron's own presentation, and that the right of patronage may be exercised by delegates so appointed. [ Bailii ] Â John Coltart of Areeming, Esq v Winifred Maxwell of Nithsdale, and William Haggerston Maxwell Constable, Esq Her Husband; John Maxwell of Terrachty, Esq and Others, Et E Contra [1779] UKHL 2 - Paton - 482 29 Jan 1779 HL Scotland [ Bailii ] Â Alexander Gray, Ws v Messrs Douglas, Heron, and Co, Late Bankers In Ayr, and George Home, Esq, Factor for The Partners of The Said Company [1779] UKHL 6 - Paton - 800 10 Feb 1779 HL Scotland [ Bailii ] Â John Shaw Stewart, Esq v The Magistrates and Council of Greenock [1779] UKHL 2 - Paton - 486 2 Mar 1779 HL Scotland [ Bailii ] Â John Alston, Alexander Elliot, William Colquhoun, and Others v Messrs Colin Campbell and Co, Merchants In Greenock, and John M'Allister [1779] UKHL 2 - Paton - 492 3 Mar 1779 HL Scotland [ Bailii ] Â Dame Robina Pollock or Crawford v Mary Lockhart, Relict of John Lockhart of Lee [1779] UKHL 2 - Paton - 495 10 Mar 1779 HL Scotland [ Bailii ] Â Thomas Short, Optician In Edinburgh v John Short [1779] UKHL 2 - Paton - 495a 19 Mar 1779 HL Scotland [ Bailii ] Â Dr Stuart Threipland, Physician, Edinburgh v John Walsh and Others, Creditors of The York Buildings Company [1779] UKHL 2 - Paton - 496 15 Apr 1779 HL Scotland [ Bailii ] Â Dr Fordyce v The Creditors of York Buildings Co [1779] UKHL 2 - Paton - 500 16 Apr 1779 HL Scotland [ Bailii ] Â James Lawson, Merchant, Glasgow v John Tait, W S, Trustee for The Creditors and Representatives of John Hamilton, Deceased [1779] UKHL 2 - Paton - 505 28 Apr 1779 HL Scotland [ Bailii ] Â Sir Lawrence Dundas, Bart v His Majesty's Advocate, and Other Officers of State for Scotland, On Behalf of His Majesty, and Patrick Honeyman, Vassals, and Others, Vassals of The Crown [1779] UKHL 2 - Paton - 516 14 Dec 1779 HL Scotland [ Bailii ] Â Robert Hogg Esq, of Ramoir v Mary Hogg, Widow of Deceased Robert Gordon [1780] UKHL 2 - Paton - 516a; (1780) 2 Paton 516a 14 Feb 1780 HL Scotland Irritancy of Lease - Penalty.- A lease provided, that if two terms rent were allowed to be "resting and owing unpaid at one time, the tack should eo ipso become void and null," with a fifth part more of termly moiety in case of failure. The tenant fell four years in arrear of rent. In an action brought under the annulling clause in the lease: Held the irritancy purgeable at the bar; and that the penalty, in case of failure of a fifth part more, was not exigible. [ Bailii ] Â Andrew Wauchope, Esq of Niddry v Earl of Abercorn, and Sir John Hope [1780] UKHL 2 - Paton - 519; (1780) 2 Paton 519 21 Feb 1780 HL Scotland, Land Lease of Coal - Right of Property - Servitude - Opus Manufactum - Recompense.- Circumstances where the level of a pit was communicated by the lessee to a neighbouring colliery, with proviso of the proprietor, that the level should not be communicated into any other neighbouring collieries, for the purpose of working the coal, to the prejudice of his original property; Held, on communication of the level to the neighbouring collieries, that the appellant was entitled to have it shut up; also held, in consequence of such communication, that the recompense due to him must be adequate to the benefit which has been enjoyed by the use of such level. There was a thick wall left in working the Niddry coal, which divided it from the coal of Woolmet, which stood higher up. The wall, consisting of porous coal, did not prevent the water from flowing down from the Woolmet pit to the Niddry coal. The proprietor of the latter was proceeding to make downsets to prevent this, when Sir Archibald Hope brought a suspension, contending that the Niddry coal, being the inferior [ Bailii ] Â David Orme, Writer In Edinburgh v John Leslie of Balquhain, Esq [1780] UKHL 2 - Paton - 533; (1780) 2 Paton 533 25 Feb 1780 HL Scotland, Landlord and Tenant Entail - Leases - Alienation.- How far leases for four nineteen years' duration of an entailed estate were reducible as an "alienation" thereof. Leases sustained, in the special circumstances, for the granter's life, and the life of the heir who ratified them; but a lease of a mansion house, offices, and gardens, &c. reduced, and also of the lands beyond the lifetime of these parties. [ Bailii ] Â Elizabeth, Margaret, and Hariet Graham, Infant Children of William Graham of Gartmore v Margaret Graham, Mother of The Said Children, and Alexander Greig, Her Trustee [1780] UKHL 2 - Paton - 537; (1780) 2 Paton 537 17 Mar 1780 HL Scotland Fiar - Fee or Liferent.- Circumstances in which the terms of a destination to a parent in liferent, and to "the heirs of her body in fee," held to give the mother a fee and absolute right to the personal estate conveyed. [ Bailii ] Â Mitchells v Ferguson 3 Ross's LC 120; 1781 M 10296; Hailes 879 1781 Lord Braxfield, Lord Gardenston Scotland, Land In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald's man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson would grant him a heritable bond or a disposition in security. When she failed to do so, Ferguson raised proceedings for implement of this obligation and obtained a decree in absence on 4 July 1777. The following month, on 9 August 1777, the Mitchells, as creditors of Donald, obtained a decree of adjudication of the house against him and were infeft. Carson, however, raised a multiplepoinding and suspension of the decree in absence. The nature of feudal rights was such that they could not be affected, qualified or burdened by any personal deed and that a conveyance, so long as it continued personal, did not divest the disponee. "I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many." Bell -v- Gartshore reasoning would apply even where the creditors didd not rely on the register when contracting with the debtor. 1 Cites 1 Citers Â Lord MacDonald v Norman M'Leod, Esq [1781] UKHL 2 - Paton - 583; (1781) 2 Paton 583 2 Feb 1781 HL Scotland Right of Property - Possession - Part and Pertinent - Accession.- Certain rocks or islands on the coast lay between the estates of two parties. In neither of their rights or titles were there any express mention of those islands or rocks in dispute, but both claimed them, as part and pertinent of their estates, by virtue of possession exercised in pasturing sheep and currying off kelp. The island was nearer to the appellant's estate than the respondent's, and he contended that it must have formed a part, at one time, of his land, by accession thereto: Held the proof of long possession on the part of the respondent, of said rocks or islands as part and pertinent of his estate, by pasturing sheep, and carrying off the kelp, and every other act of ownership of which they were capable, gave him the right of property to the same. [ Bailii ] Â James Bywater v The Crown [1781] UKHL 2 - Paton - 563; (1781) 2 Paton 563 1 Dec 1781 HL Scotland, Criminal Practice Court of Justiciary - Jurisdiction - Appeal.- Competency of an appeal to the House of Lords from the sentence of the High Court of Justiciary in Scotland. Held such an appeal incompetent. [ Bailii ] Â Janet Allan, Relict of John Cameron, Late of Carntyne, and Her Children v Messrs Robertson and Others, Creditors of Richard Cameron, Now of Carntyne [1781] UKHL 2 - Paton - 572; (1781) 2 Paton 572 15 Dec 1781 HL Scotland, Land Real or Personal - Provisions to Wife and Children.- Circumstances in which held, that these had not been made real burdens on the estate conveyed. [ Bailii ] Â James Craig of Edinburgh v Messrs Douglas, Heron, and Co [1781] UKHL 2 - Paton - 575; (1781) 2 Paton 575 17 Dec 1781 HL Scotland, Company Sale - Copartnery - Liability.- Circumstances in which a sale of stock, completed and carried through by one body of directors and not the whole, was held to liberate the partner, who sold his stock to the Company, from all liability as a partner, though by the rules of the Company, the transfer behoved to be submitted to the whole three bodies of directors, and though the Company was insolvent at the time. [ Bailii ] Â Multiple Cases With Citation: [1684] Mor 2487 [1684] Mor 2487 1782 SCS Scotland [ Bailii ] Â William, Duke of Montrose; James, Marquis of Graham; John Graham of Duchray; George Graham of Kinross, and Others v Sir James Colquhoun, Bart of Luss [1782] UKHL 6 - Paton - 805 19 Feb 1782 HL Scotland [ Bailii ] Â Sir James Grant and Others v Duke of Gordon [1782] UKHL 2 - Paton - 582 20 Feb 1782 HL Scotland [ Bailii ] Â Catherine and Williamina Flemings, Daughters of William Fleming, Esq Deceased v Malcolm Fleming, Esq [1782] UKHL 2 - Paton - 588 12 Mar 1782 HL Scotland [ Bailii ] Â John Thomson, Jun, Merchant, Leith v Georce Buchanan and Others, Underwriters [1782] UKHL 2 - Paton - 592 13 Mar 1782 HL Scotland [ Bailii ] Â Andrew Wauchope and Others v York Buildings Company [1782] UKHL 2 - Paton - 595 22 Apr 1782 HL Scotland [ Bailii ] Â Alexander More v Janet M'Innes, Widow of Captain Fairbairn, Late of The 62D Regiment of Foot [1782] UKHL 2 - Paton - 598 25 Jun 1782 HL Scotland [ Bailii ] Â Richard Legrand, Esq v Maria Stewart, His Wife [1782] UKHL 2 - Paton - 596 30 Jun 1782 HL Scotland [ Bailii ] Â Duke of Queensberry v Sir William Douglas, Bart [1783] UKHL 2 - Paton - 603; (1783) 2 Paton 603 30 Apr 1783 HL Scotland Paton Will - Intention.- Circumstances in which a deed declaring an intention to settle Â£16,000, sustained as a sufficient obligation binding on the heir. [ Bailii ] Â Volkert Hendricks, Late Master of The Ship Katherine of Amsterdam, and Peter Willem Van Lankern of Amsterdam, Merchant, and The Owners of The Said Ship Katherine and Her Cargo v Wm Cunningham, Merchant, Glasgow [1783] UKHL 2 - Paton - 609; (1783) 2 Paton 609 2 Jul 1783 HL Scotland Paton Capture - Jurisdiction.- Circumstances in which held that a Dutch vessel, while coming from a French colony, with the produce of that island to Amsterdam, was held to have been illegally captured as a neutral, neither the vessel nor the cargo, nor her papers, shewing that she was an adopted French vessel. Opinion indicated, though the objection to the competency was waived, that the Admiralty Court of Scotland had no jurisdiction to try such a question, but that it belonged to the High Admiralty Court of England. [ Bailii ] Â Magistrates and Town Council of The City of Glasgow v Messrs Murdoch, Warren, and Co [1783] UKHL 2 - Paton - 615; (1783) 2 Paton 615 9 Jul 1783 HL Scotland Paton Statute - Impost Duty - Evasion.- The Magistrates of Glasgow are, by statute, entitled to a duty upon all ales and beer brought into Glasgow, from all the breweries in and about Glasgow, for consumption. Sometime after the passing of the act, parties erected a brewery in Anderston, which they conceived beyond the bounds of the act. The Magistrates, however, insisted on payment of their duty; Thereafter the brewers resorted to an agreement with Monro in Glasgow, to buy all their ales on the brewery. By this means he was the medium of still supplying the former customers of the brewers. Held this an evasion of the act, and that the brewers were still liable. [ Bailii ] Â Laurence, William, Charles, Margaret, Charlotte, Thomas, Frances-Laura, George and Robert Dundases, Children of The Marriage Betwixt Sir Thomas Dundas of Kerse, Bart, and Lady Charlotte Fitzwilliam, His Wife v Sir Thomas Dundas of Kerse, Bart [1783] UKHL 2 - Paton - 618; (1783) 2 Paton 618 21 Jul 1783 HL Scotland Paton Revocation - Entail.- An entailer had reserved to himself power to alter and revoke the entail executed by him. He thereafter executed a will conveying the fee of his whole real estate in England and Scotland, according to the English form, and revoking all "former and other wills." Held that this latter deed was not effectual as a revocation of the entail. [ Bailii ] Â The Rev Mr William Milligan, Minister of Kirkden v Sir John Wedderburn and Others, Heritors of The Parish of Kirkden [1784] UKHL 2 - Paton - 621 8 Jul 1784 HL Scotland [ Bailii ] Â James Carse, The Younger of Blackhouse v His Majesty'S Advocate and Solicitor General for Scotland, for The Public Interest, and John Corbet and John Colquhoun [1784] UKHL 3 - Paton - 1 26 Jul 1784 HL Scotland [ Bailii ] Â John Colquhoun v John Corbet, Esq [1784] UKHL 2 - Paton - 626 27 Jul 1784 HL Scotland [ Bailii ] Â William Bruce, Late Shipmaster, Dundee v Robert Cleghorn and Alexander Cleghorn, Bakers In Leith [1785] UKHL 3 - Paton - 5 2 Mar 1785 HL Scotland [ Bailii ] Â Sir James Nasmyth, Bart v John Samson, Heir-At-Law of David Samson Deceased, and John Aitken [1785] UKHL 3 - Paton - 9 4 Apr 1785 HL Scotland [ Bailii ] Â John Stewart and Co Merchants, Greenock v John Dunlop and Others, Merchants, Glasgow [1785] UKHL 3 - Paton - 14 8 Apr 1785 HL Scotland [ Bailii ] Â Grove and Others, Creditors of The York Buildings Company v Sir James Grant of Grant [1785] UKHL 3 - Paton - 17 15 Apr 1785 HL Scotland [ Bailii ] Â Rob Robb, William Miller, Senior, and George Robb, Burgesses of The Burgh of Anstruther Wester v William Thompson and Others, The Magistrates and Councillors of The Said Burgh [1785] UKHL 3 - Paton - 21 26 Apr 1785 HL Scotland [ Bailii ] Â Andrew Johnston and Others, Magistrates and Councillors of The Burgh of Anstruther Easter v Alex Tenant and William Gray, Senior Constituent Members of The Town Council of The Said Burgh At Michaelmas Election 1784 [1785] UKHL 3 - Paton - 22 28 Apr 1785 HL Scotland [ Bailii ] Â Mrs Helen Douglas, Spouse of James Baillie of Olivebank, and Him for His Interest v Mrs Elizabeth Chalmers, Widow of The Deceased Archibald Scott, Surgeon In Musselburgh [1785] UKHL 3 - Paton - 26 6 Jun 1785 HL Scotland [ Bailii ] Â Alex Young, A Linen Printer v Messrs Brown and Company, Merchants, Glasgow [1785] UKHL 3 - Paton - 42 7 Jun 1785 HL Scotland [ Bailii ] Â Janet M'Innes, Widow of Captain Fairbairn, Late of The Sixty-Second Regiment v Alex More [1785] UKHL 3 - Paton - 40 23 Jun 1785 HL Scotland [ Bailii ] Â Thomson v Douglas, Heron and Co 15 November 1786 FC; 1786 M 10229 15 Nov 1786 Scotland Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to borrow money and granted a heritable security in favour of Douglas, Heron & Co. Other creditors adjudged the property. The court held that the allegations of fraud on the part of the disponee were irrelevant against the defenders' heritable securities but that they were relevant as to the creditors who had adjudged the property. Held: It had been found in decisions, which for the stability of the law ought not to be departed from, that adjudgers must take the right of their debtor tantum et tale as it was in his person. 1 Citers Â Russell v Ross's Creditors; Pierse v Ross 31 January 1792 FC; 1792 M 10300; 3 Ross's LC 177 31 Jan 1792 Lord Braxfield, Lord Monboddo's Scotland, Insolvency 1 Cites 1 Citers Â Multiple Cases With Citation: [1793] Mor 2010 [1793] Mor 2010 1793 SCS Scotland [ Bailii ] Â Smith v Taylor Bells Commntaries 18 December 1795 18 Dec 1795 Land, Scotland 1 Citers Â Buchan v Farqhuarson 1797 M 2905 1797 Scotland, Land 1 Cites 1 Citers Â Buchan v Farquharson 24 May 1797 FC; 1797 M 2905; 3 Ross's LC 137 24 May 1797 Scotland, Insolvency On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon's estate did not vest in the trustee in bankruptcy until after that. The trustee brought an action against Farquharson to reduce the assignation, inter alia because it had not been intimated until after the sequestration. The court assoilzied Farquharson on the ground that the assignation had been completed by intimation before Gordon's estate had vested in the trustee. A sequestration did not prevent a creditor from completing his right by any act independent of the consent of the debtor, such as intimating a previous assignation. But: "The trustee on a bankrupt estate will be preferred to a creditor claiming on a voluntary disposition, granted before the sequestration, if the right of the trustee be first completed. And therefore, the propriety of the decision, 8 December 1795, Taylor and Smith against Marshall, in so far as it went upon the supposition that the trustee in such case is bound to make good the previous voluntary disposition, may be doubted." 1 Citers Â
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