Category: Scotland

Cochrane v Mason: SCS 3 Mar 1866

A local road Act having provided that ‘no person shall make or erect any house or other building within 20 feet of the centre of any road ‘.
Held: (per Lord Kinloch) that this provision did not apply to the rebuilding of old houses which had been taken down in order to be rebuilt.

Citations:

[1866] SLR 1 – 200 – 1

Links:

Bailii

Jurisdiction:

Scotland

Land

Updated: 28 January 2022; Ref: scu.574428

Barr v Cochrane: SCS 8 Jun 1878

The purchaser of an estate has no title to insist on the seller fulfilling specific obligations to make repairs which he was bound to execute by his lease to the tenant, the seller having come to an agreement with the tenant by which he was relieved from all such claims in consideration of a sum of money.
The proprietor of an estate bound himself to the tenant in the lease of a farm to put the buildings, and c., on the farm into good condition, the tenants binding themselves to leave them so at the end of the lease. Before doing this, but after the tenants had taken possession, he sold the estate. A claim having been intimated to the purchaser by the tenants, the seller bound himself to the purchaser ‘to execute all repairs, and c., which he was bound to execute by his lease . . and to relieve you as purchaser of all claims at the instance of the tenants.’ The seller thereupon entered into an agreement with the tenants that they should relieve him from all claims competent to them in consideration of a sum of money. Held (aff. Lord Adam, Ordinary diss. Lord Ormidale) that the tenants being the only creditors in the obligation, the purchaser could not insist on the seller doing the work stipulated for.

[1878] SLR 15 – 603
Bailii
Scotland

Land

Updated: 24 January 2022; Ref: scu.577388

Nicolson (Arbuthnott’s Curator Bonis) v Arbuthnott: SCS 7 Jun 1878

An entailer, proprietor of the estates of A and B, executed a deed of entail of B, in which he set out that ‘for the more effectually preserving’ the estate of B ‘distinct from the lordship and estate of A, as a permanent property to the second son of my only son J, . . whom failing, by death or otherwise as after mentioned, to his other sons and their heirs-male in their order, subject to the provision after mentioned, ‘ he destined the estate of B to the second son of his only son and the heirs-male of his body, whom failing to each of the other younger sons of the family in their order of seniority, calling each by name, and adjecting in the case of each this condition?’who shall not have succeeded or become next in succession to the lordship of A;’ whom failing ‘to the other heirs-male of the body of the said J who shall not have succeeded or become next in succession to the lordship of A, ‘ . . ‘whom failing to my own nearest heirs-male whomsoever.’ To this last branch of the destination no condition was specially attached, but there followed the usual clauses with reference to the mode of making up titles, and c., in the event of the prohibitive condition coming into operation, and these clauses were applied to the institute and ‘the other heirs and substitutes before named and appointed, ‘ and in another case to him ‘or any of the other heirs of tailzie before specified.’
There was a further provision, applicable to all the heirs of entail, including ‘heirs whomsoever, ‘ with regard to bonds of provision to wives and children, to the effect that ‘if the granter thereof shall succeed to the lordship of A, ‘ they should ‘in that event be absolutely null and void.’
In a competition for special service to the estate of B, between a party who claimed as the eldest son of J’s eldest son, and who was actually in possession of the lordship of A, and that party’s own second son, held (1) that both must claim under the last branch of the above destination as ‘heirs-male whomsoever’ of the entailer, the previous branch having reference to J’s younger sons exclusively; and (2) that upon a construction of the intention of the testator the prohibitive condition did not apply to the last branch of the destination.

[1878] SLR 15 – 596
Bailii
Scotland

Land, Trusts

Updated: 24 January 2022; Ref: scu.577403

Barclay v Neilson: SCS 12 Jun 1878

A lease for nineteen years contained a declaration that the additions to the farm buildings and repairs thereon should be executed in a manner to be approved of by the landlord. There was no obligation on either landlord or tenant to execute them, and no specification of what they were to be. Held (1) that in the absence of any special stipulation to the contrary, the liability for repairs must fall on the landlord, and, on the principle noscitur a sociis, that the liability for additions must also fall on him; and (2) that the measure of his liability was what was required for the cultivation of the farm in terms of his lease, and should be ascertained by a remit to a man of skill.

[1878] SLR 15 – 622 – 1
Bailii
Scotland

Scotland

Updated: 24 January 2022; Ref: scu.577387

Menzies v Highland Railway Coy: SCS 8 Jun 1878

A railway passenger on a Friday afternoon took a first-class return ticket from A to P, the ticket having on its face ‘Saturday fare.’ The passenger noticing this, made inquires, and was informed by the company’s station-master at A that the ticket was available, according to the account of the latter, for all trains on Saturday and Monday; according to the passenger’s account, by all mailtrains. There was no train to A on Sunday, A being a station on a branch line, but trains stopped at a junction about twelve miles off. The ticket was not available on Sunday, regulations to that effect being posted up in the station at A, though ex facie of the ticket there was no intimation of that fact. On Sunday morning the passenger took his seat in a carriage at P; being asked to show his ticket, he did so at once, when he was told that it was not available, and that he must get another. This he refused to do, stating that the ticket was sufficient, and that he had been told so by the stationmaster at A. Being again told that he must get another ticket, or that he would be taken out of the carriage, he still refused, and accordingly was removed from the carriage by the officials, but with no undue violence. After the train started he hired a post-chaise and drove in it to the junction named above.
In an action of damages, and for payment of the expenses incurred in the hire, at his instance against the company, held ( per Lords Ormidale and Gifford) that the company were not liable in damages in respect?(1) that the ticket was not available on Sunday, and that this was sufficiently intimated to the passenger by the words ‘Saturday fare’ and the posters in the station; and (2) that therefore the passenger was in the position of having no ticket, and notwithstanding that he had no fraudulent intent the company were entitled to expel him from the carriage, under the 96th and 97th sections of the Railways Clauses Consolidation (Scotland) Act 1845; and ( per Lord Justice-Clerk) that the passenger, having been informed at Perth by the company’s servants that he was wrongfully in the carriage, should have at once yielded, and trusted to his after remedy.

[1878] SLR 15 – 608
Bailii
Railways Clauses Consolidation (Scotland) Act 1845 96 97
Scotland

Contract

Updated: 24 January 2022; Ref: scu.577401

Clark and Others (Liquidators of West Calder Oil Co) v Wilson and Others: SCS 7 Jun 1878

A company was being voluntarily wound up when one of their creditors poinded the company’s goods for a debt due for expenses in an action of interdict. The liquidators and a majority of three-fourths of the company’s creditors then entered into an arrangement under the above-mentioned sections of the statute, with a view to restraining diligence. The third heading of the arrangement was as follows: ‘The rights of all parties under the voluntary liquidation shall be settled on the same footing as if there had been a winding-up by or subject to the supervision of the Court under and in terms of the Companies Act 1862.’
A petition at the instance of the liquidators, under the 138th section of the Companies Act 1862, praying the Court to restrain the diligence which had been used as above, refused on the ground that the heading of the arrangement quoted above aimed at introducing a new method of winding-up, viz., a voluntary winding-up proceeding on the same footing as a winding-up under the supervision of the Court, and was beyond the powers conferred by the 135th and 136th sections of the Act.
Opinion ( per Lord Shand) that as the petition raised a question directly ‘in the matter of the winding-up, ‘ it could competently under the 138th section of the Companies Act 1862, be brought before the Lord Ordinary on the Bills in vacation.

[1878] SLR 15 – 600
Bailii
Scotland

Insolvency

Updated: 24 January 2022; Ref: scu.577390

Anderson (Inspector of Maybole Parish) v Paterson (Inspector of Irvine Parish): SCS 12 Jun 1878

A pauper child received parochial relief from the parish in which she was living at the time. Her father was an able-bodied man in another parish, but at the time when relief was first given he had no settlement in Scotland. After the father had acquired a residential settlement in that other parish, the inspector of poor in the parish which was affording relief gave the usual statutory notice of chargeability and a claim of relief to the inspector of poor in the parish of the father’s settlement, and intimated that the father, who still continued able-bodied, refused to maintain the child. In these circumstances the Court held that the parish where the father had a settlement, being the parish of settlement of the pauper at the date of the statutory notice, was liable to relieve the parish which had afforded relief of advances made after the date of the statutory notice.

[1878] SLR 15 – 620
Bailii
Scotland

Local Government, Benefits

Updated: 24 January 2022; Ref: scu.577386

Brown v Robertson: SCS 29 Jul 1896

The widow of a publican who had carried on business without a lease was appointed executrix, obtained a transfer of the certificate, and carried on the business for her own behoof. In an action at the instance of a trustee for the creditors on the husband’s estate it was decided that the widow was bound to account as executrix for the value of the goodwill as at the date of the husband’s death. Held (per Lord Kyllachy) that in estimating the amount of this liability the test was the amount which a trustee for the creditors of the husband would have obtained for the goodwill – considered as an introduction to the landlord, and to the licensing authority – from a purchaser who was aware that the widow would be a rival applicant for the licence.

[1896] SLR 34 – 570
Bailii
Scotland

Wills and Probate

Updated: 23 January 2022; Ref: scu.612689

Brown v Robertson: SCS 21 May 1896

There is no fiduciary relation between an executor, whether dative or nominate, and the creditors of a deceased person, and the former is not bound to administer the executry estate for behoof of the latter, but must merely account for it as at the date of the deceased’s death. Globe Insurance Co. v. Mackenzie ( 7 Bell’s App. 296), followed.
The widow of a publican having been appointed his executrix-dative, continued his business, and obtained a transfer of the licence in her own name and a renewal of the lease. No steps were taken at that time by the creditors of the deceased to vindicate their rights, and no arrangement was made by them with the executrix as to the terms upon which she was to carry on the business. Eighteen months after the creditors sequestrated the estate of the deceased, and the trustee subsequently raised an action against the executrix, concluding, inter alia, for the profits which she had made in the business, and for the enhanced value of the goodwill. Held that the executrix was bound to account only for the value of the estate, including the goodwill, as at the death of her husband.

[1896] SLR 33 – 570
Bailii
Scotland

Wills and Probate

Updated: 23 January 2022; Ref: scu.612642

Clark and Others v West Calder Oil Co (Ltd) and Others: SCS 30 Jun 1882

An assignation of a lease intimated to the landlord but not clothed with possession does not create a preferable security in favour of the assignee.
An assignation of moveables retenta possessione imports nothing more than a personal obligation, and does not create a preferable security in favour of the assignee.
A company incorporated under the Companies Acts issued debentures, and in security of the sums advanced on these debentures granted to trustees on behalf of the debenture creditors an assignation to the tenants’ part of certain mineral leases, together with the plant and machinery held by the company; these assignations were intimated to the various landlords, but no possession was taken. The company having fallen into liquidation, the debenture creditors contended that they were entitled to be ranked preferably to the other creditors of the company in respect of the security thus created. Their claim was repelled, no possession having followed on the assignation.
Observations on the difference in the legal position of liquidators and trustees in bankruptcy.

[1882] SLR 19 – 757
Bailii
Scotland

Insolvency

Updated: 23 January 2022; Ref: scu.579253

Stolt Offshore Ltd v Fraser: EAT 26 Feb 2003

EAT Unfair Dismissal – Reason for dismissal including substantial other reason.

The Honourable Lord Johnston
EATS/0041/02, [2003] UKEAT 0041 – 02 – 2602
Bailii, EAT
Scotland
Citing:
Cited – J Sainsbury Ltd v Hitt; Orse Sainsburys Supermarkets Limited v Hitt CA 18-Oct-2002
Reasobaleness of Investigation Judged Objectively
The employer appealed against a decision that it had unfairly dismissed the respondent. The majority of the Employment Tribunal had decided that the employers had not carried out a reasonable investigation into the employee’s alleged misconduct . .

Lists of cited by and citing cases may be incomplete.

Employment

Updated: 22 January 2022; Ref: scu.180056

The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 103: SCS 19 Jul 2016

Opinion

Lord Stewart
[2016] ScotCS CSOH – 103
Bailii
Marine Works (Environmental Impact Assessment) Regulations 2007
Citing:
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 104 SCS 19-Jul-2016
Outer House – Opinion – challenge to permission for wind farm . .
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 105 SCS 19-Jul-2016
. .
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 106 SCS 19-Jul-2016
. .

Lists of cited by and citing cases may be incomplete.

Scotland, Planning, Utilities, Animals

Updated: 22 January 2022; Ref: scu.568774

Royal Society for The Protection of Birds, Re Judicial Review CSOH – 106: SCS 19 Jul 2016

[2016] ScotCS CSOH – 106
Bailii
Citing:
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 104 SCS 19-Jul-2016
Outer House – Opinion – challenge to permission for wind farm . .
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 105 SCS 19-Jul-2016
. .

Cited by:
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 103 SCS 19-Jul-2016
Opinion . .

Lists of cited by and citing cases may be incomplete.

Scotland

Updated: 22 January 2022; Ref: scu.568777

The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 104: SCS 19 Jul 2016

Outer House – Opinion – challenge to permission for wind farm

Lord Stewart
[2016] ScotCS CSOH – 104
Bailii
Scotland
Cited by:
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 106 SCS 19-Jul-2016
. .
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 105 SCS 19-Jul-2016
. .
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 103 SCS 19-Jul-2016
Opinion . .

Lists of cited by and citing cases may be incomplete.

Planning, Environment, Animals

Updated: 22 January 2022; Ref: scu.568775

Royal Society for The Protection of Birds, Re Judicial Review CSOH – 105: SCS 19 Jul 2016

[2016] ScotCS CSOH – 105
Bailii
Citing:
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 104 SCS 19-Jul-2016
Outer House – Opinion – challenge to permission for wind farm . .

Cited by:
See Also – Royal Society for The Protection of Birds, Re Judicial Review CSOH – 106 SCS 19-Jul-2016
. .
See Also – The Royal Society for The Protection of Birds, Re Judicial Review CSOH – 103 SCS 19-Jul-2016
Opinion . .

Lists of cited by and citing cases may be incomplete.

Scotland, Animals

Updated: 22 January 2022; Ref: scu.568776

Siegel v The Procurator Fiscal, Lerwick: ScSf 26 Jul 2016

The question in this case is whether or not special reasons exist for not endorsing Mr Siegel’s licence with penalty points for the offence of using a motor vehicle without there being in force a valid policy of insurance to cover that use, in contravention of section 143 of the Road Traffic Act 1988.

[2016] ScotSC 49
Bailii
Road Traffic Act 1988 143

Scotland, Road Traffic

Updated: 22 January 2022; Ref: scu.568563

M Johne Boswell v James Logane: SCS 1 Dec 1522

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.

[1522] Mor 16215
Bailii
Scotland

Scotland

Updated: 21 January 2022; Ref: scu.556236

Theodore Edgar v James Maxwell, Alias Johnstone: HL 1 Feb 1742

Fiar absolute and limited. – An estate being settled in a marriage contract upon the heirs male of the marriage; whom failing, upon the heirs male of the body of the husband by any other marriage; whom failing, upon the heirs female of the marriage; found that the heir male of the second marriage, who succeeded to the estate, might gratuitously dispose of it to the exclusion of the substitutes, the heirs female of the first marriage.

[1742] UKHL 1 – Paton – 334
Bailii
Scotland

Trusts

Updated: 20 January 2022; Ref: scu.556480

Mcfadden v Armando Margiotta and UK Insurance Ltd: SCsf 22 Jun 2016

The pursuer claims in respect of loss occasioned by an accident which he maintains occurred on 18 March 2012 in which his car collided with that of the defender, who admits liability for it. Unusually, the defender’s insurers maintain that the damage sustained by both vehicles is incompatible with the description of the accident provided by those said to be present and that the damage caused to each car was not caused by any accident occurring on that date.

[2016] ScotSC 44
Bailii

Scotland

Updated: 20 January 2022; Ref: scu.567234