Category: Scotland

John Shaw Stewart, Esq v The Magistrates and Council of Greenock: HL 2 Mar 1779

Held in the Court of Session, that by law, the ground to be chosen for erecting a new churchyard, is a burden upon the heritors of the parish; and the ground contiguous or adjoining to the old churchyard is to be set off, reserving to the heritor relief for the value against the other heritors, unless otherwise agreed on. Where action had proceeded and had been discussed on the merits, without objection to certain parties being called, appeal was taken to the House of Lords, where the objection was taken for the first time. Interlocutors in consequence reversed, without prejudice to call additional parties, or bring a new action. Question: whether a superior is bound to grant a feucharter to a kirk session, of ground for churchyard.

[1779] UKHL 2 – Paton – 486
Bailii
Scotland

Land

Updated: 13 January 2022; Ref: scu.562034

Bray and Others v Peterkin (Bruce’s Trustee) and Others: SCS 19 Jul 1906

(Court of session Inner House Second Division) Section 27 of the English Wills Act 1837, which provides that ‘a bequest of the personal estate of the testator, or any bequest of personal property described in a general manner, shall be construed to include any personal estate, or any personal estate to which such description shall extend (as the case may be), which he may have a power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary intention shall appear by the will,’ held to be a correct expression of the law of Scotland. Lord Brougham’s dictum as to the law of Scotland in Cameron v. Mackie, August 29, 1833, 7 W. and S. p. 106, at p. 141, on which the above section is founded, approved.
Opinion per Lord Low that the presumption in favour of the exercise of the power can be rebutted only by evidence of intention amounting practically to a declaration that the power is not exercised.
A testator conveyed his whole means and estate, heritable and moveable (except the estate of X to be settled in the fourteenth place), to trustees for various purposes, including fourth, division of furniture among A, B, C, grandnieces of wife failing exercise by wife of power of appointment conferred on her; eighth, liferent of whole income to wife; twelfth, on death of wife if she survived him, payment of residue of moveable estate as appointed by her, or, failing appointment, equally among grandnieces A, B, C; fourteenth, as regarded estate of X, on death of wife sale of estate and payment of proceeds as she might appoint, or, failing appointment, division among certain relatives of wife from whom A, B, C, otherwise provided for, were excluded. By her will the wife, after expressly exercising the power of appointment as to furniture, provided, ‘as regards the remainder of my means and estate I provide’ that the residue be divided between her grandnieces A and B (C had died) in the proportion of two-thirds to A and one-third to B. By subsequent codicil she expressly exercised the power of appointment over the residue of her husband’s moveable estate in favour of A and B.
Held (dub. Lord Stormonth Darling) that the power of appointment conferred on the wife by purpose fourteen as regarded the proceeds of the sale of X, had been validly exercised by her will in favour of A and B.

Lord Dundas, Ordinary
[1906] SLR 43 – 746
Bailii
Scotland

Wills and Probate

Updated: 13 January 2022; Ref: scu.610383

Lady Cranstoun and Michael Lade, Esq v George Lewis Scott and Others: HL 21 Apr 1777

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.

[1777] UKHL 2 – Paton – 425, (1777) 2 Paton 425
Bailii
England and Wales

Scotland

Updated: 13 January 2022; Ref: scu.562009

Munro Ross of Pitcalny, Esq v Captain John Lockhart Ross: HL 9 Nov 1776

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.

[1776] UKHL 2 – Paton – 393
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561845

John Boyd v James Steel: HL 10 Mar 1775

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

[1775] UKHL 2 – Paton – 368, (1775) 2 Paton 368
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561830

Robert Greig, Robert Marshall, James Belfrage, Michael Henderson, and Others v James Bruce Carstairs of Kinross: HL 24 Nov 1775

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.

[1775] UKHL 3 – Paton – 675
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561834

Robert M’Nair, Merchant In Glasgow v James Coulter and Others, Merchants In Glasgow, Insurers of The Ship Jean and Her Cargo: HL 15 Feb 1773

Valued or Open Policy – Proof – Bill of Lading – Interest.- Insurance for andpound;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 andpound;1000 named in the policy; also to recover interest thereon.

[1773] UKHL 2 – Paton – 297
Bailii

Scotland, Insurance

Updated: 13 January 2022; Ref: scu.561817

Lieut Andrew Lawrie v Captain John Macghie, and Anne His Wife, Formerly Anne Lawrie, and Others: HL 17 Mar 1773

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.

[1773] UKHL 2 – Paton – 309
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561820

The Hon John Douglass, An Infant, By His Guardians v The Earl of Morton: HL 20 Jan 1773

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 andpound;14000. In implement of this obligation, he had resolved to convey an heritable bond he held over an estate for andpound;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.

[1773] UKHL 3 – Paton – 671, (1773) 3 Paton 671
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561812

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: HL 12 Feb 1773

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 andpound;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.

[1773] UKHL 2 – Paton – 291, (1773) 2 Paton 291
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561814

Robert Alexander, Esq v James Montgomery and Co: HL 19 Feb 1773

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.

[1773] UKHL 2 – Paton – 300, (1773) 2 Paton 300
Bailii

Scotland, Contract

Updated: 13 January 2022; Ref: scu.561816

Alexander Livingston, Esq v James Warrock: HL 29 Apr 1773

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.

[1773] UKHL 6 – Paton – 790, (1773) 6 Paton 790
Bailii

Scotland, Trusts

Updated: 13 January 2022; Ref: scu.561822

William Hutchison, Late Merchant In Leith v The Representatives of James Young and Dr Robert Mackinlay: HL 15 Feb 1771

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.

[1771] UKHL 6 – Paton – 783, (1771) 6 Paton 783
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561681

Mrs Margaret Houston Stewart Nicolson v Houston Stewart Nicolson, Esq: HL 18 Feb 1771

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.

[1771] UKHL 3 – Paton – 655
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561680

Robert Willock of Cornhill, London, Bookseller and Patrick and John Straton of Montrose, Merchants v John Ouchterlony of Montrose, Esq Et E Contra: HL 30 Mar 1772

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.

[1772] UKHL 3 – Paton – 659, (1772) 3 Paton 659
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561691

Mr Tommy Kane and Scottish Ministers (Meetings Between Scottish Government and Edinburgh Airport): SIC 25 Feb 2016

On 2 September 2015, Mr Kane asked the Scottish Ministers (the Ministers) for a list of all meetings between any Scottish Government Minister or official and any representative of Edinburgh Airport, including details of participants and the reason for meeting, from 10 May 2011 until 1 September 2015. Transport Scotland, on behalf of the Ministers, informed Mr Kane that it would cost in excess of pounds 600 to respond to his request and so, by virtue of section 12 of FOISA, the Ministers were not required to comply with it. After review, Mr Kane remained dissatisfied and applied to the Commissioner for a decision.
The Commissioner investigated and found that the Ministers had properly responded to Mr Kane’s request for information in accordance with Part 1 of FOISA.

[2016] ScotIC 043 – 2016
Bailii
Scotland

Information

Updated: 13 January 2022; Ref: scu.561697

Robert Waddell, Esq, Conjunct Principal Clerk of The Bills v Charles Inglis, Deputy Clerk of The Bills: HL 14 Feb 1770

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.

[1770] UKHL 2 – Paton – 205
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561666

Charles M’Kinnon, Esq and His Guardians v Sir Alexander Macdonald, Bart, John Mackenzie, His Trustee, and Lieutenant John Mackinnon: HL 25 Feb 1771

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.

[1771] UKHL 2 – Paton – 252, (1771) 2 Paton 252
Bailii
Scotland

Scotland

Updated: 13 January 2022; Ref: scu.561679

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: HL 15 Feb 1770

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.

[1770] UKHL 2 – Paton – 209
Bailii

Scotland, Construction, Arbitration

Updated: 13 January 2022; Ref: scu.561667

Earl of Lauderdale v George Mackay of Skibo: HL 21 Mar 1770

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.

[1770] UKHL 2 – Paton – 234
Bailii

Scotland

Updated: 13 January 2022; Ref: scu.561668

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: HL 17 Mar 1780

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.

[1780] UKHL 2 – Paton – 537, (1780) 2 Paton 537
Bailii
England and Wales

Scotland

Updated: 12 January 2022; Ref: scu.561499

Colonel James St Clair of St Clair v The Magistrates and Town Council of The Burgh of Dysart: HL 8 Mar 1780

Servitudes – OF Bleaching – Of Foot Road – Of Taking Water – Prescription – Use and Possession – A servitude of bleaching linen sustained; also a servitude in favour of the inhabitants of a burgh, of taking water from the wells in a neighbouring heritor’s property for family use, as well as a servitude acquired by immemorial use of a right to a foot road to these wells. Also that the burgh, as a corporate body, by the charter of the burgh, had a sufficient title to acquire such servitudes, by prescription and immemorial use and possession of its inhabitants.

[1780] UKHL 2 – Paton – 554, (1780) 2 Paton 554
Bailii
Scotland

Land

Updated: 12 January 2022; Ref: scu.561498

Law Hospitals NHS Trust v Rush: SCS 13 Jun 2001

The claimant had said that the effect of her dyslexia was to inhibit her career progress.
Held:It was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether she was within the Disability Discrimination Act. Evidence of how the claimant carries out normal day-to-day activities while at work is relevant evidence. However, on the facts, the decision that the claimant was disabled should not be disturbed.

Lord Kirkwood
[2001] IRLR 611, 2001 GWD 21-810, [2001] ScotCS 149, 2002 SC 24, 2002 SLT 7
Bailii
Disability Discrimination Act 1995
Cited by:
Applied – Abbey National Plc v Dutton EAT 20-Jan-2005
EAT Disability Discrimination
Employment Tribunal Chairman sitting alone hearing a preliminary issue as to whether Claimant was disabled erred in refusing to allow cross-examination of Claimant on what she . .

Lists of cited by and citing cases may be incomplete.

Scotland, Employment, Discrimination

Updated: 12 January 2022; Ref: scu.561385

NRAM Plc v Jane Steel and Bell and Another: SCS 19 Feb 2016

(Extra Division, Inner House) The bank had relied upon mistaken statements by the solicitor acting for a client as to the intention to repay its debts. Without checking, the bank issued the documents to release their security. It now appealed from rejection of its claim in negligence against the solicitor.
Held: The appeal succeeded.

Lady Smith
[2016] ScotCS CSIH – 11, 2016 SCLR 736, 2016 SC 474, 2016 SLT 285, 2016 GWD 6-136, [2016] PNLR 20
Bailii
Scotland
Cited by:
At Inner House – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 January 2022; Ref: scu.560368

The Master of Errol v N Keith: SCS 9 Jul 1563

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.

[1563] Mor 5114
Bailii

Scotland, Land

Updated: 11 January 2022; Ref: scu.560742

The Bishop of Aberdeen v John Ogilvie: SCS 3 Jul 1563

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.

[1563] Mor 7324
Bailii

Scotland, Jurisdiction

Updated: 11 January 2022; Ref: scu.560740

The Chapter of Glasgow v The Laird of Cessford: SCS 29 Jul 1563

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.

[1563] Mor 10143
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560741

Alexander Boyd v Robert Boyd: SCS 8 Jan 1563

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.

[1563] Mor 6420
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560735

Johnston v Laird of Johnston: SCS 11 Feb 1563

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.

[1563] Mor 10149
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560736

Laurence Simpson v Johne Zoung: SCS 14 Mar 1563

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.

[1563] Mor 16565
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560738

The Laird of Drumlanark v Laird Cockpuile: SCS 23 Mar 1563

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

[1563] Mor 13579
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560737