Category: Scotland

George Wishart, Dd, and All The Other Ministers of The Gospel In Edinburgh v The Magistrates of Edinburgh: HL 17 Feb 1766

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,

[1766] UKHL 2 – Paton – 118, (1766) 2 Paton 118
Bailii

Scotland, Ecclesiastical

Updated: 11 January 2022; Ref: scu.560635

The Earl of Abercorn v Andrew Wallace of Woolmet, Esq, Ws: HL 25 Jan 1764

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.

[1764] UKHL 6 – Paton – 757, (1764) 6 Paton 757
Bailii

Scotland, Landlord and Tenant

Updated: 11 January 2022; Ref: scu.560631

The Right Honourable Francis Lord Napier v William Livingstone, Esq: HL 11 Mar 1765

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.

[1765] UKHL 2 – Paton – 108, (1765) 2 Paton 108
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560612

His Majesty’s Advocate v Archibald Douglas of Douglas: HL 4 Mar 1765

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.

[1765] UKHL 2 – Paton – 104, (1765) 2 Paton 104
Bailii

Scotland

Updated: 11 January 2022; Ref: scu.560611

William Dallas v James Dallas: HL 4 Feb 1765

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.

[1765] UKHL 2 – Paton – 91, (1765) 2 Paton 91
Bailii

Scotland, Family

Updated: 11 January 2022; Ref: scu.560609

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: HL 20 Mar 1765

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.

[1765] UKHL 6 – Paton – 774, (1765) 6 Paton 774
Bailii

Scotland, Agriculture

Updated: 11 January 2022; Ref: scu.560613

Lord Drummond v Wishart: SCS 17 Jul 1562

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.

[1562] Mor 14081
Bailii
Scotland

Scotland

Updated: 10 January 2022; Ref: scu.560417

The Laird of Elphingstoun v The Lord Glamis: SCS 21 Mar 1561

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.

[1561] Mor 5204
Bailii
Scotland

Scotland

Updated: 10 January 2022; Ref: scu.560405

James Kincaid v Johne Johnstone of Cotefield, Tutor To James Kincaid of Brochtoun: SCS 2 Dec 1561

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.

[1561] Mor 16228
Bailii
Scotland

Scotland

Updated: 10 January 2022; Ref: scu.560411

Laird of Blair v Andrew Hamilton: SCS 11 Jan 1561

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.

[1561] Mor 15836
Bailii
Scotland

Scotland

Updated: 10 January 2022; Ref: scu.560399

Gyle Shopping Centre General Partners Ltd v Marks and Spencer Plc: SCS 25 Mar 2014

Outer House Court of Session – The pursuer avers that it has entered into an agreement with Primark Stores Ltd for the erection and leasing of a new retail store building which would abut the existing shopping centre and would be constructed on currently unbuilt-upon land including part of the car parking area. In this action the pursuer seeks declarator (i) that the defender has given its unqualified written consent to the use by the pursuer of this land for the construction of a new building to be leased to Primark; (ii) that it is entitled to construct the building and would not be acting unlawfully or in breach of the defender’s lease in so doing; and (iii) that the defender would be barred from taking any action to prevent construction on the ground that there is absence of agreement complying with the terms of either the Requirements of Writing (Scotland) Act 1995 or the defender’s lease. The defender contends that it has not given its agreement in probative writing to the construction of the building and accordingly that the pursuer is not entitled to commence construction.

Lord Tyre
[2014] ScotCS CSOH – 59
Bailii
Requirements of Writing (Scotland) Act 1995
Scotland

Land, Contract

Updated: 10 January 2022; Ref: scu.523283

Mrs Mary Monypenny, Widow of John Ayton Younger, and Mary and Jean Their Daughters; and James Ayton (Formerly Monypenny) v Thomas Ayton, Second Son To John Ayton The Elder, and Brother To John Ayton The Younger: HL 11 Mar 1757

Prescription of Entail – Minority –
An entail was executed of an estate, but allowed to lie dormant for eighty years, during which the succeeding heirs had possessed on a different title in fee-simple. Held that the limitations in the entail were worked off and prescribed by the forty years’ possession had on this absolute title, and that the minority of heirs substitutes of entail did not interrupt the prescription.

[1757] UKHL 1 – Paton – 649
Bailii
Scotland

Land

Updated: 09 January 2022; Ref: scu.558240