Craigmillar Castle from Dalkeith Road [Robert Gibb, Craigmillar Castle from Dalkeith Road, 1826. National Galleries of Scotland. ]

Robert Gibb's 1826 painting, Craigmillar Castle from Dalkeith Road, is an idealized vision of an early nineteenth-century Scottish agricultural landscape. His work captured the centrality of farming and animal husbandry to Scotland's economy and society, even if his scene of pastoral serenity belied the era's chaotic land reforms and social dislocation.

Gibb depicted a Lowland landscape undergoing profound change. In the preceding century, land improvement initiatives and shifting social customs, in part consequences of the Enlightenment and Scotland's engagement with the British Atlantic world, altered how Scots used the land. Proprietors began to enclose once communally-worked farms, drive up rents, and clear tenants to make way for sheep. The emergence of this new landscape led to the voluntary emigration of many Scots to North America in the decade before the American Revolution and their forced migration to British Canada beginning in the early nineteenth century. 

The cases presented here illuminate a Scottish landscape in transition. Disputes over grazing rights, road use, wheat production, and many others shed light on the people who worked the land and powered a major aspect of the Scottish economy. They provide insight into how larger trends shaped local controversies.

Related Cases

Case Date Legal Subjects Abstract
Fleming and Elphinston v. Fleming and Grant 1767 This case involved competing claims to the title of the lands of Board and a dispute over the validity of Robert Fleming's descendence from the Flemings of Board. In 1758, Robert Fleming and his trustee John Grant brought an action of reduction against Lady Clementina Fleming to revoke her rights to the lands of Board. In 1761, Lady Clementina and her husband Charles Elphinstone initiated this counter-suit and brought an action of reduction against Robert Fleming and John Grant, in which they claimed that Robert Fleming was an illegitimate heir of the Flemings of Board and therefore had no claim over the lands of Board under dispute.
Earl of Rothes v. Shepherd 1767 Landlord and tenant, Rent Alexander Shepherd, a tenant farmer, rented land in Begg from the Earl of Rothes. After failing to pay a year's rent, Shepherd sought a bill of suspension from the court to avoid getting evicted, claiming that the time and money that he had invested in enclosing the land with hedges and ditches, at the Earl's encouragement, had rendered it impossible to pay his rent. The Earl of Rothes argued that Shepherd was not the industrious farmer and improver that he claimed to be.
Findlay v. Graham 1773 Debt, Copartnership In 1739 James Findlay entered into a partnership with John Graham, James Stirling, Alexander Wotherspoon, and John Buchanan for slaughtering and selling cattle. Wotherspoon was appointed clerk, bookkeeper, and cashier of the partnership. Findlay was responsible for purchasing cattle and selling live cattle that were not fit for slaughter. Findlay was illiterate so he relied on Wotherspoon to keep proper accounts of the business. In February 1740, the partnership dissolved. The partners sought to settle all the accounts of the business. Findlay alleged that Wotherspoon was negligent in maintaining the company's accounts and argued that the partnership owed him money for the fifty cows he purchased in 1739 on partnership's behalf. The defenders claimed that Findlay was actually in debt to the company. They argued that Findlay was reimbursed for the fifty cows, or that he made this payment using company funds rather than his own funds.
Edmonstone v. Tweedale 1772 Debt In 1766, Robert Tweedale, defender, owed money to James Edmonstone, pursuer. Tweedale could not repay Edmonstone at that time. As security for the eventual payment, Tweedale granted Edmonstone the right to "infeft," or take possession of, some old houses in Mid-Calder. Edmonstone agreed to delay seeking payment provided that Tweedale delivered possession of the houses to him. Despite this agreement, Edmonstone did not take possession of the houses and allowed Tweedale to continue living in them. Edmonstone grew tired of the delays in payment and found that the homes were in such a poor state of repair that their sale would not cover the cost of the debt. Edmonstone brought a process against Tweedale before the sheriff-depute of Edinburgh seeking to collect payment. He argued that the homes stood as security for future payment of the debt, and did not constitute the payment itself. Tweedale, however, countered that his infestment to Edmonstone satisfied the debt, an argument that the sheriff-depute accepted. In the Court of Session, the Lord Ordinary initially found for Edmonstone, but later reversed his own ruling. The documents here represent Edmonstone's attempts to convince the full court to rule in his favor.
Oswald v. Grant 1772 Commonty, Common lands This case concerns the division of the commonty located in the barony of Preston, known as the "Fell of Preston," a hilly area lying in the Parish of Kirkbean. Richard Oswald, pursuer, and Andrew Grant et al., defenders, were heritors in the same district. Grant, et al, claimed that Oswald had no right to that land because he was excluded earlier when the Merse of Preston, a seaside area located in the same barony, was divided. Grant et al. argued that the division of the Merse of Preston was based on customary use. Grant et al. were not excluded from this division, which occurred in 1731. Grant et al. claimed that the division of the Fell of Preston should be similarly divided, based on customary use. Oswald countered that he had a right of common property in the Fell of Preston.
Allan v. Stewart 1773 Roads, Property, Servitude Sheep drovers commonly used a road through the properties of pursuers Joseph Allan and Alexander Morton to get to a sheep fair in Kilbride. Allan and Morton wanted to mitigate or stop the use of this road for the passage of sheep. Allan and Morton insisted that the sheep-drivers had no right to use this road because there were other routes available. They specifically alleged that another road to the west of Allan and Morton, called the "peat-road," was a suitable path. Defenders John Stewart and James Stewart were heritors of the lands that included this peat-road. John and James Stewart maintained that the peat-road is private, not public. They also claimed that Allan and Morton could not summon them into this case as defenders because Allan and Morton had no legal interest in the peat-road.
Dick v. Drysdale 14 Jan 1812 Entail Sir Alexander held Prestonfield and Corstorphine under several strict entails dating to 1720, one of which prevented any heir from setting tacks for more than one lifetime. Sir Alexander's father, Sir William, set a tack in Drysdale that John Dick, as tutor to his nephew, sought to have voided. An Act of Parliament allowed certain types of tacks in contravention of entail clauses, but Dick maintained that the statute did not apply in this case.
Logan and Others v. Reid 31 May 1799 Property rights, Glebe Reid, the minister of the Parish of New Cumnock, life on lands owned by Logan. The previous minister had planted trees surrounding his Glebe lands and they were admired by the community, but when the Minister died and Reid succeeded him, Reid began to chop down the trees. Logan, as the owner of the land, sued to stop the further removal of the trees.
Ogilvy v. Dawson 1 Feb 1800 Stipend The pursuer Ogilvy was Minister of the Parish of Linton, which was located on the land of William Dawson. Ogilvy sought an increase in his stipend in light of Dawson's use of some of the land to grow barley. Ogilvy believed
that he deserved a greater stipend given the profits Dawson stood to earn from his agricultural activities.
Melville v. Heritors of Leslie 15 Jan 1800 To fund an increased stipend for the minister of Leslie parish, Lord Glenlee prepared a “scheme of locality,” which allocated the stipend among the heritors liable to pay. During proceedings on the locality, Lord Glenlee found that John Melvill had failed to show that his lands at Prinlaws were held cum decimis inclusis, which would exempt them from liability for the stipend. Melvill challenged the interlocutor, and the court held that charters from the commendator of Inchcolm, dated 1550 and 1568, and confirmed by King James in 1584, rendered the lands exempt.
Bell v. Magistrates of Glasgow Aug 1776 Property Pursuer Patrick Bell was the proprietor of a piece of land called Bellshaugh or Provost Haugh, situated along the River Clyde near Glasgow Green. Additionally, Bell claimed to own a small strip of land that was used for access to Bellshaugh. The magistrates of Glasgow purchased property on either side of this strip and sought to enclose the entire area. Bell protested, and the magistrates proposed two possible solutions. First, citing an Act of Parliament, they offered to build a fence on either side of the road and charge Bell for half of the construction cost. Alternatively, they proposed to erect a gate that could be used to access the road. Bell refused both proposals, claiming that the cited statute did not apply and that he had an absolute right to exclude the magistrates. The magistrates maintained that either accommodation—the fence or the gate—would be reasonable and equitable; they also suggested that Bell might only hold a servitude.
The Governors of the Hospital founded within the City of Edinburgh by George Herriot v. Walter Fergusson, Writer in Edinburgh 30 Jul 1773 Property rights and obligations The Governors of George Heriot’s Hospital, pursuers, granted defender John Cleland a five-acre feu in the barony of Broughton, which later became part of Edinburgh. The charter contained a stipulation that without the Governors’ consent, Cleland would not use his land for certain extractive purposes, such as digging for coal, or “in any other way than by the ordinary labour of plow and spade.” Defender Walter Ferguson purchased part of Cleland’s feu and sought to erect buildings on it. The Governors raised an action against Cleland and Ferguson, claiming that the charter’s stipulation prohibited all uses other than husbandry and gardening. The defenders argued that because superiors’ rights had been steadily eroding, the court should be skeptical of restraints on property. According to the defenders, the clause was best read to prohibit destructive uses of the land but not to place any limitations on surface uses.
James Coutts v. Sir Francis Blake 17 Feb 1775 This case addressed the court's jurisdiction to resolve a dispute over fishing rights in the river Tweed, where that river forms the border between Scotland and England. Pursuer James Coutts claimed that defender Sir Francis Blake of Twizell, who possessed a fishing right on the English side of the Tweed, had demolished a portion of Coutts’s dam, causing severe harm to his fishery. Blake claimed that the alleged demolition site was on the English side of the border, and therefore outside the jurisdiction of the Scottish courts. Many local residents are mentioned in case documents.
John Aitchison v. Thomas Hopkirk and Others 14 Feb 1775 This case was about the feudal requirement for possessors of land to enter with the superior as a prerequisite to obtaining title. The dispute arose after John Aitcheson of Rochsolloch purchased the estate of Airdrie. A former proprietor of that estate had feued out many small parcels, which became the site of a village. Many of the feus passed to singular successors, meaning that the property rights were transferred by separate title (e.g., through a sale or gift) rather than descending to an heir as part of the ancestor’s whole estate. These singular successors disagreed with Aitcheson about the fee he was entitled to demand for entry and whether that fee was due for houses as well as land.
Craig v. Anderson 6 Jul 1776 Trustees Joseph Heatly was an engineer who became insolvent before he could complete a projected coal-work outside of Glasgow. His estate being sequestered. His trustees put Heatly's funds and their own private capital into completing this coal work, projecting that the profits from the venture would more than pay back Heatly's debts and the expenses of its founding. John Anderson, one of Heatly's creditors, believed the trustees had neither the background nor the aptitude to manage a coal-work, and did not expect that this undertaking would result in him receiving the debt owed to him. He brought a summons and executed an inhibition against the trustees. In response the trustees petitioned the Court to have this inhibition suspended. Lord Kennet granted a sist (judicial stay) on the inhibition, "till the bill and answers should be advised." Because of this sist the inhibition was not recorded or executed within forty days, but the trustees feared that Anderson would file another one. They petitioned the Court to rule that Anderson could not execute an inhibition against the trustees of Heatly's estate. The Court dismissed this petition.
Sir Robert Pollock v. Thomas Paton 29 Jul 1777 Penalty, Rent In 1770, Sir Robert Pollock of Pollock let the lands of Floak and Floakside to Thomas Paton, a tenant of some years. The missives of the new agreement contained an additional clause that if Paton were to plough any land in addition to what he had ploughed the previous year, he would pay £100 Scots for each additional acre. After Paton had quit Floak and Floakside, Pollock brought action before the Sheriff of Renfrewshire, requesting the requisite payment on a newly-ploughed acre and a half. The sheriff-substitute initially ruled in Pollock's favour, however after consulting with the sheriff-depute he declared the extra provision to be a penalty that must correspond with real damages. Sir Robert, the pursuer, then applied to the Court by bill of advocation, claiming to have undertaken many costly improvements of his land, which would come to nought should tenants such as Paton be allowed to plough a meadowland of rich soil. He pointed out that Paton had been under no obligation to enter into the tack, and under no obligation to plough the extra land. The defender, on the other hand, stated that Pollock was severely exaggerating the quality of the land in question; he described it as a bare moor farm whose sole improvement was a stone dike on the common march. Furthermore, he claimed that in previous years he had been allowed to plough the land in question at no additional cost. The Court found in favour of the pursuer, determining the money asked for to be a form of rent.
Hamilton v. Hamilton's Creditors 1778 Ranking and Sale, Process, Adjudication In 1761, George Hamilton inherited Easter-Queenslie and Provanhall from his brother, Robert, along with some heavy debts. Hamilton later accumulated additional debts, and his other brother, John, acted as cautioner for many of them. In 1769, George Hamilton executed an absolute disposition in favor John over the Wester-Mailing of Easter-Queenslie, as security over the aforementioned debts. Over the years George Hamilton granted other wadsets to his creditors over other parts of his estate. By 1773, he had gone bankrupt, and the Court sequestrated the rents of his lands. George's brother, John, petitioned the Court to strike the Wester-Mailing of Easter-Queenslie from the estate sale, given the disposition held by him. The other creditors of George Hamilton objected to this petition, arguing that Hamilton's disposition, being in fact a security, did not endow him with preferable ranking. Furthermore, they argued that because Hamilton had received a confirmation of his interest only in 1776, after the ranking of the sale had begun, his confirmation was null and void. To this John Hamilton responded that regardless of the details of his disposition, "at all events he has security on the lands, and it is a matter of no great importance to him whether he be considered as real proprietor under the [aforesaid] personal obligation, or a preferable creditor." Handwritten marginalia indicates that the Court repelled the objections.
Robert Fram and Others v. The Magistrates of Dumbarton 19 Jul 1786 This case was about the right of the residents of Dumbarton to receive fish from the rivers Clyde and Leven. Dumbarton’s crown charter conferred the right to certain salmon fishings on “the bailies, burgesses, counsellors, community, and inhabitants” of the town. For more than a century, the town had let the salmon fishings to tacksmen, who were required to sell their catch in the town market at a low rate. In 1783, the magistrates decided to issue tacks with no such restriction. Certain residents of Dumbarton sued, arguing that they had a personal interest in the salmon fishings. The magistrates responded that the new arrangement would benefit the town.
The York-Buildings Company v. Alexander Mackenzie 8 Mar 1793 Documents available. Full description in progress.
Thomas Leishman v. The Magistrates of Ayr 8 Mar 1800 Claiming that the market of Ayr lacked a sufficient supply of oatmeal, the Burgh Magistrates sought an order authorizing them to confiscate stored meal from the farm of Balochillie and transport it to market. The Sheriff-substitute of Ayrshire issued a warrant to that effect, specifying that the meal’s owner must be paid not less than the current market price. Pursuer Thomas Leishman, a grain dealer whose meal was confiscated, sought to have the warrant recalled.
Lord Reay v. James Anderson and Others 5 Feb 1800 The parties to this case disputed whether a tutor had the power to grant a lease, or "tack," extending beyond his time in office. Lieutenant General Alexander Mackay, the sole surviving tutor for Hugh, Lord Reay, granted such a lease to the defenders—James Anderson, Thomas Arbuthnot, and James Arbuthnot. The lease applied to many elements of the Reay estate, including all the lands of Rispond; numerous other lands and grazings; fishing rights on the coast and in the waters of Hope, Durness, and Laxford; and rights to seaweed on the shores of the estate. Hugh’s successor, Eric, Lord Reay, sought to have the lease set aside on the ground that a tutor may not grant a lease extending beyond his time in office. However, the defenders argued that the lease benefited the estate and that its lengthy term would facilitate significant investments to improve the property.
Sir William Elliot v. George Currie 1795 Tack, Sublease George Currie sought to sublet a small lime quarry that he held in tack. His landlord, Sir William Elliot, Baronet of Stobs, refused to consent to the sublet unless Currie would give him 250 bushels of lime per year. Sir William petitioned the Sheriff of Roxburghshire for an order prohibiting Currie from subletting the lime quarry, which the Sheriff issued. Currie petitioned the Court of Session for relief. According to marginalia on the case document, this petition was refused without answers.
Earl of Galloway v. Earl of Morton 1759 Feu duties As proprietors of land in Orkney, the pursuers owed defender James, Earl of Morton, annual feu duties that were generally paid in products such as grain, oil, and butter. These duties were measured in the weight units customarily used in Orkney and Shetland, including the Mark, the Lispund, the Meil, and the Last. The pursuers alleged that these units had increased from their original standards and should be adjusted to match their values in Norway, where they originated. Case documents include diagrams of weighing instruments, numerous depositions, and references to many individuals (including some not listed below).
Representatives of Bryce Blair v. Walter Graham, and Others 1767 Factor, Stipend, Feu duties Bryce Blair served as factor of the sequestered estates of Crieve and Mossknowe from 1742 until his death in 1762. During that time, he failed to make regular court filings detailing the estate’s accounts. After Blair’s death, the estates were sold in a judicial sale, which raised enough proceeds to provide the heirs of Crieve with a reversion after the relevant debts were paid. This led to a dispute over the amount of the reversion. In particular, the heirs of Crieve disputed certain charges for a minister’s stipend, on the ground that the payments ought to have been made by tenants on the estate. The heirs also contested charges for feu duties to the Marquis of Annandale, contending that there was no proof of payment.
Patrick Heron v. Adam Menzies 1767 Landlord and tenant Pursuer Patrick Heron of Heron sought to have letters of horning directed against defender Adam Menzies of Troloss for unpaid rent.
Earl of Strathmore v. Captain George Oliphant-Kinloch 1767 Feu duties This case involved a Scottish land tenure known as the feu, in which a superior granted perpetual enjoyment of land to a vassal in return for an annual payment known as the feu duty. Patrick Lyon, Earl of Strathmore, feued the estates of Little Blair and Lochend to his factor James Coupar of Coupar Grange in return for a feu duty of £20 Scots. Feu duties on the property were also due to Viscount Stormont, who was Lord of Erection. After being transferred in two judicial sales, Lochblair came to be held by pursuer Captain George Oliphant Kinloch. Kinloch initiated a court proceeding to determine who was liable for the feu duties due to Viscount Stormont, claiming that the duties should be paid the Earl of Strathmore.
Marquis of Lothian v. His Majesty's Advocate 1767 Crown, Superior and Vassal, Forfeiture Pursuer William Henry Kerr, Marquis of Lothian, was the superior of lands in Linton Parish, including the estate of Henry Kerr of Graden. Kerr of Graden was convicted of treason for his role in the Jacobite rising, resulting in the forfeiture of his estate. The Marquis of Lothian claimed the estate pursuant to the Clan Act, which provided that certain forfeited lands would revert to the superior. His Majesty’s Advocate, James Montgomery, sought a delay to allow time for a potential settlement, while also raising procedural objections to the Marquis’s claim.
John Skeill v. Humphry-Bland Gardiner 1775 Debt, Estate John Skeill, pursuer, provided horses for Robert Gardiner, father of the defendant and Commissary for British forces in Scotland. Skeill contends that he was paid for the use of his horses in the summer of 1759 but not for the period of November 1759 to March 1760. Gardiner claims that he was very young when these transactions took place, but that there is ample evidence that the troops had been removed from their encampment by early November 1759, so that his father would no longer have needed Skeill's services. Case documents include depositions and accounts.
Robert Scott v. Adam Mitchell 1775 Wrongful imprisonment, Cautio Judicio Sisti This case was about whether a magistrate supervising a fair could exercise a power of summary imprisonment. On his way to the St. Lawrence fair in Selkirk, Robert Scott, pursuer, agreed to buy a cow from William Oliver. Scott intended to purchase the cow as a “yeld” (a barren cow), but he claimed to have discovered at the fair that she was “in milk.” Scott refused to take the cow or pay the agreed upon price. Oliver complained to defender Adam Mitchell, one of the bailies of Selkirk. Mitchell ordered Scott jailed after a summary proceeding, the facts of which were disputed. Arguing that this process was defective, Scott brought an action for damages for wrongful imprisonment. Mitchell claimed that as superior of the fair, he was empowered to enforce Scott and Oliver’s contract by summarily imprisoning Scott until Scott found caution (i.e., bail).
M'Crackan v. Pulline 1775 Jurisdiction James M'Cracken, suspender, agreed to pay Richard Pulline, charger, for allowing twenty-five cattle to graze on Pulline's land. M'Cracken subsequently refused to pay on the ground that the cattle were inadequately fed. Pulline brought an action for payment before the justices of the peace, who found in his favor. M'Cracken then obtained a suspension, arguing that the justices lacked jurisdiction and that his contract with Pulline was explicitly conditioned on the cattle being given sufficient fodder.
Aitken and Others v. Wilson and Bannatyne 1780 Birly court, Jurisdiction, Riot This case was about a “birly court”: a voluntary association of small proprietors and tenants that regulated property lines and common pasturages in their neighborhood. The birly court in Elsrighill (Elsrickle) levied a fine on one of its members, John Wilson. When Wilson refused to pay, the court’s elected officers seized two of his pewter plates. Wilson complained to the sheriff of Lanarkshire, alleging that the birly court lacked authority to take such an action. The sheriff-substitute, John Bannatyne, found that the officers were guilty of a riot and had them detained. In response, the officers sued both Wilson and Bannatyne for wrongful imprisonment.
Briggs v. Stark and Balfour 1778 Hypothec, Arrestment This case was about the effect of a landlord’s “hypothec,” which was a right to retain or recover the fruits of leased property as security for rent. David Peebles, a tenant, fell behind on rent that was due to his landlord, Janet Balfour. Balfour obtained a Sheriff’s decree to sequester Peebles’s crops; the order covered the current year’s rent, as well as past and future years. Defender Robert Stark, as sequestrator, auctioned off the crops and used the proceeds to compensate Balfour. However, John Briggs, another creditor of Peebles, challenged Balfour’s right to anything more than the current year’s rent. Stark and Balfour responded that the Sheriff’s decree entitled Balfour to any proceeds up to the amount of her entire claim. The Sheriff found no balance due by Stark to Peebles, and Briggs' arrestment was rendered useless. Briggs then submitted his case to the Court of Session by bill of advocation, and it came before Lord Alva. Alva ultimately repelled the reasons of advocation and Briggs petitioned the Court to alter this decision. Marginalia on the case documents indicates that the Court may have indeed altered Alva's decision.
Corbet v. MacKenzie 1780 Property rights, Bleachfield In November 1740, John MacKenzie's father (John MacKenzie) feued part of Carmyle. He was granted exclusive rights to the water in the bogs adjacent to the property, which had previously been commonly-held. The late MacKenzie then converted part of his lands to a bleachfield, and diverted the rivulet between Carmyle and Kenmuir to his property. After the death of his father, the younger John MacKenzie extended the bleachfield, and built wash-mills and a print-field on the land. He built a reservoir and a dam in the stream that James Corbet claimed diverted "every drop" of the burn-march to his property. In the late 1770s James Corbet brought action against John MacKenzie, declaring that a company in Glasgow had proposed that Corbet establish a bleachfield in Kenmuir, and he now required use of the burn-march. James Corbet argued that John MacKenzie was required to undo his diversions so that the rivulet could be shared with Kenmuir. John MacKenzie answered that his business depended on this diversion, which neither James Corbet nor his father had objected to in the past. He further argued that Kenmuir was not suitable land for a bleachfield owing to its lack of sun. Indeed, MacKenzie contended that Corbet was acting out of malice, and desired the destruction of the Carmyle bleachfield. Numerous local inhabitants acted as deponents in the case.
Gibb v. Speirs 1779 Locus Poenitentiae, Sale, Bargain Robert Gibb had given heritable securities of his land to certain merchants in Paisley. In order to retrieve these securities, Gibb ventured to sell part of his land, Laigh-lyon-crosses (Lower Lyoncross) to Alexander Speirs. He sent Speirs a valuation, and after not receiving a reply, visited him the evening before his own lands were to be auctioned. The two verbally agreed that Gibb would sell his lands to Speirs and then hold a twelve-year lease on the lands; Speirs wrote a letter to Hugh Snodgrass, his agent in Paisley, saying as much. When Speirs later refused to carry out this agreement, Gibb presented a petition to the Sheriff of Renfrewshire, requesting that the defenders be compelled to produce the letter and the initial valuation. When the Sheriff's summons went ignored, the case came before the Court. Speirs argued that his agreement with the Gibb was merely verbal, and he was therefore in locus poenitentae (not yet legally obliged to stand by the agreement). He further argued that Gibb's lands had in fact been conveyed to his creditors, and they were no longer his to sell. Gibb disputed both of these claims.
Robertson v. Pettigrew 1773 Landlord and tenant Acting on behalf of Gavin Pettigrew, Thomas Barton obtained a lease from the city of Glasgow for a farm called the town-mill mailing. Glasgow later sued Pettigrew and Barton for rent and obtained a favorable decree from the court. The tenants sought a suspension of that decree, on three main grounds: (1) the houses on the farm were in bad repair, (1) the magistrates had failed to provide thorns for hedges, and (3) the farm’s arable ground, for which rent was due, had been improperly measured.
M'Farlane v. Buchanan 12 Jan 1779 Hereditas Jacens, Factor, Charter of Confirmation Dougal Macfarlane, merchant in Dumfries, died in debt in 1730 shortly after purchasing Auchendennan Dennistoun. George Buchanan, Glasgow merchant, became factor for the estate in 1746, and in 1761 he secretly obtained a charter of confirmation and adjudication from the superior of Auchendennan. Sixteen years later, John Macfarlane, the nephew of Dougal, brought action against Buchanan before the Sheriff of Dunbarton, asking for exhibition of all bonds or other writs wherein his uncle had been bound to Buchanan. Buchanan countered that because forty-seven years had passed since Dougal Macfarlane had died, his nephew's right of insisting in a court-enforced delivery of documents was lost by barred claims. The Sheriff rejected Buchanan's defenses, and after Buchanan applied to the Court of Session, Lord Barskimming accepted the cause through a Bill of Advocation. In his argument to the Court, Macfarlane argued that because Buchanan had originally possessed the lands in question as a factor, he could not invert his possession without communicating this fact to their heir. In obtaining the charter of confirmation in secret, therefore, Buchanan had carried off Macfarlane's unclaimed estate. Buchanan, on the other hand, argued that Macfarlane must produce relevant grounds to challenge his right as heritor before gaining access to his charter-chest. Barskimming ordained Buchanan to produce the adjudication and factory in his possession, and the Court adhered to this interlocutor. Nevertheless, Buchanan's charter was never revoked; in 1784, he entailed his estate of Arden, formed from the lands of Auchendennan Dennistoun and Bannachra.
Mitchell v. Kerr and Shearer 1779 Locus Poenitentiae, Tack In 1772, David Kerr and John Shearer took out a 17-year sub-tack of Long-bank Park from Robert Mitchell. They had an assignation written up, which was signed by the land's superior but not by Mitchell. In December of 1776 they renounced their tack, and a year later Mitchell brought action against Kerr and Shearer, asking that they be compelled to resume possession. The defenders argued before Lord Alva that the tack had merely been verbal, and was therefore binding for only a year. Robert Mitchell, the pursuer, argued in turn that the tack was not verbal, having been formalized in an assignation signed by the farm's superior. Furthermore, Mitchell argued that the defenders had taken scourging crops on the land, and "therefore res non erat integra" -- in other words, their intent to withdraw from the contract had been cut off by this impoverishment of the land. Lord Alva found the letters orderly proceeded, but the Court suspended the letters without qualification, and Mitchell then petitioned for review. He asked whether it was appropriate that the defenders "after having thus exhausted and deteriorated the land, can now desert the possession, after having put in their pockets the large profits they reaped, by taking these scourging crops off the best part of the ground?” The defenders, on the other hand, argued that contrary to Mitchell's claims, they had undergone great trouble and expense in clearing the land, which had been overrun with "broom, whins, thorns, briers, and sog." They asserted that the land was in better condition upon their renunciation of it than it had been when they first took possession.
Woods v. Carstairs 1777 Bargain, Loan, Ranking of Creditors This case concerns a promised wheat shipment from Robert Fleming, tenant in Falside, to James and William Woods, merchants in Elie. In January 1777, Fleming wrote the Woods brothers about his circumstances. He offered to send them "all the wheat that I have" in exchange for an advance of money. The Woods brothers sent Fleming about £9 in cash and approximately £30 in bills. Fleming then sent the Woods sixteen bolls of wheat, promising to deliver the remainder after seed-time. However, before this could happen, Fleming's affairs went into disorder, and he applied for a sequestration of his effects. The Woods then applied to James Carstairs, Fleming's factor, for the remainder of the wheat. Carstairs replied that the money Fleming had received from the two men was not a bargain, but a loan, and informed them that they would have to wait for the ranking of Fleming's creditors. The Woods then petitioned the Court to order Carstairs to deliver the wheat to them. As opposed to Carstair's claim that the transaction in question was a loan, the pursuers argued that it was a bargain.
Young and Others v. MacDonald 1779 Commonty, Burgess, Burgh Royal The Royal Burgh of Burntisland held some land, called the Links or Commonty, upon which "from time immemorial" the burgesses would pasture their animals and wash, bleach, and dry their clothes. The Commonty was tacked to an individual who was charged with its upkeep, in exchange for which the burgesses whose livestock grazed on the land paid a grass-mail (rent). In 1776, Alexander MacDonald, tacksman for the Commonty, received permission from the town council to raise the annual grass-mail from less than five shillings to ten shillings per beast. Several burgesses applied to the Court of Session for a suspension. Lord Kennet rejected their request. They then applied to the Court to for review, arguing that neither the charger nor the Magistrates had the authority to encroach upon their rights to the Commonty. “It is well known, that every royal burgh has its own privileges and common-good, for behoof of its inhabitants . . . the Kings of Scotland, when they gave any village the privileges of a royal burgh, also gave them lands, or a common-good, for the support and encouragement of its inhabitants. They are called common lands and common-good, for this reason, that every inhabitant has an equal interest therein.” On December 9, 1779 the Court suspended the letters simpliciter, and soon afterward MacDonald submitted a petition. He argued that the Magistrates had sole authority over the disposal of the Commonty: "That Magistrates of royal burghs, as administrators of the property and common good of the burgh, can exercise every act of property and dispose of the same to the best advantage, is undoubtedly established.”
Beck v. M'Clone 1786 Factor, Agent This case was about a contract dispute. The defenders, Samuel Macclone Jr. and Samuel Macclone Sr., lived on the farm of Ross. The pursuer, John Beck, alleged that Samuel Jr. had agreed to sell him the farm’s entire output of oats. The Macclones responded that Samuel Jr. had no authority to make the bargain on behalf of his father, who was the sole tenant, and that Beck had known this when he allegedly entered into the transaction.