A view of Cullen Castle in Banffshire [Robert Adam, Cullen Castle, Banffshire, c. 1770-1780. Scottish National Gallery of Modern Art. ]

The Lords of Session regularly heard disputes over real and personal property.  Scottish law divided property between heritable (real) and moveable (personal) "subjects." The law prevented the transfer of heritable property by means of a will. Real estate descended to the deceased's immediate heirs, but through a will a testor could convey moveable property to her or his executors, next of kin, or anyone else they saw fit.

Beyond inherited property the Court frequently dealt with a wide range of property controversies. The cases presented here feature conflicts between debtors and creditors, scorned business partners, contested lands and estates, and numerous other areas in which property was at issue. From the ranking of creditors in bankruptcy cases to adjudicating competing claims to heritable or moveable subjects, the Court played a crucial role in resolving property litigation brought by Scots and others from around the British Atlantic.

Related Cases

Case Date Legal Subjects Abstract
Greenock Rope-Work Company v Donald, Donald, and Company 1773 Partnership, Dissolution The Greenock Ropework Company was a partnership formed to manufacture rope and sail-duck. Two partners, William Donald and Henry White (alternatively spelled Whyte), served as managers of the partnership. The partnership decided that only one manager was necessary, so it appointed Henry White as the sole manager of the partnership. This action offended William Donald as well as William's brother, James Donald, another partner of Greenock Ropework Company. With a strained relationship with two of its partners, William and James Donald proposed that the Company should be dissolved, which it did. The parties disputed the proper method of dissolution. To balance the books prior to dissolution, the partnership sought to collect a debt owed by James and Robert Donalds and Company (named as suspenders), the same James Donald who was a partner of the Greenock Rope partnership. Because the rope-work company furnished some goods to that company. James and Robert Donalds and Company sought to suspend the debt on the grounds that James Donald, as partner of the Greenock Ropework Company, was actually owed money in excess of the debt claimed by the partnership.
Gilbert Moses v. William Craig, Robert M'Lintock, and James Clark, Trustees for the Creditors of John M'Ewan 4 Feb 1773 Parole Evidence, Bankruptcy John McEwen (alternatively spelled McEwan), a flax-dresser in Glasgow, went into bankruptcy. Defenders William Craig, Robert McLintock, and James Clerk were named trustees for the creditors in McEwen's bankruptcy. Pursuer Gilbert Moses, a meal-merchant in Glasgow, was one of McEwen's creditors. The trustees entered into a concert of joint measures, signed by the creditors, for the payment of McEwen's debts to the creditors. In contravention of this concert among the creditors, however, Moses joined McEwen in an action of reduction to overturn the sale and division of McEwen's effects. Among other points, Moses maintained that he was not allowed to read the creditors' agreement prior to signing it. Moses also argued that a tenement of houses that he bought from McEwen prior to McEwen's bankruptcy and in partial satisfaction of McEwen's debt to Moses should remain as Moses' property, and not conveyed to the trustees in McEwen's bankruptcy. The trustees argued that, by acceding to the concert among creditors, Moses agreed to set aside any preferences he may have had to McEwen's debts, including the tenement of houses.
William Richardson v. Martin Fenwick 3 Mar 1772 Debt, Competition between Creditors William Richardson, pursuer, and Martin Fenwick, defender, both sought to collect on payments originally from John Bedford and Son, an English firm. Due to financial trouble, checks endorsed by John Bedford and Son could not be cashed. Instead, Richardson and Fenwick sought to collect from several Scottish firms that owed money to John Bedford and Son, such as Gibson and Balfour, Colin Mclaren and Samuel Patron. Under a "letter of arrestment ad jurisdictionem fundandam," a creditor could bring a foreign debtor's property under the jurisdiction of the Scottish court. In this case, the foreign debtor's property was debt. Fenwick used two arrestments in the hands of Gibson and Balfour, as debtors to Bedford and Son, to establish jurisdiction. He afterwards obtained a decree against Bedford and Son for payment and recourse. On the other hand, Richardson, upon the registered protest of his bill, had taken out letters of arrestment against Gibson and Balfour, and M'Laren and others, as debtors to Bedford and Son. Richardson and Fenwick disputed who had priority to these debts. Fenwick alleged that Richardson's procedure for authorizing letters of arrestment was irregular and therefore ineffective. Richardson disputed Fenwick's claim, and further argued that Fenwick incorrectly identified the debtor as Bedford and Son instead of John Bedford and Son.
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.
Francis Garbet and Company v. Their Creditors 1772 Bankruptcy, Sequestration Francis Garbet, Charles Gascoigne, and Peter Capper entered into a partnership under the name Francis Garbet and Company. The partnership was in the business of conveying goods to and from London and other places along the coast of England. Due to financial difficulty, Gascoigne applied to the court to sequester the whole personal estate belonging to the partners and to appoint a factor to manage the partnership's property so that timely payments could be made to the partnership's creditors. George Home was appointed factor on the sequestration. Gascoigne then sought to withdraw or amend the application by claiming that he was unaware of the effect of this sequestration under Scots law, having received his formal education and training in England. Under the law of Scotland, creditors of a company can claim not only the company's property, but the personal property of the individual partners as well. Under the law of England, in contrast, creditors of a company can only draw on the personal property of the individual partners after private creditors of the individual partners have been satisfied. The partners of Francis Garbet and Company sought to sequester the partnership's estate only, not the individual estates of the partners.
Ker v. Creditors of Sutherland 1772 Debt, Ranking of Creditors, Estate Alexander Sutherland of Kinminity granted a bond to the late Alexander Gordon of Garty. Gordon used this bond as collateral in dealings with other persons. Pursuer Elizabeth Ker's late husband, James Ker, was one of Gordon's creditors. Ker sought to collect on the bond, and he obtained for himself, and as assignee on behalf of certain other persons, a decree of adjudication against Alexander Gordon's son. Elizabeth Ker sought to collect on the bond on her late husband's behalf. Creditors of Sutherland, including George Dunbar, also sought to collect on the bond. At issue was whether Ker's claim could be treated pari passu (on equal footing) with the claims of Sutherland's creditors, such George Dunbar. Elizabeth Ker maintained that her husband's adjudication was timely, within a year and a day of another creditor's adjudication, so she should be ranked in her due order of preference. The creditors of Sutherland maintained that they had priority over Ker.
Alexander Irvine of Drum v. The Earl of Aberdeen, &c 26 Jun 1776 Debt, Estate The estate of Alexander Irvine of Drum was heavily burdened with debts at the time of his death. The estate went through a series of family members. Through this process, some debts were relieved but others were added. The estate was sold in 1736 to cover the debts. A small part of the estate was set aside for the Irvine family, but most of the estate went to the Earl of Aberdeen or Patrick Duff of Premnay. After John Irvine of Drum's death in 1737, the successor to the estate, Alexander Irvine of Crimond, mounted a legal challenge to the settlement of the estate. The pursuer in the present case was Alexander Irvine of Drum, grandson of Alexander Irvine of Drum. The 3rd Earl of Aberdeen, taking up a cause inherited from his father, and Patrick Duff argued that the Irvine family has no valid claims against them.
Watson v. Johnston 1771 Bankruptcy Andrew Scott, John Stark, Richard Stark, William James, and William Craig went bankrupt in 1760. Pursuer, John Watson, became an agent for the creditors of the bankrupt individuals. The bankrupts's estates were adjudged by their creditors and John Watson brought a process of ranking and sale. The creditors were accordingly ranked, with Marion Stark, wife of Andrew Scott, ranked primo loco. Then, defender, Thomas Johnston, a merchant in Glasgow, purchased at a judicial sale some effects of Andrew Scott's estate. This move was designed to help pay some of Scott's creditors, and to make annual payments of a liferent, to Scott's wife. The Defender died without paying the creditors, and his cautioner proved insolvent. Thus, Mr. Watson, Scott's creditors and Mr. Macneil of Callonsay a creditor of Johnston brought a process to sequestrate the subjects originally belonging to Andrew Scoot and purchased by Thomas Johnston. This is a multiple-poinding process where the creditors of the parties related to the bankrupt individuals claimed that Mr. Johnston had left his affairs in very great disorder.
Tyson v. Scott 1770 Trust Defender Walter Scott was a trustee for the late Thomas Cockburn, writer in Edinburgh. Cockburn originally planned to leave much of his estate to his nephew, John Simpson. Learning of Simpson's shortcomings as a businessperson, Cockburn changed his will to set up a trusteeship. Under the trusteeship, his wife Elisabeth Campbell and his nephew John Simpson would receive annual incomes. Cockburn designed the trusteeship to ward off any of Simpson's creditors. Cockburn died on December 2, 1765. On July 31, 1769, an arrestment was used at the instance of pursuer, Edward Tyson, acting as executor for the late John Watson, merchant in London who claimed to be a creditor of Mr. Simpson and Thomas Young, partner in business to Mr. Simpson. Tyson arrested all of Simpson's goods to cover outstanding debts. Tyson sought to collect assets from the Cockburn estate.
Jacobina Macfarlane v. Alexander, Richard and Janet Spence 1770 Contract of marriage, Succession Archibald Marcfarlane married Elizabeth Spence as a result of a contract entered into between both spouses and Elizabeth's father William Spence. Archibald Macfarlane became bound to provide for his wife and future children. Archibald Marcfarlane made a further settlement of his estate, with a disposition in favor of his wife and children, and failing of them, to the petitioner Jacobina Macfarlane, his only sister. When Archibald Macfarlane died, Elizabeth Spence, his widow, took the whole of her husband's writs into her possession. When Elizabeth Spence died, Jacobina Macfarlane, pursuer, claimed that by Spence's death the right of succession devolved upon her. However, Elizabeth's brothers and sister, Alexander, Richard and Janet Spence, seized the writs and confirmed themselves executors. Thus, the pursuer claimed her right to be the heir of her brother and alleged that defenders have no foundation to alter the effects of her brother's disposition.
More and Irvine v. Gibson 1770 Poinding, Deforcement Pursuers More and Irvine were merchants in Gottenburgh (Gothenburg), Sweden. William Duncan owed them money. Robert Monro also agreed to act as a cautioner for Duncan. More and Irvine obtained an order of poinding for Duncan's assets, allowing them to secure Duncan's assets for payment of the debt. Duncan's stepson, defender Walter Gibson, prevented More and Irvine's agents from entering Duncan's house. Gibson claimed that he, not Duncan, owned the house. When More and Irvine's agents later returned to the house with letters of open doors, they found the house emptied of its most valuable furniture. Gibson also claimed that he was the rightful owner of the furniture in the house. More and Irvine accused Gibson of obstructing the poinding.
Gibson and Balfour v. Cheape 12 Dec 1799 Debt Cheape was co-cautioner on a bill for debt due by Baillie, Blinshall, Sadler in Edinburgh, to Gibson and Balfour. Gibson and Balfour attempted to receive payment from Cheape. Cheape countered that the debt was no longer valid, as the bill was more than seven years old.
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.
Earl of Aberdeen v. Officers of State 21 Jun 1799 Teind The Earl of Aberdeen claimed a deduction on a quarter of the rent from several estates in order to reduce his teinds payment. The Officers of State objected to his activities on three grounds, 1) his deduction for use of peat on his land was unjustifiable, 2) by allowing cottagers to live on his land but pay rent to a third party meant that he did not get income directly, and 3) through patronage he claimed deductions on rent from lands outside the areas subject to those tithes.
Earl of Galloway v. McHutchon, Selkrig & Others 27 Jul 1803 Landlord and tenant, Lease, Secluding Assignes and Subtenants, Irritancy and Removing A lease was granted to tenant and his heirs, secluding assignees and subtenants, for 21 years. The tenant died two years thereafter in considerable debt; and the question was, Whether certain transactions gone into with the heir, by which the latter entered into possession cum benefico inventarii, giving the creditors the benefit thereof, was not a covered assignation, and the tenant had thereby incurred an irritancy of the lease? The heir, pending the action, entered into an agreement with the creditors, whereby the latter discharged there claims, and transferred the stock for a certain sum; Went to the House of Lords; Held that there was no ground for removal, and the defenders assoilized (Freed from guilt). Affirmed in the House of Lords.
Johnston v. Home 13 Jun 1800 Public Burden, Entail The deceased defendant Sir John Home sold land to the pursuer, Thomas Johnston. The contract's terms included a notation that the land was free of all public burdens except those explicitly defined in the contract. Johnston sued Sir John Home's heirs, Sir Alexander Stirling and Sir John Stirling, as entails are still on the property. Johnston argued that he should have been been free of them given the contract's terms.
Trail v. Maule 12 Dec 1799 Augmentation, Rent Trail was the minister in the parish of Panbride, which sat on Maule's land. Trail sought an increase in his stipend from Maule, arguing that Maule had raised Trail's rent so severely that his stipend was no longer adequate. Maule countered that any further increase in Trail's stipend would place him in a better position than his fellow ministers on Maule's other lands.
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.
Murray v. McNaught 24 May 1799 Arrestment, Debt James Murray brought an action against John McNaught, the former minister for the parish of Girthon, accusing him of fiscal irresponsibility. Murray, who supplied McNaught's stipend, accused the minister of squandering his income and racking up debts. Murray sought to recover funds from McNaught.
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.
Miller v. Semple 19 Jun 1776 Bonds, Debt Under a marriage contract executed in 1724, the late John Semple promised his wife Ann Lindsay an annuity of 300 merks. Ann Lindsay's father James Lindsay provided that his estate was to go to his heirs, but it passed to John Semple due to various deaths in the family. In 1747, John Semple sold the estate to John Miller, pursuer. At issue is whether there were debts attached to the estate. Defender John Semple, nephew of the aforementioned John Semple, maintained there were no debts attached to the estate because the earlier Semple received the estate through his deceased son, not through his wife Ann Lindsay. Semple argued that the wife only had a life interest (liferent) in the estate. Pursuer John Miller argued that Semple received the estate by deed of his wife.
Cassillis v. Stephenson 1776 Ranking of Creditors The parties in this case were creditors of the late William Donald, a merchant in Ayr. Through an agent, Andrew Stephenson, respondent, brought a process to rank the creditors, and representatives of the creditors met to select a common agent. Petitioner David, Earl of Cassilis, claimed that at the meeting a majority of creditors voted for Alexander Abercrombie to be the common agent. However, respondent Stephenson and others preferred George Tod. Following the meeting, Lord Gardenstone, Ordinary, nominated and authorized George Tod as common agent. Cassilis et al. sought review from the Lords of Session, arguing that Abercrombie was selected as common agent by a majority of creditors and by a majority of the value of the debts represented. The petitioners also argued that, as “preferable” creditors, they had priority over the respondents, who were “postponed” creditors. Stephenson et al. disputed specific votes at the creditor meeting, arguing that certain agents for the petitioners were not authorized to vote for Alexander Abercrombie. Some creditors, they argued, did not meet the threshold amount of debt to gain a vote. For all the other creditors who met the threshold amount of debt, the respondents rejected any distinction between preferable and postponed creditors for the ranking of creditors.
Belchier v. Palmer 5 Mar 1776 Debt, Estate In 1759, William Belchier purchased the estate of Grange in Scotland. Belchier died without children, leaving his estate to his older brother, John Belchier, in liferent and to his nephew, James-William Belchier, in fee. Several creditors of the decedent William Belchier brought actions of constitution and adjudication against his estate. Defenders Charlton Palmer and William Walker, creditors of William Belchier, sought a sale of William Belchier's estate and a ranking of the creditors. (The defenders mistakenly brought the action only against the liferenter, John Belchier, but later amended the action to include the apparent heir, James-William Belchier.) To expedite the process and reserve some of the estate for themselves, the pursuers also brought an action for the sale and ranking of the estate. This led to a dispute concerning which action—the creditors' or the apparent heirs'—should proceed.
Grant v. Thomson 1776 Debt, Arrestment Pursuer John Grant was a creditor of John Taylor, who became insolvent and unable to repay Grant. Grant obtained two letters of horning against Taylor for his failure to repay. Grant learned that defender George Thomson, an innkeeper in Leith, was a debtor of Taylor. Grant used arrestments to bring an action against Thomson for the sum he owed to Taylor. Thomson had granted two bills payable to Taylor for the sum owed, which were then indorsed by Taylor to defender Alexander Ogilvie as clerk of the Edinburgh rope-work company. (Taylor owed money to this company for the purchase of ropes and sails.) The defenders argued that sums due by bill were not subject to arrestment. Grant conceded that this was true in the case of a bona fide indorsee. Grant maintained, however, that the bills were subject to arrestment where transactions were used to shield a debtor's assets from creditors. The defenders responded that the transactions at issue were bona fide and arms-length transactions.
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.
Macfarlane v. Hoome 1799 Pursuer Christian Macfarlane sought to recover a portion of land at Letter that had belonged to her father, Donald Macfarlane. Mrs. Macfarlane claimed that her uncle, David Hoome Stewart, had fraudulently obtained the land, which eventually devolved to defender Sophia Hoome. In the course of the proceeding, the Lord Ordinary granted a “diligence” (a type of writ) allowing the pursuer to discover writings related to Mr. Stewart’s dealings in the matter. Miss Hoome’s representatives claimed that this discovery would be prejudicial to her interests. Moreover, they argued that the court should not allow the discovery before considering whether the action was barred by certain agreements, including a marriage contract, alleged to discharge Mrs. Macfarlane’s claim to the land.
Laidlaw v. Elliot 2 Dec 1800 To provide the minister of Peebles with a grass glebe, the presbytery appropriated a small field that was held in feu by the pursuer, William Laidlaw. The field was part of a tract commonly understood to have been the vicar’s glebe before church lands fell to the sovereign at the Reformation. While not contesting the appropriation of his land, Mr. Laidlaw claimed that certain statutes entitled him to relief from the heritors of all other church lands within the parish. However, Ann Elliot argued that only heritors of the vicar’s glebe were required to contribute. The court found that Act 1594, c. 202, provided a general right of relief from heritors of church lands in the parish.
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.
William Galdie, Factor on the Sequestrated Estate of James Anderson v. William Gray 16 Jun 1774 James Anderson formed a partnership with John Brown, Robert Carrick, and William Gray for the purpose of manufacturing linens in Glasgow. The partnership was known as Brown, Carrick, and Company. Although the firm was successful, Anderson became insolvent, and his personal estate was sequestered by the court. William Galdie was appointed factor. Partner William Gray, who was a creditor to Anderson, sought to attach Anderson’s interest in Brown, Carrick, and Company; two other creditors named Archibald and John Coates did the same. In response, the firm raised a process of multiplepoinding. In that proceeding, Gray claimed a preference, asserting that as a partner in Brown, Carrick, and Company, he had a common law right of retention with respect to Anderson’s interest. Additionally, Gray claimed a preference based on a clause in the firm’s partnership agreement. As factor, William Galdie opposed these claims, arguing that any right of retention was held by the partnership, not by the partners as individuals. Galdie further argued that the cited clause in the partnership agreement did not apply. Gray’s claims were initially rejected by the court; thus, Gray became the petitioner and Galdie the respondent in subsequent phases of litigation.
William Hart v. John and James Naesmith 27 Jul 1775 Adjudication Michael Naesmith borrowed £480 from William Hamilton in 1731 and by 1740 John and James Naesmith, defenders, had become bound for the debt. After Michael's death, John and James received adjudication against a tenement he had owed, in order to recover what he owed them. In 1774, Hart, pursuer, and son of another creditor of Michael, brought an adjudication against the tenement.
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.
Thomas Buchanan v. John Adam 17 Nov 1775 This case was about a “wadset,” an arrangement in which a debtor conveyed property to a creditor as security for a debt. The facts of the case were somewhat unusual in that the same debt was secured partly by a wadset and partly by an annual-rent. Interest rates had dropped considerably since the wadset was established in 1615; Pursuer Thomas Buchanan argued that in light of this changed circumstance, the annual-rent represented a full security, and the wadset should be considered “improper.” (The parties' immediate predecessors are listed on this case page; more detailed chains of title are described in the case documents.)
Glass v. Kelly, &c 26 Nov 1776 Vestita Viro James Rae left his wife and daughter, Agnes Kelly and Agnes Rae, a £40 owed by John Murray, junior. Kelly's second husband, William Duncan, being drowned in debt, renounced his right over his wife's effects. One of Duncan's debts was jointly shared with Bailie Andrew Glass, and held by David Loch. Loch obtained a decree from the High Court of Admiralty against the two, and Bailie Glass had Duncan imprisoned in the St. Andrews Tolbooth until he could pay his share of the debt. In order to free her husband from jail, Kelly and Rae endorsed the above-mentioned bill to Glass. Duncan then signed his furniture over to Rae as security. After paying Loch Duncan's share of the debt, Glass attempted to collect payment of Murray's bill, but was unable. He then raised an action before the Sheriff of Fife against Murray, Kelly, and Rae, charging the latter two with liability for the value of the bill. He argued that value was given to Kelly and Rae for the endorsement: the release of Duncan from prison, and the above-mentioned furniture. The Sheriff found Kelly and Rae liable, but Lord Covington and the Court determined that as a vestita viro (married woman), Kelly's endorsement of the bill was null and void.
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.
Wood and Mason v. Skene 20 Dec 1776 Extortion, Fraud In November 1776, James Robertson hired Alexander Morison to arrest James Wood, who owed him about £20. Morison later hired John Skene to retrieve the money, and Skene had Wood incarcerated in the Leith tolbooth. The next day Wood was released after conveying seven shillings to his jailor "for what was called jail-fees"; and to Skene £4 in cash and a conjunct bill with his brother-in-law, Andrew Mason, for £16. Wood also informed Skene that he had earlier paid Robertson about £1 for the expenses of diligence, and Skene answered that he would grant a receipt for this amount once a voucher was produced. Wood and Mason later brought a complaint against Skene before the Court of Session on the basis that he had requisitioned from them more than what was owed, and that he had failed to return the principal bill. Claiming that part of the money paid to Skene had been to cover his own fees, they accused him of transgressing an essential duty of his office as messenger-at-arms. To support this accusation they cited the Court's 1738 decision in Monro v. Ross, which had later been ingrossed in the books of Sederunt and of the Lyon-court, forbidding messengers from extracting their fees from the object of their diligence. Skene responded that none of the money he had extracted from the pursuers had been to cover his own fees, and that he had not returned the principal bill at the time because it was not in his possession. Handwritten marginalia on the Petition and Complaint observes "It does not appear how this case was disposed of, but the Answer to the Petition seems satisfactory." The Court's decision regarding the ten shillings paid to cover the fees of Alexander Morison are not brought up in these case documents.
Lieutenant-Colonel James St Clair v. Miss Jean Alexander of Rosebank 21 Nov 1776 Kirk This case was about whether the defender could claim an exclusive property right to a seat in a church. In 1728, the proprietor of an estate called Roslin transferred part of the estate to one Yaxly Davidson; the transferred land came to be known as Rosebank. The proprietor also gave Davidson access to certain seats in the local church, which had been reserved for the estate of Roslin. (The exact nature of this access, and the number of seats affected, were matters of dispute.) In time, Jean Alexander became the proprietor of Rosebank and began using the associated seats. She sought to exclude Roslin tenants from the seats, and Colonel James St. Clair, the contemporaneous proprietor of Roslin, sued. St. Clair claimed that he held the sole right to the disputed seats. In response, Alexander argued that the proprietors of Rosebank had acquired the seats by prescription—in other words, that by possessing the seats for a long period of time, they had obtained a property right. St. Clair argued that a church seat could not be obtained by prescription, and that in any case, Alexander had not enjoyed the sort of exclusive possession that was necessary for prescription to apply.
Glover and Others v. Vasie 7 Aug 1776 Commission of Bankruptcy In England, Assignees In 1770, John Bedford and Son, Leeds merchants, went bankrupt. One of their English creditors, Martin Fenwick, laid arrestments (judicial security) upon Colin Maclaren, a Scottish debtor of Bedford and Son. Fenwick recovered what he was owed, and then a second English creditor of Bedford and Son, Robert Vasie, laid an arrestment upon the remainder of MacLaren's debt. Vasie had previously received a dividend under an English commission of bankruptcy. During the process, Lord Hailes gave preference to Vasie. Benjamin Glover and other assignees of Bedford and Son objected to this preference on account of the dividend Vasie possessed. They also argued that as an Englishman Vasie could not compete with their claim upon Bedford and Son’s Scottish effects. Vasie, in turn, argued that the pursuers, having been made assignees by an English commission of bankruptcy, had no right of action in Scotland. The Court ruled that Messrs. Glover, etc. had a right of action to recover Bedford and Son's Scottish effects, and barred Vasie from competing.
Blands v. Ewing and Company, and Dinwiddie 25 Jul 1777 Debtor and Creditor, England, Promissory Note This case was about the liability of individuals who endorsed a dishonored promissory note. Walter Ewing and Company purchased the note from Robert Dinwiddie, a bank cashier, and remitted it to Bland and Company in England. After the note’s maker, William Mowat, failed to pay, Bland and Company sued Robert Dinwiddie and Ewing and Company, both of whom had earlier endorsed the note. The defenders claimed that they could not be held liable because Bland and Company did not properly notify them that the note had been dishonoured. The cause came before Lord Monboddo, who assoilzied (absolved) the defenders. Bland and Company then submitted a petition to the Court asking them to overturn this decision. The Court adhered to Monboddo's interlocutor.
Archibald Douglas of Douglas v. Douglas, Duke of Hamilton 27 Mar 1779 Deed This case constitutes an appeal to the House of Lords and Court of Session regarding an infamous earlier case, dubbed "The Douglas Cause." That case, which was settled by the House of Lords in 1769, revolved around the contested inheritance of the vast wealth of the Duke of Douglas, who died in 1761. The heir-male to the Duke of Douglas, the Duke of Hamilton, contested the property claims of Archibald Douglas, the son of the Duke of Douglas' sister, from many angles. In this last-ditch appeal, brought before the Court of Session and House of Lords, the Duke of Hamilton asserted that a 1744 deed of revocation put forth by the late Duke of Douglas was in fact a settlement of succession that disinherited his sister, Lady Jane Douglas, from all properties that had been passed to the family through investiture. On December 19, 1778 the Court of Session found that the Duke of Hamilton had no claim under the deed of October 16th, 1744, declaring it a deed of revocation and not of settlement. On March 27, 1779 the House of Lords dismissed an appeal of the Duke of Hamilton. The memorials submitted to the Court of Session in October of 1778 contain a history of the Angus and Douglas families and their investitures, and an overview of similar cases to "The Douglas Cause."