Legal Subject: Property

Case Date Legal Subject Abstract
Allan v. Stewart 1771 Roads, Property, Servitude, Proof, Interlocutor, Heritor 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.
Archbishop of York, and Others v. Haldane 1769 Highways, Aliment, Arrestment, Succession, Property, Sequestration After purchasing the estate of Airthrey, Captain Robert Haldane sought to close a road that crossed the property. Residents and property owners in the parishes of Callender, Kincardine, Kilmadock, Dunblane, Leckropt, and Logie objected that the road was a necessary public highway that provided the most expedient route to coalfields in the vicinity of Alloa. The case materials refer to many locations in the affected countryside, describe the history of the road, and name numerous deponents who discussed their use of the road and other matters relevant to the case.
Bell v. Magistrates of Glasgow 1776 Property, Sasine, Interlocutor, Adjudication, Aliment, Arrestment 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.
Bruce v. Davidson 1791 Valuation, Feu duties, Sasine, Process, Security, Property Colonel Andrew Bruce, pursuer, led proof by James Ferrier, writer to the signet, against defender Harry Davidson to the effect that the proof should proceed as agreed by both parties and commissioners. Based on the single document cataloged for this case.
Burrell v. Lord Glenlee's Interlocutor 1798 Proof, Interlocutor, Servitude, Property, Aliment, Lease William George Burrell petitioned the Court of Session to alter an interlocutor issued by Lord Glenlee. Based on the single document cataloged for this case.
Carron Company v. Forth and Clyde Navigation 1772 Contracts and Obligations, Canals, Debt, Aliment, Succession, Property The Carron Company, along with various other parties, united to form a company called the Company of Proprietors of the Forth and Clyde Navigation. The company proposed to construct a canal to connect the Firth of Forth and the Firth of Clyde. The first plan was to use the River Carron to connect the two firths. The Carron Company supported this initial plan, but objected to a revised strategy that would put the east end of the canal directly of the Firth of Forth, rather than on the River Carron as originally proposed. The Carron Company argued that this new route would bypass its iron works mille and petitioned its partners for an agreement to dig a side canal to the River Carron. The Carron Company claimed that this agreement was made, and they sought a Court order to enforce this agreement.
Creditors of Fergusson v. Swinton 1795 Creditor, Debt, Succession, Aliment, Feu duties, Property Hugh Ferguson, David Steuart, and other creditors of Walter Ferguson pursued an action against Mrs Catharine Swinton, his spouse, to set aside her marital settlements as fraudulent preferences prejudicial to their claims against the insolvent estate. They challenged the postnuptial contract granting her an annuity and provisions as voidable for preference. Mrs Swinton, represented by Alexander Keith as her curator ad litem, defended the deed as fair, onerous, and legally valid, resisting reduction.
Cunningham v. Veitch 1791 Adjudication, Property, Prescription, Possession, Sasine, Teinds The Merchants in Edinburgh, defenders, answered a petition by James Cunningham, pursuer, asserting that Covenant Close was their private property and not a common passage, citing historical deeds and a former gate. Based on the single document cataloged for this case.
Dover v. Forsyth 1784 Property, Sale, Debt, Bankruptcy, Sequestration, Possession Agnes Dover, pursuer, alleged that she had made a verbal agreement with Thomas Forsyth regarding a parcel in the village of Glenluce. Under this agreement, Dover would transfer her right to the parcel in exchange for a sale price and payment of a feu duty associated with the property. According to Dover, Forsyth paid part of the sale price and began building a house on the parcel, but he became bankrupt before the house was completed; Forsyth failed to pay the balance of the price or the feu duty. Dover sued Forsyth to recover either the money Forsyth allegedly owed her or, in the alternative, possession of the parcel. In response, the factor on Forsyth’s sequestrated estate argued that Dover should be required to pay for the improvements Forsyth made to the property.
Elisabeth Pierson v. Ninian Alexander 1782 Interdict, Adjudication, Servitude, Arrestment, Property, Burgh This case was about a wall situated at the border of two adjoining properties in Dundee. One of the adjoining property owners, Ninian Alexander, began taking down a house on his lot, including the wall. In response, the other adjoining property owners, Elizabeth and Katharine Pierson, petitioned the dean of guild to enjoin Alexander's project. The dean of guild court ruled in Alexander’s favor, and the Piersons appealed to the Court of Session. While the case was pending in the Court of Session, the Lord Ordinary ordered Alexander not to proceed any further in taking down the house. However, the Piersons subsequently complained that contrary to the judge’s order, Alexander had continued to take down the house and wall.
Forbes v. Home 1772 Construction, Property, Feu, Feu duties, Succession, Condition Sir William Forbes, along with many others, were proprietors of feus (a type of land tenure) in the extended royalty of the city of Edinburgh. The properties at issue were located on Princes Street, George Street, Queen Street, and near St. Andrew's Square. Forbes and his fellow pursuers claimed that the town council had imposed some sort of restrictive covenant, prohibiting construction south of Princes Street, which would have given them an unobstructed view from their properties. John Homes and his fellow defenders secured permission, apparently from the town council, to construct houses, warehouses, and other buildings south of Princes Street. Forbes and the other pursuers sought to stop the construction while the defenders argued that they had permission to build.
George Anderson v. James Stephen, Andrew Jamieson, and others 1766 Election contest, Aliment, Proof, Debt, Bill of Exchange, Property The complainers in this case alleged that the counsellors of Crail were under the influence of Sir John Anstruther and that Sir John's representatives sold meal to the trades at a special price in order to bribe certain men before the borough's election.
Gow v. Russel 1794 Inhibition, Adjudication, Aliment, Possession, Evidence, Property Nathaniel Gow pursued James Russel, an upholsterer, to abate a nuisance allegedly created by Russel's workshop operations in the upper floor, which Gow's family claimed caused excessive noise and ceiling damage contrary to Edinburgh's police rules. Gow argued that the workshop use violated the police regulations and warranted removal, while Russel maintained that the occasional noise inherent to an upholsterer's trade did not constitute a nuisance justifying such relief.
Hately v. Dunlop 1771 Property, Encroachment, Arrestment, Sequestration, Contract, Tack Pursuer Joseph Hately was an engineer who specialized in coal mining. In May 1770 Hately obtained a tack (lease) of coal in the lands of Hutchison near Glasgow. Defender Colin Dunlop was a merchant in Glasgow who also worked in the coal trade. Hately accused Dunlop and his business partner Alexander Houston of trying to monopolize the Glaswegian coal trade. Hately was able to sell his coal at a lower price than Dunlop and Houston, who owned adjoining coal property in the lands of Carmyle. Dunlop accused Hately of encroaching upon his lands, petitioned the local sheriff of Lanark to allow three of his servants to inspect Hately's mines. Hately maintained that he did not encroached on Dunlop's property and only wanted to protect his interest in the coal-trade. Hately then sought the appointment of a land-surveyor, who was not a coallier or connected with the coal trade, to evaluate the land.
Hinton v. Donaldson 1773 Copyright, Literary Property, Property, Patent, Privilege, Assignment This case was about the right to publish a literary work. Stephen Austin obtained a patent from the Crown to publish the second edition of “A New History of the Holy Bible,” by Rev. Thomas Stackhouse. Austin died, leaving his estate to his wife, Elizabeth. She then died after marrying John Hinton, the pursuer. In 1765, defender James Meurose completed another edition of Stackhouse’s book, and in 1767, defenders Alexander Donaldson and John Wood agreed to reprint copies of certain volumes. Hinton sued all three men on the ground that the new edition violated his common law property right in the work. By this time, the patent had expired, and there was no statutory claim. The defenders argued that the common law of Scotland did not provide a perpetual right to so-called literary property.
James Coutts v. Sir Francis Blake 1775 Lease, Arrestment, Property, Proof, Jurisdiction, Possession 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.
James Edmonstone v. William Jackson 1779 Abandonment, Ships, Insurance, Bankruptcy, Sequestration, Property In April 1776, John Walker & Company freighted the Duntreath with a load of coal, deliverable to Alexander-John Alexander of Grenada. Upon the Duntreath's arrival in Grenada, Bartlet, Campbell, & Company freighted it for a journey to Florida. In August 1776, after stopping on the St. Johns River, the Duntreath's captain James Edmonstone was captured by rebels and carried to Savannah. Now under the command of James Crichton, on its journey back to Grenada, the Duntreath was captured by the privateer ship Tyrannicide, but then recaptured and brought to New York for repairs. In January 1778, the Duntreath set out for Grenada again, but was captured by another rebel ship, the Three Sisters, before being recaptured and brought to Grenada. When no appearance was made to reclaim the Duntreath, Grenada's Vice-Admiralty Court had it auctioned. The owners of the Duntreath then made a claim to its insurance underwriters for a total loss, however the underwriters argued that because the auction money was deposited with Grenada's Vice-Admiralty Court, it was merely a partial loss. After the High Court of Admiralty found their case ineffectual, the ship's owners appealed to the Court of Session. Lord Gardenstone reported their bill, but the Court ruled it outside of their jurisdiction. Their bill was later remitted to Lord Braxfield, however, who reported it again; the Court then determined that the pursuers could only claim a partial loss.
Jameson v. The Paisley Banking company 1797 Debt, Bankruptcy, Property, Sequestration, Creditor, Agent Robert Jameson, trustee of the sequestrated estate of Alexander Birnie, sought to alter an interlocutor that had declared cash and bank notes found in Birnie's private desk to be the property of the Paisley Banking Company, contending that these funds formed part of the bankrupt estate. The Bank and its cashier answered the petition, defending their title to the money discovered in the possession of their former agent.
Janet Duncan v. John Sloss 1784 Debt, Aliment, Succession, Reduction, Creditor, Property This case was about a jointure (estate) settled on Janet Duncan, the second wife of John Sloss Sr., in a contract of marriage. Sloss’s heir, John Sloss Jr., argued that the jointure should be reduced because it was exorbitant and irrational.
John Kelly v. John Smith 1780 Statute, Property, Sequestration, Tack, Regalia, Heritor John Kelly, huntsman to Major Blair of Blair, brought a complaint against John Smith for hunting without the proper qualification. Smith argued that he satisfied the only statutory qualification that was currently in effect. The dispute raised a question of first impression as to the correct interpretation of certain statutes.
Joseph Knight, a Negro v. John Wedderburn, Esq 1775 Slavery and enslaved people, Freedom suits, West Indies and Atlantic trade, Aliment, Property, Succession Joseph Knight, an enslaved African man, sued John Wedderburn to obtain his freedom from perpetual servitude after Wedderburn denied him housing for his wife and refused to allow him to leave service. Knight challenged Wedderburn’s assertion of ownership based on purchase in Jamaica and entitlement to lifetime service under English and colonial law, arguing instead for liberty under natural law, Scottish legal principles, the Somerset precedent, and his prior entry into French territory where slavery was not recognized. Wedderburn defended his property rights under British colonial law, while Knight sought freedom, wages, and damages for his enforced labor.
Lachlan Maclean v. Elizabeth Maclean 1772 Debt, Aliment, Succession, Property, Poinding, Sasine Lachlan MacLean, pursuer, petitioned the Court to alter its recent interlocutor in his action against Elizabeth Maclean, defender. Based on the single document cataloged for this case.
Lord Provost and Magistrates of Edinburgh v. Brown 1831 Servitude, Property, Construction, Interdiction, Expenses, Disposition The Lord Provost and Magistrates of Edinburgh, as pursuers, raised a summons of demolition and removal against James Brown, the defender, seeking to compel him to demolish structures erected within twenty-five feet of Saint Andrew's Church. Brown answered, arguing that the shed erected on his property did not constitute a "building" as defined in the servitude. He subsequently presented a reclaiming note asking the Court to alter Lord Medwyn's interlocutor regarding the shed's attachment to the Session-House wall.
M'Whinnie v. Goldie 1801 Estate, Freeholder, Property William M'Whinnie had claimed to be enrolled in the roll of freeholders of Kirkcudbright, and had presented documents to support his ownership of the estate of Dunjarg in the stewartry of Kirkcudbright. At the meeting of the Kirkcudbright freeholders, Major-General thomas Goldie objected to M'Whinnie's enrollment, arguing that there was no evidence that the lands of Dunjarg were a five-merk land of old extent, and also that the title Mr. M'Whinnie claimed was nominal and fictitious due to the fact that the name of the estate was spelled differently in the older documents. Due to an indisposition, Mr. M'Whinnie was not at the meeting, and could not answer the accusations. Major-General Goldie believed that Mr. M'Whinnie was not in ill health, but had missed the meeting intentionally to avoid interrogation. The freeholders decided against enrolling him due to his absence, and Mr. M'Whinnie then took the case to the Lords of Council and Session, including written answers to the freeholders' questions. In his reply to the petition, Major-General Goldie requested that the Court ordain Mr. M'Whinnie to undergo oral examination and answer the interrogatory accusations in person as to the integrity of his claim upon the Dunjarg estate, because he believed that Mr. M'Whinnie had commissioned others to draft his responses for him.
Mabon v. Lord Craig's Interlocutor 1808 Debt, Adjudication, Aliment, Succession, Property, Interlocutor Duncan Macdougal, jun. petitioned to remit Lord Meadowbank's interlocutor denying his Bill of Suspension. Based on the single document cataloged for this case.
Macdonald and Duff v. Doig 1792 Debt, Cessio Bonorum, Property, Trust, Bankruptcy, Arrestment David Doig petitioned the Court to alter its recent interlocutor concerning repayment of a debt. Janet Macdonald and John Duff defended against the petition, asserting that their antenuptial contract validly excluded Duff’s creditors from her property.
Mackenzie and Dunbar v. Mackenzie 1793 Succession, Property, Prescription, Thirlage, Debt, Tack Sir Hector Mackenzie defended against a thirlage petition by Mackenzie and Dunbar regarding the Logierioch lands, arguing that his obligations were limited by custom rather than feudal tenure and that tenants had long paid no multure for grain. Based on the single document cataloged for this case.
Mrs. Anne Cuninghame v. David Neil 1774 Encroachment, Aliment, Property, Feu, Possession, Tack Defender David Neil purchased a house, in feu, from Colonel William Cuninghame of Enterkine. In 1765, Neil extended the house by six feet in the direction of a high road. At the time, he obtained permission from the overseers of highways in Tarbolton parish, on the condition that he widen the road by six feet. In 1772, however, two tutors for Colonel Cuninghame’s heir, also named William Cuninghame, sued Neil over the addition. They claimed that the structure encroached on Cuningham’s property and sought to have it demolished. Neil responded that the area in question was public property.
Officers of State v. Thomas 1802 Teind, Rent, Improvement, Property The Officers of State represent a renter who lived on the property of the Earl of Selkirk. The renter claimed that he had made improvements on the land, and was thus entitled to a deduction in his rental teinds because of the expenses he incurred in making these improvements. The Earl of Selkirk argued that only permanent improvements should be entitled to deductions, and that improvements such as laying manure for crops and adding lime to the soil were temporary and were paid off in the profits yielded by a higher crop. Marginalia on the front page of the first document notes that the court found that the pursuer was not entitled to any deduction in the rental teinds.
Palmer and Others v. Macmillan 1794 Interlocutor, Advocation, Contract, Property, Sequestration, Rent Palmer and Others, as defenders, argued that the Court of Session should affirm a Sheriff's interlocutor prohibiting Macmillan from exposing butcher-meat in front of his house. They presented information maintaining that the prohibition ought to be upheld.
Robert McNair v. James Coulter 1771 Policy coverage, Insurance Claim, Debt, Adjudication, Bill of Exchange, Property Charger Robert McNair and his son James were merchants involved in West Indies sugar trade. James traveled from Scotland to Barbados and Virginia on business. Robert McNair obtained an insurance policy from suspenders James Coulter and John Cross for cargo aboard the ship Jean, which was to carry James McNair and the goods from Barbados to Virginia. The cargo contained corn, pork, livestock, and other goods. The ship was lost near Bermuda on July 2, 1750, but James McNair and the crew survived. Coulter and Cross, suspenders, alleged that McNair overstated the value of the cargo on board. They also alleged that James McNair purposely wrecked the ship to fraudulently obtain the insurance proceeds.
Scott v. Steuart 1795 Interlocutor, Servitude, Property, Debt, Action, Arrestment William Scott petitioned the Court to overturn an interlocutor of the Lord Justice Clerk regarding David Steuart. Steuart answered the procurator-fiscal's argument that his necessary-house constituted a public nuisance. Scott subsequently petitioned the Court to alter its recent interlocutor against Steuart concerning the latter's obligation to clean a ditch adjoining a public road.
Sibbald v. Mr William Wallace 1777 Foreign Merchant, Non-implement, Debt, Bill of Exchange, Cautioner, Property In June 1774, John Sibbald, a self-styled 'merchant in Gottenburg', brought action against William Wallace, advocate, with respect to two letters of guarantee Wallace had granted on behalf of Betty Irvine, an Edinburgh merchant and shopkeeper. In November 1772, Irvine had passed this surety to Sibbald in exchange for a bill of landing for four boxes of tea, which were ultimately seized and condemned by the Crown upon entering the Firth of Forth. On account of this failed adventure and the execution raised against her by the pursuer, Betty Irvine became bankrupt and left the country. Sibbald then pursued Wallace for the £80 pounds. The case came before the Lord Justice Clerk. Barskimming found the defender liable at first but later assoilzied him, and Sibbald petitioned the Court to alter this interlocutor. He argued that the conveyance in question was one that had occurred in Gottenburg, and as a foreign merchant his case was actionable. The defender argued that Sibbald was merely disguised as a foreign merchant, but he was truly a burgess of Kinghorn. Therefore, Wallace stated, "The point in the dispute, is, whether ought action to be sustained, upon a confessed smuggling contract, or rather upon a contract for doing an act prohibited by the public law, at the instance of one of the parties." He also argued his case based upon the principle of non-implement, for the transaction he had referred to in his letter of surety was different from what had occurred. The Court found in favor of the pursuer at first, but upon advising a second petition and answers, assoilzied (absolved) the defender.
Thomas Leishman v. The Magistrates of Ayr 1800 Arrestment, Sequestration, Debt, Aliment, Succession, Property 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.
Thomas Wake and Attorney v. Hillary Bauerman & Son, and Jacob Runke Jacobs 1800 Adjudication, Property, Sequestration, Jurisdiction, Possession, Prize A ship belonging to pursuer Thomas Wake, "The Mary of Sunderland," was captured by a French privateer and taken to the Netherlands. The French Commissary of Marine and Commerce, sitting in Amsterdam, condemned the ship as a lawful prize. The ship was re-named the Stettin of Embden and sold to Defenders Hillary Bauerman and Son, who were subjects of Prussia. Subsequently, the ship sailed to the Firth of Forth, where it was seized and taken to Leith on suspicion of being enemy property. When Thomas Wake learned of the ship’s capture, he sought to reclaim it, arguing that the commissary had lacked jurisdiction to issue the condemnation order. Hillary Bauerman and Son argued that ownership of the ship was legally transferred by possession, and that in any case, the condemnation order was sufficient.
Tod and Stoddart v. The Town of Edinburgh, and the Edinburgh Glass-house Company 1793 Feu, Charter, Property, Prescription, Tack, Interlocutor Tod and Stoddart pursued the Town of Edinburgh and the Edinburgh Glasshouse Company to block the Company’s proposed alteration of the road to the sands of Leith, arguing that the change would deprive them of access and injure public uses. The defenders maintained that the ground was validly feu’d for their use and not prejudicial to others, while the Justices of Peace of the County of Edinburgh supported the pursuers in insisting that public access to the sands could not be narrowed. Following an interlocutor of 4 July 1793, the Lord Provost, Magistrates, and Glasshouse Company petitioned the Court to alter that order, and the Justices of Peace answered in opposition.
Walter Buchanan v. Robert Belsches 1790 Retour, Freeholder, Succession, Valuation, Property, Feu Walter Buchanan of Balfunning petitioned the Court to alter a recent interlocutor in his suit against Robert Belsches of Greenyards regarding the lands of Croy-Leckie. The dispute turned on whether these lands were of fifty-shilling old extent. Belsches answered the petition, contesting Buchanan's argument on that valuation.
Walter Lord Torphichen v. Mr Gillon of Walhouse 1765 Valuation, Possession, Patronage, Heritor, Succession, Property Walter Lord Torphichen, as suspender, asserted his entitlement to the whole loft in the new church on the basis that its dimensions corresponded to his former immemorial possession. John Gillon of Walhouse answered that Torphichen, being a heritor of a 120th share, could claim only a seat proportioned to his rent and not the entire loft. The case presented the question whether church seating rights derived from immemorial possession or from the proportional allocation according to rental valuation.
William Palmer v. Charles Hutton 1783 Debt, Adjudication, Arrestment, Recompence, Property, Insurance William Palmer, as charger, pursued Charles Hutton, as suspender, over the lawfulness of a vessel purchase and whether Palmer’s claim for recompence was barred. Hutton answered in 1783 that the purchase was lawful and the claim not barred, and after the court found the vessel property remained with Palmer and refused Alexander Abercromby’s petition for suspension, Abercromby petitioned in 1785 to have that interlocutor altered.
Wilson and Scott v. Alexander 1779 Damages, Property, Animal Welfare, Trespass, Boni Mores, Aliment In November 1777, Jean Alexander of Rosebank had some nux vomica (strychnine) put into her swine and poultry's meat. A few days later her neighbor James Wilson's dog died "after suffering the greatest agony." After Wilson discovered that his dog was likely poisoned by his neighbor, he confronted her and she responded with contempt, saying that the poison had been to stop her livestock's food being eaten by his dog. Wilson, filed a complaint with the Sheriff of Edinburgh, who found the complaint relevant. Alexander then brought the process by advocation to the Court, and Lord Westhall assoilzied (absolved) her, determining that she was entitled to lay poison in her property in order to protect it. Wilson then petitioned the Court to alter this interlocutor. His advocate, David Armstrong, argued that Alexander's actions had gone against the common good, and that Alexander should have trusted in the law to protect her from Wilson's dog. In response, Alexander said there was no proof that her poison had caused the dog's death, and that even if it had, "what she did she was entitled to do in virtue of her right of property, and in defence of that property." She also disputed the basis of Wilson's claim to damages - that his dog was valuable to him as, among other things, a protection from thieves. Finally, in an illuminating turn of events, Alexander responded to a rumor that she had also poisoned the Duke of Buccleuch's dog. Rather, the defender insisted, Buccleuch's dog had been killed by a mob at Loanhead.

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