| Macharg and Others v. Macharg and his Curators |
1776
|
Trust, Onus Probandi |
Archibald McHarg was the ordinary doer of James McHarg of Keirs. When he died, in July 1774, two bills from McHarg of Keirs were in his possession. One, for £230 sterling, was unendorsed and had been accepted by James McHarg in Tairly. The other was for £264 sterling. McHarg of Keirs argued that it was self-evident that Archibald McHarg had held both of these bills in trust: the first to recover payment, the second as a fund of credit. Keirs petitioned the Court to compel the heirs of Archibald McHarg to either deliver these bills to him or destroy them. The defenders, James McHarg, eldest son of Archibald, and his curators, argued that as these bills had been found in the possession of Archibald McHarg, the burden of proof of possession lay on McHarg of Keirs. Lord Monboddo found that the bills had been put into McHarg's hands by Keirs. The defenders gave representation, and then petitioned the Court to review Monboddo's interlocutors. According to marginalia on the case documents, the Court adhered. |
| Robertson v. Robertson |
1782
|
Compensation, Trust |
The trustees for the creditors of David Sibbald held an auction to sell a portion of Sibbald’s effects. At the auction, John Carnegie purchased a stack of wheat and transferred it to the petitioner, Thomas Robertson. Carnegie and Robertson did not grant a bill to the trustees for the price of the wheat, and the trustees eventually raised an action before the sheriff for payment, damages, and expenses. Robertson raised a counter-proceeding, alleging that the trustees owed him payment for certain business matters. The parties engaged in extensive litigation, leading to an order by the Lord Ordinary stating that Robertson had engaged in “manifestly improper conduct” and finding him liable for expenses. Robertson challenged this order on two grounds. First, he argued that his legal actions were justified. Second, he argued that the trustees were not competent to pursue the action because they had already been denuded of their trust. The trustees disputed these claims. |
| Trustees of Batties-mains v. Armadale |
1801
|
Trust, Roup, Estate, Roads |
Mr. Carmichael left the lands known as Batties-mains in his trust for the education of poor scholars at a public school located there. The trust required that the land not be sold, so some of the trustees agreed to rent out parts of the land for a fixed time period to other parties. They subsequently agreed to allow Lord Armadale to build a road through the lands of Batties-mains to his own estate of Smyllum, on the condition that after the renting period was up, he would destroy the road and return the ground to its prior condition. The final trustee to review the agreement, Minister Fergusson, disapproved of a clause which stated that the road would be Lord Armadale's property, and disputed it based on his belief that it undermined the true intent of the original trust. |
| 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. |
