At the beginning of 1777 James Sellars, Robert Sellars, and Marion Sellars brought action against Ninian Anderson for having brought a "causeless" action of lawburrows (a warrant for extracting legal security to keep the peace) against them. They charged Anderson with malicious and vexatious intent in bringing this action, while the defender replied that he could prove the grounds upon which he had brought it, although he was not required by law to do so. The case came before Lord Covington, who ruled that because the defender had originally offered proof, he was required to provide it. Anderson petitioned the Court to alter Covington's interlocutor, arguing that Scots law was clear that a person taking out lawburrows was only required to swear that he dreaded harm from the recipients of the action. He further argued that the pursuers could not make a claim to damages, as repercussions would only follow if they were to commit unlawful harm. The pursuers answered that the lawburrows against them had indeed caused harm, for their forced march from Meikle Govan to the Glasgow town-house to provide caution had led to public humiliation. The Court altered Covington's interlocutor, finding that the defender was not required to justify the grounds of his application for lawburrows. Upon receiving a reclaiming petition from the pursuers, the Court adhered. Lord Barskimming remarked, "We will not cut a man out of his just right because he hastily offered to prove before an Ordinary what he was not obliged to prove."

Published Reports

Sir David Dalyrymple of Hailes, Decisions of the Lords of Council and Session, from 1766 to 1791 (1826), pg. 804
William Morison, The Decisions of the Court of Session (1811), pg. 8042

Locations

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