| 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. |
| Earl of Selkirk v. Robert Nasmith |
17 Jan 1778
|
Estate Settlement, Bargain |
In 1756, upon the judicial sale of the late James Naesmith's property, the Earl of Selkirk agreed not to bid against Naesmith's son, Robert, for the estate of Glenley. This was in exchange for future right of first offer. In 1762, Robert Naesmith expressed his intention to sell Glenley. For the next ten years Selkirk periodically lent Naesmith money that was understood to be deducted from the final price of Glenley. In 1772, shortly after Naesmith and Selkirk agreed upon two arbiters to decide on a price for Glenley, Naesmith died with his affairs in disorder. Robert Naesmith's son, Robert, brought his father's lands to a judicial sale, but a few days before it was to take place, Selkirk petitioned the Court to have Glenley struck from it. He argued that he and Robert Naesmith's had completed a bargain. Robert Naesmith, James Naesmith (brother to the late Naesmith), and other creditors of the late Robert Naesmith, then petitioned the Court to refuse this request. After the Court ruled in favor of Selkirk, James Naesmith petitioned the Court to strike an Edinburgh dwelling-house, of which he claimed to be the rightful owner, from the sale. The Court ruled in his favor. Other creditors of Naesmith and Selkirk then asked the Court to adjudicate on various issues related to the final price of Glenley. |
| 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. |
