In 1708, an Act of Parliament was passed enabling Dorothy Luckyn and James Lockhart to sell some lands the former had inherited. Upon their deaths the money from the sale was held in trust on behalf of their young heir, John Lockhart. Rather than petition the Court of Chancery to remove the tailzie from the trust, Lockhart's trustee, Robina Lockhart, removed the money to Scotland and conveyed it to her pupil upon his coming of age. When John Lockhart died a number of decades later his unentailed estate passed to his wife, Mary. John Lockhart's niece and her husband then brought action against Mary Lockhart and other trust-disponees, claiming the above-mentioned money as heirs of entail. They argued that the money in question still remained entailed under English law. The defenders, on the other hand, argued that the trust-money, having been removed to Scotland and conveyed to Lockhart, was therefore a sum of money belonging to him. Furthermore, they argued that even if there had originally been a case against the trustee's actions, it was no longer viable due to the negative prescription. To support this second argument, the defenders cited the Court's decision on Boyd Porterfield of Porterfield v. Joanna, Margaret, and Lilias Porterfields. The Court of Session determined that the negative prescription had cut out the claim of the substitute heirs, and the House of Lords upheld this decision.

Published Reports

William Morison, The Decisions of the Court of Session (1811), pg. 10702
John Boyd Kinnear, Digest of House of Lords Cases Decided on Appeal from Scotland, 1709-1864 (1865), pg. 158, , pg. 260
Paton's Scotch Appeals, House of Lords, Vols. 1-6 (1726-1821), pg. 495

Locations

Repository & Extent