Scotland - 1800- 1849

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 28 cases, and was prepared on 06 June 2013. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.

Wylie -v- Duncan; 1803

Joseph -v- Knox (1813) 3 Camp 320
1813	Contract, Scotland	Casemap

Forgie -v- Henderson (1818) 1 Murray 413
1818 Lord Chief Commissioner Adam	Scotland, Damages
	The pursuer was assaulted by the defender. During part of his resulting illness he received an allowance from a friendly society. Held: In charging the jury, the Lord Chief said 'I do not think that you can deduct the allowance from the Society, as that is of the nature of an insurance, and is a return of money paid'

Robert Angus, James Todd, William Currie, James Barclay, Sen, James Barclay, Jun, John Allan, John Fleming, Henry Arnott, Robert Walker, And William Stewart -v- Duncan Montgomery, David Wishart, John Montgomery, And John Gulland [1821] EngR 229; (1821) 3 Bligh PC 98; (1821) 4 ER 541
2 Mar 1821 PC	Scotland, Local Government
	[ Commonlii ]

Niven -v- Pitcairn (1823) 2 S 270
1823	Scotland, Land
	Large leaden vessels which were not fastened to the building in any way but simply rested by their own weight were held to be heritable since they had had to be taken to pieces in order to be removed and had then been sold as old lead.

Cormack -v- Anderson (1829) 7 S 868
1829	Scotland, Land	Casemap

Stewart -v- Fraser (1830) 5 Murray 166
1830 Lord Chief Commissioner Adam	Scotland, Criminal Practice	1 Citers
	The court asked under what circumstances it would be permitted to enquire as to a jury's deliberations. The court approved the description in Hume's Commentaries.

Taylor -v- Forbes; 1830

Paisley Union Bank -v- Hamilton (1831) 9 S 488
1831	Scotland

Thompson -v- Williamson [1831] EngR 283; (1831) 7 Bligh NS PC 432; (1831) 5 ER 833
1831 PC	Scotland, Company
	In the absence of an express partnership agreement, there is no presumption that partners will share profits equally.
	[ Commonlii ]

Mansfield -v- Walker's Trustees; Inglis -v- Mansfield (1833) 11 S 813; (1835) 1 S & Macl 203
1833 Lord Corehouse	Scotland, Land
	The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was whether the trustee was bound by the unfulfilled, and latent, obligation to grant a bond over the remainder. Held: When a creditor attaches the estate of the debtor by an adjudication tantum et tale as it stands vested in him, and takes the heritable estate in which the debtor was infeft, subject to no limitation or burden which does not appear on the face of the records, and his moveable estate under such conditions only as qualify his real right, but free from all his personal liabilities. "It is a rule established with us, beyond all memory, that there are no equities in competitions among creditors. This principle was adopted, and carried to its fullest extent, in the case of the Duke of Norfolk in 1752…. It has been held, that vigilantibus non dormientibus jura subveniunt; and although no one ought to become locupletior aliena jactura, yet in damno vitando, every one is entitled to avail himself of the blunders of those whose interests are opposed to his. However clear and honest the intentions of parties may have been, yet, if the writings used are liable to objection in point of form or solemnity, and still more, if, as in this case, they are defective in the substantial parts, they are in a competition held as inoperative and null…. So, after a competition has begun, a party conscious of a defect in his own right may, by any lawful means, but always without the aid of the bankrupt, direct or indirect, correct the defect pendente lite, so as to be preferred to his adversary, although formerly in a better situation than himself. On looking into the books of authority and the decisions of the court, to be found under the titles of Competition, Execution and Writ, it will be seen that the most minute and critical objections, in point of external formality, or arising from the want of proper and technical words in the instrument, have been sustained. In such circumstances, and notwithstanding the most satisfactory evidence of intention to give a right, the existence of another deed, followed with infeftment, before the former one has been completed, must create an undoubted preference."

Charles Ferrier, Esq, Accountant In Edinburgh, Trustee Upon The Sequestrated Estate Of John White, Late Merchant In Edinburgh -v- Francis Howden, Esq, And Others, Trustees Of The Scottish Union Insurance Company [1834] EngR 601; (1834) 4 Cl & Fin 25; (1834) 7 ER 10
21 Mar 1834	Scotland, Insurance
	Link[s] omitted

Baird -v- Ross (1836) 14 S 528
1836	Land, Scotland	1 Citers
	A dominant proprietor of land was not entitled to load or unload or turn carts unless he could do so on the cart way.

Don -v- Lippmann (1837) 5 Cl & F 1
1837 HL Lord Brougham	Scotland, Jurisdiction	1 Cites
	An action was brought in Scotland in 1829 on two French bills of exchange accepted in 1810. Held: The defendant was able to rely on the Scottish 6 year period of prescription because: "Whatever relates to the remedy to be enforced, must be determined by the lex fori, the law of the country to the tribunals of which appeal is made."

Dunlop -v- Lambert; HL 1839

Edwards -v- Cruickshank (1840) 3 D 282
1840 Lord President Hope	Constitutional, Scotland	Casemap 1 Citers
	Lord President Hope described the jurisdiction of supreme courts: "With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every person to perform their duty - persons whether single or corporate; and, in our noble constitution, I maintain - though at first sight it may appear to be a startling proposition - the law can compel the Sovereign himself to do his duty, ay, or restrain him from exceeding his duty. Your Lordships know that the Sovereign never acts by himself, but only through the medium of his ministers or executive servants; and if any duty is refused to be done by any minister in the department over which he presides, or if he exceed his duty to the injury of the subjects, the law gives redress. In England the Court would proceed, according to the nature of the case, by injunction or mandamus, or a writ of quo warranto. In this country a person would proceed by action or by petition; and, if he was right, a decree would be passed and would be enforced by ordinary process of law."

Campbell -v- Tyson (1840) 2 D 1215
1840 IHCS Lord Mackenzie, Lord Fullerton	Transport, Scotland	Casemap 1 Citers
	It was asked whether earlier cases established that the mere contracting for the safe carriage, if made by the consignor, entitled him to sue the carrier for damages, if the carrier failed to perform the duty undertaken by him under that contract. Lord Mackenzie: "I do not trust to these decisions as going as far as that. The Lord Chancellor does not go so far in his opinion; and even, as it seems to me, implies in his opinion the reverse of that general abstract doctrine. And there would be great difficulty in reconciling such a doctrine to the ordinary principles of the law of Scotland." Lord Fullerton said of the decision in Dunlop that: "It went no further than this, that although in the general case the consignee was the proper party to sue, there might be circumstances in the transaction which reserved in the person of the consignor such an interest in the contract of carriage as to protect his title to pursue." and ". . . the consignor, who by contract undertakes the risk of the goods, substantially contracts with the consignee for their safe delivery; and consequently the contract with the actual carrier for their carriage remains a separate contract between the consignor and the carrier, for the breach of which the consignor has the legal interest to maintain action." He also observed in relation to the older English cases: "The only question in the case of Dunlop & Co. v. Lambert, etc, and the other cases referred to, was, whether the consignor could recover. It never was doubted that the consignee could; on the contrary, in all those disputed cases it is assumed on all sides that the consignee was, in the general case, the proper party to sue."

Black -v- Watson (1841) 3 D 522
1841	Scotland, Wills and Probate	Casemap 1 Citers
	Where a testator leaves more than one testamentary writing they are to be read together so far as possible as if they formed one deed.

Lord Melville -v- Paterson (1842) 4 D 1311
1842 Lord Ordinary Ivory	Scotland, Land
	A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in the sequestration of a living debtor: "No doubt, the right thus declared to be vested in the trustee, will be no more than a right tantum et tale with what actually belonged to the bankrupt at the date of sequestration; and where the bankrupt, therefore, has previously granted a prior personal right, in the shape of a conveyance or security, to an individual creditor or other third party, upon which it would be in the power of such a party to run a race against the trustee, it may be necessary for the latter, with a view to exclude the completion of this inchoate adverse right, to obtain his own title first completed according to all the feudal forms, and so entered upon the records."

Moncreiff -v- Hay (1842) 5 D 249
1842	Landlord and Tenant, Scotland
	The landlord acquired the growing crops sown by the tenant when he enforced an irritancy clause in a lease of agricultural property.

Smith -v- Galbraith (1843) 5 D 665
1843	Ecclesiastical, Scotland	Casemap

Graham v Gordon (1843) 5 D 1207
1843	Scotland, Landlord and Tenant
	"Rent is not liquid in the sense that a sum due by bond is. It is matter of contract in consideration of something to be done. It is paid for possession of the subject let. If the tenant says he has not got entire possession, that is a good answer to the claim for rent."

Young -v- Leith (1848) 2 Ross's LC 81; (1844) 6 D 370
1844 IHCS Lord Campbell	Scotland, Land	Casemap 1 Cites
	Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: "... I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be clearly taken as the law of Scotland, that unrecorded sasines are a nullity."

Erskine -v- Wright (1846) 8 D 863
1846 Lord Mackenzie	Scotland, Trusts	Casemap
	The provisions of the Act would be capable of being defeated if it had remained possible to tie up lands in perpetuity by the creation of a series of liferents. This would soon supersede all other methods of doing so if it were competent.
	Entail Amendment (Scotland) Act 1848

Young -v- Leith (1847) 9 D 932
1847 HL Lord Fullerton	Scotland, Land	Casemap
	The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. "The proper object and effect of every valid seisin is to divest the granter of the heritable right, and to invest the grantee…It is of the very essence of a real right, not only to found a preference against a less perfect right, but to prevent any third party from acquiring a perfect right to the lands, which most certainly an unregistered seisin does not." and "In the same way, and on the same principle, the holder of a heritable bond, followed only by unregistered seisin, would fail in claiming a preference over personal creditors, because such creditors have the means of obtaining by adjudication a perfect right to the lands of the debtor."

Dunlop -v- Higgins (1848) 6 Bell's App 195
1848 HL	Scotland, Contract	1 Citers

Graham -v- Pollock (1848) 10 D 646
1848 IHCS Lord Mackenzie, Lord Fullerton, Lord Jeffrey	Contract, Scotland	Casemap 1 Citers
	There was no dispute that a dog race had been won by a dog named Violet, and that Violet had been entered in the race by one of the parties. The issue was whether that party had entered Violet for his own benefit, having borrowed Violet for the purpose, and was therefore entitled to the prize; or whether he had entered Violet as the agent of Violet's owner, who was therefore the person truly entitled to the prize. Held: No question of sponsio ludicra. The issue as to which party was entitled to the prize depended on the nature of the contract between them, whether loan or agency, and since that was a question which was separate from the race itself, no question of sponsio ludicra was involved. It was a question not of racing or hunting, but of contract of mandate or loan. The whole sporting question is settled - the prize is awarded to Violet - and the question is, what individual has an interest by law and contract in what Violet has won?

Duke of Athol -v- Torrie (1849) 12 D 328
1849	Torts - Other, Scotland	Casemap 1 Citers