1844 November 12
Decree George Sutherland and John
Murdoch both Plumbers in Dundee Trustees for behoof of the
Company of Sutherland
and Murdoch Plumbers in Dundee
Against
George Bower Leather
Currier in Dundee Mrs
Ann Gall or Brown
his wife and Miss
Catherine Gall residing in Dundee the
Accepting an acting
Trustees of the deceased
William Gall residing in Overgate Street
Dundee and against
James Campbell
Merchant in Dundee
Spouse of the said
Catherine Gall for
his interest
the Guild Court
of the Burgh of Dundee
holden at Dundee the
twelfth day of November Eighteen Hundred
and Forty Four by
William Thoms Esqr.
Dean of Guild Judge
of the said Court.
On which day anent a Petition given in and presented to the Dean of Guild at the
instance of George Sutherland and John Murdoch both Plumbers in Dundee Trustees for
behoof of the Company of Sutherland and Murdoch Plumbers in Dundee humbly showing
That the Petitioner were proprietors of certain subjects lying between the Nethergate and
Overgate Streets of Dundee and in particular without prejudice to said generality they were
proprietors of all and whole that large tenement of land sometime ago built and afterwards
used as a Meeting house of place of Worship together with the yard on the South side
thereof, summer house on the south west corner of said yard & vacant ground on the north
side and east end of said great tenement, draw well in the yard and whole privileges thereto
belonging Conform to Instrument of Sasine in favor of the Petitioner therewith produced
dated the twenty sixth September Eighteen hundred Forty four and recorded in the Register
of Sasines for the Burgh of Dundee the ninth October Eighteen hundred and forty four.
That besides the said great tenement already built the Petitioners intended to erect an
additional house upon the said vacant ground on the north side and west end of said
tenement Conform to a plan thereof produced. That in order to get his Lordships Authority
for the erection of said house the Application become necessary Praying that it might please
his Lordship to Appoint a Copy of the Petition and his Lordships deliverance thereon to be
served upon John Anderson Esquire the senior Bailie of the Burgh of Dundee for himself
and on behalf of the other Members of the Town Council of Dundee for the public interest
and upon George Brown Leather Currier in Dundee, Mrs Ann Gall or Brown his wife and
Miss Catherine Gall residing in Dundee the accepting and acting Trustees of the deceased
William Gall residing in Overgate Street aforesaid being the only conterminous heritor and
them to lodge Answers if they any had within a certain short space and hereafter on
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advising the petition with or without answers to grant warrant to the Petitioners to erect the
said house conform to the said plan and in case of any opposition being made in the
premises to find the party or parties making such opposition liable in the expenses or to do
otherwise in the premises as to his Lordship might seem meet According to Justice; As the
said Petition which is subscribed by James Forgan procurator of Court more fully bears.
His Lordship having considered the said Petition appointed the same and the deliverance
thereon to be intimated to the several Defenders therein named and designed and them to
lodge answers thereto in the Office of the Clerk of Court within forty eight hours after
service with Certification; and again on the twenty third day of said month of November the
Dean of Guild appointed a visitation of the subjects mentioned in the Petition to take place
at two o’clock afternoon that day; and again on the twentieth day of said month of
November the Dean of Guild reserved the appointment of the visitation of the twenty third
day of that month until this date hereto take place at three o’clock afternoon and on that
same day the Dean of Guild having visited and inspected the subjects and heard Parties
Procurators Appointed the Defenders for whom Mr Kerr appeared to see the Petition and
plan produced and to Answer the Petition in the course of tomorrow with Certification; and
on the thirtieth day of said Month of November there were lodged with the Clerk of Court
Answers for George Bower Leather Currier in Dundee, Mrs Ann Gall or Bower his wife and
Miss Catherine Gall residing in Dundee accepting and acting trustee of the deceased
William Gall residing in Overgate street Dundee to the said Petition for Sutherland and
Murdoch Plumbers in Dundee and of George Sutherland and John Murdoch Plumbers in
Dundee trustees for behoof of the said Company of Sutherland and Murdoch in which it
was set forth that the building proposed to be erected form an unwarrantable
encroachment upon the property and the rights of the Respondents and would have the
effect of Shutting up the lights on the west side of a Tenement belonging to the Respondents
to preserve which the Petitioner now proposed to build was left out. The Respondents were
proprietors qua trustees of Mr Gall in the following several subjects all adjoining the
Property of the Petitioners towards the East. The description of the Properties in the Ancient
as well as in the Modern Titles were nearly the same and this would account for the
variance in the titles and the appearance of the properties, Old tenements having been
pulled down and new tenements erected but not exactly in the same position or on the
same sites of the old tenements. First All and Whole that small tenement of land lately
possessed by John Petrie, James Duncan, Paul Sime, Jean Nevay, David Johnston and
David Smart being part of hat tenement formerly called Temple land which formerly
belonged to George Brown of Horn and disponed by him to the deceased Andrew Smart
father to David Smart and by him to the said (blank) Smart lying on the Southside of
Overgate of Dundee and bounded by a Bakehouse belonging to the heirs of the said David
Smart and Common Stair leading up to the loft of said bakehouse on the east a yard
disponed by the said David Smart of date the 28th day of May Seventeen hundred and Sixty
four to David Jobson Writer Dundee on the west a yard belonging to John Brown of
Glasswell on the South the land formerly called the fore Temple land belonging to the heirs
of George Crichton Maltman and part of the said Yard on the north parts. Together with the
use and privilege of a draw Well within the close and free ish and Entry to and from the said
tenement through the said Close and passing and re-passing by the Common stair leading
up to the said tenement and loft of the said Bake house. Second All and Haill that tenement
of land formerly ruinous purchased by Andrew Smart Mason in Dundee for the Magistrates
and Town Council of Dundee and rebuilt by him and thereafter disponed by him to John
Smart his eldest son and by him to the deceased George Crichton Maltman in Dundee and
which afterwards belonged to his Brother John Crichton late tenant at Davidson as nearest
and lawful heir Cognosed and infeft to him and disponed by the said deceased John
Crichton to George Crichton tenant at Halltown of Newtyle and by him to the said William
Gall lying on the southside of the Overgate of Dundee and bounded betwixt the tenement of
land sometime of John McLean now of (blank) on the west the lands sometime of Robert
Nicolson thereafter of Patrick Cock Shoemaker on the east and a little yard disponed by
Andrew Smart to David Smart his son on the south and the said Overgate on the North
parts. Third All and Haill that small house in the back close built by the said John Smart
and sometime possessed by Euphemia Wyllie together with he vacant Ground north from
the same consisting of (blank) feet from said little house to the South Wall of said Patrick
Cocks house and 18 feet broad which belonged to William Gardiner Cooper and was
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disponed by him to the said John Smart and by him to the said George Crichton and which
afterwards belonged to the said deceased John Crichton at Halltown of Newtyle and which
small house and vacant ground is bounded with the yard belonging to the said William
Gardeners heirs on the East, the tenement of land belonging to the said Patrick Cock on the
North a yard belonging to the said John Brown of Glasswell on the south and a house
belonging to the said David Smart and a Close on the west parts. Fourth All and Whole that
bakehouse and oven head and Garret above the same, with the small house erected by
John Smart Mason in Dundee and the vacant ground North from the same consisting of
(blank) feet from the said small house to the South wall of the house lately belonging to
Patrick Cock and 18 feet in breadth lying on the East side of said Bakehouse with the
toofall built upon part of said vacant ground with the pump Well thereon together with the
Close & Coal Cellars and room above the same under the closets of the tenement of land
built by the said John Smart on the Westside of the foresaid bake house all lying on the
Southside of the Overgate of Dundee and bounded on the west partly by that small
tenement of land formerly called Temple land disponed by he said David Smart of James
Edie and partly by the ground disponed by the said David Smart to David Jobson writer in
Dundee and the Common stair leading up to the ovenhead and lofts of the said bakehouse
on the North by the lands of William Dron and others on the East by a tenement of land
built by Ninian Alexander Mason and by a piece of vacant Ground which belonged to
William Wilson and on the South parts by a yard belonging to David Hazel. Fifth all and
Hail the flat immediately above the Shop storey with one third part of Garret on the east
end of said tenement entering by two doors with one fourth part of the Cellar at the north
west Corners together with the small Cellar below the staircase being part of All and Whole
that tenement of land which formerly belonged to Robert Nicholson Merchant Dundee and
thereafter by progress to the heirs of Patrick Cock Shoemaker in Dundee and disponed by
them to John Low Wright in Dundee lying on the Southside of the Overgate of Dundee
bounded betwixt the Entry or passage to the inner tenement sometime of Alexander Annan
Merchant then of the heirs of William Gardiner Cooper on the east and south the lands
formerly of (blank) then of John Smart Mason to his successors on the west and the said
Overgate Street on the north parts with free ish or entry by a passage or close at the east
end of the said tenement and also with free ish and entry by the Common Close and Stair.
The plan produced with the petition was not sufficiently full and explicit and did not shew
the relative position of the Petitioners property as regarded the Respondents property but
the Respondents property was marked out and defined by the boundaries of their main
tenement; and was situate to the East of a line running from the west corner of the Gable
and of the Respondents tenement at the north west to the western most point of their new
tenement on the south. All the vacant ground within that line belonged to the respondents
and had been left out by their predecessors for the purpose of reserving the lights of the
several tenements adjoining. Moreover this vacant ground had been in the uninterrupted
occupation and possession of the Respondents or their authors until more recently the
present petition became proprietors of the subjects immediately to the westward. The
petitioner might say that their title gave them right to a vacant piece of ground immediately
to the Eastward of the building on their subjects which were formerly occupied as a Church
of Meeting house but it will be observed as had been pointed out at the inspection that this
vacant space of ground referred to in the petitioner titles existed immediately of the west of
the line which the Respondents contended was the boundary. The whole report which
belonged to the petitioners was in the form of a square and did not extend into the
Respondents property in an irregular manner as indicated in the plan. Before putting in
Answers to this petition the Respondents Agent endeavoured unsuccessfully to obtain from
the petitioners Agent an examination of the petitioner’s title deeds. The Respondents were
perfectly ready and willing to produce all their titles in process and they moved the Court to
order a similar production on this part of the Petitioners production of the whole titles of
both parties and without a complete plan Shewing the relative position of parties properties
it was impossible rightly to determine the rights of the parties or for the respondents to
state more Specifically their defence. Denying the whole statements of the petition the
respondents pled: First. That in the whole Circumstances he petitioners were not entitled to
the warrant to build prayed for in the Petition. Second. The Petitioners were bound to
produce their titles and as such production he Respondents were entitled to have to add to
their defence under protestation to add and with which answers subscribed by William Kerr
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Procurator of Court more fully bear, to which Answers there were lodged replies for the
Petitioner setting forth that the Petitioner disclaimed all wish or intention on their part to
encroach upon the rights or property of any one. They prayer for a warrant to erect a
building upon Ground in which they were feudally vested unencumbered with any right of
servitude in favor of the respondents or any party whatever. The Disposition and sasine
which the Petitioner had already produced was amply sufficient to entitle them to insist in
the preset action more especially as the Respondents had not produced an opposing title of
any kind. However he Petitioners did not wish to conceal their previous titles from the
Respondents and therefore they produced herewith two Sasines in favour of the Petitioner
authors the one dated 5th and recorded in the particular register of Sasines for the burgh of
Dundee the Eighth days of September One thousand Seven hundred & Seventy two and the
other dated thirteenth and recorded in the same register the twentieth days of January One
thousand Seven hundred & ninety six in both of which the property held by the petitioners
was described as follows viz: All and Whole that large tenement of land lately built and uses
as a Meeting House and place of Worship together with the yard on the South side hereof,
summer house in the South west Corner of said Yard and whole vacant ground on the
North side and west end of said great tenement. the vacant Ground which the Petitioners
wished to occupy in erecting the building delineated in the plan produced was situated at
the east end of said great tenement and as he whole vacant ground So situated was clearly
and distinctly included in their title here could no be a doubt that the proportion or part of
said whole vacant ground upon which the Petitioners proposed belonged to them. The whole
must be greater than its part. The Plan produced delineated the Ground belonging to the
Petitioner and the execution was situated at the east end of said great tenement and as the
whole vacant ground so situated was clearly and distinctly included in their titles there
could not be a doubt that the portion is part of said whole vacant ground upon which he
Petitioners proposed to build belonged to them the whole must be greater that the part. The
Plan produced delineated the Ground belonging to the Petitioners and the erection which
they intended to make thereon. It was not necessary for the Petitioners purpose that they
should have produced a plan of what the respondents Considered to be their property. If
the respondents wished they might have employed an Architect to prepare it. The
Petitioners denied that the vacant ground in question ever had been possessed by the
respondents or their Authors. On the contrary the Petitioners were prepared to prove that
for forty years and upwards it had been in the exclusive possession of the Petitioners and
their Authors while it was unnecessary to r the Petitioners purpose in this Court to prove
more than seven years possession and the intended to limit heir proof accordingly. The
Petitioners thought however that if the Respondents would produce their titles of dates as
far back as those which the Petitioners had then produced that proof of any kind might
thereby be rendered unnecessary.
He Petitioners therefore craved that before further procedure his Lordship would
ordain the Respondents to produce their titles. In the meantime the Petitioners Pled: First
That in the whole circumstances the Petitioner were entitled to the warrant to build prayed
for in the petition. Second That the respondents were bound to produce their titles and that
on such production the Petitioners should be entitled to amend their replies as the said
replies which are subscribed by J. Forgan Procurator of Court more fully bears and on the
26th day of December One thousand Eight hundred & forty four his Lordship having
considered the Petition, Answers and replies. Before farther answer appointed both parties
to produce the whole titles of heir respective Properties and that within four fays from that
date to which Interlocutor a note by his lordship was subjoined to the effect the
respondents in their answers had given a description of the several properties which they
said belonged to them as Trustees of the deceased William Gall residing in Overgate Dundee
but they produced no title to shew that they were proprietors of that property or to enable
the Court to judge of the correctness of this description which was give of it. The Pursuers
had only made a partial production of the whole Titles as necessary before farther advising
the Cause; and on the first day of March One thousand Eight hundred & Forty five his
Lordship having resumed Consideration of the process, in respect the Pursuers failed to
produce their whole titles as ordered by he Interlocutor of the twenty sixth day of December
last dismissed he Processes. Found he Pursuers liable in the expences appointed an
account thereof to be lodged and when lodged remitted the same to the Clerk of Court to be
taxed and report. Found the Pursuers also in the dues of Extract to be ascertained at
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extracting and decerned. Against which Interlocutor the Petitioners lodged a Reclaiming
Petition in which was stated that of this date 91st March 1845) his Lordship had been
pleased to pronounce the following Interlocutor. “Dundee 1st March 1845 the Dean of Guild
having resumed consideration of this process, In respect the pursuers have failed to
produce their whole titles as ordered by the Interlocutor of the twenty sixth day of
December last dismissed the process. Finds the pursuers liable in expences, appoints an
account thereof to be lodged and when lodged to be taxed and report. Finds the Pursuers
also liable in the Dues of Extract to be ascertained at extracting and Decerns. (Signed)
William Thoms D.G.”
The Petitioners humbly Craved leave to reclaim against the foraging Interlocutor and
they produced therewith according to Inventory the whole title deeds on which they
founded. Praying that it might please his Lordship to recall the Interlocutor reclaimed
against and to receive the titles tendered to be produced and to do otherwise and farther in
the premises as to his Lordship should seem proper. According to Justice as the said
Petition subscribed by James Forgan Procurator of Court more fully bears and on the
twenty fourth day of March One thousand Eight hundred & Forty five his Lordship the
Dean of Guild having advised the Reclaiming Petition for he Pursuers recalled the
Interlocutor reclaimed against and reponed the Petitioners there against & reservedly in the
meantime he question of expences. Further allowed the respondents to see the Titles
produced by he Petitioners for three days from that date and thereafter appointed parties to
be heard viva vice on the import of heir respective titles for which purpose assigned Monday
next the thirty first of that Month at ten o’clock forenoon within the Office of he Clerk of
Court & on the thirsty first day of said month of March and year foresaid the Dean of Guild
having heard parties procurators in terms of eh Interlocutor of twenty first March current
on the Motion of he Agent for Galls trustees for a peremptory order on the premises to
produce in process the whole progress of Title deeds of the Property belonging to them
mentioned in the Petition and also the plan referred to in the disposition by the United
Associate Congregation in favor of the pursuers produced and for leave after such order has
been implemented to see the pursuers productions and to amend their defence. Ordained
the pursuers within forty eight hours to produce the whole Titles of the subjects referred to
as formerly ordered by Interlocutor of twenty sixth December last and along with the Titles
to produce the plan referred to in the foregoing crave with certification and in case of such
production being made allowed the Titles and plan to be seen by he defenders for forty eight
hours that they might amend their Statements in the defence if they shall see cause and on
the eleventh day of April One thousand Eight hundred & forty five his Lordship the Dean of
Guild having again resumed consideration of this process Appointed the parties to be heard
before him on the point in dispute on Monday the fourteenth day of April Current at One
o’clock afternoon and for his purpose to attend on the ground of the subjects with
certification and on the fifteenth day of May One thousand eight hundred & Forty five the
Dean of Guild appointed parties to state whether they consented to hold the Petition,
Answers and Replies as Containing their full and final statement of fact and that within
four days from that date each part to have the use of process for forty eight hours for that
purpose and on the Second day of June One thousand eight hundred & Forty five the
pursuers Consented to the record being Closed and thereafter the respondents delivered to
hold heir statements as full and final and again on the Eighteenth day of June One
thousand eight hundred & Forty five the Dean of Guild closed the Record and on the same
date his Lordship having considered the closed Record Allowed both parties a proof of their
respective averments in said closed record relative to the possession of vacant ground in
dispute and to each party a Conjunct proof Granted Commission to he Clerk of Court and
John W. Baxter Alexander Writer in Dundee or either of them for taking he proof and
diligence against Witnesses and Havers the Pursuers proof to be reported within fourteen
days and the respondents proof within fourteen days after the Pursuers was reported and
each party to give the other three days notice of the time and place fixed for proving; and on
the twenty third day of June One thousand eight hundred & Forty five a Petition for the
respondents was lodged with the Clerk of Court Humbly Shewing that in the Summary
Action presently pending before his Lordship at the instance of George Sutherland and
John Murdoch Plumbers in Dundee Trustees for behoof of Sutherland & Murdock Plumbers
in Dundee against the Petitioner praying for a warrant to build and his Lordship was
pleased at his date (18th June) to pronounce the following Interlocutor: “Dundee Eighteenth
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June One thousand eight hundred & Forty five Record Closed (signed) William Thoms D.G.
Codem die the Dean of Guild having considered he closed record allowed both Parties in
said closed record relative to the possession of the vacant ground in dispute and to each
party a Conjunct proof Granted Commission to the Clerk of Court and John W. Alexander
Writer in Dundee or either of them for taking proof and diligence against witnesses and
Havers the pursuers proof to be reported within fourteen days and the respondents proof
within fourteen days after the pursuers was reported and each party to give the other three
days notice of the time ad place fixed for proving (Signed) William Thoms D.G. initialled
J.W.B. these Interlocutors the petitioners begged respectfully to Submit to his Lordships
review and they craved that they might be recalled in haoc statu. The case was in no view in
a fit state for his Lordship to close the record nor had the Petitioners been permitted an
opportunity of fully stating their defence after the writings called for by them and ordered to
be put in process by his Lordship were produced. It was thought that a very shore review of
he procedure had, would satisfy his Lordship s to this when the Petitioner answered the
original Petition the pursuers had not produced their titles and his Lordship would see that
the respondents in their answers called for such Production and Craved leave to be allowed
to amend their defence production being made. His Lordship of this date (26th Decr 1844)
ordered the respondents to produce the title deeds called for and he added a note of his
Interlocutor to which the petitioners made special reference. The Pursuers not only refused
but repeatedly refused to make the productions ordered and his Lordship of this date (1st
march 1845) dismissed the action. The pursuers reclaimed and were reponed of this date
(24th March 1845) but they still to make a full production and his Lordship heard the
parties of this date (31st March 1845) when he made a peremptory order on the pursuers to
produce but they did not implement, although they made an additional production and
thereafter his Lordship on the Eleventh April One thousand Eight hundred & Forty five
appointed the parties to be heard before him on the ground of he subjects. parties were
heard accordingly and the pursuers Agent then promised to produce the plan and other
documents called for and certainly there ought to have been upon record an Interlocutor
making reference to what passed at this hearing and pointing out what was then required of
he parties but there was no such Interlocutor nor was there subsequently any authority
given to the petitioners to make any addition to their defences in consequence of the
productions which had been made. The next order (15th May 1845) was upon parties to
state of this date. The petitioners concurred that the record could not be closed without
consideration and answers and they therefore wrote upon their defence a declarature to
hold their statements full and final. The Petitioners went before the record was closed to
move for receiving of plans and writings most essential to he petitioners which had been
withheld. Praying that it might please his Lordship to recall the Interlocutor submitted to
Review and to proceed to make up a Record by Condescendence and answers or by allowing
the Petitioner to amend their defence or otherwise in terms of the Act of Sederunt.
According to Justice as the said petition Signed by William Kerr more fully bears and on the
twenty sixth day of June One thousand Eight hundred and Forty five his Lordship the Dean
of Guild having considered the Reclaiming Petition for the defenders (No 9 of Process)
Recalled the Interlocutor of the Eighth June current closing the record allowing a proof to
both partied ad appointed the pursuers to lodge a Condescendence of what they craved and
offered to prove as to the possession of the vacant ground in dispute and the Defenders to
Answer the same, both papers to be framed strictly in terms of the Act of Sederunt relative
to the proof process in Civil Cases in the Courts of Royal Burghs. The Condescendence to
be lodged within four days from this date and the Answers to be lodged within four days
after the Condescendence was lodged, and on the ninth day of September One thousand
Eight hundred and Forty five Condescence for the pursuers were lodged in which it was set
forth that the Petitioner in terms of his Lordships Interlocutor of this date (26th June 1845)
Condescended and offered to prove first that they were heritably vested in “All and Whole
that large tenement of Land sometime ago built and afterwards used as a Meeting house
and place of Worship together with the yard on the South side thereof, Summer house on
the South west corner of said yard, vacant ground on North side and east end of said great
tenement, draw well in the yard and whole privileges thereto belonging; which Subjects lie
on the South side of the Overgate of Dundee and are bounded with the lands formerly
belonging to William Pirie Merchant afterwards to William Abbot on the West, the yard
formerly belonging to Paul Farquharson Vintner afterwards to William Whitton Merchant on
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the South yard belonging to John Brown of Glasswell the tenement formerly belonging to
Convener David Smart Baker thereafter to James Edie Shoemaker and part of a tenement
belonging to William Crichton or the heirs of George Crichton Maltmen, on the east; and the
lands formerly of the heirs of Mr Colin Campbell thereafter to Patrick Jack Indweller the
lands of the heirs of Patrick Ouchterlony Mason and the heirs of the said George Crichton
on the north parts together with he close or passage leading to the said subjects below the
house belonging to eh said Patrick Jack’s heirs and which whole subjects were purchased
by the said David Jobson from the said Provost John Halliburton and David Smart; and
that part purchased from Provost John Halliburton is denominated a ruinous tenement of
land or old walls and yards adjacent thereto and privileges as mentioned in his Disposition
bearing eh date Sixteenth day of March Seventeen hundred and Sixty four years and
registered in the Books of Dundee the twelfth day of September said year; and that part
purchased by the said David Jobson from the said David Smart was a yard and privileges
as mentioned in the Disposition by him bearing the date twenty eighth day of May
Seventeen hundred and Sixty four and registered in the Burgh Court Books of Dundee the
Twelfth day of September said year and which subjects were disponed by the said David
Jobson to the late Adam Wilson Merchant in Dundee, John Workman and George Duncan
in trust for and in name and behoof of the whole Members of the said Associate
Congregation which subjects were disponed to the Petitioner by the United Associate
Congregation Dundee Conform to Disposition in their favor dated fourth December Eighteen
hundred and Sixty forty and in virtue of which they had been duly infeft Conform to
Instrument of Sasine in their favour dated twenty sixth September and registered Ninth
October Eighteen hundred and forth four this by the Disposition in favour of the Petitioners
and Instrument of Sasine following thereon therewith produced Second that the Subjects
before described were by disposition dated twenty fourth January Seventeen hundred and
Seventy two disponed by David Jobson Writer in Dundee to and in favor of Adam Wilson,
John Workman and George Duncan for themselves and in name and for behoof of the whole
persons Members of the Aciculate Congregation of Dundee and in that Disposition said
Subjects were described as follows “All and Whole that large dement of land lately built and
used as a Meetinghouse and place of Worship Together with the Yard on the south side
thereof, Summer house in the South West Corner of said yard and whole vacant ground on
the north side an east end of said great tenement and draw well in he yard and whole
privileges thereto belonging and which subject lies of he South side of he Overgate of
Dundee and is bounded with the lands formerly belonging to William Pirie Merchant now to
William Abbot on the west; the yard formerly belonging to Paul Farquharson Vintner and
now to William Whitton Merchant at the south the yard belonging to John Brown of
Glasswell the tenement formerly belonging to Convener David Smart Baker now to James
Edie Shoemaker and part of tenement belonging to William Crichton Maltman (on the east)
on the heirs of George Crichton also Maltman, the lands formerly of the heirs of Mr Colin
Campbell now of Patrick Jack Indweller, the land of the heirs of Patrick Ouchterlony
Mason” and said subjects had been subsequently conveyed to Trustees for behoof of said
Congregation Conform to the titles produced. Third: That the Meeting house above referred
to had been built by the said David Jobson; and in the year Seventeen hundred and seventy
five he presented an application to the Dean of Guild of Dundee to have the same valued
and inspected by tradesmen and in that petition it was stated that the petitioner had built a
large tenement of land partly upon the subject purchased from Provost Halliburton and
partly upon the yard purchased from Convener Smart Conform to extract therewith
produced. Fourth; That the subjects first there referred to as purchased from Provost
Halliburton were described in his titles as follows: “All and Hail an yearly @rent or ground
annual of One Pound Scots Money belonging formerly to the Alterage of Margaret the Queen
thereafter he Hospital of Dundee and disponed by John Wilson late Hospital Master to me
upliftable furth of All and Haill that tenement of land and yard adjacent thereto lying on the
south side of the Overgate of Dundee bounded with the lands of the heirs of Robert Rollo
Shipmaster, on the south William Pirie’s land on the west a tenement of land and yard
belonging to John Smart and Patrick Ouchterlony Mason on the east and a tenement of
land formerly belonging to Colin Campbell now to Patrick Jack residenter in Dundee on the
north parts” and the Subjects second before referred to as purchased from Convener Smart
or David Smart Baker of Dundee were described in the Disposition by him in favour of Mr
Jobson as follows “All and Haill that yard which extends as far south as the west Gavel of a
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tenement of land disponed by me of this date to James Edie Journeyman Shoemaker in
Dundee with the drawwell of the said yard and which yard is bounded with the lands
formerly belonging to the heirs of Dr Yeaman now to the said David Jobson on the west and
south the tenement of land disponed to the said James Edie and part of a tenement
belonging to him of George Crichton Maltman on the east; and the lands of the heirs of
Patrick Ouchterlony Mason and the heirs of the said George Crichton on the north”. Fifth:
That the Disposition by the said David Jobson to the Associate Congregation and by the
United Associate Congregation in favour of the Petitioner,, the Eastern boundary of both
said subjects was described as follows: “that yard belonging to John Brown of Glasswell he
tenement belonging formerly to Convener David Smart Baker thereafter to James Edie
Shoemaker and part of a tenement belonging to William Crichton Maltman or the heirs of
George Crichton also Maltman”. Sixth: that the late William Gall acquired right to the said
tenement which had belonged to James Edie and to the said part of the tenement which
had belonged to the heirs of George Crichton. In he conveyance in his favour that tenement
was described as “All and Whole that small tenement of land lying on the south side of the
Overgate of Dundee lying on he south side of he Overgate of Dundee and bounded by a yard
deponed by the said David Smart of date the twenty eighth May Seventeen hundred and
thirty four to David Jobson Writer on the west a yard belonging to John Brown of Glasswell
on the south”, and in the Conveyance on his favour to the latter, the subjects hereby
Conveyed were described as “bounded on the west partly by hat small tenement of land
formerly called the Temple lands lately disponed by the said David Smart to David Jobson
Writer in Dundee”. That none of the titles to these properties Conveyed and right of property
on the Subjects belonging to he petitioner of any part of them, nor was any servitude of any
kind constituted over these subjects in favour or the proprietors of the other. Seventh: That
the petitioner and their predecessors had been in the exclusive and uncontrolled possession
of “the vacant ground on the North side and east end of said great tenement” at least since
the disposition by he said David Smart to the said David Jobson and from that date it had
been uniformly possessed and disponed as an integral part of the whole properties now
belonging to the Petitioners. Eighth: That the Petitioners applied for his Lordships authority
to erect an additional house upon the said vacant ground on the north side and east end of
said great tenement Conform to plan produced. That the only conterminous proprietors
were the Representatives of the late William Gall but although the petitioners had called the
representations as such s they had produced no title to he subjects by which the Petitioner
property was bounded on the east and they had therefore no title or right to oppose and
object in the present action to which Condescending Pleas in Law were added to the effect:
First: That the unrestricted and uncontrolled proprietor of a property was entitled to build
on the very verge of that property a Contro ad coclum (a cœlo usque ad centrum: from the
heavens to the centre of the earth). Second: That in such a case the proprietor was not
restrained by any supposed servitude non tuminibus officiendi non tollendi and that
neither of these servitudes could be implied from the Petitioners or their predecessors not
having hitherto built on their property but must be proved by positive evidence or grant.
Third: the burden of proving a restriction on or servitude over the Respondents property by
on the party alleging the restriction or founding upon the Servitude. Fourth: That the
representative had produced no heritable title to the subjects alleged to belong to them were
not in titulo to oppose to object to the application as the said Condescendence subscribed
by the said John Anderson more fully bears. Thereafter on the twenty second day of
September Eighteen hundred and forty five his Lordship granted diligence at her
respondents instance against Haver for reserving of Writings called for in Specification
lodged by hem on the Nineteenth day of September and Commission was granted to
examine Havers and receive exhibits and also appointed the respondents along with their
Answers to the Condescendence to produce their title to he subjects adjoining the
Petitioners property and the Answers to be lodged within ten days from that date; and
thereafter Havers having been examined and several writings produced the Respondents
lodges Answers to the Condescendence for the Petitioners stating first that it was admitted
that the Petitioners were infeft in certain subjects situated on he south side of the Overgate
of Dundee in virtue of the disposition by the United Associate Congregation produced. But
denied that the quotation on pages first and second of the Condescendence was correctly
transcribed from that Disposition to which reference was made for its terms. It was
explained and objected that the Condescendence so far as it Contained quotations was
8
incompetent, they denied that the piece of ground on which the Petitioner proposed to build
was conveyed or belonged to them or had been possessed by them or that it had been the
property of he [arties from whom they had got the disposition or that it had been possessed
by them and the said piece of ground was not Comprehended in he titles on which the
petitioners founded. They denied that the Petitioners had produced any right to support the
application and he demands set up by hem would form most unwarrantable encroachment
on the Respondents property their rights and privileges. They admitted that the said
Disposition bore that the subjects thereby conveyed had been purchased by the late David
Jobson Writer Dundee from Provost John Halliburton and David Smart but hey denied that
ha part of he subjects stated to have been purchased from Provost Halliburton was
denominated a ruinous tenement of land or old walls and year adjacent thereto and
privileges; and this denial was made subject to this explanation that no disposition or other
writ from Provost Halliburton had been produced and no prior title except he sasine in
favour of Provost Yeaman his immediate predecessor and the extract Disposition by he
latter to him with the sasine thereon. These three writs were the only ones in process
relative to this portion of the Subjects referred to in the Petitioners Disposition. They were
called on to produce the remainder. They admitted that said Disposition in the Petitioners
favor ore that part purchased by David Jobson from David Smart was a yard and privileges;
but they denied that what was contained in the Petitioners Disposition was evidence of the
right to David Smart and they denied that any deed in favour of Smart of his predecessors
had been produced. The Petitioners were required to produce such titles. They admitted
that Jobson conveyed certain subjects situated on South side of the Overgate to Adam
Wilson and others for behoof of the Associate Congregation the Petitioner Authors. But they
denied hat the said Angular piece of ground formed any part of the Subjects conveyed by
the disposition to Jobson or by the subsequent transmissions in profess. They admitted
that the Petitioners had produced the Disposition by the Associate Congregation to them
and the Instrument of Sasine following thereon to which the Respondents made reference
for their terms. Second: They admitted to this extent but not otherwise that these were
produced in process an Extract requested Disposition by David Jobson in favor of Adam
Wilson and other parties named for behoof of the Associate Congregation of Dundee; they
denied that the quotation therefrom in pp 5 and six of the Condescendence was correctly
excerpted and objected that such quotations were contrary to the Act of Sederunt, he
denied that this disposition carried right to the said angular piece of ground. Third: The
Respondents did not know that David Jobson had built the Meeting House referred to in
this article. The Respondents did not know that David Jobson had presented a Petition to
the Dean of Guild Dundee here mentioned. They admitted that the Petitioner had produced
a paper entitled an extracted Petition to which reference was made for the terms quoad
ultra denied. Fourth: Claimed that the two quotations in this article were correctly made
from the extract Registered Disposition and Assignation to John Halliburton dated 21st May
Seventeen hundred and Fifty seven and from the Extract Disposition and Assignation by
David Smart to the said David Jobson dated twenty eighth day of May Seventeen hundred
and Sixth four and recorded twelfth September Seventeen hundred and Sixth four and they
objected that such quotations were contrary to the Act of Sederunt. fifth: They denied the
quotation made with an observation from the Extract Disposition by David Jobson in favor
of Wilson and others dated the Twenty fourth day of January Seventeen hundred and
Seventy two and they objected that such quotations are Contrary to the Act of Sederunt.
Reference was made to the Disposition in favor of the Petitioners which Contained a similar
passage. The Petitioner omitted to give that part of the description of the boundaries on the
north partly by the lands of the Heirs of George Crichton. Sixth: That the quotations in this
article were incorrect and garbled and if these were any Statement of Facto contained in it,
it was denied and objected that such quotations were Contrary to the Act of Sederunt. It
was particularly denied that David Smart conveyed the Angular piece of ground in dispute
to David Jobson. Seventh: They Particularly denied that the whole vacant ground in the
north side and east end of the old church had been in the exclusion and uncontrolled
possession of the Petitioners and there predecessors. Eighth: They admitted that the
present petition had been presented for the purpose therein mentioned, they denied that
the Petitioners were entitled to erect any Building or house upon the ground which
belonged to he Respondent, they denied the Respondents had produced no title to the
subjects claimed by them and they herewith produced the Extract of their Author the late
9
Mr Galls Trust disposition and settlement dated the Eight day of August Eighteen hundred
& Forty and recorded in the Burgh Court Books of Dundee the Twenty sixth day of June
Eighteen hundred & Forty five to which were appended a Statement of Facts setting for the;
first that the Respondents were Proprietors qua trustees of the late William Gall
Confectioner in Dundee of the following subjects all adjoining the Property of the petitioner
towards the east viz: (1) All & Whole that small tenement of land lately possessed by John
Petrie, James Duncan, Paul Sime, Jean Neary, David Johnston and David Smart being part
of that tenement formerly called Temple Lane which formerly belonged to George Brown of
Horn and disponed by him to the deceased Andrew Smart father to David Smart and by him
to (blank) Smart lying on the south side of the Overgate of Dundee & bounded by a
Bakehouse belonging to the heirs of the said David Smart and Common Stair leading up to
the loft of the said Bakehouse on the east a yard disponed by the said David Smart of Date
the Twenty Eighth day of May Seventeen hundred and Sixty four to David Jobson Writer
Dundee on the west a yard belonging to John Brown of Glasswell on the south the land
formerly called the Fore Temple Land belonging to the heirs of George Crichton Maltman
and part of the said yard on he north parts. Together also with the use and privilege of a
draw well within the close and free ish and entry to and from the said tenement trough the
said close and passing and re-passing by the Common stair up to the said tenement and
loft of the said Bakehouse. (2) All and Haill that tenement of land formerly ruinous
purchased by Andrew Smart Mason in Dundee from the Magistrates and Town Council of
Dundee and rebuilt by him and thereafter disponed by him to John Smart Mason his eldest
son and by him to the deceased George Crichton Maltman in Dundee which afterwards
belonged to his brother John Crichton late tenant at Davidson, as nearest and lawful heir
cognosed and infeft to him and deponed by he said deceased John Crichton to George
Crichton tenant at Halltoun of Newtyle and by him to he said William Gall lying on the
south side of the Overgate of Dundee and bounded betwixt the tenement of land of John
McLean now of (blank) on the west the lands sometime of Robert Nicolson thereafter of
Patrick Cock Shoemaker on the east, and a little yard disponed by Andrew Smart to David
Smart his son on the south, and the said Overgate on the north parts (3) All and Haill that
small house in the back close built by the said John Smart and sometime possessed by
Euphemia Wyllie. Together with the vacant ground north from the same consisting of (feet)
feet from said little house to the south wall of said Patrick Cock’s house and eighteen feet
broad which belonged to William Gardiner Cooper and was disponed by him to the said
John Smart an by him to the said deceased George Crichton and which afterwards
belonged to the said deceased John Crichton his Brother as heir to him who disponed the
same to the said George Crichton at Halltoun of Newtyle and which small house and vacant
ground is bounded with the year belonging to the said William Gardiner’s heirs on the east
the tenement of land belonging Patrick Cock on the North a yard belonging to the said John
Brown of Glasswell on the south and a house belonging to the said David Smart and a close
on the west parts. (4) All and Whole that Bakehouse and oven with the wheat loft and oven
head and garret above the same with the small house in Dundee and the vacant ground
north from the same consisting of (blank) feet from the small house by sough wall of the
house lately belonging to Patrick Cock and Eighteen feet in breadth lying on the east side of
said Bakehouse with the toofall built upon part of said vacant ground and he pump well
thereon together with the close and Coal cellar and room above the same under the Closets
of the tenement of land built by the said John Smart on the west side of the foresaid
Bakehouse all lying on the south side of the Overgate of Dundee and bounded on the West
partly by that small tenement of land formerly called the Temple Land disponed by he said
David Smart to James Edie and partly by the yard disponed by the said David Smart to
David Jobson Writer in Dundee and Common Stair leading up to the oven head and loft of
the said Bakehouse on the North by the lands of William Dron and others on the east by a
tenement of land built by Ninian Alexander Mason and by a piece of vacant ground which
belonged to William Allison and on the south parts by a yard belonging to David Hazell (5)
All and Haill the flat immediately above the shop storey with one third part of a Garret
north east end of said tenement entering by two doors with one fourth part of the Cellars at
the North east Corners together with the small Cellar below the stir case, being part of All
and Whole that tenement of land which formerly belonged to Robert Nicolson Merchant
Dundee and thereafter by progress to the heirs of Patrick Cock Shoemaker in Dundee and
disponed by them to John Low Wright in Dundee lying on the Southside of the Overgate of
10
Dundee bounded betwixt the entry or passage to the inner tenement sometime of Alexander
Annan Merchant hen of the heirs of William Gardiner Cooper on the east and south to the
lands formerly of (blank) then of John Smart Mason or his successors on he west and the
said Overgate street on he north parts with free ish or entry by a passage or close on the
east end of the said tenement and also with free ish and entry by the Common Close of
these properties were produced. Second. The above properties were all contiguous and at
the different times of the erection of the tenements which belonged to he Respondents the
proprietors at the time (of the Respondents tenements) had left out spaces to the westward
or northwestward to preserve the lights of the said tenements. Particularly when Mr Gall
the Respondents author had erected the new tenement the South most of the Respondents
tenements on that part of his property near the Church he had left out a considerable piece
of his ground from three to four feet along the west side in order to have given additional
light to his tenements and to have preserved the lights which would otherwise have been
much obscured by the Church opposite to them. The Petitioner had recently assumed
possession of he said here feet of ground as well as the said Angular space on which they
craved a warrant to build. The line of March of the Respondents property on the west ran
from the west corner of the Gable wall of the Respondents tenement at the northwest to a
point three feet west from the westmost part of their new tenement on the south which
included the Space left out when the said tenement had been built as well as the said
angular piece of ground on which the Petitioner had applied for a warrant to build an
additional house. Third the said stripe of ground was not comprehended in the deeds
founded on by the Petitioners and this was apparent from the bounding description of their
property as contained in the titles which they had produced and which they fell to be
confined in the construction of their rights. The boundary on the South as given in he
Disposition on which they were infeft as well as in the prior titles was in these words “The
year formerly belonging to Paul Farquharson Vintner afterwards to William Whitton
Merchant on the south” on the assumption that the Petitioners had the right to he angular
piece of ground referred to the boundary woolly not have been limited to the words quoted
but would also have comprehended a southern boundary by one part or other of the parts
of the ground to which the petitioners have alleged a right and in no event could the piece of
ground so claimed have formed an integral part of he Petitioners property without having
been specified as bounded partly on the south by the Respondents property. The boundary
on the South was limited to the yard formerly belonging to David Farquharson afterwards to
William Whitton and by that limitation it was evident that the piece of ground alluded to
was not included in the Petitioners right. Fourth. The erection of the proposed building
would form a serious encroachment on the Respondents property and the Petitioners were
not entitled to the warrant Craved by them. The plan founded on and produced with the
Petition was not correct. Fifth. The Respondents and their authors had all along had
possession of the whole ground and built upon within their line of March foresaid.
Particularly the Respondents and their authors had always had possession of he Angular
piece of ground on which the Petitioners wished a warrant to build. When the late Mr Gall
had erected his new tenement at the south of his property he had laid stones and other
materials thereon and these had recently been unwarrantably removed by the Petitioner
pendente lite (during the passage of a suit) as the said Answers which are subscribed by the
said William Kerr Procurator of Court more fully bears and on the seventeenth day of
October Eighteen hundred and Forty five his Lordship appointed the Pursuers to revise
their Condescendence and he defenders revise their answers the revised Condescendence to
be lodged within three days from that date and the revised answers to be lodged within
three days after the revised Condescendence was lodged both papers to be framed strictly in
terms of the act of Sederunt and the pursuers complied with that order, but the
Respondents having lodged a Reclaiming Petition against the Interlocutor above referred to
offering revised Condescendence and answers his Lordship on the twenty third day of
October Eighteen hundred and Forty five appointed the same to be answered by the
Petitioners which was accordingly done and on the twenty ninth day of said month of
October his Lordship having considered the Reclaiming Petition for the respondents and
answers thereto for the Petitioners refused the desire of the said Petitioners and adhered to
the Interlocutor reclaimed against and of new Appointed the Respondents to answer the
revised Condescendence, the answers to be lodged within three days from that date and the
Respondents accordingly returned their answers as revised and thereafter on the thirteenth
11
day of November Eighteen hundred and forty five his Lordship the Dean of Guild Closed the
record and on the same date his Lordship having considered the closed Record allowed both
parties a proof habili mode (in the manner competent) of their respective averments therein
contained relative to the vacant ground in question and to each party s Conjunct proof,
Granted Commission to the Clerk of Court and Mr John Walker Alexander Writer inn
Dundee or either of them for taking the proof and diligence against witnesses and Havers
the Petitioners to report their proof within fourteen days and the Respondents to report
their proof within fourteen days after the Petitioners proof was reported. Each party of give
the other there days notice of the time and place fixed for proving, both parties let proof at
great length which was afterwards reported in the course of the proof the Reverend Mathew
Frazer was examined at Rothsay by Commission and his evidence was appointed to be
sealed p to lie in retentis and the Seal was afterwards removed and the evidence appointed
to take part of the Pursuers proof in chief: and also in he Course of he proof Catherine Gall
one of the Defenders was Married to James Campbell Merchant in Dundee and he the said
James Campbell was made a party to the process for his interest as will appear in part of
the procedure in said process. The proof and procedure relative thereto is in process. And
the proof having been Concluded his Lordship the Dean of Guild on Sixth October Eighteen
hundred & Forty Six circumduced the term for proving and made avizandum with the whole
cause. Against this Interlocutor the Respondents reclaimed and his Lordship appointed the
Reclaiming Petition to be answered by he Petitioners which was accordingly done and on
the twentieth day of October same year his Lordship having considered the Reclaiming
Petition for the Respondents Number Sixty five of process with the Answers thereto for the
Petitioners refused the desire of the Petition and adhered to the Interlocutor Reclaimed
against and of new made Avizandum of the whole Cause and added a note to the
Interlocutor, and again on the twenty fourth day of said Month of October and year foresaid
the Dean of Guild having advised the closed record. Proof adduced and whole process and
having repeatedly visited and inspected the ground in Dispute Found and Hereby finds that
by the Petitioners titles produced they stand heritably vested in “All and Whole that large
tenement of land sometime ago built and afterwards used as a Meeting House and place of
Worship together with the yard on the south side thereof, Sumner house in the southwest
corer of said yard, vacant ground on the North side and east end of said great tenement,
draw well in the yard and whole privileges thereto belonging” which subjects are described
as bounded “by the yard belonging to John Brown of Glasswell the tenement formerly
belonging to Convener David Smart Baker hereafter to James Edie Shoemaker and part of a
tenement belonging to William Crichton or the heirs of George Crichton Maltman on the
East” which subjects were acquired by David Jobson sometime Writer in Dundee partly
from Provost John Hallyburton and partly from the said David Smart Confirm to
Dispositions dated respectively the Sixteenth March and Twenty eighth May Seventeen
hundred & Sixty four and afterwards belonging to the Trustees for the United Associate
Congregation in Dundee. Found and hereby finds that the Respondents author William Gall
acquired right to the said Tenement which belonged to the heirs of George Crichton the
former of which is described as “bounded by a yard disponed by the said David Smart of
date the Twenty eighth May Seventeen undress and Sixty four to David Jobson Writer on
the West” and the latter as “bounded on the west partly by that small tenement of land
formerly called the Temple land disponed by the said David Smart to James Edie and partly
by the yard disponed by the said David Smart to the said David Jobson, found and hereby
Find it established that the Petitioner and authors have been in the possession and use of
the vacant ground on the east end of the foresaid great tenement or place of Worship and
lying betwixt it and the old tenement belonging to the Respondents for upwards of Forty
years without interruption. Found and hereby Finds that by holograph letter from the
Respondents Author William Gall addressed to the Trustees of the said Congregation dated
twentieth of October Eighteen hundred and Twenty Five and produced in process that said
William Gall acknowledged receipt of a note requiring him to remove some timber which he
had taken the liberty of laying down upon the property belonging to the Congregation and
asked them to allow it to be for a short time; and that by he evidence or Mr Moyes in whose
custody the letter has remained ever since the ground on which the said timber was laid
down was the space betwixt a point about four feet east from the gable of the Church and
the back wall of Mr Galls property forming part of the ground on which the Petitioners
propose to build. Found and hereby Finds it also established that the Keys of the different
12
Gates leading into the Church and vacant ground in dispute have always been kept by the
said Congregations or persons authorised by them and that the Respondents predecessors
had not right of access to the said vacant ground by the said gates or otherwise. Therefore
Found and hereby Finds the Petitioners entitled to erect a house upon the vacant ground
on the north side and east ends of the foresaid large tenement as craved and Granted and
Hereby Grants warrant to them to erect the said house accordingly conform to the Plan
lodged with the original Petition and marked by the Clerk of Court as relative hereto. Found
and hereby Finds the Respondents liable to the Petitioners in the expences of process,
subject to Modification and appoints an Account of said Expences to be lodged to he Clerk
of court to be taxed. Find and hereby Finds the Respondents liable in the dues of Extract to
be ascertained at extracting and decerned and hereby decerns. Thereafter the Respondents
lodged a short Reclaiming Petition against the foregoing Interlocutor chiefly Praying to be
allowed to lodge additional Petition within such period as to his Lordship might seem proper
and which Petition was lodged on the twenty eighth day of October last and thereafter on
the third day of November Eighteen hundred and Forty six his Lordship the Dean of Guild
having considered said Petition allowed the Respondents to lodge additional answers
thereto and that within Six days from that date and thereafter on the Thirteenth November
same year the Petition a returned without any addition and the Case was allowed to become
final. The Pursuers then lodged their account of Expences which had been previously
remitted to the Clerk of Court to tax and Report and he having on the twenty fifth of said
Month having met with the Procurators for the Parties and heard them on the Account of
the Pursuers expences Taxed the same at Sixty Two Pounds Fifteen Shillings & Seven pence
Sterling and reported to the Court accordingly; and on the twenty Sixth day of same month
the Dean of Guild having considered the Pursuers Account of expences with the Clerk of
Courts report Found that the same as Taxed amounted to Sixty two Pounds fifteen Shillings
and seven pence Sterling. Modifies the same to Sixty Pounds and of r which sum decerned
and hereby decerns against the defenders accordingly and Allowed Decree to go out and be
extracted as accords. Item of the sum of Ten Pounds twelve shillings as the expences of
extracting the decree and so the said Dean of Guild gave and pronounced his sentence and
Decree in the said matter in manner at length before written and ordained and hereby
ordains all necessary execution to pass hereon in ordinary form extracted upon this and the
Sixty six preceding pages by me Clerk of the Dean of Guild Court of the Burgh of Dundee.
John W. Baxter
Written by Graham Milne
Collated by Thomas Gray
Signed Ninth December Eighteen hundred & forty six
Unto the Honourable
The Dean of Guild of
The Royal Burgh of
Dundee
The
Petition of George Sutherland and John Mrdoch both plumbers in
Dundee Trustees for beoof of the Company of Sutherland and Murdoch Plumbers in Dundee
Humbly Sheweth
That the Petitioners are proprietors of certain subjects lying between the Nethergate
and Overgate streets of Dundee and in particular without prejudice to said generality they
are proprietors of All and Whole that large tenement of land sometime ago built and
afterwards used as a meeting house and place of worship together with the yard on the
south side thereof; summer house in the south west corner of said yard; vacant ground on
the north-side and east end of said great tenement, draw-well in the yard and while
privileges thereto belonging conform to Instrument of Sasine in favour of the Petitioners
herewith produced dated twenty sixth September Eighteen hundred and forty four and
recorded in the Register of Sasines for the Burgh of Dundee the ninth October Eighteen
hundred and forty four.
13
That besides the said great tenement already built the Petitioners intend to erect an
additional house upon the said vacant ground on the north side and east end of said
tenement Conform to a plan thereof herewith produced.
That in order to get your Lordships authority for the erection of said house the
present application becomes necessary.
May it therefore please your Lordship to appoint a Copy of
this Petition and your Lordships deliverance thereon to be
served upon John Anderson Esquire the Senior Bailie of the
Burgh of Dundee for himself and on behalf of the Town
Council of Dundee for the public interest and upon George
Bower Leather Currier in Dundee, Mrs Ann Gall or Bower
his wife & Miss Catherine Gall residing in Dundee the
accepting and acting Trustees of the deceased William Gall
residing in Overgate Street aforesaid being the only
conterminous heritors and them to lodge answers thereto if
they any have within a certain short space. And thereafter
on advising this Petition with or without answers to grant
warrant to the Petitioner to erect the said house Conform to
the said plan and in case of any opposition being made in
the premises to find the party or parties making such
opposition liable in the expences or to do otherwise in the
premises as to your Lordship may seem meet.
According to Justice
Dr by G. Forgan
Dundee 12th November 1844
The Dean of Guild having considered the foregoing Petition Appoints the same and this
deliverance thereon to be intimated to the several Defenders therein named and designed
and them to lodge answers thereto if they any have in the hands of the Clerk of Court within
forty eight ours after service with Confirmation.
William Thoms D.G.
Dundee 12th November 1844
As Senior Bailie of Dundee I hold the foregoing Petition and deliverance dully intimated to
me having received a copy of said Petition and deliverance.
John Anderson
Upon the twenty first day of November Eighteen hundred and forty four years by virtue of a
Deliverance of the Honourable the Dean of Guild of the Royal Burgh of Dundee dated the
twelfth day of November current upon a Petition given in and presented to him for and in
name of George Sutherland and John Murdoch both Plumbers in Dundee Trustees for
behoof of the Company of Sutherland and Murdoch Plumbers in Dundee I John Watson
Dean of Guild officer Dundee passed and Lawfully intimated the said Petition and
Deliverance to each of the said George Bower Leather Curries in Dundee, Mrs Ann Gall or
Bower his Wife and Miss Catherine Gall residing in Dundee the accepting and acting
Trustees of the Deceast William Gall residing in Overgate street Dundee being the only
Conterminous heritors and required them to lodge answers thereto if they any have in the
office of the Clerk of Court within forty eight hours after service with Certification a full
double of said petition and deliverance with a just copy of intimation and requisition to the
effect aforesaid thereto subjoined I delivered to each of the said George Bower, Mrs Ann Gall
or Bower and Miss Catherine Gall all personally apprehended which said full double and
copy of intimation and requisition were each p[age signed by me and which copies of
intimation and requisition did severally bear the date hereof and contained the date of said
Deliverance with the names and designations of Colin McEwen and John Fraser booth
residenters in Dundee witnesses to the Haill premises and hereto with me subscribing on
this and the preceding page as also the marginal note on preceding page.
John Watson
Colin McEwen Witness
John Fraser Witness
14
Dundee 23rd November 1844
The Dean of Guild appoints a visitation of the subjects mentioned in the petition to take
place at two o’clock afternoon this day.
William Thoms D.G.
Dundee 29th November 1844
Renews the appointment of the visitation of the 23rd current until this date then to take
place at three o’clock afternoon.
William Thoms D.G.
Oedem die
The Dean of Guild having visited and inspected the subjects in dispute and heard Parties
Procurators Appoints the Defenders for whom Mr Kerr appears to see the Petition and plan
produced; and to answer the Petition in the course of tomorrow with Certification &c.
William Thoms D. G.
Dundee 26th December 1844
The Dean of Gild having considered the Petition, Answers and Replies, Before farther
Answer Appoints both parties to produce the whole Titles of heir respective properties and
that within four days from this date.
William Thoms D.G.
Note: The respondents in their answers have given a description of the several properties
which they say belong to them as Trustees of the deceased William Gall residing in Overgate
Street Dundee; but they produce no Title to shew that they are proprietors of than property
or to enable the Court to judge the correctness of the description given of it. The pursuers
have only made a partial production but the Court considers a production of the whole
Titles as necessary before farther advising the cause.
William Thoms D.G.
Dundee 1st March 1845
The Dean of Guild having resumed consideration of this process. In Respect that the
Pursuers have failed to produce the whole title as ordered by the Interlocutor of the twenty
sixth day of December last Dismisses the process. Finds the Pursuers liable in expences.
Appoints an account thereof to be lodged and when lodged remits the same to the Clerk of
Court to be taxed and Report. Finds the Pursuer also liable in the dues of Extract to be
ascertained at extracting and decerns.
William Thoms D.G.
Dundee 4th March 1845
Having advised the Reclaiming Petition for the pursuers Recalls the Interlocutor reclaimed
against and repones the Petitioner there against. Reserving in the meantime the question of
expenses. Farther allows the Respondents to see the Titles produced by the Petitioners for
three days from this date and thereafter Appoints parties to be heard viva voce on the
import of their respective titles for which purpose assigns Monday next the thirty first inst at
ten o’clock forenoon within the office of the Clerk of Court.
William Thoms D.G.
31st March 1845
Sutherland and Murdoch vs Galls Trustees.
The Dean of Guild having heard parties Procurators in terms of the Interlocutor of 21 st
March current on the motion of the Agent for Galls Trustees for a peremptory order to the
Pursuers to produce in process the whole progress of Title Deeds of the property belonging
to them mentioned in the Petition and also the plan referred to in the Disposition by United
Associate congregation if favor of the Pursuers produced and for leave after such order has
been implemented to see the Pursuers productions and to answer their Defences. Ordains
the Pursuer within forty eight hours to produce the whole Titles of the subjects referred to
as formerly ordained by Interlocutor of 26th December last and along with the said Titles to
15
produce the plan referred to in the foregoing crave with Certification and in case of such
production being made Allows the Titles and plan to be seen by the Defenders for forty eight
hours that they may amend their Statements in the Defences if they shall see cause.
William Thoms D.G.
Dundee 11th April 1845
The Dean of Guild having again resumed consideration of the Process Appoints the parties
to be heard before him on the point in dispute on Monday the fourteenth day of April
current at one o’clock afternoon and for that purpose to attend on the ground of the
subjects with Certification.
William Thomas D. G.
Dundee 15th May 1846 (1845?)
The Dean of Guild appoints parties to state whether they consent to hold the Petition,
Answers and Replies as containing their full and final Statement of facts and that within
four days from this date each party to have the use of the process for forty eight hours for
that purpose.
William Thoms D.G.
Dundee 18th June 1845
Recorded.
William Thoms D.G.
Oedem die
The Dean of Guild having considered the closed record. Allows both parties a proof of their
respective averments in said closed record relative to the possession of the vacant ground in
dispute and to each party a conjunct proof. Grants Commission to the Clerk of Court, John
W. Alexander Writer in Dundee or either of them for taking Proof and diligence against
Witnessed and Havers the Pursuers proof to be reported within fourteen days after the
Pursuers proof within fourteen days of the Pursuers is reported and each party to give the
other three days notice of the time and place fixed for proving.
William Thoms D.G.
Dundee 25th June 1845
Having considered the Reclaiming Petition for the Defenders (No 9 of process) Recalls the
Interlocutor of 8th June current closing the record and allowing a Proof of both parties and
appoints the Pursuers to lodge a Condescendence of what they aver and offer to prove as to
the possession of the vacant ground in dispute. And the Defenders to answer the same both
papers to be produced strictly in terms of he Act of Sederunt relative to the form of process
in such cases in the Court of the Royal Burgh. The Condescendence to be lodged within four
days from this date. And the Answers to be lodged within four days after the
Condescendence is lodged.
William Thons D.G.
Dundee 22nd September 1845
Having hearing parties prosecutors and considered the Specification of writings lodged by
the Respondents No 11 of process Grants diligence at the respondents instance against
Havers for recovery of the writings called for in said Specification And grants Commission to
the Clerk of Court or Mr John Walker Alexander Writer Dundee to examine Havers and
receive the Exhibits the Commission to be reported within ten days from this date and
twenty four hours notice to be given of the time and place for examining the Havers. Farther
Appoints the Respondents along with their Answers to the Condescendence to produce their
Titles to the subjects adjoining the Petitioners property said Answers to be lodged within ten
days.
William Thoms D.G.
30th November 1844
Answers for George Bower
Leather Curries in Dundee
Mrs Ann Gall or Bower
16
his wife and Miss
Catherine Gall residing
in Dundee accepting
and acting Trustees of the
deceased William Gall
residing in Overgate Street
Dundee
to the
Petition for Sutherland
and Murdoch or of
George Sutherland and
John Murdoch plumbers
in Dundee Trustees for
behoof of the said
Company of Sutherland
and Murdoch
The Building proposed to be erected by the Petitioners will if permitted form an
unwarrantable encroachment upon the property and the rights of the Respondents and will
have the effect of shutting up the lights on the Westside of a Tenement belonging to the
Respondents; to preserve which the vacant space upon which the Petitioners now proposed
to build was left out.
The Respondents are proprietors qua Trustees of Mr Gall in the following several
subjects all adjoining the property of the petitioners towards the East; the descriptions of
the properties on the Ancient as well as in the Modern Titles are nearly the same; and this
will account for the variance between the description given in the titles; and the present
appearance of the properties. Old tenements having been pulled down and new tenements
erected but not exactly in the same positions or on the same sites of the old tenements.
1st All and Whole that small tenement of land lately possessed by John Petrie, James
Duncan, Paul Sime. Jean Neavy, David Johnston and David Smart being part of that
tenement formerly called Temple land which formerly belonged to George Brown of Horn
and disponed him to the deceased Andrew Smart father to David Smart and by him to the
said (blank) Smart lying on the Southside of the Overgate of Dundee; and bounded by a
bakehouse belonging to the heirs of the said David Smart and Common stair leading up to
the loft of the said bakehouse on the east a yard disponed by the said David Smart of date
the 28th day of May 1764 to David Jobson Writer Dundee by the West a yard belonging to
John Brown of Glasswell and by him to the deceased George Crichton Maltman in Dundee
and which afterwards belonged to his brother John Crichton late tenant at Davidson as
nearest and lawful heir cognosed and infeft to him and disponed by the said deceased John
Crichton to George Crichton tenant at Halltown of Newtyle and by him to the said William
Gall Lying on the Southside of the Overgate of Dundee and bounded betwixt the tenement
of land sometime of John McLean now of (blank) on the West the lands sometime of Robert
Nicolson hereafter of Patrick Cock Shoemaker on the east and a little yard disponed by
Andrew Smart to David Smart his son on the South and the said Overgate on the north
parts.
3rd. All and Haill that small house in the back close built by the said John Smart
and sometime possessed by Euphemia Wyllie together with the vacant ground north from
the same consisting of (blank) feet from said little house to the south wall of said Patrick
Cock’s house and 18 feet broad which belonged to William Gardiner Cooper and was
disponed by him to the said John Smart and by him to the said deceased George Crichton
and which afterwards belonged to the said deceased John Crichton his brother as heir to
him who disponed the same to the said George Crichton at Halltown of Newtyle and which
small house and vacant ground is bounded with the yard belonging to the said William
Gardiner’s heirs on the East the tenement of land belonging to the said Patrick Cock on the
north a yard belonging to the said John Brown of Glasswell on the South and a house
belonging to the said David Smart and a closs on the West parts.
4th All and Whole that bakehouse and Oven with the wheat loft and Oven head and
Garret above the same with the small house erected by John Smart Mason in Dundee and
the vacant ground north from the same consisting of (blank) feet from the said small house
17
to the south wall of the house lately belonging to Patrick Cock and 18 feet in breadth lying
on the Eastside of said Bakehouse with the toofall built upon part of the vacant ground
with the pump well thereof together with the Close and Coal Cellar and room above the
same under the closets of the tenement of land built by the said John Smart on the
Westside of the foresaid Bakehouse all lying on the Southside of the Overgate Dundee; and
bounded on the West partly by that small tenement of land formerly called the Temple land
disponed by the said David Smart to James Edie and partly by the yard disponed by the
said David Smart to David Jobson Writer in Dundee and Common stair leading up to the
Ovenhead and lofts of the said Bakehouse on the north by the lands of William Dron and
others on the East by a tenement of late built by Ninian Alexander Mason and by a piece of
vacant ground which belonged to William Alison and on the fourth parts by a Yard
belonging to David Hazel.
5th. All and Haill the flat immediately above the Shop storey with one third part of a
Garret on the East end of said tenement entering by 2 doors with One fourth part of the
Cellars at the north west corners together with the small cellar below the Staircase being
part of All & Whole that tenement of land which formerly belonged to Robert Nicolson
Merchant Dundee and thereafter by progress to the heirs of Patrick Cock Shoemaker in
Dundee and disponed by them to Johnston Wright in Dundee lying on the south side of the
Overgate of Dundee bounded betwixt the entry or passage to the inner tenement sometime
of Alexander Annan Merchant then of the heirs of William Gardiner Cooper on the East and
South the lands of (blank) then of John Smart Mason or his successors on the West and the
said Overgate Street on the north parts, with free ish or Entry by a passage or Close at the
Eastend of the said tenement and also with free ish and Entry by the Common Closs and
Stair.
The plan produced with the petition is not sufficiently full & explicit and does not
show the relative positions of the Petitioners property as regards the Respondents property
but the Respondents property is marked out and defined by the boundaries of their Main
tenements and is situate to the East of a line running from the West Corner of the gable
Wall of the respondents tenement at the north West: to the Westmost point of their new
tenement on the South. All the vacant ground within that line belongs to the Respondents
and has been left out by their predecessors for the purpose of preserving the lights of their
several tenements adjoining. Moreover this vacant ground has been in the uninterrupted
occupancy and possession of the Respondents or their authors until more recently that the
present petitioners became proprietors of the subjects immediately to the Westward.
The petitioners may say that their title gives them rights to a vacant piece of ground
immediately to the Eastside of the building on their subjects which was formerly occupied
as a Church or Meeting house: but it will be observed as was pointed out at the inspection
that the vacant space of ground referred to in the petitioners titles exists immediately to the
West of the line which the Respondents contend is the boundary. The whole property
belonging to the petitioner is in the form of a square and does not extend into the
respondents property in an angular manner as indicated in the plan.
Before putting in Answers to their petition the Respondents Agent endeavoured
unsuccessfully to obtain from the petitioners Agent an Examination of the petitioner’s title
deeds. The Respondents are perfectly ready and willing to produce all their titles in process
and they move the Court to order a similar producing on the part of the Petitioners.
Without production of the whole titles of both parties and without a complete plan
shewing the relative position of parties properties it is impossible rightly to determine the
rights of parties; or for the Respondents to state more specifically their defence.
Denying the whole statements in the petition the Respondents plead:
1. That in the whole circumstances the petitioners are not entitled to the Warrant to
build prayed for in the petition.
2. The Petitioners are bound to produce their titles; and on such production the
Respondents are entitled to add their defence.
Under protestation to add and eitr
In respect whereof
William Kerr
Drawn by me
The respondents decline to hold their Statements as full & final.
18
In respect whereof
William Kerr for Resps drawn by me
May 1846
Inventory of Process
Sutherland & Murdoch
V
Galls Trustees
1. Petition for Sutherland & Murdoch
2. Answers for Galls Trustees
3. Replies for Sutherland & Murdoch
4. Plan produced with Petition.
5. Inventory of Title Deeds of Subjects belonging to William Galls Trustees
6. Reclaiming Petition for Pursuers
7. Inventory of Title Deeds produced by Pursuers
8. Plan of a property belonging to the Associate Antiburgher Congregation Dundee
9. Reclaiming Petition for Defenders
10. Condescendence for Pursuers
11. Specifiy of writings called for by Respondents
12. Certificate of intimation of proof
13. Deposition of Havers
14. Letters (line missing) addressed to the Trustees of the Associate Congrn dated 26
Octr 1825
15. Plans recovered from Haver
16. Answers for Resps to Condescendence
17. Interlocutor
18. Revised Condescendence for Pursues
19. Reclaiming Petition for Defrs
20. Answers for Sutherland & Murdoch
21. Ext Reqd Trust Dispn of Mr Gall dated 8th Augt 1840 and recorded 26th June
22. Execution of citing witnesses & Havers for Pursuers
23. Pursuers proof
24. Sealed packet contg Deposition of Mr Moyes
25. Objections for Defrs to admissibility of W. Moyes as a Witness
26. Answers
27. Execution of Citation for Mr Moyes as a Witness
28. Deposition for William Moyes
29. Execution of citing witnesses for Defr
30. Defenders proof
31. Objections & Answers to question (line missing)
32. –do33. –do34. -do35. -do- to John Gellatly
36. –do- to –do37. Reclaiming Petition for Galls Trustees
38. Sealed packet contg Deposition of Jas Gall
39. –do- containing Answers for Geo. Adam
40. Objections for pursuers & Answers for Defr
41. Objections for Pursuers
42. Explanation of Claim of Owners of “Isabella”
43. Objections for Pursuers
44. Elevation plan referred to in Deposition of A. Sampson
45. Claims of Indemnification Bower & Gall (word illegible) Isabella
46. Objections for Pursuers
47. Answers to –do48. Minute for Pursuers
49. Reclaiming Petition for Defenders
19
50. Sealed packet containing the deposition of the Revd Mathew Fraser to lie in
retentis
51. Certificate of intimation of proof at Rothsay
52. Execution Respondents agt Witnesses
53. –do54. Objections for Sutherland & Murdoch 16th & 17th July 1846
55. Reclaiming Petition for defrs
56. Letter from Pursuers Agent to Defenders Agent
57. Minute for Petition
58. Note for Petitioners
59. Observations for defenders a Note for Petitioner
60. Execution of Intimation of Petition v James Campbell
61. Execution Pursuers v Witnesses
62. Certificate of Intimation of Proof
63. Execution Pursuers for Petitioners
64. Additional Proof for Pursuers
65. Reclaiming Petn for Respondents
66. Answers for Petrs
67. Reclaiming Petn for Respt.
Dundee 11 Decr 1846
Removed Nos 4, 8 & 15 of the foregoing Inventory
Jas. Clark
1846 July 17
Unto the honourable
the Dean of Guild of
the Royal Burgh of
Dundee
The Petition of George Sutherland
and John Murdoch Plumbers
Dundee the individual partners
and Trustees of the Company
of Sutherland and Murdoch
Plumbers in Dundee
Humbly Sheweth
That the Petitioners are proprietors of that large tenement of land sometime ago
used as a Meeting house or place of worship and now by the Petitioners as a work shop
together with the yard on the south and east sides thereof; all lying on the south side of the
Overgate of Dundee and all as more particularly described in the annexed Statement of
facts that the Petitioners intend to make additional buildings and erections on the said
ground at or near to the South east corner of the present tenement as detailed in the
annexed statement of facts and shewn on the plans there referred to: And the Petitioners
present this Application to your Lordship for authority to build and therefore pray that it
May please your Lordship to appoint a copy of this
petition, of the annexed statement of facts and plea in Law and of
your Lordships deliverance thereon to be served upon the Senior
Bailie of the Burgh of Dundee for himself and on behalf of the
other members of the Town Council of the Burgh of Dundee for
the public interest and upon George Bower Leather Currier in
Dundee and Catherine Gall residing in Dundee the accepting
surviving Trustees of the deceased William Gall residing in
Overgate being the only conterminous proprietors; and them to
Lodge answers thereto if they any have within a certain short
space after service with Certification &c and on again advising
hereof with or without answers to visit and inspect the said
property and to grant warrant to and authorize the Petitioners to
make the additional building and erections on the ground before
referred to as specified in said statement of facts hereto annexed
20
in terms of the plan and elevation of said intended buildings
herewith produced: And in the event of any opposition being made
to the present application to find the party or parties so opposing
liable to the Petitioners in the whole expenses that may thereby be
occasioned or otherwise to do as to your Lordship may seem
proper.
According to Justice
John Murdoch drawn by me
Statement of Facts
First: That the Petitioners are heritably vested inter alia All and Whole that large
tenement of land sometime ago built and afterwards used as a Meeting house and place of
worship and now by the Petitioners as such shops together with the yard on the south side
thereof, summer house in the south west corner of said yard, vacant ground in the
Northside and east end of said great tenement, draw well in the yard and the whole
privileges thereto belonging conform to Disposition by Charles Tawse and others in favor of
the Petitioners of date fourth day of December Eighteen hundred and forty and Instrument
of Sasine following thereon dated twenty sixth September and registered in the Register of
Sasines kept for Dundee the ninth October Eighteen hundred and forty years which
subjects lie on the South side of the Overgate of Dundee and bounded as specially described
in the said title deeds thereof which are already produced in the action presently depending
before your Lordship at the Petitioners instance against the said deceased William Gall’s
Trustees: and particularly that the said subjects belonging to the Petitioners are bounded in
the east by a property of the Trustees of the said deceased William Gall.
Second: That the Petitioners intend to erect an additional building for a workshop of
three Stories at or near the South east corner of the said great tenement formerly used as a
meeting house and place of worship and now by the Petitioner as a work shop conform to
plan and elevation herewith produced and herein specially referred to.
And therefore they crave that your Lordship will grant warrant to build in terms of
the prayer of the foregoing petition.
Plea in Law
That the unrestricted proprietor of property is entitled to build or make erections
thereon at pleasure without regard to the manner in which contiguous proprietors may be
thereby affected.
In respect whereof &c
John Anderson by whom drawn.
The foregoing Petition and deliverance being intimated to the Senior Bailie of
Dundee.
Dundee 18 July 1846
The Dean of Guild having considered the foregoing Petition with statement of facts
and Plea in Law thereto appended Appoints the same with this deliverance thereon to be
intimated to the Defenders therein named and designed and them to lodge answers thereto
if they any have in the hands of the Clerk of Court within forty eight hours after service with
Certification.
William Thoms D.G
Upon the eighteenth day of July Eighteen hundred and forty six years and by virtue
of the foregoing deliverance of the Dean of Guild of Dundee I James Allan Dean of Gild
officer Dundee passed and Lawfully intimated the said deliverance and the preceding
petition and Statement of Facts and Plea in Law to each of the therein designed George
Bower Leather Currier in Dundee and Catherine Gall residing there by serving each of them
with a full double thereof and I required them to lodge Answers thereto if they any have in
the hands of the Clerk of Court within forty eight hours after service with certification. This I
did conform to said deliverance in all points a full double of said petition, Statement of facts
and Plea in Law and said deliverance with a just copy of service and requisition to the effect
aforesaid thereto subjoined I delivered to each of the said George Bower and Catherine Gall
21
personally apprehended which full double and Copies of service and requisition were
severally signed by me and which said Copies of service and requisition did respectively
have the date hereof and contained the date of deliverance with the names and designations
of John McEwen and Colin Watson both residenters in Dundee Witnesses to the premises
and hereto on this and the preceding page with me subscribing as also subscribing with me
the marginal addition on the preceding page and the Marginal addition of this page.
James Allan
Jas. McEwen Witness
John Watson Witness
Scale above £50
Account of Pursuers Expenses
Sutherland and Murdoch
vs
Gall’s Trustees
1844
Nov 12
Nov 23
29
Dec 26
March 1
March 7
24
31
April 10
11
Drawing Petition for warrant to build
15. 0
3. 6
2. 6
18.0
6. 0
7. 3
1. 0
Agency presenting for warrant
Paid clerks dues
4 Copies for service 3 sheets each
Paid officer intimating
Agency returning Petition with execution
A Visitation appointed
Procurator fee
Paid Clerk for copy interlocutor
Appointment renewed paid copy interlocutor
Attending visitation
Paid Clerks dues
Paid officers dues
Procurator fee respondents Allowed to see plan
Paid Clerk for copy Interlocutor
Borrowing and dues
Drawing replies 3 sheets and copy
Paid dues
Returning process and dues
Agency interlocutor appointing parties to produce Titles
Paid copy Interlocutor
Interlocutor dismissing action
Paid Clerk copy interlocutor
Borrowing and dues
Drawing reclaiming petition & copy
Paid dues
Returning process and dues
Drawing inventory of Title deeds produced therewith 3 sheets & Copy
Paid Clerks dues of productions
Agency allowing Respondents to se Titles & parties to be heard
Paid Clerk for copy Interlocutor
Attending hearing
Agency Interlocutor appointing farther productions
Paid Clerk for copy
Borrowing process and dues
Returning process and dues
Interlocutor appointing parties to attend on ground
Paid Clerk for copy
Borrowing and dues
3.
0.
0.
5.
5.
2.
3.
0.
2.
17.
1.
2.
3.
0.
3.
0.
2.
7.
1.
2.
17.
1.
3.
0.
5.
3.
0.
2.
2.
3.
0.
2.
1. 0
22
6
6
6
0
0
0
6
6
0
0
0
0
6
6
6
6
0
0
0
0
0
0
6
6
0
6
6
0
0
6
6
0
0. 6
1. 0
2. 0
1. 0
3.
0.
2.
7.
1.
2.
6
6
0
0
0
0
1. 0
1. 6
1. 0
1. 0
May 15
June 2
26
June 26
Augt 30
Sept 9
20
13
24
25
26
Oct 9
14
16
17
23
Nov 12
20
22
26
Dec 6
Attending Visitation
Paid Clerks dues
Paid officer
Agency interlocutor appointing parties to state
Paid Clerk for copy
Borrowing to hold record as closed
Writing Minute holding same
Returning and dues
Agency interlocutor closing record
Agency allowing proof
Paid Clerk for copy
Respondents Reclaimed
Agency interlocutor recalling former interlocutor & appointing
Condescendence and Answers
Clerks dues of copy
Borrowing and dues
Drawing Condescendence & copy 7 sheets
Returning process and dues
Paid Clerks dues
Attending hearing when diligence vs Havers was granted at
respondents instance
Agency interlocutor granting diligence
Paid Clerk for copy
Preparing for examination of Havers
Attending examination of Havers 1 hour
Attending examination of Havers 1 hour
Attending examination of Havers 2 hours
Paid for caption & officers dues
Borrowing and dues
Returning and dues
Interlocutor appointing revised Condescendence
Paid Clerk for copy
Defenders Reclaimed
Petition allowed to be answered Agency
Copy Interlocutor
Borrowing and dues
Drawing Answers 5 sheets & copy
Returning and dues
Drawing revised Condescendence 7 sheets
Copy of same
Copy dues
Paid for caption
Agency closing record
-do- allowing proof
Borrowing and dues
Preparing to lead proof
Intimating Proof
Instructing Officer to cite Witnesses
Attending pursuers proof 2 hours
Paid Witnesses
Attending proof 3 hours
Attending proof 1 hour
Paid cab hire for Witnesses
Paid him
Borrowing to answer objections and dues
23
5.
5.
2.
3.
0.
2.
5.
2.
3.
3.
0.
0
0
0
6
6
0
0
0
6
6
6
3.
0.
2.
1.15.
2.
1.
6
6
0
0
0
0
1. 0
5.
3.
0.
5.
5.
5.
10.
3.
2.
2.
3.
0.
0
6
6
0
0
0
0
6
0
0
6
6
1. 6
3. 6
0. 6
2. 0
1. 7. 0
2. 0
17. 0
9. 0
1. 0
1. 0
3. 6
3. 6
2. 0
5. 0
3. 6
2. 6
8. 0
2. 6
15. 0.
5. 0
1. 0
2. 0
2. 0
1. 0
1. 0
1. 0
4. 0
5. 0
1. 0
5. 0
25
1846
Jany 7
13
29
Feby 7
12
13
14
16
19
21
24
Mar 17
21
Apr 23
May 20
Drawing answers 4 sheets & copy
Returning and dues
Intimating diet of proof
Returning process for renewal of proof and dues
Agency commission for proof renewed
Paid Clerk for copy interlocutor
Borrowing and dues
The Defenders having appealed from Commissioners decision and the
Dean of Guild having appointed Bailie Moyes to be examined in
initibillus and renewed diligence and commission for that purpose.
Communicating
Paid Clerk for copy interlocutor
Borrowing and dues
Returning process to get renewal and dues
Renewal granted. Communicating
Paid Clerk for copy interlocutor
Borrowing and dues
Instructing officer to cite 2/6d paid him 1/6d (figures do not add up)
Attending examination of Bailie Moyes
Agency refusing respondents appeal v Bailie Moyes
Paid Clerk for copy Interlocutor
Borrowing and dues
Returning and dues (Pursuers proof reported)
Paid Commissioner and Clerks £1.15/- Clerks dues of Oath 8/Agency time renewed for defenders
Paid Clerk for copy
Attending defenders proof 4 hours
Time renewed for defenders communicating
Paid Clerk for copy
Time renewed for defenders proving. Communicating
Defenders having reclaimed new commissions was granted. Agency
Paid Clerk for copy
Attending defenders proof 9 hours
Attending –do- 1 hour
Time continued for defenders proving. Communicating 2/6d [aid
Clerk for copy 6d
Attending defenders proof 6 hours
Time renewed for defenders communicating 2/6 [aid Clerk for copy
6d
Attending defenders proof 1 hour
-do- 4 hours
Paid D.G. Clerk searching for Petition or Wm Gall for leave to build in
Feby 1837
Writing Mr Gillis Writer Rothsay to precognosæ the Revd Mathew
Fraser and Post. Long letter
Drawing objections to he admissibility of James Gall 7 sheets & copy
Paid dues
Drawing minute craving renewal for pursuer and commissioner to
Rothsay 1 sheet and copy
Paid for Caption and Officer
Agency renewal and Commission granted
Paid Clerk for copy interlocutor
Defenders Reclaimed
Agency refusing Petition
Copy interlocutor and Note
24
1. 2.
2.
2.
2.
3.
0.
2.
0
0
6
0
6
6
0
2. 6
0. 6
2. 0
2. 0
2. 6
0. 6
2. 0
4. 6
5. 0
3. 6
0. 6
2. 0
2. 0
2. 3. 0
3. 6
0. 6
1. 0 .0
3. 6
0. 6
2. 6
3. 6
0. 6
2. 5. 0
5. 0
1. 0
1. 0
1. 0
3. 0
3. 0
1.10. 0
3. 0
5. 0
1. 0
2. 6
2. 6
6.10. 0
1.15. 0
1. 0
6.10. 0
7. 0
3. 6
3 .6
0. 6
3. 6
0. 6
1. 0
June 9
15
June 16
20
29
July 7
10
15
16
17
21
22
30
Augt 1
7
Septr 2
3
4
7
10
Borrowing and dues
Writing Mr GiIlis to fix diet for proof & post
Intg proof at Rothsay & Certificate
Writing Mr Gillis long letter as to examination & with certificate &
prepare long letter
Paid postage
Intimating same to Defenders Agent
Paid for caption v Defenders agent
Defenders having presented a Note craving to be allowed to see Mr
Fraser’s deposition it was allowed to be seen & answered
Agency
Paid Clerks dues of copy Interlr.
Borrowing and dues
Drawing answers 2 sheets & copy
Paid Clerks dues
Returning proof and dues
Note refused and commission renewed. Agency
Paid Clerk for copy interlocutor
Attending Defenders proof 6 hours
Paid caption for process
Time renewed for Defrs communicating
Attending defenders proof 1 hour
-do- 4 hours
-do- 7 hours
Agency appointing procurators to attend Dean
Paid for copy interlocutor
Attending Dean
Paid for copy interlocutor circumduction and allowing pursuer to
lodge Note
Defenders Reclaimed
Agency refusing petition
Paid copy interlocutor
Borrowing and dues
Drawing Minute 1 sheet & copy & dues
Drawing Note for the petitioners 2 sheets and copy
Clerks dues
Returning and dues
Agency interlocutor allowing Minute and Not to be seen
Paid copy interlocutor
Agency interlocutor appointing hearing
Paid Clerk for interlocutor
Attending hearing when interlocutor was granted in terms of minute
Agency
Paid Clerk for copy
Borrowing and dues
Making copy original petition & deliverance thereon & Minute &
Interlocutor to intimate 5 sheets
Instructing officer
Paid him
Returning process
Agency allowing Petitioners to lead farther proof & granting
commission to Mr Duncan
Paid Clerk for copy
Borrowing and dues
Fixing diet with commission & Intg
Instructing office to cite witnesses
25
2. 0
2. 7
2. 6
5.
1.
2.
1.
0
4
6
0
2. 6
3.
0.
2.
12.
1.
2.
3.
0.
1.10.
1.
2.
5.
1. 0.
1.15.
3.
0.
5.
6
6
0
0
0
0
6
6
0
0
6
0
0
0
6
6
0
1. 0
3. 6
1. 0
3.
0.
2.
8.
13.
1.
2.
3.
0.
3.
0.
5.
3.
0.
2.
6
6
0
0
0
0
0
6
6
6
6
0
6
6
0
5.
2.
2.
2.
0
6
6
0
3. 6
0 .6
2. 0
2. 6
2. 6
2. 6
1. 0
1. 0
1. 0
1. 0
1. 0
1. 6
1. 6
1. 0
15
29
Oct 2
3
6
13
20
24
Nov 12
14
Paid him
Attending proof 7 hours
Paid Witnesses
Inconsequence of absence of defenders Agent proof did not proceedreturning process for renewal
Paid for copy
Borrowing and dues
Defenders Agent being still absent returning for renewal & dues
Renewal granted - communicating
Paid for copy interlocutor
Borrowing and dues
Instructing officer to cite witnesses
Paid him
Intimating proof
Attending proof 2 hours
Paid Witnesses
Paid Commissioner & Clerk
Paid Clerks dues of deposition
Returning process and dues
Agency Interlocutor circumducing Mr Fraser’s deposition and making
avizandum
Paid for copy
Agency Interlocutor circumducing and making avizandum
Paid for copy Interlocutor
Defenders Reclaimed
Petition allowed to be answered communicating
Paid for copy Interlocutor
Borrowing and dues
Drawing answers to petition 21 sheets
Clean copy 21 sheets
Clerks dues
Returning process
Agency Interlocutor refusing Petition and of new making avizandum
Paid for copy
Agency decerning in terms of original petition
Paid for copy Interlocutor
Defenders presented petition for extending of reclaiming days and
extension granted
Paid for copy Interlocutor
Paid of caption and officer
Borrowing and dues
Writing Mr Gillis of his account and post
Amount of his account
Writing him remitting same
Paid post officer order
Making out a/c of expenses 4 sheets
Returning and dues
Attending Auditor
Paid him
Clerks dues of a/c
Agency decerning
Incidents during process
Add
Tax off
26
4. 6
1.15. 0
7. 6
2.
0.
2.
2.
2.
0.
2.
2.
5.
2.
10.
6.
2.19.
9.
2.
0
6
0
0
6
6
0
6
6
6
0
0
0
0
0
3.
0.
3.
0.
6
6
6
6
2. 6
0. 6
2. 00
3.10. 0
1. 1. 0
1. 0
2. 0
3. 6
0. 6
3. 6
0. 6
3. 6
0. 6
3. 6
2.0
2. 7
3.16. 0
2. 7
0. 6
4. 0
2. 0
7. 6
15. 0
1. 0
3. 6
5. 0
68.13. 5
2. 6
68.15.11
6. 0. 4
1. 0
4. 0
1. 0
1. 0
4. 0
6. 0. 4
_______
62.15. 7
Dundee 25th November 1846
The Clerk of Court having considered foregoing account of the Pursuers expenses and heard
parties Procurators thereon Taxes the same at Sixth two pounds fifteen shillings and seven
pence Sterling and reported to the Dean of Guild accordingly.
John W. Baxter
John Anderson Esq. Writer Dundee
To John Gillies Writer Rothesay
1846
May
To calling on Mr Fraser and precognising him
Writing therewith & postage
Calling on Mr Fraser Sheriff Clerk and fixing diet of examination
Writing you as to time fixed & postage
Perusing documents sent to prepare of examination of Mr Fraser
June 2 Attending at examination 3 hours
Making Copy for your use 5 sheets
Paid Mr Fraser for his attendance
Writing you with documents
Paid Postage
Paid Commissioner & Clerk
27
6.
3.
3.
3.
6.
15.
5.
10.
3.
1.
18.
3.16.
8
5
4
5
8
0
0
0
4
0
4
2