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Possession of Corporeal Moveables STUDIES in SCOTS LAW

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Possession of Corporeal Moveables STUDIES IN SCOTS LAW Series Editor Kenneth G C Reid Editorial Board Alan R Barr Sandra M Eden George L Gretton Volumes in the series 1. Ross Gilbert Anderson, Assignation (2008) 2. Andrew J M Steven, Pledge and Lien (2008) 3. Craig Anderson, Possession of Corporeal Moveables (2015) STUDIES IN SCOTS LAW VOLUME 3 Possession of Corporeal Moveables Craig Anderson Lecturer in Law, Robert Gordon University EDINBURGH LEGAL EDUCATION TRUST 2015 Published by Edinburgh Legal Education Trust School of Law University of Edinburgh Old College South Bridge Edinburgh EH8 9YL First published 2015 © Craig Anderson 2015 The author asserts his moral rights. ISBN 978-0-9556332-7-0 British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the written permission of the copyright owner. Applications for the copyright owner’s permission to reproduce any part of this publication should be addressed to the publisher. Typeset by Etica Press Ltd, Malvern Printed and bound by Martins the Printers, Berwick-upon-Tweed Contents Preface vii Table of Cases ix Table of Statutes xv Abbreviations xvii Foreword: Scope and General Approach xxiii 1 The Meaning of Possession 1 2 Historical and Comparative Approaches 24 3 Acquisition of Possession 44 4 Loss of Possession 83 5 Momentary Control 95 6 Symbolical Acts 111 7 Possession of Animals 134 8 Conclusions 181 Index 185 v Preface This book is an amended version of my doctoral thesis, The Physical Element of Possession of Corporeal Moveable Property in Scots Law, submitted to the University of Edinburgh in 2013 and examined in December of that year, with the doctorate awarded in 2014. I must first acknowledge my debt to my supervisors, Dr Andrew Steven and Mr Scott Wortley, and, following Dr Steven’s appointment to the Scottish Law Commission, Professor George Gretton. If this book has been found worthy of inclusion in the series, Studies in Scots Law, then to a substantial degree that is the result of the guidance and support they have given me. Thanks are also due to my examiners, Dr Daniel Carr and Professor David Carey Miller, for their many helpful comments on my thesis. A doctoral thesis represents a substantial commitment of time. It also represents a substantial financial commitment, one which I could not easily have borne without the support of the Edinburgh Legal Education Trust and of my employer, Robert Gordon University. Accordingly, I gladly express my gratitude for their financial support. Finally, my greatest debt, as always, is to my wife, Katherine, who has been a constant support through the twin challenges of writing the thesis and jointly raising our five children, Alexander, Lucy, Charlotte, Harriet and Robert. This book is dedicated to her and to them. Craig Anderson Aberdeen April 2015 vii Table of Cases References are to paragraph numbers Adam v Adam’s Tr (1894) 21 R 676 . 3-81, 6-42 Addison & Sons v Row (1794) 3 Pat 334 . 7-117, 7-123 Allan v Milne 1974 SLT (Notes) 76 . 3-43 Ancona v Rogers (1876) LR 1 Ex D 285 . 2-24, 3-83, 3-88 Anderson v Anderson’s Tr (1892) 19 R 684 . 6-42, 6-43 Anderson v McCall (1866) 4 M 765 . 1-21, 1-54 Arbuthnott v Paterson (1785) Mor 14220 . 6-33, 6-40, 6-41 Armory v Delamirie (1721) 1 Strange 505, 93 ER 664 . 1-05 Arthur v Anker [1997] QB 564 . 3-47 Assessor for Argyll v Broadland Properties Ltd 1973 SC 152 . 7-37 Barbour v Halliday (1840) 2 D 1279 . 1-30 Beggs v Kilmarnock & Loudon District Council 1995 SC 333 . 4-25, 4-26, 4-27 Bell v Andrews (1885) 12 R 961 . 3-37, 3-42, 3-81 Bennet Pringle (Pty) Ltd v Adelaide Municipality 1977 (1) SA 230 (ECD) . 3-98, 3-99 Birrell v City of Edinburgh District Council 1982 SLT 111 . 1-19 Black v HM Advocate 1974 JC 43 . 3-42 Blades v Higgs (1865) XI House of Lord Cases (Clark’s) 621, 11 ER 1474 . 7-29 Bogle v Dunmore & Co (1787) Mor 14216 . 6-14 Boskabelle Ltd v Laird 2006 SLT 1079 . 6-27 Botha v Mazeka 1981 (3) SA 191 . 6-23, 6-39 Boyd v Fraser (1897) 13 Sh Ct Rep 211 . 3-81 Breichan v Muirhead (1810) Hume 215 . 6-64 Bridges v Hawkesworth [1843-60] All ER Rep 122 . 2-31, 3-31, 3-33, 3-34 Brighton v Clift 1970 (4) SA 247 (R) . 3-92 Broughton v Aitchison 15 Nov 1809 FC . 1-51, 1-54 Brown v Brash [1948] 2 KB 247 . 4-26, 4-27 Brown v Watson (1816) Hume 709 . 3-22, 3-23, 3-24, 3-25, 3-27, 3-31, 3-38, 7-39 Burnett’s Tr v Grainger 2004 SC (HL) 19 . 3-34 Cape Tex Engineering Works (Pty) Ltd v SAB Lines (Pty) Ltd 1967 (2) SA 528 (CPD) . 2-13, 3-58, 3-82, 4-36 Carmichael v Black; Carmichael v Penrice 1992 SCCR 709 . 1-35, 3-29, 3-47, 3-48, 3-64, 3-67 Carrier’s Case, The (1473) 64 Selden Society 30 . 1-26, 1-27 Carse v Halyburton (1714) Mor 9125 . 6-45 Cartwright v Green (1802) 2 Leach 952, 168 ER 574 . 1-26, 1-27 Case of Swans (1591) 7 Coke Reports 15b, 77 ER 435 . 7-65, 7-103 Clark v Maloney (1840) 3 Harrington (Del) 68 . 1-06 Cohen, Re, deceased [1953] Ch 88 . 6-64 ix Table of Cases x Cooper v Barr and Shearer (1873) 11 M 651, revd (1875) 2 R (HL) 14 . 3-82, 3-90, 4-33, 4-34, 4-35, 4-36 Corporation of Glasgow v Northcote (1921) 38 Sh Ct Rep 76 . 3-33 Costello v Chief Constable of Derbyshire Constabulary [2001] 1 WLR 1437 . 1-05 Crawford v Kerr (1807) Mor (App Moveables) 2 . 1-52 Croal v HM Advocate 1991 GWD 40-2445 . 5-20 Cryans v Nixon 1955 JC 1 . 3-32, 3-43 Cunynghame v Logane (1534) Balfour’s Practicks 166 . 6-28 Dalgleish v Glasgow Corporation 1976 SC 32 . 5-17 Dewar v Countess of Moray (1661) Mor 1816 . 3-47 Donald v Boddan (1828) Syme 303 . 7-120, 7-125, 7-135 DPP v Brooks [1974] AC 862 . 1-24 Eadie v Young (1815) Hume 705 . 1-22, 5-09, 5-10, 5-12, 5-13, 5-14, 6-54, 6-57 Earl of Fife’s Trs v Sinclair (1849) 12 D 223 . 1-19 Earl of Mar v Laird of Pittarro (1567) Balfour’s Practicks 167 . 6-28 Edwards v Corrance (1903) 19 Sh Ct Rep 219 . 3-37, 3-81 Elliot of Harwood Trust, Trustees of v Feakins 2013 SLT (Sh Ct) 108 . 1-19 Elwes v Brigg Gas Co (1886) LR 33 Ch D 562 . 2-32, 3-35 Fraser v Frisby (1830) 8 S 982 . 6-44 Fry’s Metals Ltd v Durastic Ltd 1991 SLT 689 . 3-88 G and C Finance Corporation Ltd v Brown 1961 SLT 408 . 1-22 Gauld v Middleton 1959 SLT (Sh Ct) 61 . 5-15, 6-51 Gibson v Forbes (1833) 11 S 916 . 6-58 - 6-61 Gibson v May (1841) 3 D 974 . 6-46 Girdwood & Co v Pollock, Gilmour & Co (1827) 5 S 507 . 3-64 Gough v Everard (1863) 159 ER 1 . 6-10 Grant v Smith (1758) Mor 9561 . 6-25, 6-27, 6-50 Grant’s Tr v Grant (1829) 7 S 420 . 6-46 Gray v Cowie (1684) Mor 9121 . 6-31 Groenewald v van der Merwe 1917 AD 233 . 2-13, 2-28, 3-19, 3-20 Hambleton v Callinan [1968] 2 QB 427 . 3-62, 3-72, 3-73, 3-74 Hamps v Darby [1948] 2 KB 311 . 7-55, 7-57 Harris v Abbey National 1997 SCLR 359 . 3-31 Henderson v Young 1928 SLT (Sh Ct) 30 . 3-37, 3-42, 3-81 Henry v Dunlop & Co (1842) 5 D 3 . 1-16 Hewat’s Tr v Smith (1892) 19 R 403 . 6-01, 6-47 Hibbert v McKiernan [1948] 2 KB 142 . 2-34 Hill v Buchanan (1785) Mor 14200, affd (1786) 3 Pat 47 . 6-34, 6-51 HM Advocate v Huie (1842) 1 Broun 383 . 7-41 HM Advocate v Macrae (1888) 15 R (J) 33 . 7-43 Hobson v Impett (1957) 41 Cr App R 138 . 5-25 Hogg v Armstrong and Mowat (1874) 1 Guth Sh Cas 438 . 3-34 Holmes v Payne [1930] 2 KB 301 . ..
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