Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 COMMONTY.
Subject_3 Found that a brewhouse, with the utensils, of which the half had been sold pro indiviso, was such a subject, as that the action de communi dividendo was applicable to it, No person can be compelled to remain longer in communione than he chooses.

Hugh Milligan and Co
v.
Alexander Barn-Hill

Date: 8 February 1782

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[Fac. Coll. IX. 51; Dict. 2486.]

Monboddo. When a subject is indivisible, any proprietor may insist for a roup, both by the civil law and according to the opinion of our lawyers.

Braxfield. It is founded in the common law of Scotland, that no man can be bound to remain in any general or particular communion longer than he chooses. It is said that, by the common law of Scotland, commonties could not be divided; but it does not follow that common property could not be divided. Commonties were established, by the will of the proprietor, for the joint use of many. When improvements began to be introduced, it was considered that to suffer land to be enjoyed in common was an abuse of property, and this gave rise to the statute 1695.

Alva. The parties have entered into a community: no one of them can depart from it.

Gardenston. There is no subsisting copartnery here.

President. How can a better rule be followed than that which, from a similar necessity, is followed with respect to a ship?

On the 8th February 1782, “The Lords repelled the objection.”

Act. J. M'Laurin. Alt. A. Wight. Reporter, Kaimes.

Diss. Alva.