Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JAMES DALRYMPLE OF STAIR.

Sir John Cheislie
v.
The Laird of Walstoun

Date: 9 July 1675

Click here to view a pdf copy of this documet : PDF Copy

Sir John Cheislie having raised a cognition, before the Sheriff of Lanerk, against —— Baillie of Walstoun, for clearing his right of property or commonty to a piece of marsh ground lying upon their march; Walstoun did raise another cognition before the said Sheriff, by way of re-convention. Upon both which processes an inquest of fifteen were chosen, and the parties did cast lots for the odd man, which befel to Walstoun; so he choiced eight, and Sir John Cheislie seven. There were three witnesses examined for either party, and two common witnesses. The testimonies being perused by the inquest, six voted that it was proven Sir John had commonty in the piece of ground controverted; Eight were not liquid; and the chancellor of the inquest voted not, nor returned any verdict. Whereupon Sir John Cheislie gave in a bill of advocation to the Lords, desiring that they would either declare, that, where six of the inquest voted for commonty, and eight were not liquid, that the inquest and Sheriff ought to proceed to determine commonty; or otherwise, that the Lords would advocate the cause, and determine the probation themselves. Walstoun, having desired to be heard upon this bill, he alleged, That the progress of the cognition being as aforesaid, the same was null, and there would be no further process thereupon; but he had a declarator of property of the ground in question depending, which would determine the whole matter, both as to right and possession; and in which he was content Sir John Cheislie should have a joint probation, upon which the testimonies of the witnesses taken might be renewed. 2do. Whatever were to be done upon either process, he ought to have more witnesses. The Lords advocated the cause upon the bill; and ordained the process and testimonies taken before the inquest, to be produced, to be advised by the Lords; at the advising whereof they would hear the parties, whether there were any further witnesses to be used.

Vol. II, Page 342.