Scottish Court of Session Decisions

Subject_1 JURISDICTION.

Sir Robert Gordon
v.
Dunbar of Newton

1754, Feb. 1.
Case No. No. 64.

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Sir Robert pursued declarator of property and of the marches of his lands of Roseisle wherein I gave an act before answer, and remitted to the Sheriff of Moray to take the the proof and to try the case by an inquest and to set march stones. The Sheriff sum-moned an inquest of some of the principal heritors in that part of the county, before whom a very laborious proof was ted that took up several days, and in which the Jury appeared to have bestowed a great deal of pains and travel the whole ground with most of the witnesses, marking the places deposed to by them severally, and at last returned a very pointed verdict, bearing, that after consideration of the whole proof on both sides, “we find from our own conviction that the boundaries are &c. The proof and verdict being reported was heard at our Bar yesterday and this day in course of the ordinary action roll. The whole verdict was acquiesced in by both parties except as to a part of the march betwixt Sir Robert's lands of Roseisle (whereof two-thirds belonged to the Duke of Gordon who was not a party) and Mr Dunbar's lands of Keams,—as to which Sir Robert objected that both parties had brought proofs of these marches but the inquest had followed neither of these proofs, but made a march of their own different from both, without any proof, as if they had been arbiters and not Judges or assizers, which they had no power to do; that he had proven his march to the rocks at the sea shore 70 paces further east. than they had given him by 14 witnesses, whereas Mr Dunbar had proven his march a great deal farther west than the inquest had given him but only by six witnesses; and made many ingenious observations on their testimonies and credibility, so that his proof was much more pregnant, and the Jury's verdict had no other foundation but the oath of one witness. The defender's procurators again disputed our power to review or alter the verdict, and said at the same time that his proof was more pregnant than Sir Robert's, and made also a variety of observations on the proof led for Sir Robert to reduce his number of witnesses, and yet for peace were willing to acquiesce in the verdict, which they said was strongly supported by one witness, Ross a mason, who about 1730 or 1731 had taken a tack from Duke of Gordon and Sir Robert of the whole quarries on the shore, (which were truly the lands controverted in the process,) and called their ground officer to bring with him some of the oldest and most intelligent of the tenandry to show him the march in the quarries at the shore, and four of the oldest of them accordingly came; and when they came to the place that Sir Robert calls the march, they did not stop there but carried him further west till they came to the place where the verdict fixes the march, and told them that that was the march, though he several times cautioned them to be cautious what they did for that it might afterwards be of importance; and that in the place that they fixed on as the march he cut the letters D G on the rock which has since been broken off, and that there were other witnesses concurring that that was the place pointed out to him by these men, at least within two or three paces of it. We alt agreed that we were not tied down that we could not after the verdict, and Milton, Minto, and Kilkerran thought the marches proved by Sir Robert ought to be found the marches, for that his proof was most pregnant But the most of us thought that great regard was due to a verdict of 15 sworn men of such rank and character in whose presence the proof was taken, and who appeared to have perambulated the ground with most of the witnesses: That the act appointing the proof in criminal trials to be taken in presence of the Jury was a most valuable law: That in proofs of marches every one must have observed that the witnesses have generally so great a bias to one side or to the other that an indifferent person has great difficulty to believe either side: That here the Jury did not act arbitrarily to make a march, but upon their great oath find that to their conviction the boundaries are such as they describe; and that therefore we who did not see the proof taken, nor ever saw the ground, ought not without the clearest proof judge against what they on their great oath report they were convinced of; and accordingly it carried to approve the report.