Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 BRIEVE OF DIVISION.

Cathcart of Carbiston
v.
James Rochead of Inverleith

Date: 22 February 1772

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The estates of Inverleith and Darnchester having been held pro indiviso by four heirs-portioners and those deriving right from them; James Rochead of Inverleith, as in right of these four heirs-portioners, took out a brieve from Chancery for dividing the lands of Inverleith, directed to the sheriff of Edinburgh, within whose jurisdiction Inverleith lies, (see Heirs-Portioners.) Mr Cathcart of Carbiston, in right of the other fourth, not choosing that the division of Inverleith should proceed before the sheriff, gave in a bill to the Ordinary on the Bills for a warrant to the Chancery to issue brieves for dividing both Inverleith and Darnchester, the last lying in Berwickshire, directed to the macers of Session, as sheriffs in that part. The bill passed of course, no notice of the application having been given to Mr Rochead.

In consequence of this warrant, Mr Cathcart took out brieves of division directed to the macers,—and, upon that account, he insisted that there could be no further procedure on the brieve for division of Inverleith before the sheiff. But it being answered, that the macers had no jurisdiction in the matter; that the warrant which had passed, of course periculo petentis, was totally incompetent; and that no sist of procedure before the sheriff had either been granted or applied for:—The sheriff, (30th August 1771,) repelled the objection, and granted warrant for summoning a jury upon the division, to meet at Inverleith.

Upon this, Mr Cathcart applied, by bill of advocation; which being reported by Lord Stonefield, on memorials:—“The Lords, (22d February 1772,) remitted the cause to the sheriff, simpliciter, in common form.”

It was pleaded by Mr Rochead, that, with respect to brieves of division, the uniform practice has been to direct them to the sheriff; and no instance is on record where they were directed to the macers; and that this is the case of all the pleadable brieves: in the next place, even if this had been competent in point of form, no reason of advocation in the present case could be given for advocating the procedure from before the sheriff. The procedure had been regular in every respect, and therefore the cause fell to be remitted. It was true, that the brieve only related to the lands of Inverleith, because these lands only lay within his jurisdiction; but nothing hindered Mr Rochead to choose to have the one estate divided, and not the other; and if Mr Cathcart choosed to divide Darnchester as well as Inverleith, he had an easy remedy, by taking out a brieve of division of that estate, directed to the sheriff of Berwick.

On a reclaiming petition and answers, the Lords adhered.