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Scottish Court of Session Decisions >>
Menzies of Pitfoddels v Thomson of Arduthie. [1679] 3 Brn 310 (00 January 1678)
URL: http://www.bailii.org/scot/cases/ScotCS/1679/Brn030310-0394.html
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL Subject_2 SUMMER SESSION.
Menzies of Pitfoddels v. Thomson of Arduthie
1678 and 1679.
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1678. November 14.—Menzies of Pitfoddels, and Mr James Thomson of Arduthie, pursue mutual declarators of their rights of property, commonty, pasturage, and molestation upon the muir of Muirsky: wherein Pitfoddels craved to be preferred in the probation, because more pregnant in his condescendence; and he had a bounding evident, (very old,) extracted out of the Bishop of Aberdeen's register, which Mr James had not; and that Hay of Urie, Mr James's author, had homologated and acknowledged it, by taking a transumpt thereof.
Notwithstanding of all which qualifications, the cause being reported to the Lords, they granted a conjunct probation to both parties for proving their libels; which some thought singular. Vide infra, 24 th February 1679.
Vol. I. Page 20.
1679. February 25. —In Arduthie's case with Pitfoddels, (14th Nov. 1678,) the Lords refused a reexamination, of the witnesses; but ordained Glenfarquhar, who was the judge in the commission, and in town, to be examined on the sins of omission and commission represented in Arduthie's bill, and whereon he craved a reexamination of the witnesses, there being much trinqueting alleged therein.
Vol. I. Page 44.
1679. July 29. —This day was debated the report of the commission, in the cause between Pitfoddels and Mr James Thomson of Arduthie, (14th Nov. 1678;) and the Lords, in respect the testimonies of several witnesses were neither subscribed by the judge nor witness, and upon the account of sundry other informalities, as adding, interlining, &c. they granted a reexamination and a new commission to Newton and Pitmedden.
Vol. I. Page 54.
1679. November 21. —In the action, Mr James Thomson of Arduthie against the Laird and Lady Pitfoddels, (14th Nov. 1678,) the Lords having considered the probation adduced by both parties, they find and declare that the march betwixt the barony of Maryculter and the barony of Ury, is to begin at the west part of the muir, nearest to the south-east nook of the black folds of Brach mont, where it is found proven that the cross of Brachmont stood, and that the same proceeds in a right line eastward to that part of the muir on the east hand that is nearest to the side of Corsley. And ordain the Lords Newton and Pitmedden, who formerly visited the bounds, to set marches in the said muir of Muirskie accordingly. And declare, that that part of the muir on the north side belongs in property to Menzies of Pitfoddels, and that Mr James Thomson has no right of commonty or servitude thereupon; and that that part of the muir that lies on the south side of the line, belongs in promiscuous pasturage to Pit foddels and Mr James, according to their several interests.
For clearing the Lords at advising, Mr James produced a scheme or diagram of the muir, and the whole marches controverted.
