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Chancellor of Sheilhill v Sir James Carmichael of Bonnynton. [1695] 4 Brn 291 (00 January 1693)
URL: http://www.bailii.org/scot/cases/ScotCS/1695/Brn040291-0641.html Cite as:
[1695] 4 Brn 291
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Chancellor of Sheilhill v. Sir James Carmichael of Bonnynton
1693 and
1695.
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1693. January 10.—The Lords found, The former probation, being only taken before the coming in of the summons, to lie in retentis, he could not be hindered now to adduce, upon his act of litiscontestation, what farther probation he pleased; and that he was not concluded; and that the fear of suborning could not debar him.
Vol. I. Page 543.
1695. December 26.—The Lords advised the probation taken, before answer, in the mutual declarators of property pursued betwixt Carmichael of Bonvnton and Chancellor of Sheilhill, of the haughs called the Park-holm. By the testimonies it appeared that the river of Clyde was their old march, (though rivers are bad neighbours, and unfaithful boundaries, as Lucan says of the Po,) and that there happened a mutatio alvei forty or fifty years ago, which was only proven by one positive witness that it was done by a sudden irruption and outbreaking of the water by a speat; so that Sheilhill alleged it was by a tacit alluvion; which Justinian, £20, Instit, de Rer. Divis. calls incrementum latens, adjecting the same pedetentim and insensibly to my ground. But the Lords found Bonynton's probation more pregnant, both in respect of the witnesses' age and their causa scientiœ; and therefore adjudged the property to him. Some of the Lords proposed, That the evidences on either hand being obscure, whether the change had happened by a water-cut or by alluvion, therefore it might be declared commonty betwixt the parties; which the Sheriff was now empowered to divide by the new Act of Parliament 1695; as is the frequent practice of judges and lawyers in dubious controverted cases, and by them called judicium rusticorum; like Solomon's decision of dividing the child. But the Lords preferred Bonynton. De scindenda difficult ate per rei divisionem inter partes contendentes, vide Vinnium adult. Instit. Qui et ex quibus causis manumittere non licet.
