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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Marquis of Annandale v Sir Patrick Maxwell. [1711] Mor 7406 (4 December 1711)
URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor1807406-115.html
Cite as: [1711] Mor 7406

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[1711] Mor 7406      

Subject_1 JURISDICTION.
Subject_2 DIVISION IV.

Jurisdiction of the Court of Session.
Subject_3 SECT. II.

Causes in which the Court cannot judge in the first Instance.

The Marquis of Annandale
v.
Sir Patrick Maxwell

Date: 4 December 1711
Case No. No 115.

The Lords are not judges of perambulations and molestations in the first instance; and they refused to advocate a brief of perambulation, though it was raised at the instance of the stewart of a stewartry, and directed to his own deputy.


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The Marquis of Annandale having some lands lying contiguous to Sir Patrick Maxwell of Springkell's lands, the marches whereof were debateable and unclear, the Marquis takes forth of the chancery a brieve of perambulation, directed to the stewart-depute of Annandale, for settling the controverted marches betwixt them. Of this brieve, Sir Patrick Maxwell raised an advocation to the Lords, on these reasons, 1mo, The judge to whom it is directed is most incompetent and suspected, being the Marquis's own depute, he being principal stewart: 2do, Some of the lands lie within the Duke of Queens-berry's regality of new Dalgarno, and who will be a more fit and impartial judge: 3tio, Sir Patrick has a declarator of property of these lands, craved to be perambulated, depending, which is a prejudicial action, and must be first discussed. Answered, The cause must necessarily be remitted, seeing the Lords are not judges to perambulations and molestations in the first instance, as appears by the 79th act 1579, and act 42d 1587, these causes being best discussed on the ground of the lands by a sworn inquest of neighbouring gentlemen, where the judge, witnesses, and inquest, can visit and perambulate the marches, which the Lords cannot possibly do at Edinburgh, but behoved to remit it ad probos et fideles homines patriæ; and therefore Stair, B. 4. tit. 3. § 14. & B. 4. tit. 27. says, it must be remitted to be tried in the country, there being no remeid to clear marches, but to red them on the ground controverted. And to the first reason of advocation, it was answered, There is nothing more usual than for principals to pursue actions before their own deputies. But here it is the concern of Graham of Mosknow, Irvine of Cove, and other neutral gentlemen, as well as the Marquis's. To the 2d, Non constat any of them lie in a regality, it is gratis dictum; but though it were, the the regality is situated within the stewartry, and so has no privilege. To the 3d, Esto he had a declarator of property, the same is most compatible with this perambulation, which is actio finium regundorum; they are not quarrelling his right of property: The only quarrel here is about the marches, which his property cannot hinder. The Lords repelled the reasons of advocation, in respect of the answers, and remitted the cause back to the stewart-depute.

Fol. Dic. v. 1. p. 496. Fountainhall, v. 2. p. 682.

The electronic version of the text was provided by the Scottish Council of Law Reporting     


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URL: http://www.bailii.org/scot/cases/ScotCS/1711/Mor1807406-115.html