Major-General Robertson of Lude v His Grace the Duke of Atholl

Major-General Robertson of Lude,     Appellant


His Grace the Duke of Atholl,     Respondent

House of Lords, 5th July 1815.

Subject_Division of Commonty. —

In an action for division of commonty, objections were stated to the procedure of the sheriff in taking the proof and other procedure before him under remit of the Court, but these were repelled.

The respondent and appellant, being proprietors of lands in the neighbourhood of each other, possessed a common right, or right of commonty, in a piece of ground called the common of Glentilt, as set forth in a previous appeal; and this was an action of division of commonty brought by the appellant’s father to have that common divided under the statute, which action was, after his father’s death, insisted on by the appellant.

The parties’ interested in the common were the appellant and respondent, together with the minister of Blair.

The Court remitted to the sheriff-substitute of Perthshire,

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who took a long proof in presence of the appellant and his agent. Under his authority the common was valued, and by his direction a survey and plan thereof was made out in the manner directed by the Lord Ordinary. The sheriff then pronounced a judgment ascertaining the extent of the commonty, agreeably to the evidence, written and parole, and dividing the same among the parties, in terms of the statute and the remit to him by the Court of Session.

June 30, 1810.

Nov. 18, 1810.

Dec. 5, 1810.

Nov. 29, 1811.

May 22, 1812.

Mar. 9, 1813.

The sheriff having reported the whole of his proceedings to the Court, a state thereof was made up in the usual manner; and a remit made to the Lord Ordinary, who, of this date, pronounced this interlocutor:

“Having considered the foregoing state of the process of division of the commonty of Glentilt, the remit thereof by the Inner House to the Lord Ordinary, with the whole writings referred to in the said state and produced in process, depositions of the witnesses, plans of said commonty and contiguous grounds of those having interest in the same: Also having considered the whole conduct in this business of the sheriff-substitute of Perthshire, who, by appointment of the Court, acted as a commissioner in directing and superintending the proofs, the ascertainment of the marches by the help of Mr David Buist, land-surveyor, and other previous steps necessary for expediting the said division, with the final report made by the said commissioner, as to the manner in which he proposed the said division to be settled and adjusted; and having likewise considered the written objections given in for General Robertson, against the proceedings and report of the commissioner, with answers thereto for the Duke of Atholl, replies and duplies; and having heard a counsel for General Robertson, at considerable length, in support of his objections (the counsel on the other side having declined to say any thing in addition to their written argument) repels the whole objections to the proceedings and report of the commissioner, whether as to the bounds of the commonty, and marches between it, and the several property lands of the parishes, or as to the extent of the shares of the commonty, to which the respective parties ought to be found entitled, or as to the allotments of the several shares in respect of contiguity to the parties’ other several lands, or as to any other matters objected to, ratifies, approves of, and confirms the divisions and allotments proposed, by the said commissioner’s report, which are explained and illustrated by the engraved plan, made out and coloured by the

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said land surveyor, under the commissioner’s direction, according to the testimony of the most creditable of the witnesses, and particularly of such of them as the General has no right to object to; of which engraved plan three copies are now subscribed by the Lord Ordinary as relative hereto; one to be given to the Duke of Atholl, another to General Robertson of Lude, and a third to be kept among the warrants of the decree: Finds, that the several allotments and shares of said commonty as above specified, are to belong to the parties in whose favours such allotments are respectively made, heritably and irredeemably, and to be held by them, and their heirs and successors, as parts and pertinents of their several property lands of consent: Reserves to General Robertson his proportional share of the marle that may be found in the mosses, until the same is exhausted, and finds, decrees, and declares accordingly.”

On several reclaiming petitions by General Robertson, the Court adhered.

Against these interlocutors the present appeal was brought to the House of Lords, but their Lordships affirmed the judgment of the Court below.

Counsel: For the Appellant, Sir Saml. Romilly, John Haggart, D. M’Farlane.
For the Respondent, Wm. Adam, Ar. Fletcher.