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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Duke of Argyle v. Campbell. [1819] ScotJCR 2_Murray_103 (12 March 1819) URL: http://www.bailii.org/scot/cases/ScotJCR/1819/2_Murray_103.html Cite as: [1819] ScotJCR 2_Murray_103 |
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Page: 103↓
(1819) 2 Murray 103
CASES TRIED IN THE JURY COURT.
No. 17.
PRESENT,
A finding as to the practice of taking wreck, &c. from the sea shore.
Counter actions relative to the right of the Duke of Argyle to take sea-wreck and shell-sand from the shore opposite to the lands of the defender.
“1 st, Whether the Duke of Argyle, by himself or his tenants, has been in the immemorial use of taking sea-ware, or wreck,
Page: 104↓
2 d, Whether such use of taking sea-ware, or wreck, or shell-sand, if any, upon the part of the Duke of Argyle, or his tenants, was with the leave or tolerance of the said Frederick William Campbell, or his predecessors, or tenants, in the foresaid lands.”
Mr Campbell had presented an application to the Sheriff, to interdict the tenants of the Duke from taking wreck and shell-sand from the sea shore opposite to his lands. The Duke declined the jurisdiction of the Sheriff, in a question of heritable rights, and in a maritime case. The objection was sustained; and the case having been carried to the Court of Session by advocation, the Duke brought a declarator to have his right ascertained.
A tenant who has never taken wreck, an admissible witness to prove the practice by others.
It was stated as an objection to the first witness, that being one of the Duke's tenants, he was interested. In his examination
Page: 105↓
Jeffrey, for the defender.—The claim is for the whole barony; and if the Duke is found to have the right, this witness, and all the other tenants, may take it.
A tenant who has taken wreck, inadmissible as a witness.
The same objection was taken to another witness. In his examination in initialibus, he stated, that when in bad health, he gave up his farm to his son, but admitted that he still considered himself tenant. He was then asked, if he ever had taken sand from the place in question; and he answered that he had taken wreck and sand.
The smallest interest excludes a witness.
When the defender afterwards called one of his tenants, the same objection was taken.
Jeffrey.—Our tenants are necessary witnesses,
Page: 106↓
Clerk.—There is no ground for any distinction. If the objection was good in the former case, the amount of the interest is nothing. They are not necessary witnesses, as every servant must know the facts.
I see no room for distinguishing the cases. The tenants on both sides, who take sand, are interested, and I must repeat the same judgment.
A witness examined, whose name was not in the first list served on the opposite party.
An objection was taken to a witness, that his name was not in the list.
Jeffrey.—It is in the discretion of the Court to allow the witness to be examined. Notice was given two days ago, and his name was not left out of the original list, from any negligence or improper motive.
Page: 107↓
Clerk.—They have not examined a single witness, and are not now entitled to this, as they ought to have asked it at the beginning of the trial.
When there is no surprise, and no attempt at any thing improper, I think it my duty to the Jury, and in forwarding the ends of justice, to admit the witness, and that I am not merely entitled, but bound to receive him.
An objection to a written document ought to be stated at the time it is tendered in evidence.
The witness at one time had had the management of the defender's property, and was desired to look at some leases granted during that period.
Clerk.—This is incompetent: the leases are not evidence.
Jeffrey.—The objection is too late.
Before his reply, Mr Clerk wished part of the leases read.
Page: 108↓
Moncreiff opened the case, and contended, that the Duke of Argyle being infeft in the barony of Kintyre, he has the right to the whole coast; or, if that is not sufficient, he has the right in virtue of his commission as Admiral. The defender has no title, as he got no right to the wreck, &c. within high-water mark.
To support his plea, the defender must aver an exclusive possession; but all we maintain is, that there has been a joint possession.
Jeffrey.—This is a simple question of fact, and the detail of law was artfully given to perplex, if not mislead. We deny the accuracy of the statement, and deny that our land has been part of the barony for a century past, at which time the whole right which the Argyle family had to the lands was conveyed to us.
The question is, whether the Duke has had immemorial possession, and such possession as will deprive the defender of a right that would otherwise belong to him.
Page: 109↓
The question under the first Issue is, whether the Duke has possessed for 40 years or upwards. The evidence is not discordant; and you have to say whether the whole does not tend to the conclusion, that in terms of the Issue, the Duke had, &c.
If you are satisfied that he had possession, then you must say whether it was by leave from the defender. This is a proposition which the defender must prove; the Duke is not bound to prove a negative. There is no direct evidence on this point; and the former factor
Page: 110↓
“Verdict for the pursuer on both Issues.”
Counsel:
Clerk,
Moncreiff, and
Fletcher, for the Pursuer.
Jeffrey and
Cockburn for the Defender.
Solicitors: (Agents, J. and M. Ferrier, and Lockhart and Kennedy.)
