Earl of Kintore v. Kintore's Trustees

Observed that the Court might, on such a specific statement being made and substantiated, interfere with the manner in which the Sheriff exercised his discretion in carrying out the Act.

On 8th October 1884 the Sheriff-Substitute ( Dove Wilson ) in respect of contingency conjoined the two petitions, and before answer remitted to Mr Walker, land valuator, Aberdeen, and Mr Mitchell, Kinross, to inspect and adjust the value of the lands proposed to be excambed, and settle the marches thereof, and to report upon oath whether the proposed exchange would be just and equal, all in terms of the statute.

One of the defenders' objections seems to point to the boundary having been uncertain before the present proceedings commenced. If that had been so the defenders should have raised that point by declarator, and have had it settled before the inspection took place. At the inspection all parties concurred in holding that the existing line of boundary was known and settled.”

Lord Rutherfurd Clark —I am of the same opinion. If it had been shewn the Sheriff-Substitute had acted in any way illegally, the trustees would have been entitled to redress. But it has not been shewn that the Sheriff-Substitute acted outside the statute. I do not know whether we can interfere with his discretion. I rather think that it is possible that in some circumstances we might. But there is no case stated here to justify our interference.

Lord Young —Perhaps your Lordships will permit me to add what I intended to say but omitted, very much in the language which Lord Rutherfurd Clark has just used, that I think we may interfere with the discretion of the Sheriff, but then, as I pointed out in the course of the debate, we should have required a specific statement of the particulars in which the Sheriff is said to have erred, and the alterations which the party complaining proposed to have in substitution for what the Sheriff had done.