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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> James Dyce Nicol, Esq. of Ballogie, and Others v. Rev. W. Paul, D.D., Minister of the Parish of Banchory-Devenick [1867] UKHL 2_Paterson_1458 (14 April 1867) URL: https://www.bailii.org/uk/cases/UKHL/1867/2_Paterson_1458.html Cite as: [1867] UKHL 2_Paterson_1458 |
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Page: 1458↓
(1867) 2 Paterson 1458
REPORTS OF SCOTCH APPEALS IN THE HOUSE OF LORDS.
No. 59
Subject_Teinds — Old Decreets
of Valuation — Subjects omitted — Augmentation of Stipend —
A
minister of a parish, in seeking augmentation of stipend, alleged, that a valuation of the barony of
F.,
![]()
dated
1682, omitted
to value the teinds of parts of the lands of B.,
C.,
and
D.,
in such barony; also, that a valuation of the barony of P.,
dated
1709, omitted
certain
lands therein.
Held (affirming judgment), That as the
decrees
![]()
did
not in terms purport to
contain
a valuation of all the lands in such baronies, it
was
open to the minister to lead a proof of his averments.
The
Commissioners
of Teinds had no authority to
declare
lands prospectively not to be liable to teinds—per
Lord .Cranworth
1
This was
an appeal against the interlocutor of the Second
Division,
which
found,
that, “according to the
construction
and effect of the
decree
of valuation of 1682, the teinds of those portions of the barony of
Findone,
if any,
which
are not embraced
within
the special subjects enumerated in the rental produced by the pursuer, and adopted as the basis and limits of the
decree
of valuation, are unvalued, and that the teinds of the lands of Barclayhill,
Calsayend,
and Meddens, mentioned in the said
decree,
are not valued by the said
decree;
that according to the true
construction
and effect of the
decree
of valuation of 1709, the teinds of those portions of the barony of Portlethen, if any,
which
are not embraced
within
the special subjects enumerated in the prepared state of the proof
which
forms
the basis and limit of the
decree
of valuation, are unvalued,” etc.
The _________________
1 See previous report
1 Macph. 1014: 3 Macph. 482:
37 Sc. Jur. 228.
S.C. L. R. 1 Sc. Ap. 127:
5 Macph. H. L. 62:
39 Sc. Jur. 417.defenders
having appealed against this interlocutor, in their
printed
case
gave the
following
reasons
for
reversing the interlocutor:—1. Because the teinds of the
whole
lands and barony of
Findone,
and of the
whole
other lands mentioned in and embraced by the
decreet
of valuation of
Footnote
_________________
Page: 1459↓
The respondent in his
printed
case
gave the
following
reasons
for
affirming the interlocutor:— 1. That the
decrees
of valuation of 1682 and 1709
do
not instruct, that the lands specified in articles 10, 11, and 14 of the respondent's revised
condescendence
were
valued
for
teind under said
decrees,
and that it is
competent
to inquire
whether
said lands
were
or
were
not included in the subjects valued by said
decrees.
2. That the teinds of the
whole
lands and barony of
Findone,
etc.
were
not valued by the
decree
of 1682; and that no lands
were
valued by said
decree
except the special subjects enumerated in the rental produced by the pursuer of the valuation, and adopted as the basis and limits of the
decree.
3. That by the
decree
of 1682, the lands of Barclayhill,
Calsayend,
and Meddens, are expressly excepted
from
the valuation, and
declared
not to be teindable subjects, and therefore incapable, as at the
date
of the
decree,
of being made the subjects of a process of valuation. 4. That the teinds of the
whole
lands and barony of Portlethen
were
not valued by the
decree
of 1709, and that those portions only of the said lands and barony
were
thereby valued,
which
are enumerated in the prepared state of the proof referred to, and incorporated in the
decree.
5. That the said lands of Barclayhill,
Calsayend,
and Meddens, being now teindable subjects, are liable to be localled on
for
stipend to the extent of one
fifth
of their rental. 6. That it is incumbent upon the appellants to instruct, that the other lands belonging to them,
condescended
on by the respondent as unvalued, are included in the subjects
falling
within
the
decrees
of 1682 and 1709; and, in any view, it is
competent
for
the respondent to instruct, that the lands
condescended
on by him are
distinct
and separate subjects
from
the lands or portions of land valued by the said
decrees.
7. That inquiry into the extent of the lands embraced in the said
decrees
of valuation, and the existence of unvalued lands belonging to the appellants, is not barred by the proceedings in
former
localities, or by the
circumstance
of the minister of the parish of Banchory-
Devenick
having received aid
from
Exchequer. Authorities:—
Duke of Buccleuch v.
Connell,
4
D.
157;
Kirkland v.
Cathcart,
5
D.
122;
Scott v. Kerr,
2 Sh. & M'L. 968; Ersk. ii. 10, 34; ii. 6, 18;
Cameron v. Macpherson,
15
D.
657. As to prescription—Ersk. iii. 7, 2: iii. 7, 8: iii. 7, 13; Stair, ii. 12, 22;
Forbes
on Tithes, 331.
Lord Advocate (
Gordon),
Sir R. Palmer Q.C.,
and
Forbes,
for
the appellants.
The Attorney General (
Rolt), and
Hall, for
the respondent.
Cur.
adv. vult.
Cranworth
Lords, the
case
in
which
your Lordships are about to pronounce judgment, is an appeal against part of an interlocutor pronounced by the Second
Division
of the
Court
of Session in an action of modification and locality,
which
was
brought before the
Court
by the Rev.
William
Paul,
Doctor
of
Divinity,
minister of the parish of Banchory-
Devenick,
in the
county
of Aberdeen.
That proceeding was
instituted in order to have an increase to his salary as minister of the parish
fixed
upon
certain
lands in the parish of Banchory-
Devenick
of
which
he
was
minister,
which
he alleged to have never been valued
for
teind. That proceeding
was
commenced
by a summons on the 25th March 1862, and the
Court
of Teinds (
which
is substantially the
Court
of Session) made a remit thereupon to the Lord Ordinary to examine,
whether
there
were
any
free
teinds. The minister of the parish,
Dr.
Paul, on that lodged a minute stating, that there
were
Page: 1460↓
The cause
having been remitted to the Lord Ordinary, the parties then
went
into proof, and the Lord Ordinary made a report,
whereby
he
found,
that the question
whether
there are or are not
free
teinds
depends
on the question,
whether
the
decreets
of valuation relied on relate to the
whole
lands or only to parts of them. Substantially he may be taken to have
found
for
the heritors, that is, the respondents,
in omnibus against the
claim
of the minister.
It is necessary to call
your Lordships' attention shortly to the statements of the
condescendence
and the answers to them. The
condescendence
on the part of the pursuer
consisted
of various statements, that particular lands in the parish
which
he sets
forth
in the
different
articles of the
condescendence,
never had been valued
for
teind, and therefore remained liable to his
demand.
The Inner House having
decreed,
that if he
could
establish that there
were
free
teinds, he
was
entitled to an augmentation, the answer of the heritors
was,
that all the lands on
which
he so
condescended
had in substance already been valued
for
teind, and therefore none remained liable to the augmentation of his salary.
It is not necessary to trouble ourselves with
many of these articles of
condescendence,
because the question is eventually narrowed to the point,
whether,
in respect of two particular portions of land, the barony of
Findone,
or some of the lands therein, and the barony of Portlethen, the heritors have or have not made out, that the
whole
of those lands had been valued
for
teind. The heritors relied, in respect of the barony of
Findone,
upon a
decreet
of valuation made under the Statute of
Charles
I.
dated,
I think, in the year 1682,
which
valuation, they
contended,
embraced the
whole
barony of
Findone.
With
regard to the barony of Portlethen, they relied not upon that
decreet,
but on another
decreet
in the year 1709,
which,
they
contended,
exhausted the
whole
barony of Portlethen.
The statement of the minister on the subject of the lands of Findone
is
found
in the 10th and 11th articles of the
condescendence.
The 10th is this:—“The
foresaid
lands of Barclayhill, (those are some lands
which
have been already mentioned as being in
Findone,)
which
were
occupied, at the
date
of the summons, by Alexander Leper,
formed
part of the barony of
Findone.
The said
decreet
of valuation
does
not value or
fix
the teind of the said lands of Barclayhill, Neither
does
the
decreet
value or
fix
the teind of that portion of the lands of Badentoy, possessed by James Mowat
for
a money rent, or the teind of any part of the lands of
Calsayend
and Meddens. These lands of Barclayhill,
Calsayend,
Meddens, and that part of the lands of Badentoy, occupied by James Mowat at the
date
of the
decree
at a money rent,
which
now belong to the
defender,
James
Dyce
Nicol, Esq., are all undervalued
for
teind. The present rental of these lands amounts to not less than £534, one
fifth
whereof,
for
teind, is £106 16
s.”
Then by the next condescendence
they state, that a large extent of the lands and barony of
Findone
was,
at the
date
of the said
decree,
uncultivated and partly in moss. These
waste
and moss lands
were
not included in the
decree
along
with
the arable lands,
which
alone
were
thereby valued, and in respect of
which
the tenants paid victual rent. The
following
subjects
were
waste
or moss lands at the
date
of the
decree,
and are unvalued, but have now been improved and
converted
into teindable subjects. I need not trouble your Lordships
with
stating them in
detail.
With
regard to Portlethen, the 14th
condescendence
states, that the teinds of part of the lands and barony of Portlethen, and also part of the lands of Balquhairne,
Clashfarquhar,
Auquhorthies, and others, all lying
within
the parish of Banchory-
Devenick,
were
valued by
decree
of the Lords
Commissioners,
dated
19th January 1709,
following
upon a
certain
summons,
which
Page: 1461↓
I have stated that the Lord Ordinary reported against the minister and in favour
of the heritors. It is unnecessary to say more on this point than that in
fact
he reported in
favour
of the heritors as to almost everything, but
certainly
as to the lands of
Findone
and Portlethen.
The case
was
then brought by reclaiming note before the Inner House, and the Inner House then pronounced the interlocutor
which
forms
the subject of the present appeal. That interlocutor
was
pronounced on the 5th of
February
1865, and is as
follows:—“Recall
the interlocutor
complained
of, in so
far
as regards the objections stated by the minister in the 10th, 11th, and 14th articles of the revised
condescendence.”
Those are the articles to
which
I have referred; “and
find
that, according to the true
construction
and effect of the
decree
of valuation of 1682, the teinds of those portions of the barony of
Findone,
if any,
which
are not embraced
within
the special subjects enumerated in the rental produced by the pursuer and adopted as the basis and limits of the
decree
of valuation, are unvalued:
Find,
that the teinds of the lands of Barclayhill,
Calsayend,
and Meddens, mentioned in the said
decree,
are not valued by the said
decree:
Find,
that the terms of the said
decree
are not such as to exclude a proof or inquiry before answer, that the teinds of the parcels of lands mentioned in the 11th article of the
condescendence,
or any of them, are unvalued.” So much as to
Findone.
Then the
Court
proceeds to
find,
that, “according to the true
construction
and effect of the
decree
of valuation of 1709, the teinds of those portions of the barony of Portlethen, if any,
which
are not embraced
within
the special subjects enumerated in the prepared state of the proof
which
forms
the basis and limit of the
decree
of valuation, are unvalued;
Quoad ultra, adhere to the Lord Ordinary's interlocutor; and remit to his Lordship to
direct
such inquiry as may be rendered necessary by this interlocutor, and to proceed
further
as shall be just; reserving in the mean time all question of expenses.”
The ground on which
the Inner House proceeded as to the lands
comprised
in the 11th and 14th articles of the
condescendence,
was,
that it
did
not appear on the
face
of the
decrees
of 1682 and 1709, that the lands
which
were
thereby valued
for
teinds must of necessity include all the lands referred to in those two articles.
Where
a
decree
purports in terms to have valued all the lands of a parish,
for
the purpose of ascertaining the teind to
which
the heritors are liable, no question
can
afterwards be raised as to any of the lands
which
it embraces being teindable. The
decree
concludes
everything. So,
where
it purports to have valued any part of a parish known by some general
designation,
as a barony, no question
can
be afterwards raised as to the lands included under that
designation,
except by shewing, that the lands now passing under that
designation
comprise
subjects
which
did
not
form
part of
what
was
valued under that same name by the
decree.
The Court
below
were
of opinion, that though, possibly, the lands valued by the
decree
of 1682 as lands of
Findone
may
comprehend
the
whole
barony other than Barclayhill,
which
is mentioned in the 10th article, yet that is not the necessary
construction
of the
decree;
so as to the lands in Portlethen, referred to in the 14th article. The
Court,
therefore, by their interlocutor of the 5th
February
1865, allowed the parties to go to proof on the point,
whether
the valuations
did
include the
whole
of the lands of these two baronies of
Findone
and Portlethen, excluding, however, the lands
comprised
in the 10th article.
The ground on which
the appellants
complain
of this interlocutor is, that the
decrees,
fairly
interpreted,
do
necessarily
comprise
all the lands
which,
at the respective
dates
of the
decrees,
constituted,
and now
constitute,
the barony of
Findone
and the barony of Portlethen.
Whether
they are
warranted
in the
contention
depends
entirely on the true
construction
of the
decrees
themselves.
And first,
as to the
decree
of 1682, relating to
Findone,
it appears to have been made in a process of valuation prosecuted by one Alexander Bannerman, an heritor in the parish of Banchory, against Mr. James Gordon, parson of the parish, and the then bishop of Aberdeen. The
decree,
after referring to the statutable authority under
which
the
Court
was
acting, proceeds thus:—“And true it is and of verity that the teinds, parsonage, and vicarage of the sds. persewars, their lands, baronie, and others underwritten—viz. the lands and baronie of
Findone,
the lands of
Cookstoune,
Calsayend,
Meddens, Badentoy,
with
their pertinents, lying
within
the parochine of Banchory-
Devenick,
and sheriffdome of Kincardine, are yet unvalued.” It then, after stating
Page: 1462↓
The Commissioners
then, after stating the proceedings taken
for
verifying the rental, go on thus to make their valuation;—“The sd.
Commissioners
have
found
and
declared,
and hereby
find
and
declare
the
constant
rent and true availl of the sd. lands in stock and teinds, both parsonage and vicarage, to be now and in all time
coming,
the particular soumes of money and quantities of victuals after specified, vizt. the sd. lands of
Findone,
formerly
possesst by the sd. Robert Hunter, and now by
Wm.
Smith, to be
worth
in stock and teind, parsonage and vicarage, the number of 20 bolls meill and 20 bolls beir, the teind
whereof
extends to the number of 4 bolls meill and 4 bolls beir:
Item, that part of the sd. lands of
Findone,
possesst by the sd. Richard Bannerman, the number of 20 bolls meill and 20 bolls beir, in stock and teind; the teind
whereof
extends to the number of 4 bolls meill and 4 bolls beir:
Item, the milne of
Findone
and Milne Pleugh and
croft
thereof possesst by the sd. Robert Anderson, the number of 24 bolls victualls, meill, and beir, and £8 money in stock and teind; the teind
whereof
extends to the number of 4 bolls, 3
firlots,
and one
fifth
part of one
firlot
of victuall, and £1 12
s. money.” I
do
not think it important to refer to the rest of the
decree.
The appellants contend,
that the valuation must necessarily be held to include the barony. They rest their argument on these grounds. The barony of
Findone
certainly
formed
part of the lands libelled; the rental put in by the heritor is stated to be a rental of the
whole
lands libelled, and though the rental
does
not in terms mention the barony, yet it enumerates three persons as being tenants in
Findone,
besides a
fourth,
who
was
tenant of Barclayhill,
which,
by the tenth article of the
condescendence,
is admitted to
form
part of the barony. The necessary inference, therefore, (the appellants say,) is, that these
four
subjects
constituted
the
whole
of the barony. It
would
otherwise be untrue to say, that the rental
was
a rental of the
whole
lands libelled.
But is this a legitimate inference from
the language af the
decree?
I
cannot
think that it is. Suppose the
fact
to have been, that the barony at the time of the
decree
comprised
not only the
four
subjects specifically mentioned, but also mosslands yielding no rent, but held by the heritor himself, it
would
not be inaccurate to say, that the rental, though silent as to these lands,
was
a rental of the
whole
lands libelled. It
would
state all the rent yielded by the lands libelled, and so might
fairly
be
described
as a rental of all the lands libelled. On this very short ground I have satisfied myself, that the interlocutor properly admitted the parties to proof.
The facts
as to the barony of Portlethen are substantially the same. The question as to this barony arises on a
decree
of valuation
dated
the 19th of January 1709. In this
case
no rental
was
carried
in by the heritors as in the
decree
of 1682, but the
Commissioners
found,
that the teinds of,
inter alia, all and
whole
the lands and barony of Portlethen,
were
yet unvalued; and the heritor, Alexander Thomson, having produced his titles to these lands and barony, the
Commissioners
found
and
declared
the just
worth
and
constant
yearly avail of the lands of Portlethen,
with
its pertinents, to be £357 6
s. 8
d.
The
decree
states various inquiries made shewing in
detail
how that sum
was
arrived at. It is possible, as in the
case
of the barony of
Findone,
that the lands, the rents of
which
are enumerated as making up the £357 6
s. 8
d.,
might
comprise
the
whole
of the barony. But this
certainly
does
not appear
ex
facie
of the
decree.
On the
contrary,
the
decree
shews, that Alexander Thomson, the heritor,
was
seized of the
whole
lands and barony of Portlethen,
whereas
nothing appears to be valued but
certain
lands
described
as being lands of Portlethen. In these
circumstances,
I think the
Court
below
were
right in not treating the question as
concluded
by the
decree,
and in authorizing an inquiry to ascertain
whether
there
were
lands unvalued.
With
respect to the lands of Barclay Hill,
Calsayend,
and Meddens, mentioned in the 10th article of the
condescendence,
the interlocutor
was
clearly
right. The
decree
in terms excludes those lands
from
the valuation, and I agree
with
the argument at the bar, that the
Commissioners
bad no authority to
declare
lands prospectively not to be liable to teinds. They must therefore be treated as lands not valued.
My opinion is, therefore, that the interlocutor complained
of
was
in all respects right, and so that the appeal ought to be
dismissed
with
costs,
and I humbly move your Lordships accordingly.
Westbury
Lords, this suit and the
determination
of it are matters of very great
concern
generally to the heritors in Scotland. No
doubt
the payments made by them and the value of their estates have
for
a long period of years been
calculated
upon the belief, that these
decrees
of valuation
would
not be lightly
disturbed.
And I think it very
desirable,
that the
Page: 1463↓
The argument of the appellants was
founded
almost entirely upon this, that inasmuch as the
word
“barony” is
found
in the libel, the barony, as an entire thing, must be
considered
as
comprehended
in the
words
“libelled,” and so it might have been if the
words
“the lands libelled” had not been
followed
by a specific enumeration,
which
would
have the effect of
cutting
down
the generality of the expression “barony,” and shewing, that the barony, as one
comprehensive
thing,
was
not included in the valuation. Now that appears to be the
case
with
regard to the valuation of
Findone.
And the same observation is applicable to the
decreet
of valuation as to the barony of Portlethen.
The argument of the appellants was
founded
entirely on these
words:
“
Item, the principal
disposition
of the haill lands lybelled.” Those
words,
they said, referred to the libel, and in the libel you
find
the lands of the pursuers, the barony and others, respectively ascertained. But then those
words
“the haill lands libelled” are
followed
by other
words
running: “The pursuer's procurator produced one rental of “the haill lands libelled.”” Now the signification and extent of the phrase “the haill lands libelled” in the one
case
must of
course
be the same as the extent of the same phrase “the haill lands libelled” in the other. But the recital of the “haill lands libelled” is there given
in extenso, and it plainly appears
from
that recital, that
certain
lands only
were
intended to be
comprehended
in the
words
of reference “the haill lands libelled;” the enumeration and
description
are
confined
to those particular lands, and there are no
words
comprehensive
of the general barony. Therefore this must be the
conclusion,
either that the lands specified included “the haill lands libelled,” and therefore included the barony, that is, that the lands specified
were
co-terminous
and
co-extensive
with
the barony, an hypothesis
which
is
contradicted
by the result of the inquiry; or else the
conclusion
must be, that the specific enumeration
following
the
words
“the haill lands libelled”
confined
the generality of the phrase “the haill lands libelled” to the things enumerated. I think it is plain, that the last
conclusion
is the
correct
one. I think the
words
of the
decreet
plainly
carry
on the
face
of them sufficient evidence, that the valuation is
confined
to the lands
which
are specified, and that it
was
not intended to take into
consideration
the generality of the
word
“barony,” or to include the other lands uncultivated
which
might be included
within
the precincts of the barony.
Notwithstanding, therefore, the general rule, which
I trust
will
be adhered to, of giving in
favour
of long usage or acquiescence a liberal interpretation to the
words
of the
decree,
yet, as the
decree
carries
on the
face
of it
clear
evidence, that none but
certain
specific lands
were
taken into account, I think it is impossible to give the
decree
a greater extent.
I concur
in the observation of my noble and learned
friend,
and think it unnecessary to add anything to
what
he has said. I therefore
concur
in the motion he has made, that this interlocutor be affirmed.
Colonsay
Lords, I have
felt
considerable
anxiety in regard to the
course
that should be taken in this
case,
and I have heard
with
very great satisfaction the observations
which
have now been made by my noble and learned
friend
who
last addressed the House, as to the importance of supporting such
decreets
when
they
can
fairly
and properly be supported, and in particular of supporting
decreets
which
are in the predicament in
which
this
decreet
is.
For
your Lordships may, perhaps, have observed, that this is one of those
decreets
the proceedings in regard to
which
were
destroyed
by a
calamitous
fire
that took place, and
which
were
attempted to be set up to the best ability of the
country
at the time, by ordering such extracts of those
decreets
as had been given out to be brought back into
Court,
and to
form
a record of those
decreets.
But the effect of that is, that materials
which
might otherwise have been referred to in order
clearly
to explain and support the
decreet
are no longer accessible and available
for
the purpose. But if it appears on the
face
of the
decreet,
that there are good objections to allowing it to be
decided,
that a part of the lands mentioned in the
decreet
had been valued; still more, if it appears absolutely on the
face
of the
decreet
that they
were
not valued, then I apprehend, that the
Court
has no other
course
than to hold, that these lands stand unvalued, and
whether
the reasons
why
they had not been valued
were
valid reasons or not, the
fact
remains, that they
were
unvalued, and the
Court
must
deal
with
them accordingly.
Now, in the present case,
the judgment of the
Court
has
dealt
with
two
classes
of lands mentioned in this
decreet.
It
was
held, that
with
regard to one of them the
decreet
shews, that that
class
of lands
was
not valued at all. I perfectly
concur
in that
finding
of the
Court.
I think it is plain upon the
face
of the
decreet,
that these parcels of lands
which
are mentioned
Page: 1464↓
Now it is quite true, that they had no power to pronounce any finding,
that the lands
were
free
from
teinds, but the meaning of that
finding
is, that those lands being in their opinion
free
from
teind they had not valued them. The reason
why
they
were
unvalued is assigned on the
face
of the
decreet,
and the
Court
will
judge of the validity of that reason.
But in regard to another portion of the lands here, I mean the lands which
are not so excepted
from
valuation, the general principle arises,
whether,
taking
first
the
case
of
Findone,
the valuation is to be read as
comprehending
the
whole
of the lands libelled. Now it appears
from
the libel, that the action
was
brought
for
the purpose of having the heritor's lands libelled, and it
describes
them in this
way,
“that the teinds, parsonage and vicarage, of the said pursuers, their lands, baronies, and others underwritten, viz. the lands of Meddens and Badentoy,
with
their pertinents lying
within
the parochine of Banchory-
Devenick
and sheriffdom of Kincardine, are yet unvalued.” Therefore
Calsayend,
Meddens, and Badentoy are not stated as part of the barony of
Findone,
but the lands and barony of
Findone
are brought
forth
to be valued. Now,
what
does
that mean? It is not uncommon to talk of all the lands in a barony and the
whole
barony as the lands and barony of so and so. That is the
construction
which
my
friend,
the Lord Advocate, endeavoured to put upon this expression here. It might be or it might not be so. But I think it is
clear,
that it is not necessarily so, because there may be lands of
Findone
which
are only part of the barony of
Findone.
And therefore “the lands and barony of
Findone”
are not necessarily an expression
for
one and the same thing as “the lands in the barony of
Findone.”
I think it appears here, that there
were
lands in the barony of
Findone
which
were
not part of “the lands of
Findone,”
because I think it is stated in the record ‘and not
contradicted,
and it seems to be assumed by the parties, that the lands of Barclayhill
formed
part of the barony of
Findone;
and they are not part of the lands of
Findone.
Therefore it is
clear,
that in regard to the expression in this
case
“the lands and barony of
Findone,”
they are not of equal extent
with
“the lands of
Findone,”
because the barony of
Findone
comprehended
at least Barclayhill,
which
was
not part of the lands of
Findone,
and it may have
comprehended
other things
which
were
not part of the lands of
Findone,
as
well
as Barclayhill.
Now, the minister, the defender
in the present action, says, that there
were
a great many other things besides Barclayhill
which
were
not part of “the lands of
Findone,”
and if
we
see, that there
was
land
which
was
parcel of the barony of
Findone,
which
did
not
form
part of the lands of
Findone,
and
which
was
not valued here, it is not unreasonable to suppose, that inquiry may shew, that there
were
other parcels in the same
condition.
The minister says, that there
were,
and he has specified a number of such lands in article 3 of his
condescendence.
Now, all that the Court
has
done
is to say, that this
decreet
does
not
conclude
inquiry, and that inquiry should be made; that is the
whole
extent of the judgment, and I think, that is a reasonable judgment to pronounce. The
Court
has not said how
far
the
onus may rest, or how long the
onus may rest, upon the pursuer or upon the
defender.
That is left open
for
investigation. It may shift in the
course
of the inquiry, and some things may be adduced
which
will
throw the
onus upon the one side, and other
circumstances
may be proved
which
may throw it upon the other. It is upon the balance of the
whole
evidence, that the
Court
has eventually to
determine
whether,
upon the
fair
construction
of this
decreet,
it
did
or
did
not
comprehend
any of those parcels of land
which
the minister
describes
in article 3 of the
condescendence.
Then with
regard to the barony of Portlethen, the same general observations apply, though there is not here the special
difficulty,
which
I mentioned in the other
case,
of
detecting
upon the
face
of the proceedings the parcels of land
which
formed
the barony, and
were
known by that name. But the same principle applies. I must say, however, that in making up this record I think it
would
have been better, that the minister should have been required to
condescend
upon the particular lands in the barony of Portlethen
which
he says
were
not valued
for
teinds. He has
done
so in regard to
Findone,
but he has not
done
so in regard to Portlethen. I should have liked, that that should have been required, because then it
would
have limited the inquiry to those particular lands, and not have left open a
wide
range as is here
done.
However, that is still open to
correction.
I think
we
cannot
alter the
decreet
by reason of that not having been
done,
for
it
does
not appear to have been objected to by the other party.
Upon these grounds, I am of opinion, that the judgment which
has been suggested by your Lordships is the
correct
one. I observe in the
condescendence,
and in the opinions of the
Court,
that this
decreet
was
based upon the rental produced by the heritors. I am not quite sure, that that
was
so, as I read the
decreet,
because the
decreet
of valuation states, that the minister produced another rental, and he referred that rental of his to the oath of the heritors, and the heritors
deponed
upon that rental. Now, it
was
upon the result of that oath, that the judgment proceeded, and
we
have not that before us; it is one of the things
which
has vanished, and that
Page: 1465↓
Interlocutors appealed
from
affirmed, and appeal
dismissed,
with
costs.
Solicitors:
Appellants' Agents,
Hill,
Reid, and Drummond,
W.S.;
W.
Robertson,
Westminster.—
Respondents' Agents,
Tods,
Murray, and Jamieson,
W.S.;
Martin and Leslie,
Westminster.