Deans of the Chapel Royal and HM Advocate v Johnstone, &c. [Court of Session—2d Division.]
| Jurisdiction | Scotland |
| Judgment Date | 20 February 1867 |
| Date | 20 February 1867 |
| Docket Number | No. 92 |
| Court | Court of Session (Inner House - Second Division) |
Consulted Judges. Teind Court. Ld. Barcaple. Teind Clerk.
Teinds—Valuation—Crown—Negative Prescription.—
Prescription, Positive.—Opinion
Teinds—Valuation.—Opinion
Res inter alios— Prescription, Negative.—Opinions
THIS action of reduction and declarator was raised before the Teind Court in July 1863 by the Rev. Dr Robert Lee and others, as Deans of the Chapel Royal in Scotland, and donatories of the teinds and other emoluments belonging thereto, and by the executors of Dr Norman Macleod, a deceased dean, and by Her Majesty's Advocate, as acting in virtue of the Act 20 and 21 Vict. cap. 44, on behalf of Her Majesty and of the Commissioners of Woods and Forests for Her Majesty's interest as titular of the teinds, against James Johnstone of Alva, proprietor of the lands of Shaws, and of part of the lands of Over and Nether Ballialies, lying formerly in the parish of Yarrow, but now within the lately erected parish of Kirkhope, and against William Brown and others, trustees of the deceased James Brown, and as such proprietors of the lands of Helmburn, and of part of Over and Nether Ballialies, all in the parish of Kirkhope.
The summons concluded for production of ‘a pretended decree of valuation, dated 28th July 1647, and recorded on the 18th day of July 1733 in the particular register appointed to be kept by the 9th Act of the Parliament of Scotland holden in 1707, anent plantation of kirks and valuation of teinds, for supplying the lost registers,’ purporting to be at the instance of William Elliot of Stobs, then proprietor of said lands, ‘to be seen and considered by the said Lords, and to hear and see the same reduced, …. as a valuation of the teinds of the said lands against us or our donatories, or as fixing or limiting to any effect or extent our interest, or that of our donatories, in the said teinds, and that for the reasons,’ &c. The summons then concluded for reduction ‘to the extent and effect aforesaid.’
The summons also contained the following declaratory conclusion:—‘And the said decreet being so reduced, or whether the same be reduced or not, it ought and should be found and declared, by decree foresaid, that a we, or our donatories of the teinds of the foresaid lands, are entitled to exact and levy from the defenders, and from the proprietors of the foresaid lands for the time being, one fifth part of the real or actual rents of their said respective lands, as the teind of said lands, …. so long as the same remains unvalued, under deduction always of the minister's stipend localled upon the teinds of said respective lands.’
The original decree and warrants not being extant, the defenders founded on the following extract as equivalent thereto, in terms of the Act of 1707:—‘At Edinburgh, the 18th day of July 1733 years:—Anent the petition given in and presented to the Lords of Council and Session, commissioners appointed for plantation of kirks and valuation of teinds, by John Murray of Philiphaugh, shewing that where by the ninth Act of the Parliament of Scotland, holden in anno 1707, anent plantation of kirks and valuation of teinds, it is appointed for supplying the lost registers, that any authentick extracts from the records be brought in, and being presented to their Lordships, that the same be recorded in a particular register to be kept by the Lord Clerk Register and his Deputes, to be appointed for that effect, which is thereby declared to be repute as valid and authentick as if the principall warrands themselves were extant; and accordingly the petitioner did with the said petition produce and present to their Lordships the extract of an decreet of valuation of the teinds of the lands of Schaws and others, lying within the parish of St Marykirk of the Lowis, dated the 28th day of July 1647 years, therefore craved it might please their Lordships to ordain their clerk to record the above decreet of valuation, and give out an extract thereof, conform to Act of Parliament, as the said petition bears, which being upon the said 18th day of July 1733 read in presence of and considered by the said Lords, they authorised and hereby authorise their clerk to record the above decreet of valuation, and to give out an extract thereof in terms of the Act of Parliament, and off which decreet of valuation the tenor ffollows:—At Edinburgh, the 28th day of July 1647 years,—The whilk day, in presence of his Majesty's Commissioners appointed for the valuation of teinds and plantation of kirks underwritten, they are to say, John Earl of Lowdown, Chancellor of Scotland,’ &c., ‘anent the summons raised at the instance of William Elliot of Stobs, heretor of the lands underwritten, against Francis Earl of Buccleuch and Mr William Elliot, minister at St Marykirk, for his interest, makand mention, that where, be his Majesty's late Act of Parliament, haldin in Edinburgh in November 1641, there was power and commission granted to the saids commissioners to value and cause value the teinds, parsonage and viccarage, of whatsomever lands within this kingdom which are yet unvalued, and to take order that the heretors may have the leading of the teinds of their proper lands for payment of the worth of the teinds, in manner and form as more amply is exprest in the commission granted thereanent: And whereas the teinds, parsonage and viccarage, of the lands of Schawes, Helmburne, and Over and Nether Baillailies, pertaining to the said pursuer heretably, lying within the parochine of St Marykirk, are not yet valued, nor the true worth and avail thereof dignosied, wherefore the said pursuer is content that ane lawfull and formall valuation be made thereof be the saids commissioners, and for that effect is willing and ready to lead and deduce ane lawfull probation of the worth of the saids lands in stock and teinds, parsonage and viccarage, and in the mean time necessar it is that the said pursuer have warrand granted to him to lead the teinds of his saids lands this instant cropt and year of God 1647 years, ffinding caution for payment of the valued duety, and anent the charge given to the said Francis Earl of Buccleuch and the said Mr William Elliot to have compeared before the saids commissioners the said day, to have heard and seen the parsonage and vicarage teinds of the lands above written, pertaining to the said pursuer, and lyand as said is, been duely and orderly valued, and witnesses been received, sworn, and examined thereanent, and also to have heard and seen warrand, and allowance given and granted to the said pursuer to lead and intromett with the teinds of his saids lands this said instant cropt and year of God 1647, ffinding caution for payment of the valued dutie to the titulars or tacksmen of the saids teinds, or else to have shewn ane reasonable cause why the samen should not have been done, with certification to them if they failzied, the said commissioners would admitt and receive the lawfull pro. bation to been used be the said pursuer in the said matter, and grant warrand to lead this year, finding caution in manner foresaid, as the said summons duely execute and indorsed at more length bears, whilk being this day called, and the said pursuer compearand be John Pitcairn, advocate, his procurator, who produced the agreement under written, passed betwixt the said Francis Earl of Buccleuch and the said pursuer, subscribed with their hands, whereby they have agreed upon the constant worth of the teinds of the lands underwritten, and desired the saids commissioners to ratifie and approve the same: And the said Francis Earl of Buccleuch compearand be John Dunlop, advocate, his procurator, and consented thereto, and the said Mr William Elliot, minister, being oft-times called and not compearand, the saids commissioners having heard, read, seen, and considered the said agreement produced, and therewith being well advised, they have ratified, allowed, and approven, and be thir presents the said commissioners ratifies, allows, and approves the said agreement produced, whereof the tenor follows:—At Dalkeith, the 26th day of July, the year of God 1647 years,—It is agreed betwixt an noble Earl Francis, Earl of Buccleuch, on the one part, and William Elliot of Stobs, on the other part, that the teinds, parsonage and vicarage, of the lands of Schawes, Helemburne, and over and neither Ballialies, lyand within the parochine of St Marykirk of the Lowes, shall be in all time coming twa hundreth and ten pounds Scots money, and that but deduction of His Majesty's case, whereunto the said Francis Earl of Buccleuch, as tacksman and titular, and having right to the teinds of the said parochine, and the said William Elliot of Stobs, as heretor of the said lands, have agreed be thir presents, written be James Pitcairn, servitor to John Pitcairn, advocate, baith the saids parties have subscribed thir presents with their hands, day, year, and place foresaids, before thir witnesses, Walter Scot of Whitslaid, Patrick Scot, writer in Edinburgh, and Patrick Scot of Thirlestaine.—Sic subscribitur BUCCLEUCH, W. ELLIOT; W. Scot, witnes, Patrick Scot, witnes, Patrick Scot, witnes, in all and sundry heads, articles, and clauses of the samen, and have interponed and hereby interpone their decreet and authority thereto in all points, because the said John Pitcairn compearand as procurator for the said pursuer, and craved the said agreement to be ratified, allowed, and approven be the saids commissioners, and the said John Dunlop compearand as procurator for the said Francis Earl of Buccleuch consented thereunto; and the said Mr William Elliot, minister, being lawfully summoned, oft-times called, compeared not to object in the contrair; therefore the saids commissioners ratified, allowed, and approved, in manner foresaid, and sicklyke ordains letters to be direct hereupon (if need bees) in form as effeirs....
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