Spuilzie of teinds was not allowed to be proved by oath in litem; see acts 15th and 17th Par. 1633.
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The Lord Balmerino pursues the Town of Edinburgh, for spoilation of the teinds of the acres of Restalrig, whereof the Town's Hospital had a tack; which being expired, inhibition was used yearly, for several years. The defender albeged absolvitor, from any spuilzie of teinds, because, since the King's decreet- arbitral, and the fifteenth and seventeenth acts of Parliament 1633, spuilzie of teinds is taken away, especially by the said 15th act, the Parliament ratifies a former deed of the King's, declaring every heritor shall have the drawing of his own teind, and the benefit of a valuation; and, in the mean time, so long as the teinds are not valued, the heritors are only liable for the fifth of the rents in name of teind; 2dly, By a contract betwixt the Town and the pursuer's father, the acres of Restalrig, lying runrig with these, are set for half a boll beer the acre, which is, by the contract, declared to be the just and true rate and value thereof, which, by necessary consequence, declares the value of the teinds now in question, being runrig with the other. The pursuer answered to the first, That the foresaid act of Parliament was only meant in relation to the King's annuity; and albeit the foresaid clause therein be general, yet it is clear by the 17th act, which is posterior, that the first part shall be the teind, after the valuation duly led, which hath been constantly allowed, by custom of the Commission of Plantations, which gave only warrant to heritors to lead their own teind during the dependence of a valuation, and therefore spuilzies of teinds have been frequently sustained since the said acts. As to the second, Whatever be the way of conception of the tack, for the other acres not in question, though it did acknowledge the same to be the just value thereof, yet it cannot extend to other teinds; seeing where the parties agree in the matter, they are not solicitous for the conception of the words, which cannot be drawn in consequence to any other matter.
The Lords repelled both these defences, but declared they would not sustain spuilzie, as to the oath in litem, but admitted the value of the teind to the pursuer's probation; reserving to themselves the modification of the prices, if they should be exorbitantly proved, but not of the quantities.
