Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Wauchop of Niddry, and his Son Jo Wauchop of Edmiston,
v.
J H. of Waughton, and Alexander Cockburne of Popill, and the Tenants of Popill.

Date: 28 July 1669

Click here to view a pdf copy of this documet : PDF Copy

The Laird of Niddry having right by progress, from Raith of Edmiston, to the teinds, parsonage and vicarage, of the lands of Popill, (the conveyance whereof see alibi beside me,) pursueth the foresaid persons for payment-making to him as titular, or come in his place, of the valued bolls due furth of the said lands for the space of thirty years by-past. Against which it was alleged, 1mo, There could be no process sustained against thir defenders, because the principal and original tack of the foresaid teinds, set by Claud, Commendator of Paisley, and Dean of Dunbar, to Sir George Hamilton, and Greinlaw, his son, is not produced.

Answered and replied,—That the allegeance ought to be repelled, in respect of the decreet of prorogation of that tack produced, which doth particularly mention the production of the foresaid tack before the commissioners of the Plat; which decreet of prorogation is dated the last of January 1678: by virtue whereof, the pursuers and their authors have been in possession of the said teinds past all memory.

Duplied,—The allegeance stands relevant, notwithstanding of the answer, in respect the prorogation takes not effect till the expiry of the principal tack; 2do, If the principal tack were produced, as it ought to be, there might arise intrinsic nullities therefrom, which might cast the tack itself.

Triplied,—The defenders cannot be heard to propone any thing against the non-production of the tack; not only in respect the same is expressly mentioned in the foresaid decreet of prorogation, but also the same is homologated by the defenders, in so far as there was a decreet of valuation of the said teinds, against the pursuer and his authors; and they have been in use of payment of the valued teind duty ever since: as also, there was a decreet of buying following thereupon;

Quadruplied,—No respect can be had to the payment of the tack-duty and homologation inferred therefrom, except only as to these years, whereof the tackduty was paid. 2do, No respect can be had to the foresaid decreet of buying, to infer any homologation, unless the pursuer instruct a valid and sufficient right in his person to these teinds.

Quintuplied,—That the hail dispute proponed by the defenders ought to be repelled, in respect of the foresaid decreet of prorogation produced, and which bears the production of the principal tack then, and so is probatio probata, and must be sufficient against thir defenders, who can pretend no right to thir teinds; and so the defences as to them are jus tertii, and the Lords' sentence will be to them a sufficient warrant.

The Lords' answer having been craved on this, they repelled the foresaid allegeance, duply, and quadruply, in respect of the reply, triply, and quintuply, made thereto, founded upon the foresaid decreet of prorogation produced; which mentions the foresaid tack and homologation of the same, by payment of the foresaid teind, at least the valued teind duties thereof.

Then it was farther alleged for Waughton, that he ought to be assoilyied from the valued teind-duty of 1646, and all preceding crops, because the same were paid to the said umquhile Mr. Ja. Raith of Edmiston, the pursuer's author and cedent, conform to his discharge, dated the 7th of August, 1647. 2do, The pursuers could not acclaim the valued duties for any years since the decreet of buying, but at most the annualrent of the price.

Answered,—The first ought to be repelled, in respect of the discharge produced, which is only granted for the year 1646, to Jo. Johnston, tenant in Popill, but does not discharge preceding years. To the 2d, Ought to be repelled, unless the price had been paid: and if this should be sustained, the titular should never get payment of the price, but only annualrent, after the decreet of buying; which were absurd.

Replied,—Albeit the preceding years be not discharged per expressum, (it being only a discharge to a tenant who paid the same, and possibly possessed only that year;) yet it must be presumed, that Waughton, the heritor, or his tenants, paid the preceding years: else Mr. Wm. Raith would not have received or discharged that year, but some preceding year, whereof he was unpaid; at least he would have inserted a provision, that it should be but prejudice to him to seek preceding years, which undoubtedly he would have done if any had been resting. And craved the pursuers' and their cedent's oaths of calumny, if they had just reason to deny that the preceding years were paid. And to the second allegeance, oppone their former answer.

Duplied,—That they oppone the common axiom, that it must at least be a discharge of three consecutive years that can infer in law a liberation from all preceding: but however they declare, they insist primo loco since the year 1646.

The Lords repelled the second allegeance about the annualrent since the decreet of buying, in respect of the answer made thereto; and found the defenders liable for the valued bolls and silver duty ever since 1647, and in time coming, ay and while the price be paid.

Farther alleged for Alexander and Patrick Cockburnes, who have a right of wadset in the said lands,—That they cannot be liable but since the years of their possession, which began in July 1653; because the foresaid teind or valued duty is not debitum fundi, but the possessors are only liable for the same.

Which allegeances the Lords found relevant; and therefore found the said Alexander and Patrick Cockburnes only liable for the foresaid valued teind duty, and silver duty, the crop and year of God 1653, and since syne.

Advocates' MS. folio 61.