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Lord Torphichen, as patron of the parish of Calder, insisted in a reduction of a decreet of valuation pronounced in the year 1647, 1mo, On the ground, that it was at the instance of the parson, as titular; whereas a valuation ought to be at the instance of the heritors; 2do, That there were many informalities in the decreet, which showed that it was not properly a decreet of valuation, but a locality; that a stipend was there localled; that it contained a prorogation in favour of Lord Torphichen of the teinds of his lands, which was inconsistent with a valuation; that teinds ought by law to be valued at a certain sum of money, or quantity of victual; but, in the present case, there was a horse and four cows grass allowed to the Minister on the wood of Calder, in part of Lord Torphichen's teinds. Answered, 1mo, That a valuation may be raised at the instance of a Minister, as well as at the instance of the heritors; 2do, That Lord Torphichen's having insisted for a prorogation of the tack of teinds, could not vitiate a decreet of valuation, quia utile per inutile non vitiatur, especially as Lord. Torphichen is pursuer of this process; that the cow's grass, &c. was not mentioned as part of Lord Torphichen's teinds, but as a prestation or servitude which the Minister had right to, and is ingrossed in the decreet, which is not only a decreets of valuation, but of locality, which are by no means inconsitent; or if they were, the locality, and not the valuation, would fall to the ground, because it is a summons of valuation on which it properly proceeds;Lastly, The deed is safe by prescription, as, in consequence of it, the Ministers have ever since drawn their stipend, the heritors possessed their tithes, improved their grounds, and most of the land, both stock and teind, has been sold to singular successors on the faith of this decreet. The Lords unanimously repelled, the reasons of reduction.
The Minister, as titular, may pursue a valuation of the teinds of the parish as well as the particular heritors. See Appendix.
