Sir John Maxwelof Pollock v. The College of Glasgow
Date: 6 February 1745 Case No. No. 143.
Rents how stated valuations. - Mill-rent.
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In the process of valuation, Sir John Maxwell against The College of Glasgow, stated in the Commission found, December 5, 1744, That where a rent had been improved by inclosing, the old rent was to be the rule, and that the improved rent was to be deducted in the valuation. And it had been formerly found in a variety of cases, that wherever an advanced rent is produced by expensive improvements, such advanced rent is no teindable subject.
In the same process it was also found, that where there had been grassums got at setting tacks of nineteen years, the 19th part of such grassums was, in the valuation, to be added to the rent.
A third point occurred which was of more difficulty. Certain of the lands had been formerly astricted at a very high multure to the mill of Patrick, belonging to the Bishop of Glasgow; this multure was thereafter purchased by the then heritor, and in lieu thereof an agreement made for 15 bolls dry multure to be paid yearly in lieu of all payments at the mill, other than the small dues of bannock and knaveship. And the question was, Whether the pursuer was to have deduction of this dry multure?
On the one hand it was said, that where the titular draws the teind, he draws the full tenth without any diminution on account of multures, however high; but where teinds are not drawn, and the fifth part of the rent is the rule, then, as the heritor gets so much the less rent on account of the multures paid by the tenants at the mill, the fifth part of the rent is the teind, without including the multures. And though in place of the multure at the mill, there may be an agreement with the heritor to pay so much dry multure, whereby the heriter comes to get a higher rent from the tenants, yet the dry multure falls to be deducted therefrom in the valuation, for the same reason, that while the multure continued to be paid at the mill, these multures were not computed in the valuation. For, as in the one case the multures paid at the mill were no part of the heritor's rent, so, in the other, the dry multure paid substracted so much therefrom.
On the other hand, it was argued, that adhering strictly to principles, even where a high multure is paid by tenants at the mill, to which they are astricted, whatever these multures exceeded the rent paid to the heritor, was, in a valuation, to be added to the rent. But, supposing that doubtful, it was said to admit of no doubt, but that where such multure was purchased by the heritor, who thereafter gets so much more rent, there is from that time no deduction to be made in the valuation on account of such measure, as what had been once paid at the mill; for thereby the lands are become free of multure, as if no such thing had ever been; and were it otherwise, one had nothing to do, but to astrict his lands at a high multure to another man's mill, and thereafter purchase back the multures, and then plead a deduction in a valuation. And that neither did it alter the case, that this purchase was made not for a sum of money paid down, but for a dry multure yearly paid to the superior in lieu thereof; for such dry multure, however it substracted from the rent paid to the heritor, was no better pretence for a deduction than a feu-duty would be, which nobody pretends would afford a deduction.
Notwithstanding, the Lords, by their interlocutor of the 5th December, 1744, thereafter adhered to the 6th February 1745, “Sustained the deduction.”
It appeared to be the opinion of the Court, that had the multures been purchased for a price paid, there could have been no deduction allowed; and even as the case stands, the interlocutor adhering was given by the narrowest majority.
