Feb.
1. and
June20,
1744. and
Feb.
6.
1745. Case No. No. 144.
Price of manure, if deducted.
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In the valuation pursued by the feuers of the lordship of Dalkeith against the Duke, the Commission, by their interlocutor of the first date, by the president's casting vote, found, “That no deduction was to be given upon account of the dung of the town of Dalkeith purchased by the feuers;” but by their interlocutor of the 2d date, by a majority of 7 to 6, found, “there ought to be a deduction given” on account of the dung, and remitted to the Ordinary to hear upon the quantity; and again by the like majority of 7 to 6, returned to their first interlocutor, and “found no deduction due.”
Notwithstanding it was argued for the feuers, that a deduction was always due, wherever the manure is purchased not merely by hand labour, which is the case of sea-ware, but by money; for the rent raised by such manure is not in reality the produce of the ground, but of the tenant's money. 2dly, A deduction is always due, when it does not depend upon the will of the tenant, whether he will continue the same improvement used in time past; for that it were unjust to rate the constant value from what it at present is, when its continuance to be of the same value depends upon the will and pleasure of other people. That 3dly, Such deduction as was here insisted for, has been in use to be given since he first institution of the Court, and that it would look very odd, to see us put a different construction upon the statute, rating the teinds at the fifth part of the constant rent, from what our predecessors, recently after the date of it, put upon it; not to mention the variety of later decisions, which uniformlyallow deduction on account of the dung of an adjacent town.
What the plurality proceeded on was, that where tenants take the ground and pay the proved rent, they have the expense of purchasing dung in view, and that therefore the only solid foundation for a deduction is, where the expense is laid out by the heritor and not by the tenant. That farther, the present rent is the rule of buying and selling the property, and why should it not also be so in rating the teinds? And last of all, it was taken for granted to be next to a certainty that the benefit of the dung was what would continue.
But considering the above variety of judgments, and narrow pluarlity by which they were given, this point cannot be considered as yet settled. One thing must be owned, that had the relevancy been sustained, it had been very difficult to ascertain the quantum, as it appeared by the proof, the acres were of different rents, and that some took better, some worse, with dung, and doubtless a new and more particular proof adapted to the several acres had been necessary.
Kilkerran, No. 5. p. 552.*** D. Falconer reports this case:
In a question between the feuers of Dalkeith, concerning the valuation of their teinds, and the Duke of Buccleugh titular, the Lords Commissioners found no deduction was to be allowed on account of the dung of Dalkeith.
