Bonafide payment of teinds. - Proved rent, if presumed retro.
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In the process at Smith of Methven's instance as titular against Oliphant of Bachilton, for the fifth part of the free rent of his lands as teind, due for 40 years preceding the citation, at advising the proof that had been granted before answer, the defender pleaded absolvitor from bygones preceding the citation, in respect of his use of payment to the Minister of a chalder of victual, which the Minister's receipts bore to be the proportion of the teind payable by the Laird of Bachilton, and of the judgment of the House of Peers in the case of the feuers of Denny, sustaining the use of payment to the Minister to liberate from bygones; 2dly, That the rent was not proved for 40 years back, and could therefore be the foundation of a decree only for the years that were proved. See Appendix.
The Lords, on the 8th July, “Found the defender liable in the surplus teinds, notwithstanding of the Minister's receipts; and found it is to be presumed, that the rental of the lands for 40 years back was the same with the rental proved, since there appears no evidence to the contrary, notwithstanding the defender was allowed a proof for that purpose.” And upon advising bill and answers on the 8th November, “Adhered as to the first point.”
The case differed in many respects from that of the feuers of Denny; as not to mention that the receipts here were but few and late, so they bore not as in the case of Denny to be in full of the teinds payable out of the lands, but only of the proportion of the teinds payable by Bachilton, which was a stile more proper for a stipendiary than a titular, as indeed there was pretty good evidence that there had been a decree of modification.
But the Lords afterwards varied the interlocutor upon the 2d point, and found, “that so far as the rental is proved, it must be the rule of accounting' but that the decree of the sub-commissioners in the year 1643, (whereof mention is made February 3. 1748. inter cosdem, Sect. 4. h. t.) must be the rule of accounting for such parts of the lands, whereof the rental is not proved for 40 years back down to the periods at which the pursuer Has proved a higher rental;” and upon the 17th November, “adhered;” notwithstanding there was, as to some of the lands, a semiplena probatio, viz. by one witness, that the rent had been the same as at present for 40 years back.
It had been in many cases found, and particularly in the case of the feuers of Denny, that the present rental being proved præsumitur retro, where the heritor does not prove the rent to have been raised; and several of the Lords could see no good reason for a different judgement in this case, not only as it had been formerly found, February 3, 1748, inter eosdem, that the report of the sub-commissioners could not be approved, but as in all such valuations, it is not the present rent only that is considered, but what is called the constant rent, what the lands do and may pay, and as the legal presumption was, as has been said, supported by a semiplena probatio.
But the majority were willing to lay hold on any thing in a-case so unfavourable as the claim of the titular for 40 years bygone.
