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The Lords, as Commissioners for Plantation of Kirks, &c. are in use to approve the report of the Sub-commissioners, though the same have not been approved by the High Commission; as in Philiphaugh’s case, No. 145. p. 15746.; and Lord Monzie’s case, (See Appendix,) and others there related. But, in a process at Oliphant of Bachilton’s instance against Smith of Methven, the titular, for having the report of the Sub-commissioners made in 1643 on the value of the teinds of the lands of Bachilton approved, the Lords sustained the defence, that the Sub-commissioner derived their authority from the High Commission, appointed by the Parliament 1641, in respect that, by the 15th act of the Parliament 1661, rescinding the acts of Parliament 1641, there is no salvo of the sentences of the High Commission, which there is by the 9th act of said Parliament, which rescinds the acts of Parliament 1649 and 1650; and although there be in said act 15th of Parliament 1661 a general salvo of private rights, yet the Lords understood, that. only of completed rights or final decrees, et nil censetur actum quamdiu aliquid superest agendum; and they thought they had already gone far enough with respect to the reports of Sub-commissioners.
Kilkerran, No. 8. p. 553.*** D. Falconer reports this case:
1748. July 13.—David Oliphant of Bachilton pursued a valuation of his teinds against David Smith of Methven, and, Katharine Cochran, his mother, the titulars, and insisted to have a report of the Sub-commissioners of the Presbytery of Perth made 1643 approved of and found to be the value, as the Lords had frequently done in similar cases.
Answered: The acts of Parliament 1641, by which this Commission was appointed, were rescinded by act 15. Parl. 1661, without exception of the decrees of the Commission; although, by the 9th act of the same Parliament, annulling the Parliaments held after 1648, these were excepted, but, even with regard to them, the exception can only reach to cases finally determined, not to sustaining the interim steps taken by the Sub-commissioners, which never were approved of by the High Commission.
The Lords Commissioners found, That the report could not now be approved of.
Act. Ferguson.Alt. R. Craigie.
D. Falconer, v. 1. No.273. p. 367.
