Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Lord Adam Gordon
v.
Garden and Grant

Date: 19 June 1754

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In this case it was OBJECTED to the division of a valuation, that the dividend or valuation to be divided was part of a cumulo valuation, which cumulo valuation was, in the year 1733, divided, and some part of it allotted to the lands of Pit-fichie; but this was done, not by a general meeting of the Commissioners of Supply, upon a proof taken, but by a private meeting, upon consent of parties.

To which it was answered,—That this division had been held to be a good division ever since it was made; that the lands of Pitfichie had stood upon the cess-books as they were then valued, and the proprietor of them had always voted; and if the valuation of these lands was rightly fixed, then the remainder of the cumulo valuation, which was the subject of the present division, is also rightly fixed.

To which it was replied,—That standing upon the cess-book for any tract of years, and paying cess, will presume a regular division of the valuation, though none such appear; but where the division appears, and is plainly irregular, then that presumption must cease: And this the Lords found, upon a division of six to five; dissent, Kaimes et Drummore, who thought that a division of valuation by consent was a proper division, unless the objector would undertake to show that it was unfairly made.

2do, It was objected in this case, That the real rent, which was the rule for the division, was rated too high, in respect that the feu-duty payable for the lands holding of the Crown was not deduced, which ought to have been deduced, not being a subject of taxation, and which in fact never was taxed, as not belonging to the vassal but to the superior: And this objection the Lords unanimously sustained.