Sir William Erskine and Others, v. The Reverend David Balfour
Date: 7 March 1798 Case No. No. 168.
A report of the sub-commissioners approved of, which proceeded on a proof of the value of the lands, although it did not bear that the Minister was present or cited.
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Sir William Erskine, and other heritors of the parishes of Torryburn and Crombie, brought an approbation of the report of the sub-commissioners, with regard to their teinds, in 1629.
It appeared from the report, that the valuation took place at the instance of the procurator-fiscal, who was present. In several passages of it, it was mentioned, that the titular was present, and that the heritors were either present, or cited. But this did not appear with regard to the Minister.
The report, however, proceeded upon a regular proof of the value of the lands, except as to a few acres, which were valued of consent.
The Minister of the parish objected, That as the valuation proceeded in absence of his predecessor, the report, upon the principle of the decision, 4th February 1795, Ferguson against Gillespie, affirmed on appeal 14th February 1797, No. 164. p. l5768. could not be supported.
The pursuers answered: Reports of sub-commissioners do not narrate the whole proceediings, but merely their result; and, therefore, from its not being expressly stated, that the Minister was present or cited, it does not follow that he was not; on the contrary, as the report in general proceeds on a proof, the presumption is, that all parties interested were present, or cited. Indeed, the presence of the procurator-fiscal, for the presbytery, made that of the Minister unncessary.
Many similar reports have been examined, and no instance has been discovered, in which the report bears, that the Minister was cited. This case differs materially from that of Fergusson. These two estates were valued within a few months of each other. The report as to one of them bore, that the patron, heritor, and Minister, were present. The report as to the other, mentioned the presence of the two former, and that they had agreed upon the valuation; but said nothing of the presence of the Minister; and, therefore, from the difference of expression used in the two reports, it was presumable, that the Minister had not been present, or a party, at the second. Consequently, as the value, in that case, was fixed of consent, and without a proof, it could not be binding on the Minister or his successors.
The Lords, on the grounds stated for the pursuers, repelled the objection.
Act. Ar. Campbell.Alt. J. W. Murray.
Fac. Coll. No. 68. p. 158.
