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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Stewart v Macfarlane [1835] CA 13_765 (15 May 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0765.html
Cite as: [1835] CA 13_765
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SCOTTISH_Shaw_Court_of_Session
Page: 765↓
v.
Subject_Proving of the Tenor—Teinds,—
What adminicles held insufficient to support a proving of the tenor of a decree of valuation of the teinds of lands said to have led in 1633.
In 1633, the lands of Cartsburn, near Greenock, in the parish of: Greenock, belonged to Malcolm Crawfurd, a gentleman of the Kilbirny family, and the lands of Easter Greenock belonged to Sir John Crawfurd, another gentleman of the same family. The two lands together made a twenty-merk land: Cartsburn being a forty-shilling or three-merk land, and Easter Greenock being valued at seventeen merks. It had been the intention to have the teinds of both of these lands valued, and the intention was carried into execution, at least regarding Cartsburn, as appeared from the extract of a decreet of valuation, dated 27th February, 1633, which proceeded on the consent of the titular tacksman, and Malcom Crawfurd, the heritor; to which agreement the commissioners of teinds interponed their authority. These proceedings referred exclusively to the forty-shilling land of Cartsburn. The valuation was fixed at three bolls of meal.
Though the decree was pronounced on 27th February, 1633, the consent of the minister was not judicially interponed to it till 18th December, 1634, on which day he gave in a ratification in these terms:— Be it kend till all men, be thir p'nt “l'res, me Mr John Laying, minister at Grenock, forsaemekill as John Crawfurd of Kilbirny, and Malcolm Crawfurd of Cartsburne, have obtainit the valuation after spect. of the teyndis of the twentie-merk land of Greenock, pertaining to tbame as follows, viz.—The seventein merkland yroff to the said Johne Crawfurd, and the fourtie schilling land yairof to the said Malcolm, approvin be the cornmissioneris for surrenderis and teyndis, in manner after spect to witt, the said John Crawfurd, for his said seventein merk land twentie-twa holls teynd, quhairof twentie bollis meill and twa bolls beir; and the said Malcolme Crawfurd, for his said fourtie-shilling land, thrie bolls meill: Thairfoir witt ye me to have ratifiet and approvin, lykas I, be the tennor heirof, ratifie and approve the foirsaid agriement and decrit foir-said of the said commissioneris interponit yairto; in all and sundrie heids, clausses,” &c.
The minister consented to registration of the deed, for preservation, and it was accordingly recorded. The heritor of Cartsburn took an extract of the valuation of the lands of Cartsburn, containing the documents above mentioned.
On the 29th January, 1662, a decree of modification and locality was pronounced, by which “The Lords Commissioners decernes and ordaines the said Mr James Tailzeor, minister at Greenock, to be ansred and obeyed of the wholl valued rent of the hail personage teinds of the old paroche of Greenock, as it was constitute befoir the yeir sixtein hundredth and fourty-nyne,” &c, “in manner underwritten: Out of the lands of Easter Greenock, pertaining to Sir John Crawfurd of Kilbirnie, twentie bolls meill and twa bolls beir: Item, Out of the lands of Carts-burne, lykewise pertaining to him, three bolls meill.” *
In a locality pursued by the minister of Greenock, in 1793, Sir John Shaw Stewart, as in right of the lands of Easter Greenock, contended, that the teinds of them, as well as of the other lands in the parish, had been valued, and that the valuation was 22 boils of victual. † The Court “Found that the teinds of the lands of Crawfordsburn (Cartsburn) were valued by a regular decreet, but found no sufficient evidence that the teinds of any of the other lands in the parish were valued.”
Sir Michael Shaw Stewart, having afterwards succeeded to the lands of Easter Greenock, recovered the two following documents:—1st, Decree, 24th November, 1668, at the instance of Thomas Crawford, assignee of Mr Taylor, the minister, obtained before the Commissary of Glasgow, against the representative of Sir John Crawfurd of Kilbirnie. The decree bore, that the minister “had obteinit decreit and sentence before the Lordes Commissioners of Parliament for plantatione of kirks and valuatione of teynds, decerning and ordaining him to be answerit and obeyt of the valued rent of the haill personadge teynds of the old parish of Greenock, as it was constitute befoir the year jajvje & fourtie-nyne, with two hundreth merkes yearlie for the viccarage teynd,” &c, “quhereof there was to be payit to the defunct and his successors serving the cure at the said kirk of Greenock, out of the lands of Eyster Greinock pertaining to the said deceist Sir John Crawfurd, twentie bolls meill, and two bolls beir. Item, Out of the lands of Cartsburn, lykewise
_________________ Footnote _________________
* In 1669, a decree of reduction of the locality, at the instance of the representative of Sir John Crawford of Kilbirnie, was pronounced, and it was said, by the defender in this action, to contain findings inconsistent with the existence of a valuation of the teinds of Easter Greenock.
† A document was also founded on, entitled, “Valuation of parochin of Greenock, 1 May, 1627;” hut it was sald to be neither a valuation by the commissioners, nor a report by sub-commissioners; and it was scarcely referred to in the proving of the tenor.
2d, An old writing, alleged to be holograph of Mr Taylor, the minister, which bore on the back, “The minister of Greenock his special charge for the locality of stipend in his decree in 1650.” Its first paragraph was in these terms:—“The valuation of the personage teind of the laird of Kilbirnie's twenty-merk land in the said parioch (by his viccarag), is twenty-five bolls victuall.” Sir Michael Shaw Stewart, founding on these documents, raised a proving of the tenor of the decree of valuation of the lands of Easter Greenock, as having been fixed at twenty-two bolls of victual. The Reverend Dr Patrick Macfarlane, minister of Greenock, pleaded in defence, 1st, That the judgment in the locality was substantially res judicata, unless either of the two new documents could afford evidence of the tenor of the decree. But the alleged writing of Mr Taylor was not admitted to be holograph; and, even though holograph, yet, being merely his statement that there was a valuation, it was quite inadequate to support a proving of the tenor; and the decree obtained by Taylor merely proved what had previously been established by the decree 1662, that the lands of Easter Greenock were localled on at the period in question, at the rate of twenty-two bolls of victual. As for the other documents, they were all found insufficient adminicles in the process of locality, and the only document of any weight was the registered ratification by the minister in 1634, which was a mere ex parte statement, that there had been a valuation of Easter Greenock, without condescending on its date, if never registered for preservation, this document would not have been a sufficient adminicle to support a proving of the tenor; and its being so registered, did not add weight to its authority.
Sir Michael answered, that, in the locality, effect could not be given to the adminicles in question, however decisive in themselves, where there was no decree of valuation extant, and no proving of it had been brought. But there was no room for the plea of res judicata, especially as new documents had been subsequently recovered. Looking to the registered consents of the titular, tacksmen, heritor, and minister, which were all parts of one transaction, with a view to valuing both Cartsburn and Easter Greenock; and to the narrative contained in the last of these, which admits that decree of valuation had been obtained as to both; and, considering the subsequent locality, and other writs founded on, and that the heritor of Cartsburn, by taking an extract, had preserved evidence oi the decree, so far as regarded his lands, there was sufficient propf of the tenor of the valuation of Easter Greenock, though it had unfortunately
The Court found the adminicles adduced not sufficient to support the action.
Solicitors: W. Patrick, W.S.— A. Clason, W.S.—Agents.