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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macvicar v. The Heritors of Manor [1866] ScotLR 2_217_1 (12 July 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0217_1.html
Cite as: [1866] ScotLR 2_217_1, [1866] SLR 2_217_1
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SCOTTISH_SLR_Court_of_Session
Page: 217↓
Court of Session Inner House Second Division.
v.
Facts:
A surrender of teinds by an heritor in a process of locality refused to be sustained in respect the amount of his teinds was not ascertained by the decree of valuation on which he founded, and could not be ascertained without a process of division.
This is a question in a process of augmentation and locality at the instance of the minister of the parish of Manor against the heritors of the parish. In the process Mr Tweedie of Quarter made the following condescendence and surren der:—
1. The condescender, the said James Tweedie, is heritable proprietor of the lands of Hallmeadow, town of Manor, Glenrath, Hallmanor, Castlehill, Welshhouses, and mill lands of Manor, lying in the said parish of Manor, together with the teinds, parsonage and vicarage thereof, conform to—(1) Extract registered disposition and assignation by the trustees of his father the late Thomas
Page: 218↓
Tweedie of Quarter in his favour, dated 17th November, and registered in the Books of Council and Session 3d December 1856; and (2) instrument of sasine following thereon in his favour recorded in the General Register of Sasines at Edinburgh 3d December 1856. 2. By decreet of valuation at the instance of James Burnet of Barns against the Earl of March and the ministers of the parishes of Peebles and Manor, dated 16th July 1729, No. 36 of the present process, the teinds of the said lands belonging to the condescender, along with the teinds of the lands of Barns, Hasswellsykes, Over Glack, and others, now belonging to William Alexander Forrester, Esq,, of Barns, and of the lands of Woodgrievington, and two-third parts of Bonningtoun, in the parish of Peebles, now belonging to Sir Adam Hay of Haystoun, Bart., were valued as follows, viz.:—
Money.
Victual, Meal.
£
s.
d.
B.
F.
P.
L.
1. The lands of Barns, Hasswellsykes, two-thirds of Over Glack, and one-quarter of Woodhouse, the lands of Hallmeadow, Templehouse, Town of Manor, Bonningtoun, Woodgrievington
306
10
8
1
2
1
2
2. Glenrath
186
13
4
3. Hallmanor
106
13
4
4. Castlehill and Welshhouses
73
6
8
3
0
3
0
5. Mill Lands of Manor
3
0
3
0
673
4
0
4
3
0
3
Deduct for Woodgrievington and two-thirds of Bonningtoun, in the parish of Peebles
96
11
1
1
2
1
2
Scots,
576
12
11
3
0
3
0
Sterling,
48
1
0
3
0
3
0
By minute of agreement dated 24th December 1838, entered into by the condescender's father the said Thomas Tweedie, the said William Alexander Forrester, and their author, this valued teind was divided as follows:—
Money.
Victual, Meal.
£
s.
d.
B.
F.
P.
L.
Mr Forrester's lands,
13
2
9
0
0
0
0
Mr Tweedie's lands,
34
18
3
3
0
3
0
48
1
0
3
0
3
0
3. By decree of locality of the stipend to the minister of the said parish of Manor in 1806, the portion thereof allocated upon the said lands now belonging to the condescender Mr Tweedie and Mr William Alexander Forrester, and then belonging to their predecessor Mr Burnet of Barns,
Money Stg.
Meal.
Barley.
£
s.
d.
B.
F.
P.
L.
B.
F.
P.
L.
was,
27
13
5
10
1
1
1
10
1
1
1
By the minute of agreement mentioned in the preceding article, this stipend was divided as follows:—
£
s.
d.
B.
F.
P.
L.
B.
F.
P.
L.
Mr Forrester's lands,
13
2
9
0
0
0
0
0
0
0
0
Mr Tweedie's lands,
14
10
8
10
1
1
1
10
1
1
1
27
13
5
10
1
1
1
10
1
1
1
4. The valued teind of the condescender's lands as mentioned in article second is—
£
s.
d.
Money sterling,
34
18
3
Meal, 3 b. of, 3 p. at average of fiars prices, @ 17s. 10d. 11–12ths p. boll,
2
14
10
37
13
1
The stipend as mentioned in the preceding article is—
£
s.
d.
Money,
14
10
8
Meal, 10 b. 1 f. 1 p. 1 l. @ 17s. 10d. 11–12ths p. boll,
9
4
11
Barley, 10 b. 1 f. 1 p. 1 l., or 7 qr. 4 b. o pt. 1 g. @ 32s. 3d. per qr.
12
1
11
35
17
6
Surplus teind,
1
15
7
Which surplus teind is liable to be exhausted in the event of a slight rise in the fiars prices.
surrender.
The condescender is willing to surrender, and now hereby surrenders, to the minister the valued teinds above specified of his lands in the parish, and protests that he shall not be liable for any share of expenses to be incurred in the locality.
The Lord Ordinary (Barcaple) approved of the minute of division and the surrender for Mr Tweedie.
The minister reclaimed.
Balfour ( Millar with him) argued for the minister that the proposed surrender could not be sustained. By the decree of valuation founded on, the teinds of lands in two separate parishes,
Page: 219↓
Clark (with him Lee), for the heritor, argued that by the minute of surrender Mr Tweedie surrendered his valued teind, whatever the amount of that might be, and that no question as to whether certain lands were or were not valued could be prejudiced by the surrender being sustained. Further, the allocation of the cumulo valuation set out in the minute was correct, and was arrived at upon data furnished by the decree of valuation. The decree contained a narrative of the proof led as to the value of the several parcels of land, the teinds of which were valued in cumulo, and the proportion of the cumulo valuation effeiring to each parcel of land was ascertained by taking one-fifth of the proved value of such parcel, and making allowance for the proportion of certain cot houses estimated as effeiring thereto.
The Court intimated an opinion that the proposed surrender could not be sustained, and continued the case till a future day in order that Mr Tweedie might have an opportunity of lodging a minute of surrender in such different terms as might obviate the objections to the minute then before the Court.
Mr Tweedie accordingly lodged a minute of surrender, making no mention of the minute of agreement, but simply narrating his titles to the lands and the decree of valuation, surrendering in general terms the valued teinds of his lands, and protesting that neither he nor his successors should be liable for any expense that might be incurred in the present or any future process of locality.
Counsel for the minister objected to the minute that it did not show the amount of teind surrendered, that it was incompetent to surrender an unascertained amount of teind, and that the result of sustaining the surrender now proposed would be to leave the minister to litigate at his own expense all the questions which might arise either with the parish of Peebles or with the other heritors of Manor as to the allocation of the cumulo valuation.
Counsel for Mr Tweedie argued that a heritor is entitled to surrender upon a cumulo valuation, leaving it to the minister to ascertain the amount of teind so surrendered; but the Court refused to adopt this view, and pronounced an interlocutor whereby they “recal the interlocutor reclaimed against, and in respect the amount of the heritor's teind is not ascertained by the decree of valuation founded on, and cannot be ascertained without a process of division of the cumulo valuation contained in the said decree of valuation, refuse to sustain the surrender and decern; and find the minister entitled to expenses since the date of the Lord Ordinary's interlocutor.”
Solicitors: Agents for Minister— W. H. & W. J. Sands, W.S.
Agents for Mr Tweedie— Mackenzie & Kermack, W.S.