Scottish Court of Session Decisions

This was a question arising in the locality of Kinneff and Catterline, between the Lord Advocate, on behalf of her Majesty and the Commissioners of Woods and Forests, on the one hand, and the trustees of the late Viscount Keith and the Viscount of Arbuthnott on the other. The respondents founded on the following document, which they alleged to be an extract decree of valuation of certain lands in the locality:—

(Titled on back) “Valuatione of my Lord Arbuthnot's Landis wtin. mentioned” (all on face of same sheet of paper).

“(1.)— At Edinburgh, the 25th of March jajvic threttie-six.

The Baronies of Arbuthnot and Futties, lyand within the parochin of Arbuthnott, and landis within the parochins of Fordoune and Eglisgreig, perteining to my Lord Arbuthnot, are raitted and estimat to be worth yeirlie of constant rent in stock and personage teyndis particularlie as efter followis: — To witt, the maynes of Arbuthnot nyne chalders victuall, twa pairt meill and thrid pairt bier; the landis of Bamff fyve chalders victuall, twa pairt meill and thrid pairt beir; the landis of Kirktoune of Arbuthnott ane chalder fourtein bolls victuall, twa pairt meill and thrid pairt beir; the landis of Pittarles four chalders victuall, twa pairt meill and thrid pairt beir; the landis of Pitqnhorthie and Thraipland thrie chalders aucht bolls victuall, twa pairt meill and thrid pairt beir; the landis of Meikle Futthes four hundreth merks; the landis of Cauldcoittis twa chalders twelf bolls victuall, twa pairt meill and thrid pairt beir; the landis of Elpetie twa chalders meill; the landis of Gratismyre twelf bolls meill; the landis of Brumhairis-hill ten bolls victuall, twa pairt meill thrid pairt beir; the landis of Brigend ten bolls victuall twa pairt meill thrid pairt beir; the landis of Cowdoune four bolls twa firlotts meill; the landis of Mongold-rum twentie bolls victuall, twa pairt meill and thrid pairt beir; the landis of Cadnoskeyne four bolls twa flrlotts; the landis of Lais nyne bolls victuall, twa pairt meill thrid pairt beir; the landis of Craighill ten bolls victuall, twa pairt meill and thrid pairt beir; the landis of Dunrabine nyne bollis victuall, twa pairt meill thrid pairt beir; the landis of Drumzochries twentie bolls victuall, twa pairt meill and thrid pairt beir; the landis of Peathill nyne bolls victuall, twa pairt meill and thrid pairt beir; and the landis of Auldcooks twentie bolls victuall, twa pairt meill and thrid pairt beir.

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(2.)— At Edinburgh, the third of Februar jajvic & threttie-six yeirs.

The landis called the five-pairt landis of Bervie, perteining to Robert Arbuthnot of yt Ilk, are worth and may pay aucht scoire bolls beir for stock and teynd, parsonage and viccarage; the landis of Wester Kinneff, perteining to the said Robert Arbuthnot of yt Ilk, six chalders victuall; the burrow ruids of the toune of Innerbervie fourtie bolls beir; the landis of Craigaine fourtie merks; Barrescroft, fourtie merks; Ward of Kinneff and Densyde, twa chalders victuall; the landis of Slaines, Kirktoune of Kyneff, six chalders victual.

(3.)— At Edinburgh, the Twentie-fyft of March jajvic threttie-six.

The landis of Wysmaistoune and Orchardtoune twentie aucht bolls meill; the Carnetoune six chalders victual, twa pairt meill and thrid pairt beir; the landis of Cowlie thrie chalders meill; the landis of Little Cairnbeg threttie-six bolls meill; the mylne landis of Pittranny twelf bolls victuall, twa pairt meill and thrid pairt beir; the landis of Portertoune thrie chalders twa bolls victuall, twa pairt meill thrid pairt beir; the landis of Kirksyde auchtein bolls meill; the landis of Drumelzie, ane hundreth merks money, and the aikers of Fordoune twenty-twa bolls victuall, twa pairt meill and thrid pairt beir.

(4.)— At Edinburgh, the twentie-fourth of March jajvic & threttie sevin.

The landis of Drumelzie, Kirksyde, Cowlies, Fordoune, Carnetoune, Littel Carnebeg, Wysmes-toune, Orchardtoune, Portertoune, and myln landis of Pittreny, perteining to Robert Arbuthnot of yt Ilk, nynetein chalderis victual, twa pairt meill thrid pairt beir, ane hundreth merks money, qrof the vicarage is ane pairt, and valued to threttie-six pundis fyve shillings money.—Ext. This is the just extract of the valuatione of the foresaidis landis, as is mentionat in the principall registers thereof, extracted by me, Mr Thomas Murray, Advocat, Clerk-Deput to my Lord Register, and Keiper of the saids registers, ( sic sub.)

Tho. Murray.”

The valuation in question here was part 2, comprising lands partly still belonging to Lord Arbuthnott, and partly belonging to Lord Keith, who had acquired them from Lord Arbuthnott since the date of the alleged valuation.

The Crown lodged objections to this valuation, and answers thereto were given in by the respondents, on which a record was made up.

The following were the chief objections and relative answers:—

“ Obj. 4. The document founded on by the respondents as an extract decree of valuation is not, and does not bear to be, a decree of valuation; it is not, and does not bear to be, an authentic extract of any decree. It does not bear to proceed upon a proof led, either before the High Commission or before any Sub-Commission, of the true worth and value of the teinds. It was not and does not bear to have been pronounced by any competent court in any process in which the minister, or titular, or any party having a legal interest had been called. It is not duly recorded, and it is altogether informal and improbative. In reference to the statement introduced into the answer, it is believed to be true that Robert Arbuthnott was proprietor of the lands of Wester Kinneff and others. The petition and interlocutor founded on are referred to for their terms. Denied that the alleged extract decree was produced, that it was found to be authentic, and that it was recorded by authority of the Court. It is explained that the whole proceedings in said petition were ex parte, and were not intimated to the titular, or to any party interested. Quoad ultra the counter statement is denied.

Obj. 5. The document founded on is alleged to be extracted from the register by Mr Thomas Murray, advocate, clerk-depute to the Lord Register. Mr Murray acted as depute to Sir Archibald Johnston of Warriston, during the period when Sir Archibald held the office of Lord Clerk Register, between the years 1657 and 1661. The said Mr Murray had no power or authority to grant extracts of decreets of valuation, either of the High Commission or any Sub-Commission for the valuation of teinds.

Ans. to Obj. 4 and 5. The statements in these articles are denied; and it is explained—(1) The valuation of the teinds of the said lands consists of a decree of the High Commission, dated 3rd February 1636; (2) The lands at the time they were valued belonged to Robert Arbuthnot of Arbuthnot, and are so described in the decree; (3) An extract of the decree of valuation, authenticated by the depute-clerk register, was produced with a petition, presented to the Court of Teinds in 1792 by John, Viscount Arbuthnot, then proprietor of the lands, in terms of the act 1707, c. 9; (4) The said extract was found to be authentic, and was thereafter, by appointment of the Court of Teinds, recorded in the appropriate register on 14th November 1792; (5) Thesaid decree of valuation has beengiven effect to in the various processes of locality of the stipend which has been awarded to the minister, and in all proceedings connected with the teinds of the said united parishes.

Obj. 6. By statute 1661, c. 9, the meetings of the pretended Parliament and the Committees of the Estates in 1649, and all acts or deeds done by them, or their warrant, are rescinded and annulled. It is declared in the said statute that the acts, decrees, and sentences of a Commission appointed by the said Parliament for the Plantation of Kirks and Valuation of Teinds shall be valid. The document founded on as an extract is not one of the acts, decrees, or sentences of the said Commission, and is null.

Ans. 6. Denied that by the statute, 1661, c. 9, the decrees pronounced by the Commissioners of Teinds, or the extracts thereof, were invalidated or in any way affected. On the contrary, the decrees issued by the Teind Commissioners were expressly excepted by saving clauses in the rescinding acts which were passed after the Restoration.”

The objector pleaded:—(1) The only legal proof that the teinds of any particular lands have been valued in terms of the statutes in that behalf, is a regular decree of valuation obtained in a competent court against the titular and other parties having interest, and as no such decree has been produced applicable to the lands mentioned in the foregoing statement, these lands cannot be held to have been valued. (2) The writing founded on as a decree of valuation of the said lands is not a decree pronounced by a competent court in a legal process. (3) The alleged extract is null and void under the Act 1661, c. 9. (4) The writing founded on, not being in itself a good decree of valuation, cannot be validated by being recorded in the register of old decreets. (5) The said writing has not been duly recorded in terms of the Statute 1707, c. 9.

The respondents pleaded:—(4) It is incompetent

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to impugn the decree of valuation of the respondent's lands by the High Commission, which has been acted on for more than two centuries, without bringing it under reduction. (5) All objections to the said decree are excluded by the positive and negative prescriptions, or one or other of them. (6) There are no grounds under the provisions of the Act 1661, cap 9, for objecting to the valuation of the teinds of the respondent's lands, or the extract thereof.