Scottish Court of Session Decisions

It has been just mentioned, that in the process of approbation at the instance of Mr Stirling of Kippendavie, raised in 1796, the extract-decree, which is dated 24th May 1797, sets forth the production in process of “a book or record, containing the principal reports of the Sub-Commissioners of the Presbytery of Dunblane.” In confirmation of the fact of this production, the business ledger of the late James Dundas, Clerk to the Signet, bears, of date 20th September 1797, that amongst other charges in this process paid to the teind-clerk was a sum of six shillings, thus entered:—“Clerk's servant, for carrying the sub-valuation book to Court, during the diets of process, and scroll.” It is thus made apparent that a book containing the principal report of this very valuation of 5th October 1629 was produced in that process; perhaps may be more correctly said to have been exhibited in custody of the teind-clerk's servant. Presumably it was returned to the teind-clerk's custody; being a document of value, proper to remain in official charge.

That it was so returned has been proved by Mr John Barron, whose valuable services forforty-seven years as Depute-clerk of Teinds invests him with peculiar trust-worthiness. Mr Barron produced a volume from the teind records, titled on the back, “Record Sub-commission Valuation Teinds 1629 and other years.” He is or opinion that this is the identical volume which was produced in the process of approbation as to the teinds of Kippendavie. There is an old index to the volume bound up in it, and purporting to give its contents, indicating that it originally contained the sub-valuations applicable to the Presbytery of Dunblane. These are not now in the volume. But that such documents were occasionally taken out from the volumes, in which they were bound up, without any evil purpose, is proved by the fact stated by Mr Barron, that the reports of the Sub-Commissioners of the Presbytery of Argyll were taken out of this same volume in his time, and are preserved in the Teind-office in a separate roll. Mr Barron has searched in every process, and in every corner in which the missing valuation was likely to be found, but could not find it. I think it is fairly to be held that the document has gone a-missing through that fatality to which all public registers are liable, and which seems peculiarly to have pursued the teind records. The pursuers, who are in no sense responsible for the loss of the document, have, I think, fairly placed themselves in circumstances entitling them to supply its loss by a proving of its tenor.

The question remains, whether the tenor of the sub-valuation has been sufficiently proved, so far as regards the lands in question? The case in this respect stands peculiarly. It might have been expected that, with so many judicial proceedings arising out of this sub-valuation, various copies of the document would be found to be in existence. But the pursuer's agent, Mr William Fraser, proves that he has inquired at the agents for Aberuchill and Kippendavie and others, and wherever he thought it likely to obtain such aid, and unsuccessfully. But one very remarkable document has been discovered and produced to the Court.

This document had been found in the family records of Stirling of Keir, and bears to be a copy of the sub-valuation of 5th October 1629, with an additional valuation of 23d February 1630. It contains valuations of a great many lands, including those of Balhaldies and Glassingallbeg now in question, expressed in the usual form of such documents. It bears the original sub-valuation to have been signed by five of the sub-commissioners, and Mr James Niven, their clerk. The document is in a handwriting which is proved, by various men of skill in such a matter, to be that of the seventeenth century. It is docqueted on the back—“Copie of the Valuations of Teinds of the parishe of Dumblaine valued before the sub-commissioners within written October 5, 1629 yeirs.” And there is as strong evidence as the comparison of handwriting can afford that this docquet is in the handwriting of Sir George Stirling of Keir, who was proprietor of that estate from the year 1630 to the year 1667, when he died.

There is no reason to doubt that this document is truly what it purports to be, a copy of the sub-valuation of 5th October 1629, made shortly after the date of the sub-valuation, and retained amongst his family muniments by a proprietor materially interested. The next inquiry regards its accuracy. As to this, there is a direct test afforded by the proceedings in the processes of approbation already referred to, in which the original valuation is quoted, as regards the lands to which these processes apply. In particular, there is the process of approbation brought by Mr Stirling of Kippendavie in 1796, and the process of approbation as to Kilbride, brought by Sir James Campbell in 1806. In both cases the copy in question is shown to be a correct transcript of the original sub-valuation. The only deviations from strict accuracy proved against it are, that in the extract produced in the case of Kilbride, the partibus is somewhat differently and more lengthily expressed; and that in one or two sentences the writer of the copy in question has not finished the entire sentence he was transcribing. Of this last defect, the only important instance occurs in the case of the lands of Keir, of which those forming the leading parcel are set forth as valued, without the sum of their valuation being carried out. But the copy begins the next line with the valuation of the rest of the lands of that estate, occupying several lines; and it is here identical with the valuation of these same lands quoted in the decree of approbation obtained by Sir George Stirling in 1637.

There is nothing in this apparently accidental omission leading me to doubt the entire accuracy of this copy in all the particulars in which it bears fully to transcribe the original valuation. In regard to the pursuer's lands of Balhaldies and Glassingallbeg,

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