Scottish Court of Session Decisions

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Cite as: [1880] ScotLR 17_804, [1880] SLR 17_804

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SCOTTISH_SLR_Court_of_Session

Page: 804↓

Court of Session Inner House First Division.

Tuesday, July 20. 1880.

[ Lord Adam, Ordinary.

17 SLR 804

Duke of Athole

v.

The Lord Advocate and Another.

Subject_1Process
Subject_2Proving the Tenor
Subject_3Teinds.
Facts:

In an old sub-valuation in the teind-office one word or figure representing the valuation in bolls of the teinds of certain lands was obliterated by a tear in the paper. An action to prove the tenor of the last figure was raised by the owner of the lands, who brought as adminicles certain documents produced in a former process of augmentation in the parish, which showed that the lost figure was 10. The Teind-Clerk having reported on a remit, the pursuer asked decree on that report without further proof, and the Court decerned accordingly.

Headnote:

Page: 805↓

The Duke of Athole brought a summons against the Lord Advocate and the minister of the parish of Caputh to have it found and declared “That the report of the Sub-commissioners appointed for valuing the stock and teind of the lands within the presbytery of Dunkeld, dated on or about the 29th day of July 1635, in so far as concerns the valuation of the rent, stock, and teind of the lands of Drumbowie, in the said parish of Caputh, then pertaining to Thomas Wallandie of Drumbowie, and now to the pursuer, was of the following tenor:—‘Finds ye lands of Drubowi perteing to Thomas Wallandie of Drumbowi, to be worth of rent, stok, and teind zeirlie (by the comoditie of the myln yroff), of victual tua pairt meill and thrid pairt beir, x bolls allegit haldin decimis inclusis: ‘As also that the decree to be pronounced in the process to follow hereon shall be as valid and effectual a document of the valuation of the rent, stock, and teind of the foresaid lands of Drumbowie in all cases and causes whatsoever, improbation as well as others, as the said sub-valuation if entire would be.” It appeared that in the said sub-valuation, which was extant in the teind-office, a tear of the paper ran through and obliterated the figure immediately preceding the word “bolls” in the passage above quoted. The adminicles relied on by the pursuer for proving the tenor of the lost figure were entries in various documents forming numbersof process in an augmentation and locality of the parish of Caputh raised in 1792, which contained the figure 10 as the number of bolls of the lands of Drumbowie. The Court having remitted to the Clerk of Teinds to examine the adminicles founded on, and to report, the Clerk reported, that “With respect to the valuation of the lands of Drumbowie, belonging to the pursuer, it appears to the reporter that the figure used before the word bolls was [a mark], representing ten. It can still be seen, although partially obscured, partly by the writing having become indistinct, and partly from a tear running through the figure. The other words relating to Drumbowie set forth in the summons are all quite distinct.”

The pursuer then moved the Court for decree in terms of the conclusions of the summons, upon the above report, without remitting the case to further proof. He cited the following authorities— Fogo v. Colquhoun, Dec. 6, 1867, 6 Macph. 105; Lord Lynedoch v. Liston, June 24, 1841, 3 D. 1078; Dow v. Dow, June 30, 1848, 10 D. 1465; Cunningham v. Mouat's Trustees, July 17, 1851, 13 D. 1376; Ronald, July 3, 1830, 8 S. 1008.

At advising—

Judgment:

Lord President—A proving the tenor is so peculiar and yet so important a form of process that we must walk warily when we meet with an out-of-the-way case, and there is undoubtedly some peculiarity here, because the destruction of a writing (if it may be so called) in this case is the destruction of one word or letter, and in a public record. I had some difficulty at first in seeing how a process of proving the tenor could be made to avail in restoring a word or a letter. But I am now quite satisfied on the authorities that the difficulty has been got the better of. The conclusion of the summons is to set up only the portion of the record which relates to the lands of Drumbowie, which belong to the pursuer, and it is the valuation of those lands which is the material part of the record to the pursuer, and it is the word or figure representing this valuation which is said to be obliterated on the record. The effect of our decerning would be to enable the pursuer to set up only this small part of the record in which he is interested without substituting for the entire record a decree of proving the tenor.

As to the evidence which is before us in this process, it consists of nothing but the adminicles (which are satisfactory enough), and a report of the Teind-Clerk, and if it were necessary to go through the form of having a proof, that might be done, but it would be a mere form, and I think we have good authority for holding the report of the Teind-Clerk as equivalent to a proof in the case of Lord Lynedoch. My difficulty is thus removed, and I think we may grant decree as craved.

Lord Deas, Lord Mure, and Lord Shand concurred.

The Court decerned in terms of the conclusions of the summons.

Counsel:

Counsel for Pursuer— Keir. Agents— Tods, Murray, & Jamieson, W.S.
1880