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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Nicol and Others v. Paul [1867] UKHL 22 (11 May 1867)
URL: http://www.bailii.org/uk/cases/UKHL/1867/04SLR0022.html
Cite as: [1867] UKHL 22, 4 ScotLR 22
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SCOTTISH_SLR_House_of_Lords
Page: 22↓
House of Lords.
v.
Subject_Teinds—Valuation—Barony.
Facts:
A summons of valuation brought into Court the “lands and barony of A.” In the process a rental was produced of several holdings, bearing to be a rental of the “haill lands libelled.” The lands specified in the rental were separately valued in the decree. Judgment of the Court of Session, finding on construction of the decree that the teinds of those portions of the barony, if any, which
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were not embraced within the special subjects enumerated in the rental forming the basis and limit of the decree, were unvalued, and allowing a proof before answer of an averment by the minister in a locality that certain specified subjects in the barony were unvalued, affirmed. Opinion (p. Lord Cranworth) that if the barony had, at the time of the decree, included not only the subjects specifically mentioned, but moss-lands in the lands of the heritor, yielding no rent, it would not be inaccurate to say that the rental, though silent as to those lands, was a rental of the whole lands libelled, since it would state all the rent yielded by the lands.
The Reverend William Paul, minister of the parish of Banchory-Devenick, raised a summons of augmentation, in 1862, against the whole heritors of the parish. The heritors resisted, on the ground that the teinds of the whole lands in the parish were valued, and the valued amount exhausted by the stipend already localled thereon. They contended that there could be no augmentation, there being no free teinds in the parish. In support of this contention they relied (1) on certain decrees valuing the teinds of lands within the parish; and (2) on the fact that for upwards of 40 years the teinds of the whole lands within the parish had been regarded as exhausted, and that the minister had during that time annually drawn sums from Exchequer under the provisions of the Acts 50 Geo. III. c. 84, and 5 Geo. IV. c. 72, in aid of the stipend payable to him out of the teinds. The minister, on the other hand, maintained that there were various lands in the parish not included in the valuation relied on by the heritors, and still liable to teind. The Teind Court having remitted to the Lord Ordinary to examine and report whether there was any free teind in the parish, the minister lodged a minute in which he averred that there were lands in the parish yielding an annual rental of at least £4960, the teinds of which had not been valued, and that the free teind thence arising was not less than £992; that the whole lands mentioned in the decrees founded on by the heritors were not valued, but only those portions of the lands which at the dates of the decreets were corn lands and were under cultivation; and that since the date of the decreets a large portion of land had been brought under cultivation and yielded a large rental, capable of affording the augmentation craved.
In particular, the minister alleged that a decreet of valuation obtained in 1695, with reference to the lands and estates of Banchory, did not include the whole lands of Banchory, but that a number of parcels of land, which he enumerated, were excluded therefrom. He farther maintained that the decreet of valuation of the lands and barony of Findone, lands of Cookstoune and others, obtained in 1682, and the decreet of valuation of the lands and barony of Portlethen, and lands of Auquhorthies and others, obtained in 1709, only included such lands as were corn lands at these dates.
After various procedure before the Teind Court, their Lordships modified a stipend to the minister of 20 chalders, the interlocutor bearing “that the modification and the settlement of any locality thereof, shall depend upon its being shown to the Lord Ordinary that there exists a fund for the purpose.”
A common agent having been appointed in the locality, objections to his report on the state of teinds were lodged by the minister, and answers thereto by the heritors. After argument on these objections and answers, the Lord Ordinary on teinds ( Ormidale) pronounced an interlocutor whereby he repelled the objections and pleas of the minister except to a limited extent. This judgment of the Lord Ordinary was adverse to the minister upon the pleas maintained by him in reference to the exclusion of lands from the decreets of valuation of Findone and Portlethen. It also found that the lands of Banchory, comprehended in the decreets of valuation of 1695, were all valued, and that such valuation was not confined to such of those lands as were corn lands at its date.
The minister reclaimed to the Second Division of the Court, who pronounced this interlocutor—“Recall the interlocutor complained of, in so far as regards the objections stated by the minister to the 10th, 11th and 14th articles of the revised condescendence: Find that, according to the true construction and effect of the decree of valuation of 1682, the teinds of those portions of the barony of Findone, if any, which are not enumerated in the rental produced by the pursuer, and adopted as the basis and limits of the decree of valuation, are unvalued: Find that the teinds of the lands of Barclayhill, Calsayend, and Meddens, mentioned in the said decree are not valued by said decrees: Find that the terms of said decree are not such as to exclude a proof or inquiry before answer, that the teinds of the parcels of lands mentioned in the 11th article of the condescendence, or any of them, are unvalued: Find that, according to the true construction and effect of the decree of valuation of 1709, the teinds of those portions of the barony of Portlethen, if any, which are not embraced within the special subjects enumerated in the prepared state of the proof, which forms the basis and limit of the decree of valuation, are unvalued: Quoad ultra, adhere to the Lord Ordinary's interlocutor, and remit to his Lordship to direct such inquiry as may be rendered necessary by this interlocutor, and to proceed farther as shall be just; reserving in the meantime all questions of expenses.”
Against this judgment, so far as adverse to them, the heritors appealed, and stated the following reasons of appeal:—
1. Because the teinds of the whole lands and barony of Findone, and of the whole other lands mentioned in and embraced by the decreets of valuation of the 29th March 1682, and the teinds of the lands and barony of Portlethen, and other lands set forth in and embraced by the decreet of valuation of 19th January 1709, were valued, and have since the date of the said decreets been regarded and dealt with by all parties interested as valued.
2. Because the decrees of valuation in question, pronounced the one in 1682 and the other in 1709, having since been regarded and acted on by the heritors and minister and their predecessors as decrees of valuation of the whole lands belonging to the appellants in the parish, the respondent is barred by prescription from challenging the said decrees or maintaining that they and the actions in which they were pronounced do not embrace and value the teinds of the said whole lands; at all events, such decrees cannot be challenged except in competent processes of reduction at the instance of the parties seeking to challenge them, and upon relevant and sufficient grounds.
3. Because it is a not a valid or relevant objection to the decrees of valuation in question that no separate valuation was put upon portions of land
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then uncultivated, belonging to heritors by whom the decrees were obtained, but which it is alleged have now been brought under cultivation. 4. Because all parties having, since the date of the decrees in question obtained respectively in 1682 and 1709, acted and transacted on the footing that the teinds of the whole lands in the parish were valued and the teinds exhausted; and the respondent and his predecessors in office, ministers of the cure, having since the year 1812 drawn sums from Exchequer in aid of their stipend on this footing, the respondent is now barred from maintaining that any portions of the lands belonging to the appellants are valued.
The respondent contended that the interlocutor appealed against ought to be affirmed, for the following reasons:—
1. That the decrees of valuations of 1682 and 1709 do not instruct that the lands specified in articles 10th, 11th and 14th of the respondent's revised condescendence were valued for teind under said decrees, and that it is competent to inquire whether said lands were or were not included in the subjects valued by said decrees.
2. That the teinds of the whole lands and barony of Findone &c., were not valued by said decree of 1682, and that no lands were valued by said decree except the special subjects enumerated in the rental produced by the pursuer of the valuation, and adopted as the basis and limits of the decree.
3. That by the decree of 1682 the lands of Barclayhill, Calsayend and Meddens, are expressly excepted from the valuation, and declared not to be teindable subjects, and therefore incapable, as at the date of the decree, of being made the subjects of a process of valuation.
4. That the teinds of the whole lands and barony of Portlethen were not valued by the decree of 1709, and that those portions only of the said lands and barony were thereby valued which are enumerated in the prepaied state of the proof referred to and incorporated in the decree.
5. That the said lands of Barclayhill, Calsayend, and Meddens, being now teindable subjects, are liable to be localled on for stipend to the extent of one-fifth of their rental.
6. That it is incumbent upon the appellants to instruct that the other lands belonging to them, condescended on by the respondent as unvalued, are included in the subjects falling within the decrees of 1682 and 1709; and, in any view. It is competent for the respondent to instruct that the lands condescended on by him are distinct and separate subjects from the lands or portions of land valued by the said decrees.
7. That inquiry into the extent of the lands embraced in the said decrees of valuation, and the existence of unvalued lands belonging to the appelants, is not barred by the proceedings in former localities, or by the circumstance of the minister of the parish of Banchory-Devenick having received aid from Exchequer.
The Lord Advocate ( Gordon) and Forbes for appellants.
The Attorney-General ( Rolt,) and Hall for respondents.
My Lords, that proceeding was instituted in order to have an increase to his salary as minister of the parish fixed upon certain lands in the parish of Banchory-Devenick, of which Ire was minister, which he alleged to have never been valued for teind. That proceeding was commenced by a summons on the 25th March 1862, and the Court of Teinds (which is substantially the Court of Session) made a remit thereupon to the Lord Ordinary to examine whether there were any free teinds. The minister of the parish, Dr Paul, on that lodged a minute stating that there were unvalued lands in the parish, the rental of which he alleged to be £4960; and if that were so, then, according to an old statute, the teinds would be capable of being augmented to the extent of one-fifth of that amount which would be about £900 odd. The Lord Ordinary made a remit to the Teind-Clerk to inquire whether there were any free teinds. And the Teind-Clerk on the 10th December 1862 reported that there was undoubtedly a certain amount of free teinds, and that if the unvalued moss and grass lands were to be taken into account, there was a considerable amount of free teinds. Upon that, the Lord Ordinary, without expressing any opinion himself, or hearing any argument, remitted the case to the Inner-House, and the Inner-House shortly afterwards appointed the pursuer to condescend articulately upon the lands which he alleged were subject to teind. That was done, and after that answers were put in by the heritors. And then, before going into proof, an argument was had before the Inner-House which was very much in the nature of an argument upon relevancy, the question being whether, supposing the statement of the condescendence to be true, that there were lands unvalued, the minister had made out to the satisfaction of the Court that he was entitled to have and ought to have, an augmentation of his stipend. Upon that the Inner-House, having heard the argument, modified, decerned, and ordained the constant stipend and provision of the kirk and parish of Banchory-Devenick to have been for the year 1862 of such an amount, to be paid in the manner and at the time there set forth. I need nut go into the detail of that, it is immaterial, but the interlocutor concludes with these words, “declaring that this modification, and the settlement of any locality thereof, shall depend upon it being shown to the Lord Ordinary that there exists a fund for the purpose.”
The cause having been remitted to the Lord Ordinary, the parties then went into proof, and the Lord Ordinary made a report, whereby he found that the question, whether there are or are not free teinds, depends on the question whether the decreets of valuation relied on relate to the whole lands or only to parts of them. Substantially, he may be taken to have found for the heritors, that is, the respondents, in omnibus, against the claim of the minister.
It is necessary to call your Lordships' attention shortly to the statements of the condescendence and to the reasons to them. The condescendence on the part of the pursuer consisted of various statements, that particular lands, in the parish, which he set forth in the different articles of the condescendence, never had been valued for teind, and therefore remained liable to his demand. The Inner-House having decreed that if he could establish that there were free teinds, he was entitled to an augmentation, the answer of the heritors was, that all the lands on which he so condescended had in substance already been valued for teind,
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It is not necessary to trouble ourselves with many of these articles of condescendence, because the question is eventually narrowed to the point whether, in respect of two particular portions of land, the barony of Findone or some of the lands therein, and the barony of Portlethen, the heritors have or have not made out that the whole of those lands had been valued for teind. The heritors relied in respect of the barony of Findone upon a decreet of valuation made under the statute of Charles I., dated I think in the year 1682, which valuation, they contended, embraced the whole barony of Findone. With regard to the barony of Portlethen, they relied not upon that decreet, but on another decreet in the year 1709, which they contended exhausted the whole barony of Portlethen. The statement of the minister on the subject of the lands of Findone is found in the 10th and 11th articles of the condescendence. The 10th is this—“The foresaid lands of Barclayhill (those are some lands which have been already mentioned as being in Findone) which were occupied at the date of the summons by Alexander Leper formed part of the barony of Findone. The said decree of valuation does not value or fix the teinds of the said lands of Barclayhill. Neither does the decree value or fix the teind of that portion of the lands of Badentoy possessed by James Mowat for a money rent or the teind of any part of the lands of Calsayend and Meddens. These lands of Barclayhill, Calsayend, Meddens, and that part of the lands of Badentoy occupied by James Mowat at the date of the decree at a money rent, which now belong to the defender, Jame Dyce Nicol, Esquire, are all undervalued for teind.”
“The present rental of these lands amounts to not less than £534, one-fifth whereof for teind is £106, 16s.”
Then by the next condescendence they state that “a large extent of the lands and barony of Findone was at the date of the said decree uncultivated and partly in moss. These waste and moss lands were not included in the decree along with the arable lands, which were alone thereby valued, and in respect of which the tenants paid victual rent. The following subjects were waste or moss lands at the date of the decree and are valued, but have now been improved and converted into teindable subjects.” I need not trouble your Lordships with stating them in detail.
With regard to Portlethen, the l4th condescendence states that “The teinds of part of the lands and barony of Portlethen, and also of part of the date of the valuation, but by far the greater part was then uncultivated, and either in moss or grass, and has since been reclaimed. The rental of these unvalued lands, so far as they are now teindable subjects, is not less than £330, whereof one-fifth is £106.” That is about the same as in the barony of Findone.
My Lords, I have stated that the Lord Ordinary reported against the minister and in favour of the heritors. It is unnecessary to say more on this point than that, in fact, he reported in favour of heritors as to almost everything, but certainly as to the lands of Findone and Portlethen.
The case was then brought by reclaiming note before the Inner-House, and the Inner-House then pronounced the interlocutor which forms the subject of the present appeal. That interlocutor was pronounced on the 5th of February 1865, and is as follows:—“Recall the interlocutor complained of in so far as regards the objections stated by the minister in the 10th, 11th and 14th articles of the revised condescendence.” Those are the articles to which I have referred; and “Find that, according to the true construction and effect of the decree of valuation of 1682, the teinds of those portions of the barony of Findone, if any, which are not embraced within the special subjects enumerated in the rental produced by the pursuer, and adopted as the basis and limits of the decree of valuation are unvalued: Find that the teinds of the lands of Barclayhill, Calsayend and Meddens, mentioned in the said decree, are not valued by said decree: Finds that the terms of said decree are not such as to exclude a proof or inquiry before answer, that the teinds of the parcels of lands mentioned in the 11th article of the condescendence or any of them are unvalued.” So much as to Findone. Then the Court proceeds to find that “according to the true construction and effect of the decree and valuation of 1709, the teinds of those portions of the barony of Portlethen, if any, which are not embraced with in the special subjects enumerated in the prepared state of the proof, which forms the basis and limit of the decree of valuation, are unvalued. Quoad ultra adhere to the Lord Ordinary's interlocutor; and remit his Lordship to direct such inquiry as nay he rendered necessary by this interlocutor, and to proceed further as shall be just, reserving in the meantime all question of expenses.”
The ground on which the inner-House proceeded as to the lands comprised in the 11th and 14th articles of the condescendence was, that it did not appear on the face of the decrees of 1682 and 1709 that the lands which were thereby valued for teinds must of necessity include all the lands referred to in those two articles.
Where a decree purports in terms to have valued all the lands a of a parish for the purpose of ascertaining the teind to which the heritors are liable, no question can afterwards be raised us to any of lands which it embraces being teindable. The decree concludes everything; so where it purports to have valued any part of a parish known by some general designation as a barony, no question can be afterwards raised as to the lands included under that designation, except by showing that the lands now passing under that designation comprise subjects which did not form part of what was valued under that same name by the decree.
The Court below were of opinion, that though possibly the lands valued by the decree of 1682 as lands of Findone may comprehend the whole
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The ground on which the appellants complain of this interlocutor is, that the decrees, fairly interpreted, do necessarily comprise all the lands which, at the respective dates of the decrees, constituted, and now constitute, the barony of Findone and the barony of Portlethen; whether they are warranted in the contention depends entirely on the true construction of the decrees themselves.
And, first, as to the decree of 1682, relating to Findone. It appears to have been made in a process of valuation prosecuted by one Alexander Bannerman, an heritor in the parish of Banchory, against Mr James Gordon, parson of the parish, and the then Bishop of Aberdeen. The decree, after referring to the statutable authority under which the Court was acting, proceeds thus:—“And true it is and of verity, that the teinds, parsonage and vicarage, of the saids persewars, their lands, baronie, and others underwritten, viz., the lands and baronie of Findone, the lands of Cookstoune, Calsayend, Meddens, and Badentoy, with their pertinents, lying within the parochine of Banchory-Devenrick and sheriffdeme of Kincardine, are yet unvalued.” It then, after stating that the then pursuer had produced his title to the lands libelled, proceeds thus:—“As also the said pursuer's procurator produced ane rentale of the haill lands lybelled, whereof the tenor follows— Imprimus, Robert Hunter, in Findone, payes yearly 43 bolls of meill and beir; Richard Bannerman, in Findone, payes yearly 46 bolls of meill and beir for his occupation of the lands of Findone; Robert Anderson, at the milne of Findone, payes for his occupation of the milne, pleugh and croft thereof, yearly 24 bolls of meill and beir; Alexander Leper, in Barclayhill, for his occupation of the lands of Barclayhill, 100 merks money yearly;” and then proceeds with the rental of other lands not described as of Findone.
The Commissioners then, after stating the proceedings taken for verifying the rental, go on thus to make their valuation:—“The said Commissioners have found and declared, and hereby finds and declares, the constant rent and true availl of the said lands in stock and teind, both parsonage and vicarage, to be now and in all time coming the particular soumes of money and quantities of victuall after specified, viz., the said lands of Findone, formerly possesst by the said Robert Hunter, and now by William Smith, to be worth in stock and teind, parsonage and vicarage, the number of 20 bolls meill and 20 bolls beir, the teind whereof extends to the number of 4 bolls meill and 4 bolls beir; item, that part of the said lands of Findone possesst by the said Richard Bannerman, the number 20 of bolls meill and 20 bolls beirin stock and teind, the teind whereof extends to the number of 4 bolls meill and 4 bolls beir; item, the milne of Findone and milne, pleugh and croft thereof, possessed by the said Robert Andersone, the number of 24 bolls victuall meill and beir, and £8 money in stock and teind, the teind whereof extends to the number of 4 bolls, 3 firlots, and one-fifth part of 1 firlot of victuall, and £1, 12s. money.” I do not think it important to refer to the rest of the decree.
The appellants contend that this valuation must necessarily be held to include the barony. They rest their argument on these grounds. The barony of Findone certainly formed part of the lands libelled. The rental put in by the heritor is stated to be a rental of the whole lands libelled; and though the rental does not in terms mention the barony, yet it enumerates three persons as being tenants in Findone, besides a fourth, who was tenant of Barclayhill, which by the 10th article of the condescendence is admitted to form part of the barony, the necessary inference therefore (the appellants say) is, that these four subjects constituted the whole of the barony. It would otherwise be untrue to say that the rental was a rental of the whole lands libelled.
But is this a legitimate inference from the language of the decree? I cannot think that it is. Suppose the fact to have been that the barony at the time of the decree comprised not only the four subjects specifically mentioned, but also moss lands, yielding no rent, but held by the heritor himself, it would not be inaccurate to say that the rental, though silent as to these lands, was a rental of the whole lands libelled. It would state all the rent yielded by the lands libelled, and so might fairly be described as a rental of all the lands libelled. On this very short ground I have satisfied myself that the interlocutor properly admitted the parties to proof.
The facts as to the barony of Portlethen are substantially the same. The question as to this barony arises on a decree of valuation, dated the 19th of January 1709. In this case no rental was carried in by the heritors as in the decree of 1682, but the Commissioners found that the teinds of ( inter alia) all and whole the lands and barony of Portlethen were yet unvalued; and the heritor, Alexander Thompson, having produced his titles to these lands and barony, the Commissioners found and declared the just worth and constant yearly avail of the lands of Portlethen, with its pertinents, to be $357, 6s. 8d. The decree states various inquiries made, showing in detail how that sum was arrived at. It is possible, as in the case of the barony of Findone, that the lands, the rents of which are enumerated as making up the $357, 6s. 8d., might comprise the whole of the barony. But this certainly does not appear ex facie of the decree. On the contrary, the decree shows that Alexander Thomson, the heritor, was seized of the whole lands and barony of Portlethen, whereas nothing appears to be valued but certain lands, described as being lands of Portlethen. In these circumstances I think the Court below were right in not treating the question as concluded by the decree, and in authorising an inquiry to ascertain whether there were lands unvalued.
With respect to the lands of Barclayhill, Calsayend, and Meddens, mentioned in the tenth article of the condescendence, the interlocutor was clearly right. The decree in terms excludes those lands from the valuation, and I agree with the argument at the bar, that the Commissioners had no authority to declare lands prospectively not to be liable to teinds. They must therefore be treated as lands not valued.
My opinion is, therefore, that the interlocutor complained of was in all respects right, and that the appeal ought to be dismissed with costs; and I humbly move your Lordships accordingly.
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The argument of the appellants was founded almost entirely upon this,—that inasmuch as the word “barony” is found in the libel, the barony as an entire thing must be considered as comprehended in the words “the lands libelled;” and so it might have been if the words “the lands libelled” had not been followed by a specific enumeration, which would have the effect of cutting down the generality of the expression “barony,” or showing that the barony as one comprehensive thing was not included in the valuation. Now that appears to be the case with regard to the valuation of Findone, and the same observation is applicable to the decree of valuation as to the barony of Portlethen.
The argument of the appellants was founded entirely on the words which are to be found in page 91,—“Then the principal disposition of the haill lands lybelled.” Those words, they said, referred to the libel, and in the libel you find the lands of the pursuers, their barony and others, respectively ascertained. But then those words, the “hail lands libelled,” are followed by other words running, “the pursuer's procurator produced ane rental of the haill lands libelled.” Now the signification and extent of the phrase, the “haill lands libelled” in the one case must of course be the same as the extent of the same phrase “the haill lands libelled” in the other. But the recital of the “haill lands libelled” is there given in extenso; and it plainly appears from that recital that certain lands only were intended to be comprehended in the words of reference “the haill lands libelled;” the enumeration and description are confined to those particular lands, and there are no words comprehensive of the general barony. Therefore this must be the conclusion, either that the lands specified included “the haill lands libelled,” and therefore included the barony—that is, that the lands specified were co-terminous and co-extensive with the barony, an hypothesis which is contradicted by the result of the inquiry; or else the conclusion must be, that the specific enumeration following the words, “the haill lands libelled,” confined the generality of the phrase, “the haill lands libelled,” to the things enumerated. I think it is plain that the last conclusion is the correct one. I think the words of the decreet plainly carry on the face of them sufficient evidence that the valuation is confined to the lands which are specified, and that it was not intended to take into consideration the generality of the word “barony,” or to include the other lands then uncultivated which might be included within the precincts of the barony.
Notwithstanding therefore the general rule, which I trust will be adhered to,—of giving in favour of long usage or acquiescence a liberal interpretation to the words of the decree,—yet, as the decree carries on the face of it clear evidence that none bet certain specific lands were taken into account, I think it is impossible to give to the decree a greater extent.
My Lords, I concur in the observations of my noble and learned friend, and think it unnecessary to add anything to what he has said. I therefore concur in the motion he has made, that the interlocutor be affirmed.
Now, in the present case the judgment of the Court has dealt with two classes of lands mentioned in this decreet. It has held that, with regard to one of them, the decreet shows that that class of lands was not valued at all. I perfectly concur in that finding of the Court. I think it is plain upon the face of the decreet that those parcels of land which are mentioned at page 93 were not valued, but excluded from valuation. For the decreet says, that “as to the rents of the said lands of Barclayhill, Calsayend, and Meddens, and money-rent of Badentoy, the said Commissioners find and declare that the rent of the said lands is not liable in payment of teind-dutie, the samen being payed upon the accompt of moss maill allenarly.”
Now it is quite true that they had no power to pronounce any finding that the lands were free from teind; but the meaning of that finding is, that those lands being in their opinion free from teind they had not valued them because they were. That is the true meaning of it; and that being so, they stand unvalued. The reason why
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But in regard to another portion of the lands here,—I mean the lands which are not so excepted from valuation,—the general principle arises, whether, taking first the case of Findone, the valuation is to be made as comprehending the whole of the lands libelled.
Now it appears from the libel that the action was brought for the purpose of having the heritors' lands valued, and it describes them in this way,—“that the teinds, parsonage and vicarage, of the said persewars, their lands, baronie, and others under-written, viz., the Meddens and Badentoy, with their pertinents, lying within the parochial of Banchory-Devenick and sheriffdome of Kincardine, are yet unvalued.” Therefore Calsayend, Meddens, and Badentoy are not stated as part of the barony of Findone, but the lands and barony of Findone are brought forward to be valued. Now what does that mean? It is not uncommon to talk of all the lands in a barony, and the whole barony, as the lands and barony of so and so. That is the construction which my friend the Lord Advocate endeavoured to put upon this expression here. It might be or it might not be so. But I think it is clear that it is not necessarily so; because there may be lands of Findone which are only part of the barony of Findone. And therefore “the lands and barony of Findone” are not necessarily an expression for one and the same thing, as “the lands in the barony of Findone.” I think it appears here that there were lands in the barony of Pindone which were not part of “the lands of Findone,” because I think it is stated in the record, and not contradicted, and it seems to be assumed by the parties that the lands of Barclayhill formed part of the barony of Findone, and they are not part of the lands of Findone. Therefore it is clear that in regard to the expression in this case, “the lands and barony of Findone,” they are not of equal extent with “the lands of Fintione,” because the barony of Findone comprehended at least Barclayhill, which was not part of the lands of Findone; and it may have comprehended other things which were not part of the lands of Findone as well as Barclayhill.
Now the minister, the defender in the present action, says that there were a great many other things besides Barclayhill which were not part of the “lands of Findone;” and if we see that there was land which was parcel of the barony of Findone which did not form part of the lands of Findone, and which was not valued here, it is not unreasonable to suppose that inquiry may show that there were other parcels in the same condition. The minister says that there were; and he has specified a number of such lands in article 3 of his condescendence.
Now all that the Court has done is to say that this decreet does not exclude inquiry, and that inquiry should be made. That is the whole extent of the judgment, and I think that is a reasonable judgment to pronounce. The Court has not said how far the onus may rest, or how long the onus may rest, upon the pursuer or upon the defender. That is left open for investigation. It may shift in the course of the inquiry; and some things may be adduced which will throw the onus upon the one side, and other circumstances may be proved which may throw it upon the other. It is upon the balance of the whole evidence that the Court has eventually to determine whether, upon the fair construction of this decreet, it did or did not comprehend any of those parcels of land which the minister describes in article 3 of his condescendence.
Then with regard to the barony of Portlethen, the same general observations apply, though there is not here the special difficulty which I mentioned in the other case, of detecting upon the face of the proceedings the parcels of land which formed the barony, and were known by that name. But the same principle applies. I must say, however, that in making up this record I think it would have been better that the minister should have been required to condescend upon the particular lands in the barony of Portlethen, which he says were not valued for teinds. He has done so in regard to Findone, but he has not done so in regard to Portlethen. I should have liked that that should have been required, because then it would have limited the inquiry to those particular lands, and not have left open a wide range as is here done. However, that is still open to correction. I think we cannot alter the decreet by reason of that not having been done, for it does not appear to have been objected to by the other party.
Upon these grounds, my Lords, I am of opinion that the judgment which has been suggested by your Lordships is the correct one. I observe in the condescendence and in the opinions of the Court that this decreet was based upon the rental produced by the heritors. I am not quite sure that that was so, as I read the decreet, because the decreet of valuation states that the minister produced another rental, and he referred that rental of his to the oath of the heritors, and the heritors deponed upon that rental. Now, it was upon the result of that oath that the judgment proceeded, and we have not that before us; it is one of the things which has vanished; and that is one reason why there is a difficulty in this inquiry;but I do not think it affects the merits of the judgment which has been pronounced, and therefore I will not go further into it.
Order appealed from affirmed, and appeal dismissed, with costs.
Agents for Appellant— Hill, Reid, & Drummond, W.S., and William Robertson, Westminste.
Agents for Respondent— Tod, Murray, & Jamieson, W.S., and Martin & Leslie, Westminster.