United Kingdom House of Lords Decisions

The pursuer appealed against the interlocutors and stated in his printed case the following reasons for reversing the interlocutors:—1. Because it is res judicata that the valuation of 1682 was confined to the special subjects enumerated in a rental produced by the pursuer, as these were possessed by the tenants named in the decree. 2. Because it is res judicata that, of the subjects so enumerated, Barclayhill, Calsayend, and Meddens were not valued for teind, in respect the Commissioners refused to include them in the valuation on the ground, that they yielded only a moss rent. 3. Because the onus rested upon, and has not been discharged by, the respondents of proving, that the portions of land which are brought into question in this appeal formed part of the subjects valued by the decree of 1682. 4. Because had the onus rested primarily upon the appellant, he has adduced evidence sufficient to discharge it, or at least to shift it on the respondents. 5. Because the appellant has proved by the best attainable evidence, viz. a plan of the lands and barony drawn in 1783, by order and in conformity with the instructions of the then proprietors, what was the position, extent, and boundaries of the valued subjects. 6. Because Calsayend, which was excluded from the valuation of 1682 on the ground, that it yielded only a moss rent, must be held to be co-extensive with the Moss of Calsayend, and cannot be limited to the arable farm which is shewn on the map of 1783, and which had been formed out of a small portion of the said moss. 7. Because it plainly results from the proceedings of the Commissioners in the valuation and from the terms of the decree, that the moss lands included within the precincts of the barony were not intended to be and were not valued for teind. 8. Because the respondents have failed to prove, that Redmyre was, in 1682, part of the lands of Badentoy possessed by James Mowat, and the appellant has shewn, by the plan of 1783, that it lay beyond the limits of Badentoy,—distinct from that subject, and other valued subjects, and because it is therefore unvalued for teind. 9. Because Bishopston belonged to the class of unvalued moss lands, having been, in 1682, described as a bruntland on the Hairmoss, and because neither it nor the said Hairmoss was referred to or included in the summons or decree of valuation. 10. Because the respondents have failed to prove, that it formed part of the valued farms of Badentoy or Cookstoune possessed by the Mowats, and the appellant has adduced sufficient evidence to determine its position, extent, and boundaries in 1783, and to shew, that it lay beyond the ancient limits of Badentoy and Cookstoune, and was separated from them by a broad and deep moss, and because it is unvalued for teind. 11. Because the respondents have failed to prove, that the other moss lands above referred to, which are delineated on the plan of 1783, were pertinents of the valued farms, or were possessed by the tenants of those farms, at the date of the valuation, for the purpose of pasturage or otherwise, and because these moss lands are thus inferentially, and by positive statement on the face of the decree, unvalued for teind. 12. Because the appellant is entitled, as against all the respondents, to the whole expenses incurred by him during, and in consequence of, his litigation with them in the Court of Session, and because the appellant is not liable in any expenses to the respondents.

The respondents in their printed case stated the following reasons for affirming the interlocutors:—1. Because the appellant has not proved, that the lands of Calsayend, mentioned in the decree of 1682, comprehended any other or greater area of ground than that marked “Causeyend” on the plan of 1783, and in particular because he has not proved, that the said lands of Calsayend comprehended the lands specified in his petition of appeal. 2. Because it is established by the evidence, that the said “lands of Calsayend” did not comprehend any other or greater area than that marked with the name “Causeyend” on the plan of 1783. 3. Because the appellant has not established, that Bishopstown, Redmyre, and the other lands mentioned in his petition of appeal were not valued by the decree of 1682. 4. Because the said decree is not limited to arable lands, but includes the whole lands enumerated in the rental, with their pendicles and pertinents, except the lands of Barclayhill, Calsayend, and Meddens. 5. Because it is proved by the evidence, that the Hairmoss, Bishopstown, Redmyre, and the other lands in question, were comprehended within the decree of valuation of 1682. 6. Because the interlocutor of 4th February 1870 bears to have been and was in fact pronounced of consent, and separatim, because that interlocutor was not submitted to review of the Inner House. 7. Because the judgments of the Court below in so far as complained of, are well founded both in fact and in law.

The previous appeal is reported, ante, p. 1458; L. R. r Sc. Ap. 127: 5 Macph. H. L. 62.

Sir R. Palmer Q.C., and Anderson Q.C., for the appellant.

The Lord Advocate (Young), and Forbes, for the respondent.

The Lord Chancellor, after fully stating the facts and contentions, said, he agreed with the judgment of the Lord Justice Clerk in the Court below, and that, the burden of proof in this case falling on the appellant, he had failed to establish his case.