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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lord Advocate v. Keith's Trustees and Arbuthnott [1868] ScotLR 5_641 (8 July 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0641.html Cite as: [1868] ScotLR 5_641, [1868] SLR 5_641 |
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An extract valuation recorded under the authority of the Court in terms of 1707, c. 9, which was in the following terms:—“(2) At Edinburgh the third of Februar jajvic. and threttie-six yeirs. The landis called the five-pairt landis of B., pertaining to R.A., are worth and may pay auch scoire bolls beir for stock and teynd parsonage and viccarage; the landis of W.K., pertaining to the said R. A., six chalders victuall; the burrow ruids of the toune of I., fourtie bolls beir; the lands of C., fourtie merks; B., fourtie merks; W. of K. and D., twa chalders victual; the lands of S., K. of K., six chalders victual;” contained in a writing which concluded with these words—“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 said registers. ( sic sub.) Tho. Murray.” Held (diss. the Lord President and Lord Ardmillan) to contain all the elements of a decree of valuation, and to have force as such.
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.
The Lord Ordinary (
The respondents reclaimed. The case was heard by seven judges, and inquiry was ordered with reference to the usage in regard to such “short extracts.”
Monro, Clark, and Nevay for reclaimers.
The Solicitor-General and Kinnear for the Crown.
At advising—
But there is another objection of a narrower kind. The document is titled on the back “Valuation of my Lord Arbuthnot's Landis within-mentioned.” It consists of four parts—all of them only extract valuations of lands belonging to the then Lord Arbuthnott. The particular valuation in question is the second—[ His Lordship read it.] There were in this locality three heritors who founded on such extracts—the Governors of Donaldson's Hospital, Lord Arbuthnott, and Lord Keith's Trustees. The extract valuation of the lands belonging to the Governors of Donaldson's Hospital was open to the same objection as the present; it did not mention the Court in which the decree of valuation was obtained. This objection was pleaded at the bar of the First Division (Lord Advocate v. Governors of Donaldson's Hospital and Others, 20th July 1866. 4 Macph. 1096), and unanimously repelled. But here there is a difference, and the Court thought that, with regard to the valuations of the other two heritors, there should be an investigation as to the general practice. This investigation has been very complete, and has strongly convinced me of the soundness of the decision in the case of the Governors of Donaldson's Hospital, and shows that the other two heritors stand in at least as strong a position as the Governors of Donaldson's Hospital.
The result of the investigation is this. Extract No. 1 in the document before us regards the barony of Arbuthnot; and No. 3 appears to consist of approbations of decrees of the sub-commissioner. No. 1 has already been sustained in two localities. No. 4, relating to lands in the parish of Fordoun, has been very remarkably supported by a “long extract” regarding that very valuation, and it confirms the short extract No. 4. No. 4 has been sustained in three different localities. No. 2 remains, and is the one now questioned; but before proceeding to its history I may mention an objection to No. 3 which had with me considerable weight. No. 3 is dated 25th March 1636; No. 4 24th March 1637. Both are “short extracts” and relate to the same lands, but there is a difference in the valuation. How are we to account for this? The minister when he raised his augmentation had to correct the valuation of the year before. But No. 4 gives about one per cent. less victual than No. 3, and it may be urged, surely the minister would not lower the quantity of victual. But the minister got a considerable advance by the correction; for though there is less victual the more valuable grain is just about double. In 1792 this paper of valuations was given in by Lord Arbuthnott, and since then they have been produced in every locality in which they could be brought to bear. They have regulated rights of parties since 1792; and this very document was approved in 1807, and again in 1830. Has it not been approbated and homologated? Has it not been acquiesced in by the Crown? The Crown, who now appears as objector, has always acquiesced in the validity of this valuation. This is a very strong objection to going back upon the document upon what is called a nullity on the face of it. If it were such a nullity, prescription would have no effect; but in that case the party should have seen it forty or fifty years ago; and if the nullity is not patent on the face of it does not prescription come in and operate effectual protection to the document? On the whole, on the strength of the decisión of the Court in the case of the Governors of Donaldson's Hospital, and also on general grounds, I am for altering the Lord Ordinary's interlocutor, and giving to Lord Arbuthnott and to Lord Keith's trustees the same protection as to the Governors of Donaldson's Hospital.
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But it is said that the former judgment is erroneous. The Statute 1707, c. 9, says that “the said Estates do hereby appoint and ordain that any authentic extracts from the said records be brought in, and, being presented to the said Lords, be recorded in a particular register. And that the said extracts so brought in be kept by the Lord Clerk Register and his depute-clerks, to be appointed by him for that effect as their warrands, which shall be held and repute als valid and authentick as the principall warrands themselves, if the same were yet extant.” The question is—Is this an authentic extract from the record, and does it, or does it not, show an authentic valuation? What is an extract of valuation? What the regulations were then we don't know. Till 1707 we have no regulations regarding extracts, and even they do not bear on the form of extracts. We have nothing but the practice to guide us respecting the form of extracts. An extract was not a copy of a whole deed. It was an abstract of all that had been done, and it was left very much to the discretion of the keeper. It is true it may not enable me to say if every step has been taken, but the same objection would apply to a long extract. I can't understand how it can be doubted that this is an extract. Thomas Murray, the subscriber, says:—This is the just extract of the valuations 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.” Now, if he is the keeper (which is not doubted) this must be conclusive. It is an extract—from where? He says from the principal register of the Commission of Teinds. I am of opinion that both here and in the case of the Governors of Donaldson's Hospital the documents contain all the essentials of a valuation by the Commissioners.
The objections to the extract are—(1) that it is not authentic; and (2) that, if authentic, it is not an extract of a decree of valuation. It has been said the point was judicially disposed of in the case of the Governors of Donaldson's Hospital. I had very great difficulty in concurring then. I did ultimately come to concur that, looking on a separate writing with a docquet attached to it, it might be regarded as an extract provided there were no hostile subsequent circumstances. It was not because the extract was short, but because it was defective that I then had difficulty. On hearing the point re-argued, my former doubts have been strengthened. There has been no res judicata, because this case is not between the same parties, and there has been no series rerum judicatarum. The present Lord President was not then in the First Division, and he has expressed his doubts on the question. And in the previous case the opinion of Lord President Colonsay was against sustaining No. 2 as a valuation. Even without challenging the former case, I am of opinion that this document (No. 2) before us is not authentic. There are four extracts in the writing. Their dates are different. They are not separately attested and subscribed, but only at the end of No. 4. Such records are unprecedented. The records have been searched and none such found. We must assume none such exist. No. 3 is not authentic, and this, in my opinion, is fatal to the authenticity of No. 2. You cannot overleap No. 3 and authenticate No. 2.
But even if we are to hold it as authenticated by its signature, the question arises, What is its import? I see no ground for saying it is an approval of a sub-valuation. Is it then an extract of a proper decree? No such extract has ever been shown prior to the decision of the Governors of Donaldson's Hospital. It is to be observed that every proper decree is pronounced in some process before some competent Court. This does not bear to be pronounced by any Court proceeding on any evidence, and in any process. It does not bear any essential marks of a decree.
Lord President— I am unable to concur with the majority. According to Lord Lynedoch v. Liston, a heritor must produce his extract-decree of valuation, or raise an action of proving the tenor. That being settled law, the only question here is, whether the document entitled “Valuatione of my Lord Arbuthnot's landis,” is an extract-decree of valuation, or rather contains in one sheet of paper four extract-decrees of valuation? If I could agree in Lord Benholme's suggestion—that anything could be registered under 1707, c. 9, that is an extract or excerpt—I might think differently.
The term extract is of technical signification in the law of Scotland, and I am not aware that it has ever been used in any other signification in any statute or institutional writer; nor can I find it ever used in the sense of the word excerpt. The question then is, Is it used in this loose sense in the Act 1707, c. 9? I cannot think so.
Is this paper an extract-decree of valuation? What is an extract-decree? It is a statement
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I entirely concur in the grounds given in the Lord Ordinary's note. Although bound, and as much inclined as bound, to respect the judgments of this Court, and especially one so recent as the one in the case of the Governors of Donaldson's Hospital (and Lord Ardmillan, who heard that case, concurs with me), it appeared to me most desirable that this case should be heard before seven judges.
Lord Ordinary's interlocutor recalled.
Solicitors: Agent for the Crown— W. H. Sands, W.S.
Agents for Viscount Keith's Trustees— Mackenzie & Kermack, W.S.
Agent for the Viscount of Arbuthnott— J. N. Forman, W. S.
