Scottish Court of Session Decisions

Subject_1 TEINDS.
Subject_2 SECT. IV.

Valuation.

The Earl of Roxburgh
v.
Macdowal of Stodrick

Date: 11 December 1661
Case No. No. 128.

Exorbitant valuation.

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The deceased Earl of Roxburgh, having obtained decree of the Commission, for the valuation of teinds, in anno 1635, against Macdowal of Stodrick, this Earl having right from the deceased Earl, pursues Stodrick for payment of the valued duty. The defender alleged, no process, because he had intented reduction of the said decree, and improbation of a procuratory mentioned therein, to have been produced by Mr. Robert Trotter, warranting him to consent for Stodrick to that valuation; which is the only ground of the decree, without either dispute or probation; in which reduction, terms are taken to produce; and being prejudicial to this action, it must be first discussed. The pursuer answered, that there can be here no prejudiciality, which is only betwixt two principal actions; but here res est judicata, by a decree, et stat sententia, et dubius est eventus litis; neither can redaction, which is a petitory judgment, sist the pursuer's process, which is a possessory judgment, upon pretence of prejudiciality; otherwise possession might still be inverted upon such pretences; nor can the Earl be put from his possession thereby; especially for the years preceding the intenting of the reduction.

The Lords repelled the defence, as to the years ante litem motam, by the reduction, but sustained it for the years since, in respect the Earl's possession was not clear, and that the valuation was exhorbitant, hear as great as the stock,

Stair, p. 67.