Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Patrick Scott of Langshaw, and his Son,
v.
Mr William Wallace, Advocate

Date: 19 February 1671

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Patrick Scott of Langshaw, and his Son, pursuing for the valued teind duty of the lands of Blaislie, for several bygone years;—It was alleged for the defender, That he could not be liable; because he had neither intromitted with the teinds, nor set stock and teind for a joint duty; so that the tenants who had intromitted could only have been pursued.

To this it was replied, That the pursuer having right to a decreet of valuation of the teinds, the heritors are always liable for the valued duty, whether they intromit or not.

It was duplied for the defender, That the decreet was null, the heritor of these lands for the time not being called; whereupon, and upon other nullities, he had obtained a decreet of reduction of the said valuation.

It was triplied, That, as to all years prior to the reduction, the defenders should be liable, the decreet of valuation being a good title, aye and while it was reduced.

The Lords did sustain the defence and duply; and assoilyied from the whole bygone valued duties; seeing the decreet of valuation was reduced, as being null ab initio; and that payment had never been made of the valued duties by the defender.

Thereafter it was alleged for the pursuer, That the defender's author had homologated the decreet, by payment of the valued duty several years after the valuation.

To this it was answered, That albeit payment was made before the reduction of the decreet of valuation, yet the reduction being obtained, the former payment did not prejudge the heritor; neither could the payment of the defender's author prejudge him, who had possessed by the space of 24 years, and had never acknowledged the said valuation by payment of the valued duty.

The Lords did sustain this defence likewise, and assoilyied the defender, notwithstanding of any payment made by his author before the reduction; and found that payment, in obedience of a decreet, whereupon they might be charged, was not voluntary; and so no homologation.

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