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Scottish Court of Session Decisions >>
The Earl of Roxburgh v Sir Walter Riddel of that Ilk, and other Heritors of the Parish of Lilliesleaf. [1706] Mor 15737 (27 February 1706)
URL: http://www.bailii.org/scot/cases/ScotCS/1706/Mor3615737-134.html Cite as:
[1706] Mor 15737
The Earl of Roxburgh v. Sir Walter Riddel of that Ilk, and other Heritors of the Parish of Lilliesleaf
Date: 27 February 1706 Case No. No. 134.
Effect of valuation and sale as to relief of burdens on the teind.
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The Earl of Roxburgh, as titular of the teinds of the parish of Lilliesleaf, having pursued the heritors for their respective teind-duties of several years bygone; it was alleged for the defenders, That they had a depending action against the Earl before the commission for valuation and sale of their teinds, and had procured a warrant to draw them, upon finding caution to make the valued teind-duty furthcoming at the event of the valuation: And therefore, till a decreet is therein obtained, no process for the duty formerly in use to be paid, because non constat but the same is higher than the valued duty will be.
Answered for the pursuer: There is no commission of teinds now in being, and therefore no valuation can be depending before them. However, the pursuer does not hinder the defenders to draw their own teinds, they paying the accustomed teind-duty; but they must not keep both the teind and teind-duty, without acknowledging him who pays public burdens for the teind, of which, after a valuation and sale, they are bound to relieve him. And since the Earl cannot get a suspension of the case for the defenders having a warrant to draw their own teinds, why should they have a suspension of the teind-duty out of which the cess should be paid?
The Lords found the defenders liable for the teind-duties in use to be paid for all terms preceding those for which caution is found simply; and for the said teind-duties, for terms subsequent to the finding caution; with this quality, that the Earl, before extracting, find caution to the defender, to refund or allow in the first end of the valued duties, to be decerned by the high commission, whatever superplus the said accustomed teind-duties shall extend to by and attour the valued duties.
