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Scottish Court of Session Decisions >>
The Earl of Seafield v Sir Patrick Ogilvy of Boyne. [1709] 4 Brn 760 (26 July 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Brn040760-0265.html Cite as:
[1709] 4 Brn 760
Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
The Earl of Seafield v. Sir Patrick Ogilvy of Boyne
Date: 26 July 1709
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The Earl of Seafield, as a real creditor of Sir Patrick Ogilvy of Boyne, pursues a roup and sale of his estate on the statute of bankrupt; in which he led a probation: And it being this day advised, the Lords found the rental and deductions from it proven, and, by the debts and incumbrances produced, he was bankrupt, as far exceeding the value of his lands; and that his lands held part blench, part ward, and feu, some of them of the crown, and others of the Duke of Gordon, instructed partly by charters, and partly by the records of Chancery produced. And the rate such lands give in the shire of Banff, commonly, in buying and selling, was proven by neighbour gentlemen to be eighteen years' purchase, as to lands holden of the Queen, and sixteen for ward-lands, and fourteen years for lands holding black-ward of a subject. There did occur only two difficulties: the one, what value should be put on the marble quarry found in these lands. And though it appeared, by the witnesses' depositions, that he had bestowed above £5000 sterling on that project, in making two journeys to France, and bringing workmen to Scotland skilled in that affair, yet they likewise declared, that they knew no profit could be made by it; but, on the contrary, it had spoiled as much ground as would have paid several bolls of corn: which moved the Lords to put no estimate on it at all.
The next was to value two patronages. It was contended,—The Act of Parliament in 1690 had put a liquid price on them, at which they might be compelled to sell, viz. 600 merks.
Answered,—In this computation the patron's own lands must be deduced; on which account the Lords put only 300 merks on each of them, as a sufficient price, with regard to his own interest in the parish. They were likewise ordained to produce what right they had to the teinds, in so far as they were not exhausted by ministers' stipends, or other burdens affecting them; whether they bruiked them by heritable rights, decreets of valuation, tacks, or the like, that the Lords might order how many years' purchase shall be put upon the same. And, as to mill-rent and fish-boats being casual, they thought they could not be valued at that same rate with other property. Then the Lords appointed letters of intimation and publication to be issued out at the several market-crosses and parish-kirks, for all bidders and creditors to be present, and exemed a part of the lands, disponed to Boyne's grandchild by Major Grant, from the sale, but with the burden of the infeftments lying upon that land.
