No claim for repetition is competent against a minister who has drawn stipend in virtue of a decree of modification, although the discovery, in the course of the locality of a valuation, shew that the teinds had been previously exhausted.
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In 1793, the Reverend James Adamson, minister of the parish of Abernyte, obtained an augmentation of his stipend, which exhausted the teinds, as they then appeared to be.
All the heritors produced valuations, and among the rest Robert Haldane, Esq. of Airthrie, produced one, obtained on 23d November 1796, valuing his teinds at £10. 1s. 0812d. Sterling.
A locality was given in, proportioning the stipend agreeably to the state of teinds. Mr. Haldane's lands were burdened with twenty-nine bolls of victual, and £11. 5s, 6d, Scots money.
In April 1800, Mr. Haldane paid to Mr. Adamson £35. to account of augmented stipend; and in August 1801, £25. more was likewise advanced.
The locality was approved 21st January 1801.
Reclaiming petitions were presented against it by Mr. Haldane, as well as by other heritors, who contended, that, in virtue of the judgment of the Court, then just given, in the case of Lamington, they could not be called upon to pay more than their money-teind.
A new scheme of locality was accordingly made out upon these principles, and Mr. Haldane's proportion was accordingly fixed at £16. 1s. 0812d. This locality was approved by the Court, 27th January 1802.
Mr. Haldane having discovered a valuation of his teinds in 1767, by which it appeared, that they were nearly exhausted by the old stipend, insisted in a petition to the Court, (17th February 1802), that the locality should be again rectified.
This was accordingly done.
An action was now brought against Mr. Adamson, to make him pay back the £60. which had been advanced to him: As Mr. Haldane's lands could not be subjected to such a proportion of the augmented stipend, the payment had in fact been made out of the stock.
The Lord Ordinary (16th February 1803) repelled the defences.
Mr. Adamson reclaimed;, and
Pleaded: Wherever a person, upon a fair and probable title, has received and consumed the fruits of a subject, he cannot be called upon to restore them, if any error in his title shall afterward be discovered; Stair, B. 1. Tit. 7. § 11, 12.; Ersk. B. 2. Tit. 1. §2.5.; Leslie, 13th February 1745, No. 6. p. 1723. Bonny, 30th July 1760, No. 10. p. 1728; Oliphant, 30th November 1790, No. 5. p. 1721. From the time the decree of augmentation was in force, and the amount of the teinds acquiesced in by the heritors, the minister was in bona fide to receive payment of what was awarded by it, and consequently to expend his augmented stipend. “Bonæ fidei possessor fructus perceptos suos facit, et non cogitur restituere consumptos.”
Answered: There is no room for the plea of a bonæ fidei perceptio; because the title under which this sum was received, was a scheme of locality, never final, and which was afterward altered. Although, indeed, a decree of modification entitles a minister immediately to attach any teinds in the parish, it must be remembered, that here there is no question about teinds: These he has exhausted. But he has also acquired a part of the stock, which it was not in the power of the Court of Teinds to assign to him. The question in fact resolves into a condictio indebiti; as such, there can be no doubt of the claim for repetition being well founded; Reid against Maxwell, 7th July 1708, No. 25. p. 1744; Keith against Grant, 14th November 1792, No. 12. p. 2933.
The Court (17th May 1804) altered the Lord Ordinary's interlocutor, and assoilzied from the claim of repetition.
To which interlocutor, they “adhered,” upon advising a reclaiming petition,with answers.
In both cases the judgment was by a narrow majority.
Lord Ordinary, Hermand.Act. Craigie.Agent, Alex. Duncan, W. S.Alt. Dickson.Agent, Arch. Gibson, W. S.Clerk, Ferrier.
Fac. Coll. No. 190. P. 427
