Scottish Court of Session Decisions

In 1815 the Rev. Mr Dunbar, minister of the parish of Kinnoull, obtained an augmentation. The heritors had previously, in common form, been held confessed on the rental given in by the minister. After the decree of augmentation, the heritors were ordained to produce a state of their rights and valuations; a state of the teinds was made up, and a scheme of locality was prepared, which was approved of by the Lord Ordinary and the Court as an interim scheme, and decreet of modification and locality in terms thereof was pronounced in 1816, and extracted. All these proceedings were regularly conducted in terms of the Act of Sederunt, 5th July, 1809, by which (§ 5) it is provided that an interim scheme, prepared as above described, should be approved by the Court “as an interim scheme according to which the minister's stipend shall be paid, ay and until a final locality shall be settled.”

No final locality was settled in 1835, when a new decree of augmentation was obtained at the instance of the Rev. John E. Touch, who succeeded to the incumbency in 1829, on the death of Mr Dunbar. During the subsistence of the interim locality of the augmentation 1815, one of the heritors (M‘Donald of St Martins) had brought a process of approbation of a subvaluation of his teinds, in which, after litigation, he succeeded; and in 1826 a judgment of the Court was pronounced, finding him entitled to surrender his teinds as valued, and not liable in farther payment. He accordingly offered a surrender, and as the teind surrendered was less than the amount allocated on his lands by the interim scheme and decree, he refused to pay the difference to the minister. Several other heritors had also led valuations and offered surrenders, each of which was less in amount than the sum allocated on them by the interim scheme, and each of them refused to pay beyond the amount of the surrendered teinds, and intimated to the minister that they would suspend any charge he might give on the interim decree. The minister raised a reduction of several of these decrees of valuation, which was not brought to a close when the new augmentation was awarded. In the mean-time, those heritors whose teinds remained in the same state as at the date of the interim decree, had continued to pay the amount allocated on them by the interim decree, but they refused to pay more, until a final scheme should be settled. There was thus an annual portion of the stipend, consisting of the deficit occasioned by the several surrenders, which the minister did not recover.

In 1834, the Rev. Mr Touch applied to have a new interim scheme of locality made up as to the augmentation of 1815, so that the difference between the amount allocated by the original interim scheme on those heritors who had afterwards made surrenders, and the amount of the valued teind contained in the surrenders, might be distributed among the other heritors whose teinds were not valued or exhausted. These other heritors objected that it was incompetent under the Act of Sederunt to make up a second interim scheme, and that until a final scheme was made up, the first interim scheme formed an unalterable rule of payment for all concerned; and further, that, on the merits, if it was competent to go into them, the proposed interim scheme was objectionable. The minister lodged answers, contending, inter alia, that an interlocutor had already been pronounced, which, in substance, directed a second interim scheme to be made up; and the Lord Ordinary (Moncrieff) “sustained the objections, in hoc statu, but remitted to the clerk to prepare a rectified scheme of locality to be approved of as final, as soon as the state of the process will admit of it.” ^*

This interlocutor was not brought under review.

Under the augmentation 1835, an interim scheme was made up, allocating the minister's stipend in reference to the altered state of the heritors rights, But the arrears of stipend remaining due under the augmentation 1815 to the present, and the late incumbent, remained unadjusted, and the minister obtained a remit to the clerk to make up a “state of arrears," under which remit a state was made up showing the arrears of stipend due, and allocating them on the unvalued heritors. A decree in terms of this state would have been the same in substance as a decree approving the proposed interim scheme, which Lord Moncrieff, Ordinary, had refused by the interlocutor above quoted. Lord Gray and another of the principal heritors lodged objections to the state of arrears, pleading,

1st. By the A. S. a rule of payment was fixed, which was inflexible, “ay and until a final locality shall be settled.” ¹ Before the interim-decree could be pronounced, all the heritors, where the process was regular, must have been held confessed on their proven rental, or must have led a proof of it. It was their duty to attend to their own interests at that stage; and if, thereafter, they either discovered old valuations, or were otherwise enabled to make a surrender of teinds, showing a smaller amount of teinds than that allocated by the interim decree, they could only do so to the effect of obtaining a repetition of over-payments, after a final locality was settled; but not to the effect of deranging the existing interim locality; otherwise an excessive expense would be occasioned to the other heritors, and the whole purpose of an interim scheme, and the object of the A. S. would be defeated. There was no encroachment made on the stock of any heritor by compelling him to make interim overpayments, because he had always his right of relief against under-paying heritors when a final scheme was settled.

2d. It was res judicata by the interlocutor of Lord Moncreiff, which had become final, that no second interim scheme could be made up in the process of augmentation 1815. And though that interlocutor was pronounced “in hoc statu," it was still effectual, because no alteration of circumstances

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^** “NOTE.—The Lord Ordinary conceives it to be incompetent for him to make one interim locality after another, according to the terms of the Act of Sederunt;—and the interlocutor so much relied on by the respondent, could have no real or competent meaning, but as a remit to prepare a final scheme. But independent of the point of incompetency, how is it possible for a Lord Ordinary to approve of a new interim locality, where there are confessedly many questions among the heritors, and even an action by the late minister undiscussed, on which the merits of such an altered locality must depend? The Lord Ordinary cannot tell whether this, which is called a rectified locality, is right in any one point; and he has no warrant for approving of it, ad interim, without consideration of its merits, as he has in the first instance by the force of the Act of Sederunt.”

¹ Lyall, July 4, 1800, 1 Conn. 542; and case of Dunrossness, 1 Conn. 545.

had occurred, and now, as then, every thing was in the same state, as to this question. The decree for the “state of arrears” ought therefore not to be given, as it was neither more nor less than a decree ordaining the heritors to pay in terms of a second interim scheme, before the final scheme was settled.

The minister answered. 1st. Before any interim scheme of locality was introduced, he had the legal right to give to any heritor a charge for the whole stipend, and such heritor was liable to the full extent of his teinds, leaving him to seek his own relief against other heritors for overpayment. In order to alleviate the hardship to which heritors might thus be exposed, an interim scheme was allowed to make the rule of payment, until a final scheme should be made up. But it was not the intention of the Court, by the A. S. 1809, to suspend payment of any portion of the stipend, under any circumstances, until a final scheme had been made up; and if it had been the intention, it was ultra vires of the Court to do so. And, therefore, although an interim scheme was made up, and some of the heritors afterwards executed surrenders at lower amounts than their allocations under the interim scheme, the only effect would be to raise questions inter se, but the minister's right to regular payment of his annual stipend could not be affected. And as it had been decided that no heritor who surrendered his teinds could be compelled to pay beyond that amount, ¹ which would be an encroachment on the stock, the result necessarily was that the amount of stipend rendered inexigible from the surrendering heritors, must be allocated among the remaining heritors; and if they did not, for their own sake, consent to its being allocated, ad interim, in the same proportions as the rest of the stipend was allocated on them by the original interim scheme, the result must be that the minister's legal right revived of giving a charge to any of the unvalued heritors for the whole unallocated stipend, which such heritor would be liable to pay, to the extent of his whole teinds, leaving him to seek relief against the other unvalued heritors, 2d. The interlocutor of Lord Moncreiff was not final, being only pronounced “in hoc statu.”

The Lord Ordinary “in respect that the question at issue between the parties is of general importance in localities, as affecting the operation or practicability of carrying into effect the Act of Sederunt 5th July, 1809, relative to interim schemes of locality; made avizandum with the cause to the whole Court.” ^*

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¹ Macartney, March 4, 1817 (F.C.); 1 Conn. 543.

^** Note.—“In 1815, the Rev. Mr Dunbar, the former minister of Kinnoull, obtained an augmentation of stipend. In June, 1816, a scheme of locality was approved of as an interim scheme, and since that time no final scheme has yet been approved of. Sundry difficulties and long contested litigations have, in the intervening period, occurred as to the teinds of this parish, several of which are recorded in the printed reports.

“Among others, Mr M‘Donald of St Martin's succeeded in obtaining an approbation of an old subvaluation, whereby his teinds were reduced greatly below the amount allocated on him by the interim scheme; and it was found, by a decree in foro, that he was entitled to surrender according to that valuation, and that this must be the rule of his payment.

“About the same period, various other heritors, who had obtained valuations or approbations, pending the locality, below the amount apportioned to them in the interim scheme, also intimated surrenders to the minister.

“By these proceedings, and particularly by the judgment pronounced in Mr M‘Donald's case, the interim scheme got entirely deranged. The objector, Lord Gray, and various other heritors (who had no occasion to raise any intermediate processes of valuation), seem to have paid, as may be supposed, the whole allocations put on themselves by the interim scheme; but the heritors, who had got new valuations or approbations, refused to make payment, in terms of the interim scheme, beyond their valuations. They threatened to bring suspensions, and consign their valued teind, which would obviously have involved the minister in much expense. Hence, for a series of years, the interim scheme has ceased to be available to the successive ministers of the parish of Kinnoull, and a considerable proportion of these stipends thus remains unpaid.

“The minister who was in life at the date of the former augmentation (Mr Duabar), died in 1830; he was succeeded by the present minister (Mr Touch), who obtained another augmentation in 1835. On that occasion, the minister obtained a new interim scheme, allocating the stipend, as now fixed and augmented, according to the state of the teinds of the various heritors, as ascertained by the latest proceedings. But that new scheme only applies to future payments. As to the arrears prior to 1836, the successive ministers have not yet obtained the means of enforcing them, and this has given rise to the debate now reported to the Court.”

“With the view of getting a decree for arrears against the heritors, according to the state of their teinds, as now ascertained, the minister moved for a remit to the clerk to prepare the state of the arrears, allocating them on the heritors according to their present liability, seeing, that from the judgment in St Martin's case (which would be equally applicable to other heritors), the allocation in the interim scheme of 1816 is deranged, and cannot possibly be carried into effect. Such a state accordingly has been made up; it is believed to be arithmetically correct; but your Lordships see, from the present Objections and Answers, on what grounds it is resisted.

“Upon the one hand, the objectors, Lord Gray and Mr Fergusson, contended, that by force of the Act of Sederunt, 5th July, 1809, sect. 5, the interim scheme prepared by the clerk in 1816 must be enforced in the words of the Act of Sederunt, ‘ay and until a final scheme of locality shall be settled, and the minister furnished by the common agent with an extracted decree at the expense of the heritors, for which he is entitled to take credit in his account.’ The objectors say that this applies to all the heritors, even those who got valuations or approbation below the allocation of the interim scheme, if these have been obtained subsequent to the interim scheme, as well as others; and that the appropriate, and only competent remedy of heritors in that situation is, to obtain an equalisation, or the adjustment of accounts between each other, and decree of repetition, which is the course usually followed when the final scheme is approved of. In support of that plea, the objectors refer to an interlocutor of Lord Moncreiff in this very locality, who, when asked to authorise a new interim scheme of locality (dated 7th June, 1834), found, by interlocutor, dated 7th June, 1834, that it was incompetent for him, in consequence of the express terms of the Act of Sederunt, to do so.

“On the other hand, the minister answers, that if he had charged any heritor to pay one farthing beyond his teind, even in virtue of the interim-scheme, he would have been met by the plea, that the stock can never be encroached on; that a surrender of the whole teinds, is in every case, without any exception, a competent answer to a charge for stipend, while the express judgment of the Court, in the case of St Martin's, found in terminis that the old valuation of his hinds was to be the rule of payment. The minister refers to various well-known cases, such as those of Wester Kilpatrick, Sir William Cumming Gordon, and others, in which the Court has found, that surrenders, when they exhaust the whole teinds, must be sustained.

“At the same time, the minister also refers to the case of Dunfermline, as in pari casu with the present, in which the Lord Ordinary allowed a state of arrears to be made up, as the basis of a specific interim-decree against the heritors, when an interim-scheme was superseded as rendered inapplicable by surrenders. The report of the clerk in the case of Dunfermline is annexed to the answers, and deserves the attention of the Court.

“It is obvious, from the announcement of these pleas, that this is a case much more fitted for the consideration of the whole Court than of any individual Judge. It is apparently a new case, though of very general interest, and it turns on the construction of an Act of Sederunt, which it is the peculiar province of the Court itself to expound.

“If the words of the Act of Sederunt relative to interim localities be taken per se, and if that act must be held inflexibly applicable to all cases, the argument of the objectors would be insuperable. At the same time, it is doubted if it ever was the meaning of the Court to give the Act of Sederunt any such effect. The whole course of later decisions goes to show, that the heritors can never be asked to advance stipend beyond their teind, and it is thought that no scheme, whether interim or final, can be used to extort an advance from any heritor out of his stock.

“Indeed, the heritor's right to surrender his teinds in all cases, is a privilege specially reserved to proprietors in Scotland, by a late statute (48th Geo. III., 138, sect. 14), without any specified exception, and so cannot be taken away or restricted by any Act of Sederunt.

“The minister, however, was at all times entitled, each year, to get his stipend out of the teinds for his subsistence, where there were teinds to give, leaving the ultimate balance to be struck between the teind-holders when a final scheme was adjusted in the locality. At common law, the minister could demand his stipend from any heritor holding teind to the extent of these teinds; and the heritor must seek his relief as he best may against other possessors of teind. The plan of an interim-scheme was only intended to protect heritors from unequal advances inter se, and the Act of Sederunt was intended to regulate these in the most fair and expedient manner for all concerned, so far as the teinds go, pending the process of locality. But, this Act was not intended to affect the minister's claim for his stipend each year, out of the teinds, for his subsistence.

“When an interim-scheme, therefore, becomes deranged, and absolutely inapplicable and unworkable from surrenders, reduction, or other judicial proceedings, there must be some remedy for such an emergent wrong. It is the business of the Supreme Court to supply the remedy; and whether it be by anew interim-scheme, or by giving a specific interim-decree, in terms of a corrected state of arrears, as was sanctioned in the case of Dunfermline, and as is proposed here, the remedy in either case will be sufficient. The case of Dunfermline does not seem, at least latterly, to have been contested, and therefore it did not go beyond the Lord Ordinary. But when issue is joined, the remedy (at least so long as the Act of Sederunt stands as it does) seems to lie with the Court, and not with any single Judge acting in the Outer-House.

“From the various cases, however, which are likely to arise similar to the present, the Lord Ordinary would humbly suggest, that a short Act of Sederunt should be passed explanatory or correctory of the Act of 5th July, 1809, relative to interim-schemes. This should be simply to declare, that it should be competent for heritors to move that any interim-schemes, now or in future approved of, should be corrected, when the first interim-scheme is rendered inapplicable by surrenders, subsequently and duly intimated to the minister. Some such regulation is imperatively called for, both in reference to the interests of minister and heritors. The minister can, in few cases, afford to want the regular payment each year of his stipend; and heritors are deeply interested, in having their annual payments adjusted as nearly to accuracy each year as possible; for as teinds do not form debita fundi, their respective claims for over-payments, if allowed to run on to any great amount, may, from the altered circumstances of the debtors, be often entirely defeated.”

When the cause was advised, the following opinions were expressed:—