Scottish Court of Session Decisions

The Crown is Titular of the greater part of the teinds in the parish of St Andrews, Fife, including the teinds of the Prior Acres. In 1819 the following warrant for a tack of part of these teinds was passed in Exchequer:—“We, the Barons, &c. having taken into our consideration the petition of the Rector, Principal, and Professors of the University of St Andrews, praying a lease for nineteen years of the teinds of the Prior Acres of St Andrews, to commence from the term of Lammas next, and that for the same rent, and under the same conditions as contained in the former lease thereof: We do hereby direct a lease or tack in his Majesty's name to be prepared to pass the seal of this court, setting, and in tack letting to the said Rector, Principals, and Professors of the said University of St Andrews, or their assigns, all and haill the teinds of the Prior Acres, lying in and about the town of St Andrews, and sheriffdom of Fife, with the teind yards, barns,” &c. for nineteen years, from and after Lammas next; with full power to the Rector, &c. to intromit with, lead, ingather, and collect the said teinds, &c. as fully as any former collector or tacksman did or could have done; the said Rector, &c. being bound to pay £52, 15s. 6 2 3d. sterling, of tack-duty, to the collector of Bishop's rents. The Rector, &c. were taken bound to free and relieve his Majesty “of the number and quantity of one chalder four bolls victual yearly, as a part of the minister of St Leonards his stipend, payable out of the said teinds, and of the number and quantity of thirty-two bolls victual yearly, as a part of the minister of Cupar his stipend, payable out of the said teinds.” The tack contained the following clause: “it is hereby provided and declared that the said Rector, Principals, and Professors, by their acceptation of the lease to be expede hereon, and as an undoubted quality of the same, agree that in case any further augmentation shall be obtained, the same shall be no cause, nor made use of, for obtaining any prorogation of the same for any years after expiry thereof, in regard the said Rector, Principals, and Professors have undertaken to free and relieve his Majesty and his royal successors of all ministers' stipends and augmentations during the currency of the said tack.”

The minister of the parish of St Andrews obtained an augmentation of stipend, and, in framing the scheme of locality, the common agent localled the augmentation, on the principle that the teinds, so far as payable to the Crown in rental-bolls, should not be affected, until after the teinds held under the tack by the University were exhausted. Both the teinds payable in rental-bolls to the Crown, and the teinds held under lease by the University, belonged to the same class of teinds, viz. Prior's teinds. The University lodged objections to the scheme, pleading that under their tack they had a right to the whole teinds contained in it, on payment of the tack-duty; that the tack-duty payable to the Crown, along with all the other free-teind in the parish which was unaffected by any grant by the titular, ought to be exhausted before the teinds contained in their tack could be affected; ¹ that neither practice ² nor decisions were against this common rule of localling, nor any principle or authority; that the only specialty in the tack held by them was this, that if any augmentation came to reach their teinds during the currency of the tack, it should not afford ground for their demanding a prorogation of the tack at its expiry, but, on the contrary, the University should be bound to bear the burden of such augmentation, without craving relief of any sort from the Crown. The scheme should therefore be altered, so as to give effect to these principles of allocation.

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¹ 2 Ersk. 10, 51.

² Parties were at issue whether a decision as to the parish of St Andrews, Shandbride, Morayshire, in 1723, was a precedent as to this point or not; and whether it was the practice not to local on rental-bolls payable to the Crown so long as there was any free teind in the parish. The Court delayed their decision until an inquiry should be made into the practice of localities in other parishes, where tithes had devolved to the Crown from the Bishops. But the respondents reported that their inquiries had not enabled them to throw any light on the question in issue; and the cause was then resumed and disposed of.

It was answered for the Crown, that, by uniform practice, as exemplified in the case of St Andrews, Morayshire, teinds, so far as paid in rental-bolls to the Crown, were allowed the privilege of being postponed, in allocation, to all free teind in the parish; that, by the terms of the tack to the University, the teinds in that tack were no better than free teinds in this question with the Crown; and farther, that, as the objectors were taken expressly bound, as a condition of the favourable grant made to them, “to free and relieve his Majesty and his royal successors of all ministers' stipends and augmentations during the currency of the said tack”—the effect of this clause was to bar them from objecting, in a question with the Crown, to the localling of an augmentation upon their teinds, to whatever extent it might be made.

The Lord Ordinary ordered cases and reported them to the Court.