Scottish Court of Session Decisions

Lord Ormidale sustained the objections for the minister to the report of the common agent, holding that the legal presumption from the terms of the extract decree was that the minister was not cited; and that the circumstance that this valuation had not been objected to by former incumbents could not be founded upon as homologation against the present minister. With regard to the decree of 1813, that could not be founded upon as res judicata, as in the process in which that was pronounced the parties had no occasion to join issue as to the validity of the decree of valuation.

Against this interlocutor the heritors reclaimed. Counsel having been heard the Court adhered.

The Lord Justice-Clerk said—Had it not been for the date of the decree of valuation it could hardly have been maintained that a decree in a process of valuation to which the minister had not been cited could be good. But the first question is, Was the minister cited to this process? It is said that the extract decree does not prove that he was not. It appears to me that it gives as strong evidence as possible that he was not. The way in which the extract is framed is that it is made to contain a statement of the whole proceedings in the case. This process began by petition, in which it was stated that the titular and the heritors had come to an agreement upon the value of the teinds, and prayed the commission to ratify this agreement. We must assume that this was the whole of the prayer of the petition. Then there is just one deliverance by the Commission. There is no order for service of the petition, and no evidence that the minister was cited. The commissioners' decree conform to the agreement come to, of which evidence was produced to them. This decree is, of course, binding upon the parties to it. But the question is, whether it be binding upon the minister behind whose back the whole proceedings took place? There is a series of authorities which fix that the minister must be called. But it is said that this being a valuation under the commission appointed in 1633, it was not necessary to call the minister. The only authority for this is an alleged decision of the High Commission quoted by Connell. We have great reason for questioning the authority of this decision. In the first place, it is misprinted by Connell, and on referring to the MS. we find that it was a decision in a case between a minister of a parish and the heritors. It is not stated in what kind of process this was done, and the name of the parish is not, so far as I know, the name of any parish in Scotland. The MS. is one of which nobody can give any distinct account. I can't therefore recognise it as a judgment of the Commission of Teinds. But even if it were to be so regarded, the purpose of the decision cannot have been to lay down any general rule about not calling ministers to processes of valuation. It is not a decision on the general point, or intended to be so, therefore I think we must sustain the objection of the minister.

The other Judges concurred.